If this opinion indicates that it is “FOR PUBLICATION,” it is subject to 

revision until final publication in the Michigan Appeals Reports.

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S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

RONALD BURNS,

Plaintiff-Appellant,

UNPUBLISHED

August 4, 2022

v No. 358480

Macomb Circuit Court

FRANK ROMAYA and ROMAYA PROPERTIES, 

INC.,

LC No. 2020-003572-CZ

Defendants-Appellees.

Before: SHAPIRO, P.J., and RICK and GARRETT, JJ.

PER CURIAM.

In this property dispute, plaintiff appeals as of right the trial court’s order denying his 

motion for summary disposition and granting summary disposition in favor of defendants under 

MCR 2.116(I)(2). On appeal, plaintiff contends that the trial court erred because he established

the required elements for an easement by necessity. We affirm.

I. BACKGROUND

This case involves an alleged easement by necessity on defendants’ property in Roseville, 

Michigan. Plaintiff purchased his parcel of property from a Robert A. Duncan on May 9, 2001, 

with the goal of opening a used car lot. Defendant Frank Romaya purchased the adjacent subject 

property from an Anna Ripsam on July 17, 2002.1 Plaintiff requested a zoning variance for his 

proposed use, which he claims was approved subject to him connecting the property to a sanitary 

sewage line. However, he maintains that the only way he can comply with this requirement is 

through access to a sewage line running under defendants’ land.

 

1 We note that defendants’ parcel where plaintiff requested an easement is vacant. However, 

defendants also own and operate a gas station on a nearby lot.
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Plaintiff filed a complaint in the Macomb Circuit Court. He asked the trial court to grant 

him an easement by necessity, the effect of which would allow plaintiff access to the sewer drain 

on defendants’ adjacent property. Plaintiff then moved for summary disposition, arguing that he 

established the requirements for an easement by necessity as a matter of law.2 Defendants 

responded to plaintiff’s motion arguing that plaintiff failed to establish the requisite elements for 

an easement by necessity. Defendants requested that the trial court grant them summary 

disposition under MCR 2.116(I)(2).

After a hearing on plaintiff’s motion, the trial court entered an opinion and order denying 

plaintiff’s motion for summary disposition and granting summary disposition to defendants. 

Relying on Charles A Murray Trust v Futrell, 303 Mich App 28; 840 NW2d 775 (2013), the court 

concluded that plaintiff failed to establish an easement by necessity. Specifically, the court 

determined that plaintiff failed to present requisite evidence that his property was landlocked from 

a prior partition of land. The trial court determined that plaintiff failed to provide any authority 

allowing for an easement by necessity on an unsevered parcel. The court also concluded that 

plaintiff failed to establish the strict necessity required for an easement by necessity. The court

reasoned that plaintiff failed to present evidence that the requested easement was the only way to 

comply with the zoning variance, whereas defendants submitted an affidavit indicating that 

plaintiff had alternate methods of accessing the sewer line. This appeal followed.

II. STANDARD OF REVIEW

This Court reviews a trial court’s decision on a motion for summary disposition de novo. 

El-Khalil v Oakwood Healthcare, Inc, 504 Mich 152, 159; 934 NW2d 665 (2019). A motion for 

summary disposition under MCR 2.116(C)(10) “tests the factual sufficiency of a claim.” Id. 

at 160. Courts must consider all evidence in a light most favorable to the nonmoving party. Id. 

The motion may only be granted when there is no genuine issue of material fact. Id. “A genuine 

issue of material fact exists when the record leaves open an issue upon which reasonable minds 

might differ.” Johnson v VanderKooi, 502 Mich 751, 761; 918 NW2d 785 (2018) (quotation 

marks, citation, and alteration omitted). The existence of an implied easement is also a question 

of law this Court reviews de novo. Murray Trust, 303 Mich App at 41.

A moving party satisfies its burden under MCR 2.116(C)(10) by either “submitting 

affirmative evidence that negates an essential element of the nonmoving party’s claim” or by 

“demonstrating to the court that the nonmoving party’s evidence is insufficient to establish an 

essential element of the nonmoving party’s claim.” Lowrey v LMPS & LMPJ, Inc, 500 Mich 1, 7; 

890 NW2d 344 (2016) (quotation marks, citation, and alterations omitted). Once this initial burden 

is met, “the nonmoving party may not rely on mere allegations or denials in pleadings, but must 

go beyond the pleadings to set forth specific facts showing that a genuine issue of material fact 

exists.” Id. (quotation marks and citation omitted). A trial court may grant summary disposition 

 

2 While plaintiff’s motion failed to specify under which particular statutory provision he was 

requesting summary disposition, his brief on appeal clarifies that the case should be evaluated 

under MCR 2.116(C)(10). However, plaintiff did not attach any documentary evidence to his 

motion for summary disposition.
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under MCR 2.116(I)(2)to a non-moving party upon determining “...that the opposing party, rather 

than the moving party, is entitled to judgment as a matter of law.” Rataj v Romulus, 306 Mich 

App 735, 747; 858 NW2d 116 (2014) (quotation marks and citation omitted).

III. ANALYSIS

Plaintiff argues that the trial court erred in denying his motion for summary disposition and 

granting summary disposition in favor of defendant. Plaintiff maintains he established the required 

elements for an easement by necessity. We disagree.

An easement is a limited property interest, and it is the right to use the land burdened by 

the easement for a specific purpose. Dep’t of Natural Resources v Carmody-Lahti Real Estate, 

Inc, 472 Mich 359, 378-379; 699 NW2d 272 (2005). As discussed in Murray Trust, 303 Mich 

App at 41-42,

An implied easement may arise in essentially two ways: (1) an easement by 

necessity and (2) an easement implied from a quasi-easement. An easement by 

necessity may be implied by law where an owner of land splits his property so that 

one of the resulting parcels is landlocked except for access across the other parcel. 

An easement by necessity may arise either by grant, where the grantor created a 

landlocked parcel in his grantee, or it may arise by reservation, where the grantor 

splits his property and leaves himself landlocked. This sort of implied easement is 

not dependent on the existence of any established route or quasi-easement prior to 

the severance of the estate by the common grantor; it is first established after the 

severance. [Quotation marks and citations omitted; emphasis added.]

Furthermore, an easement by necessity requires a showing of strict necessity, i.e., that no other 

alternatives are available to access—or, in this case, to develop—the property. See id. at 45-49.

As an initial matter, there is no binding authority in Michigan that recognizes easements 

by necessity for access to utilities. While this Court granted an easement by necessity for utility 

access in Tomecek v Bavas, 276 Mich App 252; 740 NW2d 323 (2007), aff’d in part, rev’d in part, 

and vacated in part by 482 Mich 484, 487 (2008), in vacating that portion of this Court’s opinion, 

our Supreme Court stated, “Regarding the Court of Appeals dicta creating an easement by 

necessity for utilities, we decline to address whether such an easement is available in Michigan.” 

Tomecek v Bavas, 482 Mich 484, 497; 759 NW2d 178 (2008) (opinion by KELLY, J.). “A Court 

of Appeals opinion that has been vacated by the majority of the Supreme Court without an 

expression of approval or disapproval of this Court’s reasoning is not precedentially binding.” 

Estate of Wanda Jesse v Lakeland Specialty Hosp at Berrien Ctr, 328 Mich App 142, 149 n 2; 936 

NW2d 705 (2019) (quotation marks and citations omitted). Plaintiff provides absolutely no 

argument or authority supporting why this Court should recognize such easements here—or how 

they might differ, legally or factually, from traditional easements by necessity for property access.

Considering the requirements for an easement by necessity from Murray Trust, 303 Mich 

App at 41-42, plaintiff clearly failed to produce the requisite evidence. Plaintiff failed to support 

his motion for summary disposition with any documentary evidence. Critically, plaintiff failed to 

provide evidence establishing that the subject parcels were ever partitioned by a common grantor. 
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See id. On the other hand, defendant submitted property records indicating that the two properties 

were purchased at different times and from different grantors. Plaintiff offered no contradictory

evidence. Plaintiff’s failure to provide any evidence of this element is fatal to his claim. See 

Lowrey, 500 Mich at 7.

Plaintiff relies on the affidavit of Roseville’s Building Director to support his argument 

that he established strict necessity. However, the affidavit was only submitted with plaintiff’s 

motion for reconsideration—after the trial court had ruled on summary disposition. As discussed, 

plaintiff failed to provide any evidence supporting his motion for summary disposition or rebutting

the evidence submitted by defendants. The trial court did not abuse its discretion “in denying a 

motion resting on a legal theory and facts which could have been pled or argued prior to the trial 

court’s original order.” Woods v SLB Prop Mgt, LLC, 277 Mich App 622, 630; 750 NW2d 228 

(2008) (quotation marks and citation omitted). Further, even if we were to consider the affidavit, 

plaintiff still cannot establish that the properties were previously severed by a common grantor. 

Therefore, the trial court did not err by denying plaintiff’s motion and granting summary 

disposition in favor of defendants.

Affirmed.

/s/ Douglas B. Shapiro 

/s/ Michelle M. Rick 

/s/ Kristina Robinson Garrett