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### STATE OF MICHIGAN

COURT OF APPEALS

MOUHAJER DEVELOPMENT,

Plaintiff-Appellee, UNPUBLISHED January 19, 2017

v No. 328842 Wayne Circuit Court ESTATE OF DARIO TOMEI by DINO TOMEI, Personal Representative, LC No. 15-006878-CH

Defendant-Appellant.

Before: T ALBOT , C.J., and J ANSEN and H OEKSTRA , JJ.

P ER C URIAM

.

In this action seeking a prescriptive easement or an easement by necessity, as well as to quiet title to real property, de fendant appeals as of right the trial court’s order granting summary disposition in favor of plainti ff. We affirm the trial court’s decision to quiet title to certain property in favor of plaintiff. However, because plaintiff can not maintain an action for a prescriptive easement or an easement by necessity, we reverse a nd remand for entry of summary disposition in favor of defendant with respect to plaintiff’s e asement claims.

In 2014, plaintiff purchased a par cel of land (“Parcel C”) in the City of Westland at a sheriff’s sale. Dario Tomei was the previous owner of Parcel C . He was the sole owner of the property from 1988 until he lost the property to foreclosure fo r non-payment of taxes. Parcel C consists of 1.09 acres. There is a building on the site, which had been used as a restaurant
between 1982 and 2010. In the rear of the building sits land w hich apparently had been used as a parking lot for the restaurant. When the restaurant was operat ional, the parking lot on Parcel C was accessed via an adjoining 50-fo ot parcel of land (“the 50-f oot access”).

However, it is undisputed that plaintiff did not purchase the 50-foot access at the sheriff’s sale. That is, the 50-foot acce ss was not included in the fore closure of Dario’s property. And, the deed obtained by plaintiff at the sheriff’s sale clearly in cludes a total of 1.09 acres and a legal description that ref ers only to Parcel C. In short, plaintiff did not purchase the 50-foot access.

The fact that the 50-foot access was not included in the forec losure sale of Parcel C is noteworthy because Dario’s 1988 warranty deed pertaining to Par cel C undoubtedly evinced his ownership of 1.4 acres of property, consisting of Parcel C and the 50-foot access. For reasons not entirely clear from the record, there was apparently some d isconnect between the legal ownership of the 50-foot access as set forth in Dario’s deed an d the tax records r elating to the 50--2- foot access. In particular, wh ile Dario’s deed for Parcel C pl ainly included the 50-foot access, the property description in the tax records relating to Parcel C did not include the 50-foot

access. 1 The reasons for this discrepancy are unknown.

Nonetheless, what is clear is that the 50-foot access was not foreclosed upon and plaintiff did not purchase the 50-foot access. Plaintiff now owns Parcel C. Dario remained the owner of
the 50-foot access until his deat h, and the 50-foot access is n ow owned by his estate. 2 In other words, under Dario’s ownership, Parcel C and the 50-foot access were one property, and the tax sale effectively severed the 50- foot access from Parcel C.

After purchasing Parcel C, plaintiff filed the current suit se eking a prescriptive easement or an easement by necessity for use of the 50-foot access. The parties filed cross-motions for summary disposition. The trial court granted summary dispositi on in favor of plaintiff under MCR 2.116(C)(10), concluding that plaintiff was entitled to bot h a prescriptive easement and an easement by necessity to the 50-foot access. The trial court a lso quieted title in favor of plaintiff with respect to Parcel C. 3 Defendant now appeals as of right.

On appeal, defendant argues th at the trial court erred by gran ting summary disposition to plaintiff and denying summary dis position to defendant because plaintiff’s claims for a prescriptive easement and an easement by necessity are without merit. In particular, with respect to an easement by necessity, de fendant argues that plaintiff’s claim must fail because Parcel C directly abuts Wildwood Street and thus plaintiff’s desire to u se the 50-foot access is based on
convenience rather than strict n ecessity. Regarding plaintiff’ s prescriptive easement claim, defendant disputes only whether plaintiff can show that use of the 50-foot access by the owner of Parcel C was adverse. That is, defendant argues that, at all t imes, the 50-foot access and Parcel C were owned by identical person or persons, such that use of t he 50-foot access could not have been adverse to the rights of the owner. We agree.

I. STANDARD OF REVIEW

1 For property tax purposes, the 5 0-foot access was included in the property description of adjoining property owned jointly by Dario and Angelo Tomei. Or iginally, Dario and Angelo owned a total of 4.46 acres, which included Parcel C and the 50 -foot access. They later divided the land into smaller parcels; and, in 1983, Angelo quitclaimed his rights to Parcel C, including the 50-foot access, to Dario and his wife. In 1983, there was then an additional quitclaim transfer of Parcel C and the 50-foot access to a co-partnership named Molly McGuires, in which Dario was a partner. Finally, in 1988, Dario obtained a warran ty deed for Parcel C and the 50- foot access. All of these transfers undisputedly contained a d escription of 1.4 acres of property, consisting of Parcel C as well as the 50-foot access. But, for unknown reasons, the tax records
were not modified to reflect the f act that the 50-foot lot was part of Parcel C.

2 Dario passed away in 2015, and his son, Dino Tomei, was author ized as the personal representative of the estate.

3 Defendant did not contest plain tiff’s ownership of Parcel C, a nd the trial court’s decision to quiet title to that prope rty is not before us on appeal.-3- “This Court reviews de novo a trial court’s decision regarding a motion for summary disposition.” Home-Owners Ins Co v Smith , 314 Mich App 68, 73; 885 NW2d 324 (2016). A
motion under MCR 2.116(C)(10) “tests the factual sufficiency of the complaint.” Joseph v Auto
Club Ins Assoc , 491 Mich 200, 206; 815 NW2d 412 (2012) . When reviewing a motion under this subsection, the affidavits, pleadings, depositions, admiss ions, and other evidence submitted by the parties must be considered “in the light most favorable to the party opposing the motion.”
Maiden v Rozwood , 461 Mich 109, 120; 597 NW2d 817 (1999) . “Where the proffered evidence fails to establish a genuine issue regarding any material fact, the moving party is entitled to judgment as a matter of law.” Id

.

Additionally, “because deeds are co ntracts, the interpretation of their language is an issue of law, which this Court reviews de novo.” Penrose v McCullough , 308 Mich App 145, 147; 862 NW2d 674 (2014). Likewise, a trial court’s equitable decis ions, including decisions in an action for an easement, are reviewed de novo. Mulcahy v Verhines , 276 Mich App 693, 698; 742 NW2d 393 (2007).

II. EASEMENT BY NECESSITY

An action seeking an easement is equitable in nature. Mulcahy , 276 Mich App at 698. Easements are not a possessory interest in real estate; rather, “[a]n easement is a right to use the land burdened by the easement[.]” Schumacher v Dep’t of Natural Resources , 275 Mich App 121, 130; 737 NW2d 782 (2007) (internal quotation marks omitted ). As recently explained by
this Court:

An easement by necessity “may be implied by law where an owner of land splits his property so that one of the re sulting parcels is landlocked except for access across the other parcel.” Chapdelaine v Sochocki, 247 Mich App 167, 172, 635 NW2d 339 (2001), citing [ Schmidt v Eger , 94 Mich App 728, 732; 289 NW2d 851 (1980)]. “An easement by necessity may arise either by gra nt, where the grantor created a landlocked parcel in his grantee, or it may a rise by reservation, where the grantor splits his property and leaves himself landlo cked.” Chapdelaine, 247 Mich App at 172–173. “This sort of implied easement is no t dependent on the existence of any established route or quasi-ea sement prior to the severance of the estate by the common grantor; it is first esta blished after the

severance.” Schmidt, 94 MichApp at 733. “A right of way of necessity is not a perpetual right. It ceases to exist when the necessity for its continuance ceases.” [ Charles A Murray Trust v Futrell , 303 Mich App 28, 41–42; 840 NW2d 775 (2013).]

“[S]trict necessity is required to establish an easement by nec essity.” 4 Id. at 45. Strict necessity is a demanding standard that will only be satisfied if the ease ment is “ absolutely necessary.” id

.

4 Although plaintiff argues on appeal that strict necessity exis ts in this case, plaintiff’s briefing is somewhat inconsistent in that plaintiff also indicates that onl y reasonable necessity is required. Reasonable necessity is required for a claim of an easement imp lied from a quasi-easement. See-4- Id . (citation omitted) (emphasis in original). “Mere convenience , or even reasonable necessity, will not be sufficient if there are alternative routes, even if these alternatives prove more difficult or more expensive.” Schmidt , 94 Mich App at 732. In other words, an easement will not be created by necessity unless th e property is “landlocked.” Forge v Smith , 458 Mich 198, 211 n 38; 580 NW2d 876 (1998).

In this case, the undisputed f acts show that plaintiff’s prope rty is not landlocked, but in fact directly borders Wildwood Ro ad. Clearly, plaintiff can ac cess the subject property from a public road without ever stepping foot on another’s property. See Goodman v Brenner , 219 Mich 55, 59; 188 NW 377 (1922). While plaintiff contends that the building on its property blocks vehicular access to the parking lot behind the building, this argument for more expansive access to the property is one of mere convenience and is insuff icient to establis h that the property
is “landlocked.” See Forge , 458 Mich at 211 n 38. See also Kahn-Reiss, Inc v Detroit & N S &

L Ass'n , 59 Mich App 1, 13; 228 NW2d 816 (1975), overruled in part on other grounds Schmidt

, 94 Mich App at 735. Likewise, while plaintiff complains that e fforts to alter the property and the building to allow for more access will cause expense and perhap s even zoning related difficulties, these types of expenses and difficulties do not e vince the strict necessity required for creating an easement by necessity through defendant’s property. See Schmidt , 94 Mich App at 732. In short, because Parcel C is indisputably not landlocked , plaintiff’s claim for an easement by necessity must fail.

III. PRESCRIPTIVE EASEMENT

“An easement by prescription re sults from use of another’s pro perty that is open, notorious, adverse, and continuous for a period of fifteen year s.” Higgins Lake Prop Owners Assoc v Gerrish Twp , 255 Mich App 83, 118; 662 NW2d 387 (2003). For purposes of f ulfilling the statutory period, “[a] part y may ‘tack’ on the possessory p eriods of predecessors in interest to achieve this fifteen-year period by showing privity of estate.” Killips v Mannisto , 244 Mich App 256, 259; 624 NW2d 224 (2001). “The plaintiff bears the burden to demonstrate entitlement to a prescriptive easement by clear and cogent evidence.” Matthews v Dep’t of Natural Resources

, 288 Mich App 23, 37; 792 NW2d 40 (2010).

Relevant to the parties’ arguments in this case, to say that t he use of the property must be “adverse” or “hostile” “does not imply ill will.” Plymouth Canton Community Crier, Inc v

Prose , 242 Mich App 676, 681; 619 NW2d 725 (2000) (citation omitted) . Instead, “[u]se of another's property qualifies as adverse when made under a claim of right when no right exists.”

Id. Adverse use of another’s pr operty may be shown in two differe nt ways:

In the first, a person begins u sing property without the consen t or authority of the owner and acquires a servitude if the use continues for the pre scriptive period and the other requirements . . . are met. In the second situation, people try to create a servitude but fail, initially because they do not fully articulate their intent or

Charles A Murray Trust , 303 Mich App at 42; Schmidt , 94 Mich App at 731. However, plaintiff has brought a claim for an easement by necessity, which require s a showing of strict necessity. Charles A Murray Trust , 303 Mich App at 45.-5- reduce their agreement to writing, or because they fail to comp ly with some other formal requirement imposed in the jurisdiction. If they proceed to act as though they have been successful in creating the servitude, and continue to do so for the prescriptive period, the servitude is created by prescription if the other requirements . . . are met. In this second situation, pres cription performs a titlecuring function. [ Id. at 684-685 (citation omitted) (emphasis in Plymouth ).]

In other words, “an intended but imperfect express easement may establish a prescriptive
easement” and “such use satisfies the hostile- or adverse-use e lement of a prescriptive

easement.” Mulcahy , 276 Mich App at 702. However, notably, “[i]t is well establi shed that ‘ “[o]ne cannot have an easement in one’s own land.” ’ ” Penrose 308 Mich App at 150, quoting von Meding v Strahl , 319 Mich 598, 610; 30 NW2d 363 (1948). A “unity of fee” betw een the dominant and servient estate extinguishes an easement. Odoi v White , 342 Mich 573, 576; 70 NW2d 709 (1955).

In this case, the purported servient estate is the 50-foot acc ess and the dominant estate is Parcel C. Plaintiff contends that, through use of the 50-foot access, Dario, as the most recent owner of Parcel C, obtained a pr escriptive easement on the 50-f oot access and that this resulting easement is appurtenant to Parcel C. The most obvious flaw in this argument is that both the 50- foot access and Parcel C were undisputedly owned by Dario since 1988. As the owner of the 50- foot access, Dario had every legal right to use the property, a nd there was no hostile or adverse use. In other words, there was a clear unity of fee between th e owner of Parcel C and the 50-foot access that precludes the conclusion that Dario, as the owner o f Parcel C, held an easement on
the 50-foot access. See Penrose 308 Mich App at 150.

Plaintiff’s argument to the cont rary rests on the misguided pr emise that the 50-foot access was not part of Parcel C, but was in actuality part of the adjo ining property, which was owned jointly by Dario and Angelo. To support this argument, plainti ff notes that Angelo and Dario originally owned the 50-foot access, and plaintiff contends tha t the various deeds conveying the 50-foot access as part of Parcel C were not a transfer of owner ship in the 50-foot access but in actuality a failed attempt to create an easement for Parcel C o ver the 50-foot access. Thus, according to plaintiff, there was no unity of fee because Dario and Angelo jointly owned the 50- foot access while Angelo had no interest in Parcel C. Further, based on the contention that the deeds did not transfer ownership of the 50-foot access, plainti ff contends that the deeds represent an intended but imperfect express easement that satisfies the h ostile- or adverse-use element of a prescriptive easement. See Mulcahy , 276 Mich App at 702.

We see no basis for plaintiff’s arguments in the unambiguous l anguage of the deeds at
issue. See Minerva Partners, Ltd v First Passage, LLC , 274 Mich App 207, 216; 731 NW2d 472 (2007) (“The general rule is that courts will follow the plain languag e in a deed in which there is no ambiguity.”) (citation omitted). Quite simply, there is no mention whatsoever of an easement in any of the deeds in Dario’s chain of title and not the sligh test indication that the parties in question intended to create an easement. Instead, beginning wi th the 1983 deed transferring ownership from Dario and Angelo to Dario and his wife, the 50-f oot access is indisputably contained in the description of t he 1.4 acres of property to be transferred; and, the deeds make no
distinction between the transfe r of Parcel C and the 50-foot ac cess. Adhering to the plain language of the various quitclaim and warranty deeds, the only conclusion to be reached is that-6- the respective transferors convey ed their complete interest in Parcel C and the 50-foot access to the respective transferees. See Eastbrook Homes, Inc v Treasury Dep't , 296 Mich App 336, 349; 820 NW2d 242 (2012). Thus, since 1988 Dario has been the owner in fee simple of the entire bundle of rights pertaining to P arcel C and the 50-foot access. Id. at 348. In short, the 50-foot access did not belong jointly to Dario and Angelo as part of th e adjoining property; rather, beginning with the transfer in 1983, the 50-foot access belonge d to the respective owner/owners
of Parcel C. 5

Given the unambiguous transfer of the 50-foot access as a fee simple, there is no basis for supposing that the parties intende d, but failed, to create an e asement for Parcel C over the 50-
foot access. 6 Thus, there is no intended but imp erfect express easement to give rise to a claim for a prescriptive easement. See Mulcahy , 276 Mich App at 702. Rather, because at all relevant times the 50-foot access and Parcel C have been owned by the sa me person or persons, there has been a unity of fee between the servient and dominant estates w hich prevents the creation of a prescriptive easement over the 50-foot access. As noted, “[o]n e cannot have an easement in
one’s own land.” Penrose , 308 Mich App at 150 (citation and quotation marks omitted). Consequently, plaintiff cannot s how a prescriptive use of the 5 0-foot access for the requisite timeframe and plaintiff’s claim fo r a prescriptive easement mus t fail. 7

5 The deeds relating to Dario’s ownership of Parcel C are clear and undisputedly include the 50- foot access in the description of the property to be transferre d. The only confusion in this case is occasioned by the property descriptions associated with the tax identification numbers and the fact that, despite the transfers of ownership, the 50-foot acce ss was apparently never included in
the tax identification number assi gned to Parcel C but instead remained under the tax numbers assigned to the adjoining prope rty. The reasons for this overs ight are not clear; but, in any event, we are unaware of any authority t hat would allow property tax i dentification numbers to control the property rights to the 50-foot access in a manner contrary to unambiguous deeds. See generally In re Rudell Estate , 286 Mich App 391, 410; 780 NW2d 884 (2009).

6 Plaintiff fails to provide any analysis of the deeds in questi on that would suggest they created an easement over the 50-foot access as opposed to transferring a fee simple. Moreover, plaintiff’s argument on appeal i s inconsistent and confusing be cause plaintiff in fact concedes that “[e]ach and every deed executed by [Dario] regarding [Parc el C] clearly and unambiguously provides a legal description whic h includes the fifty-foot acce ss driveway in the deed as belonging to [Parcel C].” Indee d, plaintiff suggests that the 50-foot access “more likely actually belong[s]” to Parcel C and plaint iff queries why the 50-foot ac cess was not included in the deed given to plaintiff as a result of the sheriff’s sale. Despite any discrepancy in the tax records as compared to Dario’s deed for the property, the fact remains tha t plaintiff did not purchase the 50- foot access. That plaintiff now wishes the sale had included t he 50-foot access does not entitle plaintiff to ownership or u se of the 50-foot access.

7 For the first time on appeal, de fendant argues that the tax fo rfeiture proceedings worked to extinguish any potential easement. Specifically, defendant arg ues that, under MCL 211.78k(5)(e), any easement that existed was extinguished when the property was subject to tax-7- Affirmed in part, reversed in part, and remanded for entry of summary disposition in favor of defendant with respect to plaintiff’s claims for an ea sement by necessity and a prescriptive easement. We do not retain jurisdiction.

/s/ Michael J. Talbot
/s/ Kathleen Jansen
/s/ Joel P. Hoekstra

foreclosure and sale. Having determined that plaintiff’s easem ent claims are without merit, we
need not reach this issue.