NOT RECOMMENDED FOR PUBLICATION File Name: 23a0384n.06
Case No. 22

- 1601
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

MOORE FAMILY TRUST; SCOTT MICHAEL MOORE, Trustee,
Plaintiffs

- Appellants ,

v. MICHAEL WILLIAM BINGHAM; PETER EDWARD BINGHAM; WILLIAM DAVID BINGHAM; MARY BINGHAM; DONNA BINGHAM; LAURA CISON; KEVIN SALLESE; ELIZABETH SALLESE; LOUIS TOMASINO; BARBARA TOMASINO; BARRY HEALY; JUDY HEALY; JAMES MARKS; CHRISTINE MARKS; FRANK BERTUCCI; PATRI CIA BERTUCCI; BRIAN BURICH; ANTOINETTE BURICH; BRIAN MARTIN; AMIE MARTIN; BINGHAM FAMILY TRUST; SUSAN M. BINGHAM,
Defendants

- Appellees

. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN
OPINION

Before : CLAY, WHITE, and THAPAR, Circuit Judges. WHITE, J., delivered the opinion of the court in which CLAY and THAPAR, JJ., joined. THAPAR, J. (pp. 21

– 23), delivered a separate concurring opinion.Case No. 22

- 1601 , Moore Family Trust, et al. v. Bingham, et al.

- 2

- HELENE N. WHITE , Circuit Judge. Invoking the court’s diversity jurisdiction under
28 U.S.C. § 1332 1 , Scott Moore and the Moore Family Trust sue d the Bingham family for trespass and nuisance based on their use of a disputed area of land in Michigan’s Upper Peninsula

. 2 The district court granted summary judgment to the Binghams , finding that they had a prescriptive easement over the land that defeated Moore’s claims , and Moore appeals

. Moore Fam. Tr. v. Bingham , No. 2:19

- CV

- 115, 2022 WL 2619857, at *1 (W.D. Mich. July 6, 2022)

. Because we find that genuine issue s of material fact remain, w e REVERSE and REMAND

. I.
S cott Moore ’s family has owned land along Lake Gratiot in Keweenaw County for over 140 years. In 1980, his grandparents , Bernard and Dolly Eister , sold approximately 45 acres of the land to William E. and Greta Bingham. T he deed included an easement over the Eisters’ property “for access” from the public road , described as “ [a] strip of land Twelve (12) feet in width.” R . 214

- 1, PID 4139. At some point , the Bingham family turned the easement into a 15

- foot

- wide gravel road

. Moore , who assumed care of his family’s property in 1985 , attests that he knew that the Binghams

1 Moore is a New York resident, and his family’s trust is a New York trust; the Bingham Family Trust is a Michigan trust, and the Bingham individual Defendants are residents of Florida, Illinois, Michigan, and Tex as. The Bingham s moved to dismiss, arguing that the amount in controversy is below $75,000 , but t he district court properly found that they failed to support this assertion to a legal certainty , and the Binghams do not challenge that finding

. See Charvat v. GVN Mich., Inc. , 561 F.3d 623, 628 (6th Cir. 2009).
2 Pursuant to the operative Third Amended C omplaint, Moore , on behalf of himself and the Moore Family Trust ( which he manages , and which owns the Moore family’s land on Lake Gratiot ) , sue d twenty

- one individual members of the Bingham family and the Bingham Family Trust

. Defendants

- Appellees are Michael, Peter, William, Mary, Donna, and Susan Bingham, Laura Cison, Kevin Sallese, Louis and Barbara Tomasino, Barry and Judy Healy, James and Chr istine Marks, Frank and Patricia Bertucci, Brian and Antoinette Burich, Brian and Amie Martin , and the Bingham Family Trust

. F or simplicity, we refer to Plaintiffs

- Appellants in the singular as “Moore” and to Defendants

Appellees as “ the Binghams ” or the “Bingham family ,” although we discuss individual defendants as relevant

. Moore also sued several other s in his first complaint. These Defendants

— Matthew, Joan, Meghan, and Monica Downey, Nicole Heidrich, and Richard Parker

— were dismissed with prejudice a fter Moore settled claims with them.Case No. 22

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- were encroaching around this time , but he was coping with a family tragedy and took no immediate action

. Michael Bingham , son of William and Greta, attests that his f ather built the road around 1986 and the family has maintained it and “regularly” used its full 15

- foot width ever since

. R.
221

- 2, PID 4862

- 6 4

. Moore moved to the lake full

- time in 1990 and began a series of challenges to the Binghams’ expanded use of t he easement

. Sometime during the 1990s , he complained to the Binghams’ logger about clearing land beyond the original easement. In 1995, he sent a protest letter to William and Greta Bingham “objecting to use of the easement by speeding cars, trucks, and rumbling construction vehicles, and of the noise, dust, and stones scattered off the easement.” R. 214, PID 4099. That year he also had a surveyor stake the easement boundaries. Moore moved away in 2000 but has visit ed every summer since , us ually for about two weeks

. I n 2001, he found all but one of the stakes removed and responded by placing tree stumps along the original easement boundaries. Thus began a multiyear cycle: Each summer from 2002 through 2017, Moore arrived to find his stump s removed and replace d them. Fed up, in 2018, Moore had the easement’s recorded boundaries re - staked and added no

- trespassing signs

. But in July 2018, he found several posts removed. At this point, Moore called the police and installed surveillance cameras. The next day, he found three of the stake holes filled and reported this to police. The day after, William, Michael, and Peter Bingham exchanged “loud and angry expletives” with Moore on the public road

. Moore sued the Binghams in 2019 for trespass and nuisance , seeking monetary damages, attorney fees and costs, and permanent injunctive rel ief

. The Binghams counterclaimed, asserting a prescriptive easement over the 15

- foot width as a defense and seeking a ttorney fees andCase No. 22

- 1601 , Moore Family Trust, et al. v. Bingham, et al.

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- declaratory relief . B oth parties moved for summar y judgment

. The district court granted the Binghams’ motion and denied Moore’s, concluding that the Binghams had a prescriptive easement
and that this and the statute of limitations defeat ed Moore’s claims. Moore Fam ily Tr ust , 2022 WL 2619857, at *8

- 9. The court also found that Moore failed to show that the Binghams had overburdened the easement through use by more people over the years

. Id. at *9.
II. We review de novo a district court’s decision to grant or deny summary judgment. George v. Youngstown State Univ. , 966 F.3d 446, 458 (6th Cir. 2020). The moving party must establish that there is “ no genuine dispute as to any material fact ” and it is “entitled to judgment as a matter of law , ” Fed. R. Civ. P. 56(a) , which requires showing that no “ reasonable jury could return a verdict for the nonmoving party , ” Anderson v. Liberty Lobby, Inc. , 477 U.S. 2 42, 248 (1986). O n this showing , the nonmoving party must use “ specific facts ” to demonstrate that “ a genuine issue for trial ” exists ; otherwise, summary judgment is warranted. Celotex Corp. v. Catrett , 477 U.S. 317, 323 (1986 ) (emphasis added)

. “In considering” a summary

- judgment motion, “the court must view the ev idence and draw all reasonable inferences in favor of the nonmoving party.” Wexler v. White’s Fine Furniture, Inc. , 317 F.3d 564, 570 (6th Cir. 2003).
I I I. We start with t he grant of summary judgment to the Binghams’ on their prescriptive

easement claim

. The district court found that the Binghams established the elements for aCase No. 22

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- 5

- prescriptive easement, including continuous use ; Moore argues that the court appl ied the wrong standard , improperly weighed the evidence , and failed to determine the easement’s boundaries

. 3
A. Moore is correct that the district court applied an incorrect standard for continuous use but is wrong about the right one . Under Michigan law , a prescriptive easement “arises from a use of the servient estate that is open, n otorious, adverse, and continuous for a period of fifteen years.” Goodall v. Whitefish Hunting Club , 528 N.W.2d 221, 223 (Mich. Ct. App. 1995)

. The party claiming the easement must establish these elements using “clear and cogent proof , ” Marlette Auto Wash, LLC v. Van Dyke SC Properties, LLC , 912 N.W.2d 161, 167 (2018) , which is a higher standard “ than a preponderance of the evidence, approaching the level of proof beyond a reasonable doubt , ” Walters v. Snyder , 5 70 N.W.2d 301, 303 (Mich. Ct. App. 1997)

. A landowner may interrupt the claimant’s continuous use, and thus restart the fifteen

- year clock , by blocking the claimant from using the land. Fowle v. Dushane , No. 339913, 2018 WL 5276145, at *4 (Mich. Ct. App. Oct. 16, 2018).
Moore asserts that he interrupted the Binghams’ use with the tree stumps , but the Binghams
argue that the stumps never stopped them

. The district court found Moore ’s argument insufficient
based on an example from the Third Restatement of Property : A drove his cattle across Blackacre every year to reach and return from summer pasture. O , the owner of Blackacre, repeatedly fenced Blackacre, blocking the trail, but A as frequently cut the wires and drove his cattle through. In the absence of

3 Moore also argues that the prescriptive easement fail s because the Binghams did not specify its start date and the district court looked only at the continuous 2001

- 2018 period

. But the Binghams only need ed to identify one 15

- year period of prescriptive use, so their use at other times does not matter if this period was sufficient

. Marlette Auto Wash, LLC v. Van Dyke SC Properties, LLC , 912 N.W.2d 161, 167 (2018)

.Case No. 22

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- other facts or circumstances, the conclusion would be justified that O did not interrupt A ’s adverse use

. Restatement (Third) of Property: Servitudes § 2.17 , c mt

. j (2000). The district court reasoned that Moore did no more with the tree stumps than O did with the fencing , and that the Binghams simply moved the tree stumps as A cut the wires , and thus Moore failed to prove interruption. Moore
Fam ily Tr ust , 2022 WL 2519857, at *5

- 6. We are not convinced that Michigan courts follow this narrow view of interruption

. Although Michigan courts have cited the Third Restatement, we find only three example s citing the section on servitudes, none address ing interruption

. 4 Faced with “little helpful authority” on in terruption , the Michigan Court of Appeals turned to secondary sources but not the Third
Restatement

. Fowle , 2018 WL 5276145 , at *4

. 5 And although it noted that “[a] temporary or accidental interruption, generally, is not sufficient , ” id. (quoting 28A CJS, Easements, § 38, p.
237 ) , it specifically stated that “ a physical barrier erected across the easement, which prevents the dominant estate from continuing its u se, interrupts the prescriptive period ,” id. (citing Hopkins v. Parker , 296 N.W. 294 , 295

- 96 ( Mich. 1941) ) , and “ that if the owner of the servient estate ‘ takes any action that stops a claimant ’ s use of the property ’ during the prescriptive period, such as erecting physical barriers , ‘ for any period of time, no matter how brief , ’ ‘ this action will defeat a

4 We have searched for such cases using We stlaw , and the Binghams cite no authority showing that Michigan courts follow the Restatement’s approach to interruption

. See Finch v. Kelly , No. 337493, 2018 WL 2991075, at *3 (Mich. Ct. App. June 14, 2018); Applebee Oil Co. v. Michigan Milk Producers As s’n , No. 327514, 2016 WL 5599645, at *4 (Mich. Ct. App. Sept. 29, 2016); Brookfield E. Lansing, LLC v. 125 N. Hagadorn, LLC , No. 325956, 2016 WL 3542359, at *5 (Mich. Ct. App. June 28, 2016).
5 “ Intermediate state appellate courts ’ decisions are

. . . viewed as persuasive unless it is shown that the state ’ s highest court would decide the issue differently. ” In re Dow Corning Corp. , 419 F.3d 543, 549 (6th Cir. 2005).Case No. 22

- 1601 , Moore Family Trust, et al. v. Bingham, et al.

- 7

- claim for a prescriptive easement

. ’ ” Id. (quoting 157 Am

. Jur

. Proof of Facts 3d § 59 ) (emphasis added)

. Accordingly, even brief interruption is sufficient under Michigan law. 6
A lthough the district court viewed interruption too narrowly, Moore is mistaken about the proper standard. He cites Hurst v. Rysberg , assert ing that he only needed to “manifest [his] purpose to resume poss ession of the land.” See No. 259564, 2006 WL 1042084 (Mich. Ct. App. Apr. 20, 2006) (per curiam). But Hurst concerned adverse possession , which , unlike a prescriptive
easement, requires exclusive use by the claimant

. Matthews v. Dep’t of Nat. Res. , 792 N.W.2d 40, 49 (Mich. Ct. App. 2010) (per curiam)

. B.
Next , we agree with Moore that the district court failed to hold the Binghams to the correct standard of proof when evaluating whether the tree stumps restricted their use of the road

. Because the Binghams moved for summary judgment on their claim of a prescriptive easement, they must show the absence of a genuine issue of materia l fact , Fed. R. Civ. P. 56(a) , while also establis h ing the elements using “clear and cogent ” proof , Snyder , 570 N.W.2d at 303 ; see also McQueen v. Black , 425 N.W.2d 203 , 205 n.2 ( Mich. Ct. App. 1988) ( addressing clear

- and

- cogent standard in adverse

- possession case and explaining that, “ w here there is any reasonable dispute, in light of the evidence over the questions of possession, the party has failed to meet his burden of proof” )

.

6 We also observe that, using language similar to Fowle , several o ther state courts have explicitly taken a broader view of interruption and found interruption even where the easement claimant immediately move d barriers. See Pittman v. Lowther , 610 S.E.2d 479, 480

- 81 (S.C. 2005) ( “ N umerous courts have held when the pote ntial servient owner, by either threats or physical barriers, succeeds in causing a discontinuance of the use, no matter how brief , the running of the prescriptive period is stopped” (emphasis added) ); Allen v. Thomas , 209 S.W.3d 475, 480 (Ky. Ct. App. 200 6); Kelley v. Westover , S.W.2d 235, 235

- 36 (Ark. 1997); Garrett v. Mueller , 927 P.2d 612 ( Or. 1996) . These courts have reasoned that requiring more “ would encourage wrongful or potentially violent behavior that is contrary to sound public policy.” Allen , 209 S.W.3d at 480 (quoting Pittman , 610 S.E.2d at 481).Case No. 22

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- The Binghams asserted in their summary

- judgment motion t hat, although Moore “argue[d] that he used stumps to impede [their] use,” Moore “admits it never stopped them because the logs were moved.” R. 217

- 1, PID 4582. They also asserted that “[c]ontinuity was not broken until 2018 when Mr. Moore placed metal si gns along both sides of the original easement ” and “[e]ven then, the signs only partially interfered with their use because larger vehicles [could] no longer get through.” Id. At a motion hearing , the Binghams’ attorney argued that “the undisputed eviden ce is that [the Binghams] didn’t even know [the logs] were intended to stop them because [they were] so far off to the side that they noticed the pile but it didn’t stop them.” R. 243, PID 5030. In response, Moore assert ed that he interrupted the Bingh ams’ use with the stakes in 1995 and 2018 and with tree stumps in summers 2001 through 2017 , “all of which impeded the flow of [the Bingham’s] traffic

. ” R. 220, PID 4695. H e pointed to his response to the Binghams’ interrogatories and his October 2021 declaration, which described alleged interruptions in similar
terms

. As stated in the declaration, after finding the 1995 stakes removed in 2001 , Moore “protested ” using “tree stumps [that] obstructed the path of vehicles” placed “along the [n]orth a nd [s]outh side of the [w]est end of the [e]asement boundaries , ” where the easement meets the public

r oad. R. 214, PID 4100. “ [T]h e next summer, ” he found the stumps “removed and disappeared,”

so Moore “again placed tree stumps to mark the easement, ” and “[e]ach subsequent summer the pattern of placement of stumps and the discovery of their removal[] continued until .

. . 2018 ,” when he had the boundaries re

- staked. Id. As explained, relying on the Restatement example, the district court found that Moore failed to establ ish a “factual dispute for trial” regarding interruption

. Moore Fam ily Tr ust , 2022 WL 2619857, at *6. T he court noted that Moore “offer[ed] no evidence that the stumps remainedCase No. 22

- 1601 , Moore Family Trust, et al. v. Bingham, et al.

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- in place any longer than the time it took to place them there” and that the Binghams said “that the stumps ‘never stopped them

. ’” Id. (quoting R. 217

- 1, PID 4581)

. “[T] he factual record of people with personal knowledge consists exclusively of sworn declarations of the Binghams who were actually using their property and the easement ,” the court reasoned, and “[a] gainst this sworn personal knowledge is only the speculation and hypothetical possibilities suggested by Mr. Moore who was not there. ” Id. at n.6. On review, w e conclude that t he district court failed to hold the Binghams to their standard of pro of. The Binghams ’s summary

- judgment motion asserted that the stumps “never stopped
them , ” citing a portion of Moore’s first complaint in which Moore described finding the stumps removed each summer upon returning to the lake. 7 They otherwise provided no support for this assertion, except for an affidavit cited elsewhere in the motion, in which Michael William Bingham said that his family has “regularly walked, biked, and dr[iven] over the entire 15

- foot

wide easement” and “continuously used the easement without interruption until 2018 .” R. 217

- 2, PID 4592.
T his was not enough for the Binghams to establish the absence of a “genuine dispute as to any material fact ,” Fed. R. Civ. P. 56(a) , under the “cle ar and cogent” evidence standard , Snyder , 570 N.W.2d at 303. True, “ regardless of whether the moving party accompanies its summary judgment motion with affidavits, the motion may, and should, be granted so long as whatever is before the district court dem onstrates that the standard for the entry of summary judgment . . . is satisfied.” Celotex Corp. , 477 U.S. at 323. But this standard was not met with “all reasonable

7 The Binghams cited Moore’s first complaint, but the cited portion appears the same in Moore’s Third Amended Complaint.Case No. 22

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- inferences” drawn in Moore’s favor

. S ee Wexler , 317 F.3d at 570. The Binghams never directly addressed the stumps, except to suggest t hat Moore “admit [ted]” that the stumps “ never stopped them” because he said he found them removed

. R. 217

- 1, PID 4581. Based on that “admi[ssion]”
and Moore’s declaration , and in the absence of any evidence from the Binghams about how and when they removed the stumps, a “ reasonable inference ” in Moore’s favor would be that the stumps still blocked the Binghams from using the 15

- foot width for at least some time before the Binghams moved them , which is enough for interruption

. Thus, the court erred in granting summary judgment on the claimed prescriptive easement

. 8
C.
Moore further argues that, even if the elements for a prescriptive easement were met, the court should have determined the ea sement’s precise boundaries. Under Michigan law , adverse possession and prescriptive easements may rely simply on visible markers. See Gould v. Fiero , 247 N.W. 719, 719 (Mich. 1933) (“ The line was marked by stakes, a post, and by trees. ”). Thus,
t he district court sufficiently found that the Binghams established “ the existence of a prescriptive
easement [15]

- feet wide in length, over the gravel road between the Binghams parcels and the public road .” Moore Fam ily Tr ust , 2022 WL 2619857, at *6 ; c f. Matthews , 792 N.W.2d at 43

8 Relatedly, we note that Moore argues that the district court misconstr ued evidence about a maple tree that, he asserts, once marked the deeded easement’s boundaries. In 2008, the Binghams cut this tree down and paid Moore’s family after they complained. The district court found this evidence irrelevant because the tree “cl early was not part of the prescriptive use before 2008” and “the Binghams [are not] asserting a prescriptive easement over the area where the maple once stood.” Moore Fam ily Tr ust , 2022 WL 2619857, at *7. But as Moore notes on appeal, the court based its latter finding on evidence regarding a separate area of land , and the Binghams’ only response is to agree that the tree could not have been part of the easement pre

- 2008 and assert that there is no evidence anyone knew the tree was easement

- defining. Eve n if that assertion is true, if Moore show s that the Binghams changed their area of use in 2008, that would likely restart the 15

- year clock at least for some area and potentially cast doubt on use of a greater area. Accordingly, the maple tree presents issues for trial as related to continuous use

.Case No. 22

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- ( finding claimant had easement over “pathway of pallets that stretches 0.22 miles (or 1,200 feet), from the end of the two

- track road to the landlocked parcel”).
Nonetheless , Moore asserts that the Binghams trespassed beyond th e 15

- foot width, and , indeed in defending against Moore’s claims, the Binghams assert on appeal and asserted before the district court that they used a wider area at the easement’s entrance

. However, the Binghams do not challenge the district court’s findings regarding the easement’s boundaries , nor did their counterclaim seek declaratory relief for land beyond the 15

- foot width , and as discussed below , Moore forfeited any argument about trespass beyond that area

. I V . We turn to th e district court’s decision to deny summary judgment on Moore’s trespass and nuisance claims and grant summary judgment to the Bingham s . Moore argues that if the prescriptive easement fails, he is entitled to summary judgment based on the Binghams’ trespass in the 3

- foot expansion area . Additionally , Moore argues that , regardless of the easement, he should receive damages for alleged trespass beyond the expansion and also that the Binghams overburdened the easement and created several nuisance cond itions

. 9 Under Michigan law, “[a] trespass is an unauthorized invasion of the private property of another,” Morse v. Colitti , 896 N.W.2d 15, 30 (Mich. Ct. App. 2016), and “[a] private nuisance is a nontrespassory invasion of another’s interest in the private use and enjoyment of land,” Adkins v. Thomas Solvent Co. , 487 N.W.2d 715, 720 (Mich. 1992). “Activities . . . beyond the reasonable

9 He also argues that the district court failed to join his trespass and nuisance claims , cit ing L.A. Plaza, Inc. v. Hermiz , in which the Michigan Court of Appeals noted that a trial court has jurisdiction to consider nuisance and trespass claims brought un der a Michigan citizen

- suit statute

. See No. 293291, 2010 WL 4103536, at *3 (Mich. Ct. App. Oct. 19, 2010)

. L.A. Plaza is irrelevant here, and thus w e thus find no error , especially given that the court considered these claims . F or our review , we consid er Moore’s claims “as sounding in trespass and/or nuisance

. ” See Droncheff v. Kerr , No. 298874, 2011 WL 6268200, at *1 (Mich. Ct. App. Dec. 15, 2011)

.Case No. 22

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- exercise of the use granted by [an] easement may constitute a trespass,” Schadewald v. Brule , 570 N.W.2d 788, 796 (Mich. 1997), meaning “[t]he owner of an easement cannot materially increase the burden of the easement or impose a new and additi onal burden on the servient estate,” Heydon v. MediaOne , 739 N.W.2d 373, 379 (Mich. 2007). Trespass and nuisance claims are subject to a 3

- year statute of limitations, Mich. Comp.
Laws § 600.5805(2), but where “the nuisance or trespass is ‘temporary’ or ‘continuous,’ a new cause of action arises day by day or injury by injury, with the result that the plaintiff in such a case can always recover for such damages as have accrued within the statutory period immediately prior to the suit,” Township of Fraser v. Haney , 983 N.W.2d 309, 312 n.13 (Mich. 2022) (quoting Russo Farms, Inc. v. Vineland Bd. o f Ed. , 675 A.2d 1077, 1086 (N.J. 1996)).

A . Assuming the prescriptive easement fails, Moore arg ued i n his summary

- judgment briefing that he must prevail for trespass in the 3

- foot expansion area because the Binghams admit trespass ing there

. In deed , in their summary

- judgment briefing, the Binghams “admit[ted] to trespass by expanding the width and l ocation of the easement” b ut argued that , even without a prescriptive easement, Moore’s claim s fail for a lack of timeliness and because “a responsible party or damage cannot be identified

. ” R. 219

- 1, PID 4662

- 63. T he Binghams noted Michigan’s abrogation of the continuing

- wrongs doctrine, asserting that “there need only be one wrong and one injury to begin the running of the period of limitations.” R. 217

- 1, 4583 (quoting Marilyn Froling Revocable Living Tr. v. Bloomfield Hills Country Club , 769 N.W.2d 234, 247 (2009)). The Binghams misconstrue the significance of Michigan ’s abrogati on of the continu ing

wrongs doctrine, which was a mechanism that enabled plaintiffs to sue for harms outside the statuteCase No. 22

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- of limitations when part of a series o f wrongs extended into the statutory period. Haney , 983 N.W.2d at 313. The doctrine’s abrogation does not “immunize” trespass or nuisance defendants from suits based on “new violation[s] , ” i d. at 314 , which arise each day the trespass or condition persis ts , i d. at 310, 312 n.13. Accordingly, if the prescriptive easement fails, Moore has a viable theory of trespass. T he Binghams admit trespass ing in the 3

- foot expansion area and suggest only that “ other allegations of trespass fail” because “a responsible party or damage cannot be identified.” R. 219

- 1, PID 4662 (emphasis added)

. By “other allegations,” the Binghams apparently refer to the removal of the stumps and survey posts , filling the holes for t he posts, William Bingham using a CAT Bobcat to dig along the easement , and Peter Bingham parking off the easement

. As to removal of the stumps and filling the holes , we agree that Moore fails to identify a defendant. F or the other trespass claims, Moore has identified defendants, and we leave any damages for resolution on remand

. 10
B . Moore forfeited his claim for trespass beyond the 15

- foot width

. “ [A] litigant must give the court and opposing parties notice of his position ” and provide “ ‘s ome minimal level of argumentation in support’ of that position .” In re Anheuser

- Busch Beer Labeling Mktg. & Sales Pracs. Litig. , 644 F. App’x 515, 527 (6th Cir. 2016) (quoting United States v. Huntington Nat ’ l Bank , 574 F.3d 329, 332 (6th Cir. 2009) ). “[ I] ssues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed [forfeited]. It is not sufficient for a party to mention a possible argument in the most skeletal way, leaving the court to

10 Moore attests that a security camera recorded Donna Bingham moving a sign in August 2018 ahead of a large construction truck.Case No. 22

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- . . . put flesh on i ts bones.” Id. (quoting McPherson v. Kelsey , 125 F.3d 989, 995

- 96 (6th Cir.1997) ) (second alteration in original). Although Moore’s complaint never limited trespass to the 15

- f oo t width , and the facts section of his summary - judgment motion describes a la rger area , Moore never discussed a larger area in the motion’s argument section . Instead, he refer r ed only to the Binghams’ admission that they have expanded their road by 3 feet. Without a “minimal level of argumentation , ” this argument is forfeit ed

. Cf

. id. C . Notwithstanding any prescriptive easement, Moore argues that he establish ed seven theories of nuisance and trespass by overburdening : 1) the Binghams’ creation of a 30

- foot

- wide road on their property abutting the easement; 2) the Binghams’ transport ation of mobile homes over the easement onto their property; 3) the Binghams’ failure to attach private

- road notices to 14 of 15 deeds , 4) the removal of the 1995 and 2018 survey markers, 5) the Binghams’ use of the easement to travel between Bingham

- owned properties, 6) the Binghams’ use of the easement and the public road as an ATV/ORV trail, and 7) the Binghams’ property splits in alleged circumvention of land

- division laws. Moore asserts that these actions created “overburdening, dangerous, offensive, and hazardous condition[s],” R. 213, PID 3606, referencing Buckeye Union
Fire Ins. Co. v. State , which instructs that “[n]uisance may . . . exist as a dangerous, offensive, or hazardous condition even with the best of care , ” 178 N.W.2d 476, 480 (Mich. 1970). In response, the Binghams revisit their trespass arguments , asserting that Moore’s nuisance and trespass

- by

- overburdening claims fail for un timeliness , “ lack of damage, ” and “ failure to identify a responsible party

. ” Appellee’s Br. 25

. They also argue that Moore fails to identify anyCase No. 22

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- cognizable nuisance injuries and make specific points , addressed below, regarding Moore’s various theories.
T he district court found that none of Moore’s claims fell “ within the statute of limitations but outside the scope of the prescriptive easement determination ” and that “the Binghams’ use of
the easement remain[ed] within the original purpose.” Moore Fam ily Tr ust , 2022 WL 2619857, at *9. W e agree that several claims fail without regard to whether the Binghams have a prescriptive
easement , but we differ in our reasoning and conclude that Moore brought viable nuisance and overburdening claims base d on speeding vehicles and use of ATVs/ORVs

. 1. Moore presents an issue of fact with his argument that the 30

- foot

- wide internal easement on the Binghams’ property causes “a bottleneck by adjoining

. . . the 12

- foot

- wide [e ] asement [ over Moore’s property] followed by the 66

- foot

- wide [public road]

. ” Appellant’s Br. 48. 11 This argument supports a viable overburdening claim because , with “ all reasonable inferences ” drawn in Moore’s favor , Wexler , 317 F.3d at 570, it supports Moore’s theory that v ehicle s travel too quickly across his property, especially considered alongside Moore’s images of vehicles driving fast over his property and his declaration about this problem

. Additionally , as discussed below, this theory is buttressed by Moore’s argume nts about the private

- road notices. To be sure, t he Binghams are permitted to use the easement for “access,” but “ unnecessary dallying, unnecessary noise, unnecessarily destructive maneuvering, and other such frivolities or aggravations beyond what intrin sically accompanies any particular conveyance will overburden

11 The 30

- foot

- wide internal easement was created in 1995 when William E. and Greta Bingham split the land into 5 lots, adding the internal easement to the four deeds.Case No. 22

- 1601 , Moore Family Trust, et al. v. Bingham, et al.

- 16

- [an] easement. ” Lamkin v. Hartmeier , No. 326986, 2016 WL 4585816, at *4

- 5 & n.8 (Mich. Ct. App. Sept. 1, 2016), judgment vacated in part on other grounds , 919 N.W.2d 273, 274 (2018). And the “touchstone” for overburdening is “reasonableness under the circumstances,” which amounts to a “balancing test” best left to factfinders. Id. at *5 (clarifying overburdening standard on appeal from summary disposition and noting that state court o f appeals was “not in a position to evaluate whether defendants [had] overburdened the easement”). Thus, Moore has shown enough to create a reasonable dispute of fact about the nature and character of the vehicular use o f the easement that is material to his overburdening claim

. 12
2.
Moore argues that the “Bingham parties [’] two prohibited permanent mobile homes . . . trespassed in 2008 when surreptitiously transported in four (over 12

- feet

- wide) sections across the
12

- foot

- wide [e]asement . . . and create d an overburdening, dangerous, offensive, and hazardous property condition.” Appellant’s Br. 49. He notes that t he purchase agreement between Moore’s grandparents and the Binghams prohibits permanent mobile homes on the Binghams property. And, although he concedes that this prohibition never made it into the deed, he asserts : Appellants argued under two exceptions to the Merger Doctrine, the lower court has equity power to enforce the prohibition of permanent mobile homes under the Purchase Agreement bec ause the express intent of the parties was to include the language in the deed, and the failure to include the language is an unperformed part of the Purchase Agreement and was not merged into the 1980 Eister to Bingham Deed. Appellant’s Br. 49.

12 The Binghams note in their summary

- judgment briefing that Moore does not identify a specific Bingham party responsible for speeding. But Moore’s complaint is also for injunctive relief, which the district court migh t find appropriate. Also, Moore’s claims are based partly on the Binghams’ liability for creating the conditions that have led to speeding.Case No. 22

- 1601 , Moore Family Trust, et al. v. Bingham, et al.

- 17

- In addressing Moore’s claims, the district court found generally that none of Moore’s claims “ would be within the statute of limitations but outside the scope of the prescriptive easement determination .” Moore Family Trust , 2022 WL 2619857, at *10. We agree that t he trespass claim is untimely because Moore sue d 11 years after the mobile homes were transported over the
easement. To the extent Moore implies that a nuisance condition was created due to the presence of the mobile homes in violation of the purch ase agreement , and faults the district court for not granting the requested equitable relief, that claim fails as well

. Although the district court spoke in terms of the statute of limitations, the parallel concept in equity is laches

. And Moore gives no reason why the district court was obliged to reform a 1980 deed or grant equitable relief in 2019 for an alleged violation in 2008. Finally, t o the extent Moore argues that the mobile homes created a continuing nuisance, he fails to argue any theory of o ngoing harm, such as the homes being unsightly. 3.
T he Binghams ’ failure to attach private

- road notices to 14 of their 15 deeds , in violation of Michigan law, see MCL 560.261, supports Moore’s overburdening theory

. The Binghams admit to these failures but asserted in their summary

- judgment briefing that “ the buyers

. . . underst [oo] d that the road was not serviced by the road commission, which is the purpose of the notice

. ” R. 219

- 1, PID 4664

. MCL 560.261 says that notice must be given “that the street or road is private
and is not required to be maintained by the board of county road commissioners,” so we are not convinced that the statut e’s purpose is limited to notice about maintenance

. See MCL 560.261 (emphasis added). Moore provide d evidence that the absence of these notices led some Bingham family members to believe the easement was “part of the public . . . [r]oad,” R. 213, PID 3632.Case No. 22

- 1601 , Moore Family Trust, et al. v. Bingham, et al.

- 18

- This fact, considered together with Moore’s argument about the 30

- foot

- wide internal easement,
creates a n additional dispute of fact about whether the Binghams have overburdened the easement with speeding and other uses

. 4. Next, Moore fails to show how the Binghams overburdened the easement or created a

nu isance by removing the 1995 and 2018 survey markers. T hese actions involve “an unauthorized invasion of [Moore’s] private property],” Morse , 896 N.W.2d at 30, thus constituting trespass, not nuisance, Adkins , 487 N.W.2d at 720 , and they do not in themselves “materially increase the burden of the easement,” as required for overburdening , Heyden , 739 N.W.2d at 379. Further, the 1995 claim is time

- barred because Moore asserts that the Binghams moved the markers by 2001 at the latest, well before t he three

- year limitations period for Moore ’s 2019 lawsuit. See Mich. Comp. Laws § 600.5805(2)

. 5. Likewise, Moore has no overburdening or nuisance claim regarding the Binghams ’ use of the easement to travel between Bingham

- owned properties. True, an easement holder may not “use the easement for the benefit of an estate other than the dominant estate,” such as by using the easement directly to access an adjacent parcel. Johnson v. APJ Properties, LLC , 729 F. App’x 401, 404 (6th Cir. 2018). But Moore admits that the Binghams traveled over the easement and then the public road to reach other Bingham

- owned property, so their use was consistent with use for access as deeded. Cf. id. (holding dominant estate holder exceeded easement’s scope after buying adjacent parcel and using easement for entry). Further, he does not suggest an y non burdening injury, negating any nuisance claim

.Case No. 22

- 1601 , Moore Family Trust, et al. v. Bingham, et al.

- 19

- 6.
Moore has viable claims for nuisance and trespas s based on the Binghams’ use of
ATVs/ORVs

. The Binghams admit in their summary

- judgment briefing that “[i]t is undisputed that some of the Bingham parties and guests use ORVs on the [e]asement” but argue that their use is consistent with the deed’s purpos e for access. R. 219

- 1, PID 4665. However, the Michigan Court of Appeals has specifically recognized the potential for ATVs and similar vehicles to exceed the scope of an “access” easement and create a nuisance because they “can be considerably louder
th an motor vehicles, or at least generate a substantially different kind of noise, are typically used for recreation rather than truly for transportation, and may cause unique damage to an unpaved road surface.” Lamkin , 2016 WL 4585816, at *5. The Binghams ’ admission and Moore’s declaration about their use of these vehicles is enough to support nuisance and overburdening claims for trial.
7. Lastly, Moore asserts that, over several years, the Binghams divided their property into
11 lots and that this occu rred without government applications or approval under Michigan’s land

division statute, which requires local approval for splits , MCL § 560.109, and imposes a limit on the number of divisions possible from a parent lot , id. § 560.108 (capping number of po ssible divisions derived from a parent parcel, defined in MCL § 560.102 as ones that existed in March 1997). The Binghams concede that they only obtained review when obtaining a variance for a tenth parcel, but they note that the town did not express any concerns about the prior splits at that point.Case No. 22

- 1601 , Moore Family Trust, et al. v. Bingham, et al.

- 20

- The district court did not specifically address this claim nor make findings regarding the Binghams’ splits. We are unable to determine whether this claim was properly dismissed on this
record and therefore r emand for further consideration. We note, however, that property splits on their own do not overburden an easement. Michigan’s overburdening doctrine contemplates property splits

— even ones that increase the number of easement users

— as a routine matter. “If a dominant estate with easement rights is divided, all resulting parcels take a share in the easement as long as a n unreasonable burden is not imposed on the servient estate,” Morse , 896 N.W.2d at 23, and “[g]enerally, a mere increase in the number of persons using an unlimited right of way to which the land is subject is not an unlawful additional burden,” id. (quoti ng Henkle v. Goldenson , 248 N.W. 574, 575 (Mich. 1933)). Thus, the remaining question is whether the Binghams exceeded the splits contemplated by Michigan law. V. For the foregoing reasons, we AFFIRM in part, REVERSE in part, and REMAND for further procee dings consistent with this opinion

.Case No. 22

- 1601 , Moore Family Trust, et al. v. Bingham, et al.

- 21

- THAPAR, Circuit Judge, concurring. Although I agree with the majority on the bottom line, I am persuaded by much of the careful analysis in the opinion below. I write separately to emphasize two things the district c ourt did right

— and one oddity in Michigan law that compels
my concurrence. First, I would not fault the district court for relying on the Restatement (Third) of Property.
Contra Maj. Op. III.A. There’s no on

- point precedent from the Michigan Supreme Cour t that resolves this case. So the district court had to make its best “ Erie guess” as to what the Michigan Supreme Court would do. Conlin v. Mortg. Elec. Registration Sys., Inc. , 714 F.3d 355, 358 (6th Cir. 2013). As Michigan courts and the majority bot h admit, there is “little helpful authority” in Michigan law covering interruption of prescriptive easements, so the lower courts in Michigan have “resort[ed] to secondary sources for guidance.” Fowle v. Dushane , No. 339913, 2018 WL 5276145, at *4 (Mich. Ct. App. Oct. 16, 2018) (per curiam). And Michigan courts have frequently invoked the Restatement, including the very section relevant here. See, e.g. , Applebee Oil Co. v. Mich. Milk Producers Ass’n , No. 327514, 2016 WL 5599645, at *4 (Mich. Ct. App. Sep t. 29, 2016) (per curiam) (citing Restatement (Third) of Property (Servitudes) § 2.17 (2000) ). True, in the one case the majority highlights, a Michigan court relied on secondary sources other than the Restatement. See Fowle , 2018 WL 5276145, at *4. In t hat case, the court reasoned that a physical barrier suffices to interrupt the prescriptive period if it “stops a claimant’s use of the property . . . for any period of time, no matter how brief.” See id. (citing 157 Am. Jur. Proof of Facts 3d, § 59). Bu t the district court applied that very rule, concluding that Moore’s annual placement of tree stumps was “simply insufficient to stop the Bingham’s prescriptive use, even for a brief period .” Moore Fam. Tr. v. Bingham , No. 19

- CV

- 115 (RJJ), 2022 WL 2619857, at *5Case No. 22

- 1601 , Moore Family Trust, et al. v. Bingham, et al.

- 22

- (W.D. Mich. July 6, 2022) (emphasis added). In short, the district court thoroughly reviewed and applied all relevant law on this question, and I see no problem with turning to the Restatement for additional support

— as Michigan courts often do.
Sec ond, the district court correctly applied the federal summary - judgment standard. On the question of continuity, the evidence is one

- sided. In 2001, Scott Moore began his annual ritual of placing tree stumps on the original easement boundaries. And every year after, he returned to find the previous year’s stumps gone. What happened to the stumps in between his annual visits? Moore doesn’t kn ow because he wasn’t there. But the Binghams were. And they say the tree stumps “never stopped them.” R. 217

- 1, Pg. ID 4581. In fact, they “regularly walked, biked, and drove over the entire 15

- foot

- wide easement.” R. 221

- 2, Pg. ID 4804. Moore specul ates that the Binghams removed the stumps, but he presented no evidence to support this theory. As the district court rightly explained, on summary judgment, a judge can (and should) reject “speculation and hypothetical possibilities.” Moore Fam. Tr. , 20 22 WL 2619857, at *6 n.6; see also Cox v. Ky. Dep’t of Transp. , 53 F.3d 146, 150 (6th Cir. 1995) (“[A] nonmoving party must present affirmative evidence to defeat a properly supported motion for summary judgment.”). But this case has a unique wrinkle: the Binghams’ entitlement to summary judgment depends on their prescriptive

- easement claim. That means

— as a prerequisite to summary judgment

— Michigan law requires the Binghams to establish the elements of prescription with “clear and cogent proof.” Marlette Auto Wash, LLC v. Van Dyke SC Prop s. , LLC , 912 N.W.2d 161, 167 ( Mich. 2018 ). That’s a higher standard “than a preponderance of the evidence, approaching the level of proof beyond a reasonable doubt.” Walters v. Snyder , 570 N.W.2d 301, 303 (Mich. Ct. App . 1997) (per curiam). In other words, “the evidence must clearly establish theCase No. 22

- 1601 , Moore Family Trust, et al. v. Bingham, et al.

- 23

- fact of possession and there must be little doubt left in the mind of the trier of fact as to the proper resolution of the issue.” McQueen v. Black , 425 N.W.2d 203, 205 n.2 (M ich. Ct. App. 1988) (per curiam). This places a heavy burden on the Binghams. Although the Binghams’ evidence on continuity is undisputed (for purposes of the federal summary

- judgment standard), I’m not sure it’s “clear and cogent” (for purposes of the un derlying, substantive state

- law burden of proof). Id. ; see also O’Brien v. Willys Motors, Inc. , 385 F.2d 163, 165 (6th Cir. 1967) (explaining that federal courts in diversity cases follow state law on burdens of proof). Here, the Binghams say the stumps “never stopped them.” R. 217

- 1, Pg. ID 4581. Does that mean they encountered and quickly removed the stumps

— or does it mean they never encountered the stumps at all? If we were applying the federal summary

- judgment standard alone, the lack of a full exp lanation would be no problem. But under Michigan’s “clear and cogent” standard, the Binghams’ sworn statements leave room for doubt about whether their prescriptive use was truly uninterrupted. The way this state

- law burden of proof interacts with the federal summary

- judgment standard is admittedly unusual. Indeed, when Michigan’s “clear and cogent” standard applies, summary judgment may rarely be appropriate. Nonetheless, we’re tasked with making our best guess at how Michigan law applies in federal court, and we’ve done so here. Thus, I agree with the majority that the Binghams haven’t carried their burden and cannot prevail on summary judgment.