How to Establish a Prescriptive Easement in Michigan

Do you wish to stop someone from using all or some of your property? Or is someone attempting to stop you from using their property? If yes, you might have viable claims or defenses, related to establishing a prescriptive easement.

A prescriptive easement is often found in cases where someone has used property as a road, path, or other method for access, even if they do not have ownership or the right to use that property. However, prescriptive easements are not limited in their use to that of access purposes. A prescriptive easement can be for obtained in association with many different uses, including: loading or unloading vehicles (Plymouth Canton Cmty. Crier, Inc. v. Prose, 242 Mich. App. 676, 687, 619 N.W.2d 725, 730 (2000)); using a pond for irrigation purposes (Carol J. Lockhart Revocable Tr. by Biddinger v. Paramount Enterprises Land, LLC, No. 356306, 2022 WL 1591468, at 7 (Mich. Ct. App. May 19, 2022)); and constructing and storing a dock, mooring boats, and sunbathing (Astemborski v. Manetta, No. 352066, 2022 WL 301296, at 6 (Mich. Ct. App. Feb. 1, 2022), appeal denied, 979 N.W.2d 662 (Mich. 2022)).

It is well-established in Michigan that to prove a prescriptive easement, one must establish that the use of the servient estate was open, notorious, adverse (or hostile), and continuous for the statutory period of time. Goodall v. Whitefish Hunt Club, 208 Mich. App 642, 645; 528 NW2d 221 (1995); see also MCL 600.5801. Marlette Auto Wash, LLC v. Van Dyke SC Properties, LLC, 501 Mich. 192, 202–03, 912 N.W.2d 161, 167 (2018)(“The elements necessary to give rise to a prescriptive right are the same as those of title by adverse possession, with the exception that it does not have to be exclusive.”);  St. Cecelia Society v. Universal Car & Serv. Co., 213 Mich. 569, 576, 182 N.W. 161 (1921); Barbaresos v. Casaszar, 325 Mich. 1, 8, 37 N.W.2d 689 (1949).).

The elements needed to establish a prescriptive easement are further developed and defined in case law; however, these cases are heavily determined upon the facts of each case. Below is a more in-depth analysis of each element’s requirements.

 

The Required Elements of Prescriptive Easements

1. Actual Use of the Property
   1. In order to establish a prescriptive easement, a plaintiff must prove the use of the property was “actual,” through positive and affirmative acts of ownership. Mere occasional trespasses are not sufficient to establish a prescriptive easement. Barley v Fisher, 267 Mich. 450, 453; 255 N.W.2D 223 (1934). In addition, a use necessary to constitute actual use depends to large extent upon the character of the premises. Id. at 452.
2. Open and Notorious Use of the Property
   1. To prove that use or possession is open and notorious, “it is sufficient if the acts of ownership are of such character as to indicate openly and publicly an assumed control or use such as is consistent with the character of the premises in question.” Houston v Mint Group, LLC, 335 Mich. App. 545, 560; 968 N.W.2d 9 (2021).  Seasonal use of a road to access a property during hunting season is sufficient to establish open use for the purposes of establishing a prescriptive easement. Dyer v. Thurston, 32 Mich. App. 341, 344; 188 NW2d 633 (1971).
3.  Adverse or Hostile Use of Property
   1. The term “hostile” means that the property is being used without permission of the property owner and which would entitle the owner to a cause of action against the intruder. Id. at 559; see also Mumrow v. Riddle, 67 Mich. App. 693, 698, 242 N.W.2d 489 (1976). Additionally, “erroneously believing that a preexisting monument—either artificial or natural—represents the boundary and holding to that monument can satisfy the hostility element.” Houston, 335 Mich. App. at 560.
4. Continuous for the Statutory Period
   1. In order to establish a prescriptive easement, the use of the property must be continuous for the statutory period. Daily use of the property is unnecessary as long as the use is consistent with the character of the property. Dummer v US Gypsum Co, 153 Mich. 622, 632-633, 117 N.W.2d 317 (1908).

“[S]uccessive periods of adverse possession by different parties can be joined or ‘tacked’ to satisfy the 15-year statutory period, but only if there was privity of estate.” Houston, 335 Mich. App. at 560. The Michigan courts have held that tacking may be established as follows:

…privity may be shown in one of two ways, by (1) including a description of the disputed acreage in the deed, or (2) an actual transfer or conveyance of possession of the disputed acreage by parol statements made at the time of conveyance. Killips v. Mannisto, 244 Mich. App. 256, 259, 624 N.W.2d 224, 226 (2001) (internal citations omitted) (citing Arduino v. Detroit, 249 Mich. 382, 384, 228 N.W. 694 (1930); Sheldon v. Michigan Central R Co., 161 Mich. 503, 509–510, 126 N.W. 1056 (1910); Gregory v. Thorrez, 277 Mich. 197, 201, 269 N.W. 142 (1936).).

If the use of the property has been open and notorious “for over a quarter of a century,” the one asserting a prescriptive easement is not required to prove that that the use was claimed as a matter of right; rather, the burden is on the opposing party to show that the use was only permissive. Marlette Auto Wash, LLC v. Van Dyke SC Properties, LLC, 501 Mich. 192, 206, 912 N.W.2d 161, 169 (2018); See also Widmayer v. Leonard, 422 Mich. 280, 290-291; 373 NW2d 538 (1985); Dyer, supra at 343.

 

Conclusion

If you can prove all of the above elements to establish a prescriptive easement, a court is likely to grant you an easement over the property, permitting the continued use to the extent that you previously used the property. Alternatively, if you can show that the party attempting to obtain a prescriptive easement have not proved or does cannot meet one of the above-referenced elements, a court is likely to deny a prescriptive easement, and you could be awarded damages for trespass if initially asserted in a complaint or countercomplaint.

If this sounds like a situation that you are experiencing, it is important to contact an attorney to help you further understand your rights, remedies, defenses, or other options. Understanding the laws and circumstances surrounding these claims or defenses can be difficult without the help of an experienced real estate attorney; however, a real estate attorney should be able to help navigate through the Michigan laws applicable to your property.

Kara Moore is an attorney at Hirzel Law, PLC and focuses her practice on general real estate litigation. Ms. Moore received her Bachelor of Arts degree in Communication from Bob Jones University in South Carolina. Ms. Moore earned her Juris Doctor degree from Western Michigan University Cooley Law School. While in school, Ms. Moore made the Honor Roll for six terms and the Dean’s List for seven terms. Ms. Moore has extensive experience performing legal research, arguing motions, conducting depositions, and drafting pleadings and discovery in real estate litigation, probate litigation, Landlord-Tenant litigation, and civil litigation, and drafting estate planning documents. She can be reached at (248) 986-2290 or at kmoore@hirzellaw.com.