Michigan Supreme Court Turns to 80 Year Old Precedent to Decide Easement Case

In its recent review of Kranz v Terrill (Docket 146436) the Michigan Supreme Court vacated and remanded portions of holdings from the Court of Appeals and Lenawee Circuit Court that were inconsistent with a case from the Supreme Court that was decided in 1929. See Fractional School Dist No 9 in Waterford and Pontiac Twps, Oakland City v Beardslee, 248 Mich 112; 226 NW2d 867 (1929). Accordingly, the Supreme Court remanded the case back to the Lenawee Circuit Court to consider that prior decision as well as an affidavit from the Plaintiff’s predecessor in title stating that any use of the easement at issue was by their permission and consent. Sally Kranz owns property on Round Lake. Roger and Darlene Terrill own back lot property and an express easement across Kranz’s property to access Round Lake. The Terrills bought their property in 2000, but the dock had been there since 1992. So the Terrills maintained the dock and moored two boats and a jet ski there until 2010 when Kranz filed her complaint. Central to the case was whether Terrills’ right to access Round Lake included riparian rights. Kranz argued that the express easement did not confer riparian rights to the Terrills and, in the alternative, that the Terrills did not establish such rights by prescriptive easement. The Terrills, on the other hand, argued that the word “access” is ambiguous and should be construed to mean riparian rights and, in the alternative, that they had acquired riparian rights by prescriptive easement. The Court of Appeals appeared to disagree with the Terrills on their first argument, reminding the reader that the court has consistently held that riparian rights are not included in an easement granting only a right of access.

But then the Court of Appeals agreed with the Terrills on the prescriptive easement issue and allowed the Terrills to prove continuity by tacking their ten years of prescriptive use with their predecessors’ eight years of prescriptive use. Ultimately, it found that the Terrills’ express easement language, granting them access to Round Lake from their back lot property, was enlarged by prescription to include riparian rights to install and maintain a dock and to moor boats at that dock. The Michigan Supreme Court took issue with this holding. Not only did Kranz’s predecessors in title aver in an affidavit that “any use of a dock or boat moorings on or at the easement was done with our permission and consent,” but the Michigan Supreme Court, itself, held more than 80 years ago that “the period of occupancy under a permissive right could not be considered as hostile, and the time of such period tacked onto the period of hostile occupancy, so as to show adverse possession.” Fractional School Dist No 9, 248 Mich at 116.