            If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                 revision until final publication in the Michigan Appeals Reports.




                          STATE OF MICHIGAN

                           COURT OF APPEALS



RALPH STEVEN SMITH and SUE SMITH,                                  FOR PUBLICATION
                                                                   January 28, 2020
              Plaintiffs/Counterdefendants-                        9:00 a.m.
              Appellants,

v                                                                  No. 345391
                                                                   Cass Circuit Court
JOSEPH W. STRAUGHN, Individually and as                            LC No. 17-000092-CH
Trustee of JOSEPH W. STRAUGHN
REVOCABLE TRUST,

              Defendant/Counterplaintiff/Third-
              Party Plaintiff-Appellee,
and

TIMOTHY SMITH,

              Third-Party Defendant.


Before: O’BRIEN, P.J., and RONAYNE KRAUSE and GADOLA, JJ.

RONAYNE KRAUSE, J.

        Plaintiffs, Ralph Steven Smith and Sue Smith, appeal as of right the trial court’s order
and declaratory ruling regarding an easement that burdens the property of defendant, Joseph
Straughn, individually and as Trustee of Joseph W. Straughn Revocable Trust. In relevant part,
the trial court permitted defendant to maintain a fence and gate across the easement at
defendant’s property line, forbade either party from placing anything on the easement, and
required both parties to maintain the portion of the easement, including trimming trees, on their
respective properties. Only the matter of the gate is being appealed. We affirm.

                                       I. BACKGROUND

        In 1978, plaintiffs and their family members formed a partnership to purchase property
located off US-12 East in Niles, Michigan. In 1986, the partnership divided the property into
five parcels, Parcels A, B, C, D, and E. Parcel E was the southernmost property located directly



                                               -1-
on US-12, and the other parcels were landlocked and located farther north of each subsequent
parcel, with Parcel A being the northernmost property. The partnership created an easement
across the easternmost 66 feet of Parcels E, D, and C, and the southern 87.91 feet of Parcel B.1
Plaintiffs lived on Parcel E and shared the use of the easement and Parcels A and B with their
family. Plaintiffs and their family created a 14-foot gravel roadbed extending north and south
along the easement.

        In November 2005, defendant purchased Parcel C, the parcel in the center of the
properties, subject to the easement across the eastern 66 feet of Parcel C. In late July 2008,
defendant experienced a break-in and theft at his house, and he requested plaintiffs’ consent to
install a gate along the southern property line of Parcel C across the easement for security
purposes. According to plaintiffs, they did not consent to defendant’s proposed gate, but
according to defendant, plaintiffs did not object to his proposal. Over the next year, defendant
constructed a 7-foot tall and 400-foot wide wooden fence across the southern border of his
property, including across the easement. The gate had two doors that rolled open sideways in
opposite directions. The gate opening was 19½ feet wide when fully open and opened beyond
the 14-foot wide roadbed.

        Beginning in 2016, plaintiffs raised concerns regarding defendant’s use of the easement.
Defendant parked vehicles and equipment on the easement, placed cement blocks and stones on
the roadbed, damaged and scraped the roadbed, placed snow plies across the easement, placed
caution tape and fiberglass rods along the west portion of the easement extending north along
defendant’s property, and installed cameras facing his gate. Plaintiffs and defendant testified
that these interferences with the easement did not totally prevent plaintiffs from using the
easement, except for one instance when snow piles covered the easement. According to
plaintiffs, defendant left the gate closed, which required them to exit their vehicles to use the
easement, and the gate was physically challenging for plaintiffs to open. However, defendant
often observed plaintiffs and their son open the gate and did not observe plaintiffs have any
difficulties opening the gate. Additionally, the gate was always unlocked, and defendant told
plaintiffs that if he ever did lock it, he would arrange for plaintiffs to have a key. According to
plaintiffs’ son, defendant also offered to install an electric motor on the fence, but plaintiffs
declined.2

        Plaintiffs alleged that defendant’s fence, gate, vehicles, and other items on the easement
impeded the easement and prevented them from accessing Parcels A and B without obstruction
or interference. Plaintiffs requested declaratory and injunctive relief declaring their right to full
and unimpeded access and use of the easement and preventing defendant from obstructing or
interfering with that right. Defendant filed a counterclaim and requested declaratory relief to


1
 Parcel A, the northernmost parcel, wrapped partially around Parcel B. Consequently, Parcel A
could be accessed without needing to extend the easement across the entirety of Parcel B.
2
  At trial, plaintiffs testified that they would consider it unacceptable to mechanize the gate, to
add counterweights to make the gate easier to open, or even to remove the gate entirely and leave
intact any portion of the fence on the easement.


                                                -2-
determine the parties’ rights and obligations regarding the easement and to declare that his use of
the easement, including his fence and gate, was consistent the easement and did not unreasonably
burden plaintiffs’ use of the easement. The trial court conducted a site visit, with the attorneys
present, and personally determined that it “could easily move the gate” itself.

        The trial court interpreted the language of the easement and concluded that its purpose
was for ingress and egress and to access US-12. The trial court determined that the easement did
not provide any restrictions or specify plaintiffs’ intent or plan to use the easement and to
develop Parcels A and B. The trial court determined that defendant’s gate permitted plaintiffs to
use the gate for ingress and egress and did not unreasonably interfere with their use of the
easement. The trial court also determined that it was not unreasonable to have the gate closed, if
it did not deprive plaintiffs of the ability to use the easement, and that it was reasonable for the
parties to jointly maintain the easement. The trial court prohibited both parties from placing
vehicles or items on the easement.

                  II. STANDARD OF REVIEW AND PRINCIPLES OF LAW

        This Court reviews de novo a trial court’s ruling in a declaratory action. Toll Northville
Ltd v Northville, 480 Mich 6, 10; 743 NW2d 902 (2008). This Court also reviews de novo the
proper interpretation of legal instruments, such as deeds or contracts. See In re Rudell Estate,
286 Mich App 391, 402-403; 780 NW2d 884 (2009). This Court reviews equitable matters de
novo, but gives deference to the trial court’s determinations. Cantieny v Friebe, 341 Mich 143,
146; 67 NW2d 102 (1954). Thus, this Court reviews for clear error the trial court’s factual
determination of a party’s rights under an easement. Blackhawk Dev Corp v Dexter, 473 Mich
33, 40; 700 NW2d 364 (2005). “A factual finding is clearly erroneous where, after reviewing the
entire record, this Court is left with a definite and firm conviction that a mistake has been made.”
Alan Custom Homes, Inc v Krol, 256 Mich App 505, 512; 667 NW2d 379 (2003). This Court is
especially deferential to the trial court’s superior ability “to judge of the relative credibility of
witnesses.” McGonegal v McGonegal, 46 Mich 66, 67; 8 NW 724 (1881).

         An easement is a limited property interest; 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). The land burdened by the easement is the
servient estate, and the land benefited by the easement is the dominant estate. See D’Andrea v
AT&T Mich, 289 Mich App 70, 73 n 2; 795 NW2d 620 (2010). The easement holder’s use of the
easement is limited to the purposes for which the easement was granted and must impose “as
little burden as possible to the fee owner of the land,” but the easement holder nevertheless
enjoys “all such rights as are incident or necessary to the reasonable and proper enjoyment of the
easement.” Blackhawk, 473 Mich at 41-42 (quotation marks and citations omitted); see also
Cantieny, 341 Mich at 147; Harvey v Crane, 85 Mich 316, 325; 48 NW 582 (1891); Kirby v
Meyering Land Co, 260 Mich 156, 169; 244 NW 433 (1932). The necessity of an easement
holder’s conduct can be informed by the purpose and scope of the easement, in addition to the
easement holder’s accustomed use of the easement. See Harvey, 85 Mich at 318-319, 325.

       A fee owner may use his or her land on a servient estate for any purpose not
unreasonably inconsistent with the rights of the easement holder. Cantieny, 341 Mich at 146-
147; Harvey, 85 Mich at 322; Kirby, 260 Mich at 168-170. “What may be considered a proper

                                                -3-
and reasonable use by the owner of the fee, as distinguished from an unreasonable and improper
use, as well as what may be necessary to [the easement holder’s] use and enjoyment, are
questions of fact to be determined by the trial court or jury.” Harvey, 85 Mich at 322-323.
“Where the language of a legal instrument is plain and unambiguous, it is to be enforced as
written and no further inquiry is permitted.” Little v Kin, 468 Mich 699, 700; 664 NW2d 749
(2003); see also Blackhawk, 473 Mich at 42. The scope of an easement may only be determined
by reference to extrinsic evidence if the text of the instrument is ambiguous. Id.

                                          III. ANALYSIS

        Plaintiffs first argue that the trial court erroneously concluded that defendant had a right
to install a fence and gate across the parties’ shared easement because the easement did not
reserve such a right. Plaintiffs also argue that the trial court erroneously failed to consider
plaintiffs’ intent and understanding of the easement at the time they created the easement. We
disagree with both arguments.

                            A. FACIAL PROHIBITION OF A FENCE

         As discussed, the fee owner’s use of land on a servient estate is reviewed for
reasonableness and whether that use is unreasonably inconsistent with the easement holder’s
rights. We cannot find clear error in the conclusion that security and deterrence against break-
ins, trespassers, and theft are reasonable concerns that are reasonably addressed by the fence and
gate. Even more significantly, we take particular note that the trial court personally verified how
easy the gate was to open. We defer strongly to trial courts’ superior ability to evaluate
credibility of witnesses. See McGonegal, 46 Mich at 67. We conclude that the same deference
must apply where the trial court was uniquely able to directly test a critical piece of evidence, as
well as view that evidence in its proper context. We must also defer to the trial court’s implicit
credibility assessment, especially in light of its site visit, that plaintiffs were able to move the
gate, contrary to their claims that they could not move the gate. We are unable to find any clear
error in the trial court’s factual finding that the gate did not practically interfere with plaintiffs’
use of the easement, even when left closed and even though plaintiffs had to exit their vehicles to
open the gate. Therefore, we conclude that defendant’s fence and gate were not inconsistent
with plaintiffs’ use of the easement.3 See Harvey, 85 Mich at 325; see also Kirby, 260 Mich at
168-170.

       Additionally, defendant’s gate does not obstruct or effectively reduce the size of the
easement from 66 feet to the 19½-foot gate opening. The gate imposes a 19½-foot bottleneck at
one point on the easement. Defendant’s actions on his property did not narrow or restrict the 66-
foot easement at any other point along the easement. Significantly, the actual roadbed is only
approximately 14 feet wide, narrower than the gate opening. There was no evidence in the lower


3
 Any other obstructions placed on the easement by defendant do not pertain to the gate or fence.
Furthermore, the trial court ordered that defendant was prohibited from placing any such
obstructions on the easement, and defendant has not appealed that portion of the trial court’s
order.


                                                 -4-
court record to suggest that the 19½-foot gate opening was insufficient for any of plaintiffs’ uses
of the easement or for plaintiffs to access Parcels A and B.4 Therefore, we conclude that
defendant’s gate and fence did not obstruct and was not inconsistent with plaintiffs’ use of the
easement. Cf. Berkey & Gay Furniture Co v Valley City Milling Co, 194 Mich 234, 243-244;
160 NW 648 (1916) (concluding that under the circumstances, the full width of the easement was
actually necessary for its use). Further, the trial court’s order was supported by the evidence and
was warranted by the circumstances. See MCR 2.601(A); Three Lakes Ass’n v Kessler, 91 Mich
App 371, 377-378; 285 NW2d 300 (1979) (explaining that a trial court may fashion an equitable
remedy that is warranted by the circumstances).

        Plaintiffs argue that gates are per se impermissible under Cantieny, but in fact, Cantieny
involved gates that were locked. Cantieny, 341 Mich at 145. We find it critically distinguishable
that the gate here was unlocked and easily opened; furthermore, defendant offered to mechanize
the gate. Our Supreme Court held, in relevant part, that

       it is settled law that gates will not be permitted except where the right has been
       reserved, and where the owner of the servient estate, acting in good faith, is able
       to show that the gates are reasonably necessary to provide some substantial and
       legitimate benefit to himself; or, to put it another way, that equity will not
       authorize such structures when they are inspired by ill will, for the purpose of
       injuring or annoying others, without being of any real benefit to the owner. [Id. at
       147-148 (quoting the trial court) (emphasis added).]

Our Supreme Court emphasized that it was sitting in chancery. Id. at 146. In that context, we
think the above quotation sets forth a reasonableness-under-the-circumstances test, not a
mechanical prohibition no matter the surrounding facts.

        Plaintiffs also rely heavily on this Court’s opinion in Bryant v Albertie, unpublished per
curiam opinion of the Court of Appeals, issued August 11, 2005 (Docket No. 253207).5 The gate
at issue in Bryant was, again, locked and erected after a history of the defendants intentionally
blocking the plaintiffs from using the easement at all. 6 Bryant, unpub op at pp 1-2. In any event,
Bryant quoted with approval:

       In the absence of an express reservation of a right to maintain gates, it is the
       general rule that whether the servient owner may erect and maintain gates, bars,
       or fences across or along the easement of way depends on the intention of the


4
   Apparently, the inconvenience of the gate was seriously exacerbated by the presence of
untrimmed tree branches, which we presume will be resolved by the unappealed portion of the
trial court’s order.
5
 Unpublished cases are not precedential under the doctrine of stare decisis, MCR 7.215(C)(1),
nor are they binding under the “first-out rule,” MCR 7.215(J)(1).
6
  Plaintiffs also cite to Todd v Nobach, 368 Mich 544, 550; 118 NW2d 402 (1962), which again
involved a history of completely blocking use of the easement. Id. at 549.


                                                -5-
       parties connected with the original creation of the easement, as shown by the
       circumstances of the case, the nature and situation of the property subject to the
       easement, and the manner in which the way has been used and occupied. [Bryant,
       unpub op at p 3, quoting 25 Am Jur 2d, Easements & Licenses, § 88, p 587
       (emphasis added).]

The word “and” must generally be read as conjunctive. See Coalition Protecting Auto No-Fault
v Mich Catastrophic Claims Ass’n. (On Remand), 317 Mich App 1, 14; 894 NW2d 758 (2016);
People v Comella, 296 Mich App 643, 649; 823 NW2d 138 (2012) Bryant also noted that all of
the circumstances should be considered when sitting in equity. Bryant, unpub op at p 5. Thus,
Bryant again supports our conclusion that servient estate holders are not necessarily per se
precluded from erecting a gate across an easement. Rather, the case law indicates that a gate
may be permissible where, as here, it was not erected for the purpose of interfering with the
easement holder’s use of the easement, it was not locked, and the trial court did not clearly err in
finding as a factual matter that the gate did not actually interfere with the use of the easement.
Defendant’s offer to mechanize the gate also weighs equitably in his favor.

        In sum, defendant’s fence and gate were not inconsistent with plaintiffs’ limited right to
use the easement for ingress and egress. The fence and gate did not prevent plaintiffs from using
the easement, and the temporary interferences with the easement, including the snow piles and
stones, did not prevent plaintiffs from using the easement and were cleared from the easement at
the time of the bench trial. Additionally, the 19½-foot gate opening did not prevent plaintiffs
from using the easement. Therefore, defendant’s use of his property and his gate and fence were
not inconsistent with plaintiffs’ use of the easement, and the trial court’s order and equitable
remedies were warranted by the circumstances. See Cantieny, 341 Mich at 147; Harvey, 85
Mich at 322, 325; Three Lakes, 91 Mich App at 377-378.

        On its face, the easement here provided that Parcels C, D, and E were “subject to an
easement to be used in common with others over the East 66.00 feet thereof.” Parcel B was
“subject to an easement to be used in common with others over the South 87.91 feet of the East
66.00 feet thereof.” The easement provided that the owners of Parcels B, C, D, and E could use
the easement in common. The easement provided a means of ingress and egress from Parcels A,
B, C, and D to a public roadway, US-12, because those parcels were landlocked. Therefore,
plaintiffs unambiguously had a limited right to use the easement for ingress and egress to Parcels
A and B and to US-12. See Cantieny, 341 Mich at 147; Harvey, 85 Mich at 322, 325.

        The easement is silent as to the installation of fences, neither prohibiting them nor
reserving the right to install them. As discussed, a locked gate or a gate motivated by the goal of
excluding the easement holder would therefore be prohibited. However, the fact that the
easement did not reserve a right to install a gate is not dispositive under the circumstances, where
the trial court found the gate properly motivated and not an impediment to the use of the
easement. “The owner of the fee subject to an easement may rightfully use the land for any
purpose not inconsistent with the rights of the owner of the easement.” Harvey, 85 Mich at 322.
Case law establishes that installation of a locked gate, or any other erection of an impediment to
accessing an easement, requires a reservation of a right to do so in the easement itself. However,
the case law also establishes that the fee owner of the land may do essentially whatever the
owner wishes, so long as the easement is not unreasonably impeded in the process. See Kirby,

                                                -6-
260 Mich at 168-170. Therefore, because the plain language of the easement unambiguously
does not forbid a non-obstructive gate, the trial court properly enforced the easement as it was
written and fashioned equitable relief as warranted by the circumstances of this case. See Little,
468 Mich at 700; Three Lakes, 91 Mich App at 377-378.

                    B. INTENT AND UNDERSTANDING OF DRAFTERS

         Plaintiffs argue that the trial court gave inadequate consideration to the understanding of
the original parties to the easement at the time the easement was granted. As noted, the courts
generally are not permitted to consider such extrinsic evidence if the plain language of the
instrument granting the easement is unambiguous. Nevertheless, even if we were to presume
that silence regarding gates constitutes an ambiguity, plaintiff’s testimonies that they intended to
develop Parcels A and B and to construct a two-lane, and possibly public roadway, on the
easement did not support the conclusion that defendant’s gate and fence were impermissible.

        Plaintiffs have not developed Parcels A and B, nor have they initiated the process to
establish a private or public roadway after they acquired the properties in 1986. Allegedly, a
document from the original partnership existed and indicated that the easement was meant to be
used as a roadway, but this document was not provided to the court at the bench trial. For
decades, users of the easement and owners of the servient parcels have been accustomed to using
the easement in a manner perfectly consistent with a 14-foot wide roadbed. See Harvey, 85
Mich at 325. Thus, it is conceivable that developing the roadbed into a two-lane public highway
might be deemed to overburden the easement.7 See Morse v Colitti, 317 Mich App 526, 544-
547; 896 NW2d 15 (2016). There was no other evidence of the grantors’ intent to prohibit or
permit a gate or fence at the time the easement was created. Furthermore, it is not clear from the
record that a 14-foot, or possibly a 19½ foot, roadway would necessarily be incompatible with
further developing Parcels A and B.8 Unlike the situation in Berkey & Gay Furniture Co, 194
Mich at 243-244, any interference with the use of the easement posed by the gate and fence is at
the most hypothetical; there is no evidence here that plaintiffs actually do or will actually need a
wider roadway.

       There was insufficient evidence in the lower court record to demonstrate that the grantors
of the easement intended to prohibit a gate or fence across the easement or otherwise limit
defendant’s use of his property as the fee owner. The trial court did not clearly err in finding that


7
  We expressly make no determination of this issue, nor do we hold any opinion regarding this
issue, and none should be implied. We note only that such an outcome is not strictly impossible.
8
  Plaintiffs cite to trial testimony from parties to the original easement that they had a general
belief at the time that 66 feet was the legally mandated width for a road. However, plaintiffs’
cited testimony does not state that the roadbed as actually installed was inadequate for the uses to
which it was actually put. Rather, the testimony, like the easement itself, is silent as to gates or
fences. Plaintiffs’ testimonies did, however, reflect that they were able to drive their motor home
and other vehicles through the gate opening and were impeded mostly by the alleged difficulty
opening the gate and by untrimmed tree branches.


                                                -7-
the gate and fence were properly motivated and did not unreasonably impede plaintiffs’ actual
use of the easement. Therefore, the trial court properly considered the plain language of the
easement and concluded that defendant’s gate and fence were not prohibited by the easement,
were not contrary to the parties’ intent when plaintiffs and their family created the easement, and
were not inconsistent with plaintiffs’ use of the easement.

       Affirmed. Defendant, being the prevailing party, may tax costs. MCR 7.219(A).

                                                            /s/ Amy Ronayne Krause
                                                            /s/ Colleen A. O’Brien
                                                            /s/ Michael F. Gadola




                                                -8-
