            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



MARY ANN LAMKIN and STEVE LAMKIN,                                 UNPUBLISHED
                                                                  September 17, 2019
              Plaintiffs-Appellants,

v                                                                 No. 326986
                                                                  Livingston Circuit Court
EUGENE HARTMEIER, CYNTHIA                                         LC No. 12-026600-NZ
HARTMEIER, KEVIN HARTMEIER, DENNIS
MCCOMB, GLORIA MCCOMB, DANIEL
ENGRAM, DANIELLE ENGRAM, JAMES
BEAUDOIN, CECILE LAUDENSLAGER,
ANGELA CHRISTIE, KIMBERLY KRASKA,
JOAN BEAUDOIN, AARON KIRBY, DAMON
HARTMEIER, DENISE ENGRAM, DEANN
ENGRAM, DEREK ENGRAM, CATHERINE
BARRETT,

              Defendants-Appellees,

and

RONALD THYBAULT and the Estate of MARY
WECKESER,

              Defendants.



                                        ON REMAND


Before: RONAYNE KRAUSE, P.J., and MARKEY and GADOLA, JJ.

PER CURIAM.

       Plaintiffs previously appealed by right the trial court’s order that, in relevant part,
determined defendants to have an easement across plaintiffs’ property and that defendants had
not exceeded the easement. This Court unanimously held that defendants had not established an


                                              -1-
easement by necessity, but some defendants had established valid prescriptive easements. A
majority panel of this Court further held that all defendants had established a valid easement by
prescription and that the trial court erred by dismissing the entirety of plaintiffs’ nuisance claim.
In lieu of granting leave to appeal, our Supreme Court vacated this Court’s opinion in part and
has remanded to us for partial reconsideration and further proceedings. On reconsideration, we
affirm in part, reverse in part, vacate in part, and remand for further proceedings.

                                       I. BACKGROUND

        This case involves a dispute over the use of Island Shore Drive, a private dirt road that
runs along the northern shore of Oneida Lake in Hamburg Township, Livingston County. The
western half of Island Shore Drive is located in Section 21 of the township, and it opens to M-36,
a public road. Island Shore Drive crosses property owned by plaintiffs (among others), and it is
the only means by which defendants, who own property in Section 22 to the east, can physically
access their respective parcels. The issue is whether, and to what extent, defendants can legally
make use of Island Shore Drive to access their properties.

         In the late 1800s, the relevant property in Section 21 to the west was owned by Thomas
Shehan, and the relevant property in Section 22 to the east was owned by A. Mercer. Shehan
split his property into ten lots and deeded an express easement through each lot to provide access
to M-36. That easement is now known as Island Shore Drive. Mercer’s property was also
divided into lots. In 1922, Cady’s Point Comfort Subdivision was platted out of Mercer’s
property, and in 1933, Island Lake Shores Subdivision was also platted out of Mercer’s property.
The latter plats both included a roadway, originally named Lake View Drive, that ran to the
western edge of the plats. Former Lake View Drive traverses two unplatted parcels to connect to
Island Shore Drive. The Cady’s Point Comfort Subdivision plat was revised in 1960, but the
revision retained Lake View Drive. Lake View Drive was eventually renamed Island Shore
Drive.1 Plaintiffs own two of the Shehan lots, and defendants own lots in the Mercer
subdivisions.

        Defendants cannot presently access their property without driving across plaintiffs’
property via Island Shore Drive. Plaintiffs have asserted that defendants’ properties were once
accessible via another route, but there is little evidentiary support for that assertion. It is
undisputed that the Section 22 properties have been landlocked except via Island Shore Drive
since at least 1960, and possibly earlier. Nonetheless, there was apparently never any express,
written agreement executed for Section 22 property owners to use Island Shore Drive. There is
also no evidence that any of Mercer’s property ever had any other access of legal right. As the
previous dissenting opinion accurately explained:

              Plaintiffs asserted that at the time they purchased their property in 1980,
       there were only 14 year-round homes using Island Shore Drive, but by 2008, 29

1
  As we noted previously, the Livingston County Road Commission attempted to change the
name of Lake View Drive to Island Shore Drive in 1949, but the 1949 resolution was apparently
ineffective. In 2005, the Hamburg Township Board of Trustees passed a resolution that also
changed the name of Lake View Drive to Island Shore Drive. Thus, “Island Shore Drive” now
legally refers to the entire roadway from M-36 through defendants’ properties.

                                                -2-
       year-round homes relied on the road for ingress and egress to M-36. As traffic
       increased, plaintiffs attempted to control the speed of vehicles using Island Shore
       Drive and the use of recreational vehicles by subdivision lots [sic] owners. On
       December 7, 2004, plaintiffs sent a memo to the lot owners in Cady’s Point and
       Island Lake Shores, asserting that they had acquired “a very limited use through
       prescription” [(emphasis in original)] of Island Shore Drive for ingress and egress
       to M-36, which did not include recreational use. In 2005, plaintiffs carved
       inverted speedbumps (ruts) into the portion of Island Shore Drive running through
       their property, and placed poles in concrete blocks along the roadway. Plaintiffs
       asserted that after they attempted to control the use of Island Shore Drive,
       defendants engaged in numerous acts of harassment and retaliation against them.

        We previously held unanimously that because defendants’ and plaintiffs’ property was
never owned by a common grantor, defendants could not have an easement by necessity over
Island Shore Drive. We also held unanimously that the Laudenslager, Beaudoin, and Christie
defendants had established valid easements by prescription, and that defendant Kraska had
established at least a valid seasonal easement by prescription. A majority panel of this Court
further held that all defendants had established a valid easement by prescription, although
plaintiffs could maintain a trespass claim premised on defendants exceeding or straying from the
easement. The majority also held that the trial court erred by dismissing plaintiffs’ nuisance
claim in its entirety, particularly pertaining to the issue of noise. In lieu of granting leave to
appeal, our Supreme Court vacated this Court’s opinion in part and remanded, in relevant part,

       for reconsideration as to whether each defendant established a prescriptive
       easement in light of Marlette Auto Wash, LLC v Van Dyke SC Properties, LLC,
       501 Mich 192[; 912 NW 161] (2018), and for reconsideration of the scope of each
       easement based on the manner of use by which the easement was acquired and the
       manner of the previous enjoyment, see Heydon v MediaOne, 275 Mich App 267,
       271[; 739 NW2d 373] (2007). [Lamkin v Hartmeier, 503 Mich 891; 919 NW2d
       273 (2018).]

Our Supreme Court also explicitly left untouched the prior majority’s ruling as to the nuisance
issue.

        Plaintiffs’ application for leave to appeal to our Supreme Court was mostly dedicated to
the argument that the Hartmeier, Engram, and McComb defendants lack any prescriptive
easement rights. Plaintiffs also contended that Kraska held at most a seasonal prescriptive
easement for ingress and egress, and that the Laudenslager, Beaudoin, and Christie defendants
have at most prescriptive easements limited to ingress and egress. We therefore construe our
Supreme Court’s order as leaving untouched the bare fact of Kraska and the Laudenslager,
Beaudoin, and Christie defendants having prescriptive easements, and vacating only our prior
determination of the scope of those easements. Consequently, we reject plaintiffs’ arguments
that Kraska and the Laudenslager, Beaudoin, and Christie defendants have no valid prescriptive
easements. See People v Canter, 197 Mich App 550, 567; 496 NW2d 336 (1992) (“When a case
is remanded by an appellate court, proceedings on remand are limited to the scope of the remand
order.”); MCR 7.305(H)(4)(a) (“Unless otherwise ordered by the [Michigan Supreme] Court, an
appeal shall be limited to the issues raised in the application for leave to appeal.”).


                                               -3-
                                 II. STANDARD OF REVIEW

        Motions for summary disposition and actions at equity are both reviewed de novo. Beach
v Twp of Lima, 489 Mich 99, 105-106; 802 NW2d 1 (2011). When reviewing a motion for
summary disposition brought under MCR 2.116(C)(10), we review all of the record evidence in
the light most favorable to the nonmoving party. West v Gen Motors Corp, 469 Mich 177, 183;
665 NW2d 468 (2003). “Summary disposition is appropriate under MCR 2.116(C)(10) if there
is no genuine issue regarding any material fact and the moving party is entitled to judgment as a
matter of law. A genuine issue of material fact exists when the record, giving the benefit of
reasonable doubt to the opposing party, leaves open an issue upon which reasonable minds might
differ.” Id. Although we review de novo whether equitable relief is proper, we review the trial
court’s underlying factual determinations for clear error. McDonald v Farm Bureau Ins Co, 480
Mich 191, 197; 747 NW2d 811 (2008); Schumacher v Dep’t of Natural Resources, 275 Mich
App 121, 130; 737 NW2d 782 (2007).

                                        III. MARLETTE

        We first address the nature and significance of Marlette Auto Wash, LLC v Van Dyke SC
Properties, LLC, 501 Mich 192; 912 NW 161 (2018). In Marlette, the plaintiff was the owner of
a car wash business. The plaintiff claimed a prescriptive easement over a portion of a
neighboring shopping center’s parking lot for purposes of its customers’ ingress and egress.
Marlette, 501 Mich at 195-199. The car wash had been owned and operated by B & J
Investment from 1989 through April 2005, and for that entire duration, car wash customers used
the shopping center’s parking lot as a means of ingress and egress. Id. at 197. The car wash then
changed ownership several times before it was finally sold to Marlette Auto Wash in early 2007.
Id. at 198. In late 2013, the owner of the shopping center, Van Dyke Properties, sought from
Marlette a monthly contribution for the maintenance of the parking lot. Id. at 198-199. When
Marlette refused, Van Dyke blocked access to the carwash through its parking lot. Id. at 199.
The trial court concluded that a prescriptive easement benefitting the car wash had already vested
in 2005. Id. at 199-200.

         Our Supreme Court held that, in order to establish a valid claim to a prescriptive
easement, a claimant need not demonstrate privity of estate with a predecessor in interest if the
claimant can demonstrate that a predecessor had perfected a prescriptive easement over the
course of the fifteen-year statutory period. Marlette, 501 Mich at 203-204. Specifically,
“[w]hen a prescriptive easement vests with the claimant’s predecessors in interest, the easement
is appurtenant and transfers to subsequent owners in the property’s chain of title without the need
for the subsequent owner to establish privity of estate.” Id. Thus, once a prescriptive easement
vests, it runs with the land with no further action necessary. The predecessor in interest need not
have taken legal action to assert a claim over the prescriptive easement in order for the easement
to vest. Id. at 209. Accordingly, although not stated in so many words, Marlette held that a
prescriptive easement vested and subsequently ran with the land following B & J Investment’s
open, notorious, uninterrupted, and hostile use of the parking lot for at least fifteen years.

       On remand, defendants misconstrue Marlette as obviating the need for privity altogether.
Marlette held nothing of the sort. Rather, Marlette explained that privity is no longer required
for an easement to run with the land after the easement has vested. It so happened that in


                                                -4-
Marlette, the requisite fifteen-year period for adverse possession was satisfied by a single party.
However, Marlette expressly acknowledged that “[i]f ‘no single period’ of adverse use amounts
to the fifteen-year statutory period, a party claiming a prescriptive interest may tack the
possessory periods of their predecessors in interest ‘to aggregate the 15-year period of
prescription’ if the claimant can show privity of estate.” Marlette, 501 Mich at 203. The
unambiguous significance of Marlette is that a prescriptive easement vests immediately and
automatically upon satisfaction of the statutory requirements by either a single property owner,
or a succession of property owners in privity with each other. Then, and only then, is any need
for privity obviated. This is not a novel holding: a prescriptive easement that has already vested
has always been deemed to run with the land, even where parcels are later subdivided.2 See von
Meding v Strahl, 319 Mich 598, 611; 30 NW2d 363 (1948).

        Therefore, we conclude that our Supreme Court’s order for us to consider “whether each
defendant established a prescriptive easement in light of Marlette” implicitly instructs that any
individual defendant may satisfy the statutory requirements in one of three ways: (1) personally;
(2) by tacking the defendant’s own use to the use of a predecessor or predecessors in privity; or
(3) by showing that any prior owner of their property, or any chain of owners in privity with each
other, had satisfied the statutory requirements at any time in the past.

                             IV. ESTABLISHMENT AND SCOPE

       “A prescriptive easement is generally limited in scope by the manner in which it was
acquired and the previous enjoyment.” Heydon v MediaOne, 275 Mich App 267, 271; 739
NW2d 373 (2007) (quotation omitted). The holder of a prescriptive easement is not altogether
precluded from increasing the burden on a servient tenement where “necessary to make effective
the enjoyment of the easement.” Mumrow v Riddle, 67 Mich App 693, 699; 242 NW2d 489
(1976). Thus, the owner of an easement may perform incidental repairs or improvements,
subject to a balancing between the necessity of those repairs or improvements and the
reasonableness of any increased burden upon the servient tenement. Id. at 699-700. Ultimately,
“the scope of the privilege is determined largely by what is reasonable under the circumstances.”
Heydon, 275 Mich App at 271. “The owner of an easement cannot materially increase the
burden of the easement or impose a new and additional burden on the servient estate.” Id. at
275.

         A prescriptive easement is essentially indistinguishable from adverse possession, other
than the requirement of exclusivity. Matthews v Dep’t of Natural Resources, 288 Mich App 23,
37; 792 NW2d 40 (2010). “An easement by prescription results from use of another’s property
that is open, notorious, adverse, and continuous for a period of fifteen years.” Plymouth Canton
Community Crier, Inc v Prose, 242 Mich App 676, 679; 619 NW2d 725 (2000). Adverse, or
hostile, use does not require ill will, but rather a claim to a nonexistent right or a nonpermissive
use that would give rise to an action for trespass. Id. at 681. Use can be “continuous” without
being literally uninterrupted so long as that use is “in keeping with the nature and character of

2
  We caution, however, that the inheritors-by-subdivision of an easement might be permitted to
increase traffic to some limited extent, but they may not collectively impose an unreasonable
additional burden upon the servient estate. Henkle v Goldenson, 263 Mich 140, 142-143; 248
NW 574 (1933); Bang v Forman, 244 Mich 571, 573-576; 222 NW 96 (1928).

                                                -5-
the right claimed.” Dyer v Thurston, 32 Mich App 341, 344; 188 NW2d 633 (1971). As
discussed, the fifteen-year period need not be satisfied by a single owner, and successive owners
who are in privity with each other may “tack” their periods of adverse use together. Siegel v
Renkiwicz Estate, 373 Mich 421, 425; 129 NW2d 876 (1964). The party claiming a prescriptive
easement must prove entitlement by clear and cogent evidence. Matthews, 288 Mich App at 37.
The “clear and cogent evidence” standard calls for “more than a preponderance of evidence,
approaching the level of proof beyond a reasonable doubt.” McQueen v Black, 168 Mich App
641, 645 n 2; 425 NW2d 203 (1988).

                                         V. PRIVITY

        Also in Marlette, our Supreme Court reiterated well-established case law describing the
limited circumstances under which privity of estate will be found to permit tacking of successive
periods of ownership. First, it has long been held that parties are in privity of estate where a
deed explicitly includes the property in dispute. Marlette, 501 Mich at 203. That is, the land in
controversy must have been expressly described in a conveyance between the two owners. See
Nichols v New England Furniture Co, 100 Mich 230, 251; 59 NW2d 155 (1894). Second,
privity might be achieved by parol statements made contemporaneously with the property
conveyance. Marlette, 501 Mich at 203. The disputed property must be expressly transferred,
but not necessarily in a formal conveyance. Sheldon v Mich Cent Ry Co, 161 Mich 503, 509-
515; 126 NW 1056 (1910). It appears that the underlying principle was that the two periods of
adverse use should not be merely coincidental. See id. Finally, “a parol transfer may occur if a
property owner is ‘well-acquainted’ with the previous property owner and had visited and used
the disputed property ‘for many years’ before acquiring title,” because those circumstances
indicate that the parties understood an easement to be appurtenant to the land. Marlette, 501
Mich at 203; see also von Meding, 319 Mich at 614-615.

         We are not persuaded that the three methods for showing privity outlined by our Supreme
Court are strictly exclusive. In von Meding, our Supreme Court held that under the
circumstances of the case, it was “inescapable” that a contemporaneous parol transfer had
“undoubtedly” been the parties’ intentions. von Meding, 319 Mich at 614-615. The “clear and
cogent evidence” standard for establishing a prescriptive easement “cannot be made out by
inference.” Donohue v Vosper, 189 Mich 78, 90; 155 NW 407 (1915). Therefore, a party cannot
base an adverse use claim on use made by a neighbor. However, it is clear from von Meding that
some degree of inference can be permissible to show privity. Thus, some other analogous
circumstance might also give rise to an “inescapable” conclusion that the seller and purchaser
“undoubtedly” intended an easement to be included in the conveyance, even in the absence of
direct proof. The lack of any other way to access the property is an insufficient circumstance by
itself to establish such a mandatory inference. However, a historic lack of alternative access is
not irrelevant and can certainly be considered in conjunction with additional information or
evidence.3



3
  We also note that we unanimously agreed previously, albeit for different reasons, that
plaintiffs’ 2004 memo was not binding or conclusive on plaintiffs or on the courts. We reiterate
that holding. However, we do not believe the memo to be entirely devoid of evidentiary value.

                                               -6-
           VI. LAUDENSLAGER, BEAUDOIN, AND CHRISTIE DEFENDANTS

        Upon reviewing the evidence and affidavits from the Laudenslager, Beaudoin, and
Christie defendants, we reaffirm our prior majority holding as to those defendants, and we
further adopt our previous dissenting opinion’s conclusion that their easement includes the use of
motorized and non-motorized vehicles, as well as walking. Their easement also includes limited
incidental uses, such as access by reasonable invitees, delivery vehicles, maintenance or utility
vehicles, and emergency vehicles. Although their easement includes some limited recreational
uses, their easement does not include commercial uses. We reiterate that this easement does not
confer a right to generate nuisances, such as generating unnecessary noise or travelling at
unnecessary speeds. This easement also does not permit defendants to stray from historic
boundaries of Island Shore Drive beyond what is minimally necessary to use the easement.
However, defendants are entitled to perform reasonable repairs, and plaintiffs are not permitted
to intentionally damage the land to preclude defendants from being able to use it for ingress and
egress. Additionally, as our previous dissent pointed out, the Christie defendants have also
acquired a right to continue walking their dog on the easement.

                              VII. REMAINING DEFENDANTS

       The evidence in the record clearly establishes that none of the remaining defendants
could possibly have any greater rights than the Laudenslager, Beaudoin, and Christie defendants
as discussed above. We further reaffirm that Kraska has the same rights as the Laudenslager,
Beaudoin, and Christie defendants, at least for seasonal use. We note that we denied defendants’
motion to take judicial notice and expand the record. Were we to address what rights the
remaining defendants have established on the record as originally provided to us, we would not
unanimously agree on the outcome. However, we are sufficiently concerned by the equities of
this matter that we conclude the parties should have the opportunity to present evidence and
argument consistent with Marlette and Heydon in an appropriate forum. We are a court of
record and not the appropriate forum under the circumstances. Our Supreme Court’s order of
remand did not retain jurisdiction, so we believe we are authorized to conclude, in our
reconsideration, that the matter should be remanded further. Therefore, we remand the
remaining issues in this matter to the trial court, where the presentation of evidence is proper,
and the parties and trial court will have the benefit of guidance from this Court and our Supreme
Court.

                                     VIII. CONCLUSION

       The trial court’s dismissal of plaintiffs’ nuisance claims remains vacated in part and
remanded to the trial court for further proceedings consistent with the portion of our prior
majority opinion discussing nuisance. The trial court’s dismissal of plaintiffs’ trespass claims
also remains vacated in part to the extent plaintiffs’ claim is based on defendants unreasonably
overburdening the easement or straying from its boundaries. The trial court’s finding that
defendants had established an easement by necessity remains reversed.

       We hold that the Laudenslager, Beaudoin, and Christie defendants have established a
valid easement by prescription as described and limited more fully above. The trial court
therefore need not reconsider the nature and extent of their easements. We hold that Kraska has


                                               -7-
established an identical easement by prescription at least to the extent of seasonal use. We
further hold that no defendants could establish an easement with a greater scope than the
easements held by the Laudenslager, Beaudoin, and Christie defendants. However, we are
concerned by the equities of the situation and conclude that the parties should be afforded a full
and fair opportunity to present and respond to evidence and argument with the benefit of
Marlette, Heydon, and our present opinion. Therefore, on remand, the remaining defendants
other than the Laudenslager, Beaudoin, and Christie defendants shall have the opportunity to
present further evidence and argument in support of the existence and scope of any prescriptive
easements they might have. Plaintiffs shall likewise have the opportunity to respond.

       We therefore otherwise vacate the trial court’s order and remand for further proceedings
and consideration. We retain jurisdiction. We direct that the parties shall bear their own costs.
MCR 7.219(A).

                                                            /s/ Amy Ronayne Krause
                                                            /s/ Jane E. Markey
                                                            /s/ Michael F. Gadola




                                               -8-
                              Court of Appeals, State of Michigan

                                                ORDER
                                                                              Amy Ronayne Krause
Mary Ann Lamkin v Eugene Hartmeier                                              Presiding Judge

Docket No.     326986                                                         Jane E. Markey

LC No.         12-026600-NZ                                                   Michael F. Gadola
                                                                                Judges


               Pursuant to the opinion issued concurrently with this order, this case is REMANDED for
further proceedings consistent with the opinion of this Court. We retain jurisdiction.

                Proceedings on remand in this matter shall commence within 56 days of the Clerk’s
certification of this order, and they shall be given priority on remand until they are concluded.

              The parties shall promptly file with this Court a copy of all papers filed on remand.
Within seven days after entry, appellant shall file with this Court copies of all orders entered on remand.

               The transcript of all proceedings on remand shall be prepared and filed within 21 days
after completion of the proceedings.



                                                             /s/Amy Ronayne Krause




                                September 17, 2019
