                           STATE OF MICHIGAN

                           COURT OF APPEALS



KIM and CONNIE METHNER,                                           UNPUBLISHED
                                                                  August 23, 2016
              Plaintiffs-Appellants,

v                                                                 No. 326781
                                                                  Midland Circuit Court
VILLAGE OF SANFORD,                                               LC No. 12-009082-CH

              Defendant/Cross-Defendant-
              Appellee,

and

MID-VALLEY AGENCY, INC.,

              Defendant/Cross-Plaintiff-Appellee,

and

MALLEY CONSTRUCTION, INC.,

              Defendant.


Before: OWENS, P.J., and SAWYER and SHAPIRO, JJ.

PER CURIAM.

       In this prescriptive easement case, plaintiffs’ appeal centers on the trial court’s order
denying plaintiffs’ motion for partial summary disposition and granting defendants’ motions for
summary disposition.1 For the reasons stated in this opinion, we reverse the trial court’s order
and remand for entry of partial summary disposition in plaintiffs’ favor.




1
  Defendant Malley Construction, Inc. settled with plaintiffs and has not participated in this
appeal. We use “defendants” in the plural when referring to Village of Sanford and Mid-Valley
Agency, Inc. together.



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        This appeal involves three adjacent parcels of property along West Saginaw Street in the
Village of Sanford, Michigan. The first parcel is owned by defendant Mid-Valley Agency, Inc.,
and Mid-Valley’s business building is on it. The record reflects that at one time a post office
was on the lot. Adjacent to the first lot is a vacant parcel that is also owned by Mid-Valley.
Plaintiffs refer to the vacant parcel as the “Access Parcel.” The third parcel is owned by
plaintiffs and is referred to as the “Studio Building” because a photography studio is located on
it. The record reflects that plaintiffs acquired the Studio Building parcel in 2011 from Terry
Howson. At his deposition, Howson testified that his family had owned the parcel for years, and
that he had taken possession of it from his grandparents in the late 1960s or early 1970s.
Howson, who was 70 years old at the time he was deposed, testified that the building on the
parcel had been a meat market and that he had helped his uncle and grandfather by delivering
meat for the business since he was 8 or 10 years old.

        In the summer of 2011, the Village of Sanford developed plans to reconstruct and
improve its downtown “streetscape,” including Saginaw Street. In order to do so, the Village
acquired easements for the sidewalks in front of the parcels at issue in this case. Ultimately, the
Village decided to put a “curb bump-out,” i.e. a wider sidewalk with no parking spaces, and a
crosswalk directly in front of the access parcel. As a result, the curb cut that allowed vehicular
traffic to the rear of the buildings was removed. Although plaintiffs attempted to stop the
project, they received no response from the Village. With the closure of the access drive,
plaintiffs had no access to the rear of their building, which they had just renovated to allow
handicap access. In their complaint, plaintiffs alleged that they had a prescriptive easement in
the access parcel and that the Village of Sanford’s streetscape project had interfered with their
use of the easement. Plaintiffs moved for partial summary disposition on the issue of the
easement’s existence, and defendants also moved for summary disposition.

         The trial court denied plaintiffs’ motion and granted summary disposition in favor of
defendants, finding that there was no prescriptive easement on the access parcel. Relying on the
decision Frandorson Props v Northwestern Mut Life Ins Co, 744 F Supp 154 (WD Mich, 1990),
and Wood v Denton, 53 Mich App 435; 219 NW2d 798 (1974), the trial court concluded that
Howson’s use of the access parcel “was mutual, although not permissive, and not adverse for the
duration of his ownership.” As a result, the trial court dismissed Count I of plaintiffs’ complaint.
Initially, the trial court found that questions of fact remained regarding the scope of the sidewalk
easements plaintiffs and Mid-Valley had granted the Village, so the court did not grant summary
disposition on Counts II and III of plaintiffs’ complaint. The Village moved for reconsideration,
and, on reconsideration, the trial court concluded that Counts II and III were derivative of Count
I. The court therefore dismissed the remaining counts in plaintiffs’ complaint. Thereafter Mid-
Valley’s cross-claim against the Village was dismissed by stipulation. This appeal followed.

     Plaintiffs argue on appeal that the trial court erred in denying their motion for partial
summary disposition and in granting defendants’ motions for summary disposition.2 We agree.



2
  We review de novo a trial court’s decision to grant summary disposition under MCR
2.116(C)(10). Adair v Michigan, 470 Mich 105, 119; 680 NW2d 386 (2004). A (C)(10) motion



                                                -2-
       In Mulcahy v Verhines, 276 Mich App 693, 700; 742 NW2d 393 (2007), we explained:

               A prescriptive use of land . . . is either

               (1) a use that is adverse to the owner of the land or the interest in land
       against which the servitude is claimed, or

              (2) a use that is made pursuant to the terms of an intended but imperfectly
       created servitude, or the enjoyment of the benefit of an intended but imperfectly
       created servitude. [citing 1 Restatement Property, 3d, Servitudes, § 2.16, pp 221–
       222; emphasis omitted).]

              An easement by prescription results from use of another’s property that is
       open, notorious, adverse, and continuous for a period of fifteen years. MCL
       600.5801(4). The burden is on the party claiming a prescriptive easement to show
       by satisfactory proof that the use of the defendant’s property was of such a
       character and continued for such a length of time that it ripened into a prescriptive
       easement. [Mulcahy, 276 Mich App at 699 (case citations and quotation marks
       omitted).]

“The term ‘hostile’ as employed in the law of adverse possession is a term of art and does not
imply ill will.” Mumrow v Riddle, 67 Mich App 693, 698; 242 NW2d 489 (1976); Goodall v
Whitefish Hunting Club, 208 Mich App 642, 646; 528 NW2d 221 (1995). “Adverse or hostile
use is use inconsistent with the right of the owner, without permission asked or given, use such
as would entitle the owner to a cause of action against the intruder.” Mumrow, 67 Mich App at
698; Goodall, 208 Mich App at 646. The party claiming the easement need not “make express
declarations of adverse intent during the prescriptive period.” Mumrow, 67 Mich App at 698;
Goodall, 208 Mich App at 646. In Michigan, the prescriptive period is 15 years. MCL
600.5801(4); Mulcahy, 276 Mich App at 699.

        Plaintiffs bought their property in 2011 and so have not used the access parcel long
enough to claim a prescriptive easement based on their own ownership. However, if the use by
plaintiffs’ predecessor in title, Howson, satisfied the elements of a prescriptive easement, then
plaintiffs acquired that easement when they purchased the property, even if it was not mentioned
in the deed or the parties’ dealings. See Haab v Moorman, 332 Mich 126, 143-144; 50 NW2d
856 (1952).

       The trial court erred by failing to apply Michigan precedent, under which a presumption
of hostile use arises when an alleged easement has been in use for longer than the statutory

tests the factual sufficiency of the complaint, and “we consider the substantively admissible
evidence actually proffered in opposition to the motion. Thus, when such a motion is properly
brought, the nonmovant must . . . produce admissible support for its opposition in order to defeat
the motion.” Id. at 120 (citation and internal quotation marks omitted). Actions to quiet title are
equitable and thus are also reviewed de novo. Killips v Mannisto, 244 Mich App 256, 258; 624
NW2d 224 (2001).




                                                  -3-
period and the origin of that use is unknown. The trial court should have applied Haab, as
clarified by Widmayer v Leonard, 422 Mich 280, 290; 373 NW2d 538 (1985): “Once plaintiffs
presented evidence that they had used the disputed land for over fifty years, the burden of
producing evidence shifted to defendants to establish that plaintiffs’ use was permissive.”
Although the trial court concluded that the Frandorson Court declined to apply the presumption
because the way was “one of mere convenience” rather than a way of necessity, the Court in
Haab and the Courts in several cases cited by Haab applied the presumption despite the fact that
the cases did not involve a way of necessity. See Haab, 332 Mich at 139 (“An alley is a way of
convenience”); Loehr v Cochran, 14 Mich App 345, 346; 165 NW2d 485 (1968); Dyer v
Thurston, 32 Mich App 341, 343; 188 NW2d 633 (1971). Thus, binding caselaw clearly
supports plaintiffs’ assertion that all they had to establish to give rise to the presumption of
hostile use is that the use was open, its origins are unknown, and that the use occurred for longer
than the prescriptive period.

       The trial court’s application of the “mutual use” doctrine also was not in accord with
binding Michigan law. Historically, the doctrine has been applied when owners of adjoining lots
share a driveway that is partly on both (or all) parcels so that all the parcels are mutually
burdened and benefited. See, e.g., Wilkinson v Hutzel, 142 Mich 674, 675; 106 NW 207 (1906);
Worden v Assiff, 317 Mich 436, 439; 27 NW2d 46 (1947); Wasilewski v Kowal, 320 Mich 473,
474; 31 NW2d 697 (1948); Banach v Lawera, 330 Mich 436, 438; 47 NW2d 679 (1951).
“Mutual” is not the same as simultaneous or concurrent; rather, it means “1. Generally, directed
by each toward the other or others; reciprocal. 2. (Of a condition, credit covenant, promise, etc.)
reciprocally given, received, or exchanged. 3. (Of a right, etc.) belonging to two parties;
common.” Black’s Law Dictionary (10th ed). Thus, Howson’s unilateral use of his neighbor’s
property without permission is not “mutual use” even if the neighbor was also using the property.

        Howson’s testimony established that the origins of the use of the access parcel were
unknown and the use was already established when he was a child, some 60 years earlier. Thus,
the use had continued for well past the prescriptive period of 15 years and no one knew if it
began as a permissive use or a hostile use. Mid-Valley argues that Howson’s testimony does not
show anything more than permissive use; however, in order to make a prima facie showing that
the use was hostile, all plaintiffs had to show was that the origins of the use were unknown and
that the use had continued for more than the prescriptive period. Widmayer, 422 Mich at 290;
see also 1 Restatement Property, 3d, Servitudes, § 2.16, comment g, pp 233-234, and Reporter’s
Note, pp 246-247 (citing Widmayer) (“The majority of states recognize a presumption of adverse
use arising from evidence of use for the prescriptive period without evidence establishing that the
initial use was permissive.”). Given these requirements, Howson’s testimony shows that the
presumed hostile use might predate even his own possession, as his awareness of his
grandparents’ use (of unknown origin) began at least around 1951 through 1953 and was
continuing when Howson took possession of the parcel 15 to 20 years later. Under these facts,
plaintiffs sufficiently established a prima facie case that the presumption of hostile use applied in
this case.

        The Village of Sanford asserts that plaintiffs’ use is the same as that of the general public
because, according to plaintiffs’ complaint, customers used the access parcel. However, even
assuming that plaintiffs’ customers equate with the general public, there was almost no testimony
to this effect. Howson stated that only he, his wife, post office trucks, Mid-Valley’s employees,


                                                -4-
and the garbage truck used it: “The customers parked in front of the building mostly” and
“Nobody as far as I know” used it otherwise. Moreover, Howson’s use included receiving
deliveries, which would be different from the use by the general public.

        Once a plaintiff establishes a presumption of hostile use, the burden then shifts to those
opposed to the easement to provide evidence that the use was permissive. Widmayer, 422 Mich
at 290. Howson testified that, although he and his neighbors had never discussed it, he used the
access parcel with their full awareness. The only evidence that permission had been granted was
the statement in the affidavit of Mid-Valley’s owner, who said he had expressly given Howson
permission to use the parcel. But Mid-Valley acquired the access parcel in 1985, long after the
prescriptive period had run in favor of Howson and his predecessors, and the silence of Mid-
Valley’s predecessors does not equate with permission, but with acquiescence.3 Notably, the
trial court expressly found, “[Howson’s] use was mutual, although not permissive, and not
adverse for the duration of his ownership.” When the trial court expressly found the use was not
permissive, under Widmayer, 422 Mich at 290, it should have at that point ended the analysis in
plaintiffs’ favor as a matter of law.

        We reverse the trial court’s order granting summary disposition in favor of defendants
and remand for entry of an order granting plaintiffs’ motion for partial summary disposition. We
do not retain jurisdiction.



                                                            /s/ Donald S. Owens
                                                            /s/ David H. Sawyer
                                                            /s/ Douglas B. Shapiro




3
  “Title or rights in lands founded on prescription originate from the fact of actual, adverse,
peaceable, open, and uninterrupted possession for such length of time that the law presumes that
the true owner, by his acquiescence, has granted the land, or interest to the land, so held
adversely.” Turner v Hart, 71 Mich 128, 138; 38 NW 890 (1888); see also Marr v Hemenny,
297 Mich 311, 314; 297 NW 504 (1941). “One claiming a prescriptive easement must prove that
use was with the owner’s knowledge and acquiescence. In this context, acquiescence does not
mean license or permission in the active sense but means passive assent or submission,
quiescence, or consent by silence.” 25 Am Jur 2d, Easements and Licenses in Real Property, §
44, p 714 (footnotes omitted). This definition of acquiescence differs from a mere failure to
object and does not, by itself, constitute permission. See Turner, 71 Mich at 138.




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