               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



JON STEENLAND and ANNA STEENLAND,                                            UNPUBLISHED
                                                                             May 16, 2019
                  Plaintiff,

and

PAUL FESSLER,

                  Plaintiff-Appellee/Cross-Appellant,

v                                                                            No. 341084
                                                                             Ogemaw Circuit Court
ANN S. TOUSCIUK,                                                             LC No. 15-659789-CH

                  Defendant-Appellant/Cross-
                  Appellee.


Before: SHAPIRO, P.J., and BORRELLO and BECKERING, JJ.

PER CURIAM.

       Defendant Ann Tousciuk appeals an order after a bench trial determining the scope of an
express easement that she reserved for herself when she conveyed waterfront property.
Defendant also challenges an order denying her motion for summary disposition under MCR
2.116(C)(10) (no genuine issue of material fact). Plaintiff Paul Fessler cross-appeals,1
challenging a determination regarding the scope of the easement. We affirm.




1
    As used in this opinion, “plaintiff” refers to plaintiff Paul Fessler.



                                                    -1-
                  I. PERTINENT FACTS AND PROCEDURAL HISTORY

        Defendant previously owned all four parcels at issue in this case: lots 772, 780, 781 and
782 of the Lake Ogemaw No. 7 Subdivision. 2




       In 2002, defendant sold lots 781 and 782 to Michael and Janis Altomare. The deed
reserved an easement for lots 772 and 780:

       The Grantors reserve an easement over the East 20 feet of Lots 781 and 782 of
       Lake Ogemaw No. 7 Subdivision for ingress and egress to Lake Ogemaw and for
       the personal use and occupation by the owners of Lots 772 and 780 of Lake
       Ogemaw No. 7 Subdivision.

Defendant continued living on lot 772 until 2005 when she sold it to Jon and Anna Steenland.
Before that transaction, defendant extinguished the easement benefitting lot 772. Defendant built
a home on lot 780 and began living there in 2006. In 2007, plaintiff purchased lots 781 and 782
from the Altomares.

       In 2015, the Steenlands brought suit arguing that defendant’s use of the easement went
beyond its scope. Specifically, the Steenlands objected to defendant mooring her boat, storing
personal property, and constructing a fire pit on the easement. Plaintiff was later added as a



2
 At the time, defendant co-owned the properties with her then-husband. However, defendant is
now the sole owner of the dominant estate, lot 780. For simplicity, we omit reference to the ex-
husband’s co-ownership.



                                               -2-
party, and the Steenlands were dismissed from the suit after it was established that they had sold
lot 772.

        Defendant sought summary disposition under MCR 2.116(C)(10) and attached an
affidavit in which she affirmed, as grantor, that it was her intent at the time of the easement’s
creation to insure that she could continue to do those activities that she had previously enjoyed
on lots 781 and 782. These activities included “storing and using outdoor recreational items and
maintaining seasonal boat mooring.” She further attested that every activity that she had
engaged in since the easement’s creation was within the intended scope of the easement. The
trial court denied this motion, concluding that the easement’s language, specifically the words
“personal use” and “occupation,” was ambiguous and created a genuine issue of material fact
regarding the scope of the easement.

        The matter proceeded to a bench trial, where the trial court considered extrinsic evidence
to determine defendant’s intent at the time of the easement’s creation. The court heard testimony
from defendant, plaintiff and Jon Steenland regarding defendant’s use of the easement. The
court also received numerous exhibits into evidence. Ultimately, the trial court concluded that
the easement’s scope (1) permitted seasonal mooring of one watercraft (e.g., a boat, a jet ski, a
kayak, or a canoe); (2) prohibited a dock, permanent structures, and storage of personal property;
and (3) permitted sunbathing and picnicking so long as tables, lawn chairs, and other personal
property were removed after the activity was concluded for the day.

                                         II. ANALYSIS

                                A. SUMMARY DISPOSITION

        Both parties raise issues relating to the trial court’s decision to deny defendant summary
disposition. Defendant argues that the trial court erred in denying her motion because plaintiff
failed to produce any evidence disputing her affidavit as to how at the time of drafting she
intended to use the easement.3 Plaintiff argues on cross-appeal that the easement language is not
ambiguous, which is the same argument he presented to the trial court in opposing defendant’s




3
  We review de novo a trial court’s decision on a motion for summary disposition. Dextrom v
Wexford Co, 287 Mich App 406, 416; 789 NW2d 211 (2010). A party brings a MCR
2.116(C)(10) motion when “there is no genuine issue with respect to any material fact and the
moving party is entitled to judgment as a matter of law.” Id. at 415. We “must examine the
documentary evidence presented and, drawing all reasonable inferences in favor of the
nonmoving party, determine whether a genuine issue of material fact exists. A question of fact
exists when reasonable minds could differ as to the conclusions to be drawn from the evidence.”
Id. at 415-416.



                                               -3-
motion for summary disposition. 4 We conclude that the easement language is ambiguous and
that the trial court correctly denied defendant’s motion for summary disposition.

        “[T]he use of an easement must be confined strictly to the purposes for which it was
granted or reserved.” Blackhawk Development Corp v Village of Dexter, 473 Mich 33, 41; 700
NW2d 364 (2005). The language creating the easement is the best indicator of the parties’
intent. See id. at 42. “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, 701;
664 NW2d 749 (2003). However, “[i]f the text of the easement is ambiguous, extrinsic evidence
may be considered by the trial court in order to determine the scope of the easement.” Id.
Generally, easements are interpreted using the rules of contract interpretation. Wiggins v Burton,
291 Mich App 532, 551; 805 NW2d 517 (2011).

         The easement language in this case is ambiguous because it uses the word “occupation,”
a term that is inherently ambiguous in the context of an easement. Occupation is defined in
pertinent part as “the possession, use, or settlement of land: OCCUPANCY.” Merriam
Webster’s Collegiate Dictionary (11th ed). In turn, occupancy is defined in relevant part as “1.
the fact or condition of holding, possession, or residing in or on something. 2. the act or fact or
taking or having possession (as of unowned land) to acquire ownership.” Merriam Webster’s
Collegiate Dictionary (11th ed). These definitions, suggesting residency and ownership of land,
are inconsistent with the concept of an easement, which is the right to use land owned by
another. Penrose v McCullough, 308 Mich App 145, 148; 862 NW2d 674 (2014). Further, the
definitions refer to possession without qualification, yet “[a]n easement does not displace the
general possession of the land by its owner, but merely grants the holder of the easement
qualified possession only to the extent necessary for enjoyment of the rights conferred by the
easement.” Schadewald v Brule, 225 Mich App 26, 35; 570 NW2d 788 (1997) (emphasis
added). For those reasons, the application of a right of “occupation” with respect to an easement
is unclear and open to interpretation. Accordingly, the trial court correctly concluded that the
text of the easement is ambiguous.

        Generally, if a contract is ambiguous then “factual development is necessary to determine
the intent of the parties, and summary disposition is inappropriate.” Michaels v Amway Corp,
206 Mich App 644, 649; 522 NW2d 703 (1994). Nonetheless, defendant argues that she was
entitled to summary disposition because plaintiff did not produce any evidence disputing her
affidavit explaining her intent for the easement. Defendant correctly recites the shifting burdens
of proof for summary disposition, but we disagree that her affidavit established that there were
no disputed factual issues. See Bronson Methodist Hosp v Auto-Owners Ins Co, 295 Mich App
431, 440; 814 NW2d 670 (2012).

       The grantor’s intent controls the scope of an easement. Higgins Lake Prop Owners Ass’n
v Gerrish Twp, 255 Mich App 83, 88; 662 NW2d 387 (2003). However, we agree with the trial


4
 We review de novo the trial court’s conclusion that the easement language is ambiguous. See
Klapp v United Uns Group Agency, Inc, 468 Mich 459, 463; 663 NW2d 447 (2003).




                                                -4-
court that defendant’s affidavit did not warrant summary disposition. While affidavits can create
questions of fact, they do not mandate summary disposition. See SSC Assoc Ltd Partnership v
Gen Retirement Sys of Detroit, 192 Mich App 360, 364; 480 NW2d 275 (1991) (explaining that
affidavits “do not resolve issues of fact. Their purpose is to help the court determine whether an
issue of fact exists.”). Further, “where the truth of a material factual assertion of a moving party
is contingent upon credibility, summary disposition should not be granted.” Foreman v
Foreman, 266 Mich App 132, 136; 701 NW2d 167 (2005). As will be discussed below,
defendant’s testimony regarding her intent in creating the easement required a credibility
determination. For those reasons, the trial court did not err in denying defendant’s motion for
summary disposition.

                                       B. BENCH TRIAL

        Both parties rely on the rule that the scope of the easement must be determined based on
the circumstances existing at the time of the grant. From there, defendant argues that trial court
abused its discretion in allowing plaintiff and Jon Steenland to testify to defendant’s use of the
easement years after it was created. Plaintiff, on the other hand, argues that the trial court’s
ruling amounts to clear error because there was no evidence that defendant moored a boat on the
easement at the time it was created. Defendant also argues that the scope of the easement, as
determined by the trial court, is inconsistent with her stated intent. Finding no clear error or
abuse of discretion in the trial court’s opinion, we affirm. 5

        To determine an easement’s scope, “it is necessary to determine the true intent of the
parties at the time the easement was created.” Wiggins, 291 Mich App at 551. “The scope of an
easement encompasses only those burdens on the servient estate that were contemplated by the
parties at the time the easement was created.” Id. at 551-552. Additionally, an easement’s use
“must be confined strictly to the purposes for which it was granted or reversed. A principle
which underlies the use of all easements is that the owner of an easement cannot materially
increase the burden of it upon the servient estate or impose thereon a new and additional
burden.” Delaney v Pond, 350 Mich 685, 687; 86 NW2d 816 (1957).

        Contrary to defendant’s argument, the trial court did not rely on Jon Steenland’s and
plaintiff’s testimony to determine the circumstances surrounding the easement at the time of
creation. Instead, the trial court ruled that both Steenland’s and plaintiff’s testimony was


5
  After a bench trial, we review a trial court’s factual findings for clear error and review de novo
its conclusions of law. Ligon v Detroit, 276 Mich App 120, 124; 739 NW2d 900 (2007). “The
extent of a party’s rights under an easement is a question of fact . . . .” Blackhawk, 473 Mich at
40. Clear error occurs when “after a review of the record, this Court is left with a definite and
firm conviction that a mistake was made.” Lawrence v Burdi, 314 Mich App 203, 220; 886
NW2d 748 (2016). We review the trial court’s evidentiary decisions for an abuse of discretion,
which occurs when the trial court reaches a decision outside the range of reasonable and
principled outcomes. Ronnisch Constr Group, Inc v Lofts on the Nine, LLC, 499 Mich 544, 552;
886 NW2d 113 (2016).



                                                -5-
relevant because it addressed the central issue of whether defendant had exceeded the scope of
the easement. While Steenland and plaintiff did not own their lots at the time the easement was
created, they both observed defendant’s use of the easement for years. The trial court, therefore,
ruled that these witnesses could not address “the ultimate question as to the scope” but that their
testimony was relevant and permissible “for evidence as to change in the . . . use of the easement,
unilateral use of the easement by the dominant estate.” In other words, the trial court relied on
their testimony to determine whether plaintiff’s actions were materially increasing the burden on
the servient estate. Thus, the trial court’s evidentiary decision was not an abuse of discretion.

        Further, in determining the scope of an easement, a trial court is permitted to consider
evidence of past or historic use of the easement after its creation. See Dobie v Morrison, 227
Mich App 536, 541-542; 575 NW2d 817 (1998) (affirming the trial court’s decision that the
defendants could use the easement “as they had done ‘traditionally and historically’ ”). We also
note that the Supreme Court has directed trial courts to consider “extrinsic evidence”6 when
ambiguous easement language exists without restricting that evidence to the circumstances
existing at the time of the grant. Little, 468 Mich at 700. In this case, the trial court was plainly
relying on defendant’s historical use of the easement to determine her original intent in creating
the easement. We see no clear error in this approach.

         Nor did the trial court clearly err in finding that the seasonal mooring of one watercraft
was contemplated as a use when the easement was created in 2002. Plaintiff focuses on the fact
that there was no evidence that defendant seasonally moored a boat on the easement from 2002
through 2005. Although it is true that defendant did not moor a boat for years after the
easement’s creation, the intent of the parties at the time of the easement’s creation is the
dispositive issue. Defendant testified that she owned a pontoon boat prior to the easement’s
creation. Defendant also testified that prior to easement’s creation she had kept a pontoon boat,
jet skis, and row boats on the shoreline. Thus, there was evidence that plaintiff reserved the
easement for the purpose of mooring watercraft on the shoreline. Further, even though defendant
sold the pontoon boat in 2005, she purchased another pontoon boat sometime after 2012. She
testified that she used and seasonally moored a jet ski on the easement in the interim. While
defendant did not continuously moor a watercraft on the easement, inaction does not necessarily
equal lack of intent. Accordingly, the trial court’s determination regarding mooring was not
clearly erroneous.

       Finally, defendant argues that the trial court’s decision was clearly erroneous because it is
inconsistent with the grantor’s stated intent, i.e., defendant’s testimony that she believed she
could do “[a]nything” on the easement. The trial court expressly found that defendant’s
testimony regarding her intent was self-serving, or in other words, not fully credible. And we
give special deference to the trial court’s factual findings when they are based on a credibility
determination. MCR 2.613(C); HJ Tucker and Assoc, Inc v Allied Chucker and Engineering Co,
234 Mich App 550, 563; 595 NW2d 176 (1999). Defendant provides us no caselaw holding that



6
 Extrinsic evidence includes the parties’ conduct and past practices. Klapp v United Uns Group
Agency, Inc, 468 Mich 459, 470; 663 NW2d 447 (2003).



                                                -6-
the grantor’s testimony as to her intent is dispositive. Although a trial court is tasked with
discerning the grantor’s intent in creating the easement, the grantor’s testimony is not the sole
evidence of that intent, particularly when the grantor has an interest in the outcome of the
litigation. In this case, the trial court gave more weight to how defendant actually used
easement.

       In doing so, the trial court was not persuaded that allowing permanent structures or the
storage of personal property on the easement was contemplated as an acceptable use when the
easement was created. Indeed, the evidence was that plaintiff moved the fire pit off the easement
in 2002. Steenland testified that there was neither a fire pit nor a picnic table on the easement
when he purchased his lot in 2005. Thus, the record evidence indicates that plaintiff did not
begin storing those items on the easement until at least 2006, and so the trial court properly
determined that allowing permanent fixtures or the storage of personal property on the easement
would materially increase the burden on the servient estate.

       Defendant does not address the trial court’s reasoning or explain why the court’s findings
were clearly erroneous. Instead, she contends that the trial court erroneously imposed a
continuous-use requirement on her easement. However, the trial court clearly was not applying
such reasoning because it ruled that seasonal mooring was permitted even though defendant did
not continuously engage in that activity.

       Affirmed.



                                                           /s/ Douglas B. Shapiro
                                                           /s/ Stephen L. Borrello
                                                           /s/ Jane M. Beckering




                                               -7-
