                          STATE OF MICHIGAN

                           COURT OF APPEALS


RONALD FINCH and RUTH FINCH,                                       UNPUBLISHED
                                                                   June 14, 2018
              Plaintiffs/Counter-Defendants-
              Appellees,

v                                                                  No. 337493
                                                                   Oakland Circuit Court
ELLEN KELLY and BEVERLY OSANTOWSKI,                                LC No. 2013-137593-CH

              Defendants/Counter-Plaintiffs-
              Appellants.


Before: SWARTZLE, P.J., and SHAPIRO and BOONSTRA, JJ.

PER CURIAM.

       Defendants appeal by right the trial court’s second amended judgment, entered after a
bench trial, granting an easement in favor of plaintiffs. We affirm.

                  I. PERTINENT FACTS AND PROCEDURAL HISTORY

       This case presents a property dispute between plaintiffs and defendants, who are
neighbors. Plaintiffs own two parcels of real property, located at 1585 and 1587 Stirling Avenue
in Pontiac. Defendants own an adjacent parcel, located at 1581 Stirling Avenue. The three
driveways leading to 1581, 1585, and 1587 Stirling, respectively, connect into one large
driveway space, where the mouth of the common driveway meets the main street. Two
blacktopped driveways split away from the shared driveway area and lead to 1581 Stirling and
1587 Stirling. A gravel driveway leading to 1585 Stirling is situated between the blacktopped
driveways and is partially surrounded by an additional gravel area on defendants’ property. This
dispute primarily concerns the use of the gravel driveway. Although plaintiffs and their
predecessors always assumed that they owned at least a 10-foot-wide portion of the gravel
driveway, a survey of the property showed that plaintiffs only owned an approximately 4-foot-
wide portion of the gravel driveway and that defendants owned the remainder of the gravel
driveway area.1 Plaintiffs had been using the gravel driveway to access 1585 Stirling since


1
 Evidence presented at the bench trial shows that the total gravel area was up to 20 feet wide in
places.


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purchasing the property in 1998. Additionally, the water and sewer lines for 1585 Stirling,
which were installed by the prior owner, were located beneath a portion of the gravel driveway
located on defendants’ property.

        After the survey was conducted, plaintiffs asked defendants to formally grant them an
easement over the driveway. Although defendants had granted plaintiffs permission to use the
driveway, they declined to grant an easement. Plaintiffs threatened a suit to quiet title to the
disputed part of the driveway. Defendants responded by erecting a makeshift barrier on the
boundary line of their property, encroaching onto the gravel driveway and hindering its use for
accessing 1585 Stirling. 2 In 2013, plaintiffs filed a complaint to quiet title, seeking to have an
easement declared by prescription or acquiescence. After a bench trial, the trial court entered an
opinion and order granting an easement by prescription, an easement by acquiescence, as well as
an easement by necessity, in favor of plaintiffs. The trial court held that plaintiffs had
established an easement by prescription based on the continuous use of the driveway by a series
of residents of 1585 Stirling. Additionally, the trial court found that an easement by
acquiescence had been created, stating:

       Until the survey was completed in 2013, all parties and their predecessors . . .
       acted and acquiesced to 1585 Stirling having at the minimum a 10 foot wide
       driveway in terms of usable space immediately adjacent to the boundary of 1587
       Stirling. It is important to note that . . . Defendants paved their driveway at 1581
       Stirling[, but] they did not extend it to cover the gravel that they now claim to be
       theirs based on the survey.

                                             * * *

               The parties have treated the driveway boundaries in the same manner
       since at least 1978 . . . . The [c]ourt finds that Defendants have acquiesced to
       these boundaries by not paving the entirety of the gravel and by their failing to
       object to the use of the driveway at any time over the years, until the dispute
       occurred in 2013.

The trial court further found that an easement by necessity had been established based on the fact
that snow plows and fire trucks could not easily access 1585 Stirling without using the entire
gravel driveway.

       The trial court’s judgment was subsequently amended twice, following plaintiffs’ second
motion for reconsideration, ultimately granting plaintiffs an easement “the size of the entire
gravel driveway as historically used by Plaintiffs, and by Plaintiffs’ predecessors.” The trial
court denied defendants’ motion for reconsideration of the second amended judgment. This
appeal followed. On appeal, defendants do not challenge the trial court’s determination that an



2
  Vehicular access to 1585 Stirling from the 1587 Stirling driveway was blocked by a stone
retaining wall.


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easement exists, but argue that the second amended judgment improperly expands the scope of
the easement.

                                 II. STANDARD OF REVIEW

        “The scope and extent of an easement is generally a question of fact that is reviewed for
clear error on appeal.” Wiggins v City of Burton, 291 Mich App 532, 550; 805 NW2d 517
(2011). A finding is considered clearly erroneous if “ ‘the reviewing court is left with a definite
and firm conviction that a mistake has been made, even if there is evidence to support the
finding.’ ” Morse v Colitti, 317 Mich App 526, 534; 896 NW2d 15 (2016) (citation omitted).

                                        III. ANALYSIS

        An easement is the right to use another person’s land for a specified purpose. Heydon v
MediaOne, 275 Mich App 267, 270; 739 NW2d 373 (2007). The land that is burdened by the
easement is the servient estate, and the land that is benefitted by the easement is the dominant
estate. See D’Andrea v AT&T Michigan, 289 Mich App 70, 73 n 2; 795 NW2d 620 (2010). The
trial court granted plaintiffs an easement by prescription, an easement by acquiescence, and an
easement by necessity, which encompassed the 10-foot-wide gravel driveway leading to 1585
Stirling, as well as the portion of the gravel area under which plaintiffs’ underground water and
sewer pipes are located.

        Defendants do not challenge the holdings of the trial court granting plaintiffs an easement
by prescription, acquiescence, and necessity. See Plymouth Canton Community Crier, Inc v
Prose, 242 Mich App 676, 679; 619 NW2d 725 (2000) (“An easement by prescription results
from use of another’s property that is open, notorious, adverse, and continuous for a period of
fifteen years.”); Killips v Mannisto, 244 Mich App 256, 260; 624 NW2d 224 (2001) (“The
doctrine of acquiescence provides that where adjoining property owners acquiesce to a boundary
line for at least fifteen years, that line becomes the actual boundary line.”), and Charles A
Murray Trust v Futrell, 303 Mich App 28, 41; 840 NW2d 775 (2013) (“An easement by
necessity may be implied by law where an owner of land splits his property so that one of the
resulting parcels is landlocked except for access across the other parcel.”). Rather, defendants
challenge the trial court’s finding that plaintiffs established an easement by prescription or
necessity over the portion of the gravel driveway “as was historically used by Plaintiffs and
Plaintiffs’ predecessors,” that extends beyond the 10-foot-wide gravel driveway to encompass
the gravel area that contains their underground water and sewer lines. Defendants argue that the
easement should only create a 10-foot-wide driveway to allow access to 1585 Stirling, and
dispute whether plaintiffs’ easement should also cover the portion of the gravel driveway where
plaintiffs’ water and sewer lines are buried. We disagree.

       The trial court did not clearly err in establishing the scope of the easement, Wiggins, 291
Mich App at 550, because plaintiffs established that they possess an easement by necessity and
an easement by prescription over the portion of the driveway covering their water and sewer
lines. First, plaintiffs established an easement by necessity for access to their utilities.
Testimony at the bench trial showed that a prior owner of 1585 Stirling had installed water and
sewer lines underneath the gravel driveway, without permission from defendants, before selling
1585 Stirling to plaintiffs. The trial court observed that the prior owner had “installed water and

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sewer lines from the house at 1585 Stirling down the middle of the gravel driveway to Stirling
Avenue. Further they added gravel to the driveway and no one ever challenged the boundaries
of the driveway.” Plaintiffs noted that they are required to access the gravel area in order to
make necessary repairs to their water and sewer lines because no other access point exists.

       Although “no Michigan court has extended [the doctrine of easement by necessity] to
encompass access to utilities,” such easements “exist at common law in Michigan.” Tomecek v
Bavas, 276 Mich App 252, 274; 740 NW2d 323 (2007), aff’d in part, rev’d in part, vacated in
part 482 Mich 484 (2008). “[T]he party asserting the right to the easement need only show that
the easement is reasonably necessary, not strictly necessary, to the enjoyment of the benefited
property.” Chapdelaine v Sochocki, 247 Mich App 167, 173; 635 NW2d 339 (2001).

        In order for plaintiffs to reasonably enjoy the benefited property, they must have the right
to access the water and sewer lines underneath the gravel driveway in case they need repairs, but
such access must place “as little burden as possible [on] the fee owner of the land.” Blackhawk
Dev Corp v Village of Dexter, 473 Mich 33, 42; 700 NW2d 364 (2005) (quotation marks and
citation omitted). Plaintiffs have given no indication that they historically drove, parked on, or
otherwise used the portion of the gravel driveway covering the water and sewer lines. Plaintiffs
only requested, and the trial court only granted, an easement wide enough to allow them to
access the water and sewer lines to make necessary repairs. Defendants have failed to explain
how allowing plaintiffs a right of access to their water and sewer lines in case of an emergency
will burden their use and enjoyment of the land. Id. Ultimately, the trial court properly
concluded that plaintiffs were entitled to an easement by necessity over the parts of the gravel
driveway under which their water and sewer lines are located. Chapdelaine, 247 Mich App at
173.

        Additionally, an easement by prescription exists with regard to the area of the gravel
driveway covering plaintiffs’ water and sewer lines. As previously stated, an easement by
prescription requires the open, notorious, adverse, and continuous use of defendants’ property for
a minimum of 15 years. Plymouth Canton, 242 Mich App at 679. The installation of
underground utilities may be considered open and notorious “because [the location is] actually
known to the owner[.]” See 1 Restatement Property, 3d, Servitudes § 2.17, comment h, p 273.

       Defendant Kelly testified that she knew that the prior owner of 1585 Stirling had installed
water and sewer lines under the contested portion of the gravel driveway. During cross-
examination, defendant Kelly testified as follows:

              Q. And you saw the [prior owner] adding the sewer and water line to the
       driveway; is that right?

               A. . . . [Y]es.

               Q. And, in fact, that was down the middle of that gravel driveway, was it
       not?

               A. Ah, yeah.


                                                -4-
                                             * * *

             Q. Okay. And so, in fact . . . the gravel driveway went all the way to your
       lawn while they were doing the work?

              A. Um, there was . . . dirt piled onto our lawn, yes; and . . . [the past
       owner] knocked over some of our trees, yes.

              Q. [Did y]ou deny them permission to be doing that kind of work on the
       driveway?

              A. Uh, they had three children that were under eight, and I believe . . . it
       was necessary for them to do that.

               Q. Okay . . . . [W]ould you have agreed to what the boundaries were at
       that point?

              A. We had no discussion about the boundary at that point.

              Q. Okay. So, clearly, you had no opposition to them using the driveway?

              A. I allowed them to use the driveway.

              Q. And, again, without telling them directly they had permission to do so,
       or anything?

              A. I suppose that’s true.

Therefore, plaintiffs’ use of the water and sewer lines was open and notorious because
defendants knew that the water and sewer lines had been installed, and as a result, “the
prescriptive period . . . continue[d] to run even though evidence of the use [was] subsequently
buried.” 1 Restatement Property, 3d, Servitudes § 2.17, comment h, p 273.

        Plaintiffs’ use of the water and sewer lines was also adverse for the required 15-year
period. Adverse or hostile use is defined as a use that is “inconsistent with the rights of an
owner.” Killips, 244 Mich App at 259. Plaintiffs’ and their predecessors’ use of the water and
sewer lines was for their sole benefit and only burdened defendants’ property. Therefore, the use
of the water and sewer lines was adverse to, and inconsistent with, defendants’ ownership of the
property. Id. Finally, plaintiffs’ and their predecessors’ use of the water and sewer lines was
continuous for more than 15 years. The prior owner of 1585 Stirling installed the water and
sewer lines between 1989 and 1998. Plaintiffs began using the water and sewer lines when they
purchased 1585 Stirling in November 1998, and continue to use them to the present day. There
is no dispute that when plaintiffs filed their complaint, they had owned 1585 Stirling for 15
years. Accordingly, the trial court did not err by granting an easement that encompassed the




                                               -5-
portions of the gravel driveway used to access 1585 Stirling, as well as the portions of the gravel
driveway covering the water and sewer lines attached to 1585 Stirling. Wiggins, 291 Mich App
at 550.

       Affirmed.



                                                            /s/ Brock A. Swartzle
                                                            /s/ Douglas B. Shapiro
                                                            /s/ Mark T. Boonstra




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