            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



WALTER S. MATHERLY and MARY BETH                                   UNPUBLISHED
RONAYNE MATHERLY,                                                  February 5, 2019

               Plaintiffs-Appellants,

v                                                                  No. 340856
                                                                   Washtenaw Circuit Court
PHILLIP TOLLIVER and JENNIFER                                      LC No. 16-000995-CH
TOLLIVER,

               Defendants-Appellees.


Before: MURRAY, C.J., and SERVITTO and SHAPIRO, JJ.

PER CURIAM.

        In this action involving the interpretation of a written easement, plaintiffs appeal as of
right the trial court’s order granting defendants’ motion for summary disposition and limiting
plaintiffs’ use of the easement. We affirm.

                 I. BACKGROUND FACTS AND PROCEDURAL HISTORY

        The general facts of this case are largely undisputed. Plaintiffs own a home on Hadley
Road in Dexter Township, and in November 2015, acquired additional real property in Dexter
Township at 14500 Eisenbeiser Drive by warranty deed. Defendants also own property on
Eisenbeiser Drive, acquired by warranty deed in February 2014. According to a document
defendants attached to their motion for summary disposition, and plaintiffs have now attached to
their brief on appeal, the three properties are situated as follows:
As the diagram depicts, plaintiffs’ Hadley Road property abuts Eisenbeiser Drive, and
Eisenbeiser Drive leads out to North Territorial Road.

        Both warranty deeds provide that access to the respective properties is over a “private
road/easement” further described as a “33 foot wide easement for ingress, egress and the
installation and maintenance of public and private utilities . . . .” Additionally, defendants’
warranty deed states that the easement referred to consists of the “Eisenbeiser Drive
Maintenance Agreement, and the terms, conditions and provisions contained therein[.]”

       That Maintenance Agreement, dated October 22, 2006, indicates that the easement
created within serves four1 properties, including both plaintiffs’ and defendants’ Eisenbeiser
Drive properties, but excluding plaintiffs’ Hadley Road property.2 It states that “Eisenbeiser



1
 According to the trial court in its findings of fact and conclusions of law, these four parcels
have since been divided into seven parcels. Neither party disputes this fact.
2
  The Maintenance Agreement terminated and replaced a previous easement, through which the
four properties had rights to an easement over Eisenbeiser Drive, described as a private road in


                                              -2-
Drive is created as a 33 foot private road,” “[t]he property served by Eisenbeiser Drive currently
consists of four parcels” identified in attached exhibits, and “[t]hese easements and agreements
will run with the land and bind and benefit the parties, their heirs, successors, and assigns.”
Further, it provides that “[a]ll routine maintenance and repairs shall be shared by the properties.”
Beyond the above, however, the Maintenance Agreement gives no further description of the
easement over Eisenbeiser Drive, its purpose, or its proper use.

        After purchasing the property at 14500 Eisenbeiser Drive, plaintiffs used the easement
from their Hadley Road home to access the property, until defendants began erecting barriers to
obstruct that use. In response, plaintiffs filed their initial complaint on October 24, 2016,
requesting that the trial court determine the scope and extent of their rights under the Eisenbeiser
Drive easement, and enter an injunction prohibiting defendants from interfering with those
rights. Defendants’ actions, they asserted, interfered with their ability to utilize the easement
“for any and all purposes for which a road may be used,” including “reasonably unobstructed
passage at all times.”

        In their answer, defendants asserted that neither the Maintenance Agreement, nor
statutory or common law, granted plaintiffs the right to use the easement over Eisenbeiser Drive
for ingress and egress from their Hadley Road home. And in their motion for summary
disposition filed pursuant to MCR 2.116(C)(8) and (10) on February 22, 2017, defendants
expanded upon this argument, contending that the easement over Eisenbeiser Drive was created
only “to allow access from the North Territorial Road to a defined group of properties,” and that
plaintiffs’ Hadley Road home was not listed as a benefitted property in the Maintenance
Agreement.

        Plaintiffs responded, asserting entitlement to summary disposition themselves pursuant to
MCR 2.116(I)(2), on the basis that by its terms, the Maintenance Agreement does not limit use
of the easement over Eisenbeiser Drive to ingress and egress from the benefitted properties to
North Territorial Road. Further, plaintiffs argued, Eisenbeiser Drive is a private road as opposed
to an easement for ingress and egress, and as such, they have a right to reasonably unobstructed
passage over the road at all times. In reply, however, defendants maintained that the caselaw
regarding easements draws no distinctions between private roads and easements for right of way
or ingress and egress.

         The trial court held a motion hearing on April 12, 2017, during which the parties made
arguments consistent with those made in their briefs, but denied the motions without prejudice to
afford plaintiffs the opportunity to amend their complaint. Plaintiffs then submitted a first
amended complaint,3 before filing their second amended complaint which is nearly identical to
their initial complaint.



Washtenaw County. With regard to that previous easement, confusion apparently existed
concerning “what portions of the easement [were] private driveways.”
3
 In their first amended complaint, plaintiffs claimed an easement by prescription, which they did
not later include in their second amended complaint.


                                                -3-
        At the second hearing on the parties’ motions for summary disposition, the parties again
made arguments consistent with those made in their briefs, but each insisted that no genuine
issue of material fact existed and that the Maintenance Agreement should be interpreted in their
favor.4 Ultimately, the trial court entered a final judgment on October 16, 2017, acknowledging
the parties’ agreement that no disputed issues of material fact existed, and ordering that: (1)
neither plaintiffs nor their successors in interest at 14500 Eisenbeiser Drive have the right to
ingress and egress to 10047 Hadley Road using Eisenbeiser Drive or defendants’ property on
Eisenbeiser Drive, (2) neither plaintiffs nor their successors in interest at 10047 Hadley Road
may directly access Eisenbeiser Drive at any point where the Hadley Road property is
contiguous to Eisenbeiser Drive, and (3) defendants may place a fence or landscaping on their
own property within the easement boundaries along the border between their Eisenbeiser Drive
property and 10047 Hadley Road.5 In so doing, the court found that the Maintenance Agreement
consists of four benefitted parcels, not including plaintiffs’ Hadley Road property, and that
“[t]here is nothing in the Maintenance Agreement from which the Court could infer that the
signers of the Maintenance Agreement intended that Eisenbeiser Drive would be used directly to
access 10047 Hadley and there is no ambiguity in the Maintenance Agreement which would
require the Court to inquire into the intent of the drafter and original signers of the Maintenance
Agreement regarding the rights of the owners of 10047 Hadley.” Further, it determined that the
applicable caselaw draws no distinction between private roads and ingress-egress or right-of-way
easements.

                                          II. ANALYSIS

        Plaintiffs argue that the trial court erred when it prohibited their use of the easement from
their home on Hadley Road to their property on Eisenbeiser Drive and back. Specifically, they
assert both that no such limitation exists in the terms of the Maintenance Agreement, and that
private roads or general right-of-way easements like Eisenbeiser Drive, as opposed to easements
for ingress and egress, permit reasonably unobstructed passage at all times.



4
  Plaintiffs’ counsel did note a possible question of fact “as to the claims made by the defendants
that the purpose of this lawsuit and the origin of the dispute is the attempts by the plaintiffs to
use Eisenbeiser Drive for access to their Hadley Road property,” clarifying that “[w]hat the
plaintiffs are primarily intent on doing and what they’ve been prevented from doing is using
Eisenbeiser Drive to access their benefitted parcel on Eisenbeiser Drive from their Hadley Road
property.” But defendants’ counsel at the first motion hearing quelled any possible
disagreement, stating: “[W]e’re not arguing that he’s trying to use a -- to get out to Hadley Road
from Eisenbeiser. When I spoke of Hadley Road it was the house at 10047 Hadley Road and
specifically what they are saying is they want to be able to go from that house on to Eisenbeiser
Drive. That’s exactly what they’re claiming and the house at 10047 Hadley Road is not
contained within the benefitted parcels.” Thus, the essential disagreement between the parties is
in regard to plaintiffs’ use of Eisenbeiser Drive from their Hadley Road property.
5
   The court never actually stated that it was granting defendants’ motion for summary
disposition, and under which subsection.


                                                -4-
       Defendants brought their motion for summary disposition pursuant to MCR 2.116(C)(8)
and (10), but beyond acknowledging that the matter came before it on opposing motions for
summary disposition, the court never actually explicitly held that it was granting defendants’
motion, let alone identified the appropriate subsection under which it decided to do so.
Nevertheless, “because the court considered evidence outside the pleadings” to issue its decision
and enter a final judgment, “we will review this decision under the standard for MCR
2.116(C)(10).” Steward v Panek, 251 Mich App 546, 554-555; 652 NW2d 232 (2002).

        “We review a trial court’s decision on a motion for summary disposition under MCR
2.116(C)(10) de novo.” Candler v Farm Bureau Mut Ins Co of Mich, 321 Mich App 772, 777;
910 NW2d 666 (2017). A motion under MCR 2.116(C)(10) tests the factual sufficiency of a
complaint, id., and summary disposition is warranted where “there is no genuine issue as to any
material fact, and the moving party is entitled to judgment or partial judgment as a matter of
law,” MCR 2.1116(C)(10). “A genuine issue of material fact exists when, viewing the evidence
in a light most favorable to the nonmoving party, the record which might be developed . . . would
leave open an issue upon which reasonable minds might differ.” Bonner v City of Brighton, 495
Mich 209, 220; 848 NW2d 380 (2014) (quotation marks and citation omitted). A trial court’s
ultimate interpretation of an easement is a question of law we also review de novo. See
Blackhawk Dev Corp v Village of Dexter, 473 Mich 33, 40; 700 NW2d 364 (2005). However,
“[t]he extent of a party’s rights under an easement is a question of fact, and a trial court’s
determination of those facts is reviewed for clear error.” Id. Accordingly, if reasonable minds
could not differ regarding plaintiffs’ rights under the easement created by the Maintenance
Agreement, summary disposition is appropriate.

       “An easement is the right to use the land of another for a specified purpose,” Schadewald
v Brule, 225 Mich App 26, 35; 570 NW2d 788 (1997), and may be created “by express grant, by
reservation or exception, or by covenant or agreement,” Rossow v Brentwood Farms Dev, Inc,
251 Mich App 652, 661; 651 NW2d 458 (2002) (quotation marks and citation omitted). 6 As
discussed, the Maintenance Agreement created the easement at issue, and both parties have
acknowledged that the sole issue is the interpretation of the Agreement and the rights it affords. 7

       The “use of an easement must be confined strictly to the purposes for which it was
granted or reserved.” Blackhawk Dev Corp, 473 Mich at 41 (quotation marks and citation


6
  We note that it is unclear from the Maintenance Agreement whether Eisenbeiser Drive is
owned by one of the property owners, or all of the property owners collectively, or whether each
property owner owns that portion abutting their property.
7
  At the second motion hearing, defendants’ counsel stated, “I believe the only issue before the
Court now concerns the interpretation of the Eisenbeiser Drive road maintenance agreement
under which rights are being claimed.” And in plaintiffs’ brief on appeal, they state that “[a]t the
second hearing on the Cross-Motions for Summary Disposition on August 9, 2017, [defendants’]
lawyer correctly stated that ‘the only issue before the court concerns the interpretation of the
eisenbeiser drive road maintenance agreement,’ ” and that “[t]he text of the easement is
controlling.”


                                                -5-
omitted). Thus, “[o]nce granted, an easement cannot be modified by either party unilaterally.”
Schadewald, 225 Mich App at 36. As with contracts, to interpret an easement’s purpose, a court
must first look to the language of the easement itself, with the overarching goal of determining
“the true intent of the parties at the time the easement was created.” Wiggins v City of Burton,
291 Mich App 532, 551; 805 NW2d 517 (2011). If the language of the easement is
unambiguous, it must be enforced as written with no further inquiry. Id.

        With the above principles in mind, we hold that the trial court did not err by prohibiting
plaintiffs’ access to Eisenbeiser Drive from their Hadley Road property, and granting defendants
permission to place a fence or landscaping “on their own property, within the easement
boundaries along the boundary between 14316 Eisenbeiser Drive and 10047 Hadley [Road].”
The Maintenance Agreement unambiguously precludes plaintiffs’ use of the easement in that
manner, and defendants are entitled to judgment as a matter of law.

        “An appurtenant easement, which is the type of easement at issue in this case, attaches to
the land and is incapable of existence separate and apart from the particular land to which it is
annexed.” Schadewald, 225 Mich App at 35. As such, plaintiffs’ and defendants’ rights to use
the easement are not personal in nature, and exist only by virtue of owning benefitted parcels.
And as the court reasoned (and plaintiffs acknowledge), the Maintenance Agreement explicitly
states those parcels served by the easement, and does not include plaintiffs’ Hadley Road
property. Thus, plaintiffs’ use of the easement to and from their Hadley Road property, even to
access their benefitted property on Eisenbeiser Drive, is not permitted by the unambiguous terms
of the Agreement, and to conclude otherwise would constitute an improper modification and
extension of the easement.8 See Schadewald, 235 Mich App at 28, 38-39 (holding that an
easement connecting a particular parcel of property to a right of way that provided access to a
public highway could not be extended to an additional parcel not mentioned in the easement
document); Soergel v Preston, 141 Mich App 585, 588-589; 367 NW2d 366 (1985) (declining to
extend a right-of-way easement for the installation of water and sewer lines to a parcel not
mentioned in the easement agreement).9 The absence of any language in the Agreement


8
  We note that neither party, either in the trial court or on appeal, has argued that the language in
their warranty deeds regarding use of the easement over Eisenbeiser Drive for ingress and egress
should have been considered by the trial court when interpreting the parties’ rights. And as we
have concluded that the terms of the Maintenance Agreement creating the easement are
unambiguous, we see no reason to examine documents or other evidence beyond the Agreement.
Wiggins, 291 Mich App at 551.
9
  Plaintiffs cite a number of cases for their argument that there is a difference between private
roads or general right-of-way easements and easements for ingress and egress, but those cases
largely reiterate the general principal that interpretation of an easement requires reference to the
language of the easement document first. See Harvey v Crane, 85 Mich 316, 321; 48 NW 582
(1891) (“When a right of way exists by virtue of a license or grant, the incidents of that right are
determined by reference to such grant or license, and, when that is uncertain or ambiguous, the
circumstances surrounding the grant or license and the situation of the parties must be inquired
into with a view of arriving at the intention of the parties.”); Kirby v Meyering Land Co, 260


                                                -6-
indicating that plaintiffs’ Hadley Road property was to be served by the easement over
Eisenbeiser Drive illustrates that the parties who created the easement never intended that it
benefit the owners of the Hadley Road property. Accordingly, the trial court did not err when it
precluded such a use and granted defendants’ motion for summary disposition.

       Affirmed.



                                                           /s/ Christopher M. Murray
                                                           /s/ Deborah A. Servitto
                                                           /s/ Douglas B. Shapiro




Mich 156, 168; 244 NW 433 (1932) (“The deed must be construed as it reads. The easement
granted by it cannot create another or different easement for the benefit of plaintiffs.”).


                                              -7-
