                          STATE OF MICHIGAN

                           COURT OF APPEALS



MICHAEL KOVACS,                                                     UNPUBLISHED
                                                                    December 19, 2017
               Plaintiff-Appellant,

v                                                                   No. 334570
                                                                    Montmorency Circuit Court
MARK A. LESAR, DENISE K. LESAR, and D &                             LC No. 15-003768-CH
M GUNS,

               Defendants-Appellees.


Before: MURPHY, P.J., and KELLY and SWARTZLE, JJ.

PER CURIAM.

        Following a bench trial over the use of an easement granted to defendants, the trial court
denied plaintiff’s claims for injunctive and declaratory relief. Plaintiff appeals as of right, and
we affirm.

                                       I. BACKGROUND

        Plaintiff owns real property located at 5698 Mellberry Lane in Albert Township. His
deed provides a 33-foot easement for the benefit of defendants. The scope of the easement had
previously been established by a consent judgment between the parties as being for “ingress,
egress and utilities.” In July 2012, defendants Mark and Denise Lesar opened a retail gun shop,
defendant D & M Guns, in their home. On July 16, 2015, plaintiff filed a complaint for
declaratory judgment alleging that the easement in issue was granted “for residential purposes
and not for the operation of a commercial enterprise” and that the operation of a commercial
enterprise on defendants’ property was outside the scope of the intended easement. Plaintiff
further alleged that defendants’ customers significantly overburdened the easement. Defendants
countered that “[t]he easement is express and for the purpose of ingress and egress to the
Defendants’ property for any and all purposes associated with the use of that property.”

        The trial court concluded that the easement was “not limited to providing access to the
defendants,” and that the easement did not “expressly prohibit the ingress and egress of business
invitees.” Accordingly, the trial court concluded that the easement could be used “for reasonable
business purposes.” As for the use made of the easement by defendants’ customers, the court
concluded that this use would not overburden the easement, noting that defendant D & M Guns
“operates during reasonable business hours” and, on average, no more than four or five cars pass
over the easement each day.
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                                         II. ANALYSIS

       Plaintiff argues that the trial court clearly erred in finding that defendants’ commercial
use was permissible and that it did not overburden the easement. We disagree.

        “The 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.” Blackhawk Dev Corp v Vill of Dexter,
473 Mich 33, 40; 700 NW2d 364 (2005). “A finding is clearly erroneous when a 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.” In re Bennett Estate, 255 Mich App 545, 549; 662 NW2d 772
(2003). Questions of law are reviewed de novo on appeal. Schadewald v Brule, 225 Mich App
26, 35; 570 NW2d 788 (1997).

        A court must look to the language of an easement to determine whether the use being
made of an easement is permissible. Little v Kin, 468 Mich 699, 700; 664 NW2d 749 (2003).
“Where the language of a legal instrument is plain and unambiguous, it is to be enforced as
written and no further inquiry is permitted.” Id. If the language of the easement is ambiguous,
however, “extrinsic evidence may be considered by the trial court in order to determine the scope
of the easement.” Id. “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.”
Wiggins v City of Burton, 291 Mich App 532, 551-552; 805 NW2d 517 (2011).

       The trial court concluded that the easement was unambiguous:

                The easement here unambiguously states that it is for ingress, egress and
       utility. The easement is not limited to providing access to the defendants. Nor
       does the language expressly prohibit the ingress and egress of business invitees.
       Enforcing the language as written, the Court finds that the easement may be used
       for reasonable business purposes.

In a footnote, the court stated, “Due to the clear and unambiguous language of the easement, the
Court is unable to place any restrictions on it.”

         The terms “ingress” and “egress” are not ambiguous. Indeed, their meanings are well-
established within the lexicon of property law. See, e.g., Grinnell Bros v Brown, 205 Mich 134,
137; 171 NW2d 399 (1919). Moreover, the terms are general in scope and not narrowed by any
limiting language in the case at hand. See 1 Restatement Property, 3d, Servitudes, § 4.10,
comment d, p 595 (“[T]he purpose of an easement for ‘ingress and egress’ may be specifically
defined as the entrance and exit of people, or people and vehicles, or more generally defined as
access to the dominant estate.”). Further, the easement is silent with regard to its use for
commercial purposes; it does not expressly permit or prohibit them. We therefore conclude that
the trial court correctly determined that the easement language was unambiguous since the terms
“ingress” and “egress” unambiguously confer a right of passage. Grinnell Bros, 205 Mich at 137.
Absent limiting language, we conclude that to the extent there is concern with defendants’
commercial use of the easement, that concern is better addressed in the context of determining
whether the easement has become overburdened.



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        A permitted use may still be prohibited because it overburdens the easement. Henkle v
Goldenson, 263 Mich 140, 143; 248 NW 574 (1933). Nonetheless, “[g]enerally, a mere increase
in the number of persons using an unlimited right of way to which the land is subject is not an
unlawful additional burden.” Id. In Henkle, a landowner with the right to use a private road
conveyed her interest to five individuals. Id. at 141-142. The Court held that the grant to those
five persons did not overburden the easement. Id. at 143. Similarly, in Morse v Colitti, 317
Mich App 526, 538; 896 NW2d 15 (2016), parcels resulting from the division of a dominant
estate holding an easement in a lake-access walkway each took an easement in the walkway.
This Court found that the easement was not impermissibly overburdened by the mere increase in
the number of persons using the walkway. Id. at 538-539. Nonetheless, using an easement for
heavy machinery may overburden the easement. See Tittiger v Johnson, 103 Mich App 437; 303
NW2d 26 (1981).

        Defendants’ business operates during reasonable business hours—Tuesday through
Saturday from 10:00 a.m. to 6:00 p.m.— and the business attracts less than four cars per day on
average. There is no evidence that the business attracts heavy trucks or other heavy machinery.
Given the limited impact defendants’ business had on the easement, we conclude that the trial
court did not clearly err in finding that defendants’ business did not overburden the easement.
Accordingly, we conclude that the trial court did not clearly err in rejecting plaintiff’s claims for
injunctive and declaratory relief. We note for the parties’ benefit, however, that our affirmance
of the trial court’s ruling does not preclude a future claim if the easement becomes impermissibly
overburdened.

       Affirmed.



                                                              /s/ William B. Murphy
                                                              /s/ Michael J. Kelly
                                                              /s/ Brock A. Swartzle




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