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REAL ESTATE 23: Plaintiff did not have an express easement or prescriptive easement.

Defendant and plaintiff own property adjacent to each other.  No official road borders plaintiff’s property. Plaintiff and her family accessed their parcel via a two-track trail that ran across defendant’s southwest corner of his property, and ended on plaintiff’s property. Multiple witnesses testified that there was no other way to access plaintiff’s property other than the two track. This dispute centers on whether plaintiff and her family hold an easement, express or prescriptive, to traverse over defendant’s southwest property via this two-track.

Plaintiff, her parents, and plaintiff’s siblings utilized their property regularly over the decades. To access their property, they utilized the two-track that ran across defendant’s property. Defendant testified that he gave plaintiff’s brother permission over the years to use the two-track to check in on the property; however, defendant testified that he never gave plaintiff or the other members of her family permission.

In the early 2000s, defendant placed a gate across the two-track, but he gave plaintiff’s brother a key and continued to grant him permission. Finally, in 2016, after finding evidence of strangers and damage on his property, defendant placed another lock on the gate and refused to give plaintiff’s brother another key.  The law suit followed.

In order to create an express easement, there must be language in the writing manifesting a clear intent to create a servitude. In reviewing other deeds in the record, the easement was extinguished, so no express easement could have transferred with the land.

An easement by prescription results from use of another’s property that is open, notorious, adverse, and continuous for a period of fifteen years. 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.

While there was testimony to show that plaintiff and her family used the two-track, plaintiff testified that during her first visit to the property, she was unaware of who even owned the two-track. There was no evidence to show or suggest that plaintiff subsequently placed defendant on notice of a claim of use. There was no evidence establishing that plaintiff or her family told defendant that they claimed a right of way. While mere usage would ordinarily be enough to satisfy the adversity requirement, the heightened standards for wild and unenclosed land require more. In this case, the record supports that defendant’s property was wild and unenclosed.  Therefore, plaintiffs did not have a prescriptive easement over defendant’s property.

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REAL ESTATE 36: Plaintiff argued that her claim was not time-barred because it did not accrue until the grandmother’s death.

Plaintiff’s interest in the subject property is best characterized as a remainder estate, because her right to possession of the property was postponed until the occurrence of a specific contingency, that being the deaths of the grandparents. Plaintiff pursued this action within the 15-year limitation period; accordingly, this action is not barred by MCL 600.5801(4).

LITIGATION 6: The terms of the agreement prevails over the course of performance.

The trial court determined that under the UCC, the express terms of the parties’ agreements prevailed over the course of their performance and course of dealing. Although a course of performance may show that parties have waived a specific contractual term under MCL 440.1303(6), the statute does not similarly provide that a course of dealing may demonstrate waiver.

PROBATE 27: Petitioner filed a petition for mental-health treatment.

In support of the allegations, petitioner attached clinical certificates from a physician and a psychiatrist who observed respondent at the hospital. Both doctors diagnosed respondent with bipolar disorder, determined that she displayed a likelihood of injuring herself and that she did not understand the need for treatment, and recommended a course of treatment that consisted of 60 days of hospitalization and 90 days of outpatient care.

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REAL ESTATE 32: Plaintiffs and defendants executed a second easement.

Plaintiffs requested that the trial court, either through reformation of the First Easement or interpretation of the Second Easement, quiet title in favor of plaintiffs and declare them to be the owners of an easement to access Lake Superior through the ravine on defendants’ property, enjoin defendants from interfering with their use of the easement, and order compensation for damages to the stairs.

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