REAL ESTATE 35: An easement holder has the limited right to use the land but does not have the right to possess that land as does the fee owner of the land.

In 1990, a judgment was entered granting plaintiffs’ the prescriptive easement at issue, stating in relevant part:

IT IS FURTHER ORDERED that said easement shall be for the benefit of Parcels I and II, and more specifically:

A. For the purpose of providing a driveway for and ingress and egress to and from Parcels I and II; and,

B. to provide for parking and all other activities reasonably associated with driveways in residential areas, the uses in this Section B., however, to be only for the benefit of that portion of the easement immediately contiguous to Parcel I.

IT IS FURTHER ORDERED the owner of Parcel I shall maintain and be responsible for all costs incurred maintaining that portion of the above easement immediately contiguous to Parcel I.

In 2015, plaintiffs purchased the property at issue, i.e., Parcel I. Shortly thereafter, plaintiffs constructed a second garage on the parcel and installed a cement driveway that extends into the prescriptive easement.

In September 2016, plaintiffs proposed to modify the easement which included relocating the gravel roadway, removing the turnaround island, and extending the radius of the turn. Plaintiffs sought approval from the current owners of the servient estate, defendants, and such approval was denied.

Plaintiffs then filed this action. Accordingly, plaintiffs requested declaratory relief, allowing them to make the proposed modifications to the easement as depicted in the gravel drive improvement plan and prohibiting the defendants from interfering with their maintenance of the easement.

Further, plaintiffs sought to move their driveway significantly closer to the defendant’s home which reduced the size of their backyard while increasing the size of plaintiffs’ front yard. And the defendants were not interested in selling the easement parcel. Moreover, the defendants noted, plaintiffs then-recent renovations were in violation of the building permit they had obtained in that plaintiffs’ concrete driveway encroached on the defendants property and other concrete slabs increased the impermeable surface and thereby the flow of drainage water onto the defendants property in violation of the drainage ordinance.

Defendants moved for summary disposition under MCR 2.116(C)(8) and (C)(10). Defendants argued that plaintiffs had no legal right to relocate their driveway onto adjacent property. The fact that plaintiffs created a problem by constructing a second garage was an insufficient reason to unilaterally modify the existing prescriptive easement. Accordingly, defendants argued, this case must be dismissed.

On July 12, 2017, the trial court issued its opinion denying defendants’ motion for summary disposition. The court first noted that because defendants’ motion relied on evidence beyond the scope of the pleadings, summary disposition under MCR 2.116(C)(8) would be improper.

On December 18, 2017, a bench trial was conducted. On December 20, 2017, the trial court held, because the improvements were unnecessary, and only desirable or convenient because of conditions created by plaintiffs, they were not permissible. The court noted that the cul-de-sac had been in the same state for at least 57 years and met plaintiffs’ necessary needs.

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