We’ve explored prescriptive easements in recent blogs—they arise when one party claims a right to use another’s property in an open, notorious, continuous, and adverse way. In Michigan, the continuous period must be at least fifteen years.
In one interesting case, the Michigan Court of Appeals found a prescriptive easement for overuse that exceeded the language of an express easement. When a waterfront landowner started parceling off his property, he granted an express easement for the other parcels to access the lake. That was it—just to get to and from the lake.
Two of the subsequent owners of the new parcels exceeded that use. They put in a dock every year. They moored boats. They did this for at least fifteen years.
In Astemborski v. Manetta, 341 Mich. App. 190, 988 N.W.2d 857 (2022), the dominant estates (those with easement rights) won. The Court found that their use of the easement did extend beyond the express grant. However, because the overuse had been open, notorious, continuous, and adverse for at least fifteen years, a prescriptive easement was created. The Court permitted the easement by prescription on top of an existing, express easement.
In Michigan, adverse possession claims and prescriptive easements have a fifteen-year time period in common. However, it differs from state-to-state. In Indiana, for example, it’s twenty years. The basic elements are similar, but the easement proponent must establish clear and convincing proof of control, intent, notice, and duration. This is the same formulation that is required to prove adverse possession. However, Indiana’s statutory period for prescriptive easement is twenty years, while it’s only ten years for adverse possession.
The lawyers of Dalton & Tomich will put their experience with easements to use for you. Call us today to explore your options and to learn about the laws of different states.
