A recent unpublished opinion by the Michigan Court of Appeals, Burns v. Romaya,brings to light an issue to be aware of when encountering an easement for utility access under the law of necessity.
Generally speaking, utility easements are quite common and permit the entry or crossing of property to install, maintain, operate, and inspect utility infrastructure. Examples of such easements would be permitted access to a water pipeline or a powerline. While easements for utility access may be created and enforced through written instruments, occasionally easements will be established through implication or operation of law. In other words, landowners may encounter scenarios requiring access or entry over other property without written permission. Such a scenario would concern easements by necessity.
Easements by necessity are created by operation of law and exist when a parcel of property is landlocked or an easement across another’s property is otherwise necessary to access the parcel. In Burns v. Romaya, unpublished opinion issued by the Michigan Court of Appeals on August 4, 2022 (Docket No. 358480), the plaintiff sought an easement that ran under the defendant’s property, in order to access a sanitary sewage line. The plaintiff’s property, adjacent to the defendant’s parcel, was intended to become a used car lot, which required the plaintiff to connect it to a sanitary line pursuant to local zoning ordinances. The Court of Appeals denied the plaintiff’s easement by necessity because he failed to provide sufficient evidence establishing all the requirements under this particular easement.
It is not uncommon for private landowners to obtain or seek out easements in order to access or utilities such as a sewage line. However, the process and navigation in obtaining such access is where issues may arise depending on the type of easement a landowner may seek.
While the State of Michigan recognizes easements for utility access, when they are sought through claims of necessity, such easements do not hold the same recognition by the courts. The Michigan Supreme Court has stated as much when addressing a prior ruling by the Court of Appeals in a 2008 case, Tomecek v. Bavas. The Michigan Supreme Court stated, “Regarding the Court of Appeals dicta creating an easement by necessity for utilities, we decline to address whether such an easement is available in Michigan.”
Nonetheless, there are scenarios where a property owner is left with seeking an easement by necessity for access to these kinds of utilities. Therefore, it is all the more important in establishing the requisite elements.
At Dalton & Tomich, we have experience and expertise in navigating complex land use laws concerning easements. If you have questions regarding easements, please do not hesitate to contact our office at (313) 859-6000. We would be happy to speak with you.
