In these weekly easement blogs, we have explored how a license to use someone’s property differs from an easement. A license grants permission to use another’s property for a specified purpose, but it does not convey any interest in the land, and, unlike an easement, it is entirely revocable.
This distinction is highlighted in a fascinating series of cases involving property on Wamplers Lake in Lenawee County. Going all the way back to 1926, two couples owned a ten-foot strip of land on Wamplers Lake. Neighboring backlot owners, who had no other access to the lake, were given permission to use the strip for that access.
Leap forward in time to 1980, when the then-owners of the lakefront properties flanking this strip sued the then-owners of the backlots to keep them from encroaching on their property. The court held that a reasonable use of the strip to access the lake was permissible under the license, including installing a dock and tying a boat to the end of the dock. The original owners of the strip were dead, and nobody seemed to know the identity or whereabouts of their heirs.
The 1980 court did find, however, that two metal poles, installed 12 feet off the dock by the backlot owners to moor rafts, were intruding on submerged land at the bottom of the lake that belonged to the lakefront owners. Since the lakefront owners owned the land under the water to the middle of the lake, the court ordered the poles removed, but the backlot owners could continue to use the strip and its dock.
Now let’s jump to 2014—New owners of the backlots wanted to use the strip more extensively and to install a dock that allowed the mooring of more watercraft. The new owners of the lakefront lots installed new docks of their own that impeded the backlots’ use of the dock and certain watercraft.
It was the backlot owners who filed a lawsuit this time, making claims of trespass and private nuisance against the lakefront owners. The trial court disagreed, pointing to the 1980 decision that affirmed a license to use the land but which did not recognize any property ownership rights.
The backlots tried to amend their complaint to add claims for adverse possession and, you guessed it, prescriptive easement. However, as you already know, each of those claims require adverse use of the property for at least 15 years. Because the 1980 decision had affirmed a permissive license, there was no way they could prove adverse use. The court ruled in favor of the lakefront owners and granted fees and costs as sanctions for filing a frivolous lawsuit. The Michigan Court of Appeals affirmed the trial court in 2017. Pollack v. Fraser, unpublished per curiam opinion of the Court of Appeals, issued May 30, 2017 (Docket Nos. 330540 & 331241).
But wait . . . there’s more. Meanwhile, one of the lakefront owners had filed a new case in 2016 against the potential heirs of the original owners of the ten-foot strip (the ones who granted the license). They sought to quiet title to the strip in their own name, arguing it was intended to be part of their property. They based this under Michigan’s Marketable Record Title Act, supported by a 1932 Assessor’s plat. This argument failed because the original lakefront owners had deeded property to the predecessors of the now-lakefront owners with the ten-foot strip specifically omitted.
In addition, the potential heirs quit-claimed their interest in the strip to the backlot owners. The backlot owners stepped into their shoes and defended the lawsuit. They should have filed a motion to intervene, but the Court of Appeals found that to be a non-fatal flaw and granted it sua sponte and nunc pro tunc.
The parties argued about whether the heirs were potential or actual heirs and whether they had indeed conveyed anything to the backlots with the quit-claim deeds. The trial court, affirmed by the Court of Appeals, found that it was the lakefront owners who lacked standing, and they were ordered to pay fees and costs. Fraser v. Rogers, unpublished per curiam opinion of the Court of Appeals, issued September 24, 2019 (Docket Nos. 342113 & 344010).
Presumably, unless there has been subsequent litigation, the backlot owners claim ownership of the strip and continue to use it for their enjoyment. It took over 90 years, but the beneficiaries of the license won in the end.
If you have any issues about property, including easements, licenses, sales, or other transfers, contact the experienced attorneys at Dalton & Tomich today.
