I just read the news that the Pennsylvania grandmother who was thought to have fallen into a sinkhole did, indeed, do just that, and her body has been discovered. This tragic story makes me think of a pair of related Court of Appeals decisions, both unpublished, that dealt with quicksand and our favorite topic—easements.
The plaintiff in the Lenawee County case owned three parcels, and parcel 3 appears to have been stacked on top of parcel 2. The only problem was a strip of land—where a railroad used to go through—that separated the two parcels. It was owned by the defendant. A previous owner had quieted title to the railroad right-of-way in her name years before. The defendant called the police in 2014 because the plaintiff had been crossing his strip of land to get to parcel 3, where he like to hunt.
What does this have to with quicksand? Plaintiff claimed that the third parcel was surrounded by a creek and the railroad right of way. The creek was deep and dangerous and surrounded by quicksand mud. He had to use the old railroad strip to access his land.
The first time around, the trial court found that the plaintiff had a prescriptive easement—it had been an open, notorious, and adverse use of another’s land for a continuous period of fifteen years. The Court of Appeals found that there was a genuine issue of material fact whether the use was permissive, that affidavits reviewed by the trial court were ambiguous, and that the case should be remanded to the trial court. See Pelham v Bates, unpublished per curiam opinion of the Court of Appeals, issued February 19, 2019 (Docket No. 341231; 2019 WL 691759).
Back in the trial court, however, the plaintiff renewed his motion for summary disposition on the issue of easement by necessity, which the appellate court deemed abandoned on the first appeal. A court can imply an easement by necessity when property has been split and one of the resulting parcels is landlocked. The easement must merely be “reasonably necessary, not strictly necessary, to the enjoyment of the benefited property.” Pelham v Bates, unpublished per curiam opinion of the Court of Appeals, issued November 18, 2021 (Docket No. 355638; 2021 WL 5406046), quoting Chapdelaine v Sochocki, 247 Mich App 167, 173; 635 NW2d 339 (2001).
The trial court determined the easement was necessary for the plaintiff to reach parcel 3. The plaintiff only requested and thus was only granted pedestrian access. On appeal, the defendant didn’t dispute the easement by necessity; he only disputed the extent of it. The trial court determined the easement stretched over the entire length of the old railroad’s border with the landlocked property, which the defendant wanted to limit it to two ten-foot strips.
The trial court judge had visited the site before determining the scope of the easement, determining that it was not feasible to rely on the two proposed strips because of the marshy (quicksand-like) conditions of the surrounding property. The Court of Appeals affirmed the trial court on the case’s second time around, and although it is unpublished, the decision provides a sound roadmap for easements by necessity.
Contact the lawyers at Dalton & Tomich today to discuss your easement or other real property issues.
