This space has previously written about the method of establishing a prescriptive easement in Michigan. As a refresher, a prescriptive easement arises from open, notorious, adverse (or hostile), and continuous use of the land for a period of 15 years. Most Michigan attorneys could identify these elements rather easily. But litigating these elements can be a complicated venture.
For example, the element of hostility has several subtleties that can be easily overlooked. Perhaps the most interesting is the matter of land that is “wild and unenclosed.” Under existing Michigan case law, when the property in question is wild and unenclosed, use of the land alone is not hostile, and therefore does not satisfy the elements of a prescriptive easement. A party asserting an easement over wild and unenclosed land must show that he or she put the owner on notice, “by word or act,” of the claim to use the land. According to the courts, this higher burden reflects “the general custom of owners of wild lands to permit the public to pass over them without hindrance.”
Of course, the question then becomes how to show that land is wild and unenclosed? Unfortunately, the case law on this point is largely unpublished, and therefore non-binding. It appears that the Courts of Appeal give strong deference to local circuit court judges in making the determination on whether land is wild and unenclosed. Therefore, it is up to the party defending against a prescriptive easement claim to make a strong evidentiary showing in order to use this defense.
Some factors that may be helpful in arguing that land is wild and unenclosed include whether the land is wooded, whether the land is within view of an occupied dwelling, whether the land is consistently maintained, and whether it is common for members of the public to enter the land. An experienced land use attorney should be consulted on specific questions.
Dalton & Tomich attorneys have years of experience handling Michigan land use cases. We represent individuals and business entities. If you have questions regarding a Michigan land use issue, please don’t hesitate to contact us. We would be happy to speak with you.