Extent of a drain easement; Interpreting the right-of-way releases conveying rights to strips of land on either side of the drain center line

In an order in lieu of granting leave to appeal, the court vacated the Court of Appeals judgment (see e-Journal # 72008 in the 1/13/20 edition) and remanded the case to that court for reconsideration. The “case required the Court of Appeals to determine the actual extent of an easement for a drain that runs across the southern edge of” plaintiff’s property. The right-of-way releases conveyed rights to 50-foot strips of land on either side of the drain center line. The “strips were legally described, in part, as ‘land 50 feet wide on each side of a line . . . for construction of drain and deposition of earth. . . .’” There was also a provision in the releases referred to as the “and also” language. In interpreting this provision, based on this language, the Court of Appeals concluded that the easement actually extended beyond the 50-foot strips. But the court found that it failed to “clearly articulate how it arrived at this conclusion.” The court directed it on remand to “reconsider whether the easement actually extends beyond the [50]-foot strips explicitly described in the releases by addressing: (1) the basis for the conclusion that ‘[t]he drafters of the releases would have understood the formal property descriptions to be the “surveys” referenced in the above language[;]’ (2) whether the ‘formal property descriptions’ of the [50]-foot strips referred only to ‘the extreme width of said drain as shown in the survey thereof,’ and, if so, the basis for this determination; (3) whether ‘the “and also” clause was merely a reference back to the same [50]-foot strips,’ and, if so, the basis for this determination; (4) whether the inclusion of the phrase ‘for construction of drain and deposition of earth’ within the ‘formal property descriptions’ contemplates land other than the drain itself located within the [50]-foot strips that was reserved for maintenance; and (5) whether ‘and also’ merely conjoined ‘the extreme width of said drain as shown in the survey thereof’ with ‘sufficient ground on either side of the center line of said drain’ in describing in plain language what the conveyance included.” It also directed the Court of Appeals to reconsider the claims impacted by the determination of whether the easement extends beyond the 50-foot strips that were disposed of on summary disposition under MCR 2.116(C)(7) and (8).