Prescriptive easement; Hostility or adversity; Plymouth Canton Cmty Crier, Inc v Prose; A license; Kitchen v Kitchen

The court affirmed the trial court’s judgment of no cause of action on the basis that defendants were not liable for trespass or nuisance because they held a prescriptive easement. Nonparty-Groak originally owned all the property. He retained the parcel abutting Higgins Lake (the servient estate) and sold the other two to Howard and Mable Diehl and to Lyle and Yvonne Scott (predecessors in interest to two defendants). “Groak granted a 20-foot-wide easement across his parcel ‘for access to Higgins Lake[.]’” A dock that extended from the easement was installed and used “by the Diehls, Lyle, and Yvonne, as well as their family and guests.” They moored boats, installed boat hoists, and used the easement for other recreational activities. There was no evidence they were given permission to engage in these activities. Robert and Mary Ann Russom, the original plaintiffs, purchased the servient estate. They informed defendants that the easement language only allowed access to Higgins Lake and no other uses of the easement or the area extending from it would be permitted. They later sold the property to plaintiffs. The court concluded that the evidence established “the Russoms did not provide Lyle and Yvonne with permission to use the property in any manner other than to access Higgins Lake.” Although it supported that “the Russoms believed that Howard represented Lyle and Yvonne’s interests, there is no evidence that Howard had authority to negotiate on their behalf. Rather, as noted by the trial court, it was merely the Russoms’ impression that this was the case.” Further, there was no indication that “Howard had informed them of the ‘deal’ that he had made with Robert.” Howard, Lyle, and Yvonne did not testify. “Even more importantly, Robert and Mary Ann clarified that they did not have an explicit verbal agreement with either Lyle or Yvonne.” Thus, the trial court did not clearly err by concluding that “the permission granted to Howard by the Russoms did not extend to Lyle and Yvonne and that Lyle and Yvonne therefore continued to utilize the easement in an adverse or hostile manner after Robert and Howard discussed” its use in 1981. Although the evidence supported that Robert gave Howard “permission to place a dock and moor boats in the area extending from the easement and to store the dock on the easement, the trial court found that this amounted to an oral license and that Howard’s permission was revoked” upon the transfer of the Diehls’ property in 1993. “This was not in error.”