Scope of express easement; Right to construct second pipeline; Plain language of easement; Extrinsic evidence; 2002 clearing agreement; Acquiescence; Necessity of proposed use; Unreasonable burden on servient estate; Little v Kin; Rule against suspension of absolute power of alienation; Former MCL 554.14 & 554.15; Whether second-pipeline right was an option; Rex Oil & Gas Co v Busk; Attorney fees & costs; Appellate jurisdiction; MCR 7.202(6)(a)(iv); Michigan Public Service Commission (MPSC)

The court held that plaintiff-utility (Consumers) had an express right to construct a second gas pipeline across defendants-property owners’ land and that the project was necessary for effective use of the easement, but a factual dispute remained as to whether the proposed location and construction method would unreasonably burden the servient estate. A 1948 right-of-way agreement authorized “one or more” gas mains, expressly permitted up to two pipelines, and allowed the second to be constructed after completion of the first. Consumers proposed placing a new 36-inch pipeline approximately 30 feet from the existing line. The trial court granted Consumers summary disposition. On appeal, the court concluded that the easement was unambiguous and “expressly permits” construction of a second pipeline. Its description of the general route was sufficiently definite, and a 2002 letter limiting vegetation clearing to a 50-foot strip around the existing line did not modify the location rights applicable to a second pipeline. The court also declined to apply acquiescence because that doctrine concerns ownership boundaries rather than the scope of an easement. But under Little, authorization in the easement was “not the end of the inquiry.” The court also had to determine whether the particular improvement was necessary to effective use of the easement and whether it unreasonably burdened the servient estate. “Reasonable minds could not disagree” that the necessity requirement was met, particularly given the MPSC’s findings concerning corrosion, capacity, system resiliency, and the reasonableness of the selected route. But defendants raised a genuine factual dispute over unreasonable burden by identifying alternative construction methods, additional surface disturbance, and potential destruction of mature boundary trees. Thus, the court reversed in part and remanded that issue for further proceedings. It rejected defendants’ arguments that the right to build the second pipeline created a void future estate or an option that expired after a reasonable time because the granting clause conveyed a present easement right “[f]orever.” The court dismissed without prejudice defendants’ attorney-fee challenge because the order awarded fees without determining an amount and therefore was not a final appealable order. Affirmed in part, reversed in part, dismissed in part, and remanded.