188 N.W.2d 633 | Mich. Ct. App. | 1971
DYER
v.
THURSTON
Michigan Court of Appeals.
Cooke & Aldrich (by Andrew Cooke), for plaintiffs.
Vandervoort, McFee, Christ & Carpenter (by Robert D. McFee), for defendants.
Before: FITZGERALD, P.J., and HOLBROOK and BRONSON, JJ.
Leave to appeal denied, 385 Mich 770.
PER CURIAM.
Plaintiffs-appellants and defendants-appellees are adjoining landowners. At one time both properties were owned by one owner. For a good number of years in the past there had been joint use by the residents of the two properties of a path that runs from defendants' property, across plaintiffs' property, and thence to a lake. Plaintiffs in 1967 became unwilling to allow defendants to use the pathway and constructed a fence across their *343 property. Defendants took down the fence and continued to use the pathway.
The lower court, sitting without a jury, found that defendants had a prescriptive easement and, thus, were entitled to use the pathway to the lake and to keep a small rowboat at the site.
Plaintiffs appeal, raising 11 issues, all of which condense to whether or not the trial court was correct in ruling that defendants had a prescriptive easement.
The basic elements for a prescriptive easement are:
(1) Continued and uninterrupted use or enjoyment;
(2) Identity of the thing enjoyed, and;
(3) A claim of right adverse to the owner of the soil, known to or acquiesced in by him. 8 Callaghan's Michigan Civil Jurisprudence, Easements, § 15; Village of Manchester v. Blaess (1932), 258 Mich 652.
Concerning the adverse claim of right requirement, there is a presumption that arises in certain circumstances. A conclusive presumption arises that the right originated in a grant when the use has continued for many years, as in the instant case, and no proof of whether the claimed prescriptive easement originated in written grant or oral permission is available. 8 Callaghan's Michigan Civil Jurisprudence, Easements, § 15. The plaintiffs thus had the burden to show that the use was merely permissive. Engleman v. City of Kalamazoo (1925), 229 Mich 603, 607.
In this case, there was no proof as to whether the claimed prescriptive easement originated in written grant or oral permission, so a conclusive presumption arose that the right originated in a grant.
*344 Plaintiffs further contend that the pathway easement is void because not mentioned in the title documents. There is ample authority for the proposition that, once established, an easement appurtenant passes by the deed of the dominant estate although not expressly mentioned in the instrument of transfer, and even without the word "appurtenant". See Haab v. Moorman (1952), 332 Mich 126, 143, 144, and cases cited therein.
As for plaintiffs' contention that the use of the pathway by defendants was not continuous, it is inherent that continuous use does not mean constant use. A pathway easement to a summer cottage is considered to be in continuous use if it is used merely seasonally. This use would be in keeping with the nature and character of the right claimed. Von Meding v. Strahl (1948), 319 Mich 598, 613. The finding of the trial court that the easement was in continuous use was not clearly erroneous. GCR 1963, 517.1.
Therefore, the lower court should be, and hereby is, affirmed. Costs to appellees.
