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03/09/76 MUMROW v. RIDDLE

March 9, 1976

MUMROW
v.
RIDDLE



Appeal from Genesee, Ollie B. Bivins, Jr., J.

N. J. Kaufman, P. J., and M. F. Cavanagh and T. M. Burns, JJ.

SYLLABUS BY THE COURT

1. Adverse Possession -- Property -- Real Estate -- Hostile Use -- Adverse Intent.

Adverse or hostile use is use inconsistent with the right of the owner, without permission asked or given, use such as would entitle the owner to a cause of action against the intruder; the term "hostile" as employed in the law of adverse possession does not imply ill will, nor is the claimant required to make express declarations of adverse intent during the prescriptive period.

2. Easements -- Prescriptive Easements -- Adverse Possession.

A party acquires an easement by prescription for a driveway over a corner of his neighbor's land where the driveway is in continuous use for 20 years, the circumstances are such that the owner should have been aware of the use of his property and the present owner testifies that he was in fact aware of the use, permission to use the portion of land was never asked for nor granted, and the parties had never discussed the matter.

3. Easements -- Prescriptive Easements -- Adverse Possession -- Statutory Periods -- Date of Commencement -- Statutes.

The date of commencement of the statutory 15-year period of adverse use for purposes of establishing an easement by prescription is the date on which such use began where the party claiming the easement has been in continuous possession and use for longer than the statutory period; periods of ownership of the servient estate are tacked (MCLA 600.5801; MSA 27A.5801).

4. Easements -- Prescriptive Easements -- Enjoyment -- Burden on Servient Tenement -- Reasonableness.

Generally, one who has an easement by prescription has the privilege to do such acts as are necessary to make effective the enjoyment of the easement, unless the burden upon the servient tenement is thereby unreasonably increased, and what is reasonable is largely a function of the circumstances.

5. Easements -- Prescriptive Easements -- Repairs or Improvements -- Tests.

The test of whether a repair or improvement upon a prescriptive easement is justified is twofold: First, is the repair or improvement necessary to effective enjoyment of the easement, and second, if necessary, does it unreasonably increase the burden on the servient tenement.

6. Easements -- Prescriptive Easements -- Improvements on Easements -- Paving Driveways -- Burden on Land.

A party who has acquired an easement by prescription over a neighbor's land through the use of a portion of that land as a gravel driveway for over 20 years may not pave the portion of the driveway located on the easement where there is no showing that such an improvement is necessary, ...


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