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Marlette Auto Wash, LLC v. Van Dyke S.C. Properties, LLC

Supreme Court of Michigan

March 19, 2018

MARLETTE AUTO WASH, LLC, Plaintiff-Appellant,
v.
VAN DYKE S.C. PROPERTIES, LLC, Defendant-Appellee.

         Syllabus

         This syllabus constitutes no part of the opinion of the Court but has been Reporter of Decisions: prepared by the Reporter of Decisions for the convenience of the reader.

          Argued November 8, 2017

          Chief Justice: Stephen J. Markman Justices: Brian K. Zahra Bridget M. McCormack David F. Viviano Richard H. Bernstein Kurtis T. Wilder Elizabeth T. Clement

         Plaintiff, Marlette Auto Wash, LLC, brought an action in the Sanilac Circuit Court, claiming that it had an easement through a parking lot owned by defendant, Van Dyke S.C. Properties, LLC, for customers to access a car wash that plaintiff had purchased in 2007. Defendant brought a counterclaim, seeking to quiet title and obtain monetary damages for expenses relating to maintenance of the parking lot. The parties' parcels were originally owned by Bernard and Evelyn Zyrowski as a single unimproved tract of land at the corner of a highway and a village street. In 1988, the Zyrowskis conveyed the land to B & J Investment Company, which was owned by Bernard and his son James Zyrowski, and the land was split into two parcels. B & J opened a car wash on the corner parcel in 1989. Although the car wash was initially accessible from both the highway and the street, car wash customers generally used the parking lot of the adjoining parcel to get to and from the car wash. This adjoining parcel was sold to Marlette Development Corporation in 1988, which opened a shopping center in 1990. When Marlette Development's deed was recorded, no easement was reserved for the benefit of the car wash property, and car wash customers continued to use the parking lot for access. In 2000, the village of Marlette closed the street entrance to the car wash, leaving an inconvenient turn from the highway as the only access apart from the parking lot. Car wash customers continued to use the parking lot for access without incident until Marlette Development sold its property to defendant in 2013. At this point, defendant's sole owner-James Zyrowski, former co-owner of B & J Investment, which had sold the car wash in 2005-informed plaintiff that unless it contributed $1, 500 a month to maintain the parking lot, Zyrowski would park trailers at the property line, closing off access to the car wash through the parking lot. Plaintiff refused, and this lawsuit followed. The court, Donald A. Teeple, J., ruled that a prescriptive easement benefiting the car wash had vested in 2005, and it rejected defendant's counterclaim for parking lot expenses because the evidence supporting the claim had not been disclosed to plaintiff before trial. In an unpublished per curiam opinion, the Court of Appeals, Murphy, P.J., and Cavanagh and Ronayne Krause, JJ., affirmed the trial court's decision excluding defendant's counterclaim evidence but reversed concerning the easement claim on the grounds that plaintiff had failed to establish privity of estate with the previous owner and no previous owner of the car wash had asserted a claim of prescriptive easement with regard to defendant's property. Marlette Auto Wash, LLC v Van Dyke S.C. Props, LLC, unpublished opinion of the Court of Appeals, issued May 10, 2016 (Docket No. 326486). The Supreme Court granted plaintiff's application for leave to appeal. 500 Mich. 950 (2017).

         In a unanimous opinion by Justice Wilder, the Supreme Court held:

         Michigan caselaw establishes that the open, notorious, adverse, and continuous use of property for the relevant statutory period creates a prescriptive easement that is appurtenant, without the need for the claimant to show privity of estate with the prior owner. Moreover, the prior owner of the dominant estate is not required to take legal action to claim the easement in order for a vested prescriptive easement to exist. Because the Court of Appeals erred by concluding otherwise, the judgment of Court of Appeals was reversed in part and the case was remanded to that Court for consideration of any remaining appellate issues.

         1. A party claiming adverse possession must show clear and cogent proof of possession that is actual, continuous, open, notorious, exclusive, hostile, and uninterrupted for the relevant statutory period. When the elements of adverse possession have been met, the law presumes that the true owner, by acquiescence, has granted the land, or interest to the land, so held adversely. The elements necessary to give rise to a prescriptive right are the same as those of title by adverse possession, with the exception that possession does not have to be exclusive. If no single period of adverse use amounts to the 15-year statutory period, a party claiming a prescriptive interest may tack the possessory periods of their predecessors in interest to aggregate the 15-year period of prescription if the claimant can show privity of estate. Privity of estate may only be established if the deed includes a description of the disputed property, there was an actual transfer or conveyance of the disputed property by parol statements made at the time of conveyance, or a property owner is well-acquainted with the previous property owner and had visited and used the disputed property for many years before acquiring title. It was not necessary for plaintiff to have used defendant's property for 15 years or to establish privity of estate because Michigan caselaw makes clear that a claimant seeking to prove the existence of a prescriptive easement may establish that the requisite elements were met by the claimant's predecessor in interest. When a prescriptive easement vests with the claimant's predecessors in interest, the easement is appurtenant and transfers to subsequent owners in the property's chain of title without the need for the subsequent owner to establish privity of estate. The fact that property has been used in excess of the prescriptive period for many years is not pertinent to whether the requirements of a prescriptive easement have been met, nor is it germane to whether the proponent of the easement is required to establish privity of estate with a predecessor in the proponent's chain of title under whose ownership a prescriptive easement had vested. Rather, when the parties seek a judicial determination conclusively settling their respective property interests, and the proponent of the alleged easement provides evidence that the easement has been used in excess of the 15-year prescriptive period by many years, the burden of production is then shifted to the opponent of the easement to establish that the use was merely permissive.

         2. The Court of Appeals erred by concluding that plaintiff's claim failed because no previous owner of the car wash asserted a claim of prescriptive easement over defendant's property. If a prior property owner had successfully asserted a prescriptive easement claim, marketable title of record as a result of the previous judicial decree would already exist for the property, and the current property owner would have no reason to file a lawsuit seeking to establish record title to the property by prescriptive easement. Moreover, one gains title by adverse possession when the period of limitations expires, not when an action regarding the title to the property is brought. Defendant's concern that a contrary holding would recognize the existence of secret easements not apparent to the purchaser of the servient estate was unfounded given that, in order to successfully establish a prescriptive easement, a plaintiff must show clear and cogent proof of possession that is so open, visible, and notorious as to raise the presumption of notice to the world that the right of the true owner is invaded intentionally in such a way that if the true owner remains in ignorance it is that person's own fault. In addition, a prescriptive easement is extinguished after 15 years of nonuse by the owner of the dominant estate, and a purchaser who did not know about the existence of a claim of title will be regarded as a bona fide purchaser without notice if the land is not adversely held by a party in possession at the time of purchase.

         Reversed in part and remanded to the Court of Appeals.

          OPINION

          Wilder, J.

         In this case, plaintiff claims a prescriptive easement for ingress and egress over defendant's property on the basis of plaintiff's open, notorious, adverse, and continuous use of that property for at least 15 years. The question presented here is whether such use creates a prescriptive easement that is appurtenant, without regard to whether the previous owner of the dominant estate took legal action to claim the easement. The answer to that inquiry is yes.

         MCL 600.5801(4), which provides for a 15-year period of limitations, is not contingent on whether the prior owner of the dominant estate took legal action to claim the prescriptive easement. Moreover, our caselaw establishes that one seeking to obtain record title of a prescriptive easement may establish that the elements were met by a prior owner in the claimant's chain of title. When a prescriptive easement has vested under a previous property owner's possession, the easement is appurtenant and is conveyed to subsequent owners in the chain of title without the need to show privity of estate. Wortman v Stafford, 217 Mich. 554; 187 N.W. 326 (1922); Haab v Moorman, 332 Mich. 126; 50 N.W.2d 856 (1952).

         The Court of Appeals erred by requiring plaintiff to establish privity of estate with the previous owner, regardless of whether plaintiff could establish that the elements of a prescriptive easement were satisfactorily met by that prior owner. Moreover, the Court of Appeals erred by holding that the previous owner of the dominant estate must have taken legal action to claim the prescriptive easement in order for plaintiff to prove that a prescriptive easement had vested during the preceding property owner's tenure. Title by adverse possession is gained when the period of limitations expires, not when legal action quieting title to the property is brought. See Gardner v Gardner, 257 Mich. 172, 176; 241 N.W. 179 (1932); Matthews v Natural Resources Dep't, 288 Mich.App. 23, 37; 92 N.W.2d 40 (2010). We reverse the Court of Appeals judgment in part and remand to that Court for consideration of any outstanding appellate issues in this case.

         I. FACTS AND PROCEEDINGS

         In early 1988, Bernard and Evelyn Zyrowski owned a single unimproved tract of land at the corner of M-53 and Enterprise Drive (which later came to be known as Euclid Street) in Marlette, Michigan. The land was conveyed to B & J Investment Company, which was owned by Bernard Zyrowski and his son James Zyrowski. The land was split into two parcels.

         In the summer of 1988, B & J Investment began construction of a car wash on one of the two parcels. The remaining parcel was sold to Marlette Development Corporation by land contract on October 5, 1988. The car wash began operating in 1989, and from that date onward customers of the car wash used the parking lot of the other parcel as one means of ingress to and egress from the car wash. In March 1990, Marlette Development's land contract was paid off and the deed recorded. No easement was reserved for the benefit of the car wash property. Several months later, Marlette Development Corporation opened a shopping center on their property.

         In March 2000, the village of Marlette closed the north entrance to the car wash from Euclid Street. After the entrance was closed, B & J Investment expanded the car wash, adding four additional car wash bays across that newly closed entrance. Closing the north entrance left two ways to access the car wash: (1) from M-53, and (2) through the shopping center parking lot. The M-53 access was problematic, however, because it required customers to drive through a (sometimes occupied) semi-truck car wash bay in order to access the western portion of the car wash property. Access to this portion of the property was necessary for all those customers wishing to use the automatic car wash bays or the four newly built self-service car wash bays. Local residents testified that they never saw anyone access the car wash by the M-53 entrance because it was a dangerous turn.

         In April 2005, B & J Investment sold the car wash to Lipka Investments. At closing, Gary Lipka inquired how customers were to access the western portion of the car wash property. He was informed by Zyrowski that the car wash had been accessed through the shopping center parking lot since the car wash opened and that the parking lot was owned by the "Marlette Business Group." After talking to Zyrowski, Lipka believed that there would be no issue with the ...


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