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Can You Expand an Easement by Prescription?

Written by Lawrence Opalewski on May 6, 2022 Category: Easements and Riparian Rights, Land Use and Zoning, Michigan Land Use and Zoning

Most property owners in Michigan will come across easements at some point. As we know, an easement is the right to use someone else’s property for a specific purpose. Sometimes easements can be overused for purposes that were not originally intended. For example, maybe an owner granted an easement for foot access to a lake, but never intended to allow a dock to be installed. Over time, easement holders may expand their use, sometimes understandably so.

So, what happens when the property owner, for one reason or other, wants to enforce the written terms of the easement? Can the easement holder claim to have established additional rights through prescription?

A prescriptive easement results from use of another’s property that is open, notorious, adverse, and continuous for a period of fifteen years. The question was recently posed to the Michigan Court of Appeals of whether an existing easement can be expanded by meeting the elements of a prescriptive easement.

In Astemborski v Manetta, Defendants held an easement over Plaintiffs’ property which granted them “access” to a lake. Over time, Defendants installed a dock on the easement, moored boats, and engaged in other activity not described in the easement. Wanting to stop these activities, Plaintiffs sued Defendants for trespass.

Defendants claimed they had established a prescriptive easement to continue maintaining a dock and mooring boats on the easement. The Court of Appeals first noted that the original access easement did not convey riparian rights. The next issue was whether a prescriptive easement could be established “on top of” an existing express easement.

In holding that it was possible to expand an express easement by prescription, the Court of Appeals noted that the “adversity” element of a prescriptive easement merely requires that the activities in question are “without permission asked or given.” Therefore, overburdening an easement without permission satisfied the “adversity” element.

It should be noted that the court’s holding only applied to express easements. It did not apply to land that is privately dedicated, such as a platted park or outlot. There is existing Michigan case law which suggests that a private dedication of land may not be expanded by prescription.

The attorneys at Dalton & Tomich have extensive experience with easements and other land use issues. If you have questions or feel your rights are being violated, please do not hesitate to contact us. We would be happy to speak with you.

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