An easement may be created by an express grant—which requires the instrument of conveyance to contain language that shows a clear intent to create an easement. Like any instrument that creates or affects an interest in land, an easement must be in writing to satisfy the statute of frauds. An express easement is treated and interpreted like a contract:
Because the language of the instrument determines the scope of the easement holder’s rights, make sure you fully explain what it is that you want. Do you only want to have the right to access the lake for fishing and swimming, or would you also like to permanently anchor a boat? What about starting a bonfire on the beach?
Also, as a side matter, the instrument creating the easement can go as far as assigning the responsibility to make and pay for improvements. It is thus advisable to see an attorney when it comes to drafting easements. To illustrate how important the language is, a Michigan case involved an easement that stated: “This easement is provided for access to the River and shores of Loon Lake by property owners in this subdivision.” There, the Supreme Court affirmed the lower court’s holding that the easement granted only a “right of access to the use of the water” for the purpose of “swimming, fishing, bathing, wading and boating.” However, such easement did not grant the right to “sunbathe” or to permanently moor. And even though the easement holders had the right to carry their boats to the waters, they could not store them permanently on the easement way, nor attach them to stakes driven into the land.2
Imagine you own two parcels of property, with only one of them abutting the lake. Is there a way to sell one and “reserve” the right to access the lake from another? An easement by reservation is the way to do it. That is, you would sell the property abutting the lake and, in the same instrument of conveyance, you would reserve an easement in favor of the backlot parcel. However, keep in mind that reserving a “right of way” for access does not give rise to riparian rights, but only the right of ingress and egress.3
As far-fetched as this concept may seem, you would be surprised how many cases involve a dispute regarding whether a prescriptive easement has been created. That is, by virtue of using the land of another in a certain manner and for a fixed amount of time, you are entitled to claim an easement over that land. In legal terms, when a piece of land is being used to access a waterbody, you might be able to claim a “prescriptive easement” if all the statutory requirements are met.
In the majority of states, a prescriptive easement results from using another’s property in an open, notorious, adverse, and continuous manner.4 It is important, however, to recognize that the requirements vary from state to state. In Michigan, for example, the person seeking a prescriptive easement bears the burden of demonstrating that the land has been used in such a manner for a period of 15 years.5
Use in an open and notorious manner simply means that the use of the property is not hidden. The use must be reasonably expected to provide the owner of the land with notice, and an opportunity to assert his or her rights. In other words, secretly using your neighbor’s property over the years to access a waterbody is not enough.
Adverse use is use that is inconsistent with the owner’s rights of the land being used. This means the use of land cannot be based on the landowner’s permission, and it must be that such use entitles the landowner to sue for trespass.6 Some states require that the use is also “under cover of claim or right.” In other words, you believed you had the right to use the path or that you owned the portion in dispute. This element always seems to be in dispute, especially when the court analyzes the communications that took place before the dispute arose.
To illustrate, one case7 involved a family that used a parcel of land with frontage on Burt Lake, Michigan, for picnicking, swimming, sunbathing, placing dinghies, and launching boats. They used that parcel for about 45 years, until their new neighbors erected a seawall that extended across part of the disputed area. The wall prevented the family from using the parcel as they always did, so they filed suit. Unfortunately, the family lost the case because the evidence revealed that they had once offered to purchase the disputed area, which, in turn, served as a recognition that the new neighbors possessed
superior title over that family.
Whether use is continuous depends on the nature of the use. For example, if you own a summer home and had been using the walkway at issue for 15 years every summer, such seasonal use is considered to be continuous use in most states. However, imagine that in one of these summers, the owner of the parcel you have been using to access the lake asserts his or her ownership. Or even worse, sues you for trespass. Such actions by the true owner are deemed sufficient to “interrupt” the continuity required to prove an easement by prescription.
1Wiggins v City of Burton, 291 Mich. App. 532, 551-552 (2011).
2Delaney v. Pond, 350 Mich. 685, 688 (1957).
3Dyball v Lennox, 260 Mich. App. 698, 706 (2004).
4Heydon v. MediaOne, 739 N.W.2d 373, 377 (Mich. App. 2007).
5Heydon v. MediaOne, 739 N.W.2d 373, 377 (Mich. App. 2007).
6Goodall v. Whitefish Hunting Club, 208 Mich. App. 642, 646 (1995).
7Swayze v. McMamee, Case no. 333793, 2017 WL 4654680, at *2 (Mich. App. Oct. 17, 2017).
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