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STATE OF MICHIGAN COURT OF APPEALS

GLEN J. MATTHEWS, CAROL J. MATTHEWS, KEVIN P. MATTHEWS, STEPHANIE M. MATTHEWS, MARTIN B. SCHAEFFER, and ANN SCHAEFFER, Plaintiffs-Appellees, v DEPARTMENT OF NATURAL RESOURCES, Defendant-Appellant.

FOR PUBLICATION April 6, 2010 9:05 a.m.

No. 288040 Mecosta Circuit Court LC No. 05-016782-CH Advanced Sheets Version

Before: K. F. KELLY, P.J., and HOEKSTRA and WHITBECK, JJ. PER CURIAM. This case arises out of the alleged right of certain landlocked property owners to maintain and use a crude pathway (several hundred wooden pallets laid end-to-end) across a state-owned and -regulated wetland. Defendant, Department of Natural Resources1 (the Department), appeals as of right the trial court's order entering judgment in favor of plaintiffs, Glen Matthews, Carol Matthews, Kevin Matthews, Stephanie Matthews, Martin Schaeffer, and Ann Schaeffer2 (collectively, the landlocked property owners). The Department argues that the trial court erred by finding that privity existed between the landlocked property owners and their predecessors-ininterest when there was no mention of an easement in the deeds and it was undisputed that the issue of an easement was never discussed with the previous owners. The Department also contends that the trial court erred by allowing the landlocked property owners to place fill material in a regulated wetland without obtaining a permit.3 The landlocked property owners

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The Department of Natural Resources was abolished and replaced by the Department of Natural Resources and Environment, MCL 324.99919, effective January 17, 2010.

We note that the spelling of the surname "Schaeffer" varies in the record. However, for consistency, we will use this spelling throughout this opinion. Although the Department is responsible for administration and control of state-owned land, MCL 324.503(1), at the time of the lower court proceedings in this action, the Department of Environmental Quality was vested with authority for regulating uses of wetlands, MCL
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respond that the trial court properly found that they had established privity between them and their predecessors-in-interest on the basis of their prior use of the landlocked parcel. The landlocked property owners also contend that the trial court properly balanced common-law provisions against statutory provisions and held that the various rights sought to be protected by those laws weighed in favor of the landlocked property owners. We affirm in part and reverse in part. I. BASIC FACTS AND PROCEDURAL HISTORY In 1969, Arthur Funnell and his wife, Edna Funnell; their son, Melvin Funnell, and his wife, Betty Funnell; and their daughter, Joyce Schaeffer, and her husband, Robert Schaeffer (collectively, the Funnells), purchased the landlocked parcel, which consisted of 40 acres of property in Sheridan Township, Mecosta County, Michigan. Each of the three couples received an undivided 1/3 interest. The prior owners were Albert and Delila Anderson, who purchased the landlocked parcel from the state of Michigan in 1937. Arthur Funnell intended to use the landlocked parcel as a seasonal hunting camp. The landlocked parcel has no direct access to any public road. To the north and west, it is surrounded by state-owned property. And to the east and south, it is surrounded by private property. Plaintiff Glen Matthews testified at trial that his father-in-law, Arthur Funnell, had specifically sought out an inexpensive parcel of land and that he purchased the landlocked parcel with full knowledge that it was landlocked. Glen Matthews also testified that, although the family was not specifically looking for a landlocked parcel, landlocked land is less expensive than properties with road access. The state-owned land that surrounds the landlocked parcel on two sides is part of the Martiny Lakes State Game Area. The nearest maintained road is Madison Road, located approximately one mile to the north of the landlocked parcel. There is an old two-track logging road that extends from Madison Road through the state land. This two-track road ends approximately 0.22 miles short of the landlocked parcel. Over time, the Funnells transferred their ownership interests to the landlocked property owners. The landlocked property owners are all members of Arthur Funnell's family, either by blood or affinity. In February 1984, Arthur Funnell's widow, Edna Funnell, deeded her 1/3 interest to their daughter Carol Matthews and her husband Glen Matthews. In May 1996, Melvin Funnell's widow, Betty Funnell, deeded her 1/3 interest to her nephew, Martin Schaeffer, and his wife, Ann Schaeffer. And in January 1998, Robert Schaeffer's widow, Joyce Schaeffer, deeded her 1/3 interest to her nephew, Kevin Matthews, and his wife, Stephanie Matthews. The landlocked property owners and their predecessors (the Funnells) visited the property during hunting season in the late 1960s, accessing it by foot. Initially, they would walk across an adjacent parcel of privately owned land. However, shortly thereafter, the owner of that private land asked them to stop crossing that land, so the Funnells began parking at the end of a trail just off Madison Road, and would then walk the rest of the way across the state-owned land. Around 1975, they were able to drive a little further off Madison Road because the two-track road had 324.30301 et seq. The Department of Environmental Quality was abolished and replaced by the Department of Natural Resources and Environment, MCL 324.99919, effective January 17, 2010, and the powers and duties of the former department are now assigned to the Department of Natural Resources and Environment.

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been created for logging purposes on the state land. They were unable to drive further than the end of the two-track road because the ground was too wet and swampy. In the early 1970s, they began using snowmobiles to traverse the swamp and then later used all-terrain vehicles. From the time that the Funnells first acquired the landlocked parcel, they would place some dead wood from the surrounding forest in particularly wet areas of the state-owned land to help them traverse it. However, in 1984 or 1985, the landlocked property owners began to place wooden pallets on the ground in the swamp area to make it more passable. This resulted in the construction of a pathway of pallets that stretches 0.22 miles (or 1,200 feet), from the end of the two-track road to the landlocked parcel. The landlocked property owners testified that in addition to using the land as a hunting camp, they used the land and the cabin thereon essentially as a family retreat, with couples spending quiet weekends there together or with numerous family members gathering to celebrate holidays together. Glen Matthews testified that there was no discussion about access or an easement at the time the property was conveyed to him. Carol Matthews explained that there was no need for a specific discussion regarding access because Glen and Carol Matthews took it for granted that the two-track road and the pallet path were the sole means to get to the property. Carol Matthews also explained that the transfer of interest from the Funnells was just a formality because the landlocked property owners "were always involved." Martin and Ann Schaeffer similarly testified that there was no discussion about access or an easement at the time the property was conveyed to them because they had never accessed the property in any manner other than by going across the two-track road and the pallet path. Kevin Matthews, however, testified he and his uncles, Robert Schaeffer and Melvin Funnell, did have specific discussions about how to access the property before he took ownership. Kevin explained that Robert and Melvin told him that they had "pretty much exhausted any other alternatives on how to get in and out" and that the pallet path was the best route. The Department's wildlife habitat biologist, Jeffrey Greene, was assigned to Mecosta County in 1998. In the course of his duties, he noted that there was evidence of illegal activities on the state land between Madison Road and the landlocked parcel. He noticed dumping of trash, piles of new pallets at the end of the two-track road, and old pallets placed in the swamp south of the end of the two-track road. (Greene, however, did not suspect the landlocked property owners of dumping the trash, and the Department concedes that there is no reason to believe that they were responsible.) However, Greene testified that pallets harm the wetland by breaking down wetland vegetation and increasing soil erosion and sedimentation. Greene also testified that the pathway of pallets presented not only harm to the wetland, but also a danger to hunters on the state-owned land. According to Greene, the pallets were slippery, with nails protruding from them; thus, he was concerned about the safety of hunters who may walk on them.

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Additionally, Greene noted that the illegal use of motorized vehicles4 has resulted in harm to the wetland and was the very reason why the trail was becoming more difficult to traverse. The motorized vehicle usage had torn up the wetland and created holes, which vehicles could then sink into and get stuck. Because of these activities and the risks of harm to the hunters, wetland, and wildlife, Greene spoke with his supervisor about closing the two-track road. On August 21, 2003, a gate was placed off Madison Road, cutting off vehicular access to the two-track road. On August 25, 2003, Greene met with three of the landlocked property owners. Greene offered to issue a key to the gate and a use permit, which would allow the landlocked property owners to open the gate and access the two-track road for a period of one year. But the landlocked property owners did not respond. Greene also requested that the landlocked property owners assist him in removing the pallets and proposed that they could replace the pallets with proper walkways over the wetter spots of the trail. But the landlocked property owners declined this suggestion, instead inquiring about the possibility of obtaining an easement across the stateowned land from the Department. Greene provided them with the Department's easement application, but the landlocked property owners never applied because they heard that it was unlikely that the Department would grant their request. The landlocked property owners filed this action, alleging that they had a prescriptive easement to access their landlocked parcel through the state-owned land and to maintain the pathway of pallets through the state-owned wetland area. The landlocked property owners requested a judgment allowing them ingress and egress to the landlocked parcel by vehicle, allterrain vehicle, and snowmobile. (The landlocked property owners also alleged an implied easement, but that issue has not been raised again on appeal and we will not discuss it further.) On March 13, 2008, at the end of a three-day bench trial, the trial court ruled from the bench that the landlocked property owners had proven a prescriptive easement across the stateowned land to access their property. The trial court held that the landlocked property owners were required to demonstrate that they used state-owned land to access their parcel in a way that was open, notorious, and hostile for a period of 15 years before March 1, 1998 (the date on which a statute barred prescriptive easement actions against the state). The trial court found that a parol grant of an easement did occur because the landlocked property owners and their predecessors had continually used the pathway and had always assumed that they would be able to cross the state-owned land to access their property. According to the trial court, the behavior of the many parties having participated in going back and forth on this property, and clearly understanding that it was accessed by this easement, leaves no doubt that there was privity, leaves no doubt that there was parol

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It is illegal to use an off-road recreation vehicle (including a snowmobile or all-terrain vehicle) in a state game area except on roads, trails, or areas designated for such purpose. MCL 324.81133(e). Additionally, it is illegal to operate an off-road recreation vehicle in a wetland. MCL 324.81133(o). It is not illegal to travel by foot through a state game area.

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indications or information known or made known to these parties at the time the property was conveyed from one family member or a group of family members to another family member or a group of family members. I am not saying there were actual words, but I think the activities of using the property for such a long time left no doubt as to what was understood to be part of the conveyance. In April 2008, the trial court issued a posttrial written judgment. The trial court confirmed its holding that the landlocked property owners had established a prescriptive easement. However, the trial court requested that the parties submit posttrial briefs on the issue of the scope of the prescriptive easement. On September 11, 2008, after receiving the posttrial briefs and conducting a telephone conference, the trial court issued a written opinion and order. The trial court first cited caselaw indicating that easement holders are generally allowed to do such acts as are necessary to make effective use and enjoyment of the easement and that the scope of the easement is largely determined by what is reasonable under the circumstances. The trial court then turned to the provisions of the Natural Resources and Environmental Protection Act (NREPA), which prohibits people from placing fill material in the wetlands.5 The trial court acknowledged that "[a]llowing Plaintiffs to continue to use the easement as they have historically done would appear to violate the above provisions of [the NREPA]" but then qualified that statement by stating that the trial court could "excuse[]" the violation "by [its] decision that a prescriptive easement has been established." The trial court went on to note that the NREPA did allow for certain easement exceptions for construction of various types of roads and pipelines, and then stated that "[w]hile Plaintiffs' easement does not fit into one of these categories, it is apparent that the Legislature recognized that certain other rights would be balanced against, and in some cases take priority over the protection of wetland areas through elimination of any possibly intrusive activities." The trial court then explained its understanding that the landlocked property owners' use of the private property would be materially curtailed if they are not allowed to place something on the path to allow motorized vehicles to travel to and from their private property. Walking or skiing would be the only means of ingress and egress at times when the ground and/or water are not frozen. Based on age and physical limitations, this limits the ability of some of the plaintiffs to visit the property. It also limits hauling of supplies and other items during deer hunting season and again limits participation in this activity by some of the plaintiffs. The trial court also acknowledged that the state had significant interests in protecting the integrity and value of the wetlands. The trial court then went on to note the difficulty in attempting to strike a balance between the parties' competing interests: "Both interests are significant, and it is well recognized that they are to be protected. So, what is the balance to be struck?"

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MCL 324.30304(a).

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The trial court "reject[ed]" the Department's recommended solutions: Requiring permitting likely means that numerous steps must be taken, which likely would include the installation of a boardwalk, engineered floating pads, or a similar structure by Plaintiffs over the full .22-mile path. Based on the limited relevant testimony at trial, a cost of $40,000 or more was suggested for installation of a boardwalk. The Court finds that requiring a boardwalk or engineered floating mat over the full .22 miles [sic] path is unreasonable. It would likely be prohibitively expensive for plaintiffs and also likely would in effect deny Plaintiffs the reasonable enjoyment of their property rights. The trial court then continued: Moreover, adopting Defendant's proposed solution would require Plaintiffs to seek permits and approval for their uses from Defendant, effectively placing the determination of the scope of the easement (or the existence of the easement at all) in the hands of the Defendant and not the Court. Effectively, this would mean the Plaintiffs had achieved nothing in establishing the existence of the easement. Despite the possibility that the Plaintiffs might be able to comply with the permitting process and still enjoy the benefits of their easement, the likely outcome of the process is speculative on this record. Plaintiffs likely would have no greater rights than the general public with respect to their easement. Although noting the potential harm to the wetland ecosystem by continued use of the pallets, the trial court nevertheless ruled that the landlocked property owners could continue to maintain and use their makeshift pallet pathway to traverse the regulated wetland without applying for or obtaining a statutorily required permit from the Department of Environmental Quality. The Department now appeals the trial court's rulings that the landlocked property owners demonstrated the requisite privity to allow them to tack their periods of prescriptive use with those of the predecessors-in-interest and that the landlocked property owners could place fill material and maintain a use in a wetland without obtaining a permit from the Department of Environmental Quality. II. TACKING AND PRIVITY A. STANDARD OF REVIEW The Department argues that the trial court erred by finding that privity exists when there was no mention of an easement in the deeds and it was undisputed that the issue of an easement was never discussed with the previous owners at the time of the conveyances.

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Actions to quiet title are equitable, and we review the trial court's holdings de novo.6 However, we review the trial court's findings of fact for clear error.7 B. ANALYSIS Generally, the period of limitations for the recovery or possession of land is 15 years.8 However, it is well settled that "[t]he statute of limitations for recovering real property does not run against the state or state agencies, . . . unless there is legislation to the contrary."9 Before March 1, 1988, legislation to the contrary did exist that allowed claims of adverse possession or prescriptive easement against the state.10 Effective March 1, 1988, however, the Legislature, in 1988 PA 35, amended MCL 600.5821(1) and reinstated the common-law rule that one cannot acquire title to state-owned property through adverse possession or prescriptive easement.11 MCL 600.5821(1) now provides: Actions for the recovery of any land where the state is a party are not subject to the periods of limitations, or laches. However, a person who could have asserted claim to title by adverse possession for more than 15 years is entitled to seek any other equitable relief in an action to determine title to the land. Interpreting the amended MCL 600.5821(1), this Court has held that, because the Legislature removed the prior language that permitted the running of the limitations period, the period of limitations for adverse possession can no longer run against the state.12 This Court clarified, though, that "

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