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STATE OF MICHIGAN COURT OF APPEALS

GLENN BOTMA and CHARMAINE BOTMA, Plaintiffs/Counter-DefendantsAppellees, v JAMES MERCER and MARILYN MERCER, Defendants/Counter-PlaintiffsAppellants.

UNPUBLISHED December 15, 2009

No. 287721 Newaygo Circuit Court LC No. 06-019054-CZ

Before: Beckering, P.J., and Cavanagh and M. J. Kelly, JJ. PER CURIAM. In this property dispute, plaintiffs filed suit to establish an easement over property owned by defendants. Defendants appeal as of right the trial court's September 8, 2008, order granting summary disposition to plaintiffs, dismissing defendants' counterclaim, assessing sanctions against defendants and their counsel, and denying defendants' motion for disqualification of the trial court judge. We affirm. I. Facts and Procedural History The parties own adjoining properties in Section 29 of Brooks Township, Newaygo County, Michigan. The southern boundary line of the properties is the southern line of Section 29. Defendants' property lies immediately to the west of plaintiffs' property. Both properties are landlocked, with ingress and egress afforded by a common, unimproved drive. The access route connects the parties' properties to the nearest public road, 88th Street. In order to access 88th Street from their property, plaintiffs must travel west over defendants' property, as well as property referred to by the parties as the Wierenga property, which is located immediately to the west of defendants' property. Plaintiffs allege that the access route was always located in the southernmost portion of the parties' properties, just to the north of the section line, and that defendants have only recently attempted to "push" the route south of the section line by driving steel fence posts into the access route, gradually moving the posts south, and placing boards with nails sticking upward on the access route, forcing vehicles south. Defendants, on the other hand, deny such allegations and claim that the majority of the access route was always located south of the section line on property referred to by the parties as the Flemmings property.

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According to the title documents plaintiffs submitted to the trial court, William and Bertha Faust originally owned the parties' properties. In August 1943, the Fausts entered into a land contract with Dale Blush and Connie Blush (a/k/a Leira Blush and Leira Nickett) for a portion of the property now owned by plaintiffs, referred to by plaintiffs as "parcel #1." The Fausts conveyed title to the Blushes in May 1944. In October 1953, the Blushes purchased additional property from the Fausts, referred to by plaintiffs as "parcel #2." The warranty deed conveying title to the Blushes reveals that parcel #2 completely encompassed parcel #1. After the conveyance, the Blushes owned the entirety of the property now owned by plaintiffs. Leira and her predeceased husbands held title to the property until July 2004, when she conveyed title to her granddaughter, plaintiff Charmaine Botma, through a series of divestments. In August 2006, Charmaine conveyed title to herself and her husband, plaintiff Glenn Botma, as tenants by the entireties. The Fausts retained title to the property now owned by defendants until July 1955 when they sold it to Loyal and Lois Herr. Lois was Leira's sister. In December 1982, the Herrs conveyed title to themselves and their daughter Elaine Mercer as joint tenants. In April 1989, after Loyal had died, Lois conveyed her remaining interest in the property to Elaine. In August 1992, Elaine entered into a land contract for the property with her son and daughter-in-law, defendants in this action. Elaine conveyed title to defendants in August 2004. The parties agree that from the time the Fausts owned the properties at issue, the parties and their predecessors in interest have used the unimproved drive running along the southern boundary of their properties as an access route to and from 88th Street. They further agree that there was never any dispute regarding the use or location of the access route until approximately 2005. Plaintiffs initiated this action in August 2006, filing suit against defendants to quiet title and establish a prescriptive easement, trespass, and a permanent injunction. Defendants subsequently filed a counterclaim for trespass and nuisance. Plaintiffs then moved to amend their complaint and the trial court granted their motion. Plaintiffs filed their amended complaint in January 2007, adding a claim to establish an easement by necessity. In August 2007, plaintiffs moved for summary disposition under MCR 2.116(C)(10), arguing that they were entitled to an easement by necessity. At the hearing on the motion, the trial court held that regardless of the historic location of the access route, plaintiffs were entitled to an easement by necessity over defendants' property because plaintiffs' property was landlocked by a common grantor. At a subsequent hearing, the trial court again explained its ruling with regard to plaintiffs' motion for summary disposition and clarified that it had dismissed defendants' counterclaim. The court subsequently issued its September 8, 2008, order granting summary disposition to plaintiffs, dismissing defendants' counterclaim, assessing sanctions against defendants and their counsel, and denying defendants' motion for disqualification of the trial court judge. Defendants now appeal as of right. II. Plaintiffs' Motion for Summary Disposition and Defendants' Counterclaim Defendants first argue that the trial court erred in granting plaintiffs summary disposition. We disagree. A grant or denial of summary disposition is reviewed de novo to determine if the moving party is entitled to judgment as a matter of law. Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999). A motion under MCR 2.116(C)(10) tests the factual sufficiency of a claim. Id. at 119-120. All substantively admissible evidence submitted by the parties is reviewed in the -2-

light most favorable to the nonmoving party and summary disposition is appropriate only when the evidence fails to establish a genuine issue regarding any material fact. Id.; MCR 2.116(G)(6). In describing an easement by necessity, this Court has held: An easement by necessity may be implied by law where a landowner splits its property so that one of the resulting parcels is landlocked except for access across the other parcel. An easement by necessity arises either by grant or reservation: by grant in a case where the grantor created a landlocked parcel in its grantee, or by reservation where the grantor splits its property and leaves itself landlocked. In either case, the party asserting the right to the easement by necessity must demonstrate that the easement is "reasonably necessary, not strictly necessary, to the enjoyment of the benefited property." An easement by necessity is based on "the presumed intent of the parties," as well as public policy that "favors the productive and beneficial use of property." Where a conveyance deprives the landowner of access to its property, access rights will be implied unless the parties clearly indicate a contrary intention. The use of an easement must be confined to the purposes for which it was granted, including any rights incident to or necessary for the reasonable and proper enjoyment of the easement, which are exercised with as little burden as possible to the fee owner of the land. [Schumacher v Dep't of Natural Resources, 275 Mich App 121, 130-131; 737 NW2d 782 (2007) (citations omitted).] In this case, the trial court properly determined that plaintiffs established an easement by necessity over defendants' property. The title histories for the parties' properties reveal that a common grantor, the Fausts, originally owned both properties and conveyed the landlocked property currently owned by plaintiffs to the Blushes. At that time, the only means of ingress and egress was over the property currently owned by defendants. Therefore, considering that there was no clear indication to the contrary, an easement by necessity was implied by law. See id. In their brief on appeal, defendants assert that plaintiffs have "set forth very confusing chains of title" and have failed to prove that the parties' titles "emanated from a `common grantor.'" Specifically, defendants assert that the "confusing series of transactions lends question as to what interest if any, [plaintiffs] possess in parcel number 2." We find, however, that the title documents submitted by plaintiffs very clearly lay out the title histories of the parties' properties. The conveyance of parcel #2 from the Fausts to the Blushes fully encompassed parcel #1 and Leira conveyed her property to Charmaine in a series of divestments. There is no factual dispute that plaintiffs now possess the entirety of the property transferred from the Fausts to the Blushes and that the parties' titles emanated from a common grantor. Further, the easement established by the trial court provides plaintiffs with a reasonable means of ingress and egress, with as little burden as possible to defendants. See id. at 131. The court established a 16-1/2 foot easement across the southernmost portion of defendants' property, butting up to the edge of defendants' concrete sidewalk and driveway. The easement is located, at least partially, where vehicles have historically traveled. Defendants argue that the access route over their property has always been located primarily south of the section line, that plaintiffs abandoned any right they had to an easement by -3-

necessity north of the historic and currently existing access route, and, therefore, that the trial court erred in establishing a "new" easement entirely north of the section line. In so arguing, defendants rely on Powers v Harlow, 53 Mich 507; 19 NW 257 (1884), Douglas v Jordan, 232 Mich 283; 205 NW 52 (1925), and Schadewald v Brule, 225 Mich App 26; 570 NW2d 788 (1997) for the general proposition that once the location of a right of way by necessity has been defined by agreement or usage, the location is fixed and cannot be unilaterally altered. But in this case, the access route was never clearly defined by either party. Cf. Powers, supra at 512513. The route is an unimproved road running along the southern portion of the parties' properties, without any fences, curbs, or other markers (except the recent addition of the three steel rods installed by defendants) defining the width or direction of the route. The parties disagree about the historic location of the route

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