Preview:

STATE OF MICHIGAN
COURT OF APPEALS


MATTHEW J. SCHUMACHER, Plaintiff-Appellee, v DEPARTMENT OF NATURAL RESOURCES, Defendant-Appellant.

FOR PUBLICATION April 3, 2007 9:00 a.m. No. 266524 Midland Circuit Court LC No. 99-009692-CH Official Reported Version

Before: Fort Hood, P.J., and White and Borrello, JJ. PER CURIAM. This equitable action concerning the scope of an easement is before us after remand to the trial court. See Schumacher v Dep't of Natural Resources, 256 Mich App 103; 663 NW2d 921 (2003) (Schumacher I). Defendant appeals as of right from the trial court's order on remand granting plaintiff an easement by necessity for ingress and egress and ruling that the scope of the easement will be determined by local ordinances. We reverse and remand for further proceedings. In the first appeal, Schumacher I, the parties cross-appealed the trial court's order granting an easement by necessity to plaintiff, but limiting the use to nonmotorized vehicles. Id. at 104. This Court affirmed in part, reversed in part, and remanded for a determination regarding the proper scope of the easement. Id. at 110. The pertinent facts are set forth in Schumacher I: In 1896, the state acquired a square, nine-parcel block of land located in Midland County. The state also acquired a tenth parcel that was immediately south of the parcel in the southwest corner of the block. The other adjacent parcels immediately to the south and north of this square, nine-parcel block were privately owned. Between 1902 and 1904, the state sold the eastern column of three parcels, the western column of three parcels, and the tenth parcel to third parties, retaining

-1-


only the middle column of three parcels (the subject property). Although the sale left the subject property without ingress and egress, there is no evidence indicating that the state retained an express easement to provide access. Between 1904 and 1911, the state conveyed the subject property to Charles A. Trumbull, and there is, again, no evidence that this conveyance contemplated ingress and egress. The subject property remained undeveloped, and was eventually conveyed to plaintiff. In 1932, the eastern and western columns of three parcels, as well as two parcels to the south of the subject property, reverted back to the state. The state purchased the third parcel (the easternmost parcel) to the south of the subject property in 1942. The state purchased two of the three parcels to the north of the subject property in 1946. The evidence suggests that the third parcel to the north (the westernmost parcel) remains privately owned. In 1990, the state granted one of Trumbull's successors in interest to the subject property a permit to clear a trail running across state land to provide ingress and egress. However, the trail was never cleared, and the permit expired. In 1995, plaintiff purchased the subject property. He applied for, but was denied, a similar permit to clear a trail running across state land. Plaintiff brought suit against the state, contending that the subject property had an "implied easement of necessity" for ingress and egress as a result of the state's conveyances between 1902 and 1912. The trial court agreed that plaintiff was entitled to an implied easement by necessity. However, the trial court limited the scope of the easement to nonmotorized vehicles, opining that nonmotorized vehicles were the only form of transportation that the state could have contemplated when making the conveyances. The trial court rejected plaintiff 's contention that the scope of the implied easement could reasonably expand with technological advances. [Id. at 104-106.] In Schumacher I, this Court agreed with plaintiff that the trial court erred by restricting "the easement to transportation used in the early 1900s." Id. at 108. This does not mean that plaintiff should have unfettered access to his property. Rather, this case must be remanded for a determination of the uses reasonably contemplated by the original grantor in the early 1900s, considering both anticipated evolutionary change and the isolated, wild condition of both properties. The easement must be limited to what is necessary for reasonable enjoyment of the property, with minimum burden on the servient estate. [Id.] This Court remanded to the trial court "for a determination regarding the proper scope of the easement." Id. at 110.

-2-


On remand in the trial court, plaintiff asserted that the easement should be defined in accordance with Edenville Township Zoning Ordinance

Download MATTHEW J SCHUMACHER V DEPT OF NATURAL RESOURCES.pdf

Michigan Law