Aletha Maticka Trust v. Martin J Wissmueller ( 2017 )

STATE OF MICHIGAN
COURT OF APPEALS
MICHAEL MATICKA and EDWARD UNPUBLISHED
MATICKA, Co-Trustees of the ALETHA January 24, 2017
MATICKA TRUST, THOMAS AXTELL, JOYCE
AXTELL, CHARLES RUSSIAN, and REUSHAN
RUSSIAN,
Plaintiffs-Appellees,
v No. 329723
Midland Circuit Court
MARTIN J. WISSMUELLER, DONNA M. LC No. 12-008689-CH
WISSMUELLER, MICHAEL MCGUIRE,
RANDY E. CRIPE, ROBERTA L. CRIPE,
MICHAEL CLARK, Trustee of the NORMA M.
HALL TRUST,
Defendants-Appellants.
Before: O’CONNELL, P.J., and MARKEY and MURRAY, JJ.
MURRAY, J., (concurring in part, dissenting in part).
After a bench trial the trial court entered a judgment in favor of plaintiffs on two bases:
Implied easement by quasi-easement and prescriptive easement. For the reasons briefly
articulated below, I concur in the affirmance of the trial court’s judgment on the basis of its
prescriptive easement ruling, but dissent from the majority’s agreement with the trial court’s
implied easement by quasi-easement ruling.
Amongst other elements, to prove the existence of an implied easement by quasi-
easement, a plaintiff must establish continuity. Charles A Murray Trust v Futrell, 303 Mich. App.
28, 42; 840 NW2d 775 (2013). Continuity in this context means an easement used continually
without the interference of man. Zemon v Netzorg, 247 Mich. 563, 565; 226 N.W. 242 (1929). At
oral argument before this Court, plaintiffs’ counsel essentially conceded that the bridge easement
(originating in the Wolverine Power deed) that the trial court relied upon for finding the
continuity element did not satisfy the continuity element, a concession the law supports. See
Waubun Beach Ass’n v Wilson, 274 Mich. 598, 606; 265 N.W. 474 (1936) and Bubser v
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Ranguette, 269 Mich. 388, 392; 257 N.W. 845 (1934).1 For this reason I would not affirm the trial
court’s ruling on that easement theory.
However, because the trial court’s ultimate conclusion on the prescriptive easement
theory can be upheld for the reasons stated in the majority opinion, I join the opinion to affirm.
/s/ Christopher M. Murray
1
Plaintiffs’ counsel did argue, however, that equity supported the trial court’s finding on implied
easement by quasi-easement.
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