Robert Pichulo v. Buckeye Pipeline Company Lp ( 2019 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
ROBERT PICHULO, UNPUBLISHED
February 14, 2019
Plaintiff-Appellee,
v No. 341264
Genesee Circuit Court
BUCKEYE PIPELINE COMPANY, LP, LC No. 15-104998-CZ
Defendant-Appellant.
Before: MURRAY, C.J., and STEPHENS and RIORDAN, JJ.
PER CURIAM.
In this action regarding rights pursuant to an easement, defendant appeals as of right the
trial court’s judgment in favor of plaintiff after a bench trial permanently enjoining defendant
from removing 13 trees from plaintiff’s property. Previously, the trial court denied defendant’s
motion for summary disposition, which defendant also appeals. We affirm.
I. BACKGROUND FACTS & PROCEDURAL HISTORY
Plaintiff owns property in Mount Morris Township, which he purchased in 1992. In
1959, the previous owners of the subject property granted defendant an easement to construct
and maintain an oil pipeline across the property. Plaintiff was aware of the easement when he
purchased the property. In June of 2015, defendant sent a letter to plaintiff informing him of
defendant’s intent to remove 13 Norway maple trees that were on the easement. Defendant
asserted that the trees had to be removed because they obstructed aerial surveillance of and
access to the pipeline in case of an emergency or for repairs. In response, plaintiff filed this suit
seeking a permanent injunction. Plaintiff also sought an emergency ex-parte temporary
restraining order, which the trial court granted, and a preliminary injunction pending trial. After
an evidentiary hearing regarding plaintiff’s motion for a preliminary injunction, the trial court
ordered that all underbrush be removed from the easement and the branches on the Norway
maples trimmed to provide a 10-foot clearance.
The following year, defendant moved for summary disposition of plaintiff’s complaint,
arguing that it was entitled to remove the trees as a matter of law. Plaintiff responded that there
remained questions of fact regarding whether the removal was reasonably necessary for
defendant’s use of the easement. The trial court agreed with plaintiff, cited differing expert and
pilot witness testimony, and denied the motion.
Over the course of the four-day trial that followed, the trial court heard testimony from
plaintiff regarding the value of the trees to him; pilots regarding their ability to see the pipeline
and surrounding easement after the clearing of underbrush and pruning of the trees; an expert
who estimated that the trees were older than the pipeline, grew shallow roots, and had a
monetary value of nearly $50,000; and experts in oil pipeline regulation, maintenance, and safety
who disagreed about whether defendant’s proposed plan to remove the trees was reasonably
necessary for defendant’s enjoyment of the easement. The trial court considered the evidence
and in a written opinion found plaintiff’s evidence to be more credible and convincing, resulting
in a finding that removal of the Norway maples was not reasonably necessary. Consequently,
the trial court permanently enjoined defendant from removing them. This appeal followed.
II. SUMMARY DISPOSITION
Defendant argues that it was entitled to remove the trees under the terms of the easement
as a matter of law, so the trial court erred in denying defendant’s motion for summary
disposition. We disagree.
A. STANDARD OF REVIEW
“This Court [] reviews de novo decisions on motions for summary disposition brought
under MCR 2.116(C)(10).” Pace v Edel-Harrelson, 499 Mich. 1, 5; 878 NW2d 784 (2016). A
motion for summary disposition pursuant to MCR 2.116(C)(10) “tests the factual sufficiency of
the complaint.” Joseph v Auto Club Ins Assoc, 491 Mich. 200, 206; 815 NW2d 412 (2012). “In
evaluating a motion for summary disposition brought under this subsection, a trial court
considers affidavits, pleadings, depositions, admissions, and other evidence submitted by the
parties, MCR 2.116(G)(5), in the light most favorable to the party opposing the motion.”
Maiden v Rozwood, 461 Mich. 109, 120; 597 NW2d 817 (1999). Summary disposition is proper
where there is no “genuine issue regarding any material fact.” Id. A trial court’s decision
regarding equitable issues, such as those pertaining to the enforcement of easements, is reviewed
de novo. Blackhawk Dev Corp v Village of Dexter, 473 Mich. 33, 40; 700 NW2d 364 (2005).
However, “[t]he extent of a party’s rights under an easement is a question of fact . . . .” Id.
Similarly, “[t]he scope and extent of an easement is generally a question of fact . . . .” Morse v
Colitti, 317 Mich. App. 526, 534; 896 NW2d 15 (2016) (quotation marks omitted).
B. APPLICABLE LAW
“An easement is a right to use the land burdened by the easement rather than a right to
occupy and possess [the land] as does an estate owner.” Schumacher v Dep’t of Natural
Resources, 275 Mich. App. 121, 130; 737 NW2d 782 (2007) (quotation marks omitted). “The
existence of an easement necessitates a thoughtful balancing of the grantor’s property rights and
the grantee’s privilege to burden the grantor’s estate.” Blackhawk Dev, 473 Mich. at 41.
“Accordingly, an easement . . . is generally confined to a specific purpose.” Mich Dep’t of
Natural Resources v Carmody-Lahti Real Estate, Inc, 472 Mich. 359, 378-379; 699 NW2d 272
(2005). When considering the scope of an easement, this Court “must discern the parties’ intent
-2-
as shown by the plain language of the [legal document].” Id. at 379-380. “Where the language
of [an easement] is plain and unambiguous, it is to be enforced as written and no further inquiry
is permitted.” Little v Kin, 468 Mich. 699, 700; 664 NW2d 749 (2003). “If the text of the
easement is ambiguous, extrinsic evidence may be considered by the trial court in order to
determine the scope of the easement.” Id.
“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, 275 Mich. App. at 131. “Stated differently, [i]t is an established principle that the
conveyance of an easement gives to the grantee all such rights as are incident or necessary to the
reasonable and proper enjoyment of the easement.” Blackhawk Dev, 473 Mich. at 41-42
(quotation marks omitted). “Under our well-established easement jurisprudence, the dominant
estate may not make improvements to the servient estate if such improvements are unnecessary
for the effective use of the easement or they unreasonably burden the servient tenement.” Little,
468 Mich. at 701. Thus, in sum, a trial court must first decide whether the easement allows for
the proposed improvement by analyzing the plain language of the agreement, if unambiguous, or
by referring to extrinsic evidence in the event of ambiguous language. See id. at 700-701. Then,
if the easement does allow for such, the court “must then determine (1) whether the [proposed
improvement] is necessary for [the grantee’s] effective use of their easement and (2) whether the
[proposed improvement] unreasonably burdens [the grantor’s] servient estate.” Id. at 701.
C. ANALYSIS
Defendant argues that there is no question of fact regarding whether it was permitted to
cut down the 13 maple trees under the terms of the easement. In relevant part, the easement
provides that defendant has “a right of way over and through” the subject property “for the
purpose of constructing . . . and maintaining and operating, one . . . line of pipe for the
transportation of petroleum, gas, or the products of either, . . . with free ingress and egress to
construct, operate, maintain, and, from time to time, alter, repair or remove the same.” By its
plain language, the easement gave defendant a “right of way” and “free ingress and egress,” for
the purpose of constructing, maintaining, operating, altering, repairing, or removing the
pipeline.1
1
Contrary to the trial court’s holding after trial, the language used in the easement is not
ambiguous. The trial court seems to have confused the difference between ambiguous language
and a situation where the “application of the [language] to a given set of facts,” could reasonably
lead to different conclusions. See Henderson v State Farm Fire & Cas Co, 460 Mich. 348, 354-
355, 357-358; 596 NW2d 190 (1999). Because the terms primarily at issue in this case—
maintaining, operating, and repairing—have “commonly used meanings,” they are not
ambiguous. See id. at 354.; see also Blackhawk Dev, 473 Mich. at 43 (holding that use of the
word “improving” in an easement was not ambiguous because “[t]here [was] nothing technical
or unique about the word,” and in the context used there was nothing “that would require us to
rely on anything other than its common sense meaning.”). Consequently, in order to determine if
-3-
This Court previously has considered the word “maintenance” in an easement with
respect to the dominant estate’s request to remove trees from a right of way. Panhandle Eastern
Pipe Line Co v Musselman, 257 Mich. App. 477; 668 NW2d 418 (2003). The Panhandle Eastern
panel held that the dominant estate holder generally had the right to clear “the property [of trees]
to ensure maintenance and inspection.” Id. at 486. This Court concluded that “[m]aintenance
includes maintaining the property in the appropriate condition so that it is accessible in the event
that repair of the pipeline is required.” Id. at 486 n 3. The record reflects that defendant’s
request to remove the trees in the instant case is, at least in part, for the same reason—to ensure
that the property is accessible for maintenance, should repairs one day be required. Thus,
pursuant to the Court’s holding in Panhandle Eastern, 257 Mich. App. at 486, defendant’s
proposed actions fall within the authority provided by the easement with respect to
“maintenance.”
Defendant argues that this conclusion required the trial court to grant summary
disposition in its favor. Defendant is incorrect because, as discussed supra, a court also is
required to consider “(1) whether the [proposed improvement] is necessary for [the grantee’s]
effective use of their easement and (2) whether the [proposed improvement] unreasonably
burdens [the grantor’s] servient estate.” Little, 468 Mich. at 701. Those questions, which are in
regard to the extent and scope of the easement, generally are questions of fact. See Blackhawk
Dev, 473 Mich. at 40; see also Morse, 317 Mich. App. at 534. Indeed, even in Panhandle Eastern,
257 Mich. App. at 487, this Court remanded to the trial court for it to develop the record,
reasoning that factual “[q]uestions remain with regard to the extent of the obstruction of the
right-of-way.”
Those same factual questions remain in this case. To wit, plaintiff and defendant
presented competing testimonial and documentary evidence regarding whether aerial
surveillance of or access to the pipeline was unreasonably obstructed by the trees. Thus, there
remained a question of fact as to the extent of the burden presented by the trees and their roots
with respect to potential emergencies and repairs. See Blackhawk Dev, 473 Mich. at 40; see also
Morse, 317 Mich. App. at 534. In light of such questions of fact to be decided at a trial, summary
disposition properly was denied. See Maiden, 461 Mich. at 120.
II. BENCH TRIAL
Defendant argues that we must reverse the permanent injunction in this case because the
trial court improperly applied the standard for granting an injunction and clearly erred in finding
that removal of the trees was not reasonably necessary for defendant’s use of the easement. We
disagree.
A. STANDARDS OF REVIEW
defendant’s proposed action is permitted under the easement, this Court must only consider the
easement’s language. Little, 468 Mich. at 700.
-4-
A trial court’s decision regarding equitable issues, such as those regarding easements, is
reviewed de novo. Blackhawk Dev, 473 Mich. at 40. “The scope and extent of an easement is
generally a question of fact that is reviewed for clear error on appeal.” Morse, 317 Mich. App. at
534 (quotation marks omitted). “A finding of fact is clearly erroneous when no evidence
supports the finding or, on the entire record, this Court is left with a definite and firm conviction
that a mistake has been made.” Dep’t of Environmental Quality v Gomez, 318 Mich. App. 1, 31;
896 NW2d 39 (2016) (quotation marks omitted). “A trial court’s decision to grant or deny
injunctive relief is reviewed for an abuse of discretion.” Janet Travis, Inc v Preka Holdings,
LLC, 306 Mich. App. 266, 274; 856 NW2d 206 (2014). “An abuse of discretion occurs only when
the trial court’s decision is outside the range of reasonable and principled outcomes.” Sanders v
McLaren-Macomb, 323 Mich. App. 254, 264; 916 NW2d 305 (2018) (brackets and quotation
marks omitted).
B. THE EASEMENT
First, defendant argues that the trial court clearly erred when it made factual findings
regarding defendant’s rights under the easement.
1. APPLICABLE LAW
As discussed, supra, “[a]n easement is a right to use the land burdened by the easement
rather than a right to occupy and possess [the land] as does an estate owner.” Schumacher, 275
Mich. App. at 130 (quotation marks omitted). That use, however, “is generally confined to a
specific purpose.” Carmody-Lahti Real Estate, 472 Mich. at 378-379. Germane to this case,
defendant has the right to “free ingress and egress” to maintain and operate its oil products
pipeline. Defendant’s right to conduct maintenance “includes maintaining the property in the
appropriate condition so that it is accessible in the event that repair of the pipeline is required.”
Panhandle Eastern, 257 Mich. App. at 486 n 3. Operation of the pipeline also includes clearing
vegetation to ensure an ability to perform aerial inspection. See id. at 486. Here, the trial court
was required to decide, under the facts of this case, “(1) whether the [removal of the trees] is
necessary for [defendant’s] effective use of their easement and (2) whether the [removal of the
trees] unreasonably burdens [plaintiff’s] servient estate.” Little, 468 Mich. at 701. “Of course,
the need to answer the second question is obviated where the first question is answered in the
negative.” Blackhawk Dev, 473 Mich. at 42.
The trial court first had to determine whether cutting down the 13 Norway maple trees
was necessary for defendant’s maintenance, operation, and inspection of the pipeline. See id.
This is because “[a] fundamental principle of easement law is that the easement holder . . .
cannot make improvements to the servient estate if such improvements are unnecessary for the
effective use of the easement . . . .” Id. at 41 (quotation marks omitted). Thus, “ ‘[t]he use
exercised by the holders of the easement must be reasonably necessary and convenient to the
proper enjoyment of the easement . . . .’ ” Id. at 42, quoting Unverzagt v Miller, 306 Mich. 260,
265; 10 NW2d 849 (1943) (alteration in Blackhawk Dev). To allow otherwise would improperly
permit the dominant estate to “materially increase[] the burden on plaintiff’s servient estate by
imposing new burdens that were not contemplated at the time of the easement grant, contrary to
general easement principles.” Blackhawk Dev, 473 Mich. at 47. “Where the rights to an
easement are conveyed by grant, neither party can alter the easement without the other party’s
-5-
consent.” Id. at 46-47, citing Douglas v Jordan, 232 Mich. 283, 287; 205 N.W. 52 (1925).
Importantly, the easement’s reference to a “right of way” and “free ingress and egress,” includes
the right to have a “ ‘reasonably unobstructed passage at all times . . . .’ ” Kirby v Meyering
Land Co, 260 Mich. 156, 169; 244 N.W. 433 (1932), quoting Murphy Chair Co v American
Radiator Co, 172 Mich. 14, 29; 137 N.W. 791 (1912). In essence, the easement does not provide
defendant with the authority to clear reasonable obstructions. See Kirby, 260 Mich. at 169. Thus,
the ultimate, factual question for the trial court to consider was whether the Norway maples
amount to an unreasonable obstruction or danger to the pipeline. See id.
2. ANALYSIS
Defendant gives three reasons as to why the Norway maples have to be removed: (1)
access to the right-of-way and the pipeline; (2) ability to respond to emergencies as they arise;
and (3) the roots themselves are risks to the pipe. With respect to the first issue, defendant
presented testimony from expert William Byrd that the trees and their roots inhibited defendant’s
access to the pipeline. Byrd asserted that the machinery required to excavate the pipeline would
not fit and could not operate on the easement with the trees there, especially because defendant
was required to abide by OSHA standards for safe trenches. Byrd opined that removal of the
trees was reasonably necessary for future maintenance and that such actions were common in the
oil pipeline industry. Plaintiff contradicted that evidence with testimony from his own expert
Richard Kuprewicz. He concluded that removal of the trees was not reasonably necessary in
anticipation of potential maintenance. Kuprewicz testified that the federal regulations did not
declare a set width for pipe excavation and opined that removal of the trees to access the pipeline
when the time for such maintenance came would not significantly extend the time required to
perform such excavation, should the need arise.
The trial court considered that evidence and found plaintiff’s expert witness more
credible. In its written opinion, the trial court specifically cited as credible Kuprewicz’s
testimony that there was adequate space to access the pipeline and that the potential requirement
to remove the trees before performing such excavation would not cause a significant delay. We
“give deference to the trial court’s superior ability to judge the credibility of the witnesses who
appeared before it.” Gomez, 318 Mich. App. at 37 (quotation marks omitted), citing MCR
2.613(C). Given this Court’s deference to the trial court’s credibility determinations and that the
trial court’s factual findings relied on an expert witness’s testimony, defendant has failed to
provide any reason for us to be “left with a definite and firm conviction that a mistake has been
made.” Id. at 31 (quotation marks omitted). Thus, the trial court did not clearly err in finding
that the removal of the Norway maple trees was not reasonably necessary for defendant’s proper
use of the easement to access for future maintenance. See id.2
2
It is important to note that it is not disputed that there was no maintenance then or now required
on the pipeline. Rather, defendant contends that its rights to “free ingress and egress” and a
“right of way” under the easement extend to the removal of the trees in anticipation of such
future maintenance. The distinction is important because an action to preserve or repair the
pipeline is treated with less scrutiny than one to improve the land. Mumrow v Riddle, 67 Mich
-6-
Defendant also argues that the trial court clearly erred by finding that it is not permitted
to remove the trees in anticipation of a future emergency. In support of that contention at trial,
defendant introduced testimony from its senior right-of-way agent, Martin White, and Byrd that
the Norway maples would present a significant burden both in identifying an emergency and
accessing the pipeline in case of an emergency. As to the first portion, Byrd testified that sensors
in the pipeline allow for operators to narrow down the location of a potential leak, but do not
allow an exact determination. Instead, the fastest way for a pipeline operator to identify the
exact location is to perform aerial surveillance of the pipeline to look for ground stains or dead
vegetation at the location of the leak. Defendant noted that its patrol pilot had testified and
provided photographs showing that his aerial view of the pipeline and easement were obstructed
by the trees. With respect to accessing the pipeline in the event of an emergency, Byrd testified
that time is of the essence when leaks occurred and that the trees would significantly delay
defendant’s ability to properly access the pipeline. Byrd noted that federal regulations required
defendant to prepare an emergency plan and follow it. He testified that defendant already has
such a plan, but to carry it out, defendant has to remove the trees in question. Further, bringing
large machines on the property to do so, which Byrd described as being ignition sources, was
dangerous and could cause an explosion.
Plaintiff presented evidence to contradict defendant’s claims. Plaintiff elicited testimony
from another pilot that the easement around the pipeline plainly was visible when flying past the
property at the proper angle. Plaintiff also admitted photographs into evidence showing an
unobstructed view of the pipeline, which is identified on the photographs by the presence of
yellow tape. Kuprewicz, meanwhile, testified that in cases of emergency, it would be entirely
improper and unsafe to rush to the scene of the leak with large machinery and to begin
excavation. Instead, Kuprewicz stated that the pipeline had internal sensors that allowed for the
identification of leaks in general areas, which could then be isolated and the flow of oil products
through that area stopped. This effectively reduced the amount of environmental contamination
without having to rush in with dangerous machinery. Further, as to time of access, Kuprewicz
testified that removing the trees during the course of the emergency would not provide any delay
to the excavation of the pipeline. While Kuprewicz agreed with Byrd that federal regulations
required an emergency plan, Kuprewicz disagreed that the regulations required removal of any
trees. Byrd later clarified his testimony on the issue and stated that the federal regulations
require an emergency plan to be in place, but the federal regulations do not require removal of
trees.
The trial court considered the evidence and found plaintiff’s to be more credible. With
respect to locating an emergency via aerial surveillance, the trial court relied on the pilot’s
photographs and testimony establishing that the pipeline was visible. Because the trial court’s
App 693, 700; 242 NW2d 489 (1976). Here, the trial court relied on that distinction by noting
that defendant had not produced evidence that maintenance was required and essentially allowed
for the inference that, if such maintenance were required then the trees could possibly be
removed. See id.
-7-
decision on this issue relied on admissible and compelling evidence in the record, it was not
clearly erroneous. See Gomez, 318 Mich. App. at 31.
Next, the trial court credited plaintiff expert Kuprewicz’s testimony that the presence of
the trees would not slow down access to the pipeline or cause danger to the response team. The
trial court also accepted Kuprewicz’s testimony that defendant’s emergency procedures did not
transform its request to remove the trees into a reasonable necessity. Given our deference to the
trial court’s credibility determinations and decision to believe Kuprewicz instead of defendant
expert Byrd, and the trial court’s reliance on admitted evidence, the record presented does not
provide any reason for us to be “left with a definite and firm conviction that a mistake has been
made.” Id. at 31 (quotation marks omitted). Thus, based on the facts as found by the trial court,
defendant’s request to remove the Norway maple trees was not reasonably necessary for
defendant to prepare for an emergency. See Blackhawk Dev, 473 Mich. at 42.
Defendant also argues that the trees had to be removed because their roots presented a
danger to the pipeline. In support of that, Byrd testified that tree roots acted as conduits for
electricity, so they could cause lightning to strike the pipeline. In addition, defendant presented
evidence that the roots potentially could grow toward and eventually chip away at the pipes.
Lastly, Byrd testified that the tree roots could entangle the pipeline, causing damage. On cross-
examination, Byrd acknowledged that he was aware lightning strikes could happen but did not
know of any specific examples. Plaintiff countered with expert testimony from an arborist who
testified that the root system of a Norway maple stays in the top 10 inches of soil, which is above
the pipeline. Kuprewicz opined that the proper procedure to detect such erosion is for a pipeline
operator to use an internal monitoring system. This allows for analysis of both internal and
external corrosion of the pipe, and for the assessment and removal of risks to the pipeline as they
arise. He testified that pipeline operators are not required by any regulation to remove the
possibility of any potential risk that might arise in the future. As to the tree roots and potential
pipeline erosion, plaintiff expert Kuprewicz clarified that the pipeline’s cathodic protection
would be able to provide a timely alert that a tree root was encroaching on the pipeline and, if
that failed, other tools can be used to identify external corrosion of the pipeline. These systems,
he testified, allowed defendant to address actual threats to the pipeline when they arose without
any significant added dangers.
Here, the trial court again considered the documentary and testimonial evidence provided
by the parties and found plaintiff’s evidence more credible. The trial court weighed heavily the
fact that defendant expert Byrd could not identify any particular instance where a lighting strike
on a pipeline had been conducted by a tree root. Considering that evidence in light of the
arborist’s testimony that the tree roots did not go as deep as the pipeline and Kuprewicz’s
testimony that defendant would be alerted to any encroaching root in a timely manner, the trial
court found that removal of the trees was not reasonably necessary for defendant’s maintenance
of the pipeline. See Blackhawk Dev, 473 Mich. at 42. Because we must defer to the trial court’s
decision to credit Kuprewicz’s testimony instead of Byrd’s, and because the trial court’s factual
findings were based on evidence produced at trial, the trial court did not clearly err. See Gomez,
318 Mich. App. at 31.
In sum, defendant asserted that the Norway maple trees had to be removed because they
were a danger to the pipeline and an obstruction to surveillance and access. Defendant’s
-8-
contentions rely on a misapplication of the law in Michigan with regard to easements.
Defendant, under the terms of the easement at issue here, does not have the right to ensure
freedom from any and all obstructions or dangers to the pipeline. That simply is not the standard
for such inquiries. See Kirby, 260 Mich. at 169. Instead, defendant’s rights under the easement
are limited to freedom from unreasonable obstructions or dangers. See id. The extent, or
reasonableness, of the obstruction presented by the trees is a fact question for the trial court to
decide and it did so here. Morse, 317 Mich. App. at 534. The trial court, after considering all of
the evidence and weighing the credibility of the witnesses, decided that removal of the Norway
maple trees was not reasonably necessary for defendant’s maintenance, operation, or repair of
the pipeline. As this was not clear error, we affirm. See Blackhawk Dev, 473 Mich. at 42.
C. THE PERMANENT INJUNCTION
Defendant argues that the trial court abused its discretion by issuing the permanent
injunction because it was not a proper remedy where plaintiff: (1) had a legal remedy available;
(2) loss of the trees was not irreparable; and (3) a weighing of the harms between the parties and
the risk to public safety should have favored defendant.
1. APPLICABLE LAW
We previously summarized the law regarding permanent injunctions in Wiggins v City of
Burton, 291 Mich. App. 532, 558-560; 805 NW2d 517 (2011):
It is true that “ ‘[i]njunctive relief is an extraordinary remedy that issues only
when justice requires, there is no adequate remedy at law, and there exists a real
and imminent danger of irreparable injury,’ ” and that “[g]ranting injunctive relief
is within the sound discretion of the trial court.” Kernen v Homestead Dev Co,
232 Mich. App. 503, 509; 591 NW2d 369 (1998), quoting Jeffrey v Clinton Twp,
195 Mich. App. 260, 263-264; 489 NW2d 211 (1992). The general rule “ ‘is that
the court will balance the benefit of an injunction to plaintiff against the
inconvenience and damage to defendant, and grant an injunction or award
damages as seems most consistent with justice and equity under all the
circumstances of the case.’ ” Kratze v. Indep Order of Oddfellows, 442 Mich. 136,
143 n 7; 500 NW2d 115 (1993) (Kratze II), quoting Hasselbring[ v Koepke], 263
Mich [466,] 480[; 248 N.W. 869 (1933)]. But “a court is not bound to engage in a
balancing of the relative hardships and equities if the encroachment resulted from
an intentional or wilful act . . . .” Kratze II, 442 Mich. at 145.
“While an injunction may lie when a tort is merely threatened . . . a cause of action for damages
will not.” Kernen, 232 Mich. App. at 509 (citations omitted). “When an injury is irreparable, the
interference is of a permanent or continuous character, or the remedy at law will not afford
adequate relief, a bill for an injunction is an appropriate remedy.” Schadewald v Brule, 225
Mich. App. 26, 40; 570 NW2d 788 (1997).
2. ANALYSIS
Defendant argues that the trial court erred in granting injunctive relief in favor of plaintiff
because the harm to plaintiff was reparable in the form of monetary damages, a legal remedy.
-9-
Defendant is correct that plaintiff’s expert testified that the Norway maples had an established
monetary value based on their health and age. However, defendant is incorrect that the fact that
an object has monetary value automatically rules out the availability of a permanent injunction.
To wit, permanent injunctions are permitted not only “[w]hen an injury is irreparable,” but also
when “the interference is of a permanent or continuous character, or the remedy at law will not
afford adequate relief . . . .” Id. (emphasis added). Thus, proof that monetary damages would
not be adequate, or that there would be a permanent interference also could warrant an
injunction. Id. Here, the trial court credited testimony from plaintiff that the trees had a
sentimental value to him and that no amount of money would satisfy his loss. Further, the trial
court noted that removal of the trees would have been permanent, because they reasonably could
not be replaced, considering the arborist’s testimony that the trees were quite old and took over
70 years to grow.
Additionally, when a tort merely is threatened, the proper remedy is for an injunction, not
for damages. Kernen, 232 Mich. App. at 509. “[A]ctivities by the owner of the dominant estate
that go beyond the reasonable exercise of the use granted by the easement may constitute a
trespass to the owner of the servient estate.” Wiggins, 291 Mich. App. at 556 (quotation marks
omitted). As discussed, supra, the trial court did not clearly err in determining that removal of
the trees was not reasonably necessary to defendant’s use of the easement. Thus, plaintiff also
showed that defendant was threatening to commit a trespass or, in other words, a tort. See id.
Consequently, injunctive relief was the proper remedy. See Kernen, 232 Mich. App. at 509.
Defendant also argues that the trial court erred in failing to weigh properly the potential
harms to plaintiff, defendant, and the public. Once again, defendant is correct that, typically, a
trial court is required to “balance the benefit of an injunction to plaintiff against the
inconvenience and damage to defendant,” and only issue an injunction if it would be “consistent
with justice and equity under all the circumstances of the case.” Wiggins, 291 Mich. App. at 559
(quotation marks omitted). However, as our Supreme Court held in Kratze II, 442 Mich. at 145,
such balancing is not required where a trespass could result “from an intentional or wilful act . . .
.” Here, defendant has not made any qualms that it specifically intends to remove the 13 Norway
maples. Therefore, defendant’s proposed action was intentional and willful. See id.; see also
Wiggins, 291 Mich. App. at 556. Even assuming that the trial court did not properly balance the
harms, such error was inconsequential where the trial court was not required to do so. Kratze II,
442 Mich. at 145.
-10-
Affirmed.3
/s/ Christopher M. Murray
/s/ Cynthia Diane Stephens
/s/ Michael J. Riordan
3
Interestingly, defendant has not argued on appeal, like it did before the trial court, that the
extent of the injunction was impermissibly broad, considering it did not contain an avenue for
defendant to remove the trees in case of an actual emergency or the need for actual repairs.
Instead, the trial court only allowed for defendant to remove trees if they died and defendant
obtained an order from the trial court. The trial court should acknowledge that the permanent
injunction is limited to the extent that defendant would be permitted to remove the trees for an
actual emergency or to repair damage to the pipeline. See Janet Travis, 306 Mich. App. at 274
(“The decision to grant injunctive relief must be tailored to the facts of the particular case.”)
-11-