20231130_C363177_50_363177.Opn.Pdf ( 2023 )

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
MARC MENDELSON and LISA MENDELSON, UNPUBLISHED
November 30, 2023
Plaintiffs/Counterdefendants-
Appellees,
v Nos. 363177 and 364285
Oakland Circuit Court
ROBERTUS SCHMIT, LC No. 2020-184854-CK
Defendant/Counterplaintiff/Third-
Party Plaintiff-Appellant,
BANK OF AMERICA,
Defendant,
and
MICHAEL SUCHOWSKI and ROXIE
SUCHOWSKI,
Third-Party Defendants.
Before: MURRAY, P.J., and CAMERON and PATEL, JJ.
PER CURIAM.
In Docket No. 363177, defendant/counterplaintiff/third-party plaintiff, Robertus Schmit,
appeals by right the September 12, 2022 order, which granted summary disposition in favor of
plaintiffs/counterdefendants, Marc and Lisa Mendelson, under MCR 2.116(C)(10) on their
prescriptive easement claim. The September 12, 2022 order also dismissed Schmit’s
counterclaims for ejectment, nuisance, and trespass against the Mendelsons and denied, in part,
Schmit’s motion for summary disposition. In Docket No. 364285, Schmit appeals by leave
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granted1 a December 5, 2022 order, which denied Schmit’s postjudgment motion for clarification.
With respect to the September 12, 2022 order, we affirm in part, reverse in part, and remand for
further proceedings consistent with this opinion. Schmit’s arguments concerning the December 5,
2022 order are moot, and the appeal in Docket No. 364285 is dismissed.
I. BACKGROUND
This case involves three adjacent properties on Middlebelt Road in West Bloomfield,
which abut Walnut Lake. In 1985, Richard and Ruth Baidas purchased property located at 5565
Middlebelt Road (the Mendelson property). The Baidases purchased a boat, which was seasonally
moored to a dock that remained in Walnut Lake year-round. The Baidases also installed a boat
hoist, which was removed after the boating season. According to Ruth, the location of the boat
hoist and the Baidases’ boat changed over the years and there were never complaints from the
neighbors concerning the location of the boat, the dock, or the hoist.
In 2008, Marc purchased the Mendelson property, which was advertised as including a
dock and boat hoist. In 2009, third-party defendant, Michael Suchowski, who owns the property
south of the Mendelson property, requested that Marc move his dock to the north so that Michael
and his wife, third-party defendant, Roxie Suchowski, could have their own dock. Marc moved
his dock to the north, which would remain in Walnut Lake year-round at all relevant times, and
removed the boat hoist. After the Suchowskis installed their own dock, Marc moored his boat
between the Suchowski dock and his dock.
In 2013, Schmit purchased the property to the north of the Mendelson property (the Schmit
property). In 2020, Schmit discovered the Mendelsons’ dock encroached onto a portion of his
bottomlands. In September and November 2020, Schmit requested the Mendelsons remove the
dock from his bottomlands. The Mendelsons did not do so and instead filed suit against Schmit in
November 2020, alleging they had title to the bottomlands by adverse possession or, in the
alternative, they had a right to use the bottomlands by a prescriptive easement. According to the
Mendelsons, the dock had been on the bottomlands continuously since 1985. Schmit answered
the Mendelsons’ complaint and filed counterclaims against the Mendelsons.2 Schmit alleged
claims of (1) ejectment, (2) nuisance, and (3) trespass. Schmit alleged the dock was not placed on
1
Mendelson v Schmit, unpublished order of the Court of Appeals, entered February 15, 2023
(Docket No. 364285).
2
Schmit also filed a third-party complaint against the Suchowskis, alleging their dock was
encroaching on his bottomlands. The Suchowskis’ dock was later removed, and the trial court
granted summary disposition in their favor after concluding the removal of the dock rendered the
issues raised by Schmit moot. Schmit did not appeal this decision. The Mendelsons also filed suit
against the Suchowskis, alleging their dock infringed on the Mendelsons’ bottomlands. The suit
was resolved after the Mendelsons and the Suchowskis reached an agreement, which permitted the
Mendelsons to use the Suchowskis’ dock.
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his bottomlands until 2009. Schmit requested the trial court award him damages, and order the
Mendelsons to remove the dock from his bottomlands.
The parties ultimately filed competing motions for summary disposition under MCR
2.116(C)(10). After hearing oral arguments on the motions, the trial court dismissed the
Mendelsons’ adverse possession claim, concluding the Baidases’ and the Mendelsons’ occupation
of the bottomlands was not exclusive. The trial court held that the Mendelsons had a prescriptive
easement, however, and dismissed Schmit’s counterclaims. The appeal in Docket No. 363177
followed.
While the appeal in Docket No. 363177 was pending, Schmit moved the trial court to
clarify the September 12, 2022 opinion and order to define the scope of the prescriptive easement.
The trial court declined to do so, and Schmit sought and was granted leave to appeal in Docket
No. 364285.3 Thereafter, the Mendelsons sought a writ of assistance from this Court. The motion
was related to Schmit’s installation of a dock, which the Mendelsons asserted blocked their access
to the easement. This Court denied the motion “without prejudice to being re-filed once the appeal
has been assigned to a case call panel.” Mendelson v Schmit, unpublished order of the Court of
Appeals, entered May 17, 2023 (Docket No. 363177).
II. STANDARDS OF REVIEW
We review equitable rulings de novo. 1373 Moulin, LLC v Wolf, 341 Mich App 652, 663;
992 NW2d 314 (2022). We also review “de novo a trial court’s decision on a motion for summary
disposition.” Bailey v Antrim County, 341 Mich App 411, 421; 990 NW2d 372 (2022) (quotation
marks and citation omitted). A “[d]e-novo review means that we review the legal issue
independently, without deference to the lower court.” Bowman v Walker, 340 Mich App 420, 425;
986 NW2d 419 (2022) (quotation marks and citation omitted).
A motion under MCR 2.116(C)(10) . . . tests the factual sufficiency of a
claim. When considering such a motion, a trial court must consider all evidence
submitted by the parties in the light most favorable to the party opposing the
motion. A motion under MCR 2.116(C)(10) may only be granted when there is no
genuine issue of material fact. A genuine issue of material fact exists when the
record leaves open an issue upon which reasonable minds might differ. [El-Khalil
v Oakwood Healthcare, Inc, 504 Mich 152, 160; 934 NW2d 665 (2019) (quotation
marks, citations, and emphasis omitted).]
“The trial court is not permitted to assess credibility, weigh the evidence, or resolve factual
disputes, and if material evidence conflicts, it is not appropriate to grant a motion for summary
disposition under MCR 2.116(C)(10).” Ass’n of Home Help Care Agencies v Dep’t of Health &
Human Servs, 334 Mich App 674, 684 n 4; 965 NW2d 707 (2020) (quotation marks and citation
omitted). “Like the trial court’s inquiry, when an appellate court reviews a motion for summary
3
Mendelson v Schmit, unpublished order of the Court of Appeals, entered February 15, 2023
(Docket No. 364285).
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disposition, it makes all legitimate inferences in favor of the nonmoving party.” Skinner v Square
D Co, 445 Mich 153, 162; 516 NW2d 475 (1994).
III. ANALYSIS
Schmit argues the trial court erred by granting summary disposition in favor of the
Mendelsons on their prescriptive easement claim.
In Astemborski v Manetta, 341 Mich App 190, 196; 988 NW2d 857 (2022), we recently
explained:
Land which includes or is bounded by a natural watercourse is defined as
riparian. It is well established that a riparian owner enjoys certain exclusive rights,
which include the right to erect and maintain docks along the owner’s shore, and
the right to anchor boats permanently off the owner’s shore. A nonriparian owner,
on the other hand, has a right to use the surface of the water in a reasonable manner
for such activities as boating, fishing and swimming, as well as the right to anchor
boats temporarily. However, a riparian owner may grant nonriparian owners the
right to access and enjoy a lake by easement or license.
An easement is a limited property interest; it is the right to use the land
burdened by the easement for a specific purpose. [A]n easement may be created
by express grant, by reservation or exception, or by covenant or agreement[.]
Easements may also be acquired by prescription. [Alterations in original; quotation
marks and citations omitted.]
Although an easement constitutes a property right, it is not a true ownership interest in
land. Schumacher v Dep’t of Natural Resources, 275 Mich App 121, 130; 737 NW2d 782 (2007).
Rather, it is a limited right to use property owned by another, and that use is generally confined to
a particular purpose. Id. at 130-131. “The land burdened by [an] easement is the servient estate,
and the land benefited by the easement is the dominant estate.” Astemborski, 341 Mich App at
197 (quotation marks and citation omitted; alteration in original).
The trial court concluded the Mendelsons had an easement by prescription to use a portion
of the Schmit property’s bottomlands and granted summary disposition in favor of the Mendelsons
on their prescriptive easement claim.
An easement by prescription is based upon the legal fiction of a lost grant,
and results from action or inaction leading to a presumption that the true owner of
the land, by his acquiescence, has granted the interest adversely held. An easement
by prescription results from use of another’s property that is open, notorious,
adverse, and continuous for a period of fifteen years.
[A] prescriptive easement is no more than an unopposed, continuous
trespass [on another’s property] for 15 years. If no single period of adverse use
amounts to the 15-year statutory period, a party claiming a prescriptive interest may
tack the possessory periods of their predecessors in interest to aggregate the 15-
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year period of prescription if the claimant can show privity of estate. [Id. at 197-
198 (second alteration in original; quotation marks and citations omitted).]
With respect to whether the dock was continuously encroaching on the Schmit property’s
bottomlands for the requisite 15-year period of prescription, Ruth testified there was a dock on the
Mendelson property when she and Richard purchased it in 1985. While the Baidases replaced
their dock in the 1990s, the new dock was placed in the same location as the previous dock.4 It is
undisputed the dock remained in the same location until the spring or summer of 2009, when Marc
moved the dock to the north and removed the boat hoist.
Aerial photographs support that a portion of the dock infringed on the Schmit property’s
bottomlands beginning in 2006, and continued to infringe on the bottomlands in 2008.5 After Marc
moved the dock in 2009, it occupied an even more significant (and thus partially different) portion
of the bottomlands. Therefore, to establish a prescriptive easement, the dock had to remain on the
Schmit property until 2021, in an unopposed manner. See Astemborski, 341 Mich App at 198
(holding “a prescriptive easement is no more than an unopposed, continuous trespass [on another’s
property] for 15 years”) (quotation marks and citation omitted; alteration in original). Because
Schmit opposed the location of the dock in 2020, demanding it be removed, the placement of the
dock on the Schmit property’s bottomlands did not ripen into a prescriptive easement. See id.
While the Mendelsons attempt to rely on the location of the boat hoist and argue Marc
moved the dock to the exact location of the boat hoist in 2009, this argument is unavailing for two
reasons. First, Ruth testified the boat hoist was removed from Walnut Lake at the end of each
boating season when she owned the Mendelson property. As noted by the trial court, seasonal use
can be considered continuous. See Dyer v Thurston, 32 Mich App 341, 344; 188 NW2d 633(1971). Importantly, however, Ruth testified the boat hoist was placed on different sides of the
dock between the time the hoist was initially installed in the 1990s, and when the Mendelson
property was sold to Marc in November 2008. According to Ruth, “[s]ometimes [the boat hoist]
was to the right of the dock, sometimes it was to the left of the dock.” Aerial photographs support,
if the boat hoist was placed on the south side of the dock during the boating season, it would not
infringe on the Schmit property’s bottomlands. Therefore, the seasonal use of the boat hoist from
sometime in the 1990s, to the spring or summer of 2009, when Marc removed it, cannot be
considered when determining whether there was continuous, seasonal use for 15 years.
Second, aerial photographs establish that, when Marc moved the dock in 2009, the
infringement on the Schmit property’s bottomlands was more significant. Importantly, a
prescriptive right inures only to the actual portion of the property that the claimant adversely used
for the 15-year period and does not extend to additional property not used. Engel v Gildner, 248
Mich 95, 99-100; 226 NW 849 (1929). In Engel, the defendants used part of the plaintiffs’ land
as a driveway for 25 years. Id. at 97-99. When the plaintiffs extended their driveway, the
4
We agree with Schmit that the trial court erred by concluding the evidence established the dock
was seasonal in nature.
5
We acknowledge Schmit’s argument that the aerial photographs, which include purported
property lines, are imprecise.
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defendants sought to use more of the plaintiffs’ land. Id. at 98-99. Our Supreme Court found the
defendants established a prescriptive right to continue their historic use of the plaintiffs’ driveway,
but they had not established a right to use the extension. Id. at 99-100.
The Mendelsons seek precisely the kind of expanded use that Engel forbids. The placement
of the dock in 2009 requires a greater use of the Schmit property’s bottomlands than was required
by the boat hoist and prior dock. Indeed, the dock physically required use of more of the
bottomlands. Additionally, at all relevant times, the dock remained in Walnut Lake year-round.
In contrast, the boat hoist was removed after the boating season each year. The Mendelsons’ use
of the property after the dock was moved, and the boat hoist was removed in 2009, amounts to a
new burden on the Schmit property and does not support that there was a continuous use for the
required period of 15 years. See Heydon v MediaOne of Southeast Mich, Inc, 275 Mich App 267,
271; 739 NW2d 373 (2007) (“A prescriptive easement is generally limited in scope by the manner
in which it was acquired and the previous enjoyment.”).
The Mendelsons’ argument that “the movement of the dock is a red herring because the
Mendelsons’ boat was moored in the same position as their predecessors for well beyond the
fifteen (15) year prescriptive easement requirement,” is unsupported by the record. Ruth testified
she and Richard often moved their boat from the north side of the dock to the south side of the
dock. This movement interrupted any continuous prescriptive use. While Dr. Geoffrey Gladstone
and Michael averred, beginning in 2000, that the Baidases seasonally docked their boat on the
north side of the dock when the Baidases owned the Mendelson property, there is no evidence the
Baidases’ boat ever infringed on the bottomlands of the Schmit property. Thus, the Baidases’
docking or mooring of their boat cannot be considered when determining whether the 15-year
period of prescription was met. Additionally, the Mendelsons’ seasonal mooring of their boat over
the Schmit property’s bottomlands, which did not begin until 2009, did not reach the required 15-
year period to establish a prescriptive easement.
The Mendelsons cannot rely on an underwater tube used for lawn maintenance to support
a prescriptive easement in relation to the dock. The prescriptive right inures only to the actual
portion of the property that the claimant adversely used for the statutory period and does not extend
to additional property not used. Engel, 248 Mich at 99-100. The Mendelsons’ attempt to liken an
unseen underwater tube to a dock that floated on Walnut Lake year-round and had multiple poles
that rested on the bottomlands is unpersuasive. The dock undoubtedly amounts to a new burden
on the Schmit property. See Heydon, 275 Mich App at 271 (“A prescriptive easement is generally
limited in scope by the manner in which it was acquired and the previous enjoyment.”). The tube
cannot be considered when determining whether the required 15-year period of prescription was
met.
In sum, because the Mendelsons cannot establish that a 15-year unopposed, continuous
trespass occurred on the relevant portions of the Schmit property’s bottomlands, Schmit was
entitled to summary disposition in his favor on the Mendelsons’ claim for a prescriptive easement.
See Astemborski, 341 Mich App at 198. The trial court erred by holding otherwise, and it
necessarily follows the trial court erred by denying summary disposition in favor of Schmit on his
ejectment and trespass claims. See New Prods Corp v Harbor Shores BHBT Land Dev, LLC, 308
Mich App 638, 649; 866 NW2d 850 (2014) (“[A]n action for ejectment [is] a proper action for
resolving disputes concerning who held paramount legal title to property and the right to
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immediate possession.”); Wiggins v City of Burton, 291 Mich App 532, 533; 805 NW2d 517(2011) (“[r]ecovery for trespass to land . . . is available . . . upon proof of an unauthorized direct
or immediate intrusion of a physical, tangible object onto land over which the plaintiff has a right
of exclusive possession”) (quotation marks and citation omitted).
We remand so the trial court can consider whether it is proper to award Schmit additional
relief, i.e., injunctive relief or damages. While the Mendelsons argue Schmit failed to establish he
was damaged by their alleged improper occupation of his bottomlands, damages for trespass can
be nominal. See id. at 555. See also New Prods Corp, 308 Mich App at 649 (“the only remedies
available to a plaintiff who prevail[s] in an action for ejectment [are] damages for the trespass and
a writ of possession”) (quotation marks and citation omitted). However, the trial court did not err
by denying summary disposition in favor of Schmit on his nuisance claim. See Wiggins, 291 Mich
App at 556 (holding “because the drain at issue . . . constituted a tangible object, its presence on
the . . . parcel was actionable in trespass rather than in nuisance”). Therefore, that portion of the
trial court’s September 12, 2022 order is affirmed.
IV. CONCLUSION
In Docket No. 363177, we reverse the trial court’s order granting summary disposition in
favor of the Mendelsons on their prescriptive easement claim and denying Schmit’s motion for
summary disposition on his ejectment and trespass claims. We affirm the trial court’s denial of
summary disposition on Schmit’s nuisance claim. Given these holdings, it is unnecessary to
consider Schmit’s arguments on appeal in Docket No. 364285 because they are moot. See Attorney
General v Mich Pub Serv Comm, 269 Mich App 473, 485; 713 NW2d 290 (2005). Whether the
Mendelsons are entitled to a writ of assistance is also rendered moot by this opinion. See id. The
appeal in Docket No. 364285 is dismissed. We remand so the trial court can consider whether it
is proper to award Schmit additional relief. We do not retain jurisdiction. No costs to either side,
neither party prevailing in full. MCR 7.219(A).
/s/ Christopher M. Murray
/s/ Thomas C. Cameron
/s/ Sima G. Patel
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