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MICHAEL MATICKA and EDWARD                                          UNPUBLISHED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.

PER CURIAM.

       Defendants appeal by right the order of the circuit court granting plaintiffs a prescriptive
easement and implied easement by quasi-easement to traverse defendants’ privately owned road.
We affirm.

                                              I. FACTS

        The properties involved in this dispute extend into a popular recreational lake in mid-
Michigan, which, in its undeveloped state, was entirely owned by Wolverine Power Company.
In 1967, Wolverine conveyed a small parcel near the tip of the peninsula to Lionel and Ruth
Dancer. In 1990, Ruth Dancer, surviving Lionel Dancer, conveyed that property to Richard and
Kathleen Wildey. The Wildeys then conveyed the property to Thomas and Joyce Axtell in 1993
via a land contract completed in 1994. In 1968, Wolverine conveyed the remaining portion of
the peninsula to Aletha Maticka via a land contract completed in 1987.

         In 1978, Aletha Maticka conveyed a tract encompassing what appears to be the entire
half of the peninsula abutting the mainland to David Cribbins via a land contract completed in
1989. In 1993, Cribbins conveyed the entirety of this property to Witte-Gay Design, built homes
on the property and divided the land into parcels, owned at the time of trial by Martin and Donna
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Wissmueller, Warren Michael McGuire, Randy and Roberta Cripe, and the Norma M. Hall
Trust. The owners of the parcels entered into an agreement for a perpetual easement over their
properties in the form of a road and, pursuant to this agreement, an asphalt driveway known as
Little Canal Drive was constructed in 1993.1 This driveway runs through defendants’ properties
ending short of the Maticka Trust property.

        In 1986, Aletha Maticka conveyed a parcel of her remaining property to Charles and
Reushan Russian by land contract, completed in 1997. Aletha Maticka remained the owner of a
parcel in the middle of the peninsula and a second, smaller, parcel at the tip of the peninsula until
her death shortly before trial. The property owned by Aletha Maticka was thereafter transferred
to the Aletha M. Maticka Living Trust, administered by her two sons, Michael Maticka and
Edward Maticka.

       The resulting parcels, save for the parcel owned by the Maticka Trust at the tip of the
peninsula, are relatively rectangular with waterfront on two opposing sides and abutting
neighboring land on the remaining two. All properties remained owned by the resulting parties
aforementioned at the time of trial.

        At a bench trial, plaintiffs all testified that before the private driveway was installed on
the property now owned by defendants, there was a two-track road beginning where the
peninsula meets the mainland and extending halfway onto the Maticka property. At that point,
the path narrowed to a walking path that ran over the property now owned by the Russians and
the Axtells on the far end of the peninsula. Defendants, as purchasers subsequent to the initial
installation of the private driveway, could provide no testimony relevant to the state of the two-
track before they purchased their property. Defendants did testify, however, that no portion of
the trail beyond the end of the paved driveway was navigable by vehicle until the Matickas
widened the path sometime after the driveway was paved.

        The Maticka sons testified that their family drove a vehicle over the two-track regularly
between 1967 when their mother purchased the property and 2010. Charles Russian testified that
he joined this use in 1986 when he became a possessor of land on the peninsula and that he
would additionally drive a tractor across Little Canal Drive a few times every year to retrieve
equipment he stored on his property. The Axtells testified that they began visiting the peninsula
when they moved to the area in 1987 and continued their visits after they purchased their
currently-owned property on the peninsula in 1993. According to the Axtells, they would walk
or drive to their property weekly until they moved to Florida in 2003.2




1
  The defendants stated that the base layer and first layer of asphalt were completed by Witte-
Gay but that Witte-Gay refused to complete the second layer of asphalt, even though ordered by
a court to do so. The defendants, collectively, ended up paying for the second layer.
2
  The Axtells, although living primarily out-of-state, still owned the property on the peninsula at
the time of trial.


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        Plaintiffs, although being unable to pinpoint a relevant date, stated that Norma Hall and
her predecessor in interest, Bill Phillips, told them that they had no problem with their use of the
driveway. This sentiment was apparently not shared by all the defendants and, apparently with
Hall’s permission, a barrier was erected at the end of Little Canal Drive in 2010 in the form of a
set of PVC pillars filled with concrete, the center posts of which are padlocked and removable by
key so that a car may pass through the barrier. Plaintiffs were not given a key to this barrier, and
defendants were not willing to give them a key.

        After a bench trial, the trial court granted plaintiffs a prescriptive easement and implied
easement by quasi-easement to traverse the private driveway to access their peninsula properties,
and ordered the costs associated with the maintenance or improvements to the current section of
the private driveway to be shared by all owners of property on the peninsula. The trial court
denied defendants any restitution for the installation costs of the driveway and ordered plaintiffs,
solely, to bear any costs of extending the driveway.

                                         II. ANALYSIS

       “An easement is the right to use the land of another for a specified purpose.” Schadewald
v Brule, 225 Mich. App. 26, 35; 570 NW2d 788 (1997).

        We review de novo equitable actions concerning easements but we review the trial
court’s findings of fact for clear error. Mulcahy v Verhines, 276 Mich. App. 693, 698; 742 NW2d
393 (2007); Chapdelaine v Sochocki, 247 Mich. App. 167, 169; 635 NW2d 339 (2001). “The
extent of a party’s right under an easement is a question of fact.” Dobie v Morrison, 227 Mich
App 536, 541; 575 NW2d 817 (1998). “A finding is clearly erroneous if the appellate court is
left with a definite and firm conviction that a mistake has been made.” Charter Twp of Ypsilanti
v Gen Motors Corp, 201 Mich. App. 128, 133; 506 NW2d 556 (1993).

                                    A. QUASI-EASEMENT

        Defendants first argument on appeal is that the trial court erred by granting plaintiffs an
implied easement by quasi-easement over the private driveway. “An implied easement may arise
in essentially two ways: (1) an easement by necessity and (2) an easement implied from a quasi-
easement.” Charles A Murray Trust v Futrell, 303 Mich. App. 28, 41; 840 NW2d 775 (2013)
(internal quotation marks and citation omitted). A party asserting an implied easement by quasi-
easement must show “ ‘(1) that during the unity of title an apparently permanent and obvious
servitude was imposed on one part of an estate in favor of another, (2) continuity, and (3) that the
easement is reasonably necessary for the fair enjoyment of the property it benefits.’ ” Id. at 42,
quoting Schmidt v Eger, 94 Mich. App. 728, 731; 289 NW2d 851 (1980).

         Although the servitude involved in a quasi-easement must arise during a period of unified
title, “an easement cannot exist over one part of a person’s land in favor of another part when
both parts remain in that person’s possession.” Schmidt, 94 Mich. App. at 737. Therefore, the
key inquiry under the first element is whether the servitude existed at the date of severance of the
parcel. Id. In this case, the trial court received testimony that at the time Aletha Maticka owned
the entirety of defendants’ property on the peninsula, a two-track road ran from the mainland



                                                -3-
across what is now defendants’ respective parcels and ended in the middle of a parcel now
retained by the Matickas. Accordingly, plaintiffs have proved the first element.

       Defendants’ argument on this issue focuses on the continuity element. Defendants argue
that under this Court’s decision in Murray Trust, 303 Mich. App. at 42, a way at issue is not one
of continuous use because the use consists of periodic human activity.3 In that case, this Court
was called upon to decide whether a 1934 decree granting an easement to the parties’
predecessors did so through an easement by implication or an easement by necessity. Id. at 41.
This Court concluded that the 1934 decree granted the parties’ predecessors an easement by
necessity, because, in part, “at the time the trial court issued its decree in 1934, the law in
Michigan was that a right of way is not a continuous easement for purposes of establishing an
easement implied from a quasi-easement.” Id. at 43-44 (emphasis added). This Court ultimately
determined that the Murray Trust plaintiffs were no longer entitled to an easement by necessity
because strict necessity no longer existed for that easement. Id. at 56-57.

        As this Court’s statement in Murray Trust suggests, periodic human activity alone is no
longer necessarily deemed insufficient to establish continuity for purposes of an implied
easement. In Rannels v Marx, 357 Mich. 453; 98 NW2d 583 (1959), our Supreme Court was
called upon to determine whether an implied easement could be granted over a common
driveway allowing both the plaintiff and the defendant access to their respective garages. The
Court found that there was an “obvious easement” in that case, reiterating the long-standing
principle that “when the owner of an entire estate makes one part of it visibly dependent for the
means of access upon another, and creates a way for its benefit over the other, and then grants
the dependent part, the other part becomes subservient thereto, and the way constitutes an”
implied easement by quasi-easement. Id. at 457-458 (citation omitted). The Court thus
recognized a driveway could be the subject of an implied easement.

         In this case, although the driveway at issue did not extend onto the Axtells’ property,
because that property is at the far end of the peninsula, there was no other means of access to it,
except across the water. Further, Thomas Axtell testified that he drove across the road in 1967
or 1968, around the time Wolverine severed that property. The trial court heard testimony that
the two-track remained in use until it was paved and became Little Canal Drive, well after the
defendants’ property was severed from plaintiffs’ property. The Matickas testified to extensive
use of the driveway from 1967 until 2010, when plaintiffs erected the barrier. The Russians
testified to extensive use throughout their ownership of their peninsula property, and Axtell
testified that he traversed the driveway by vehicle as early as 1967, when his property was
severed by Wolverine. Additionally, the record is replete with examples of parties on both sides
of this dispute traversing the path across both defendants’ and plaintiffs’ properties before and




3
  Our Supreme Court has distinguished a discontinuous easement, as “one the use of which can
only be by the interference of man,” from a continuous easement, as one “used continually with
the intervention of man,” e.g., “a drain or sewer.” Zemon v Netzorg, 247 Mich. 563, 565; 226
N.W. 242 (1929).


                                                -4-
after the installation of Little Canal Drive, by both vehicle and foot. Accordingly, we find
plaintiffs very sufficiently proved the continuity element.

        Regarding the final element, we note that determining reasonable necessity for purposes
of an implied easement requires evaluating the individual circumstances presented, with attention
to the “effort and expense” the claimed easement and alternatives to it would impose on the
parties. Schmidt, 94 Mich. App. at 735. In this case, plaintiffs’ property is located on a peninsula
extending into a lake and abutting defendants’ property on the other. These facts are such that
plaintiffs have proved reasonable necessity for an easement over Little Canal Drive.

       In sum, because plaintiffs have met their burden in proving all necessary elements, we
conclude that the trial court did not err by granting plaintiffs an implied easement by quasi-
easement over the private driveway.

                                B. PRESCRIPTIVE EASEMENT

        Defendants next appeal the trial courts grant of a prescriptive easement to plaintiffs. We
review de novo equitable actions concerning easement and the trial court’s findings of fact for
clear error. Mulcahy, 276 Mich. App. at 698; Chapdelaine, 247 Mich. App. at 169.

        “An easement by prescription results from use of another’s property that is open,
notorious, adverse, and continuous for a period of fifteen years.” Plymouth Canton Community
Crier, Inc v Prose, 242 Mich. App. 676, 679; 619 NW2d 725 (2000). A prescriptive easement
“ ‘grants the holder of the easement qualified possession only to the extent necessary for
enjoyment of the rights conferred by the easement.’ ” Id. (citation omitted).

        A plaintiff seeking a prescriptive easement “bears the burden to demonstrate entitlement
to a prescriptive easement by clear and cogent evidence.” Matthews v Dep’t of Natural
Resources, 288 Mich. App. 23, 37; 792 NW2d 40 (2010). In this case, the trial court stated that
“[t]he burden of proof in a case involving the creation of an easement by prescription is on the
plaintiff, but it shifts to the defendant once the plaintiff has made a sufficient showing of use in
excess of the prescriptive period.” The trial court then examined the amount of evidence
defendants presented before concluding that they had presented too little evidence to show that
the use was permissive. Given the totality of the court’s analysis, we conclude that when the
trial court spoke of the “burden of proof,” it was actually trying to explain that as of that point in
its analysis, the burden of producing evidence had shifted to the defendants. See Widmayer v
Leonard, 422 Mich. 280, 290; 373 NW2d 538 (1985) (“There are two aspects of the ‘burden of
proof’—the ‘burden of persuasion’ and the ‘burden of going forward with the evidence.’ The
latter burden may shift several times during the trial, whereas the burden of persuasion generally
remains with the plaintiff.”).

       Nonetheless, the trial court stated that “there had been use of the access to the peninsula
property by Plaintiffs, and their predecessors in interest, well beyond the fifteen year time frame,
therefore a presumption of a grant of easement exists and the servient estates have the burden of
proof to show it was permissive use.” Because, under our Supreme Court’s jurisprudence,
“[o]nce [the] plaintiffs presented evidence that they had used the disputed land for over fifty
years, the burden of producing evidence shifted to [the] defendants to establish that [the]

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plaintiffs’ use was permissive.” Widmayer, 422 Mich. at 290. Thus the trial court’s
characterization of the burden of production was erroneous. Nevertheless, the first time the trial
court mentioned burden shifting was in its opinion, after the all of the evidence had been
presented. Because a correct application of the presumption relates only to the burden of
production, and “[t]he burden of proving a prescriptive easement remained . . . with plaintiffs,”
id. at 289-290, the error was harmless.

                                          1. ADVERSE

        Defendants claim that both Norma Hall and her predecessor, Bill Phillips, granted
plaintiffs permission to use the driveway during the approximately 17 years immediately
preceding litigation, i.e., from the development of Little Canal Drive and defendants’ homes
around 1993 until 2010, when the barrier was installed. However, the record indicates that
defendants exercised control over the driveway jointly, but not severally, at this time.
Accordingly, even assuming that the lack of an objection is the equivalent of an affirmative grant
of permission, neither Phillips nor Hall had the authority to grant permission to use the driveway.
Therefore, plaintiffs’ use of the driveway for the roughly 17 years between the installation of
Little Canal Drive and the barrier’s installation was adverse.

                                 2. OPEN AND NOTORIOUS

        Defendants do not contend that they did not have knowledge of plaintiffs’ use of the
driveway. Instead, defendants argue that the wild and unenclosed nature of their properties
mandated that plaintiffs provide them with notice that they were claiming an affirmative right to
use the driveway. The record indicates that the property was undeveloped before 1993. But
thereafter, the land was developed; homes were built, and Little Canal Drive was paved. The
plaintiffs’ continued use was clearly open and notorious.

                  3. CONTINUOUS USE FOR THE STATUTORY PERIOD

       Defendants argue that plaintiffs’ use of Little Canal Drive was not continuous for 15
years. Our Supreme Court clarified this requirement in von Meding v Strahl, 319 Mich. 598, 613-
614; 30 NW2d 363 (1948), stating that whether a use is continuous

       can be stated only with reference to the nature and character of the right claimed.
       An omission to use when not needed does not disprove a continuity of use, shown
       by using it when needed, for it is not required that a person shall use the easement
       every day for the prescriptive period. It simply means that he shall exercise the
       right more or less frequently, according to the nature of the use to which its
       enjoyment may be applied. [Internal quotation marks and citation omitted.]

        Although the record in this case shows that the Axtells did not purchase their property
until 1993, the evidence is that the Axtells began walking the two-track regularly in 1987, and
continued to do so on a weekly basis during the summer months until they moved to Florida
sixteen years later. The record also shows that the Axtells would take a motor vehicle to the
property “quite a few times,” although much less frequently than travelling to it on foot.
Because this property is currently undeveloped recreational land in close proximity to their

                                                -6-
developed land, the Axtells have shown sufficient vehicular use to constitute continuous use for
the statutory period, which was fulfilled sometime in 2002. Consequently, we agree that the
Axtells sufficiently proved a prescriptive easement over the private driveway.

         Additionally, the Matickas and Russians have proved continuous use from 1993 until
2010 and are therefore entitled to a prescriptive easement. Both the Matickas and Charles
Russian testified that they would drive a motorized vehicle regularly over Little Canal Drive to
reach their properties, and no evidence of any period of non-use was shown. Even though this
use may not have been daily or even weekly, seasonal vehicular traffic across a driveway to
access undeveloped property is a use commensurate with the enjoyment of that property and
sufficient to show continuity.

        For these reasons, we conclude that the trial court did not err by granting plaintiffs a
prescriptive easement.

                                C. SCOPE OF THE EASEMENT

        Alternatively, defendants argue that if plaintiffs are entitled to an easement, it should
have been limited to foot traffic. “An easement is the right to use the land of another for a
specified purpose.” Schadewald, 225 Mich. App. at 35. “A prescriptive easement is generally
limited in scope by the manner in which it was acquired and the previous enjoyment.” Heydon v
MediaOne, 275 Mich. App. 267, 271; 739 NW2d 373 (2007) (quotation marks and citation
omitted). “One who holds a prescriptive easement is allowed to do such acts as are necessary to
make effective the enjoyment of the easement unless the burden on the servient estate is
unreasonably increased; the scope of the privilege is determined largely by what is reasonable
under the circumstances.” Id.

       Regarding the scope of a quasi-easement, our Supreme Court adopted a similar standard
in Rannels, 357 Mich. at 456-457 (quotation marks and citations omitted):

               Where during the unity of title an apparently permanent and obvious
       servitude is imposed on one part of an estate in favor of another, which at the time
       of the severance is in use, and is reasonably necessary for the fair enjoyment of
       the other, then upon a severance of such ownership, whether by voluntary
       alienation or by judicial proceedings, there arises by implication of law a grant or
       reservation of the right to continue such use. In such case the law implies that
       with the grant of the one an easement is also granted or reserved, as the case may
       be, in the other, subjecting it to the burden of all such visible uses and incidents as
       are reasonably necessary to the enjoyment of the dominant heritage, in
       substantially the same condition in which it appeared and was used when the
       grant was made.

                                              * * *

              The parties are presumed to have contracted with reference to the
       condition of the property at the time of the sale, and to have intended that the
       grantee should have the means of using the property granted, and, therefore, that

                                                -7-
       he should have such rights and privileges in or over the premises remaining in the
       grantor as might be requisite for that purpose. . . .

        Plaintiffs testified that they regularly drove vehicles down the same path across what is
now defendants’ properties before, and continuing after, the installation of Little Canal Drive.
This testimony is only rebutted by defendants’ testimony that beyond Little Canal Drive there
existed only a footpath before the Maticka sons widened the path after the driveway was paved.
Defendants provide no evidence suggesting that the area occupied by Little Canal Drive was not
wide enough for a vehicle to navigate or refuting plaintiffs’ testimony that vehicles had been
driven onto the Maticka property since the late 1960s. That plaintiffs may have widened the
portion of the path existing on their own property, allowing them greater navigability once there,
does not change the fact that plaintiffs have driven across what is now Little Canal Drive to
access their properties since the late 1960s.

        For these reasons, the trial court did not err by declining to limit plaintiffs’ easement to
foot traffic.

                                  D. UNJUST ENRICHMENT

        Lastly, defendants argue the trial court erred by declining to order plaintiffs to
compensate them for the use of the two-track, which they assert they constructed and which
increased the value of plaintiffs’ properties. Defendants argue that not to place a financial
responsibility on plaintiffs with respect to repairing any damage caused by plaintiffs or to cover
the cost of any burden placed on the easement as a result of any extension of the driveway (for
example, utility upgrades) would leave plaintiffs unjustly enriched. “[I]n order to establish a
claim of unjust enrichment, [the party claiming unjust enrichment] must demonstrate: (1) the
receipt of a benefit by the other party from the complaining party and (2) an inequity resulting to
the complaining party because of the retention of the benefit by the other party.” Karaus v Bank
of New York Mellon, 300 Mich. App. 9, 23; 831 NW2d 897 (2012). “Whether a claim for unjust
enrichment can be maintained is a question of law that we review de novo.” Id. at 22.

        Defendants presented no evidence at trial regarding the cost to install the driveway or the
value of the benefit conferred upon plaintiffs by way of opening their land to development.
Further, defendants provided no evidence regarding any damage plaintiffs might cause (a
speculative argument in any event) or that plaintiffs were going to extend the road and increase
the utility service to the area. In fact, defendants never requested that the trial court rule on the
apportionment of costs for damage to the driveway or expansion of utility costs. That the trial
court did not rule in favor of defendants on a claim defendants never placed before it cannot
form the basis of error on appeal. See Garbarino v Lee C Miller Co, 330 Mich. 688, 692; 48
NW2d 217 (1951) (explaining that there was no record evidence “the trial judge passed upon any
of the controverted issues,” the issues were not properly before the Court).

       We affirm. As the prevailing parties, plaintiffs may tax costs pursuant to MCR 7.219.

                                                              /s/ Peter D. O'Connell
                                                              /s/ Jane E. Markey



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