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Easements

I. Introduction §6.1

II. Easements Distinguished from Other Interests

A. Licenses §6.2

B. Tenancies and Leases §6.3

III. Types of Easements §6.4

IV. Creation of Easements

A. Generally §6.5

B. By Written Instrument

1. Express Grant or Reservation; Mortgage §6.6

2. Plat §6.7

3. Drains §6.8

C. By Operation of Law

1. Easements by Implied Grant or Implied Reservation §6.9

2. Easements by Necessity §6.10

3. Prescriptive Easements

a. Generally §6.11

b. Adverse and Notorious Use §6.12

c. Use Under Claim of Right §6.13

d. Continuous Use §6.14

e. Open and Peaceable Use §6.15

f. Tacking §6.16

g. Burden of Proof §6.17

h. Prescriptive Rights and Recreational Property §6.18

4. Easements Created by Condemnation §6.19

5. Easements by Estoppel §6.20

V. The Duration and Extent of the Burden and Responsibilities of the Parties

A. Generally §6.21

B. Duration of the Burden §6.22

C. Extent of the Burden §6.23

D. Responsibilities of the Parties §6.24

VI. Transfer of Easements §6.25

VII. Termination of Easements

A. Merger of Title §6.26

B. Agreement or Release §6.27

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§6.1 Michigan Real Property Law

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C. End of Purpose or Necessity §6.28

D. Abandonment §6.29

E. Adverse Possession §6.30

F. Tax Sale; Foreclosure of Mortgage §6.31

G. Easement for a Particular Term §6.32

VIII. Interference with Easement Rights §6.33

IX. Party Walls §6.34

X. Light, Air, and View §6.35

XI. Subjacent and Lateral Support §6.36

XII. Statutory Easements for Condominium Projects §6.37

XIII. Conservation Easements §6.38

I. Introduction

§6.1 Simply put, an easement is an interest in real estate that gives one per-

son the right to use another’s land for a specified purpose. Eyde v State, 82 Mich App

531, 267 NW2d 442 (1978). The focus is on use rather than ownership, and an ease-

ment does not displace the general possession of the landowner but instead entitles

the holder of the easement to occupy the burdened property only to the extent neces-

sary to fully enjoy the rights conferred by the easement. Morrill v Mackman, 24 Mich

279 (1872); Schadewald v Brulé, 225 Mich App 26, 570 NW2d 788 (1997).

Easements are common in Michigan real estate transactions. Bowen v Buck &

Fur Hunting Club, 217 Mich App 191, 550 NW2d 850 (1996). They are necessary to

most developments. Water, sewer, electric, communications, and gas utilities are usu-

ally placed within easements. In addition, easements are often granted between neigh-

bors and appear of record with respect to most parcels of Michigan real estate.

Easements involve complex legal principles; they cannot be treated lightly.

Because the simple definition set forth above and others like it that are com-

monly used do not adequately convey the complexity of the concept, a broader defini-

tion is necessary. In Nicholls v Healy, 20 Mich App 393, 174 NW2d 43 (1969),

appeal after remand, 37 Mich App 348, 194 NW2d 727 (1971), the Michigan Court

of Appeals said that an easement is an incorporeal hereditament that is a liberty, priv-

ilege, or advantage without profit that the owner of one parcel of land may have in

lands of another or a right that one proprietor has to some profit, benefit, or beneficial

use out of, in, or over the estate of another proprietor.

“Once granted, an easement

cannot be modified by either party or unilaterally. The owner of an easement cannot

materially increase the burden of it on the servient estate or impose thereon a new and

additional burden.” Schadewald, 225 Mich App at 36 (citations omitted).

Perhaps the best definition of easement as used in real estate law is found in

Restatement of Property §450:

An easement is an interest in land in possession of another which

(a) entitles the owner of such interest to a limited use or enjoyment of the land in

which the interest exists;

(b) entitles him to protection as against third persons from interference in such

use or enjoyment;

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Easements §6.2

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(d) is not a normal incident of the possession of any land possessed by the owner

of the interest, and

(e) is capable of creation by conveyance.

See generally Weaver, Easements are Nuisances, 25 Real Prop Prob & Tr J 103

(1990).

II. Easements Distinguished from Other Interests

A. Licenses

§6.2 Easements must be distinguished from their very close non–real estate

counterpart, licenses, which also involve the use of one person’s land by another for a

specified purpose. A license grants permission to do something on the land of the

licensor without granting any permanent interest in the realty. McCastle v Scanlon,

337 Mich 122, 59 NW2d 114 (1953); McClintic-Marshall Co v Ford Motor Co, 254

Mich 305, 236 NW 792 (1931). Licenses are revocable at the will of the licensor,

even if supported by consideration and even if the licensee spends money in reliance

upon the license. McCastle. The key to the distinction between easements and

licenses, then, is that an easement constitutes an interest in real estate, but a license

does not.

Forge v Smith, 458 Mich 198, 580 NW2d 876 (1998). Compare Epworth

League Training Assembly v Olney, 136 Mich 50, 98 NW 860 (1904) (privileges

granted in contract that, if license, would have been revoked by conveyance held to be

permanent easement in view of their nature), with Ladd v Teichman, 359 Mich 587,

103 NW2d 338 (1960) (broker entitled to commission for sale of easement since ease-

ment is real property right that constitutes “parcel” of land). Thus, creating a license

does not require the formality that is necessary to create an interest in real estate.

Evans v Holloway Sand & Gravel, Inc, 106 Mich App 70, 308 NW2d 440 (1981). In

addition, the statute of frauds, although applicable to easements, does not apply to

licenses. Forge. Licenses may be written or oral and may be created with or without

consideration. Morrill v Mackman, 24 Mich 279 (1872). In Morrill, the court said:

A license is a permission to do some act or series of acts on the land of the licen-

sor without having any permanent interest in it: [3 Kent‘s Commentaries, p. 452;

Cook v Stearns, 11 Mass 533, 538 (1814); Woodbury v Parshley, 7 NH 237 (1834);

Prince v Case, 10 Conn 37 (1935); Wolfe v Frost, 4 Sandf Ch 72, 91 (NY Ch)]. It is

founded on personal confidence, and therefore not assignable: 3 Kent, 452; Brown on

Stat. of Frauds, § 22. It may be given in writing or by parol; it may be with or without

consideration; but in either case it is subject to revocation, though constituting a pro-

tection to the party acting under it until the revocation takes place. Where nothing

beyond a mere license is contemplated, and no interest in the land is proposed to be

created, the statute of frauds has no application, and the observance of no formality is

important. But there may also be a license where the understanding of the parties has

in view a privilege of a less precarious nature. Where something beyond a mere tem-

porary use of the land is promised; where the promise apparently is not founded on

personal confidence, but has reference to the ownership and occupancy of other

lands, and is made to facilitate the use of those lands in a particular manner and for an

indefinite period, and where the right to revoke at any time would be inconsistent

with the evident purpose of the permission; wherever, in short, the purpose has been

to give an interest in the land, there may be a license but there will also be something

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§6.2 Michigan Real Property Law

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more than a license, if the proper formalities for the conveyance of the proposed

interest have been observed. What that interest shall be called in the law may depend

upon the character of the possession, occupancy or use, the promisee is to have, the

time it is to continue, and perhaps upon the mode in which the compensation, if any,

is to be made therefor. It may be an easement or it may be a lease hold interest; or if

the proper grant or demise has not been executed for the creation of either of these,

the permission to make use of the land may still constitute a protection to the party

relying upon it, until withdrawn.

24 Mich at 282–283.

A license may be created when the kind of interest that would normally be the

subject of an easement is granted but the formal requirements for the creation of an

easement are not met. McCastle. In Troff v Boeve, 354 Mich 593, 595, 93 NW2d 311

(1958), the Michigan Supreme Court held that when a preliminary agreement for the

sale of real estate provided that the “‘[d]riveway on north [was] to be used as long as

available,’” only a license was created, despite the plaintiff’s claim of an easement,

principally because of the statute of frauds and the apparently permissive impact of

the words used. See Zemon v Netzorg, 247 Mich 563, 226 NW 242 (1929) (driveway

established by neighboring property owners is license); Nowlin Lumber Co v Wilson,

119 Mich 406, 78 NW 338 (1899) (permission granted by letter to construct logging

roadway is license). See generally MCL 566.106 (statute of frauds).

But see Hunter v

Slater, 331 Mich 1, 49 NW2d 33 (1951) (court of equity imposed permanent license

from intention of parties, lack of formal requisites notwithstanding).

Common examples of licenses include baseball or theater tickets and parking

rights.

In the words of the Michigan Supreme Court, “an ‘irrevocable license’ by estop-

pel cannot be created in Michigan on the basis of an oral promise because recognizing

such a conveyance would violate the statute of frauds.” Kitchen v Kitchen, 465 Mich

654, 658, 641 NW2d 245 (2002). In Kitchen, the court considered a dispute between

two brothers, Robert and William, who had been equal owners of a large potato farm.

Robert owned and resided on a parcel of property bounded on three sides by the farm.

The farm operation planted the northern section of Robert’s parcel and crossed it with

an arm of the farm’s irrigation system. Following a dispute between the brothers, Wil-

liam purchased Robert’s interest in the potato farm. The purchase agreement did not

address the use of Robert’s property. Following the buyout, Robert decided that he did

not wish the farm to use his land and prevented it from planting crops and using the

irrigation system there. The farm asserted that an oral promise Robert had made con-

cerning the use of the northern section of his parcel gave rise to an irrevocable license

by estoppel. Specifically, the plaintiffs’ complaint alleged that Robert orally repre-

sented that the irrigation system could cross his land in perpetuity. The supreme court

concluded that the plaintiffs’ claim for an irrevocable license based on an alleged oral

promise must fail because it was barred by MCL 566.106. Distinguishing oral and

written licenses, which are terminable at will by the grantor and hence valid (since

these licenses, because of their revocability, do not create an interest in lands), the

court noted that an irrevocable license would constitute an “interest in lands” that may

not be granted orally in compliance with the statute of frauds, as it would involve a

permanent right to use the property. Stating that Michigan does not permit an interest

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Easements §6.3

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in land to transfer only on the basis of estoppel, the court also rejected the plaintiffs’

estoppel-based claim that, under Restatement of Property §519(4), a licensee who

makes expenditures in reliance on representations about the license’s duration may

continue to use the license to realize the value of the expenditures. The court also

said:

We reaffirm that a license may be granted orally, but hold that the oral license is

necessarily revocable at the will of the licensor without regard for any promised dura-

tion. Neither a written “license” that evidences a promised duration nor the oral con-

veyance of an intended permanent interest in land is an “irrevocable license.” Instead,

the grantor of such an intended interest, in effect, orally conveys an easement.

Although one can grant an express, irrevocable easement, it must be evidenced by a

writing manifesting a clear intent to create an interest in the land.

465 Mich at 661 (citations omitted).

A document granting a public electric utility the right to erect and maintain utility

poles across a designated piece of property in perpetuity is an easement across the

property rather than a license to use the property. Mumaugh v Diamond Lake Area

Cable TV Co, 183 Mich App 597, 456 NW2d 425 (1990).

MCL 600.2944 allows a court to grant a limited license for an adjoining owner or

lessee to enter a neighbor’s property to make improvements or repairs to the owned or

leased property that could not reasonably be made by the owner or lessee without

such entry.

Because licenses are personal property, they may not be sold or transferred.

Sweeney v Hillsdale County Bd of Rd Comm’rs, 293 Mich 624, 292 NW 506 (1940).

Licenses are revocable at the will of the licensor, even if supported by consideration

and even if the licensee spends money in reliance on the license. McCastle; Marshall

v Heselschwerdt, 304 Mich 664, 8 NW2d 871 (1943); Nowlin Lumber Co. A license

coupled with an interest, however, is not revocable at will.

While licenses are generally revocable at will, a license coupled with an interest is

not. However, a license coupled with an interest is a privilege “incidental to the own-

ership of an interest in a chattel personal located on the land with respect to which the

license exists.” This privilege is distinguished from licenses incidental to an interest

in land. In order to be irrevocable, the latter license must constitute an easement

appurtenant.

Forge, 458 Mich at 210–211 (citing Marshall; Restatement of Property §513; and

Powers v Harlow, 53 Mich 507, 513, 514, 19 NW 257 (1884)).

When the licensor conveys property over which a license has been granted, the

license is automatically terminated. Fletcher Oil Co v Bay City, 346 Mich 411, 78

NW2d 205 (1956). When such a license is revoked, however, the continued use of the

property by the former licensee could ripen into a prescriptive easement. See §6.11–

§6.18.

B. Tenancies and Leases

§6.3 According to the Michigan Supreme Court, an easement must also be

distinguished from a tenancy. In the words of Justice Cooley:

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§6.4 Michigan Real Property Law

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An easement is the right which one proprietor has to some profit, benefit or lawful

use, out of, or over, the estate of another proprietor: [Ritger v Parker, 62 Mass 145

(1851)]; Washb. on Easements, 4. It does not displace the general possession by the

owner of the land, but the person entitled to the easement has a qualified possession

only, so far as may be needful for its enjoyment: Washb. on Easements, 8. But there

may also be a tenancy in respect to the lands flowed, or to the right to flow. A tenancy

exists where one has let real estate to another, to hold of him as landlord. When duly

created and the tenant put in possession, he is owner of an estate for the time being,

and has all the usual rights and remedies of an owner to defend his possession. But a

tenancy does not necessarily imply a right to complete and exclusive possession; it

may, on the other hand, be created with implied or express reservation of a right to

possession on the part of the landlord, for all purposes not inconsistent with the priv-

ileges granted to the tenant. One who on the land of another, puts in a single crop on

shares, is held not to be a lessee: [Hare v Celey], Cro. Eliz., §143. But this does not

seem to be because his possession is not exclusive; but because, it being for the inter-

est of the owner of the land that they should be tenants in common of the growing

crop, their contract will be presumed to have contemplated that relation. See [Bishop

v Doty, 1 Vt 37 (1827); Bradish v Schenck, 8 Johns 151, 1811 NY LEXIS 96 (1811);

De Mott v Hagerman, 8 Cow 220, 1828 NY LEXIS 293 (1828)]. And in the leading

case, while it is held that there is no tenancy if the agreement is for a single crop, it is

said it will be “otherwise if it be for two or three crops:” Hare v. Celey, Cro. Eliz.,

§143. Though doubtless the owner of the land might, in that case equally as in the

other, retain the general possession, while the cultivator would have the qualified

possession essential for his purposes. In any case, the intent of the parties, as gathered

from their contract, would be the governing consideration in determining the nature

of the relation between them, and the proposed duration of that relation would be one

of the most important circumstances to be considered in arriving at that intent.

Morrill v Mackman, 24 Mich 279, 284–285 (1872).

In United Coin Meter Co v Gibson, 109 Mich App 652, 655–656, 311 NW2d

442 (1981), the court distinguished a license from a lease, holding:

A license is a permission to do some act or series of acts on the land of the licensor

without having any permanent interest in the land … . A lease, on the other hand,

gives the tenant possession of the property leased and exclusive use or occupation of

it for all purposes not prohibited by the terms of the lease.

Accord Macke Laundry Serv Co v Overgaard, 173 Mich App 250, 433 NW2d 813

(1988) (also noting that valid lease must contain parties’ names, adequate description

of premises, amount of rent, and length of term).

III. Types of Easements

§6.4 There are two types of easements: easements appurtenant and ease-

ments in gross. An easement appurtenant serves or benefits one parcel of land by

passing over or burdening another. An easement appurtenant is incident to and neces-

sarily connected with the use or enjoyment of the benefited parcel, and it passes with

the benefited property when the property is transferred. See McClintic-Marshall Co v

Ford Motor Co, 254 Mich 305, 236 NW 792 (1931). See generally Michigan Land

Title Standards 5th 14.1. See §6.25. An easement appurtenant is incapable of exist-

ence separate and apart from the particular land to which it is annexed. Schadewald v

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Easements §6.5

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Brulé, 225 Mich App 26, 570 NW2d 788 (1997). The land served or benefited by an

easement appurtenant is called the dominant tenement. The land burdened by an ease-

ment appurtenant is called the servient tenement. Rusk v Grande, 332 Mich 665, 52

NW2d 548 (1952); Hasselbring v Koepke, 263 Mich 466, 248 NW 869 (1933);

Schadewald.

An easement in gross is granted for the benefit of a particular person. An ease-

ment in gross is personal, most commonly arises in connection with utility companies

and railroads, and may not be transferred except by a utility or railroad. Johnston v

Michigan Consol Gas Co, 337 Mich 572, 60 NW2d 464 (1953) (citing Restatement of

Property §489); Stockdale v Yerden, 220 Mich 444, 190 NW 225 (1922). See gener-

ally Michigan Land Title Standards 5th 14.2.

Although the courts of some states do not recognize easements in gross,

Michi-

gan courts do. In Smith v Dennedy, 224 Mich 378, 381, 194 NW 998 (1923), the court

described and contrasted easements in gross and easements appurtenant:

“An easement appurtenant is defined as an incorporeal right, which, as the term

implies, is attached to and belongs to some greater or superior right; something

annexed to another thing more worthy, which passes as incident to it. Easements

appurtenant inhere in the land, concern the premises, and are necessary to the enjoy-

ment thereof. They are incapable of existence separate and apart from the particular

messuage or land to which they are annexed, there being nothing for them to act

upon. They are in the nature of covenants running with the land, attach to the land, to

which they are appurtenant, and pass by a deed of conveyance … .”

“Under the rule that there can be no easement without a distinct dominant tene-

ment, it is said that there can, in strictness, be no such thing as an easement in gross.

But there is a class of rights which one may have in another’s land without their being

exercised in connection with the occupancy of other lands, and they are therefore

called rights or easement in gross, and in such cases the burden rests upon one piece

of land in favor of a person or an individual; the principal distinction between an

easement proper, that is an easement appurtenant, and a right in gross is found in the

fact that in the first there is and in the second there is not a dominant tenement … .”

(Quoting 19 CJ Easements §§4, 5 (1920)). Michigan law does, however, favor ease-

ments appurtenant over easements in gross, and “[a]n easement will never be pre-

sumed to be a mere personal right where it can fairly be construed to be appurtenant

to some other estate.” Von Meding v Strahl, 319 Mich 598, 610, 30 NW2d 363 (1948);

accord Todd v Nobach, 368 Mich 544, 118 NW2d 402 (1962). Courts look at sur-

rounding circumstances if an easement is not expressly appurtenant or in gross; if the

easement in question relates in some way to a particular parcel of property, it is nearly

always deemed appurtenant. Myers v Spencer, 318 Mich 155, 27 NW2d 672 (1947);

Smith.

IV. Creation of Easements

A. Generally

§6.5 An easement may be created either by a grant or another conveyance

or by operation of law. Forge v Smith, 458 Mich 198, 580 NW2d 876 (1998) (citing

Troff v Boeve, 354 Mich 593, 93 NW2d 311 (1958)). The court in Forge noted that

“[i]n order to create an express easement, there must be language in the writing mani-

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§6.6 Michigan Real Property Law

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festing a clear intent to create a servitude. Any ambiguities are resolved in favor of

the use of the land free of easements.” 458 Mich at 205 (footnotes omitted); see also

Myers v Spencer, 318 Mich 155, 27 NW2d 672 (1947). See generally Michigan State

Highway Comm’n v Canvasser Bros Bldg Co, 61 Mich App 176, 232 NW2d 351

(1975).

Because an easement is an interest in real estate, it falls within the statute of

frauds, and if created by a grant or conveyance, the grant or conveyance must be in

writing.

Myers; Burling v Leiter, 272 Mich 448, 262 NW 388 (1935). Language in

the grant must manifest a clear intent to create a servitude. Ditmore v Michalik, 244

Mich App 569, 582, 625 NW2d 462 (2001). An easement may not be created by an

oral promise; and in Michigan, an easement may not rest on estoppel. Kitchen v

Kitchen, 465 Mich 654, 641 NW2d 245 (2002). See §6.20. If the grant or conveyance

is not in writing, a license will probably be created. Cf. Morrill v Mackman, 24 Mich

279 (1872). See generally §6.2 and §6.6. However, part performance may remove an

oral easement agreement from the statute of frauds. Kent Furniture Mfg Co v Long,

111 Mich 383, 69 NW 657 (1897).

B. By Written Instrument

1. Express Grant or Reservation; Mortgage

§6.6 An easement may be created by a number of written instruments. See

generally Michigan Land Title Standards 5th 14.6. In an express grant, for example,

which is similar to a deed, the grantor creates an easement across an identified tract of

real estate for the benefit of another tract of real estate or, in the case of an easement

in gross, for the benefit of a particular person. Such a grant should be prepared just as

carefully as a deed and be in recordable form and recorded to protect the interests of

the owners of both the dominant and servient tenements. Cf. Harr v Coolbaugh, 337

Mich 158, 59 NW2d 132 (1953); Haab v Moorman, 332 Mich 126, 50 NW2d 856

(1952); Hodgeson v Genesee County Drain Comm’r, 52 Mich App 411, 217 NW2d

395 (1974). If a grant is not recorded, a subsequent bona fide purchaser takes subject

to the easement only if it is visible. Murphy Chair Co v American Radiator Co, 172

Mich 14, 137 NW 791 (1912).

An easement may be created by an express reservation in another document of

conveyance. For example, at the time a parcel of property is conveyed by its owner,

the owner may reserve an easement over it for himself or herself or for the benefit of

other property he or she owns. See generally Michigan Land Title Standards 5th 14.7.

In Chapdelaine v Sochocki, 247 Mich App 167, 635 NW2d 339 (2001), a property

owner sold the front portion of his property but retained ownership of the back por-

tion. The selling property owner had inserted a provision in the purchase agreement

requiring, as a condition of the sale, an access easement to the retained back parcel.

However, no reservation was incorporated into the warranty deed conveying the front

parcel. The court concluded that the easement language in the purchase agreement

“was sufficient evidence of the intent of the parties to create plaintiff’s right to an

easement over defendants’ property.” Id. at 170.

In Forge v Smith, 458 Mich 198, 580 NW2d 876 (1998), the supreme court con-

sidered whether a claimed express easement failed as a matter of law to satisfy the

requirements of the statute of frauds. The defendants in the case included a brother

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