BONAVERRE FAUST V RAYMOND P GILREATH
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STATE OF MICHIGAN
COURT OF APPEALS
BONAVERRE FAUST, GERALD E. SCHNEIDER,
and SUE C. SCHNEIDER,
UNPUBLISHED
April 9, 1999
Plaintiffs-Appellees,
v
No. 210615
Branch Circuit Court
LC No. 96-010619 CH
RAYMOND P. GILREATH and MARIE V.
GILREATH,
Defendants-Appellants.
Before: Holbrook, Jr., P.J., and Murphy and Talbot, JJ.
PER CURIAM.
Defendants appeal as of right the trial court’s judgment for plaintiffs in this case involving a
dispute over access to a channel near the parties’ real property and the Schneiders’ right to maintain a
dock in the channel. The trial court granted the Schneiders a prescriptive easement for access to the
channel and placement of a dock for mooring boats, granted Faust title by adverse possession to the
land between her lot and the water’s edge, and determined a boundary line between the Faust and
Gilreath property. We affirm.
This case arises from a real property dispute between plaintiffs and defendants, all of whom
own property in Bussing’s Landing No. 2 plat, a subdivision. Plaintiff Faust owns Lot 26; Plaintiffs
Schneiders own Lot 27; and defendants own Lot 28. A channel is located near these lots; however, the
water does not abut the lots. In order to obtain access to the channel from Lot 27, one must go across
Lot 28, pursuant to a deeded easement, as well as the land in dispute, which lies between the parties’
lots and the channel.
Plaintiffs filed suit to enjoin the Gilreaths from excavating the land between their lot and the
channel because they felt that the excavation would impinge on their property rights. Defendants filed a
counterclaim alleging that the Schneiders have attempted to enlarge the easement rights they possess
over the Gilreaths’ lot and that the seawall of railroad ties placed at the channel by Faust encroaches
upon defendants’ property.
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Because actions regarding interests in land are equitable in nature, MCL 600.2932(5); MSA
27A.2932(5), our review is de novo; however, the trial court’s findings of fact will not be modified or
overturned unless clearly erroneous. Caywood v Dep’t of Natural Resources, 71 Mich App 322,
332; 248 NW2d 253 (1976). “A finding of fact is clearly erroneous when, although there is evidence
to support it, the reviewing court is left with a definite and firm conviction that a mistake has been
made.” Markillie v Bd of Livingston Co Rd Comm'rs, 210 Mich App 16, 22; 532 NW2d 878
(1995). This standard of review applies to all of defendants’ arguments.
Defendants first argue that the trial court erred in finding that a prescriptive easement existed
over the property in question because the evidence did not establish continuous use of the property for
fifteen years. A prescriptive easement “is no more than an unopposed, continuous trespass for 15
years.” McDonald v Sargent, 344 Mich 345, 344-345; 13 NW2d 843 (1944). This Court has
stated that “[a]s a general rule, an easement by prescription arises from a use of the servient estate that
is open, notorious, adverse, and continuous for a period of fifteen years.” Goodall v Whitefish
Hunting Club, 208 Mich App 642, 645; 528 NW2d 221 (1995). Pursuant to statute, no person may
bring or maintain an action to recover possession of any lands unless the action is commenced within
fifteen years. MCL 600.5801(4); MSA 27A.5801(4).
Continuous use does not mean constant use. Dyer v Thurston, 32 Mich App 341, 344; 188
NW2d 633 (1971) (“A pathway easement to a summer cottage is considered to be in continuous use if
it is used merely seasonally”). However, continuous use is not found when there is no clear and cogent
proof of this essential element, which is necessary for the divestiture of title to land. Dummer v U S
Gypsum Co, 153 Mich 622, 641-642; 117 NW 317 (1908).
Although defendants presented evidence that there was not continuous use of the dock, other
evidence revealed that the dock remained in its original location for approximately twenty years, the
owners of Lot 27 always mowed the area on the lower side of the railroad ties, and the lots were
designed for access to and use of the channel. On this record, we conclude that the trial court did not
clearly err in finding a prescriptive easement where the evidence supported a finding of continuous use
of the real property in question.
We next address defendants’ argument that the trial court erred by increasing the scope of the
easement. Defendants argue that the use of the dock should be limited to the docking of a ten-foot boat
because placing larger boats by the dock extends the scope of the easement.
The Michigan Supreme Court has stated that “[a] principle which underlies the use of all
easements is that the owner of an easement cannot materially increase the burden of it upon the servient
estate or impose thereon a new and additional burden.” Delaney v Pond, 350 Mich 685, 687; 86
NW2d 816 (1957). The Michigan Supreme Court also has stated that the use of an easement should
not “unreasonably interfere with [the complaining party’s] use and enjoyment of their property.” Thies
v Howland, 424 Mich 282, 289; 380 NW2d 463 (1985). Because the extent of a party’s right under
an easement is a question of fact, this Court reviews the trial court’s determination for clear error.
Dobie v Morrison, 227 Mich App 536, 541; 575 NW2d 817 (1998).
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There is little indication that the uses of the land permitted by the trial court will unreasonably
interfere with the Gilreaths’ use and enjoyment of their property. The trial court granted the Schneiders
and their heirs, successors and assigns the right to place a dock, not exceeding ten feet in length, in the
channel at the location on the west side of the prescriptive easement, as defined by the court, where it
borders the channel, in order to access the lake and to moor boats. Although the trial court granted the
owners of Lot 27 the entitlement to maintain the location of the prescriptive easement for reasonable
use, which testimony indicated was done in the past, it limited the size of the dock and ordered that
watercraft may not be docked south of the south line of the prescriptive easement. The property south
of the south line of the prescriptive easement is the Gilreaths’ property. Because the trial court defined
the prescriptive easement as limiting the owners of Lot 27 from docking watercraft north of the
prescriptive easement’s south boundary, the Gilreaths’ property is not sustaining a materially increased
burden by the court not specifically limiting the size of watercraft docked there. We conclude that it is
reasonable for the court to determine the boundaries of the prescriptive easement and then hold that
neither party may dock watercraft in a fashion that would infringe upon these boundaries; thus, the trial
court’s determination was not clearly erroneous.
Next, defendants argue that the trial court clearly erred in granting Faust title by adverse
possession to the land between her lot and the edge of the channel because that land was held by
Herbert Bussing’s heirs, who were not parties to the action. Defendants provided no case law to
support their assertion. This Court has stated that “[a] party may not leave it to this Court to search for
authority to sustain or reject its position.” In re Keifer, 159 Mich App 288, 294; 406 NW2d 217
(1987). Nonetheless, because defendants have conceded that they did not have title to the land in
question and because they have failed to demonstrate how the trial court’s decision to grant Faust title
to the land by adverse possession detrimentally affected any interest that they might have in the land, we
conclude that defendants lack standing to challenge this aspect of the trial court’s decision. See Bowie
v Arder, 441 Mich 23, 42-43; 490 NW2d 568 (1992), citing 59 Am Jur 2d, Parties, § 30, p 414
(“[o]ne cannot rightfully invoke the jurisdiction of the court to enforce private rights, or maintain a civil
action for the enforcement of such rights, unless one has in an individual or representative capacity some
real interest in the cause of action, or a legal or equitable right, title, or interest in the subject matter of
the controversy. This interest is generally spoken of as ‘standing’”).
Finally, defendants argue that the trial court erred in determining the boundary line between the
Faust and Gilreath lots and the channel, because the line was neither that contained in the deeds
obtained from the Bussing heirs, nor the 45-degree angle from the northwest corner of their lot to the
channel as suggested by the Gilreaths in their counterclaim. Because defendants did not provide any
case law to support their theory, the issue is abandoned on appeal. Dresden v Detroit Macomb Hosp
Corp, 218 Mich App 292, 300; 553 NW2d 387 (1996), In re Keifer, supra at 294. Regardless, on
this record, we conclude that the trial court’s finding in this boundary dispute is not clearly contrary to
the evidence presented.
We affirm.
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/s/ Donald E. Holbrook, Jr.
/s/ William B. Murphy
/s/ Michael J. Talbot
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