JAMES R HOLTON V SHARON BONE
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STATE OF MICHIGAN
COURT OF APPEALS
JAMES R. HOLTON,
UNPUBLISHED
December 27, 2007
Plaintiff/Counter-DefendantAppellee,
v
No. 272113
Oakland Circuit Court
LC No. 2003-050009-CH
SHARON BONE,
Defendant/Counter-Plaintiff-
Appellant.
Before: Murphy, P.J., and Smolenski and Schuette, JJ.
PER CURIAM.
In this real property dispute, defendant appeals as of right from the trial court’s order
requiring defendant to remove a culvert from an earthen dam on her property.1 On appeal,
defendant challenges the trial court’s authority to grant plaintiff equitable relief based on the
theory that plaintiff had a prescriptive right to have the water level on his property artificially
maintained by the earthen dam on defendant’s property. Because we conclude that the trial court
properly exercised its equitable power to grant plaintiff relief, we affirm.
I. Basic Facts and Procedural History
The facts of this case are largely not in dispute. Plaintiff owns land directly south of
defendant’s parcel. Plaintiff’s parcel encompasses the south end of a significant area of wetlands
that spans the full width of defendant’s parcel and continues to the parcel immediately north of
defendant’s land. Plaintiff’s parcel also contains a pond. The entire wetland area drains from
west to the east through defendant’s parcel. An earthen dam on defendant’s property controls the
level of the water in the wetlands area.
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Defendant also filed a counter-claim against plaintiff for tortious interference with a contract.
However, the trial court found in favor of plaintiff on this claim and defendant has not appealed
this part of the trial court’s opinion and order.
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Defendant’s parcel also contains an agricultural field immediately to the east of the
wetlands. However, defendant does not have direct road access to the field. In approximately
2003, defendant began to build an access road from the road bordering her property on the west
to the field. She decided to build the road through the southernmost end of the wetlands on her
property, which area was immediately north of plaintiff’s pond. Defendant also had a culvert
installed in the earthen dam.
Plaintiff sued defendant for injunctive relief. Plaintiff claimed that defendant’s
installation of the culvert wrongfully lowered the water level of the entire wetlands area,
including the wetlands on his property and his pond. Plaintiff asked the trial court to order the
removal of the road and culvert. The case proceeded to a bench trial.
At trial, Junior Clark testified that, at one time, he and his father owned all of the land at
issue. Clark stated that the west end of the land was once one contiguous wetland. He further
testified that in 1952 he built the earthen dam at issue to create a pond and raise the water level to
hard ground to keep his cattle from walking through mud. Clark also said that he had a portion
of the wetland, which is now on plaintiff’s property, dredged to create a pond. The soil from the
dredging was placed immediately north of the dredged area. However, Clark said that the water
level is normally fairly high and the strip of land created by the dredged soil is not exposed.
Rather, at high water level, the wetlands resemble more of a lake. Clark stated that the pond was
created to control runoff and was used to water his cattle. Clark also testified that the earthen
dam did not contain a culvert. Clark stated that he sold defendant’s parcel to her predecessor in
interest in 1968 and sold plaintiff’s parcel to plaintiff in 1997. Clark said he continued to visit
and use the land sold to plaintiff up until 1997.
At trial, defendant focused her defense on evidence that the dam already contained a
culvert, which was not functioning properly, long before she began to build her access road.
Defendant claimed that she merely replaced the culvert and restored the dam to proper
functioning. Plaintiff argued that defendant deliberately placed the culvert in the dam to reduce
the water levels in the wetlands and, thereby, facilitate the construction of her access road.
The trial court determined that defendant’s testimony and evidence concerning the
culvert were not credible. Instead, the trial court concluded that the earthen dam never had a
culvert and that defendant installed the present culvert in order to provide access to the east end
of her property at lower cost. Further, the trial court determined that plaintiff “has a right to
enjoyment of the water as it existed for the many years prior to his purchase of the property and
until such time as Defendant interrupted that enjoyment by installing the culvert.” Based on
these findings and conclusion, the trial court ordered defendant to remove the culvert.
This appeal followed.
II. Failure to Plead Prescriptive Easement
Defendant first argues that the trial court was without the authority to grant plaintiff
injunctive relief based on the theory that plaintiff had a prescriptive right to the maintenance of
certain water level on his property. Defendant contends that the trial court lacked this authority
because plaintiff never pleaded prescriptive easement and did not amend his complaint to include
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a claim of prescriptive easement. Likewise, the parties did not expressly or impliedly consent to
the trial of this theory. We disagree.
A trial court does not have the authority to grant relief based on a claim that was never
pleaded. See Peoples Savings Bank v Stoddard, 359 Mich 297, 325; 102 NW2d 777 (1960) and
City of Bronson v American States Ins Co, 215 Mich App 612, 619; 546 NW2d 702 (1996).
However, under MCR 2.111(B)(1), the “only requirements for stating a cause of action is a
presentation of factual allegations that would reasonably inform defendants of the ‘nature of the
claims’ against which defendants are called on to defend.” Smith v Stolberg, 231 Mich App 256,
260-261; 586 NW2d 103 (1998).
In the present case, plaintiff did not identify any particular theory in his complaint.
Instead, plaintiff indicated that his complaint was for injunctive relief and stated the factual bases
in support of his request for an injunction. In his factual allegations, plaintiff clearly indicated
that he believed that defendant was wrongfully making improvements to her property that
lowered the level of water on his land. Specifically, plaintiff alleged that the installation of the
culvert in the earthen dam damaged his property and “converted” his pond and wetland. On a
fair reading of the complaint, it is apparent that plaintiff was arguing that he had the right to use
the dam on defendant’s property to maintain the water level on his property. Smith, supra at
260-261. Thus, plaintiff’s complaint placed defendant on notice that plaintiff claimed the right
to an easement over defendant’s property. See Mich Dep’t Natural Resources v Carmody-Lahti
Real Estate, Inc, 472 Mich 359, 378; 699 NW2d 272 (2005) (noting that an easement is the right
to use the land burdened by the easement). Further, it is also clear that plaintiff asked the court
to exercise its equitable powers to grant him relief. Indeed, plaintiff requested both the equitable
relief of an injunction and “other relief that may be just and proper.” “The shape of relief in
equity is not of necessity controlled by the prayer, but is formed by the court according to the
germane conditions and equities existing at the time decree is made.” Advance Dry Wall Co v
Wolfe-Gilchrist, Inc, 14 Mich App 706, 712; 165 NW2d 906 (1968). Consequently, defendant
was on notice that the trial court would sit in equity to determine whether plaintiff had the right
to compel defendant to refrain from altering the earthen dam in a way that reduced the level of
the water on plaintiff’s property.
The trial court did not err in considering whether plaintiff had an easement over
defendant’s property.
III. Failure of Proofs
Defendant next argues that the trial court erred in granting relief, because plaintiff failed
to present evidence that plaintiff’s use of the dam was hostile and failed to present evidence that
he detrimentally relied on the level of the water. We disagree with both contentions.
The extent of a party’s rights under an easement is a question of fact that this Court
reviews for clear error. Blackhawk Dev Corp v Village of Dexter, 473 Mich 33, 40; 700 NW2d
364 (2005). However, a trial court’s dispositional rulings on equitable matters are reviewed de
novo. Id.
Although defendant claims that the trial court granted relief based on a determination that
plaintiff had a prescriptive easement over defendant’s property, the trial court did not specifically
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justify its determination on that basis. Instead, the trial court merely stated that plaintiff had the
right to the “enjoyment of the water as it existed for the many years prior to his purchase of the
property and until such time as Defendant interrupted that enjoyment by installing the culvert.”
However, the trial court’s citation of Mathewson v Hoffman, 77 Mich 420; 43 NW 879 (1889),
suggests that the trial court may have concluded that plaintiff had acquired a prescriptive right to
have the level of water maintained by defendant’s dam. Because Mathewson involved a
diversion of a stream rather than the maintenance of water level, it is not directly applicable to
the facts of this case. Nevertheless, we conclude on de novo review, that the trial court correctly
determined that plaintiff had an equitable right to have the dam maintained in such a way that it
did not lower the level of the water on his land.
Generally, the owners of land overflowed by waters as a result of the existence of a dam
have no right to require the dam owner to maintain the dam for their benefit. Goodrich v
McMillan, 217 Mich 630, 634; 187 NW 368 (1922). However, an owner of land overflowed by
water can establish a right to the continued flooding of lands. See Stidham v Algonquin Lake
Community Ass’n, 133 Mich App 94, 99; 348 NW2d 46 (1984) (noting that a land owner may
acquire a prescriptive right to the maintenance of an artificial water level). A plaintiff may also
establish an easement by implied reservation. Schmidt v Eger, 94 Mich App 728, 733; 289
NW2d 851 (1980). In order to establish an easement by implication, three elements must be
shown: “(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 731.
In the present case, Clark’s testimony established that he built the dam at the time when
his family owned all the property at issue. Clark stated that the purpose of the dam was to raise
the level of the water to hard ground, control runoff on the property and create the pond that was
dredged on the land that would eventually be conveyed to plaintiff. Clark testified that the pond
was intended to be permanent. This evidence clearly established two servitudes: (1) a servitude
on the lands flooded by the erection of the dam in favor of the land on which the dam is located
and (2) a servitude on the land occupied by the dam for the maintenance of sufficient water for
the pond in favor of the land now owned by plaintiff. Id. Further, given the nature of the land, it
is readily apparent that the dam is necessary to maintain the water in the pond and wetlands and,
therefore, that any change in the dam that permits water to leave the wetlands will adversely
affect the level of water in the wetlands and pond. Indeed, the trial court specifically found that
defendant placed the culvert to lower the level of the water in the wetlands. Hence, there was
evidence sufficient to support the conclusion that the servitude was readily apparent to a
purchaser when Clark severed the parcels. Id. at 736-737. Finally, Clark testified that the pond
was created to control runoff and was used to water his cattle. In addition, plaintiff testified that
he purchased the land in part because of the pond and that he used the pond and wetlands for
recreation. Plaintiff further stated that, before the drop in water level, he could boat and canoe
the pond and wetlands. Consequently, there was evidence from which the trial court could
conclude that the artificially high water level was reasonably necessary to the enjoyment of
plaintiff’s property. Id. at 735. Therefore, under the facts of this case, the trial court did not err
in concluding that plaintiff had a right to the continued maintenance of an artificially high water
level.
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The trial court properly exercised its equitable power to grant plaintiff relief under the
facts of this case.
Affirmed.
/s/ William B. Murphy
/s/ Michael R. Smolenski
/s/ Bill Schuette
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