JILL MARIE-JAKUC OHLAND V OLD REPUBLIC NATIONAL TITLE INS CO
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STATE OF MICHIGAN
COURT OF APPEALS
JILL MARIE-JAKUC OHLAND and JON E.
OHLAND,
UNPUBLISHED
August 6, 2009
Plaintiffs-Appellants,
v
No. 285722
Washtenaw Circuit Court
LC No. 07-000138-CK
OLD REPUBLIC NATIONAL TITLE
INSURANCE COMPANY and HAROLD E.
TETER, Trustee of the HAROLD E. TETER
TRUST AGREEMENT,
Defendants,
and
CONSUMERS ENERGY COMPANY,
Defendant-Appellee.
Before: Owens, P.J., and Servitto and Gleicher, JJ.
PER CURIAM.
Plaintiffs appeal as of right from the circuit court’s order granting defendant Consumers
Energy Company summary disposition. We affirm, and decide this appeal without oral
argument in accordance with MCR 7.214(E).
This case concerns a disputed easement. In February 1959, defendant Harold Teter
granted Consumers a “right of way” to construct, operate and maintain a gas line on a parcel of
Salem Township property in Washtenaw County; Consumers recorded its interest in July 1959
and has operated a gas line on the property since that year. In January 2001, defendant Teter
Trust conveyed to plaintiffs by warranty deed an approximately three-acre portion of the nearly
40-acre Salem Township parcel, over part of which Consumers had constructed its gas line. In
anticipation of constructing a house, plaintiffs in 2005 obtained a survey of their property, during
which the surveyor found markers identifying the presence of an easement. Plaintiffs then
ascertained that Consumers claimed a gas line easement over the property and that the line ran
where they had hoped to build their house. Plaintiffs filed this action, alleging in their complaint
that they had to relocate their building site, incurring expenses they should not have to pay. The
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complaint raised trespass and ejectment counts against Consumers, and other counts against their
vendor and the title insurance company.1
Consumers sought summary disposition under MCR 2.116(C)(8), maintaining that it had
a priority interest as a matter of law given the undisputed fact that plaintiffs purchased their
property subject to Consumers’s validly recorded easement. Plaintiffs replied that the “right of
way” simply qualified as too indefinite in its description to constitute a valid conveyance entitled
to priority status under the recording statutes, and that the purported conveyance lacked
sufficient specificity to comply with the statute of frauds. At the summary disposition hearing,
the circuit court initially rejected plaintiffs’ suggestion that “this is merely a right-of-way and is
not a formal easement,” finding “that the document itself is specific with regard to identifying a
parcel of land, being section nine, township one, south range seven east, in . . . Salem Township,
Washtenaw County.” The circuit court further reasoned as follows that it would grant
Consumers summary disposition:
[The 1959 conveyance to Consumers] goes beyond what . . . could be
construed to be merely a right-of-way, because it doesn’t merely provide access to
the property to traverse the property. It provides full rights and authority of the
party of the second part, that being Consumers, the successors and assigns to enter
at all times . . . upon said . . . premises for the purpose of constructing, repairing,
removing, enlarging . . . gas mains, lines, and the like. If this were merely a rightof-way, . . . that language would not be included. The language . . . certainly
assists the Court in determining that this is more than just a mere right-of-way;
that it provided Consumers Energy with, in fact, an easement on . . . the premises.
Secondly, the document was in fact recorded and . . . plaintiff [sic] was
certainly placed on notice of the fact that there were easements of record, either
by way of a title policy search or . . . plaintiffs[’] own research could have
discovered . . . that there was some encumbrance on the property. Certainly, the
discussion which appears to be at issue now, as to the specific location of that
easement, where the line runs as it relates to the purchase and/or then the
construction of . . . plaintiffs’ home is something that is not the responsibility of
Consumers Energy. It’s certainly the responsibility of . . . plaintiff [sic] in order
to determine where it was located . . . .
Thirdly, I don’t find that there’s a violation of the statute of frauds. . . .
[T]he document itself is clearly signed by the parties in interest. It specifically
describes the property. Therefore, the motion for summary disposition is granted,
as there is no claim by . . . plaintiff [sic] against . . . defendant.
Plaintiffs challenge the circuit court’s summary disposition ruling, which we review de
novo. Kuznar v Raksha Corp, 481 Mich 169, 175; 750 NW2d 121 (2008).
1
The other defendants are not parties to this appeal.
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Summary disposition is proper under MCR 2.116(C)(8) if the nonmoving
party “has failed to state a claim on which relief can be granted.” Such claims
must be so clearly unenforceable as a matter of law that no factual development
could possibly justify recovery. In reviewing the outcome of a motion under
MCR 2.116(C)(8), we consider the pleadings alone. We accept the factual
allegations in the complaint as true and construe them in a light most favorable to
the nonmoving party. [Id. at 176 (some internal quotation omitted).]
Plaintiffs insist that absent any recorded metes and bounds description of the gas main’s
location, the 1959 grant to Consumers contained insufficient detail to constitute a valid
conveyance of a property interest or warrant enforcement under the statute of frauds, especially
in light of the facts that the entire Salem Township parcel consists of nearly 40 acres and
plaintiffs own only three acres. The 1959 document, entitled “Right of Way,” describes the
burdened Salem Township property in Washtenaw County as, “The West one-half (½) of the
West one-half (½) of the Southeast one-quarter (¼) of Section nine (9), Township one (1) South,
Range seven (7) east.” The document states that it conveys to Consumers “the easement and
right to lay, construct and maintain gas mains . . . in, through and across” the described property.
The document additionally specifies, “The route to be taken by said gas mains across said land
being more specifically described as follows: One gas main to run in a Northeasterly and
Southwesterly direction in, under, through and across said above described land.”
The circuit court correctly found that the “right of way” grant to Consumers constituted
an easement, which is subject to recording as a real property conveyance under MCL 565.29 and
MCL 565.35. Peaslee v Saginaw Co Drain Comm’r, 365 Mich 338, 343-344; 112 NW2d 562
(1961) (characterizing as an easement a document entitled “release” because “the release itself
contains words describing it as a ‘conveyance’ sufficient to grant an ‘easement’”). Plaintiffs
correctly observe that in some circumstances an indefinite property interest description in a
purported transfer may potentially invalidate the conveyance.
Johnston v Michigan
Consolidated Gas Co, 337 Mich 572, 577-578; 60 NW2d 464 (1953). However, plaintiffs ignore
the existence of Michigan case law recognizing that an easement is not rendered invalid merely
because, at the time of the conveyance, the precise location of the conveyance had not yet been
determined. Johnston, supra at 578; see also Greve v Caron, 233 Mich 261; 206 NW 334 (1925)
(rejecting a claim that “the words ‘together with the right of an alley in the rear’ . . . are too
indefinite to create an easement by grant,” and invoking the principle that “in case the way is by
grant, and the terms thereof locate the same by clear intendment, equity will not be so blind as to
fail to recognize the evident and necessary designation of the way”). After reviewing the
language of the easement conveyed in this case, we detect no indefiniteness that would justify a
finding of invalidity; to the contrary, the easement plainly permits a lone northeast-to-southwest
pipeline for specified gas main purposes, and further identifies with adequate specificity the
range, township, section, quarter, and portion of the quarter where the easement is located.2
Moreover, plaintiffs cite no controlling authority in support of the proposition that a conveyance
must contain a metes and bounds description, or that an easement holder must file documentation
2
The written easement, duly signed, also satisfies the statue of frauds, MCL 566.106.
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more specifically describing the location of an easement after the easement holder occupies it.
VanderWerp v Plainfield Charter Twp, 278 Mich App 624, 633; 752 NW2d 479 (2008)
(observing that an appellant may not leave it to this Court to locate authority supporting his
position).
Because plaintiffs do not suggest that Consumers exceeded the scope of its easement, and
because plaintiffs have conceded that Consumers recorded its easement in conformity with MCL
565.29 long before they obtained their interest in the property, we conclude that the circuit court
properly granted summary disposition of plaintiffs’ trespass and ejectment claims pursuant to
MCL 2.116(C)(8). We lastly note that after reviewing the complaint, which attached among
other documents the easement that Consumers recorded in 1959, and the transcript containing the
circuit court’s bench opinion granting summary disposition, we find unsupported plaintiffs’
suggestion that the court looked beyond the pleadings in granting Consumers’s motion.3
Affirmed.
/s/ Donald S. Owens
/s/ Deborah A. Servitto
/s/ Elizabeth L. Gleicher
3
We decline to consider Consumers’s request for sanctions under MCR 7.216(C), which it
neglected to properly file in a motion for sanctions. MCR 7.211(C)(8).
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