GLEN J MATTHEWS V DEPT OF NATURAL RESOURCES
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STATE OF MICHIGAN
COURT OF APPEALS
GLEN J. MATTHEWS, CAROL J. MATTHEWS,
KEVIN P. MATTHEWS, STEPHANIE M.
MATTHEWS, MARTIN B. SCHAEFFER, and
ANN SCHAEFFER,
FOR PUBLICATION
April 6, 2010
9:05 a.m.
Plaintiffs-Appellees,
v
DEPARTMENT OF NATURAL RESOURCES,
No. 288040
Mecosta Circuit Court
LC No. 05-016782-CH
Defendant-Appellant.
Before: K. F. KELLY, P.J., and HOEKSTRA and WHITBECK, JJ.
PER CURIAM.
This case arises out of the right of certain landlocked property owners to maintain and
use a crude pathway (several hundred wooden pallets laid end-to-end) across a state-owned and
regulated wetland. Defendant, Department of Natural Resources (the Department), appeals as of
right the trial court’s order entering judgment in favor of plaintiffs, Glen Matthews, Carol
Matthews, Kevin Matthews, Stephanie Matthews, Martin Schaeffer, and Ann Schaeffer1
(collectively, “the landlocked property owners”). The Department argues that the trial court
erred in finding that privity existed between the landlocked property owners and their
predecessors-in-interest when there was no mention of an easement in the deeds and it was
undisputed that the issue of an easement was never discussed with the previous owners. The
Department also contends that the trial court erred in allowing the landlocked property owners to
place fill material in a regulated wetland without obtaining a permit from the Department of
Environmental Quality.2 The landlocked property owners respond that the trial court properly
found that they had established privity between them and their predecessors-in-interest based on
1
We note that the spelling of the surname “Schaeffer” varies in the record. However, for
consistency, we will use this spelling throughout this opinion.
2
Although the Department is responsible for administration and control of state-owned land,
MCL 324.503(1), the Department of Environmental Quality is vested with authority for
regulating uses of wetlands, MCL 324.30301, et seq.
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their prior use of the landlocked parcel. The landlocked property owners also contend that the
trial court properly balanced common-law against statutory provisions and held that the various
rights sought to be protected by those laws weighed in favor of the landlocked property owners.
We affirm in part and reverse in part.
I. BASIC FACTS AND PROCEDURAL HISTORY
In 1969, Arthur Funnell and his wife, Edna Funnell; their son Melvin Funnell and his
wife Betty Funnell; and their daughter Joyce Schaeffer and her husband Robert Schaeffer
(collectively, “the Funnells”), purchased the landlocked parcel, which consisted of 40 acres of
property in the Township of Sheridan, Mecosta County, Michigan. Each of the three couples
received an undivided 1/3 interest. The prior owners were Albert and Delila Anderson, who
purchased the landlocked parcel from the State of Michigan in 1937. Arthur Funnell intended to
use the landlocked parcel as a seasonal hunting camp. The landlocked parcel has no direct
access to any public road. To the north and west, it is surrounded by state-owned property. And
to the east and south, it is surrounded by private property. Plaintiff Glen Matthews testified at
trial that his father-in-law, Arthur Funnell, had specifically sought out an inexpensive parcel of
land and that he purchased the landlocked parcel with full knowledge that it was landlocked.
Glen Matthews also testified that, although the family was not specifically looking for a
landlocked parcel, landlocked land is less expensive than properties with road access.
The state-owned land that surrounds the landlocked parcel
Martiny Lakes State Game Area. The nearest maintained road
approximately 1 mile to the north of the landlocked parcel. There
road that extends from Madison Road through the state land.
approximately .22 miles short of the landlocked parcel.
on two sides is part of the
is Madison Road, located
is an old logging two-track
This two-track road ends
Over time, the Funnells transferred their ownership interests to the landlocked property
owners. The landlocked property owners are all members of Arthur Funnell’s family, either by
blood or affinity. In February 1984, Arthur Funnell’s widow, Edna Funnell, deeded her 1/3
interest to their daughter Carol Matthews and her husband Glen Matthews. In May 1996, Melvin
Funnell’s widow, Betty Funnell, deeded her 1/3 interest to her nephew, Martin Schaeffer, and his
wife, Ann Schaeffer. And in January 1998, Robert Schaeffer’s widow, Joyce Schaeffer, deeded
her 1/3 interest to her nephew, Kevin Matthews, and his wife, Stephanie Matthews.
The landlocked property owners and their predecessors (the Funnells) visited the property
during hunting season in the late 1960s, accessing it by foot. Initially, they would walk across an
adjacent parcel of privately-owned land. However, shortly thereafter, the owner of that private
land asked them to stop crossing that land, so the Funnells began parking at the end of a trail just
off Madison Road, and would then walk the rest of the way across the state-owned land. Around
1975, they were able to drive a little further off Madison Road because the two-track road had
been created for logging purposes on the state land. They were unable to drive further than the
end of the two-track road because the ground was too wet and swampy. In the early 1970s, they
began using snowmobiles to traverse the swamp and then later used ATVs.
From the time that the Funnells first acquired the landlocked parcel, they would place
some dead wood from the surrounding forest in particularly wet areas of the state-owned land to
help them traverse it. However, in 1984 or 1985, the landlocked property owners began to place
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wooden pallets on the ground in the swamp area to make it more passable. This resulted in the
construction of a road of pallets that stretches .22 miles (or 1,200 feet), from the end of the twotrack road to the landlocked parcel.
The landlocked property owners testified that in addition to using the land as a hunting
camp, they used the land and the cabin thereon essentially as a family retreat, with couples
spending quiet weekends there together or with numerous family members gathering to celebrate
holidays together.
Glen Matthews testified that there was no discussion about access or an easement at the
time the property was conveyed to him. Carol Matthews explained that there was no need for a
specific discussion regarding access because Glen and Carol Matthews took it for granted that
the two-track and the pallet path were the sole means to get to the property. Carol Matthews also
explained that the transfer of interest from the Funnells was just a formality because the
landlocked property owners “were always involved.” Martin and Ann Schaeffer similarly
testified that there was no discussion about access or an easement at the time the property was
conveyed to them because they had never accessed the property in any manner other than going
across the two-track and the pallet path. Kevin Matthews, however, testified he and his uncles,
Robert Schaeffer and Melvin Funnell, did have specific discussions about how to access the
property before he took ownership. Kevin explained that Robert and Melvin told him that they
had “pretty much exhausted any other alternatives on how to get in and out” and that the pallet
path was the best route.
Department’s wildlife habitat biologist, Jeffrey Greene, was assigned to Mecosta County
in 1998. In the course of his duties, he noted that there was evidence of illegal activities on the
state land between Madison Road and the landlocked parcel. He noticed dumping of trash, piles
of new pallets at the end of the two-track road, and old pallets placed in the swamp south of the
end of the two-track road. (Greene, however, did not suspect the landlocked property owners of
dumping the trash, and the Department concedes that there is no reason to believe that they were
responsible). However, Greene testified that pallets harm the wetland by breaking down wetland
vegetation and increasing soil erosion and sedimentation. Greene also testified that the road of
pallets presented not only harm to the wetland, but also a danger to hunters on the state-owned
land. According to Greene, the pallets were slippery, with nails protruding from them; thus, he
was concerned about the safety of hunters who may walk on them.
Additionally, Greene noted that the illegal use of motorized vehicles3 has resulted in
harm to the wetland and was the very reason why the trail was becoming more difficult to
traverse. The motorized vehicle usage had torn up the wetland and created holes, which vehicles
could then sink into and get stuck. Because of these activities and the risks of harm to the
hunters, wetland, and wildlife, Greene spoke with his supervisor about closing the two-track
3
It is illegal to use an off-road recreation vehicle (including a snowmobile or all-terrain vehicle)
in a state game area. MCL 324.81133(e). Additionally, it is illegal to operate an off-road
recreation vehicle in a wetland. MCL 324.81133(o). It is not illegal to travel by foot through a
state game area.
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road. On August 21, 2003, a gate was placed off Madison Road, cutting off vehicular access to
the two-track road.
On August 25, 2003, Greene met with three of the landlocked property owners. Greene
offered to issue a key to the gate and a use permit, which would allow the landlocked property
owners to open the gate and access the two-track road for a period of one year. But the
landlocked property owners did not respond. Greene also requested that the landlocked property
owners assist him in removing the pallets and proposed that they could replace the pallets with
proper walkways over the wetter spots of the trail. But the landlocked property owners declined
this suggestion, instead inquiring about the possibility of obtaining an easement across the stateowned land from the Department. Greene provided them with the Department’s easement
application, but the landlocked property owners never applied because they heard that it was
unlikely that the Department would grant their request.
The landlocked property owners filed this action, alleging that they had a prescriptive
easement to access their landlocked parcel through the state-owned land and to maintain the road
of pallets through the state-owned wetland area. The landlocked property owners requested a
judgment allowing them ingress and egress to the landlocked parcel by vehicle, ATV, and
snowmobile. (The landlocked property owners also alleged implied easement, but that issue has
not been re-raised on appeal and we will not discuss it further).
On March 13, 2008, at the end of a three-day bench trial, the trial court ruled from the
bench that the landlocked property owners had proven a prescriptive easement across the stateowned land to access their property. The trial court held that the landlocked property owners
were required to demonstrate that they used state-owned land to access their parcel in a way that
was open, notorious, and hostile for a period of 15 years prior to March 1, 1998 (the date on
which a statute barred prescriptive easement actions against the state). The trial court found that
a parol grant of an easement did occur because the landlocked property owners and their
predecessors had continually used the pathway and had always assumed that they would be able
to cross the state-owned land to access their property. According to the trial court,
the behavior of the many parties having participated in going back and forth on
this property, and clearly understanding that it was accessed by this easement,
leaves no doubt that there was privity, leaves no doubt that there was parole
indications or information known or made known to these parties at the time the
property was conveyed from one family member or a group of family members to
another family member or a group of family members. I am not saying there were
actual words, but I think the activities of using the property for such a long time
left no doubt as to what was understood to be part of the conveyance.
In April 2008, the trial court issued a post-trial written judgment. The trial court
confirmed its holding that the landlocked property owners had established a prescriptive
easement. However, the trial court requested that the parties submit post-trial briefs on the issue
of the scope of the prescriptive easement.
On September 11, 2008, after receiving the post-trial briefs and conducting a telephone
conference, the trial court issued a written opinion and order. The trial court first cited case law
indicating that easement holders are generally allowed to do such acts as necessary to make
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effective use and enjoyment of the easement and that scope is largely determined by what is
reasonable under the circumstances. The trial court then turned to the provisions of the NREPA,
which prohibits people from placing fill material in the wetlands.4 The trial court acknowledged
that “[a]llowing Plaintiffs to continue to use the easement as they have historically done would
appear to violate the above provisions of [NREPA]” but then qualified that statement by stating
that the trial court could “excuse[]” the violation “by [its] decision that a prescriptive easement
has been established.” The trial court went on to note that the NREPA did allow for certain
easement exceptions for construction of various types or roads and pipelines, and then stated that
“[w]hile Plaintiffs’ easement does not fit into one of these categories, it is apparent that the
Legislature recognized that certain other rights would be balanced against, and in some cases
take priority over the protection of wetland areas through elimination of any possibly intrusive
activities.” The trial court then explained its understanding that the landlocked property owners’
use of the private property would be materially curtailed if they are not allowed to
place something on the path to allow motorized vehicles to travel to and from
their private property. Walking or skiing would be the only means of ingress and
egress at times when the ground and/or water are frozen. Based on age and
physical limitations, this limits the ability of some of the plaintiffs to visit the
property. It also limits hauling of supplies and other items during deer hunting
season and again limits participation in this activity by some of the plaintiffs.
The trial court also acknowledged that the state had significant interests in protecting the
integrity and value of the wetlands. The trial court then went on to note the difficulty in
attempting to strike a balance between the parties’ competing interests: “Both interests are
significant, and it is well recognized that they are to be protected. So, what is the balance to be
struck?”
The trial court “reject[ed]” the Department’s recommended solutions:
Requiring permitting likely means that numerous steps must be taken, which
likely would include the installation of a boardwalk, engineered floating pads, or a
similar structure by Plaintiffs over the full .22-mile path. Based on the limited
relevant testimony at trial, a cost of $40,000 or more was suggested for
installation of a boardwalk. The Court finds that requiring a boardwalk or
engineered floating mat over the full .22 miles [sic] path is unreasonable. It
would likely be prohibitively expensive for plaintiffs and also likely would in
effect deny Plaintiffs the reasonable enjoyment of their property rights.
The trial court then continued:
Moreover, adopting Defendant’s proposed solution would require
Plaintiffs to seek permits and approval for their uses from Defendant, effectively
placing the determination of the scope of the easement (or the existence of the
4
MCL 324.30304(a).
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easement at all) in the hands of the Defendant and not the Court. Effectively, this
would mean the Plaintiffs had achieved nothing in establishing the existence of
the easement. Despite the possibility that the Plaintiffs might be able to comply
with the permitting process and still enjoy the benefits of their easement, the
likely outcome of the process is speculative on this record. Plaintiffs likely would
have no greater rights than the general public with respect to their easement.
Although noting the potential harm to the wetland ecosystem by continued use of the
pallets, the trial court nevertheless ruled that the landlocked property owners could continue to
maintain and use their makeshift pallet roadway to traverse the regulated wetland without
applying for or obtaining a statutorily required permit from the Department of Environmental
Quality.
The Department now appeals the trial court’s rulings that the landlocked property owners
demonstrated the requisite privity to allow them to tack their periods of prescriptive use with
those of the predecessors in interest and that the landlocked property owners could place fill
material and maintain a use in a wetland without obtaining a permit from the Department of
Environmental Quality.
II. TACKING AND PRIVITY
A. STANDARD OF REVIEW
The Department argues that the trial court erred in finding that privity exists when there
was no mention of an easement in the deed and it was undisputed that the issue of an easement
was never discussed with the previous owners at the time of the conveyances.
Actions to quiet title are equitable, and we review the trial court’s holdings de novo.5
However, we review the trial court’s findings of fact for clear error.6
B. ANALYSIS
Generally, the period of limitation for the recovery or possession of land is 15 years.7
However, it is well settled that “[t]he statute of limitations for recovering real property does not
run against the state or state agencies, . . . unless there is legislation to the contrary.”8 Prior to
March 1, 1988, legislation to the contrary did exist that allowed claims of adverse possession or
5
Gorte v Dep’t of Transportation, 202 Mich App 161, 165; 507 NW2d 797 (1993).
6
Higgins Lake Property Owners v Gerrish Twp, 255 Mich App 83, 117; 662 NW2d 387 (2003).
7
MCL 600.5801(4).
8
Gorte, 202 Mich App at 165, citing Caywood v Dep’t of Natural Resources, 71 Mich App 322;
248 NW2d 253 (1976).
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prescriptive easement against the state.9 On March 1, 1988, however, the Legislature enacted
1988 PA 35, amending MCL 600.5821(1), and reinstating the common-law rule that one cannot
acquire title to state-owned property through adverse possession or prescriptive easement.10
MCL 600.5821(1) now provides:
Actions for the recovery of any land where the state is a party are not subject to
the periods of limitations, or laches. However, a person who could have asserted
claim to title by adverse possession for more than 15 years is entitled to seek any
other equitable relief in an action to determine title to the land.
Interpreting the amended MCL 600.5821(1), this Court has held that, because the
Legislature removed the prior language that permitted the running of the limitation period, the
period of limitation for adverse possession can no longer run against the state.11 This Court
clarified, though, that Ҥ 5821, as amended, cannot be applied to plaintiffs if it will abrogate or
impair a vested right.”12 Therefore, “[t]he statute does not operate to extinguish rights that have
vested before the effective date of the statute, March 1, 1988.”13
“Because the statute cannot be applied if it would abrogate or impair a vested right,” it is
necessary to determine when the plaintiff’s claim of title to the property vested.14 The party
claiming a prescriptive easement is vested with title to the land upon the expiration of the period
of limitation, “and this title is good against the former owner and against third parties.”15 In
other words, “the expiration of the period of limitation terminates the title of those who slept on
their rights and vests title in the party claiming adverse possession. Thus, assuming all other
elements have been established, one gains title by adverse possession when the period of
limitation expires, not when an action regarding the title to the property is brought.”16
9
Id. Prior to March 1, 1988, MCL 600.5821(1) provided:
No action for the recovery of any land shall be commenced by or on behalf of the
people of this state unless it is commenced within 15 years after the right or title
of the people of this state in the land first accrued or within 15 years after the
people of this state or those from or through whom they claim have been seised or
possessed of the premises, or have received the rents and profits, or some part of
the rents and profits, of the premises.
10
Gorte, 202 Mich App at 166.
11
Id. at 167.
12
Id.
13
Higgins Lake Property Owners v Gerrish Twp, 255 Mich App 83, 119; 662 NW2d 387 (2003).
14
Gorte, 202 Mich App at 168.
15
Id.
16
Id. at 168-169 (internal citation omitted).
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“An easement represents the right to use another’s land for a specified purpose.”17 In
other words, “‘[a]n easement does not displace the general possession of the land by its owner,
but merely grants the holder of the easement qualified possession only to the extent necessary for
enjoyment of the rights conferred by the easement.’”18 A prescriptive easement results from
open, notorious, adverse, and continuous use of another’s property for a period of 15 years.19 A
prescriptive easement requires elements similar to adverse possession, except exclusivity.20 The
plaintiff bears the burden to demonstrate entitlement to a prescriptive easement by clear and
cogent evidence.21
The Department does not dispute that the landlocked property owners have met the
requirements of showing that their use was open, notorious, and adverse. Rather, the Department
contends that the landlocked property owners have failed to show continuous use of the property
for a period of 15 years.
As explained above, in order to claim a prescriptive easement against the state, the
landlocked property owners have to show that they possessed the easement for a full 15 years
prior to March 1, 1988. In other words, they have to show that they began to use the claimed
easement on March 1, 1973, or before. However, none of the current landlocked property
owners had any ownership interest in the landlocked parcel until at least 1984. Therefore, in
order for their claim to survive, the landlocked property owners have to show privity of estate by
“tacking” on the possessory periods of their predecessors in interest to achieve the necessary 15year period.22 If they are able to show such “tacking,” then the Department concedes that the
landlocked property owners will satisfy the 15-year period because it is undisputed that the
landlocked property owners’ immediate predecessors-in-interest bought the property in 1969.
“[P]rivity may be shown in one of two ways, by (1) including a description of the
disputed acreage in the deed, or (2) an actual transfer or conveyance of possession of the
disputed acreage by parol statements made at the time of conveyance.”23
There is no dispute that none of the landlocked property owners’ deeds conveyed an
easement across the state-owned land. And the Department contends that the landlocked
property owners cannot show transfer by parol evidence because all the landlocked property
17
Plymouth Canton Community Crier, Inc v Prose, 242 Mich App 676, 678; 619 NW2d 725
(2000).
18
Id. at 679 n 2, quoting Schadewald v Brule, 225 Mich App 26, 35; 570 NW2d 788 (1997)
(alteration added).
19
Higgins Lake, 255 Mich App at 118.
20
Id.
21
Killips v Mannisto, 244 Mich App 256, 260; 624 NW2d 224 (2001).
22
Siegel v Estate of Renkiewicz, 373 Mich 421, 425; 129 NW2d 876 (1964); Killips, 244 Mich
App at 259.
23
Killips, 244 Mich App at 259 (internal citation omitted); see also Siegel, 373 Mich at 425.
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owners admitted that no discussions took place regarding an easement or the method of
accessing the landlocked parcel at the time of their respective conveyances. The landlocked
property owners respond, however, pointing out that they had been visiting and using the
property since the Funnells first purchased it in 1969 and that it was always understood that the
only means of access to the landlocked parcel was to travel across the state land.
The Department responds to the landlocked property owners’ argument, pointing out that
to show privity there must be a “parol,” or oral,24 statement made at the time of conveyance.
The Department contends then that the landlocked property owners’ mere use of the same
pathway was insufficient to show privity. However, the landlocked property owners counter that
contention, relying on case law in which the Michigan Supreme Court held that past use of a
property was sufficient to meet the parol statement requirement.
In von Meding v Strahl,25 the plaintiffs sought to quiet title in a 20-foot-wide lane leading
to Lake Michigan and to restrain the defendants, neighboring landowners, from using the lane.
On appeal, the Court held that some of the defendants, the Flanagans, had established an
easement by prescription and tacking.26 At the time the plaintiffs brought their suit, the
Flanagans had owned their property from 1928 to 1941.27 Because they had only owned their
property for 13 years, the Court stated that they could sustain their prescriptive interest only if
they could tack their ownership to that of the prior owner, Mrs. Dillenbeck.28 After noting the
parol transfer requirement, the Court held that the Flanagans could tack their use to that of their
predecessor based on their prior use of the lane.29 Specifically, the Court explained:
We are satisfied from the record that the Flanagans, owners of parcel 11, were
well acquainted with the Dillenbecks from whom they acquired the title, that they
had visited and remained on the property and had used the strip for many years
prior to their acquisition of the title to the property. The easement was so jointly
used by the neighbors, that it was considered as appurtenant to all of the lands.
The conclusion is inescapable that in 1928 when the Flanagans purchased the
land, the parties must have understood that an easement was appurtenant to the
land, parcel 11. Undoubtedly it was the intention of Dillenbeck to transfer her
rights to the easement to the Flanagans. The record leads us to the conclusion
that there was a parol transfer by Mrs. Dillenbeck to the Flanagans of her rights in
24
Black’s Law Dictionary (7th Ed).
25
von Meding v Strahl, 319 Mich 598, 602; 30 NW2d 363 (1948).
26
Id. at 614-615.
27
Id. at 614.
28
Id.
29
Id. at 614-615.
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the easement sufficient to permit the Flanagans to tack the prior adverse user of
Mrs. Dillenbeck to their own adverse user to make up the prescriptive period.[30]
The Department attempts to distinguish von Meding from this present case by noting that
the record in von Meding was “meager and complicated,”31 whereas the record here is “very
clear.” The Department also argues that reading von Meding to allow for privity absent evidence
of an express parol grant would contravene the well-established rule requiring that parol
statements be made at the time of conveyance. According to the Department , courts should not
be permitted to simply look at the totality of circumstances and surmise that a transfer was
intended.
However, we conclude that von Meding is analogous and supports a ruling in the
landlocked property owners’ favor. It is important to clarify that this is not a case of an armslength, third-party transfer. In this case, the landlocked property owners all testified that they
and their family members/predecessors-in-interest had “always” used the easement. They
collectively testified that they had never used any other way to access their landlocked parcel
and, indeed, did not know of any other viable means of access. This is substantially similar to
the facts in von Meding in that, here, the landlocked property owners were well acquainted with
the Funnells and had visited and remained on the property and had used the pathway for many
years prior to their acquisition of the title to the property.32 Thus, as in von Meding, “[t]he
conclusion is inescapable” that in 1984 when the first of the landlocked property owners began
to purchase the land, the parties must have understood that an easement was appurtenant to the
land.33 As in von Meding, undoubtedly it was the Funnells’ intention to transfer their rights to
the easement to the landlocked property owners.34
And, while we appreciate the Department’s concerns about over-broadly interpreting, or
even effectively contravening, the parol statement requirement, a ruling in favor of the
landlocked property owners under the circumstances of this case will not operate to deteriorate
the parol statement rule. We are following the von Meding precedent, which created a
reasonable exemption to the common law rule requiring parol statements, by holding that the
parol transfer requirement can be satisfied in the limited circumstances where the tacking
property owners are “well acquainted” and there is clear and cogent evidence35 that the
predecessors-in-interest “undoubtedly” intended to transfer their rights to their successors-ininterest, for example, by showing that the successors had “visited and remained on the property
and had used [it] for many years prior to their acquisition of the title to the property.”36 Indeed,
30
Id. (emphasis added).
31
Id. at 602.
32
See id. at 614-615.
33
See id.
34
See id.
35
Killips, 244 Mich App at 260.
36
von Meding, 319 Mich at 614-615.
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to hold otherwise would needlessly impose an artificial requirement on parties in similar
circumstances and would possibly work to deny parties their otherwise properly vested rights.
Where predecessors and successors are so intimately acquainted as in the facts here, it would not
be reasonably expected for the predecessors to expressly articulate to the successors a right that
all parties already believed they possessed.
The Department additionally argues that the trial court’s finding of fact that the
landlocked property owners always believed they had an easement was clearly erroneous in light
of their testimony that they asked Jeff Greene about the possibility of acquiring an easement over
the land. The Department posits that the landlocked property owners “would not have asked
about acquiring an easement if . . . they already believed they owned one.” This argument is
without merit. As stated previously, a party claiming a prescriptive easement is vested with title
to the land upon the expiration of the period of limitation.37 Therefore, the fact that the
landlocked property owners began to question their right to cross the state land after the
Department began blocking their access in 2003 does not negate that their right was already
vested.
Accordingly, we conclude that the trial court correctly held that the landlocked property
owners could tack their prescriptive use of the state-owned land with that of their predecessorsin-interest because under the circumstances they were able to show privity through their
continual, prior use of the easement.
III. STATUTORY PERMIT REQUIREMENTS
A. STANDARD OF REVIEW
The Department argues that a trial court may not exempt parties from statutory permit
requirements simply based on its finding that the parties hold a common law prescriptive
easement across wetlands.
Actions to quiet title are equitable, and we review the trial court’s holdings de novo.38
The proper interpretation of a statute is also a question of law subject to our de novo review.39
We review the trial court’s findings of fact for clear error.40
B. ANALYSIS
The Department argues that the landlocked property owners have violated both the
NREPA by placing “fill material”—the wooded pallets—in a wetland, and by constructing and
37
Gorte, 202 Mich App at 168.
38
Id. at 165.
39
Putkamer v Transamerica Ins Corp of America, 454 Mich 626, 631; 563 NW2d 683 (1997).
40
Higgins Lake, 255 Mich App at 117.
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maintaining a “use or development”—the pathway of pallets—in a wetland, without seeking to
obtain a permit. Specifically, § 30304 of the NREPA provides in pertinent part:
Except as otherwise provided in this part or by a permit issued by the department
under sections 30306 to 30314 and pursuant to part 13, a person shall not do any
of the following:
(a) Deposit or permit the placing of fill material in a wetland.
***
(c) Construct, operate, or maintain any use or development in a wetland.[41]
The Department further contends that the trial court had no authority to excuse the landlocked
property owners from adhering to the statutory permit requirement. The landlocked property
owners respond, arguing that the trial court was entitled to recognize an exception to the permit
requirement based on its perception of the desirability of “balancing” the statute against other
“rights” not enumerated in the statute.
We first conclude that the trial court did not violate the NREPA or the separation of
powers doctrine when it recognized that the landlocked property owners had established the
existence of a prescriptive easement. The Michigan Supreme Court has made clear that the
NREPA does not grant the Department exclusive jurisdiction to manage the land within its
control.42 Moreover, this Court has stated that the NREPA does not expressly or impliedly
supersede common-law principles regarding implied easements.43 However, we do not agree
that the trial court was permitted to disregard the statutory requirements when determining the
scope of the easement.
Here, the trial court recognized that, under common law, parties that have shown the
existence of a prescriptive easement are “allowed to do such acts as are necessary to make
effective the enjoyment of the easement, and the scope of this privilege is determined largely by
what is reasonable under the circumstances.”44 The trial court then concluded that it was
unreasonable to require the landlocked property owners to obtain a permit. We disagree.
As the Department points out, neither the landlocked property owners nor the trial court
offered any evidence or authority to “support the proposition that a right to prescriptive use of
another’s property may also convey the right to violate a statute.” In other words, the fact that
the landlocked property owners may have a right to use the easement at issue does not negate
41
MCL 324.30304.
42
Burt Twp v Dep’t of Natural Resources, 459 Mich 659, 669-670; 593 NW2d 534 (1999).
43
Schumacher v Dep’t of Natural Resources, 256 Mich App 103, 109 n 3;663 NW2d 921
(2003).
44
Killips, 244 Mich App at 261.
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their duty to follow the applicable laws and regulations affecting the land over which their
easement extends. For example, mere establishment of a right to use of an easement does not
permit the easement holder to disregard local zoning ordinances.45
The NREPA sets forth a clear mandate that, absent qualification under one of several
enumerated exceptions,46 a person must obtain a permit before placing fill material or
maintaining a use in a wetland.47 And although recognizing that the NREPA expressly provided
specific enumerated exceptions, the trial court nevertheless took it upon itself to recognize an
additional exception for the landlocked property owners under the circumstances of this case.
The trial court reasoned that the enumerated exceptions were created to recognize “that certain
other rights would be balanced against, and in some cases take priority over the protection of
wetland areas through elimination of any possibly intrusive activities.” Therefore, the trial court
found that the landlocked property owners could likewise be exempted from the permit
requirement as long as they took efforts to minimize their intrusive activities. In so holding, the
trial court erred.
As the Department points out, it is a well-established rule of statutory construction that
when the Legislature enumerates a list of conditions or exceptions in a statute, “[t]heir
enumeration eliminates the possibility of their being other exceptions under the legal maxim
expressio unius est exclusio alterius.”48 As the Department explains, the trial court therefore
erred in holding “that the exact opposite is true and that, if the Legislature enumerates a list of
statutory exceptions, it . . . must intend to open the door to any other exceptions that a court may
deem reasonable.” The trial court was not entitled to engage in its own permitting process
contrary to the Legislature’s express intent and judicially create an additional exception to the
permit requirement.
Additionally, we disagree with the trial court that it would be unreasonable to require the
landlocked property owners to apply for a proper permit. The trial court’s concerns about the
additional burdens that may be placed on the landlocked property owners by the permitting
process are speculative. And it is the province of the Department of Environmental Quality,49
not the court, to assess the circumstances and devise a plan to allow the landlocked property
owners the most reasonable use of their land while still protecting the state’s interest in
45
See Bevan v Brandon Township, 438 Mich 385, 400; 475 NW2d 37 (1991). See also Burt
Twp, 459 Mich at 662 (holding that even the Department of Natural Resources itself it subject to
comply with the local zoning ordinances).
46
MCL 324.30305.
47
MCL 324.30304.
48
Hoerstman Gen Contracting, Inc v Hahn, 474 Mich 66, 74-75; 711 NW2d 340 (2006). See
also Black’s Law Dictionary (7th ed), p 1635 (“The expression of one thing is the exclusion of
another.”).
49
MCL 324.30301(d); MCL 324.30304.
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preserving and protecting the character and integrity of the wetlands.50 Accordingly, we
conclude that the trial court erred in holding that the landlocked property owners were allowed to
continue maintaining their pallet pathway without seeking to obtain a proper permit from the
Department of Environmental Quality.
We affirm the trial court’s decision that the landlocked property owners established the
existence of a prescriptive easement of state-owned land, but we reverse the trial court’s decision
that the landlocked property owners need not follow the statutory requirement of obtaining a
permit to place fill material in a wetland area.
/s/ Kirsten Frank Kelly
/s/ Joel P. Hoekstra
/s/ William C. Whitbeck
50
On this point, we acknowledge the trial court’s concerns that installation of a boardwalk
system over the full .22-mile path might be cost prohibitive. Thus, we would caution the
Department of Environmental Quality to avoid imposing permitting requirements that would rise
to the level of effectively denying the landlocked property owners the reasonable enjoyment of
their property rights.
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