BRUCE F WADEL TRUST NO 1 V ROBERT E BEYER
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STATE OF MICHIGAN
COURT OF APPEALS
BRUCE F. WADEL TRUST NO. 1 and
VIRGINIA D. WADEL TRUST NO. 1,
UNPUBLISHED
February 26, 2002
Plaintiffs/Counter-DefendantsAppellants,
No. 225227
Mason Circuit Court
LC No. 98-008453-CZ
v
ROBERT E. BEYER and ANGELIKA H.
BEYER,
Defendants/Counter-PlaintiffsAppellees.
Before: Griffin, P.J., and Holbrook, Jr., and Hoekstra, JJ.
PER CURIAM.
Plaintiffs1 appeal as of right from the trial court’s entry of judgment for
defendants/counter-plaintiffs after a bench trial in this real property dispute. Plaintiffs challenge
the trial court’s judgment that defendants acquired an easement over plaintiffs’ land to access
Lake Michigan, its rulings admitting certain witness testimony and deposition testimony, and its
order awarding defendants expert witness fees. We affirm.
The facts that give rise to this case have transpired over many years, and we need not
recount every step along the way. As they relate to resolution of this appeal, the facts are that
defendants purchased the at-issue property from the Elliott’s in 1984. The Elliott’s acquired
their lot from plaintiffs in 1975, and thereafter improved the lot by building a home. When the
Elliott’s purchased their lot, plaintiffs were marketing this lot and the surrounding land that they
owned as a proposed subdivision. One of the main features of the promotion was that each lot
would enjoy access to Lake Michigan by a common easement that was to be part of the
subdivision. Plaintiffs assured the Elliotts that despite the fact that the subdivision had not been
approved and therefore plaintiffs could not make the proposed easement part of the sale, they
would have access to Lake Michigan. Relying on that promise, the Elliotts purchased and
improved the property. For reasons that are not clear and are largely irrelevant to the case,
1
Plaintiffs originally brought this lawsuit in the names of Bruce Wadel and Virginia Wadel;
however, the parties and trial judge signed an order substituting the Wadels’ trusts as party
plaintiffs.
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plaintiffs never obtained approval for the subdivision, but they did honor their promise to the
Elliotts regarding lake access. When the Elliotts decided to sell, they obtained assurance from
plaintiffs in the form of a letter that beach access would continue, but that whether it was
permanent depended on the city’s approval of the proposed plat and the formation of an
association to share maintenance costs. With this understanding, defendants purchased the
property and used the same means of access to the lake as the Elliotts. In 1989, plaintiffs
informed defendants that they no longer had permission to access Lake Michigan over plaintiffs’
land, but nonetheless defendants continued to use the lake access despite this notification.
Finally, in 1998, plaintiffs filed the instant complaint to quiet title and to enjoin defendants
continued use of the property; defendants counter-claimed for a permanent easement. Following
trial, the trial court awarded defendants an easement. This appeal ensued.
Plaintiffs first claim that the trial court erred in granting defendants an easement based on
principles of equitable estoppel and implied easement. Turning first to implied easement,
plaintiffs assert that an implied easement did not arise because during the unity of title of
defendants’ and plaintiffs’ properties, no permanent and obvious servitude existed in favor of
defendants’ property. We disagree. “We review the trial court's findings of fact in a bench trial
for clear error and conduct a review de novo of the court's conclusions of law.” Chapdelaine v
Sochocki, 247 Mich App 167, 169 ; __ NW2d __ (2001), citing MCR 2.613(C) and Walters v
Snyder, 239 Mich App 453, 456; 608 NW2d 97 (2000).
“To establish an implied easement, three things 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.” Schmidt v Eger, 94 Mich App 728, 731; 289 NW2d 851
(1980), citing Harrison v Heald, 360 Mich 203; 103 NW2d 348 (1960), Rannels v Marx, 357
Mich 453; 98 NW2d 583 (1959), and Koller v Jorgensen, 76 Mich App 623; 257 NW2d 192
(1977). “A claim of implied easement arises where two or more tracts of property are created
from a single tract, and the use of the servient estate for the benefit of the dominant estate is
apparent, continuous, and necessary.” Forge v Smith, 458 Mich 198, 211, n 38; 580 NW2d 876
(1998), citing Rannels, supra. The burden of proving the claim by a preponderance of the
evidence rests on the party asserting the easement. Schmidt, supra.
Plaintiffs’ argument on appeal focuses on whether the evidence supports a finding that
during the unity of title an apparent and obvious servitude existed in favor of the property that
defendants now own. Plaintiffs maintain that during the unity of title no “permanent structure”
existed. The import of plaintiffs’ argument is that something manmade must exist before an
apparent and obvious servitude can be found. We reject this notion. Here, during unity of title
the entire property that plaintiffs owned had the immense benefit of access to Lake Michigan.
The fact that the lake is not manmade makes it no less a benefit to the property from which
access to it can be had.
Plaintiffs also argue that the evidence fails regarding whether the easement was
reasonably necessary for the fair enjoyment of the property it benefits. Plaintiffs argue that the
use of nearby lakes is not a benefit to property. In Koller, supra at 629, this Court found to the
contrary. Plaintiffs take issue with Koller and encourage us to either disregard it or “overrule” it
because it is not binding on us. MCR 7.215(H)(1). We decline this invitation because we think
the reasoning and holding of Koller makes perfect sense. When one purchases property that has
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access to a lake, and that access is denied, the very essence as well as the value of the property is
changed. If property exists either in whole or in part as recreational property, the continued
existence of that characteristic is reasonably necessary to the fair enjoyment of the property.
Consequently, we find no grounds upon which to conclude that the trial court in the present case
erred in ruling that defendants had met their burden for claiming an easement by implication.2
Because the easement awarded to defendants is fully supported in law by the trial court’s finding
of an implied easement, we need not address plaintiffs’ argument concerning equitable estoppel.
Next, plaintiffs claim that the trial court erred in admitting another property owner’s
testimony because it was irrelevant. We review evidentiary decisions for an abuse of discretion.
Kalamazoo Oil Co v Boerman, 242 Mich App 75, 78; 618 NW2d 66 (2000). Evidence is
relevant if it tends “to make the existence of any fact that is of consequence to the determination
of the action more probable or less probable than it would be without the evidence.” MRE 401.
Having reviewed the record here, we cannot say that the trial court abused its discretion because
the testimony in question was relevant to show the intent of the parties and the circumstances
leading to the dispute.
Plaintiffs next claim that the trial court erred in considering deposition transcripts that
defendant submitted to the court during closing argument, but that were not admitted into
evidence before the close of proofs, and where one deposition was conducted contrary to court
rule. We first note that plaintiffs did not object to the manner or form of the deposition in
question before or during its taking, waiving the issue on appeal. MCR 2.308(C); see Earl v
White, 155 Mich App 152, 157-158; 399 NW2d 40 (1986). Regardless, even if plaintiffs’ claim
were preserved, we find it is without merit. The record shows that defendants did comply with
the court rules for de bene esse depositions, because they filed the deposition notice and the
actual deposition with the court to preserve the testimony. MCR 2.301(C); MCR 2.302(H)(1)(b)
(“If discovery materials are to be used at trial they must be either filed or made an exhibit); MCR
2.306(B)(1). In any event, MCR 2.308(C) allows improperly taken depositions to be used by the
court unless “the court finds that the errors substantially destroy the value of the deposition as
evidence or render its use unfair or prejudicial.” MCR 2.308(C)(5). Moreover, contrary to
plaintiffs’ assertion, the attorney who conducted the deposition did not engage in a trial in the
court in this state in violation of a State Bar Rule. Given that the trial court expressly stated that
it reached its judgment without use of the deposition, reference to it was not clear error. MCR
2.301-2.302; MCR 2.308(C)(5); Michigan Ass’n of Psychotherapy Clinics v Blue Cross & Blue
Shield of Michigan (After Remand), 118 Mich App 505, 513; 325 NW2d 471 (1982).
Finally, plaintiffs claim that the trial court erred in awarding expert witness fees for a
2
To the extent that plaintiffs suggest that the trial court failed to carry out its duties in the
analysis of its bench trial opinion, we disagree. The trial court’s findings of fact, analysis, and
conclusions of law are sufficient. MCR 2.517(A)(1) and (2) (“Brief, definite, and pertinent
findings and conclusions on the contested matters are sufficient, without overelaboration of
detail or particularization of facts.”); Triple E Produce Corp v Mastronardi Produce, Ltd, 209
Mich App 165, 176; 530 NW2d 772 (1995). The trial court demonstrated that it was aware of
the issues in the matter and properly applied the law; thus, the trial court did not err in its
discussion of the easement by implication doctrine. Id. at 176-177.
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witness defendants did not qualify as an expert. “The qualification of an expert witness, and the
admissibility of the expert testimony, are within the trial court's discretion, and the trial court's
decision will not be reversed absent an abuse of discretion.” Bouverette v Westinghouse Electric
Corp, 245 Mich App 391, 400; 628 NW2d 86 (2001). Likewise, “[w]e review for abuse of
discretion the trial court’s determination to award expert witness fees.” Rickwalt v Richfield
Lakes Corp, 246 Mich App 450, 466; 633 NW2d 418 (2001).
Here, the witness in question testified at trial concerning the value of the property with
and without lake access, which was the key inducement. Although defendants asked the witness
about his credentials, they did not move to qualify him as an expert; however, plaintiffs did not
object at trial to the testimony. After lengthy inquiry at the motion hearing, the trial court
determined that the witness had recognized specialized knowledge that would assist the court to
understand the evidence or to determine a fact in issue. According to MRE 702, “a witness
qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto
in the form of an opinion or otherwise.” Because this action proceeded as a bench trial, the
witness testified to his credentials and obviously was not a fact witness, and plaintiffs had the
opportunity to cross-examine the witness, and because the trial judge stated that he knew that the
witness would be testifying as an expert from the beginning of his testimony, we cannot say that
the trial court abused its discretion.
Affirmed.
/s/ Richard Allen Griffin
/s/ Donald E. Holbrook, Jr.
/s/ Joel P. Hoekstra
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