ALLEN MODROO V MARIE COPPA
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STATE OF MICHIGAN
COURT OF APPEALS
ALLEN MODROO and BONNIE S. MODROO,
UNPUBLISHED
January 19, 2006
Plaintiffs-Appellants,
v
No. 264307
Leelanau Circuit Court
LC No. 04-006733-CH
MARIE COPPA and AMELIA JAYNE,
Defendants-Appellees.
Before: Zahra, P.J., and Murphy and Neff, JJ.
PER CURIAM.
Plaintiffs appeal as of right the trial court’s order granting summary disposition in favor
of defendants pursuant to MCR 2.116(C)(10) in this action involving a dispute over the existence
and validity of an easement claimed by defendants, who own the dominant estate, that traverses
two parcels owned by plaintiffs, the servient estates, and which alleged easement provides access
to defendants’ property from a roadway abutting plaintiffs’ property. We affirm.
Plaintiffs own two adjoining parcels of land on Grand Traverse Bay in Leelanau County.
The northernmost parcel abuts a roadway known as Cherry Tree Lane, and this roadway dead
ends at the northern boundary of said parcel. Cherry Tree Lane is located within the Old Mission
View Subdivision. The parties’ parcels at issue in this case are not located within the Old
Mission View Subdivision. Defendants’ property lies directly to the south of plaintiffs’ parcels.
Defendants maintain that a valid easement exists, running from Cherry Tree Lane over both of
plaintiffs’ parcels and connecting at defendants’ property line,1 thereby giving them access to
their property via Cherry Tree Lane and the easement. Lee Point Road lies directly to the west
and abuts plaintiffs’ and defendants’ property. Plaintiffs maintained that defendants have no
legal right to utilize the claimed easement for reasons forthcoming in this opinion.
1
Defendants own several adjoining parcels of property that lie to the south of plaintiffs’ parcels.
When we speak of defendants’ “property,” the reference will pertain to the parcel that directly
adjoins plaintiffs’ southernmost parcel unless otherwise indicated.
-1-
There is no dispute that two 1960 warranty deeds regarding conveyances by predecessors
in title to the parties here contained reservations of an easement over both of plaintiffs’ parcels
by the past owners of defendants’ property who at one time owned all of the three parcels at
issue. These easement reservations provided respectively:
RESERVING, HOWEVER, unto the Grantors herein and their assigns, an
Easement, 20 ft. wide, for ingress to and egress from premises on the south, the
centerline of said Easement beginning at the southerly centerline extremity of
Cherry Tree Lane as platted in Old Mission View Subdivision recorded in
Leelanau County Records; thence S.7 [degrees] 33’ W., 129.19 ft. to the south
line of the parcel described above.
RESERVING unto the said . . . equal and mutual rights of ingress and
egress in and through said Easement; and also RESERVING unto the said . . ., an
Easement 20 ft. wide, for ingress to and egress from premises on the south, the
centerline of said Easement being an extension of the centerline of the Easement
first described above to the south line of the premises first described above.2
The focus of this appeal and the central claim by plaintiffs below entails and entailed the
argument that the above-referenced easement reservations were void ab initio (from the
beginning). The basis for this claim was set forth in plaintiffs’ complaint:
[U]nbeknownst to the grantors, Cherry Tree Lane was no longer a public
roadway at the time the easements were created, as it was previously abandoned
on or about May 26, 1958, by Order of the 13th Circuit Court for the County of
Leelanau. In addition to the abandonment of Cherry Tree Lane, Orchard Drive
and Mission View Drive were likewise [abandoned] and reverted to the owners of
the property through which said roadways traversed. . . .
As of the date of the abandonment, Cherry Tree Lane became a private
road for the benefit of the residences of Old Mission View Subdivision.
Plaintiffs assert that neither party has the right to use Cherry Tree Lane to
access their property and attached hereto . . . is a copy of a statement signed by
the residents of Old Mission View Subdivision indicating that Cherry Tree Lane
is a private road for the use and benefit of the residents of Old Mission View
Subdivision only.3
2
Numerous deeds were submitted by the parties to the trial court regarding conveyances over the
years relative to the parties’ parcels, all of which expressly reflect recognition of and reference to
the easement, thus subjecting and binding the parties and their predecessors to the easement,
assuming the validity of the easement at the time of its creation.
3
The document is signed, apparently, by some of the lot owners in the Old Mission View
(continued…)
-2-
It is plaintiffs’ theory that, because Cherry Tree Lane was not a public road at the time of
the inception of the easement, and because the roadway was in fact private with no right of
access by those living outside the Old Mission View Subdivision, the easement’s intended
purpose was impossible from the beginning, rendering it void ab initio.
The lower court record contains a 1958 order entered by the Leelanau Circuit Court
vacating Cherry Tree Lane, as well as other roads, pursuant to a petition brought by the PorterMulder Land Company and the Muskegon Bank & Trust Company. The order recites numerous
procedural actions that were taken in the process of vacating the road, ostensibly in compliance
with the governing law of the day. The order provides that the “highways so vacated shall be
private drives for the use and enjoyment of the purchasers and owners of lots in said plat.” The
order additionally provides that the property shall be free and clear from any rights, title, and
interests held by the county, the county road commission, the township, the state, and the public
in general as previously created by the plat and dedication.
Defendants filed a motion for summary disposition pursuant to MCR 2.116(C)(10),
arguing that the easement was legally created via the deeds and not void at its inception, and that
the easement was used by defendants and their predecessors in title and never abandoned.
Defendants attached three affidavits in support of the motion. One was the affidavit of Jane
Autenrieth, who averred that she and her now-deceased husband were defendants’ immediate
predecessors in title.4 Mrs. Autenrieth asserted that she and her husband “would walk the
easement occasionally, generally at least weekly, except in the winter when it was walked less
frequently[.]” She further averred that her husband “traveled the easement occasionally with his
four-wheel all terrain vehicle[,]” and that there had never been any interference with the use of
the easement during their residency.
Defendants also submitted the affidavit of Frederick Kilbourn, Sr., who lived in the area,
was familiar with the easement and the properties, and who was a close friend of the Autenrieths.
Kilbourn averred that he had frequently observed Mr. Autenrieth traveling over the easement,
“both by motor vehicle, on foot, and by a four-wheel all terrain vehicle.” Mr. Autenrieth had
given Kilbourn permission to traverse the easement, which Kilbourn did often, either by foot,
snowmobile, or by four-wheel, all-terrain vehicle. According to Kilbourn, there was never any
interference with the easement, nor had Mr. Autenrieth ever indicated an intent to abandon or
discontinue use of the easement. Kilbourn’s and Mrs. Autenrieth’s affidavits indicated that
Kilbourn and Mr. Autenrieth used the easement to visit friends in the Old Mission View
Subdivision.
(…continued)
Subdivision, and it indicates only that the undersigned maintain Cherry Tree Lane for their
private use.
4
The affidavit indicates that Mrs. Autenrieth and her husband bought property adjacent to the
benefited parcel in 1985, on which their home was built. They lived there until she sold the
property in 1999 to defendants; her husband died in 1998. Mrs. Autenrieth and her husband
bought the benefited or dominant parcel, i.e., defendants’ property, in 1990. This parcel was also
sold to defendants in 1999.
-3-
Finally, the trial court received the affidavit of defendant Marie Coppa, who averred that
plaintiffs, on the day defendants took possession, came to defendants and asked to purchase the
easement. She further indicated that plaintiffs had plowed snow onto the easement and leveled,
raked, and cultivated the grass on the easement, despite defendants’ protests.
Coppa
additionally averred that the easement was important “because it is the only feasible access to
our property because the contour of [the parcel] and Lee Point Road makes access directly to Lee
Point Road dangerous[.]” She asserted that ever since buying the property in 1999, she always
accessed the property by motor vehicle and by way of the easement, except when snow blocked
her access, or when plaintiffs’ vehicles blocked the easement. Coppa claimed that plaintiffs had
intentionally blocked the easement at times through placement of chains, vehicles, boats, and
snowmobiles on the easement, which prevented access to defendants’ property by workers hired
by defendants to mow, farm, and build a pole barn. Finally, Coppa contended that defendants
never abandoned the easement and never failed to use it unless prevented to do so by plaintiffs.
Plaintiffs filed their own motion for summary disposition, plus a response to defendants’
motion for summary disposition. Plaintiffs attached the affidavit of David Dietrich to their
motion and response. This affidavit was not signed, and the transcript of the hearing on the
motions for summary disposition indicates that counsel was still awaiting and anticipating Mr.
Dietrich’s execution of the document. A week after the hearing, a signed and notarized version
of Dietrich’s affidavit was filed with the court. We note that Dietrich’s affidavit avers that his
parents previously owned plaintiffs’ property from 1987 to 1999, and that during this time there
was a cable or chain attached to two posts blocking access to the easement from Cherry Tree
Lane. Dietrich indicated that his father had placed a boat in front of the posts and chain, and that
his father had told him that he never saw anyone using the easement. Plaintiffs also attached the
affidavit of Mark Richter,5 who averred that his grandparents had previously owned plaintiffs’
property from the 1960s to 1987. He further averred that there was always a cable or chain
attached to two posts blocking access to the easement from Cherry Tree Lane. According to
Richter, the purpose of the chain “was to keep people from driving across my grandparents’
property as a shortcut to Lee Point Road.” Plaintiffs also relied on the document signed by
residents in the Old Mission View Subdivision indicating that they maintained Cherry Tree Lane
for their private use. Additionally, plaintiffs submitted a diagram showing that some trees were
located within the easement, and they attached a photograph showing these trees and showing a
grassy area in the vicinity of the easement.
At the hearing on defendants’ motion for summary disposition, counsel for plaintiffs
informed the court that they were not making any claim for abandonment. Plaintiffs relied on
their theory that the easement was void ab initio in light of the fact that Cherry Tree Lane was a
private road when the easement was created in 1960. The trial court granted the motion for
summary disposition, finding that the easement was in the public record and known to everyone,
and short of clear impossibility to use the easement, which had not been the case, the easement
could not be deemed to never have existed. The trial court noted that the easement and Cherry
5
The record copy of this affidavit is signed and notarized.
-4-
Tree Lane were at times used to visit friends in the Old Mission View Subdivision; therefore, use
of Cherry Tree Lane was permitted regardless of its private nature. The trial court also found
that the lot owners in the Old Mission View Subdivision had not attempted to actually prevent
defendants from using Cherry Tree Lane. The trial court continued:
[I] think even if there were a legal barrier and they actually prevented
strangers from using Cherry Tree Lane, it still is an easement that has been of
some value to the participants, and [it should not be eliminated] just because in
one person’s opinion it isn’t worth as much, or isn’t as useable as it might have
been. It’s an easement that was in the public record; everyone knew about it.
Regarding any chains that may have been placed at the end of Cherry Tree Lane, the
court found that the purpose appears to have been to prevent people in general from using the
road and easement as a shortcut to Lee Point Road, but not to prevent the easement holders from
using the easement. The trial court noted that there was no evidence that any chain effectively
and actually blocked the easement; indeed, there was evidence to the contrary. Regardless, even
if blocked, the easement did not terminate.
An order granting defendants’ motion for summary disposition was subsequently entered.
The order legally described the easement, indicated that it burdened plaintiffs’ parcels for the
benefit of defendants’ property, ruled that the easement was not void or impossible at its
inception, and permanently enjoined plaintiffs from blocking the easement or otherwise
interfering with it.
Plaintiffs filed a motion for reconsideration, asserting that subsequent to the court’s
ruling, lot owners in the Old Mission View Subdivision had unilaterally constructed a barrier
next to the easement consisting of posts and chains, posted a “no trespassing” sign, sent letters to
plaintiffs and defendants informing them that they could not use Cherry Tree Lane to access their
respective properties, and are in the process of adopting a resolution, to be recorded, barring third
parties from using Cherry Tree Lane. Pictures of the barrier and a copy of the letter sent to the
parties were attached to the motion. The letter from the Old Mission View Subdivision lot
owners6 threatens both plaintiffs and defendants with criminal and civil trespass charges and
actions should they choose to access their properties via Cherry Tree Lane. The trial court, first
noting that plaintiffs had not timely filed the motion for reconsideration, found that the motion
presented the same issues previously ruled on by the court, and the court did not find that
palpable error had been demonstrated. Plaintiffs appeal as of right.
This Court reviews de novo a trial court’s ruling to either grant or deny a motion for
summary disposition. Kreiner v Fischer, 471 Mich 109, 129; 683 NW2d 611 (2004). Further,
questions of law in general are reviewed de novo. Nat’l Wildlife Federation v Cleveland Cliffs
Iron Co, 471 Mich 608, 612; 684 NW2d 800 (2004).
6
The letter was from Richard and Amy Freundl who own lot 28 in the Old Mission View
Subdivision. It is not signed by any other lot owners in the subdivision.
-5-
MCR 2.116(C)(10) provides for summary disposition where there is no genuine issue
regarding any material fact, and the moving party is entitled to judgment or partial judgment as a
matter of law. A trial court may grant a motion for summary disposition under MCR
2.116(C)(10) if the pleadings, affidavits, and other documentary evidence, when viewed in a
light most favorable to the nonmovant, show that there is no genuine issue with respect to any
material fact. Quinto v Cross & Peters Co, 451 Mich 358, 362; 547 NW2d 314 (1996), citing
MCR 2.116(G)(5). Initially, the moving party has the burden of supporting its position with
documentary evidence, and, if so supported, the burden then shifts to the opposing party to
establish the existence of a genuine issue of disputed fact. Quinto, supra at 362; see also MCR
2.116(G)(3) and (4). "Where the burden of proof at trial on a dispositive issue rests on a
nonmoving party, the nonmoving party may not rely on mere allegations or denials in [the]
pleadings, but must go beyond the pleadings to set forth specific facts showing that a genuine
issue of material fact exists." Quinto, supra at 362. Where the opposing party fails to present
documentary evidence establishing the existence of a material factual dispute, the motion is
properly granted. Id. at 363. "A genuine issue of material fact exists when the record, giving the
benefit of reasonable doubt to the opposing party, leaves open an issue upon which reasonable
minds might differ." West v Gen Motors Corp, 469 Mich 177, 183; 665 NW2d 468 (2003).
On appeal, plaintiffs argue that the trial court clearly erred when it ruled that the
easement was not void ab initio, when it ruled that defendants had a right to use Cherry Tree
Lane, and when it determined the rights of owners living on Cherry Tree Lane when they were
not parties to the suit.7 Plaintiffs also argue that the court abused its discretion in denying the
motion for reconsideration.
“An easement is the right to use the land of another for a specified purpose.” Schadewald
v Brule, 225 Mich App 26, 35; 570 NW2d 788 (1997). An easement may be created by either an
express grant, reservation or exception, or by covenant or agreement. Rossow v Brentwood
Farms Development, Inc, 251 Mich App 652, 661; 651 NW2d 458 (2002).8 An appurtenant
easement attaches to the land and is incapable of existence separate and apart from the land to
which it is annexed. Schadewald, supra at 35. The land benefited or served by an appurtenant
easement is referred to as the dominant tenement, and the land burdened by the appurtenant
easement is called the servient tenement. Id. at 36. Once an easement is granted, it cannot be
modified by either party unilaterally. Id. Where possible, courts construe an easement as
7
We note that plaintiffs briefly assert that the easement had not been used, as there was no
evidence of a roadway and the easement is covered with healthy grass and has several large trees
growing in its path. However, defendants presented documentary evidence of actual use and the
trees and grass do not establish that the easement was not or could not be used as claimed.
Furthermore, plaintiffs waived any abandonment theory by counsel’s remarks to the court at the
hearing on the motions for summary disposition.
8
“An easement may be created by an express reservation in another document of conveyance.
For example, at the time a parcel of property is conveyed by its owner, the owner may reserve an
easement over it for himself or herself or for the benefit of other property he or she owns.” 1
Cameron, Michigan Real Property Law (2d ed), Easements, § 6.6, p 194.
-6-
appurtenant and perpetual because easements appurtenant run with the land.
Michigan Real Property Law (2d ed), Easements, § 6.22, p 210.
1 Cameron,
An easement may be terminated based on end of purpose.
When an easement is granted for a particular purpose and that purpose
comes to an end, the easement terminates. MacLeod v Hamilton, 254 Mich 653;
236 NW 912 (1931). In that case the court quoted an Iowa decision with
approval, “‘A grant of an easement for particular purposes having been made, the
right thereto terminates as soon as the purposes for which granted cease to exist or
are abandoned or are impossible.’” . . . If the subject of the easement itself is
destroyed, the easement terminates. [Michigan Real Property Law, supra at
§ 6.28, pp 216-217.]
Plaintiffs rely on Waubun Beach Ass’n v Wilson, 274 Mich 598; 265 NW 474 (1936);
MacLeod, supra; City of Boyne City v Crain, 179 Mich App 738; 446 NW2d 348 (1989);
Cheslek v Gillette, 66 Mich App 710; 239 NW2d 721 (1976); and Andersen v Schmidt, 16 Mich
App 633; 168 NW2d 437 (1969), for the proposition that an easement granted for a particular
purpose terminates when the purpose for which it was granted ceases to exist or is frustrated,
when the purpose or use is abandoned, or when it is impossible to carry out the purpose or use.
Indeed, these cases do support that general proposition. Waubun, supra at 615 (if easement by
necessity had previously arisen, it terminated when other avenues of access to resort lot became
available); MacLeod, supra at 656-657 (easement granted for drainage purposes only terminated
when contemplated purpose was abandoned by establishment of drain at another location and
easement lay dormant for 54 years); Boyne, supra at 744-746 (railroad easement or right of way
granted by deed extinguished by impossibility when property previously reverted to state due to
delinquent taxes); Cheslek, supra at 715-716 (easement for purposes of operating funeral
business can continue only so long as successors use easement for funeral business); Andersen,
supra at 635-636 (easement granted to allow access to boathouse terminated after boathouse
went unused, then deteriorated to point where it could not be used, and then collapsed
completely). Plaintiffs rely on these cases, arguing that the purpose of reserving the easement
was to utilize it in accessing the property via Cherry Tree Lane, but this purpose could not be
fulfilled and was impossible to carry out because Cherry Tree Lane constituted private property
or a private road, which the parties and their predecessors in title had no right to use. We
disagree with plaintiffs’ argument.
Assuming that the 1958 court order vacating Cherry Tree lane was valid,9 the purpose of
the easement was not frustrated or made impossible simply because Cherry Tree Lane was a
9
Defendants argue that the 1958 court order, standing alone, was ineffective to vacate Cherry
Tree Lane because there was no evidence of a concurrent legislative enactment vacating the
roadway adopted by the governing municipality body, and because the court order did not direct
the preparation and filing of a revised or corrected plat. Defendants also contend that at most the
court order relieved the municipality of having responsibility for the road, but it could not
(continued…)
-7-
private road. Without yet taking into consideration the recent events in which a couple of
Cherry Tree Lane residents apparently declared that plaintiffs and defendants cannot use the
roadway, which matter will be addressed when discussing alleged error relative to the motion for
reconsideration, the undisputed evidence reflected that the easement had been used by
defendants and their predecessors in title for purposes of ingress and egress via Cherry Tree Lane
and that the lot owners in the Old Mission View Subdivision had not actually prevented or
interfered with such use. In fact, the affidavits submitted by defendants suggested permissive
use of Cherry Tree Lane. The residents of the Old Mission View Subdivision were not the only
individuals that could use Cherry Tree Lane simply because the roadway was vacated and made
private. Clearly, family, friends, acquaintances, social guests, licensees, and invitees of any
particular resident of the Old Mission View Subdivision could use Cherry Tree Lane in visiting
the resident. Plaintiffs cite no law to the contrary, nor do plaintiffs even attempt to broach the
issue regarding the parameters of what a “private road” encompasses with respect to access
rights by third parties. Merely because Cherry Tree Lane was private, it did not automatically
mean defendants and their predecessors in title could not utilize the easement. Again, there was
evidence of years of use consistent with the purpose of the easement, with no evidence that the
subdivision tried to prevent defendants or their predecessors from using the easement. The
document signed by subdivision lot owners indicating that they maintain Cherry Tree Lane for
their private use does not reflect that defendants are prohibited from accessing their easement by
way of Cherry Tree Lane, and the document is a recent development. Further, there is no
accompanying documentation indicating whether the signatures constitute all of the lot owners in
the subdivision. Moreover, we question whether this is admissible evidence without affidavits
from the signatories attesting to their execution of the document. Accordingly, we cannot
conclude that the easement was void ab initio as the purpose of the easement was not frustrated,
nor impossible to carry out, despite the private nature of Cherry Tree Lane.
Plaintiffs next argue that the trial court erred in finding that defendants had a right to use
Cherry Tree Lane. This argument needs little response. The order granting the motion for
summary disposition, through which the court speaks, did not indicate that defendants had such a
right. In the court’s ruling from the bench, the court stayed clear from making a definitive ruling
regarding plaintiffs’ rights and the subdivision lot owners’ rights with respect to Cherry Tree
Lane. At one point in the hearing, the court indicated that the parties could not assert the rights
of the lot owners. The trial court did suggest that the subdivision’s lot owners could not prevent
defendants from using the easement and Cherry Tree Lane to visit the lot owners, and we believe
this to be legally correct because the court’s reasoning implicitly, but clearly, operates under the
(…continued)
preclude the public from using it, where the road was dedicated to public use in the original plat.
In a reply brief, plaintiffs vigorously defend the validity of the court order and their position that
Cherry Tree Lane was vacated, vesting rights solely in the subdivision’s lot owners and creating
a private road. Plaintiffs point out that defendants never raised this argument below and
conceded that it was a private road. Plaintiffs also maintain that defendants rely on today’s law
concerning vacation or abandonment of public roads instead of the law applicable in 1958, which
would control, and which was satisfied. We find it unnecessary to address and resolve these
issues as we find that the court did not err, even assuming that the 1958 court order effectively
vacated Cherry Tree Lane and vested private ownership with the subdivision’s lot owners.
-8-
assumption that the lot owner being visited consents to and desires the visit. The trial court did
not state that defendants had a general, absolute, and unrestricted right to traverse Cherry Tree
Lane.
Next, plaintiffs argue that the trial court erred in determining the rights of the lot owners
living in Old Mission View Subdivision when they were not parties to the lawsuit. Again, this
argument finds no support in the record and fails for the reasons stated in our analysis of the
preceding issue.
Finally, plaintiffs argue that the trial court erred in denying the motion for
reconsideration. A trial court’s decision with respect to a motion for reconsideration is reviewed
for an abuse of discretion by this Court. Churchman v Rickerson, 240 Mich App 223, 233; 611
NW2d 333 (2000). “An abuse of discretion exists when the result is so palpably and grossly
violative of fact and logic that it evidences perversity of will or the exercise of passion or bias
rather than the exercise of discretion.” Id. MCR 2.119(F)(3) provides:
Generally, and without restricting the discretion of the court, a motion for
rehearing or reconsideration which merely presents the same issues ruled on by
the court, either expressly or by reasonable implication, will not be granted. The
moving party must demonstrate a palpable error by which the court and the
parties have been misled and show that a different disposition of the motion must
result from correction of the error.
MCR 2.119(F)(3) merely provides guidance to the trial court in deciding a motion for
reconsideration and does not operate to restrict the court from exercising its discretion to grant
such a motion where appropriate in a particular case. Michigan Bank-Midwest v DJ Reynaert,
Inc, 165 Mich App 630, 646; 419 NW2d 439 (1988). The court may grant a motion for
reconsideration where it determines that a serious error was made based on an intervening
change in law or otherwise. Id. (citation omitted). We note that in ruling on a motion for
summary disposition, a court considers the evidence then available to it. Quinto, supra at 366 n
5.
We first acknowledge defendants’ contention that plaintiffs have cited no authority that
directly states that a court may consider newly arisen facts when deciding a motion for
reconsideration. The language of MCR 2.119(F)(3), however, does not appear so restrictive as to
absolutely preclude newly arisen facts from forming the basis for granting a motion for
reconsideration. Here, the evidence or facts relied on by plaintiffs supposedly arose or came into
existence after the motion for summary disposition was heard. Nonetheless, we conclude that
the trial court did not abuse its discretion in denying the motion for reconsideration.
First, we question whether the evidence constituted admissible evidence, where the
photographs and letter were not accompanied by any authenticating documentation or affidavits.
Additionally, the letter is from the owners of only one lot in the Old Mission View Subdivision,
and all of the subdivision’s lot owners have rights in the roadway, although we acknowledge that
it is the owner of the last lot at the southern end of Cherry Tree Lane who is attempting to block
usage. The right of this lot owner to block the end of Cherry Tree Lane would necessarily have
to be determined if reconsideration or the relief requested is granted, yet the lot owner is not a
-9-
party to the suit. Finally, and importantly, plaintiffs’ action sought a ruling that the easement
was void ab initio or void at its inception, yet the new evidence does not bear on the validity of
the easement when first created. In sum, we find no abuse of discretion.
Affirmed.
/s/ Brian K. Zahra
/s/ William B. Murphy
/s/ Janet T. Neff
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