Daily Development for
Monday, May 18, 1998
By: Ira Meislik
Daily Developments normally are edited and prepared by Prof. Patrick A. Randolph, who is in China until late July. Ira Meislik will file periodic developments reports in Professor Randolph's absence.
EASEMENTS; SCOPE; ADJACENT PROPERTY: Benefitted property owner may not use driveway easement for access to garage located on later-acquired adjacent property regardless whether such use would increase the burden on the servient property.
Schadewald v. Brule, 570 N.W.2d 788 (Mich. App. 1997).
This case deals with an appurtenant easement that was created when the original property owner subdivided its property into a landlocked parcel and one with access to a right of way that led to the highway. The owner then sold the parcel with the access and created a written easement to provide ingress and access to the landlocked parcel that it retained. A successor owner of the landlocked parcel purchased a parcel that was adjacent to the original two parcels and which had separate access to the same right of way.
Then, to supplement its existing garage on its landlocked parcel, the owner constructed an additional garage on the newly acquired land. To use the new garage, it was necessary to drive over the original easement.
The owners of the landlocked parcel agreed that the new, adjacent parcel did not, by itself, have a right to the easement. They did argue, however, that use of the new garage did not increase the burden on the easement. The same cars that drove over the easement to the old garage now drove over the easement to the new garage. The only difference is that once on the landlocked parcel, the cars turned right instead of left.
Nonetheless, the Michigan Court of Appeals ruled that because the new, adjacent parcel was not a dominant estate of the easement, the owner of the burdened property was entitled to an injunction preventing the owner of the benefitted property from using the driveway easement for access to the garage regardless whether such use increased the burden on the easement. In so ruling, the court rejected a line of cases from other states ruling that use of an easement to benefit property in addition to the property originally intended to be benefitted by the easement may be permitted so long as the increased burden on the servient property is insubstantial. Use of the easement for access to the new, adjacent parcel constituted a continuing trespass for which damages would be difficult to measure. Therefore, an injunction constituted proper relief.
Items in the Daily Development section generally are extracted from the Quarterly Report on Developments in Real Estate Law, published by the ABA Section on Real Property, Probate & Trust Law. Subscriptions to the Quarterly Report are available to Section members only. The cost is nominal. For the last six years, these Reports have been collated, updated, indexed and bound into an Annual Survey of Developments in Real Estate Law, volumes 16, published by the ABA Press. The Annual Survey volumes are available for sale to the public. For the Report or the Survey, contact Stacy Woodward at the ABA. (312) 988 5260 or email@example.com
Items reported here and in the ABA publications are for general information purposes only and should not be relied upon in the course of representation or in the forming of decisions in legal matters. The same is true of all commentary provided by contributors to the DIRT list. Accuracy of data and opinions expressed are the sole responsibility of the DIRT editor and are in no sense the publication of the ABA.