Heydon v. Mediaone

• Decision Date: 17 April 2007
• Docket Number: Docket No. 273109.
• Citation: 739 N.W.2d 373,275 Mich. App. 267
• Parties: Peter N. HEYDON and Henrietta A. Heydon, Plaintiffs-Appellants, v. MEDIAONE of Southeast Michigan, Inc., a Michigan corporation Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

739 N.W.2d 373

275 Mich. App. 267

Peter N. HEYDON and Henrietta A. Heydon, Plaintiffs-Appellants, v. MEDIAONE of Southeast Michigan, Inc., a Michigan corporation Defendant-Appellee.

Docket No. 273109.

Court of Appeals of Michigan.

Submitted April 10, 2007, at Lansing.

Decided April 17, 2007, at 9:05 a.m.

Released for Publication August 29, 2007.

Fett & Fields, P.C. (by James K. Fett, Lawrence A. Fields, and Joshua R. Fields), Pinckney, for the plaintiffs.

Harvey Kruse, P.C. (by Dale R. Burmeister), Troy, for the defendant.

Before: SERVITTO, P.J., and TALBOT and SCHUETTE, JJ.

PER CURIAM.

Plaintiffs appeal as of right the trial court's order granting summary disposition in defendant's favor and dismissing plaintiffs' claims. Because a prescriptive easement in gross, commercial in nature, may be apportioned and because the apportionment of the easement in this matter does not materially or unreasonably increase the burden on the servient estate, we affirm.

This matter arises from a dispute over whether defendant acquired the right to enter plaintiffs' land to place and maintain cable television lines on already existing utility poles that Detroit Edison (Edison) used to transmit electricity. Edison undisputedly acquired the right to install and maintain electrical lines and poles on plaintiffs' property, and entered into an agreement with defendant allowing defendant to place and maintain cable television lines on the same utility poles ("apportioning" or partially assigning Edison's right to use the utility poles). When plaintiffs discovered that defendant was stringing cable lines on their property without their permission, they filed a complaint against defendant alleging a continuing common-law trespass and seeking recovery for damage to their land under MCL 600.2919.

Notably, plaintiffs had filed a prior action against defendant in 1999 that was pending when the instant case was initiated. The 1999 case (Heydon I) involved defendant's placement of cable lines on utility poles used by Edison on another parcel of their property. In Heydon I, Edison had been granted an express easement over the property by plaintiffs' predecessors in interest for purposes of providing and maintaining electricity and had apportioned its right to defendant, thereby allowing defendant to place and maintain cable television lines on the existing utility poles. That case proceeded to this Court, and, in Heydon v. MediaOne of Southeast Michigan, Inc., unpublished opinion per curiam of the Court of Appeals, issued December 22, 2005, 2005 WL 3500837 (Docket No. 255186) a panel of this Court affirmed the trial court's grant of summary disposition in defendant's favor, holding that defendant had the right (as a partial assignee) to use Edison's easement on plaintiffs' land. Upon resolution of Heydon I, both parties moved for summary disposition in the instant matter, and the trial court granted defendant's motion, dismissing plaintiffs' claims.

This Court reviews de novo a trial court's decision on a motion for summary disposition. Zsigo v. Hurley Medical Ctr., 475 Mich. 215, 220, 716 N.W.2d 220 (2006). A motion for summary disposition brought under MCR 2.116(C)(10) tests the factual support for the plaintiff's claim. Arias v. Talon Dev. Group, Inc., 239 Mich.App. 265, 266, 608 N.W.2d 484 (2000). In evaluating a motion brought under this subrule, the Court considers affidavits, pleadings, depositions, admissions, and other evidence submitted by the parties in the light most favorable to the party opposing the motion. Spencer v. Citizens Ins. Co., 239 Mich.App. 291, 299, 608 N.W.2d 113 (2000). "When the proffered evidence fails to establish a genuine issue regarding any material fact, the moving party is entitled to judgment as a matter of law." Id.

Plaintiffs raise five arguments on appeal. First, plaintiffs contend that the easement Edison has over their property is prescriptive in nature and that such easements may not be assigned. According to plaintiffs, any assignment of the easement to defendant is thus invalid. We disagree.

"An easement is the right to use the land of another for a specified purpose." Schadewald v. Brulé, 225 Mich. App. 26, 35, 570 N.W.2d 788 (1997). Michigan courts recognize two types of easements: easements appurtenant and easements in gross. Collins v. Stewart, 302 Mich. 1, 4, 4 N.W.2d 446 (1942). An appurtenant easement attaches to the land and is incapable of existence apart from the land to which it is annexed. Schadewald, supra at 35, 570 N.W.2d 788. An easement appurtenant is necessarily connected with the use or enjoyment of the benefited parcel and may pass with the benefited property when the property is transferred. McClintic-Marshall Co., v. Ford Motor Co., 254 Mich. 305, 318, 236 N.W. 792 (1931).

"An easement in gross is one `benefiting a particular person and not a particular piece of land.'" Dep't of Natural Resources v. Carmody-Lahti Real Estate, Inc., 472 Mich. 359, 379 n. 41, 699 N.W.2d 272 (2005), quoting Black's Law Dictionary (7th ed.). An easement in gross is thus personal in nature. Smith v. Dennedy, 224 Mich. 378, 381, 194 N.W. 998 (1923).

"`[A]n easement may be created by express grant, by reservation or exception, or by covenant or agreement.'" Rossow v. Brentwood Farms Dev., Inc., 251 Mich.App. 652, 661, 651 N.W.2d 458 (2002), quoting State Hwy. Comm. v. Canvasser Bros. Bldg. Co., 61 Mich.App. 176, 181, 232 N.W.2d 351 (1975). Easements can also be acquired by prescription.

An easement by prescription results from the use of the property of another that is open, notorious, adverse, and continuous for a period of 15 years. Goodall v. Whitefish Hunting Club, 208 Mich. App. 642, 645, 528 N.W.2d 221 (1995). A prescriptive easement is generally limited in scope by the manner in which it was acquired and the previous enjoyment. 25 Am. Jur. 2d, Easements and Licenses, § 81, p. 579. One who holds a prescriptive easement is allowed to do such acts as are necessary to make effective the enjoyment of the easement unless the burden on the servient estate is unreasonably increased; the scope of the privilege is determined largely by what is reasonable under the circumstances. Mumrow v. Riddle, 67 Mich.App. 693, 699-700, 242 N.W.2d 489 (1976).

Here, the parties agree that Edison holds an easement in gross acquired by prescription over plaintiffs' property. Michigan caselaw generally dictates that easements in gross, if of a commercial character, are alienable property interests and thus assignable. See, e.g., Johnston v. Michigan Consolidated Gas Co., 337 Mich. 572, 582, 60 N.W.2d 464 (1953). This proposition has been addressed in Michigan, however, only where express easements are concerned. Whether an easement in gross acquired by prescription is apportionable or assignable presents an issue of first impression in Michigan.

Only a few states have addressed, in reported decisions, whether this particular type of easement is apportionable, and most focus their attention on whether the easement is exclusive or nonexclusive in reaching their conclusions. In Zhang v. Omnipoint Communications Enterprises, Inc., 272 Conn. 627, 642, 866 A.2d 588 (2005), the Connecticut court explained:

"Courts have generally concluded [however] that an easement in gross is capable of division when the instrument of creation so indicates or when the existence of an `exclusive' easement gives rise to an inference that the servitude is apportionable." In this context, "exclusive" means that the "easement holder has the sole right to engage in the type of use authorized by the servitude." In other words, the grantor does not retain common rights with the easement holder to engage in the same activity for which the easement is granted. See Hoffman v. Capitol Cablevision Systems, Inc., 52 A.D.2d 313, 315, 383 N.Y.S.2d 674 (1976) (finding easement exclusive because grantor never had attempted to engage in distribution of electricity). This common versus exclusive rights distinction is predicated on the notion that one who grants to another the right to use the grantor's land in a particular manner for a specified purpose but who retains no interest in exercising a similar right himself, sustains no loss if, within the specifications expressed in the grant, the use is shared by the grantee with others. . . . We agree that the grant of an exclusive easement implicitly confers the authority to apportion those easement rights to third parties. (Internal citations omitted).

Closest to the facts of the present case is Jackson v. City of Auburn, ___ So.2d ___, 2006 WL 893617 (Ala.Civ.App., 2006). In Jackson, the plaintiff acquired property in 1978 on which the Alabama Power Company (APCo) maintained a power pole and power lines. Over the years, plaintiff sent several letters to APCo requesting that the power lines and pole be removed. APCo made no effort to rectify the situation. Lightwave Technologies, Inc. (Lightwave), entered into a pole-sharing agreement with APCo and, sometime in late 2000 or early 2001, began installing fiber-optic cable to the existing power pole on the property. In 2003, the plaintiff sued APCo and Lightwave (and others), primarily for trespass. The trial court found that APCo had acquired a prescriptive easement in gross over the property and next considered "whether APCo has the right to apportion its prescriptive easement and whether its apportionment to Lightwave was within the scope of the prescriptive easement." Id. at ___, 2006 WL 893617 at *6. The Jackson court agreed that "prescriptive, exclusive easements in gross, like APCo's are apportionable," id. at ___, 2006 WL 893617 at *12 then turned its focus on the scope of APCo's prescriptive easement, the use that established the prescriptive right, and whether APCo's apportionment changed the character of the easement.

Also somewhat similar is Hise v. BARC Electric Cooperative, 254 Va. 341, 492 S.E.2d 154 (1997). In that case, a...