Nicholls v. Healy, Docket No. 10224
| Citation | 194 N.W.2d 727,37 Mich.App. 348 |
| Decision Date | 06 December 1971 |
| Docket Number | Docket No. 10224,No. 3,3 |
| Parties | William Lloyd NICHOLLS and Kathleen Nicholls, Plaintiffs-Appellants, v. John D. HEALY and Eleanore T. Healy, Defendants-Appellees |
| Court | Court of Appeal of Michigan (US) |
Andrew H. Wisti, Wisti & Jaaskelainen, Hancock, for plaintiffs-appellants.
Norman McLean, McLean & McCarthy, Houghton, for defendants-appellees.
Before R. B. BURNS, P.J., and LEVIN and T. M. BURNS, JJ.
The basic issue in this case is whether defendants' evidence at trial level was sufficient to extinguish plaintiffs' easement on the theory of adverse possession.
Plaintiffs' five-foot-wide easement was created by a deed and runs over the defendants' property. The trial court eliminated plaintiffs' rights of passage over the easement but preserved their right to construct and maintain a water line. 1
In Michigan use of an easement by the owner of the servient estate will not ripen into adverse possession unless such use is inconsistent with the easement. Greve v. Caron (1925), 233 Mich. 261, 206 N.W. 334; Harr v. Coolbaugh (1953), 337 Mich. 158, 59 N.W.2d 132.
The defendants have an 'undoubted right to make any use of the premises not inconsistent with the easement.' Greve v. Caron, Supra, 233 Mich. p. 266, 206 N.W. p. 335.
The record reveals extensive use of the easement by defendants and their predecessors in title. Two rows of trees were planted along the length of the easement, a privy was erected on the easement, for a period of time a bathhouse stood on the strip, and prior to the time the land was sold to defendants' predecessor in title a fence was constructed along one end of the strip. A careful review of the testimony, however, indicates that none of these uses interfered with plaintiffs' rights of passage. None of the uses seriously blocked passage on the strip. A gate had been put in the fence and was eventually removed. Even if not removed, maintenance of a gate across the right of way if it permitted use of the way 'would not constitute an obstruction to the way or result in the loss of the way by ouster or adverse possession.' Greve v. Caron, Supra, pp. 266--267, 206 N.W. p. 335.
Strictly construing the evidence supporting the claim of adverse possession as we must (Martin v. Arndt (1959), 356 Mich. 128, 95 N.W.2d 858), we find that the record here fails to establish acts evidencing hostile prevention of the...
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Beach v. Lima Twp.
...the servient estate will not ripen into adverse possession unless such use is inconsistent with the easement." Nicholls v. Healy, 37 Mich.App. 348, 349, 194 N.W.2d 727 (1971). The Nicholls Court noted the need for the application of a heightened level of scrutiny in regard to adverse posses......
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Smith v. Peterson
...186 (Okla.Civ.App. 2010) (same); Stone v. Lea Brent Family Invs., LP, 998 So.2d. 448, 455 (Miss. App. 2008) (same); Nicholls v. Healy, 37 Mich.App. 348, 194 N.W.2d 727 (1971) (easement ouster and adverse possession). A claim of boundary by acquiescence, of course, requires no such determina......
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Smith v. Peterson
...(Okla. Civ. App. 2010) (same); Stone v. Lea Brent Family Invs., LP, 998 So.2d. 448, 455 (Miss. App. 2008) (same); Nicholls v. Healy, 37 Mich. App. 348, 194 N.W.2d 727 (1971) (easement ouster and adverse possession). A claim of boundary by acquiescence, of course, requires no such determinat......
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Matoush v. Lovingood
...or is otherwise compatible with the use of the easement, it will not start the prescriptive period. See, e.g., Nicholls v. Healy, 37 Mich. App. 348, 194 N.W.2d 727 (1971) (servient owner's fence and trees were insufficiently adverse where they did not completely block the easement); Brimsto......