Widmayer v. Leonard

• Decision Date: 26 August 1985
• Docket Number: Docket No. 72442
• Citation: Widmayer v. Leonard, 373 N.W.2d 538, 422 Mich. 280 (Mich. 1985)
• Parties: Russell WIDMAYER and Lucille Widmayer, Plaintiffs-Appellees, v. Frank D. LEONARD and Frances Leonard, Defendants-Appellants.
• Court: Michigan Supreme Court

Page 538

373 N.W.2d 538

422 Mich. 280

Russell WIDMAYER and Lucille Widmayer, Plaintiffs-Appellees, v. Frank D. LEONARD and Frances Leonard, Defendants-Appellants.

Docket No. 72442.

Supreme Court of Michigan.

Argued Jan. 10, 1985.

Decided Aug. 26, 1985.

John R. Laird, Laird, Chin, Schwartz & Swartz, Ann Arbor, for plaintiffs-appellees.

Robert J. Rennell, Burke, Rennell & Hood, Ann Arbor, for defendants-appellants.

RILEY, Justice.

This case involves questions concerning civil presumptions.

I

Plaintiffs filed an action in the Washtenaw Circuit Court seeking a declaratory judgment, a permanent injunction, and damages for the defendants' interference with plaintiffs' use of a two-lane road to the plaintiffs' landlocked property.

The defendants counter-claimed for trespass.

The jury returned special verdicts rejecting both claims, finding that plaintiffs did not have a prescriptive easement over defendants' land and had not trespassed. The trial court entered judgment on the jury verdict. The Court of Appeals reversed and remanded for a new trial, ¹ holding that the trial court erred in declining to instruct the jury that because plaintiffs introduced evidence of over fifty years' use of the road, the burden of proof shifted to defendants to show that the use was permissive.

We reverse the judgment of the Court of Appeals and reinstate the judgment of the trial court.

II

Plaintiffs claim a prescriptive easement approximately three-fourths of a mile in length through the middle of defendants' farm for purposes of ingress and egress to a vacant, unimproved, uninhabited twenty-acre parcel of land. The two-track road in question runs diagonally across the defendants' farm acreage. There appears to be no record that the defendants and plaintiffs had common grantors and this road does not follow any boundary line. The plaintiffs are the most recent members of their family to own the landlocked twenty-acre parcel.

There is substantial record testimony indicating that the alleged right-of-way was a common and joint use of a series of farm roads over several farms, used for many purposes, in the early years.

There is testimony from a plaintiffs' witness that in those early years the use of the uncultivated portions of the uninhabited lands on either side of the road was not restricted. This testimony indicated use of a swimming hole and hunting privileges without restriction.

There is also substantial testimony that over the years the use of the acreage surrounding the two-lane road became more and more restricted and controlled. And there is testimony that the number of people who were permitted to use the road and surrounding land was gradually restricted and controlled without complaint.

There is testimony from a plaintiffs' witness that he sought to restrict the use of the land and the road and that he was successful. Additionally, there is testimony by one of the plaintiffs that would suggest that she knew that she could not use the road in question against the wishes of the property owner. This same plaintiff also testified that she had asked one of the defendants' predecessors in title for a written right-of-way, but none was offered into evidence. Further, this plaintiff introduced a letter written by defendants to plaintiffs which suggested that defendants regarded use of the lane as permissive.

Finally, there was testimony that defendants' predecessor in title had put up a gate with a combination lock at the entrance to the road. Defendants gave the combination to the lock to plaintiffs and the owners of an adjacent parcel.

In sum, the defendants claimed that the use of their road was permissive. Plaintiffs contended that it was open, continuous and adverse.

Plaintiffs requested an instruction that a conclusive presumption of easement as of right arose where use of more than fifty years had been shown. ² The trial court declined to give this instruction and also declined to instruct that the burden of proof shifted to the defendants to show permissive use where the plaintiffs had shown use for more than fifty years. ³ Rather, the court instructed that the plaintiffs had the burden of showing a prescriptive easement. The trial judge further explained to the jury that it was for them to decide if the original use was permissive. He further noted that permissive use could change to adverse use and that only a fifteen-year period of adverse use was necessary to create an easement. ⁴

III

In addressing the issues raised in defendants' appeal, we must revisit a case that changed the settled law in Michigan regarding civil presumptions. The overruling case was In re Wood Estate, 374 Mich. 278, 132 N.W.2d 35 (1965).

The Wood case dealt, as does the instant case, with the evidentiary aspects of the law of presumptions. Factually, Wood dealt with the presumption of undue influence, but case law commentators appear to agree that its holding is applicable to the whole range of legal presumptions.

Prior to Wood, Michigan had adhered to the "Thayer" ⁵ bursting bubble theory of presumptions. ⁶ This theory held, in substance, that a presumption was a procedural device which regulates the burden of going forward with the evidence and is dissipated when substantial evidence is submitted by the opponents to the presumption.

However, the Wood majority held that the jury must be instructed to apply the presumption unless it finds the facts establishing the presumption have been rebutted, and if rebutted, the presumption must be presented to the jury as a conditional mandatory inference. ⁷ If other consistent evidence is introduced to rebut the presumed fact itself, then the presumption merely becomes a permissible inference. This approach incorporates some of the elements of the "Morgan" ⁸ theory of presumptions. Under the Morgan theory, the burden of persuasion (proof) shifts to the party opposing the presumption when a presumption is established. That party must then produce evidence sufficient to convince the trier of fact that the nonexistence of the presumed fact is more probable than its existence. Under the Morgan view, presumptions are considered evidence which may be weighed as such by the trier of fact. Finally, the Morgan approach requires a jury instruction. With Wood, therefore, this Court moved away from a pure Thayer approach to a theory, regarding the use and function of presumptions, somewhere between Morgan and Thayer.

However, little more than a decade later, the competing theories were to be tested again.

In 1978, Michigan adopted MRE 301, the language of which parallels FRE 301, which was, in essence, an adoption of the Thayer theory regarding the use of civil presumptions. It should be noted here that the Federal Rules of Evidence were adopted after considerable debate between the Thayer proponents and the advocates of the Morgan analysis. ⁹ The Thayer theory prevailed essentially because proper evaluation of presumptions poses such a difficult problem for juries that courts and commentators have, albeit in some cases reluctantly, embraced Thayer on the grounds that it is unnecessary for juries to engage in the speculative process of weighing presumptions against evidence. Under Thayer/MRE 301, the judge makes all determinations as to the existence, or nonexistence, of the presumption, and the judge need only charge the jury regarding the burden of proof and the effect of circumstantial evidence. ¹⁰

Following the adoption of MRE 301 in 1978, the status of this area of law in Michigan has been confusing. In 1979, this Court's opinion in Johnson v. Secretary of State, 406 Mich. 420, 280 N.W.2d 9 (1979), employed language which appeared to indicate a return to the Thayer approach, consistent with MRE 301, but cited Wood. In 1982, In re Benker Estate, 416 Mich. 681, 331 N.W.2d 193 (1982), cited Wood as controlling precedent, but it too seemed to adopt the Thayer theory.

Thus, to clarify this confusing area of the law, this Court takes the opportunity today to hold that insofar as Wood appears to hold that the trier of fact must be instructed as to the existence of the presumption and allowed to make the necessary inference (even in the face of rebutting evidence), it is no longer controlling precedent. We are persuaded that instructions should be phrased entirely in terms of underlying facts and burden of proof. ¹¹ That is, if the jury finds a basic fact, they must also find the presumed fact unless persuaded by the evidence that its nonexistence is more probable than its existence.

We so hold because we are persuaded that the function of a presumption is solely to place the burden of producing evidence on the opposing party. It is a procedural device which allows a person relying on the presumption to avoid a directed verdict, and it permits that person a directed verdict if the opposing party fails to introduce evidence rebutting the presumption.

Almost all presumptions are made up of permissible inferences. Thus, while the presumption may be overcome by evidence introduced, the inference itself remains and may provide evidence sufficient to persuade the trier of fact even though the rebutting evidence is introduced. But always it is the inference and not the presumption that must be weighed against the rebutting evidence.

IV

In the instant case, the plaintiffs and the Court of Appeals rely on Haab v. Moorman, 332 Mich. 126, 144, 50 N.W.2d 856 (1952); Beechler v. Byerly, 302 Mich. 79, 82-83, 4 N.W.2d 475 (1942), and Berkey & Gay Furniture Co. v. Valley City Milling Co., 194 Mich. 234, 160 N.W. 648 (1916), all of which held that, when the alleged easement has been used for fifty years, it is not necessary for the party claiming the easement to establish that the use was adverse, but rather the burden is on the servient estate to establish that the use was only permissive.

The problem in the case at bar results from the imprecise use of the phrase "burden of proof." There...