Charles A. Murray Trust v. Futrell

303 Mich. App. 28
CourtMichigan Court of Appeals
DecidedOctober 24, 2013
DocketDocket Nos. 304093 and 311134
StatusPublished
Cited by53 cases

This text of 303 Mich. App. 28 (Charles A. Murray Trust v. Futrell) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Charles A. Murray Trust v. Futrell, 303 Mich. App. 28 (Mich. Ct. App. 2013).

Opinion

BECKERING, J.

In 1934, the Cheboygan Circuit Court granted lot owners of the plat of Waubun Beach a reciprocal easement by necessity to traverse each other’s lots for purposes of ingress and egress to and from public highways. Over 70 years later, one of the subsequent owners of these lots refused to allow access through their property to the other lot owners. The consolidated appeals before us present the following question: does the reciprocal easement by necessity still exist in light of both an appeal of the 1934 decree in the Michigan Supreme Court in Waubun Beach Ass’n v Wilson1 and the necessity for its existence, if any, given the factual circumstances existing at the time these consolidated cases were filed?

The trial court concluded that it does, but only for emergency-vehicle access to a limited number of the lots [33]*33in the winter when snow and ice has accumulated. In Docket Number 304093, the Murray plaintiffs2 appeal as of right the trial court’s judgment in circuit court case number 07-007789-CH, which dismissed with prejudice claims of an easement for the benefit of lots 4 through 8 (the Murray trust and Gano lots) and granted the winter emergency-vehicle easement for the benefit of lots 9 through 19 (the remaining Murray plaintiffs’ lots). Defendant3, Kelly Futrell, executor of the estate of Rosemary Futrell, deceased (hereafter “defendant”), cross-appeals and argues that no easement by necessity remains. In Docket Number 311134, the Bearce appellants4 appeal as of right the trial court’s judgment in circuit court case number 08-007889-CH, which extinguished the easement of the Bearce plaintiffs. We hold that an easement by necessity no longer exists because there is no longer a strict necessity for its existence. Therefore, although the trial court properly extinguished the easement by necessity in case number 08-007889-CH, it erred in case number 07-007789-CH by awarding an easement by necessity when no strict necessity existed. Accordingly, we affirm in part and [34]*34reverse in part the trial court’s judgment in case number 07-007789-CH and affirm the trial court’s judgment in case number 08-007889-CH.

I. PERTINENT FACTS AND PROCEDURAL HISTORY

This case involves a dispute over the existence of an easement in the Waubun Beach Subdivision in Tuscarora Township. The land at issue in Waubun Beach Subdivision was owned by E. R. Smith and was platted in 1914. The 34 lots at issue are aligned north-to-south along Burt Lake, with the west side of each lot abutting Burt Lake. For a short distance, the land extending east from the shore of Burt Lake is comparatively flat and contains the parties’ cottages or homes. North Wahbee Avenue (the location of the alleged easement) runs parallel to Burt Lake through the parties’ lots and ultimately connects to Frontenac Road to the south of the parties’ lots. To the east, the parties’ lots then rise abruptly in a bluff to higher land. To the east of the parties’ lots is Chippewa Beach Road.

Pertinent to this case are an August 15, 1934 decree of the Cheboygan Circuit Court and the appeal of the decree in the Michigan Supreme Court in Waubun Beach Ass’n v Wilson, 274 Mich 598; 265 NW 474 (1936).

A. THE 1934 CIRCUIT COURT DECREE

The plaintiffs and defendants in the 1934 case were owners of lots 1 through 34 of the plat of Waubun Beach. According to the circuit court’s decree, the plat was “bounded on the west by Burt Lake and on the ■other sides by wild cut-over lands not owned by any of the parties,” except for a small parcel owned by one of the defendants. The plat had no public streets or alleys. [35]*35However, for more than 15 years, the plaintiffs, the defendants, and their grantors “used and maintained a way” over lots 1 through 34, which became a trail used at the time of the decree with all parties having the same right of passage over the lots of the other parties. The circuit court found that there was no other practical means for the lots to be connected with public highways or for the lots’ occupants to communicate amongst themselves or use the water works system and community buildings built and owned by them in common.

The circuit court ordered that all the parties to the case had, “for the purposes of ingress and egress to and from the public highways” in Tuscarora Township, “a right of way by necessity over, upon, and across each and every of the premises of the other parties hereto from lot one (1) to and including lot thirty-four (34) of said plat of Waubun Beach, and immediately adjoining said plat on the north to the township highway at the foot of the bluff. . . .” The court specified that the “right of way is the roadway now used by the owners of said lots one (1) to thirty-four (34) in said Plat, running northerly and southerly along and adjoining the bluff upon said lots and extending to said township road as aforesaid, and is and shall be only of sufficient width to permit the use thereof by vehicles in common use . . . .” The court ordered that the right of way would extend to the lot owners and “their successors and assigns, and to the families of said lot owners, their servants, agents, employees, friends and invitees, or others having business or proper occasion to reach the premises of the said several owners of said lots, and shall be appurtenant to the said several lots.” Finally, the court ordered that the right of way was reciprocal between the parties.

[36]*36B. APPEAL OP THE 1934 DECREE TO THE MICHIGAN SUPREME COURT

The only parties to appeal in the Michigan Supreme Court were the owners of lots 4, 5, 7, 8, 35 through 38, and 42 through 51: the MacClures. Waubun Beach, 274 Mich at 601-602. After explaining that a way of necessity ceases to exist when the necessity to use it ceases, the Supreme Court held as follows:

If plaintiffs ever had a way of necessity upon or over the lands of appellants, such necessity ceased to exist before the filing of the bill October 5, 1932. At that time appellants had not only constructed roads from their lots to the public highway along the section line between sections 1 and 2, but had opened a way across their own premises from lot 35 to the highway, running south of the plat, which was open and used; so that at the time of the filing of the bill of complaint plaintiffs had a right of way to this section line road, as had the owner of lot 6. The owners of lots 1, 2 and 3 had a way to their premises over the lands lying north thereof, and persons owning lands south of those owned by appellants had a way to lot 35, which was established by the trial court, and were given an extension of the right of way for temporary use at least for a period of three years from there to the highway south of the premises by appellants, so that, at the time of the filing of the bill of complaint, all of the parties owning property in the plat had a way to reach their premises without passing over the lands of appellants. Having such way, no right of way of necessity existed over the lands and premises of appellants.
The decree of the trial court is reversed as to appellants .... [Id. at 615.]
C. THE PRESENT CASE

The Murray plaintiffs, the Bearce plaintiffs, and defendant are lot owners in the Waubun Beach Subdivision. The Murray plaintiffs’ properties consist of lots

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Cite This Page — Counsel Stack

Bluebook (online)
303 Mich. App. 28, Counsel Stack Legal Research, https://law.counselstack.com/opinion/charles-a-murray-trust-v-futrell-michctapp-2013.