Rights for Docking By Overusing a Common Easement Fails in Prescription Suit

The case of O’Brien v Hicks  (COA No. 307332) involves one of two parkways located beside Otsego Lake in the Hazel Banks Plat, named “Parkway 6-7.”  In 2009, the O’Briens filed a complaint seeking to vacate Parkway 6-7 to prevent access to Otsego Lake. They also sought an injunction to prohibit use of and to require removal of a dock at Parkway 6-7, and seeking to prevent defendants and members of the general public from mooring boats, erecting docks, erecting boat hoists and wet anchorage devices, and storing personal property in the riparian extension of Parkway 6-7.

The question is whether the defendants had acquired riparian rights through a prescriptive easement?

The Court of Appeals answered no because an easement already existed on Parkway 6-7 and individuals may not acquire a prescriptive easement to property already subject to an easement for the benefit of an entire subdivision and created through a private dedication simply because an owner “overuses” the easement.

Author: Philip Ellison

Philip L. Ellison, MBA, JD, Esq is an attorney, business counselor, and civil litigator with Outside Legal Counsel PLC. He represents riparians, backlotters, and others protecting water access on Michigan's recreational lakes. Visit his online profile at www.olcplc.com.

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