An Overused Private Easement Permits for an Adverse Possession Claim

The Court of Appeals in Prince v. Wedemeier has held a distinction between two types of express easements now exists: a prescriptive right by overuse is allowed for one but not the other.

The Plat of “Swisher’s Landing No. 1” contains all “backlot” parcels and exists separately across the street from Swisher’s Landing. However, some of original deeds in the backlots of “No. 1” contained an express easement for ingress and egress to the lake across two lots, Lots 16 and 17, in the Plat of Swisher’s Landing.  Lots 16 and 17 are riparian parcels.

Since the granting of easement to the backlotters of “No. 1,” title to Lots 16 and 17 clouded (i.e. became unclear) and title was granted back to the heirs of the original grantors. These heirs, in turn, informed the backlotter’s that their uses are limited to footpath access only.

The Court of Appeals reviewed this case following a bench trial, reversed the decision of the trial court, and directed that plaintiff may have a possible prescriptive easement claim.

However and more important was the Court’s interesting narrowing of a prior decision made eleven months earlier in O’Brien v Hicks (Docket No. 307332).

In O’Brien, the Court of Appeals held that because an express easement already exists, individuals may not acquire a fuller easement by prescription when an owner simply “overuses” the express easement.

Nevertheless, this Court explained, in a footnote, that the “O’Brien easement” was dedicated “to the use of the public” while the express easement of this case “involves a very specific express easement that granted ingress and egress by footpath.”

As such, the Court of Appeals has created a distinction between two categories of expressed easements, one that may be expanded by adverse possession while the other may not.

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

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