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Private disputes can arise quickly and turn once-friendly neighbors into plaintiffs and defendants. In an effort to avoid being involved in costly litigation, townships should understand the common property disputes and have a general knowledge of those disputes and the proper way to handle them to avoid getting into trouble in the process. In this E-Letter we discuss property boundary disputes, private drainage disputes, and subdivision and condominium restrictions. Once townships have a general understanding of these common private disputes, townships can understand how these issues dovetail with alleged ordinance violations in the township and whether the township should be involved.

Township Authority

Understanding the township’s authority is an important threshold matter to consider in determining whether the township should become involved in an issue raised by township residents. A township only has authority to be involved in those matters that a specific statute or section of the state constitution provides the township to be involved. For instance, townships are granted broad powers under MCL 41.181 to enact ordinances to regulate the “public health, safety, and general welfare.” Issues raised by residents that are governed by these ordinances are within the scope of the township’s authority to take action. Many townships have also adopted a zoning ordinance. The authority to do so is provided by the Michigan Zoning Enabling Act. A zoning ordinance allows the township to regulate the use of land by districts. Issues arising under the zoning ordinance are issues that the township should be involved.

Many private disputes commonly raised by township residents, however, are outside the scope of these statutes and ordinances. Generally, they are private disputes that should be handled by the private parties involved. That said, a fundamental understanding of common private disputes will help a township identify these issues, how a township may find itself intertwined in these disputes, and how a township may find it best to avoid these disputes.

Proprerty Boundary Disputes

Most township residents will own property within the township. The ownership of property and the exclusive possession of that property often creates tension with neighboring property owners. These issues can arise from boundary line disputes, trespass issues or activities on neighboring properties that impact the reasonable enjoyment of another property owner’s use of his property.

Trespass Claims

Michigan courts define trespass as “an unauthorized direct or indirect intrusion of a physical, tangible object onto land over which the plaintiff has a right of exclusive possession.”

Most commonly, property owners will sue for trespass to recover damages caused by a neighbor’s unlawful interference with the possession of their property. An action for trespass can result from many common situations. These situations include damage to trees or shrubbery, to the land itself and, repair or maintenance of private drains that traverse their land as well as a neighboring property owner’s land. A property owner should seek permission to enter the neighbor’s land to eliminate any illegal entry on another’s land.

Some issues may best be handled by memorializing them in writing. This makes the neighbors’ rights and duties clear to each other. Although it may seem unnecessary and even burdensome to put an agreement in writing, it is better to be safe than sorry. Failing to put the specifics into a written agreement can cause neighbors to end up spending a significant amount of time and money in court over exactly what type of entry was permitted on the property, how much work was to be done and in what locations.

Nuisance Claims

An action for private nuisance differs slightly from trespass. A nuisance is generally claimed when the actions of a third party interferes with or disturbs the property owner’s interests in the private use and enjoyment of his or her property. However, when there is a private dispute, many property owners will claim both trespass and nuisance in a single lawsuit.

There are many situations that can give rise to a private nuisance claim. A person may be liable for private nuisance if:

• The person interferes with the use or enjoyment of the property;
• The invasion results in significant harm;
• The person’s conduct is the legal cause of the invasion; and
• The invasion is either (i) intentional and unreasonable, or (ii) unintentional and otherwise actionable under the rules governing liability for negligent, reckless, or ultra-hazardous conduct.

Treble Damages

It is not always better to seek forgiveness rather than permission!!!  Neighbors often disagree over property lines or are simply unaware of exactly where the property line is located. While it may seem like a minimal risk to remove a bothersome tree in the back yard, or maintain a ditch that comes close to the neighbor’s yard, these actions may turn out to be quite an expensive legal battle.

Michigan law allows “treble” (triple) damages for certain actions, including trespass. In order for treble damages to be awarded, the action must be intentional, and not merely negligent. Treble damages are meant to punish a wrongdoer. A trespasser who winds up as a defendant has the burden to prove the trespass was casual and involuntary. If a court finds that the trespass was casual and involuntary, the trespasser will only be liable for single damages. A court will look at factors such as whether the trespasser displays mere negligence, as opposed to willful or wanton conduct or evil design.

The types of actions that may give rise to treble damages include:

• Cutting/Removing Trees. Treble damages are paid when a person wrongfully cuts down or carries away “any wood, underwood, trees, or timber or injures any trees on another’s lands.”
• Stone, Dirt. Treble damages are also paid for digging up or carrying away stones, ore, gravel, clay, sand, turf on another’s lands.
• Plants, Grass, Hay, Grains.  Treble damages also apply to roots, fruits, plants, grass, hay or any type of grain.

Prescriptive Easements

Many property owners have recorded easements that run across different parts of their land for driveways, lake access, utility companies or county drains. These are express easements. Prescriptive easements, however, may exist across a property without the property owners even knowing it. Prescriptive easements are implied by the surrounding circumstances, rather than expressly granted in a written easement document.

What is a Prescriptive Easement?

A prescriptive easement is an implied easement (not a written, recorded easement) created when a person utilizes another’s property for a certain purpose in a manner that is:

• Hostile. The use must be hostile, or without permission from the property owner. If permission is given, the use is not hostile and there is no prescriptive easement.  This hostile use is different than adverse possession in that the use does not need to exclude the property owner from using their own land.
• Open Manner. The use must be observable by the property owner.
• Continuous. The use must be continuous for a period of at least 15 years.  For example, if a farmer tiles his land and outlets the drain tile onto a neighbor’s property, and does so uninterrupted for at least 15 years, the farmer may have a prescriptive easement over the neighboring property to continue to use the outlet, regardless of the natural flow of water. Property owners may also “tack” years of the use from a previous property owner of the same parcel. For example, if the same farmer tiles his land and outlets the drain tile onto a neighbor’s property, then sells his land to a second farmer seven years later, the second farmer will have a prescriptive easement over the neighbor’s property if the second farmer continues to use the tile for another eight years.

Rights and Responsibilities Involving Prescriptive Easements

• Limits of Use. A prescriptive easement is limited to the use that has taken place over the 15 year period. Any increase or improvement in the use is not covered under the prescriptive easement until the increased or improved use exists for a 15 year period.
• For example, if a farmer tiles 40 acres of his land, and outlets the water onto another’s property for a period of 15 years meeting the remaining elements of a prescriptive easement, this use may continue at its current rate. However, if the farmer tiles an additional 20 acres, sending more water onto the neighbor’s property, this increased and improved use is inconsistent with the prescriptive easement and may be stopped.
• Maintenance. A property owner with prescriptive easement rights has the right to maintain those rights. This means that the property owner may be granted access onto the neighbor’s property to perform work on the drainage system to maintain it.
• Obstructions. Once a prescriptive easement has been established, the property owner may not block or obstruct the use of that prescriptive easement on his or her property and may be ordered by a court to remove anything that obstructs the easement.
• Loss of Prescriptive Easement.  Just like a prescriptive easement can be obtained through 15 years of a certain use, a prescriptive easement can also be lost by 15 years of non-use.

Actions to Enforce Prescriptive Easements

If a property owner has a prescriptive easement over a “not-so-neighborly” neighbor, the property owner may want to consider having an easement recorded at the local register of deeds office, specifically listing the rights of the prescriptive easement. Having the prescriptive easement recorded may save the property owner from any future litigation costs if the neighbor attempts to unlawfully block the use.

Common Examples of Easements

• Basic drain easement.  Drain easement will typically include rights to maintain as well as perform improvements on a drain, tree removal, or earth placement.
• Driveway Easement.  Driveway easements may exist for an adjacent property owner to gain access to the property or in the case where a single drive is shared among property owners. Language may be included in the easement document referencing the size of the easement, the width of the easement, and the use or purpose to which the property owner may use the easement.
• Private Road Easements. Private Drives may exist in certain subdivisions or remote neighborhoods. The easement will be similar to a driveway easement, but maintenance provisions, snow clearing, grading, and the sharing of costs will be paramount.
• Lake Access Easements. When properties are located near lakes, some backlot owners may access the lake through strips of land. These easements typically discuss the backlot owners’ rights on the easement and in the water. For instance, whether a dock can be placed at the end of the easement, when boats may be moored or what type of travel may occur across the access strip (i.e., can motor vehicles drive across the strip?).

Private Drainage Disputes

Disputes between neighbors over drainage issues occurred well before Michigan became a state.  During the early development of Michigan, property owners were required to maintain the existing drainage on their property.  If they failed to do so, they could be responsible to their neighbors for any damages that occurred.  Drainage was a “mandatory” duty to allow for the development of the property. Drainage issues can be settled with private litigation.

Natural Flow Doctrine

Underpinning many private drainage disputes is where water has historically and naturally flowed across the lands. In 1884, Michigan courts adopted the “natural flow doctrine” protecting certain rights and responsibilities of each property owner involved in a drainage dispute. The “natural flow doctrine” means the natural flow of surface waters from the upper, dominant estate forms a “natural servitude” that encumbers the lower servient estate.

A common example of this doctrine is natural drainage. The water naturally flowing from one property located at a higher elevation to a neighboring property at a lower elevation establishes rights for the higher property owner to have the water flow across the lower property. Conversely, the natural flow doctrine creates a duty in the lower property owner to not obstruct the natural drainage course. Please remember that the natural flow doctrine only pertains to natural flow and not altered drainage patterns, such as man-made ditches.

The lower (servient) property must accept the water from the upper (dominant) property under the following circumstances:

• The drainage is surface water (does not apply to tile systems).
• The upper (dominant) parcel has not increased the amount of water that would otherwise flow naturally.
• The upper (dominant) parcel has not increased the velocity of the water.
• The drainage has not been artificially changed.

Trespass, Nuisance, Prescriptive Easements

Private property disputes involving trespass or nuisance, as discussed above, are very common, but the same legal principles and causes of action apply to the flow of water regarding private drainage disputes. Water that has been directed upon another person’s property can create a claim for trespass or nuisance. The flow of that water—if persisting for at least 15 years—will create a prescriptive easement if otherwise meeting the legal criteria.

Deed Restrictions, Subdivision Restrictive Covenants, Condominium Master Deeds

Deed restrictions, subdivision restrictive covenants, and condominium master deeds provide additional requirements for the building or activities that can be performed on property. These restrictions are typically focused on very granular issues, such as house siding color, minimum building foot print size, or the number of cars that may be parked outside. Some neighbors may contact the Township regarding these violations.

Deed restrictions, subdivision restrictive covenants, and condominium master deeds are a matter of private contract, however. A township is not considered a party to that contract and the township will have no legal authority to enforce the deed restrictions. Deed restrictions are enforced through the court system. They are not land use regulations such as specifications contained within a township zoning ordinance. Townships should not become involved in these issues.

Township Actions

Now that you understand the common private property disputes, it’s important to identify these issues and know when to get involved. The township should be involved with violations of its ordinance. There are times where private property disputes and ordinance violations will exist in the same instance. For instance, a boundary line dispute may occur between property owners regarding landscaping placed by one property owner. The issues as to where the boundary exists is a private property dispute. There may also be issues with whether the landscaping complies with the zoning ordinance. This, however, is an ancillary issue. The parties should resolve the private boundary dispute first. After location of the boundary line, the township may find it appropriate to sort out whether the landscape is lawful under the zoning ordinance. Similar events happen with water drainage, trespass and deed restrictions. As a general rule, the parties should attempt to resolve the private disputes first before the township becomes involved. Otherwise, the township may become intertwined into a private property dispute.

–Christopher Patterson cpatterson@fsbrlaw.com

–Lauren Dutcher ldutcher@fsbrlaw.com

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Fahey Schultz Burzych Rhodes PLC, Your Township Attorneys, is a Michigan law firm specializing in the representation of Michigan townships. Our lawyers have more than 150 years of experience in township law, and have represented more than 150 townships across the state of Michigan. This publication is intended for our clients and friends. This communication highlights specific areas of law, and is not legal advice. The reader should consult an attorney to determine how the information applies to any specific situation.