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BlogsPublications | October 21, 2016
3 minute read

Good fences may make for good neighbors, but only if they aren’t built on the neighbor’s property, says COA

In the contentious easement dispute of Morse v. Colitti, No. 328212, the Court of Appeals reminds trial courts to keep in mind who owns the fee.  When Richard Morse complained that the Colittis had overburdened a lake access easement with a fence on his side of the easement, a dock on the lakeshore, and other structures, the trial court agreed that the dock must go, but left the fence in place only because it was “probably beneficial for the parties to keep that fence up.”  That may be so, said the Court of Appeals, but Mr. Morse owns the fee to the center of the walk, and the Colittis erected the fence on his side.  The court reversed for a determination of which portions of the fence violated that fee interest and whether the other structures overburdened the easement.  It also resurrected Mr. Morse's trespass and nuisance claims, clarifying that injunctive relief for trespass is not subject to a 3-year statute of limitation but remains viable for 15 years after the trespass occurs.

Richard Morse and the Colittis live in a platted development with the “streets, alleys, and parks” dedicated to “the use of the present and future lot owners.”  In 2009, the Colittis decided to improve their property by creating a pathway on the lake access walk, building a stairway along the walk, and erecting a wooden fence on the walk within six inches from Morse’s home.  The Colittis also rented out a home on a lot in the back of the development and told their tenants they could use the walk to access the lake. 

Mr. Morse filed suit in 2013, for a declaration that he owned the fee interest to the center of the walk, an order to remove the dock and structures the Colittis built in the walk, and an order enjoining access by the back-lot tenants.  The court later granted summary disposition in favor of the Colittis on Morse’s trespass, nuisance, and ordinance violation claims, reasoning that the claims were time-barred under the applicable statute of limitations.  After a bench trial, the court held that the dock should be removed but the fence should stay.  Both parties appealed.

On appeal, the Colittis asserted that the trial court erred when it determined that Morse had standing to challenge the neighbors’ construction of a dock because such use constituted riparian rights, and a Park lay between Morse’s land and the water.  The Court of Appeals disagreed, holding that Morse had a substantial interest in determining the others’ right to build a dock and moor a boat at the shore of the Park because he had an easement across the Park.  Regarding the tenants’ rights in the walk, the Court of Appeals held that the back-lot property included part of the development, giving the tenants a right to use the walk.  The court also affirmed the trial court’s dismissal of the ordinance violation claim, reasoning that the ordinance did not prevent the neighbors from erecting a fence on the walk.

As for the fence, under Michigan law, landowners abutting a private walkway that is contiguous to the water are presumed to own the fee entirely. Therefore, Mr. Morse owned half of the walk, and the Colittis trespassed on his land when they built their fence his side of the walk.  The court also determined that the trial court erred when it failed to determine whether the fence was necessary for effective use of the parties’ easement in the walk.  Finally, the Court reversed the trial court’s ruling that Mr. Morse’s trespass and nuisance claims were fully time-barred.  The trespass claim was only time-barred as to damages, not injunctive relief, since an action to recover property may be brought within 15 years of the claim accruing. And there was at least a genuine issue of material fact as to whether the injury giving rise to the nuisance claim occurred less than three years before the claim was brought, making it timely.