Bonnie Faraone v. Lansing Board of Water and Light

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to

revision until final publication in the Michigan Appeals Reports.

STATE OF MICHIGAN

COURT OF APPEALS

BONNIE FARAONE and MICHAEL FARAONE, UNPUBLISHED

April 11, 2025

Plaintiffs-Appellants, 9:14 AM

v No. 365804

Ingham Circuit Court

LANSING BOARD OF WATER AND LIGHT, LC No. 22-0255-CZ

Defendant-Appellee.

Before: M. J. KELLY, P.J., and LETICA and WALLACE, JJ.

PER CURIAM.

This case concerns power lines belonging to defendant, Lansing Board of Water and Light

(BWL), that traverse plaintiffs’ property and BWL’s planned efforts to keep those lines free and

clear of tree branches and vegetation. The litigation was triggered when BWL communicated to

plaintiffs in 2021 that it would be trimming, cutting, and possibly removing trees on plaintiffs’

property with the intent to prevent the downing, disconnection, or disruption of the power lines

during storms and heavy winds. After discussions between the parties collapsed with respect to

possibly moving power lines and an attempt to amicably resolve a disagreement over the nature

and extent of the tree work necessary to provide for the safe and secure transmission of electricity,

plaintiffs obtained a temporary restraining order (TRO) that halted BWL’s vegetation-

management plan. But, ultimately, plaintiffs’ seven-count complaint was summarily dismissed,

paving the way for BWL to move forward with its plan pending this appeal. Plaintiffs appeal as

of right.1 We affirm in part, reverse in part, and remand for further proceedings.

1

We acknowledge that, with respect to most of the claims raised in this case, Bonnie Faraone was

ultimately dismissed by the trial court on the ground that she was not on the legal title to the

property at issue, as discussed below. However, because the parties consistently referred to both

Bonnie and Michael Faraone as “plaintiffs” and the property at issue as “plaintiffs’ property,” we

will follow suit to avoid confusion.

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I. OVERVIEW

The primary issue in the case regards the trial court’s determination, as a matter of law,

that BWL has a prescriptive easement in the air space occupied by the power lines that pass over

plaintiffs’ property. A closely associated issue concerns the court’s determination, also as a matter

of law, that the scope of BWL’s prescriptive easement encompasses the legal right for BWL to

perform the specifically-planned maintenance work on the trees, which includes creating a 6-foot,

vegetation-free clearance on each side of a secondary power line and eliminating any overhanging

branches. The other issues regard an alleged trespass-nuisance created by a low-hanging power

line, a takings claim under the state and federal constitutions, and an alleged Fourth Amendment

violation based on the actions of an employee of Wright Tree Service, a BWL contractor, who

purportedly photographed or videotaped Bonnie Faraone.

The documentation shows variations at times in the location of utility poles and power lines

due, in part, to a lack of accuracy in the historical documents. Plaintiffs’ property, which they

purchased in 2007, is located at 717 Moores River Dr. in Lansing and is comprised of Lots 3 and

4 in Block 1 of Park Heights. Lot 4 lies to the west of and adjacent to Lot 3. Plaintiffs’ house and

garage are located on Lot 4, which is the smaller of the two lots, and the garage is situated at the

far southeastern corner of Lot 4, with the home being located to the north of the garage. Moores

River Dr. is north of the house and is an east-west street that runs in a somewhat southerly direction

when heading east. There are no utility poles located directly on plaintiffs’ land.

There are two competing power-line configurations as ascertained by examination of

geographic information system (GIS) images, a BWL sketch, survey documents, and a site map.

The current configuration of the power lines is V-shaped, which is reflected in a GIS image, the

surveys, and the site map. About midway between the east and west boundaries of Lot 3 and just

beyond the far southern boundary of Lot 3 is a utility pole (utility pole 1). A “secondary” power

line runs from utility pole 1 in a northwesterly direction to another utility pole (utility pole 2),

which is situated just beyond the far southern boundary of Lot 4, close to the southeastern corner

of plaintiffs’ garage. From utility pole 2, there are four service drops, i.e., power lines running

from a utility pole directly to a house, and these service drops go to three neighboring homes and

to plaintiffs’ house. Returning to utility pole 1, aside from the power line running northwesterly

to utility pole 2, there is a power line, effectively a service drop, running northeasterly to a home

at 707 Moores River Dr., which property is directly adjacent to the east of plaintiffs’ Lot 3. Thus,

emanating from utility pole 1 are two power lines, effectively forming the V-shaped configuration,

and they traverse plaintiffs’ property.

The record also contains GIS images showing power-line configurations in 1938 and 2003,

along with the BWL sketch, which is dated October 5, 1979, and none of these documents show

the V-shaped configuration as reflected in the documentary evidence discussed in the preceding

paragraph. Instead, they reveal a utility pole (utility pole 3) near the southern boundary of the

property at 707 Moores River Dr., with the GIS images showing utility pole 3 within the

boundaries of 707 Moores River Dr. and the 1979 BWL sketch depicting utility pole 3 as being

situated just south of the property line for that address.2 From utility pole 3, a power line ran in a

2

The southern borders of plaintiffs’ Lot 3 and 707 Moores River Dr. form a continuous line.

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northwesterly path to utility pole 2. Accordingly, the secondary power line in the current

configuration running from utility pole 1 and the power line that ran from utility pole 3 both end

and ended at utility pole 2. When comparing the paths of those two lines, the former power line

running from utility pole 3 crossed plaintiffs’ Lot 3 further to the north than the current secondary

power line and at a lesser angle.

The significance of the location of the utility poles and powerlines and the various dates is

that, for purposes of determining whether the 15-year prescriptive period was satisfied, BWL

argued that the current configuration of the power lines generally existed at least as far back as

1979, whereas plaintiffs contended that the current V-shaped configuration of the lines came into

existence sometime between 2003 and 2007 and is significantly distinct from the previous

configuration. It was in the spring of 2007 that plaintiffs purchased the home and first saw the V-

shaped power lines. With respect to the scope of the alleged prescriptive easement, the vegetation-

management plan was implemented in 2014 after an ice storm in December 2013; however, BWL

permitted plaintiffs to trim and prune their trees as they saw fit until 2021 when BWL sought to

enforce its 2014 plan. Plaintiffs maintained that assuming the existence of an easement, the

vegetation-management plan is not reasonably necessary for the safe enjoyment of the easement

and unreasonably and unlawfully increases the burden on plaintiffs’ servient estate, thereby

exceeding the scope of the presumed prescriptive easement. BWL argues to the contrary. Wright

Tree Service recommended the actual removal of 11 trees in plaintiffs’ yard, but plaintiffs’ expert

opined that only four and possibly five of the trees needed to be removed.

II. PROCEDURAL HISTORY

A. THE COMPLAINT

On April 25, 2022, plaintiffs filed a complaint against BWL. In Count I of the complaint,

plaintiffs requested the TRO. Plaintiffs alleged that BWL had never established an easement;

therefore, it had no authority to trim or remove trees located on plaintiffs’ property. Plaintiffs

contended that if BWL were allowed to trim or remove trees absent due process, plaintiffs would

suffer immediate and irreparable injury and have no adequate remedy at law because old growth

trees, such as those in plaintiffs’ yard, that are damaged or removed would take decades to replace.

Next, plaintiffs asserted that BWL’s no-overhang policy was unnecessary and did not consider the

impact on the value and aesthetics of properties, that BWL insisted that it had to remove all

vegetation spanning six feet around any power line pursuant to a report that did not actually provide

such parameters, that BWL’s standards were adopted without any public input or professional

assistance, and that the standards were arbitrary and capricious as they did “not consider the type

or species of the vegetation, or the age, condition, or likelihood the vegetation will present

problems in the type of equipment involved.”

Plaintiffs further alleged that BWL’s inflexible no-overhang policy is an anomaly

compared to industry standards, is almost unheard of in other urban and suburban communities,

and is typically only associated with high-voltage transmission lines running through rural

communities. Plaintiffs maintained that injunctive relief was necessary to block the threatened

trespass and prevent damage to the trees. Plaintiffs requested a TRO to stop BWL from trimming,

cutting, or removing any trees, and they asked the court to order BWL to appear and show cause

why the court should not enter a preliminary injunction.

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In Count II of the complaint, plaintiffs sought a declaratory judgment and permanent

injunction. Plaintiffs made numerous claims regarding the uniqueness and benefits of trees in

general and of having trees in their backyard, claiming that irreparable harm would occur if BWL

were permitted to trim or remove plaintiffs’ trees. Plaintiffs asked the trial court to permanently

enjoin BWL from engaging in any activity on their property, declare that BWL has no right to

enter upon plaintiffs’ land, award plaintiffs costs and fees, and grant plaintiffs any other

appropriate relief.

In Count III of the complaint, plaintiffs alleged that BWL was attempting a regulatory

taking, implicating the Takings Clauses of the United States and Michigan Constitutions. Plaintiffs

asserted that BWL’s conduct—a months-long threat to trespass and trim or remove plaintiffs’

trees—amounted to a governmental taking. Plaintiffs alleged that a taking occurred because they

had “been unable to leave their home out of fear that [BWL’s] agents [would] arrive unannounced

to cut or remove their trees[,]” and because of the sound of chainsaws in the neighborhood, which

deprived plaintiffs of the quiet enjoyment of their property. Plaintiffs requested a judgment

enjoining BWL from entering plaintiffs’ property, awarding plaintiffs economic, noneconomic,

and exemplary damages, and granting plaintiffs costs, interest, and attorney fees.

In Count IV of the complaint, plaintiffs alleged a claim of trespass-nuisance with respect

to a purported service-drop hazard over their garage. Plaintiffs contended that the service drop

posed a fire hazard because it hung too closely to a “flammable” garage and that the service drop

interfered with plaintiffs’ use and enjoyment of their property, creating stress and anxiety.

Plaintiffs posited that the service drop was a measurable physical intrusion, an instrumentality

within BWL’s control, and a hazard that plaintiffs themselves could not remedy through self-help.

Plaintiffs requested a judgment enjoining BWL from entering plaintiffs’ property, awarding

plaintiffs economic, noneconomic, and exemplary damages, and granting plaintiffs costs, interest,

and attorney fees.

In Count V of the complaint, plaintiffs alleged a cause of action for intentional infliction

of emotional distress (IIED) related to the service-drop hazard. Plaintiffs maintained that it was a

BWL employee who first noticed the dangerous service drop and voiced concerns; however, once

an amicable solution could not be reached between the parties regarding the trimming and removal

of trees, BWL denied knowledge of the problematic service drop and then later told plaintiffs to

call BWL’s customer-service line. Plaintiffs characterized BWL’s conduct and behavior as

extreme, outrageous, and vindictive, which created a danger to plaintiffs’ lives and caused extreme

stress and anxiety. Plaintiffs noted that BWL had engaged in similar extreme and outrageous

conduct in relation to a family in a different neighborhood who had also challenged BWL’s tree-

trimming plans, which resulted in litigation. Plaintiffs requested a judgment enjoining BWL from

entering plaintiffs’ property, awarding plaintiffs economic, noneconomic, and exemplary

damages, and granting plaintiffs costs, interest, and attorney fees.

In Count VI of the complaint, plaintiffs alleged that BWL lacked an easement and was

otherwise prohibited from cutting, trimming, or removing plaintiffs’ trees on the basis of historical

acquiescence or estoppel. Plaintiffs asserted that BWL had not established that it had an easement

of any kind with respect to the area of the V-shaped power lines and that historical photographs

did not show any power lines in the area. Plaintiffs maintained that even if BWL had an easement,

it was required to renew the easement, and BWL had not performed any “maintenance on its

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conduit, poles, wires, and equipment on the property for many years.” Plaintiffs further alleged

that even if BWL had an easement, it was estopped from asserting any right to trim the trees

because BWL’s General Manager, Peter Lark, had promised plaintiffs that they could trim the

trees. Plaintiffs contended that given this promise by Lark, BWL should have expected it would

induce action by plaintiffs of a definite and substantial character in reliance on the promise. And,

according to plaintiffs, in reliance on that promise, they spent thousands of dollars regularly

trimming their trees and landscaping their yard with plants. Plaintiffs asserted that in light of these

circumstances, the trial court was required to enforce the promise made by Lark in order to avoid

an injustice. Plaintiffs also alleged that to the extent that BWL claimed a prescriptive easement,

the required elements of such an easement could not be established because Lark had left the tree

trimming to plaintiffs. Plaintiffs requested a judgment enjoining BWL from entering plaintiffs’

property, awarding plaintiffs economic, noneconomic, and exemplary damages, and granting

plaintiffs costs, interest, and attorney fees.

In Count VII of the complaint, plaintiffs alleged a violation of the Fourth Amendment.

Plaintiffs recounted an episode or encounter between Bonnie and three men from Wright Tree

Service when one of the men photographed or videotaped her. Plaintiffs asserted that Wright was

acting as BWL’s agent at the time because the three Wright employees were present on a

neighboring property for the purpose of trimming and cutting trees. Plaintiffs contended that BWL

is a governmental entity that had to comply with the Fourth Amendment and that BWL violated

plaintiffs’ Fourth Amendment rights by the “unauthorized videotaping of a private home and its

occupants.” Plaintiffs alleged that the acts of the three Wright employees were objectively

unreasonable. Once again, plaintiffs requested a judgment enjoining BWL from entering

plaintiffs’ property, awarding plaintiffs economic, noneconomic, and exemplary damages, and

granting plaintiffs costs, interest, and attorney fees.

B. BWL’S MOTION FOR SUMMARY DISPOSITION

In December 2022, BWL moved for summary disposition under MCR 2.116(C)(7), (8),

and (10).3 BWL first argued that Bonnie Faraone was not a real party in interest because the

property was solely titled in Michael Faraone’s4 name as reflected in the 2007 deed. BWL next

argued, in relation to Count VI of the complaint which claimed that no easement existed, that the

documentary evidence established all the elements of a prescriptive easement and that, therefore,

BWL was allowed to maintain its equipment on or over plaintiffs’ property and prevent the

interruption of electrical power service. More specifically, BWL contended that it had transmitted

electric power to plaintiffs’ property “since at least 1979”; therefore, it held a “prescriptive

easement by virtue of the continued and uninterrupted presence of the equipment on the [p]roperty

for the past 43 years.” BWL further argued that plaintiffs had interfered with BWL’s use of its

3

Earlier in the litigation, on May 2, 2022, the trial court entered a TRO prohibiting BWL from

trimming, cutting, or removing any of the trees on plaintiffs’ property. After a hearing, the trial

court continued the TRO by order entered on May 20, 2022.

4

For the remainder of the opinion, we shall refer to plaintiffs by their first names when speaking

of them individually.

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easement and that its vegetation-management plan would not unreasonably burden plaintiffs’

property.

BWL next addressed Count III, the governmental takings claim, arguing that it had not

targeted plaintiffs in any manner, that there was no abuse of governmental power, that it was

simply implementing a standard tree-trimming policy applicable to all properties, that plaintiffs

suffered no loss, and that the claim was not ripe because no tree trimming or removal had even

taken place on plaintiffs’ property. With respect to Count IV, the trespass-nuisance claim, BWL

argued that while it initially appeared to the naked eye that the power lines over the garage were

perhaps too low, i.e., a possible service-drop hazard, measurements that were later taken revealed

that the distance between the wires and the garage exceeded clearance standards. BWL also

asserted that plaintiffs had suffered no damages and that the claim was not ripe. In regard to Count

V, the IIED claim, BWL maintained that it was shielded by governmental immunity, that there

was no service-drop hazard, and that it did not engage in any outrageous or extreme conduct.

BWL next argued that Counts I and II of plaintiffs’ complaint concerned the request for a

TRO and a preliminary injunction, which matters had already been litigated and were premised on

alleged wrongdoing set forth in the other counts. With respect to Count VII, the Fourth

Amendment claim, BWL argued that there was no supporting evidence that Bonnie was filmed or

photographed, that the accused Wright employee simply sat in his truck and was looking at TikTok

videos on his cellphone, and that even if Bonnie had been photographed or filmed, she had no

expectation of privacy while outside her home. Finally, BWL argued that it was entitled to

sanctions because plaintiffs’ complaint was frivolous.

In plaintiffs’ response to BWL’s motion for summary disposition, they first addressed and

challenged BWL’s contention that it had a prescriptive easement. Indeed, plaintiffs asserted that

they were entitled to summary disposition under MCR 2.116(I)(2) because there was no genuine

issue of material fact that BWL did not have a prescriptive easement, nor any other kind of

easement. Plaintiffs contended that BWL was relying on a previous configuration of the power

lines that had since been changed. Plaintiffs claimed that the 15-year period for a prescriptive

easement “began to run no earlier than 2003” and that “[i]t could have begun in late 2007,” which

is when plaintiffs moved into their home, “meaning there is no 15-year period to analyze.”

Plaintiffs maintained that BWL had the burden to prove by clear and cogent evidence that an

easement existed, but the records relied on by BWL were confusing and incoherent. According to

plaintiffs, the reconfiguration of the power lines involved the movement of a utility pole, and

plaintiffs argued that the reconfiguration could have occurred well after 2003 “because the pole

looks new.”5 Plaintiffs also asserted that BWL could not prove continuous, adverse, or hostile use

because in 2011 and 2013, when Bonnie complained about the configuration of the power lines,

GM Lark promised to let plaintiffs alone trim the trees, and thus, thereafter, BWL had mere

permissive use, which could not ripen into a prescriptive easement.

In BWL’s motion for summary disposition, it had cited MCL 560.190(d), which provides

that, with respect to public utility easements, “[t]he public utilities shall have the right to trim or

remove trees that interfere with their use of easements.” Plaintiffs argued that this provision does

5

This was a reference to utility pole 1.

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not give a public utility an easement and does not define the extent to which a public utility may

use an easement. Next, plaintiffs maintained that even if an easement existed, its scope was not

unlimited. They contended that BWL’s vegetation-management plan overly and unreasonably

burdened the servient estate, i.e., plaintiffs’ property. Plaintiffs stated that if there was an

easement, it did “not warrant cutting a 6-foot-swath around power lines, ground to the sky,

destroying [p]laintiff’s [sic] yard in order to remove vegetation which, as recently as 2014,

[BWL’s] vegetation policies allowed.” They asserted that BWL’s current policy was not within

the original scope of any easement because until June 2014, BWL had allowed power-line

overhang. Plaintiffs also argued that BWL’s current plans, standards, and policies were

unnecessarily extreme and harmful to the environment and that they were actually contrary to

industry standards.

With respect to the governmental takings claim, plaintiffs asserted that BWL’s plan would

“cause tens of thousands of dollars in lost value to [p]laintiffs’ property.” Plaintiffs argued that

Michigan law recognized that a governmental taking can arise under facts similar to those

presented in this case. Next, plaintiffs addressed their trespass-nuisance claim that was premised

on the alleged service-drop hazard. They maintained that BWL’s measurement of the service drop

did not take into account that the power lines had a downward slope and that BWL measured the

distance between the garage’s roof and the power lines at its greatest variance, ignoring that the

distance was much shorter and under the three-foot minimum at a certain spot. According to

plaintiffs, BWL’s own evidence established that there was in fact a service-drop violation.

Plaintiffs, requesting leave to amend their complaint, claimed that they were not seeking monetary

damages on the trespass-nuisance count but only abatement of the trespass-nuisance. Plaintiffs

contended that governmental immunity would not bar the claim if only declaratory or equitable

relief is requested.

With regard to the IIED claim, plaintiffs argued that BWL’s conduct in relation to the

service drop was outrageous; however, plaintiffs were prepared to stipulate to the dismissal of the

count because the claim was not sustainable under the current state of the law. As to plaintiffs’

Fourth Amendment claim, plaintiffs asserted that there was a factual dispute regarding whether

the worker employed by Wright was taking Bonnie’s photograph or filming her. Plaintiffs

maintained that they had a valid constitutional-tort claim for money damages. Finally, plaintiffs

argued that should the trial court rule against them, there was no basis for sanctions.

C. THE TRIAL COURT’S SUMMARY DISPOSITION RULING

On December 28, 2022, the trial court conducted a hearing on BWL’s motion for summary

disposition.6 With respect to Count VII of the complaint—the alleged Fourth Amendment

violation, the trial court ruled that the Wright employee accused of photographing or filming

Bonnie denied doing so in an affidavit and that there was no evidence to the contrary; therefore,

summary dismissal of the count was appropriate. In regard to Counts I, II, III, IV, and VI, the trial

court dismissed the counts in relation to Bonnie only, concluding that while she may have an

6

The hearing also addressed a request by BWL to enter plaintiffs’ property to examine and assess

the condition and location of the trees and vegetation, a request to continue the TRO, and a request

to extend discovery.

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equitable interest in the property for purposes of a divorce action, her lack of legal title, i.e., not

being on the deed, was fatal to those five counts in the instant suit. As to Count V, the IIED claim,

the court noted that plaintiffs had withdrawn that cause of action. The trial court took all of the

remaining claims under advisement.

On February 28, 2023, the trial court issued a written opinion and order granting BWL’s

motion for summary disposition on all of the outstanding claims. The trial court examined the

question regarding whether there existed a genuine issue of material fact with respect to whether

BWL had a prescriptive easement over plaintiffs’ property. The trial court determined that BWL

had established all the elements of a prescriptive easement as a matter of law. On the element

requiring continuous use for the requisite 15-year period, the court found that BWL had enjoyed

utility access on the property and provided power to it since 1919. The trial court acknowledged

that the power lines had “changed position slightly at some point between 2003 and 2007.” The

court noted that the property was deeded to Michael on May 30, 2007, and that Bonnie testified

that the power lines existed in their current V-shaped configuration at the time that Michael bought

the house.

The trial court next addressed plaintiffs’ assertion that one of the utility poles looked new,7

concluding that there was no evidence regarding when the pole was actually placed “or any expert

testimony regarding the weathering of utility poles.” The trial court further ruled:

It is clear that BWL’s use of the Property is open and notorious in that the

lines are plainly visible and Plaintiff[8] is, and has been, aware that the lines are

present. BWL’s use of the Property is also adverse and hostile, such that the use is

inconsistent with the right of the owner, without permission asked or given, again,

at least since Plaintiff moved into the Property in 2007. Although Plaintiff alleges

that BWL’s use of his Property is extremely limited (“The only ‘space’ the Board

has ever used is the less than one-inch in diameter wire.”) and that use itself is

permissive, Plaintiff has not met his burden to show that that has been the case.

Bonnie Faraone’s deposition outlined several occasions in which Plaintiff sought

assistance, maintenance, or updates to equipment from BWL, including concerns

over the cost of steam at the Property, the installation of a light, and line connections

that ran over the Property. Plaintiff also elicited an alleged promise from BWL

employee Peter Lark to allow Plaintiff to trim his own trees, which suggests that

the understanding between the parties was that Defendant did have the right to trim

trees, and they instead allowed Plaintiff to do so instead at his own expense. Ms.

Faraone further testified that she and Plaintiff did not want BWL to touch the trees

“since the minute I lived in Lansing.” In 2021, the events that ultimately gave rise

to this litigation resulted in Plaintiff communicating to Defendant that BWL and/or

any of its agents did not have permission to come onto the Property.

To the extent that Plaintiff argues that BWL’s absence from the Property or

that Peter Lark’s alleged promise to allow them to trim their own trees constitutes

7

The pole being discussed is utility pole 1.

8

The trial court referred to Michael as “Plaintiff.”

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a voluntary cessation of the easement, this Court disagrees; an agreement allowing

Plaintiff to trim their own trees does not constitute an agreement to give up all right

of maintenance and repair and the necessary access required to do so. Such an

agreement also does not create an issue of estoppel where the agreement is

predicated [o]n an understanding that BWL had a right to maintain vegetation

around its equipment, and merely allowed Plaintiff to carry out that maintenance

on its behalf.

This Court finds that BWL has established and shown that it has a

prescriptive easement over Lots 3 and 4, Block 1, Park Heights, City of Lansing,

Ingham County, Michigan, according to the recorded plat thereof, as recorded in

Liber 6 of Plats, Page 24, Ingham County Records, commonly known as 717

Moores River Drive, where its existing equipment (including but not limited to any

conduit, poles, wires, service drop, and fixtures) is located. This prescriptive

easement includes the same rights that exist under an express easement, including

but not limited to the right to access, maintain, and repair its equipment, and the

right of ingress and egress over the Property. (Citations omitted).

The trial court next addressed the arguments regarding the scope of the easement. The

court first noted that MCL 560.190 grants public utilities the right to trim or remove trees that

interfere with their easements. The trial court found as a matter of law that BWL’s easement gave

it the right “to trim and/or remove any vegetation, including without limitation tree limbs or

branches that overhang, interfere with, or threaten BWL’s equipment.” The court later elaborated

that “BWL’s easement includes a right to clear vegetation to the extent necessary to effective

enjoyment of the easement—in this case, not only the ability to maintain, repair, and inspect its

equipment, but also to ensure the safe and reliable delivery of its service.” The trial court further

determined that BWL’s vegetation-management plan would not unreasonably burden plaintiffs’

property. The court additionally stated and ruled:

In the present case, Defendant has submitted testimonial evidence that

overhang is a “significant and ongoing threat to public safety and thus must [be]

trimmed or removed as part of ongoing maintenance.” Specifically: “it is necessary

to trim the trees marked in the Planner’s Plans in order to protect the BWL’s

equipment on the Property. These trimmings are needed in order for BWL to

preserve the reliability of its electric power system and reduce the probability of

outages.” Further: “The vegetation that is presently overhanging the electric power

equipment on the Property must be trimmed because it also causes a potential threat

to the safety of the public and to BWL’s crews.” Defendant also submitted the

testimonial evidence of an expert in electrical engineering and the effects of

vegetation on electrical distribution systems, who concluded: “all limbs that

overhang BWL’s electric power line and equipment should be trimmed or removed

so as to no longer hang over that electric power line.” Dr. Russell further states that

reduction pruning is “an ineffective and impractical method for reducing the risk

posed by tree branches and limbs overhanging electric power lines.”

In opposition to the evidence presented by Defendant, Plaintiff produced a

report by a Certified Arborist, who recognized BWL’s policy regarding overhang

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and clearance requirements, and offered recommendations that “meet the less

severe standards” of other municipalities and power companies. However, the

report does not offer an opinion regarding potential threats to public safety, work

crew safety, or the ability of Defendant to safely and reliably deliver its services.

Plaintiff offers no case law or statute that requires Defendant to set its policies and

standards to align with other municipalities and power companies. Plaintiff offers

no evidence that Defendant’s policies and standards, though more strict, are not in

line with industry standards. The Court finds . . . that Defendant has met its burden

to show that the maintenance is both necessary for its enjoyment of its easement

and not unreasonably burdensome. [Citations omitted; alteration in original.]

Accordingly, the trial court granted BWL’s motion for summary disposition under

MCR 2.116(C)(10) with respect to Counts I (TRO request), II (request for declaratory relief and

permanent injunction), and VI (alleged absence of an easement). The court ordered the preparation

of a survey showing the current configuration of BWL’s power lines and the trees at issue, which

was to then be entered into the record for purposes of defining the easement.

With respect to Count III of the complaint alleging a governmental taking, the trial court

first indicated that plaintiffs had offered no authority for the proposition that a subjective fear of

tree removal or the sounds of chainsaws in a neighborhood amount to a governmental taking. The

trial court further ruled that to the extent that plaintiffs were claiming a taking due to the planned

trimming and removal of trees, the claim was rendered moot by the court’s determination that a

prescriptive easement existed. Finally, with regard to Count IV of the complaint alleging a

trespass-nuisance arising from the purported service-drop hazard over plaintiffs’ garage, the trial

court summarily dismissed the count under MCR 2.116(C)(8) and (10). The court concluded that

plaintiffs failed to provide documentary evidence countering BWL’s evidence that the result of a

power-line clearance investigation confirmed that the line above plaintiffs’ garage was eight and

a half feet above the garage, which was consistent with safety requirements.

By order dated April 12, 2023, the trial court confirmed BWL’s easement and dissolved

the TRO. Subsequently, by order dated May 1, 2023, the trial court denied a motion for

reconsideration filed by plaintiffs, concluding that plaintiffs had not demonstrated palpable error

and were arguing the same issues previously litigated and rejected by the court. In the order, the

trial court also denied a motion for sanctions brought by BWL, finding that plaintiffs’ lawsuit was

not frivolous, and the court granted plaintiffs’ request for a stay pending exhaustion of plaintiffs’

appellate remedies. Plaintiffs now appeal as of right.

III. ANALYSIS

A. WHETHER THERE EXISTS A GENUINE ISSUE OF MATERIAL FACT REGARDING

THE ESTABLISHMENT OF A POWER-LINE PRESCRIPTIVE EASEMENT

1. STANDARD OF REVIEW AND (C)(10) PRINCIPLES

The prescriptive-easement and scope-of-easement issues were decided by the trial court

under MCR 2.116(C)(10). We review de novo a trial court’s ruling on a motion for summary

disposition. Champine v Dep’t of Transp, 509 Mich 447, 452; 983 NW2d 741 (2022). In Anderson

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v Transdev Servs, Inc, 341 Mich App 501, 506-507; 991 NW2d 230 (2022), this Court recited the

principles that govern the analysis of a motion brought pursuant to MCR 2.116(C)(10):

MCR 2.116(C)(10) provides that summary disposition is appropriate when,

“[e]xcept as to the amount of damages, there is no genuine issue as to any material

fact, and the moving party is entitled to judgment or partial judgment as a matter of

law.” A motion brought pursuant to MCR 2.116(C)(10) tests the factual support

for a party’s action. “Affidavits, depositions, admissions, or other documentary

evidence in support of the grounds asserted in the motion are required . . . when

judgment is sought based on subrule (C)(10),” MCR 2.116(G)(3)(b), and such

evidence, along with the pleadings, must be considered by the court when ruling on

the (C)(10) motion, MCR 2.116(G)(5). “When a motion under subrule (C)(10) is

made and supported . . ., an adverse party may not rest upon the mere allegations

or denials of his or her pleading, but must, by affidavits or as otherwise provided in

this rule, set forth specific facts showing that there is a genuine issue for trial.”

MCR 2.116(G)(4).

A trial court may grant a motion for summary disposition under MCR

2.116(C)(10) if the pleadings, affidavits, and other documentary evidence, when

viewed in a light most favorable to the nonmovant, show that there is no genuine

issue with respect to any material fact. A genuine issue of material fact exists when

the record, giving the benefit of reasonable doubt to the opposing party, leaves open

an issue upon which reasonable minds might differ. The trial court is not permitted

to assess credibility, weigh the evidence, or resolve factual disputes, and if material

evidence conflicts, it is not appropriate to grant a motion for summary disposition

under MCR 2.116(C)(10). Like the trial court’s inquiry, when an appellate court

reviews a motion for summary disposition, it makes all legitimate inferences in

favor of the nonmoving party. Speculation is insufficient to create an issue of fact.

A court may only consider substantively admissible evidence actually proffered by

the parties when ruling on the motion. [Quotation marks, citations, and brackets

omitted.]

2. THE LAW OF PRESCRIPTIVE EASEMENTS

In general, an easement is an interest in real property that gives one person the right to use

the land of another person for a specific purpose. Penrose v McCullough, 308 Mich App 145, 148;

862 NW2d 674 (2014). Michigan jurisprudence recognizes two types of easements—easements

appurtenant and easements in gross. Id. “An appurtenant easement attaches to the land and is

incapable of existence apart from the land to which it is annexed[,]” and “[a]n easement in gross

is one benefiting a particular person and not a particular piece of land.” Id. (quotation marks and

citations omitted). “The land burdened by the easement is the servient estate, and the land

benefited by the easement is the dominant estate.” Smith v Straughn, 331 Mich App 209, 215; 952

NW2d 521 (2020).

“Just as ownership of land may be acquired through adverse possession, so too may an

easement be acquired through prescription.” Marlette Auto Wash, LLC v Van Dyke SC Props,

LLC, 501 Mich 192, 202; 912 NW2d 161 (2018). The Marlette Court observed:

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[I]n order for plaintiff to successfully establish a prescriptive easement,

plaintiff must show clear and cogent proof of possession that is actual, continuous,

open, notorious, hostile, and uninterrupted for the relevant statutory period. The

possession must be so open, visible, and notorious as to raise the presumption of

notice to the world that the right of the true owner is invaded intentionally, and with

the purpose to assert a claim of title adversely to his, so that if the true owner

remains in ignorance it is his own fault. [Id. at 211 (quotation marks, citations, and

emphasis omitted).]

The elements giving rise to a prescriptive easement are the same as those creating title by adverse

possession, except that it is unnecessary to demonstrate exclusive use. Id. at 202-203. “A

prescriptive easement results from open, notorious, adverse, and continuous use of another’s

property for a period of 15 years.” Matthews v Dep’t of Natural Resources, 288 Mich App 23, 37;

792 NW2d 40 (2010); see also MCL 600.5801(4). Clear and cogent evidence approaches the level

of proof beyond a reasonable doubt and is similar to the clear-and-convincing-evidence standard.

Astemborski v Manetta, 341 Mich App 190, 199; 988 NW2d 857 (2022). Thus, in a prescriptive

easement case, the evidence must clearly establish the fact of possession, and there must be little

doubt as to the proper resolution of the issue. Id. When there exists any reasonable dispute, in

light of the evidence, concerning the question of possession, the party has failed to meet his or her

burden of proof. Id.

Plaintiffs do not dispute that BWL’s possession of the power lines strung over their

property is actual, open, visible, and notorious. The dispute is instead focused on whether

plaintiffs’ possession of the power lines was continuous or uninterrupted for a 15-year prescriptive

period and whether it was adverse under claim of right, i.e., hostile as opposed to permissive.

“A continuous use [] does not necessarily mean a daily, constant, and unintermittent use;

but it means that the acts constituting the use shall be of such frequency as to give notice to the

owner of the land of the right claimed against him.” Dummer v United States Gypsum Co, 153

Mich 622, 631; 117 NW 317 (1908). “[I]t is sufficient if the use be the ordinary use, and be

resorted to without interruption whenever necessary in the operation of the power.” Id. at 635

(quotation marks and citation omitted). We note that plaintiffs in this case are not claiming that

there were interruptions in the use of the power lines during the time that the lines were in their

current V-shaped configuration such that the possession or use was not continuous. Rather,

plaintiffs argue that due to past changes in the configuration of the power lines, BWL cannot prove

that possession of the currently-positioned power lines (V-shape) existed continuously for a full

15-year period, as measured by an end date of April 25, 2022—the date the complaint was filed.

In Mulcahy v Verhines, 276 Mich App 693, 702; 742 NW2d 393 (2007), this Court,

discussing the “hostility” element of prescriptive easements, explained:

Plaintiffs argue that the trial court erred in concluding that they failed to

establish the element of adverse or “hostile” use necessary for a prescriptive

easement. We agree. The term “hostile,” as used in the law of adverse possession,

is a term of art and does not imply ill will. The claimant is not required to make

express declarations of adverse intent during the prescriptive period. Adverse or

hostile use is use that is inconsistent with the right of the owner, without permission

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asked or given, that would entitle the owner to a cause of action against the intruder

for trespassing. The use of another’s property qualifies as adverse if made under a

claim of right when no right exists. [Citations omitted; see also Astemborski, 341

Mich App at 199 (use of another person’s property constitutes “adverse” use when

made under a “claim of right” where no right exists; adverse or hostile use is use

inconsistent with the rights of the property’s owner).]

It is well established that permissive use, regardless of how long it lasts, will not result in a

prescriptive easement. Banach v Lawera, 330 Mich 436, 440-441; 47 NW2d 679 (1951). For

such as easement to arise, permissive use must end and an adverse use must continue for 15 years.

Id. at 441. On the issue of “permission,” our Supreme Court in Marlette Auto Wash, 501 Mich at

207-208, noted an important distinction bearing on the burden of production:

[T]he fact that property has been used in excess of the prescriptive period

for “many years” is not pertinent to whether the requirements of a prescriptive

easement have been met; nor is it germane to whether the proponent of the easement

is required to establish privity of estate with a predecessor in the proponent’s chain

of title under whose ownership a prescriptive easement had vested. Rather, when

the parties seek a judicial determination conclusively settling their respective

property interests, and the proponent of the alleged easement provides evidence that

the easement has been used in excess of the 15-year prescriptive period by “many

years,” the burden of production is then shifted to the opponent of the easement to

establish that the use was merely permissive.

BWL argues here that it is entitled to a presumption that its prescriptive easement arose by

written grant. In Marlette Auto Wash, 501 Mich at 203-204, our Supreme Court acknowledged

that the open, notorious, continuous, and adverse use of a way across another’s property for the

15-year period and many years thereafter affords a conclusive presumption of a written grant

regarding that easement. Moreover, the Marlette Auto Wash Court explained that when the

easement has been used for something like a half century, there is no obligation to show by positive

testimony that the use was claimed as a matter of right; rather, after such use the burden is on the

party opposing the easement to show that use of the way was only permissive. Id. at 204. The

Supreme Court agreed that the essence of the presumption is that any long-standing use of another

person’s property shifts the burden to the property owner to show that the use was permissive. Id.

at 208. The Court also agreed that the burden of persuasion regarding a prescriptive easement

remains with the easement claimant throughout trial; however, with many years of use, the burden

of producing evidence shifts to the easement opponent to establish that the claimant’s use was

permissive. Id.

In this case, there is no specific evidence of permission being granted to BWL and, further,

there is evidence that the power lines at issue were reconfigured or moved at least one time in the

past, which may also bear on the issue whether BWL can establish its claim of a prescriptive

easement.

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3. DISCUSSION OF THE DOCUMENTARY EVIDENCE AND RESOLUTION

Plaintiffs’ arguments can be broken down into three broad categories. First, plaintiffs

contend that changes in the configuration of the power lines necessarily restarted the clock for

purposes of the statutory 15-year period and that BWL could not show by clear and cogent

evidence that a full 15 years had elapsed by the date that plaintiffs’ complaint was filed on April

25, 2022, with respect to the current configuration of the power lines. Second, because BWL as

of 2021 was now demanding a 6-foot clearance around the power lines with no overhang, which

would be an expansion of the alleged easement that had been confined to the power lines

themselves, a 15-year period simply could not be established for an easement that included the

power lines and the 6-foot clearance because there had never previously been a 6-foot clearance

around the lines. Third, and finally, plaintiffs assert that BWL’s use of their property for stringing

and maintaining the power lines was by plaintiffs’ permission; therefore, BWL’s use was not

hostile or adverse under claim of right, thereby defeating the claim of a prescriptive easement.

a. THE CONFIGURATION OF THE POWER LINES

BWL takes the stance that the power lines that traverse plaintiffs’ property have been

located in their current configuration since at least 1979. In support, BWL relies on an affidavit

by Darin Thelen, a licensed surveyor and the Supervisor of Real Property Management for BWL,

photographs and a diagram attached to his affidavit, an affidavit by COO Bolan, and a GIS image.

In his affidavit, Thelen averred that he is “the custodian of records for real property

documents, including but not limited to surveys, deeds, easements, and licenses.” He further

asserted that “[a]ccording to BWL records, BWL has facilities on and near [plaintiffs’] Property

dat[ing] back at least to 1938.” Thelen also averred that BWL “has provided electric service

through and maintained its facilities since at least 1938.” He additionally claimed that the power

lines traversing plaintiffs’ property “have been generally [in] the same configuration as it is now

since at least 1979.” (Emphasis added.) The affidavit referenced an attached exhibit, which

consisted of 26 current photographs of plaintiffs’ property and one diagram of the property

marking the location of trees, with recommendations regarding the trimming or removal of the

trees, and showing part of the power line running from utility pole 1 to utility pole 2. We note that

the photos and diagram lend no support for the claim that the power lines have been in their current

configuration since 1979.

In an affidavit executed by BWL’s COO, David Bolan, he averred that he oversaw “the

engineering and operational responsibilities for the generation and delivery of BWL’s utilities,

including the Vegetation Management Program for BWL.” In paragraph 5 of his affidavit, Bolan

averred that “[a]s part of its service of electric power, Defendant installed facilities to provide

electric service when [plaintiffs’] home was built on the Property around 1919 and has maintained

electric power equipment on the Property in generally the same configuration as it is now since at

least 1979.” (Emphasis added.)

With respect to the GIS image relied on by BWL, neither the V-shaped power lines running

from utility pole 1 nor the utility pole itself are shown, the image has a label indicating a

distribution pole installation date of May 13, 2003, and there is utility pole 3 located on the

property at 707 Moores River Drive, with a power line running in a northwesterly path from that

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pole across plaintiffs’ yard to utility pole 2. It is the change from this power-line configuration to

the V-shaped power-line configuration (line running from utility pole 1 to utility pole 2 and service

drop running from utility pole 1 to residence at 707 Moores River Dr.) that needs to be examined

for purposes of determining whether the 15-year prescription period was satisfied and whether the

variation in the lines was even significant enough that it stopped the running of the 15-year

statutory period and had to be restarted.

At the continuation of a show cause hearing on whether to issue a TRO, Ashley Thiel, who

was employed by Wright Tree Service, testified that her job involved marking trees for routine

trimming maintenance and informing property owners of the projects. She was asked whether a

photograph of utility pole 1 looked older or newer, and Thiel responded, “It doesn’t look like it’s

in bad shape from this picture . . . [l]ike new . . . .”

In Bonnie’s deposition, she testified that the V-shaped power lines traversed the rear of

plaintiffs’ property. Bonnie further testified that the V-shaped power lines were in place when the

property was “purchased” by plaintiffs in 2007. The following colloquy then took place in her

deposition with respect to those V-shaped power lines:

Q. You don’t have any doubt that those were there in 2007?

A. Now you make me like did I leave the coffee pot on thing.

Q. I am not trying to trick you.

A. Okay.

Q. What I’m trying to establish is that when you bought the property the lines

were there, and it’s your good faith belief the lines were there for quite some

time before you bought the property, is that fair?

A. It’s my belief that I think they were there, but I was more concerned with

getting the floors redone. I wasn’t paying attention, to be honest.

Q. I get it. You don’t dispute, seriously dispute that those lines haven’t been

there for 20 or 30 or 40 years, do you?

A. I don’t know because I haven’t been there 20, 30, 40 years. I know that the

[BWL] maps are all different than what is configured in my backyard.

Q. I’m sorry. But they generally depict the same lines, right?

A. They are in very different locations.

Initially, we will assume that the change in the power lines to the V-shaped lines or pattern

started the pertinent 15-year period, as opposed to treating the change as being insubstantial such

that the period continued and did not stop when the lines were moved. Plaintiffs, absent record

citation, speak of purchasing the home in the spring of 2007 and moving into the home in the late

fall of 2007, and BWL indicates that plaintiffs bought the house in May 2007. BWL supplied the

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trial court with a special warranty deed regarding Michael’s purchase of the property, and the deed

is dated May 30, 2007. In a property report prepared by realtor Terry Chapman of Coldwell

Banker, there is a sales date of June 14, 2007, relative to the purchase of the house. Plaintiffs’

complaint was filed on April 25, 2022; therefore, the current configuration of the power lines—

the V-shape—had to have been in place no later than April 25, 2007, to satisfy the 15-year

prescriptive period. Bonnie’s testimony reflected that the V-shaped power lines traversed the

property when the home was purchased in 2007, and it does appear that the sale took place after

April 25, 2007. Accordingly, the question becomes whether there was evidence that the V-shaped

power lines were in existence before April 25, 2007. Remember that BWL has the burden of proof

on the issue and that, in the context of its motion for summary disposition under MCR

2.116(C)(10), BWL had to submit supporting documentary evidence, MCR 2.116(G)(3)(b).

Defense counsel’s attempt to have Bonnie testify and acknowledge that the V-shaped lines

had likely been there for quite some time before the purchase of the home did not succeed. And

even had she conceded that proposition, it still would have been speculative in nature unless there

was testimony that she was familiar with the property before April 25, 2007, and had observed the

V-shaped configuration; BWL does not cite any such testimony or evidence. Both Thelen and

Bolan testified that the current configuration was “generally” the same as in 1979; however, use

of the term “generally” suggests that there was an alteration but that the affiants deemed the change

insignificant. Without elaboration, it is difficult to know what exactly Thelen and Bolan meant

when they averred that the current configuration was “generally” the same. The 1979 sketch is

somewhat similar to the V-shaped depictions, but the differences are significant. And the GIS

image relied on by BWL has a 2003 date, yet the image plainly does not show the V-shaped power

lines.

Again, BWL has the burden to establish the 15-year period by clear and cogent evidence,

and it did not provide any evidence that definitively demonstrated that the V-shaped power lines

existed before April 25, 2007. It could be argued that BWL’s affidavits minimally sufficed for

purposes of a (C)(10) motion such that the affidavits had to be countered by documentary evidence

submitted by plaintiffs in order to create a genuine issue of material fact. See MCR 2.116(G)(4).

And while the evidence indicated that in 2003, as based on the 2003 GIS image, there did not exist

a V-shaped configuration, plaintiffs did not provide any documentary evidence that showed that

the V-shaped power lines remained nonexistent from 2003 up until April 25, 2007. We conclude,

however, that given the indefiniteness and vagueness of BWL’s evidence, its (C)(10) motion was

not made and supported as required by MCR 2.116(G)(3)(b) such that plaintiffs were mandated to

submit documentary evidence to the contrary under MCR 2.116(G)(4). In that case, BWL would

not be entitled to the order granting summary disposition in its favor.

Next, with respect to whether the change in the configuration of the power lines justifies

or does not justify stopping the clock on the running of the 15-year prescriptive period (making

the preceding analysis unnecessary if there is no justification), according to plaintiffs, it is the line

running from utility pole 1 to utility pole 2 that is causing most of their distress regarding the trees,

and not the area around the old line running from utility pole 3 to utility pole 2. When the two

paths are compared, they plainly do not occupy the same air space and are distinct, although they

do and did travel in a similar direction and end and did end at the same point. We conclude that

there exists a genuine issue of material fact regarding whether the deviation or distinction is

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sufficiently significant such that there was a lack of continuity and the clock on the 15-year period

had to be restarted when the V-shaped power lines were installed.

b. ALLEGED EXPANSION OF THE EASEMENT AND EFFECT ON THE 15-YEAR

PRESCRIPTIVE PERIOD

Plaintiffs contend that by requiring a 6-foot clearance on the side of secondary power lines

with no overhang, BWL has expanded the alleged prescriptive easement to include the lines

themselves plus the clearance footage. And because BWL first demanded compliance with the 6-

foot clearance in 2021, BWL cannot satisfy the 15-year prescriptive period for such an expanded

easement. At first glance, plaintiffs’ argument has some appeal. If the circumstances are viewed

as precluding plaintiffs from placing or growing anything within the 6-foot clearance, it would

seem that the easement would necessarily take a shape that matched that air space. But on closer

inspection, we conclude that this argument fails. It is also noted that this issue overlaps with the

issue concerning the scope of the easement, which is discussed in detail below.

Plaintiffs’ particular argument does not defeat an easement that solely encompasses the

power lines. And MCL 560.190(d), as indicated earlier, gives public utilities “the right to trim or

remove trees that interfere with their use of easements.” BWL’s position is that trees and tree

branches or vegetation within 6 feet of the side of a power line and any overhang effectively

interfere with its power-line easements. MCL 560.190(d) does not suggest that its purpose or

impact is to expand a utility company’s actual easement; rather, the plain language of the statute

indicates that the Legislature simply intended to provide protection for power-line easements. See

D’Andrea v AT&T Mich, 289 Mich App 70, 74; 795 NW2d 620 (2010) (“nothing in the statute

indicates that MCL 560.190 was intended to define the extent to which a public utility may use an

easement”).

We conclude that BWL does not have to establish that the power lines and a 6-foot

clearance around the power lines existed for a 15-year prescriptive period. Instead, if a prescriptive

easement was created because the power lines were in place for a 15-year period and the elements

of prescription were satisfied, MCL 560.190(d) and the common law discussed below would then

trigger the right for BWL to trim or remove trees that interfere with the easement, as long as the

actions fall within the scope of the easement.

c. ADVERSE AND HOSTILE USE AND THE ISSUE OF PERMISSION

In a November 7, 2021 letter from Michael Faraone to COO Bolan, Michael conveyed the

following thoughts:

As the owners of the home at said address, my wife and I have a long and

cooperative history with the LBWL and our neighbors regarding care of our lot of

several 100+ year old trees. Your records should verify that we have worked with

the LBWL when trimming was requested; one minor trim done by LBWL, and on

the other occasion – when a trim was requested – we hired our own service.

Moreover, including those instances, since January 2010, our trees have been

trimmed on our own accord so as to keep them off of powerlines and neighbor’s

homes, on average, once every 20 months. In 2013 my wife, Bonnie, spoke directly

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with Peter Lark about the matter. We have also paid for advice from a private

arborist.

By letter dated November 24, 2021, Michael informed Bolan that because Bolan had not

responded to requests to resolve the matter amicably, Bolan and his “agents have no consent to

enter or trespass onto th[e] property, or remove anything from it, including any part of any tree.”

In Bonnie’s deposition, she was adamant that she did not want BWL “to touch my trees.” Bonnie

confirmed the allegations in the complaint about Peter Lark’s promise in 2013 to let plaintiffs trim

and prune their trees on their own.

Without yet taking into consideration the issue of permissive use, there was evidence that

BWL’s possession of the power lines was hostile and adverse under claim of right. BWL’s use of

the air space wherein the power lines run was inconsistent with plaintiffs’ rights, ordinarily

entitling plaintiffs to a cause of action for trespass. See Mulcahy, 276 Mich App at 702. It simply

cannot be disputed that plaintiffs are prevented from utilizing the area where the power lines

traverse plaintiffs’ property and that BWL has treated those lines and the air space within which

they run as solely its own. Therefore, the question becomes whether there exists a genuine issue

of material fact on the question of adverse use when the arguments regarding permission are

examined.

BWL has the burden of persuasion to demonstrate that its use or possession of the property

was adverse and without permission; this burden never changes. But a preliminary issue is whether

plaintiffs had the burden of first producing evidence that BWL’s possession was by permission

given the many years of apparent prescriptive use of the power lines in excess of the 15-year

prescriptive period. We initially question whether the caselaw regarding the presumption and

shifting of the burden of production is implicated because, once again, we have the change in the

configuration of the power lines. The longstanding use pertained more to the previous

configuration of the lines, as reflected in the 1938 and 2003 GIS images and the 1979 sketch. The

caselaw relative to the conclusive presumption does not provide any specific guidance under our

circumstances. But the presumption requires prescriptive use, which in turn requires

continuousness or continuity; therefore, it is arguable that the presumption would not arise here.

Nevertheless, it must also be remembered that this case is in the procedural posture of summary

disposition under MCR 2.116(C)(10), and, as noted at the beginning of this discussion, there was

evidence that BWL’s possession was adverse and hostile. Accordingly, to create a genuine issue

of material fact on the element of adverse use versus permissive use, plaintiffs needed to submit

documentary evidence to show permission. In other words, whether it is through the common-law

presumption or the mechanics of a (C)(10) motion, plaintiffs were required to submit documentary

evidence showing permissive use.

Plaintiffs did not provide evidence of written or oral permission, but argue that there was

implied permission in light of the fact that the parties have a contractual relationship in connection

with the delivery of electrical power. Stated otherwise, because plaintiffs are paying BWL to

supply them with power, plaintiffs have necessarily given BWL permission to run power lines

across their property.

By contracting with BWL for power, there arguably exists a necessary implication that

BWL has plaintiffs’ permission to string its lines across their property in order to supply them with

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electricity. This implied permission would also have pertained to plaintiffs’ predecessors in

interest. Technically, plaintiffs could refuse electrical service from BWL, which theoretically

could occur if they employed a different source of power. On the other hand, we note that the

secondary power line supplies electricity for three other residences. Moreover, assuming implied

permission to run power lines over plaintiffs’ property in order to supply them or their predecessors

with electrical power, the implied permission did not necessarily relate to that secondary power

(i.e., the line for the three other residences). So, while BWL’s delivery of electricity to plaintiffs’

house may show permission for a service drop to their home from some line, it did not necessarily

mean that plaintiffs were implicitly permitting BWL to run the secondary power line from utility

pole 1 to utility pole 2.

With respect to the fact that plaintiffs took care of trimming their trees for many years in

light of and in reliance on Lark’s promise that they could do so, we cannot conclude that this

evidence necessarily demonstrated that BWL’s possession and use of the power lines was by

plaintiffs’ permission. BWL’s decision, via Lark, to allow plaintiffs to trim the trees did not mean

that plaintiffs now controlled the air space where the power lines ran such that BWL’s use or

possession of the lines thereafter was by plaintiffs’ grace and permission. Indeed, it somewhat

tends to undermine plaintiffs’ position, suggesting that, because they relied on Lark’s promise to

allow them to take care of the vegetation, plaintiffs did not have the freedom or control to do as

they pleased. Plaintiffs instead essentially recognized BWL’s claim of right and adverse control

of the area. Had BWL possessed and used the power lines by plaintiffs’ permission, plaintiffs

seemingly would not have had to rely on Lark’s promise or authorization for them to trim the trees.

Given the documentary evidence and competing arguments, we conclude that a genuine

issue of material fact exists regarding whether BWL established that its possession of the power

lines was adverse under claim of right, as opposed to being in possession by plaintiffs’ permission.

B. WHETHER THERE EXISTS A GENUINE ISSUE OF MATERIAL FACT REGARDING

THE SCOPE OF THE ALLEGED POWER-LINE PRESCRIPTIVE EASEMENT9

1. STANDARD OF REVIEW

We review de novo a trial court’s ruling on a motion for summary disposition. Champine,

509 Mich at 452. As noted earlier, the trial court resolved the issue regarding the scope of the

alleged prescriptive easement under MCR 2.116(C)(10). And the principles pertaining to (C)(10)

motions were discussed above.

9

We recognize that if the trier of fact at trial concludes that BWL does not have a prescriptive

easement, the issue concerning the scope of the alleged easement would be rendered moot. But

the trial court’s ruling regarding the scope of the alleged easement must be addressed by us

because, should the trier of fact find that a prescriptive easement exists, the question relative to the

scope of the easement would have to be addressed and, without a ruling by us on the matter, the

scope issue would have to be resolved in BWL’s favor consistent with the trial court’s summary

disposition ruling.

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2. THE LAW REGARDING THE SCOPE OF EASEMENTS

In Heydon v MediaOne, 275 Mich App 267, 270-271; 739 NW2d 373 (2007), this Court

addressed the principles regarding the scope of a prescriptive easement:

An easement by prescription results from the use of the property of another

that is open, notorious, adverse, and continuous for a period of 15 years. A

prescriptive easement is generally limited in scope by the manner in which it was

acquired and the previous enjoyment. One who holds a prescriptive easement is

allowed to do such acts as are necessary to make effective the enjoyment of the

easement unless the burden on the servient estate is unreasonably increased; the

scope of the privilege is determined largely by what is reasonable under the

circumstances. [Citations omitted.]

“The owner of an easement cannot materially increase the burden of the easement or impose a new

and additional burden on the servient estate.” Id. at 275; see also Delaney v Pond, 350 Mich 685,

687; 86 NW2d 816 (1957) (“A principle which underlies the use of all easements is that the owner

of an easement cannot . . . impose thereon a new and additional burden.”). The use exercised by

the holder of an easement must be reasonably necessary and convenient in relation to the proper

enjoyment of the easement, with as small a burden as possible to the owner of the fee. Blackhawk

Dev Corp v Village of Dexter, 473 Mich 33, 42; 700 NW2d 364 (2005).

Although it is more than 130 years old, we find instructive for our purposes the following

passage from Harvey v Crane, 85 Mich 316, 325; 48 NW 582 (1891):

Applying the rules laid down by these adjudications, it seems clear to me

that plaintiff is entitled to make use of this way [easement] for any and all purposes

for which a road may be used; that defendant is under no obligation either to

improve the bed of the way, or to protect its use; that plaintiff is entitled to do any

act which may be necessary to promote its beneficial use, to the extent of inclosing

the same; that the only limit to the servitude which she is entitled to impose upon

the fee is what may be deemed necessary and essential to her enjoyment of the

rights acquired; that the rights of defendant in this way are subject to plaintiff’s

necessities arising from the legitimate use of the road; that the necessity and

reasonableness of the means made use of to adapt the road to her use are questions

of fact, to be determined by the trial court; and that the findings of the trial court in

that regard are conclusive upon us. The court below finds that the plaintiff has been

accustomed daily to drive her cattle and horses through this private road, and that a

fence along the same is an incident necessary to the reasonable enjoyment thereof.

Relying on Harvey, this Court in Lakeside Assoc v Toski Sands, 131 Mich App 292, 300; 346

NW2d 92 (1983), stated that an easement holder has the right to take actions as are incident or

necessary to the beneficial use and enjoyment of the easement.

More recently, in Panhandle Eastern Pipe Line Co v Musselman, 257 Mich App 477, 481;

668 NW2d 418 (2003), this Court once again observed that an easement holder has all rights that

are incident or necessary to the reasonable and proper enjoyment of the easement. The Musselman

panel also stated “that, in Michigan, an owner of a pipeline easement is entitled to reasonable

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access to the land for maintenance and repair purposes.” Id. The Court noted that “[s]everal other

jurisdictions have . . . held that if a landowner plants trees or in some other way interferes with the

maintenance or surveillance of a pipeline, the pipeline owner may act to remove the interference.”

Id. at 484 n 1.

On remand to the trial court in Musselman, the trial court, following a bench trial, ruled

that the easement holder “plaintiff was entitled to a 53-foot wide clearing of its [pipeline] easement

on defendants’ property.” Panhandle Eastern Pipe Line Co v Musselman, unpublished per curiam

opinion of the Court of Appeals, issued October 9, 2007 (Docket No. 268910), p 1. This Court

affirmed, holding that the trial court did not clearly err because there was expert testimony

supporting the need for a 53-foot-wide path, although the defendants had provided expert

testimony that 10 to 30 feet would suffice. Id. at 2. The panel also ruled, consistent with the prior

published opinion, that “regardless of its source or age, any vegetation causing an improper

obstruction could be cleared pursuant to the right-of-way grant.” Id. at 3.

Once again, “public utilities . . . have the right to trim or remove trees that interfere with

their use of easements.” MCL 560.190(d). And, as stated earlier in regard to MCL 560.190,

“nothing in the statute indicates that MCL 560.190 was intended to define the extent to which a

public utility may use an easement.” D’Andrea, 289 Mich App at 74. In Motes v Pacificorp, 230

Ore App 701, 707; 217 P3d 1072 (2009), the Oregon appellate court observed:

Although Oregon appellate courts have had occasion to consider express

easements for utilities, we have not addressed prescriptive easements relating to

power lines. Jurisdictions that have considered them analyze such prescriptive

easements in much the same way as prescriptive easements generally, with some

unique characteristics attributable to the nature of the use. A prescriptive easement

to run power lines is understood to encompass the right to maintain the lines and

the vegetation under and around them. [Citations omitted.]

3. THE RELEVANT DOCUMENTARY EVIDENCE

Plaintiffs do not argue, assuming the existence of a prescriptive easement, that BWL is not

permitted to trim trees and remove vegetation that interfere with a power line. Rather, the dispute

on this issue concerns the nature and extent of the planned maintenance by BWL. Ultimately, the

question is whether there exists a genuine issue of material fact regarding whether implementing

BWL’s particular vegetation-management plan is reasonably necessary for the beneficial use and

enjoyment of any prescriptive easement while not materially and unreasonably increasing the

burden on the servient estate nor imposing a new or additional burden on that estate.

In his affidavit, COO Bolan laid out the general stance of BWL in favor of its vegetation-

management plan and explained why it should be applied to plaintiffs’ property, averring as

follows:

6. It is necessary for BWL to be able to maintain these facilities, including

performing vegetation management.

7. The primary cause of electric power outages and interferences are caused

by trees, generally by falling on electric power lines.

-21-

8. Trees that overhang or are near electric power distribution equipment pose

a significant and ongoing threat to the reliability of Defendant’s electric power

system and thus must be trimmed as part of ongoing maintenance of that

distribution system.

9. Trees that overhang or are near electric power distribution equipment pose

a significant and ongoing threat to public safety and thus must [be] trimmed or

removed as part of ongoing maintenance of that distribution system.

10. Vegetation, specifically including trees, is not stagnant and the risks it poses

to electric power systems are ongoing. Therefore, to provide safe and reliable

electric power, BWL has a Vegetation Management Program, including trimming

and removal of trees, to reduce risks from vegetation touching, near, or overhanging

BWL’s electric power equipment as part of its ongoing maintenance of its

equipment.

11. In December 2013, the Lansing area had a significant ice storm that resulted

in severe power outages.

12. As a result of the 2013 ice storm, BWL revamped its tree trimming and

vegetation management practices to include more stringent trimming standards and

implement a regular trimming cycle consistent with Michigan Public Service

Commission (“MPSC”) Response to BWL.

13. As a result of BWL’s improved vegetation management practices, BWL’s

reliability is significantly improved. BWL’s average customer outage time for tree

related incidents has improved from 161 minutes in 2014 to just over 13 minutes. .

...

14. It is my opinion that the trees marked on the Planner’s Plan attached as

Exhibit B hereto all pose an unnecessary risk to BWL’s equipment on the Property

and it is necessary to trim the tress as marked in the Planner’s Plans in order to

protect the BWL’s equipment on the Property. These trimmings are needed in order

for BWL to preserve the reliability of its electric power system and reduce the

probability of outages.

15. The vegetation that is presently overhanging the electric power equipment

on the Property must be trimmed because it also causes a potential threat to the

safety of the public and to BWL’s crews.

16. The electric power line on the Property is designed to meet the Heavy

Loading Requirements for overhead electric power lines according to the National

Electric Safety Code to withhold some ice but not the weight of overhanging

vegetation on the Property.

17. If the overhanging limbs, branches, or trees on the Property were to fall onto

or make contact with BWL’s electric power equipment, there is a high probability

of a significant outage to the Property and surrounding properties.

-22-

18. The only way to fully eliminate the risks to public safety and reliability of

BWL’s electric power system posed from the overhanging vegetation on the

Property is to remove the overhanging vegetation.

Lynn McKinstry, who is the manager of electric systems operation at BWL, testified in her

deposition that one of her responsibilities was overseeing the vegetation-management program.

McKinstry testified that BWL’s vegetation-management standards adopted on June 12, 2014,

require that limbs overhanging power lines be removed, that there exist a 2-foot clearance around

service drops, and that there be a 6-foot clearance on the sides of secondary lines, which carry

lower voltage than primary lines. According to McKinstry, the previous standards “did allow

overhang,” but everything else was the same. Under the current standards, no overhang of any

kind is permitted regardless of the size or length of the vegetation. McKinstry indicated that the

change in policy regarding overhang was the result of the ice storm that occurred on December 3,

2013.

Ashley Thiel, an employee of Wright Tree Service who marked trees in need of removal

or trimming, testified in her deposition that BWL allowed overhang back in 2010, that it later

changed its position and now prohibits any overhang, and that BWL requires a 6-foot clearance on

each side of a secondary power line. BWL documents executed in 2014 reflect that with respect

to trees with slow or fast growth rates situated in the vicinity of a power line, any and all overhang

must be removed regardless of the voltage of the line. As to fast-growth trees situated in the

vicinity of open secondary power lines with voltage measurements of 125 to 400, a 6-foot side

clearance is required. John Rademacher, a forester supervisor and certified arborist with BWL,

testified in his deposition that there is a zero to 2-foot clearance around service drops and that there

is a 6-foot clearance around secondary power lines.

With respect to Wright Tree Service’s recommendations under the vegetation-management

plan, it appears that it recommended the actual removal of 11 trees on plaintiffs’ property, noting

that removal was recommended due to either the extensive amount of trimming required, the

amount of overhang, poor health and existing damage, or being located directly under power lines.

Wright recommended that seven trees be trimmed. In an April 2022 email from BWL’s attorney,

Mark Matus, to Michael Faraone, Matus stated:

BWL will not both “trim and remove” trees unless you request removal.

Because extensive trimming can adversely affect the health of trees, removal of

some of the trees was recommended. However, if you would nonetheless prefer to

leave the trees in place, the BWL will simply perform the necessary extensive

trimming but the risk of later removal of trees that do not survive will not be borne

by the BWL.

The record includes a report by the Community Review Team (CRT) on BWL’s response

to the 2013 ice storm, which was overwhelmingly critical of BWL’s response and made

recommendations to avoid future failures. The CRT observed that “[a]djustments to the vegetation

management standards must be made, especially with respect to the removal of dead trees or trees

in poor condition.” The CRT report did not include a recommendation that specifically called for

a 6-foot setback with no overhang.

-23-

BWL presented an affidavit by B. Don Russell, who has various degrees, including a Ph.D.

“in electrical engineering, with a specialty in operations and reliability of electric power

distribution systems.” Russell averred that he had specific expertise “in the effects of vegetation

on electrical distribution systems,” that the most common cause of power outages are faults that

occur when tree limbs or trees fall on power lines, that downed power lines are a fire and safety

hazard, that “the majority of vegetation-related outages are caused by falling overhanging limbs,”

that “only an aggressive program to remove overhanging branches would eliminate the potential

danger and damage caused to electric conductors during storm events,” and that the “removal of

all overhanging branches and limbs represents the best practice for electric utility industry

vegetation management and is the single most significant that can be taken.” Russell further

averred that the MPSC’s “recommendation to BWL to remove all overhanging vegetation is

consistent with best practices for electric utility industry vegetation management” and that BWL’s

“Vegetation Standards directive to trim or remove vegetation overhanging BWL’s electric power

equipment is consistent with best practices for the electric utility industry.”

With respect to plaintiffs’ property, Russell stated, “it is my opinion that all limbs that

overhang BWL’s electric power line and equipment should be trimmed or removed so as to no

longer hang over the electric power line.” Russell concluded his affidavit with the following

averments:

22. BWL’s trimming and removal of trees on [plaintiffs’] Property consistent

with its Vegetation Management Standards is necessary for BWL to preserve the

reliability of its electric power distribution system, reduce the probability of

outages, and reduce the safety threat to the public and the BWL’s crews.

23. If the overhanging limbs, branches, or hazard trees on the Property were to

fall onto or make contact with BWL’s electric power equipment, there is a high

probability of a significant outage to the Property and surrounding properties.

24. Reduction pruning, the alternative method suggested by the Property

owners is an ineffective and impractical method for reducing the risk posed by tree

branches and limbs overhanging electric power lines and is not considered best

practice in the industry. Reduction pruning does not eliminate the risk of a

teardown of the electric power line, and it is impossible to determine the risk posed

to the electric power lines by the overhanging limbs with any degree of certainty.

25. Further, reduction pruning is impractical because of the need for continual

and more frequent trims, and the high expense, which would substantially affect

rates charged to BWL’s consumers.

26. The only way to significantly and cost-effectively reduce the risks to public

safety and reliability of BWL’s electric power distribution system posed by the

overhanging vegetation, branches, and hazard trees on the Property is to remove

the overhanging vegetation.

-24-

BWL presented a publication by the International Society of Arboriculture (ISA) titled Best

Management Practices: Utility Pruning of Trees. The author, Geoffrey Kempter, set forth the

purpose of utility-facility pruning:

Trees are among the most common causes of utility service interruption.

Utility pruning is undertaken to maintain an acceptable level of safety, prevent the

loss of critical services, and ensure the intended use of the facility. If not properly

maintained, vegetation may also damage infrastructure and impede access to utility

facilities by maintenance and repair personnel.

Utility pruning operations provide access and adequate service along

easements . . . across private and public property. In some areas, government

authorities have adopted performance standards such as mandatory minimum

clearances between energized conductors and surrounding vegetation. Utility tree

pruning programs must be designed to meet these requirements.

Utility pruning operations should remove only those branches necessary to

ensure the effective intended use of the utility space. Obtaining excessive clearance

is needlessly costly, may unnecessarily injure trees, and often leads to adverse

public relations. At the same time, inadequate clearance could result in service

interruptions, damaged infrastructure, or safety hazards.

Utility arboriculture specifications generally focus on the part of the tree

with the greatest potential to affect the utility or facility space. The remaining

portions of the tree are outside the scope of work, unless exceptions are specified.

These scope limitations may be due to easement limitations, liability, the large

number of individual properties involved, the need to concentrate limited resources

on achieving the specified pruning objective, or a combination of these and other

factors. Therefore, the scope of work is usually limited to specified areas, which

often include only portions of individual trees.

Plaintiffs note the following language in the ISA’s Foreword:

Specifications should be written with the understanding that trees are living,

dynamic organisms, each one unique. Practitioners in the field will encounter

situations that defy expectations. Furthermore, communities and members of the

public value trees for differing reasons. Practitioners of utility arboriculture must

be prepared to accommodate a variety of circumstances and adjust as necessary.

Plaintiffs also point to the author’s statement that “[r]emoval of overhanging limbs may or

may not be appropriate, depending on the type of facility, tree species, or other site conditions.”

According to Kempter, “[o]verhang is never acceptable over high-priority facilities such as high-

voltage electric transmission lines.” There is no claim that high-voltage electric transmission lines

traverse plaintiffs’ property. Nowhere in the publication did the ISA suggest any specific clearance

footage or measurement.

BWL notes a couple of excerpts from deposition testimony by Michael and Bonnie

Faraone. In his deposition, Michael testified, “I believe the Board of Water & Light does have

-25-

some authority to maintain the vegetation around their easements, yes. Never disputed that.” And

Bonnie acknowledged that trees, alive or dead, can pose a danger to power lines and threaten the

safety of those around downed lines.10

Plaintiffs rely heavily on a report prepared by their expert arborist, Victor Michael Foerster.

Foerster noted the configuration of the power lines, which was consistent with the V-shaped

configuration discussed earlier, acknowledging the secondary power line and the service drops and

indicating that no primary power lines traverse plaintiffs’ property. Foerster additionally observed

that the backyard slopes to the rear (far southerly) property line, that the soil is a heavy loam that

does not drain well, that neighboring trees overhang lines running over plaintiffs’ property, and

that soil erosion is a significant concern. He further indicated that “[i]f most of the overhead

branching and foliage is removed, their absence will allow downpours to fall unimpeded,” that

water collecting and pooling in the rear section of the yard will drown plants and “likely . . . create

a swampy environment that does not now exist,” and that plaintiffs’ property will “be severely

damaged” if BWL performs the work recommended by Wright. After a thorough investigation of

all the relevant documentation and photographs, along with an inspection of the property, Foerster

made the following mitigation recommendations:

It is my professional opinion that the proposed line clearance can be

successfully modified to meet both needs – the Faraones and the Board of Water

and Light. My tree removal and pruning recommendations are enclosed. The

current tree work specs from the Board of Water and Light require that no tree limbs

are allowed to overhang secondary 1-phase or 3-phase utility lines. Their allowable

minimum side clearance is six feet. The underside clearance is three-to-four feet.

According to the BWL’s tree work specifications, service lines only require a 2-

foot clearance in all directions. It has been my experience that other communities

line clearance standards are less severe. The City of Grand Rapids clearance

10

The parties devote some time discussing a 2016 case in the Ingham Circuit Court involving a

suit brought by BWL against Richard and Constance Crittenden regarding a couple of trees on the

Crittendens’ property that BWL wished to trim in relation to overhang; however, the Crittendens

did not allow BWL to proceed even though BWL had an express easement. On a motion for

summary disposition, the circuit court allowed the Crittendens to trim the trees, and if BWL found

the trimming job acceptable, the case would become moot, but if BWL found the work

unacceptable, the motion for summary disposition could be renewed. The circuit court later

modified its ruling, allowing the Crittendens to instead submit a proposal on the cost and work to

be performed before actually having the job completed, and if BWL rejected the proposal,

summary disposition could be revisited, which is what occurred. After visiting the site and

reviewing all of the documentary evidence regarding the parties’ dispute on the extent to which

the tree limbs had to be trimmed, the circuit court weighed the competing interests. The circuit

court decided to allow the Crittendens to trim the trees in accordance with their arborist’s

recommendation, which, according to the court, would suffice to alleviate BWL’s concerns about

the trees.

-26-

standards are enclosed as an example. (Exhibit C)[11] It is not unusual to allow tree

branches to overhang secondary and service utility lines (not primaries) so long as

they don’t directly interfere with service to their customers or pose an imminent

risk to do so. (Photos enclosed) My tree removal and tree pruning

recommendations meet the less severe standards suggested above. Line clearance

11

The standards employed by Grand Rapids provided:

Following pruning, desired air separation between trees and utility facilities

will vary depending on whether lines are low-voltage (LV, 3 kV – 14.4kV), or high-

voltage (HV, 14.4 kV – 24kV), and according to the expected growth rate of trees,

as shown below:

Secondary triplex (all trees) 2.5 ft around the contact point

Secondary open wire (all trees) 3 ft

LV slow growing trees 10 ft

LV fast growing trees 15 ft

High voltage (all trees) >15 ft, more as necessary

Subtransmission (>24kV) >15 ft, more as necessary

Optimum clearance varies based on individual tree and site characteristics.

Therefore, clearance distance between utility facilities and individual trees should

be adjusted from the chart above as necessary based on one or more of the

following:

• Tree species

• Typical form

• Expected growth rate

• Defects present

• Risk posed

• Position of tree with respect to the facility

• Other tree and site factors as appropriate.

-27-

work performed to these recommendations will protect the utility lines crossing the

Faraone property and mitigate unnecessary tree losses.

4. DISCUSSION AND RESOLUTION

For a variety of reasons, we conclude that the trial court erred by ruling as a matter of law

that BWL did not exceed the scope of its alleged prescriptive easement. One of the first issues

that needs to be addressed is the role of MCL 560.190(d) in the analysis. The statutory provision

does not create an easement, but it does give public utilities like BWL the authority to trim or

remove trees that interfere with the use of their “easements.” MCL 560.190(d). Accordingly, and

generally assuming that MCL 560.190(d) is applicable, BWL has the authority to trim and remove

trees that interfere with its power-line prescriptive easement. The language of MCL 560.190(d)

does not define the scope of an easement; it merely prohibits any interference with the easement,

however defined in scope under the law of easements. As held by this Court in D’Andrea, 289

Mich App at 74, “nothing in the statute indicates that MCL 560.190 was intended to define the

extent to which a public utility may use an easement.” Moreover, MCL 560.190(d) does not

provide any definition or parameters with respect to what constitutes vegetation “interfere[nce]”

with an easement. Under the common law, an easement holder can perform acts that are

reasonably necessary for the effective enjoyment of the easement, Heydon, 275 Mich App at 270-

271, and trimming and removing trees that “interfere” with a power-line easement would be

actions necessarily falling under the common-law umbrella of acts that an easement holder is

permitted to perform. Therefore, the remainder of our discussion on the scope of a presumed

prescriptive easement will be in the context of the common law, with the understanding that

BWL’s rights under MCL 560.190(d) are encompassed by the common law.

One of the flaws with the trial court’s ruling is that it entirely ignored the question whether

BWL’s vegetation-management plan materially increased the burden on plaintiffs’ estate or, more

importantly, whether the plan imposed a “new” or “additional” burden on the servient estate. See

Delaney, 350 Mich at 687; Heydon, 275 Mich App at 270-271. The record indisputably established

that the no-overhang component of the vegetation-management program did not come into

existence until 2014, which was seven years after plaintiffs moved into the home, and it was also

during the running of the 15-year prescriptive period, or after that period had elapsed if it

commenced in 1979 as argued by BWL. Evidence that the no-overhang requirement first arose in

2014 can reasonably be characterized as evidence demonstrating the imposition of a new or

additional burden on the servient estate, in that plaintiffs could no longer have trees on their

property that had any branches hovering over any power line. Originally, there was no prohibition

of vegetation in the air space over the power lines, and the trial court should have taken this

undisputed fact into consideration.12

12

In our view, the question whether a new or additional burden is imposed on a servient estate in

the context of a power-line easement is somewhat dependent on the nature of the current use of

property. For example, if a property owner did not have any trees in his or her yard, or if there

were trees but none were near traversing power lines, it could not genuinely be argued that a new

or additional burden was created by a no-overhang requirement. In the instant case, however,

-28-

Furthermore, the record overwhelmingly showed that overhanging branches or vegetation

can pose a threat to power lines and that, generally speaking, it is reasonably necessary for the

effective enjoyment of BWL’s prescriptive easement to demand that overhang be removed. But,

contrary to BWL’s inflexible no-overhang policy, there was also evidence that there are some

situations in which it is not reasonably necessary to prohibit overhang, e.g., small, light branches

that would cause no harm to a power line were they to fall on the line. Aside from taking into

consideration the growth rate of a tree, BWL’s vegetation-management plan does not

accommodate a wide variety of tree characteristics, such as those employed by the city of Grand

Rapids (tree species, typical form, defects present, risk posed, position of tree, and other tree and

site factors). A reasonable trier of fact could reach the conclusion that an inflexible no-overhang

policy is not reasonably necessary for the proper enjoyment of BWL’s prescriptive easement.

Another aspect of plaintiffs’ argument is that the implementation of BWL’s vegetation-

management plan would likely turn plaintiffs’ backyard into a swampy environment and severely

damage the property. BWL did not present any documentary evidence countering this assertion

by Foerster. On the basis of Foerster’s opinion, a reasonable trier of fact could conclude that

BWL’s vegetation-management plan would materially and unreasonably increase the burden of

the easement on the servient estate or impose a new or additional burden on the estate. The trial

court made no mention of Foerster’s contention that there would be dire environmental

consequences should BWL be allowed to carry out the planned trimming and removal of trees.

Even if the trier of fact found that implementation of the vegetation-management plan for

plaintiffs’ property is reasonably necessary for the enjoyment of the easement, the trier of fact

could still rule against BWL on a determination that the damage to plaintiffs’ property would be

so severe or immense as to outweigh the benefit to BWL.

There can be no dispute that it is reasonably necessary for the effective enjoyment of

BWL’s prescriptive easement that BWL be allowed to require the trimming and possible removal

of trees in order to prevent power disruptions and to safely and securely transmit electricity to

homes. But this does not mean that the nature and extent of any tree trimming or removal are

solely within the purview of BWL. When, as here, a homeowner has submitted evidence

demonstrating that BWL’s particular vegetation-management plan intended to be enforced is not

reasonably necessary for the beneficial use and enjoyment of an easement or would materially and

unreasonably increase the burden on the servient estate, a trier of fact must resolve whether BWL’s

plan can be implemented in whole or in part.

We hold that Foerster’s report created a genuine issue of material fact regarding the scope

of any prescriptive easement, calling into question whether the vegetation-management plan and

Wright’s tree-trimming and removal recommendations were reasonably necessary for the effective

enjoyment of the easement or whether they unreasonably burdened plaintiffs’ property. The trial

court disregarded Foerster’s report on the basis that it did “not offer an opinion regarding potential

threats to public safety, work crew safety, or the ability of Defendant to safely and reliably deliver

given the numerous trees in and around the V-shaped power lines, a reasonable person could

conclude that a new or additional burden was created by the no-overhang program implemented

in 2014.

-29-

its services.” This is not an accurate characterization of Foerster’s report. As reflected in an

extensive quotation of Foerster’s thoughts on the various trees located in plaintiffs’ backyard,

which was contained in his report, Foerster weighed the hazards and risks that the trees posed to

the power lines.

The trial court also criticized plaintiffs for failing to provide any evidence that BWL’s

policies and standards were not in line with industry standards. First, it must be mentioned that

BWL never presented evidence that its 6-foot side clearance in connection with secondary power

lines is an industry standard. BWL had the burden of presenting documentary evidence in support

of its (C)(10) motion. See MCR 2.116(G)(4). Indeed, the documentary evidence submitted by

BWL essentially established but a single point, i.e., that, for purposes of safety and the secure

transmission of electricity, it is reasonably necessary for BWL to trim and remove vegetation from

power lines in order to enjoy its prescriptive easement. This evidence, except portions of which

plaintiffs point out, did not consider the nuances and numerous, individualized variables that a

reasonable trier of fact might find should be examined when assessing whether BWL’s vegetation-

management plan exceeds the scope of its easement specifically in relation to plaintiffs’ property.

BWL’s one size fits all approach, when challenged with pertinent evidence to the contrary, must

be put to the test at trial.

In sum, with respect to the scope of the easement, we hold that there exists a genuine issue

of material fact regarding whether implementing BWL’s particular vegetation-management plan

is reasonably necessary for the beneficial use and enjoyment of the assumed prescriptive easement

while not materially and unreasonably increasing the burden on the servient estate nor imposing a

new or additional burden on the servient estate.

C. THE TAKINGS CLAIM

1. STANDARD OF REVIEW AND (C)(8) PRINCIPLES

The trial court summarily dismissed the takings claim under MCR 2.116(C)(8). We review

de novo a trial court’s ruling on a motion for summary disposition. Champine, 509 Mich at 452.

In The Gym 24/7 Fitness, LLC v Michigan, 341 Mich App 238, 252-253; 989 NW2d 844 (2022),

this Court articulated the principles that govern review of a motion for summary disposition

brought under MCR 2.116(C)(8):

The issues raised on appeal also implicate MCR 2.116(C)(8), which

provides for summary disposition when a “party has failed to state a claim on which

relief can be granted.” MCR 2.116(C)(8) tests the legal sufficiency of a complaint.

Beaudrie v Henderson, 465 Mich 124, 129; 631 NW2d 308 (2001). In rendering

its decision under MCR 2.116(C)(8), a trial court may only consider the pleadings.

Id. The trial court must accept as true all of the factual allegations in the complaint.

Dolan v Continental Airlines/Continental Express, 454 Mich 373, 380-381; 563

NW2d 23 (1997). “The motion should be granted if no factual development could

possibly justify recovery.” Beaudrie, 465 Mich at 130.

-30-

2. TAKINGS PRINCIPLES

Under the United States Constitution, private property shall not be taken “for public use,

without just compensation.” US Const, Am V. “The Takings Clause of the Fifth Amendment [is]

applicable to the States through the Fourteenth Amendment[.]” Cedar Point Nursery v Hassid,

594 US 139, 147; 141 S Ct 2063; 210 L Ed 2d 369 (2021). And under the Michigan Constitution,

“[p]rivate property shall not be taken for public use without just compensation therefore being first

made or secured in a manner prescribed by law.” Const 1963, art 10, § 2. “While we draw on

authority discussing and interpreting both clauses, we must keep in mind that Michigan’s Takings

Clause has been interpreted to afford property owners greater protection than its federal

counterpart when it comes to the state’s ability to take private property for a public use under the

power of eminent domain.” Rafaeli, LLC v Oakland Co, 505 Mich 429, 454; 952 NW2d 434

(2020).

With respect to the analysis regarding an alleged taking under the Fifth Amendment, the

United States Supreme Court in Cedar Point Nursery, 594 US at 147-148, provided the following

analytical framework:

When the government physically acquires private property for a public use,

the Takings Clause imposes a clear and categorical obligation to provide the owner

with just compensation. The Court’s physical takings jurisprudence is as old as the

Republic. The government commits a physical taking when it uses its power of

eminent domain to formally condemn property. The same is true when the

government physically takes possession of property without acquiring title to it.

And the government likewise effects a physical taking when it occupies property—

say, by recurring flooding as a result of building a dam. These sorts of physical

appropriations constitute the clearest sort of taking, and we assess them using a

simple, per se rule: The government must pay for what it takes.

When the government, rather than appropriating private property for itself

or a third party, instead imposes regulations that restrict an owner’s ability to use

his own property, a different standard applies. Our jurisprudence governing such

use restrictions has developed more recently. Before the 20th century, the Takings

Clause was understood to be limited to physical appropriations of property. In

Pennsylvania Coal Co v Mahon, 260 US 393; 43 S Ct 158; 67 L Ed 322 (1922),

however, the Court established the proposition that while property may be regulated

to a certain extent, if regulation goes too far it will be recognized as a taking. This

framework now applies to use restrictions as varied as zoning ordinances, orders

barring the mining of gold, and regulations prohibiting the sale of eagle feathers.

To determine whether a use restriction effects a taking, this Court has generally

applied the flexible test developed in Penn Central [Transp Co v New York City,

438 US 104; 98 S Ct 2646; 57 L Ed 2d 631 (1978)], balancing factors such as the

economic impact of the regulation, its interference with reasonable investment-

backed expectations, and the character of the government action. [Quotation marks

and citations omitted.]

-31-

And in The Gym 24/7 Fitness, 341 Mich App at 261-263, this Court touched on inverse

condemnation, partial takings, and then summarized takings jurisprudence under Michigan law:

Inverse condemnation is a de facto taking in which the government

effectively takes property absent formal condemnation proceedings. Merkur Steel

Supply, Inc v Detroit, 261 Mich App 116, 125; 680 NW2d 485 (2004). An inverse

condemnation claim may be based upon the government’s ‘regulatory taking’ of

private property.” Dorman v Clinton Twp, 269 Mich App 638, 646; 714 NW2d

350 (2006). Inverse condemnation concerns the taking of private property, and

pursuant to the Taking Clauses, “a victim of such a taking is entitled to just

compensation for the value of the property taken.” Hart v Detroit, 416 Mich 488,

494; 331 NW2d 438 (1982).

Finally, . . . a temporary taking can be compensable under the Taking

Clauses. First English Evangelical Lutheran Church of Glendale v Los Angeles

Co, 482 US 304, 321; 107 S Ct 2378; 96 L Ed 2d 250 (1987); Cummins v Robinson

Twp, 283 Mich App 677, 704; 770 NW2d 421 (2009). To summarize, there are

physical takings and regulatory takings. A physical taking of private property is a

categorial taking that requires the payment of just compensation. A regulatory

taking involving the deprivation of all economically productive or beneficial use of

property is also a categorical taking, requiring the payment of just compensation.

The second type of regulatory taking—a noncategorical taking—is one that is

determined upon application of the Penn Central balancing test. Additionally,

inverse condemnation arises when the government takes property, either by

physical invasion or regulation, absent formal condemnation proceedings. Finally,

a taking can be either temporary or permanent. [Footnote omitted.]

3. DISCUSSION AND RESOLUTION

The trial court ruled that plaintiffs failed to present authority for the proposition that a

subjective fear of tree removal or the sounds of chainsaws in a neighborhood amount to a

governmental taking and that the takings claim was rendered moot by the court’s determination

that a prescriptive easement existed. Plaintiffs do not dispute and effectively concede that if BWL

has an easement and if the scope of the easement allows BWL to implement its vegetation-

management plan, their takings claim fails. Therein lies the flaw in plaintiffs’ position, because if

there is no prescriptive easement, BWL will not be able to execute its specific vegetation-

management plan, and thus there would be no loss or taking. And if there is a prescriptive

easement, but the vegetation-management plan exceeds the scope of the easement, BWL would

still lack the authority to implement the plan, and again there would be no loss or taking. Stated

otherwise, there is simply no viable takings claim in this case in its current posture. Only if BWL

were to actually act outside of an easement, as defined by a court, could plaintiffs then potentially

pursue a takings claim.

Moreover, the “doctrine of ripeness precludes the adjudication of contingent or

hypothetical claims before an actual injury has been sustained; a matter is not ripe for judicial

consideration if it rests on contingent future events that may not occur as anticipated or may not

occur at all.” Green v Ziegelman, 282 Mich App 292, 305; 767 NW2d 660 (2009). Because BWL

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never cut a single branch, and because if it does so in the future, it will be operating on the basis

of its easement rights as defined by a court (unless it chooses to act unlawfully), there is no ripe

takings claim.

Additionally, in their complaint, plaintiffs never alleged that the value of the property

would decrease should the vegetation-management plan be implemented or that the removal of

trees would constitute a physical taking. Instead, as accurately stated by the trial court, the sound

of chainsaws and the fear of threatened conduct by BWL served as the only bases for plaintiffs’

takings claim, as alleged in the complaint. Plaintiffs no longer rely on these grounds in support of

their takings claim. Only at summary disposition and now on appeal have plaintiffs expanded their

takings theory, focusing on the prospective loss in property value and lost trees, but these

arguments fail for the reasons indicated above. And the primary argument being posed by

plaintiffs is that if BWL is allowed to act outside the scope of any assumed historical prescriptive

easement, which the trial court is allegedly allowing to occur, it will result in a governmental

taking. But this is simply a rehash of plaintiffs’ argument regarding the scope of any easement

and speculatively assumes that BWL would act outside the scope of an easement defined at the

conclusion of this litigation, thereby creating a ripeness failure. Such a takings claim is not yet

ripe.

D. TRESPASS-NUISANCE CLAIM

1. STANDARD OF REVIEW

The trial court summarily dismissed the trespass-nuisance claim under MCR 2.116(C)(8)

and (10). We review de novo a trial court’s ruling on a motion for summary disposition.

Champine, 509 Mich at 452. We earlier set forth the principles applicable to motions for summary

disposition brought under MCR 2.116(C)(8) and (10).

2. LEGAL PRINCIPLES – TRESPASS-NUISANCE, GOVERNMENTAL IMMUNITY, AND

EQUITABLE RELIEF

“Trespass-nuisance is defined as trespass or interference with the use or enjoyment of land

caused by a physical intrusion that is set in motion by the government or its agents and resulting

in personal or property damage. To establish trespass-nuisance the plaintiff must show condition

(nuisance or trespass), cause (physical intrusion), and causation or control (by government).”

Continental Paper & Supply Co, Inc v Detroit, 451 Mich 162, 164; 545 NW2d 657 (1996)

(quotation marks and citation omitted), overruled in part on other grounds by Pohutski v City of

Allen Park, 465 Mich 675; 641 NW2d 219 (2002). In Pohutski, 465 Mich at 678-679, our Supreme

Court held:

In these consolidated cases, this Court once again faces whether the plain

language of § 7 of the governmental tort liability act, MCL 691.1407, permits a

trespass-nuisance exception to governmental immunity. Because the Legislature’s

definition of the word “state” is clear and unambiguous, we hold that it does not. In

so holding, we overrule Hadfield v Oakland Co Drain Comm’r, 430 Mich 139; 422

NW2d 205 (1988), and other cases to the contrary. However, because we are

mindful of the effect our holding will have on the administration of justice, we

conclude that limiting our holding to prospective application is appropriate.

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Governmental immunity, while shielding a governmental agency from tort liability when

monetary damages are sought, does not protect an agency when declaratory relief is sought or

when there is a request for equitable relief, such as an abatement or an injunction. See In re Bradley

Estate, 494 Mich 367, 389 n 54; 835 NW2d 545 (2013). Citing In re Bradley Estate in support,

the Michigan Supreme Court in Genesee Co Drain Comm’r v Genesee Co, 504 Mich 410, 417;

934 NW2d 805 (2019), held that there are “at least two categories of claims . . . not barred by

[governmental immunity]: those seeking compensatory damages for breach of contract and claims

seeking a remedy other than compensatory damages.”

3. DISCUSSION AND RESOLUTION

The trial court summarily dismissed the trespass-nuisance claim on the basis that plaintiffs

failed to present documentary evidence as necessary to create a genuine issue of material fact

regarding whether the service drop constituted a hazard, i.e., whether the clearance between the

garage and the power line hovering over it met legal requirements. Initially, it is clear under the

caselaw that plaintiffs cannot obtain money damages because trespass-nuisance is no longer an

exception to governmental immunity, thereby shielding BWL from tort liability relative to

damages. Nevertheless, plaintiffs could obtain equitable relief to abate the alleged trespass-

nuisance, but an initial question raised by BWL is whether in their prayer for relief plaintiffs

requested equitable relief or just money damages. We conclude that plaintiffs did indeed request

an order enjoining BWL from continuing the trespass-nuisance. The next question is whether a

genuine issue of material fact exists concerning whether there is a hazardous service drop subject

to abatement.

BWL argues that plaintiffs had alleged in their complaint that the hazardous service drop

existed over plaintiffs’ garage, but thereafter changed their position and indicated that the pertinent

service drop ran over a neighbor’s garage; however, plaintiffs lacked standing to complain about

a hazard to a neighbor’s garage. Assuming that the purported service-drop hazard is located over

the neighbor’s garage, said garage and plaintiffs’ garage are side by side with little space between

the two. So even if the alleged hazard exists over the neighbor’s garage, any resulting fire would

plainly endanger both garages, giving plaintiffs standing to seek an abatement of the hazard. See

Lansing Sch Ed Ass'n, MEA/NEA v Lansing Bd of Ed, 487 Mich 349, 372; 792 NW2d 686 (2010)

(a litigant has standing if he or she has a special injury or right or has a substantial interest that will

be detrimentally affected in a manner different from the citizenry at large).

In a letter written by BWL supervisor Justin Wilson, he stated:

This letter is to inform you that there was a request for an overhead utility

line clearance investigation regarding a[n] electric utility service drop over a garage

at 717 Moores River Drive, Lansing. National Electric Safety Code (NESC)

requires a minimum clearance over structures not readily accessible to pedestrians

to be 3 feet. After investigating the utility service conductors for the customer at

717 Moores River Drive, it was determined that the line clearance exceeded the

minimum required clearances. The lines were found to be 8 and ½ feet above the

garage. . . .

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On the second page of Wilson’s correspondence, he included a photograph, which he described as

follows:

The following picture taken by a field crew member shows the height of the

service drop from the garage on 717 Moores River Dr. While the angle may be

deceiving, the top of the pole and service drop are close to the same height. The

arrows indicate the per foot markers on the measuring pole; there are 8 arrows

indicating 8 feet of clearance.

Michigan has recently adopted the NESC as the Michigan Electrical Code (MEC). See

Mich Admin Code, R 408.30801. And MEC 230.24(A) provides, in part, for a 3-foot clearance

“where voltage between conductors does not exceed 300 and the roof has a slope of 100mm.”

Although this specific provision was not cited in Wilson’s letter, it clearly appears to be the basis

for his reference to a 3-foot clearance. Plaintiffs cite to NESC 230.24(A), which provides, in part,

for an 8-foot clearance, but plaintiffs then proceed on the assumption of a 3-foot clearance and do

not argue that the 8-foot clearance must be applied. Plaintiffs rely on a photograph, which they

claim depicts a clearance of less than 3 feet (34 ½ inches), and this photo appears to be of an area

over the neighbor’s garage and beyond the frame of the photograph that Wilson and BWL rely

upon. Plaintiffs contend that BWL’s photograph was purposefully cropped to hide the service-

drop hazard.

On our review, plaintiffs’ complaint did allege that the service-drop hazard is located over

plaintiffs’ garage; therefore, BWL focused on plaintiffs’ garage for purposes of its motion for

summary disposition. Plaintiffs did not request and have not requested an opportunity to amend

their complaint, and in their appellate reply brief, they do not address BWL’s assertions that

plaintiffs had changed their stance by claiming a hazard over the neighbor’s garage and that

plaintiffs lacked standing to complain about a hazard on the neighbor’s property. That said, the

photograph submitted below by plaintiffs in response to the motion for summary disposition does

appear to show that the hazard was over the neighbor’s garage, and the photo had been obtained

from BWL during discovery. Moreover, the standing argument lacks merit, and plaintiffs’

photograph seems to reveal a clearance violation under the MEC. Certainly, if there truly is a

danger of an electric arc and fire, it should be abated. Therefore, we remand this issue for further

examination. We direct plaintiffs to supplement their initial disclosures by clarifying the exact

location of the alleged hazardous service drop so that the trial court can take into consideration the

photograph that plaintiffs rely on and their related arguments.

E. THE FOURTH AMENDMENT CLAIM

1. STANDARD OF REVIEW

The trial court effectively dismissed the Fourth Amendment claim on the basis of

MCR 2.116(C)(10). We review de novo a trial court’s ruling on a motion for summary disposition.

Champine, 509 Mich at 452.

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2. THE LAW REGARDING CONSTITUTIONAL TORT DAMAGES AND THE FOURTH

AMENDMENT

“The right of the people to be secure in their persons, houses, papers, and effects, against

unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon

probable cause, supported by Oath or affirmation, and particularly describing the place to be

searched, and the persons or things to be seized.” US Const, Am IV. Const 1963, art 1, § 11,

provides, in part, that “[t]he person, houses, papers, possessions, electronic data, and electronic

communications of every person shall be secure from unreasonable searches and seizures.” “The

touchstone of the Fourth Amendment is reasonableness.” People v Hammerlund, 504 Mich 442,

451; 939 NW2d 129 (2019). Plaintiffs’ cause of action and their appellate argument is premised

solely on the Fourth Amendment; therefore, the analysis must be restricted to examining a claim

for money damages for a federal constitutional tort. “A plaintiff may sue a municipality in federal

or state court under 42 USC 1983 to redress a violation of a federal constitutional right.” Jones v

Powell, 462 Mich 329, 337; 612 NW2d 423 (2000), overruled in part on other grounds by

Bauserman v Unemployment Ins Agency, 509 Mich 673, 705-709; 983 NW2d 855 (2022).

Plaintiffs, however, did not allege a § 1983 claim, nor is that federal statutory provision cited by

plaintiffs in their brief on appeal.

Plaintiffs claim a Fourth Amendment violation, and they cite Bauserman for the

proposition that money damages are available for a constitutional violation. In Bauserman, our

Supreme Court stated and held:

In this case, we are presented with the question of whether plaintiffs have

alleged a cognizable state constitutional-tort claim allowing them to recover a

judicially inferred damages remedy. Plaintiffs allege that defendant, Michigan’s

Unemployment Insurance Agency (the Agency), adjudicated allegations of fraud,

seized plaintiffs’ tax returns, and imposed penalties on plaintiffs without providing

meaningful notice or an opportunity to be heard in violation of Michigan’s

constitutional right to due process, Const 1963, art 1, § 17. Among other remedies

for this constitutional violation, plaintiffs seek monetary damages. Although we

have never specifically held that monetary damages are available to remedy

constitutional torts, we now hold that they are. Inherent in the judiciary’s power is

the ability to recognize remedies, including monetary damages, to compensate

those aggrieved by the state, whether pursuant to an official policy or not, for

violating the Michigan Constitution unless the Constitution has specifically

delegated enforcement of the constitutional right at issue to the Legislature or the

Legislature has enacted an adequate remedy for the constitutional violation.

Because enforcement of Const 1963, art 1, § 17 has not been delegated to the

Legislature and because no other adequate remedy exists to redress the alleged

violations of plaintiffs’ rights, we agree that plaintiffs have alleged a cognizable

constitutional-tort claim for which they may recover money damages and we agree

with the lower courts that defendant was properly denied summary disposition.

[Bauserman, 509 Mich at 681.]

Bauserman involved a state constitutional-tort claim, not a federal constitutional-tort claim.

Moreover, Bauserman concerned a state-entity defendant, not a municipality. Nevertheless, we

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shall examine some Fourth Amendment principles. In Sponick v Detroit Police Dep’t, 49 Mich

App 162, 198-199; 211 NW2d 674 (1973), a police officer who was the subject of a disciplinary

proceeding challenged the introduction of a videotape of him in a bar, and this Court ruled:

The Anchor Bar is a public tavern. Therefore, people in the bar must expect

to be observed by those members of the public who patronize the bar. A video tape

machine, insofar as it photographs only, is merely making a permanent record of

what any member of the general public would see if he entered the tavern as a

patron. Accordingly, to photograph Sergeant Rickard’s presence in the bar did not

violate his reasonable expectations of privacy. The Fourth Amendment protects

only reasonable expectations of privacy. [Quotation marks and citations omitted.]

“[T]he Fourth Amendment protects people, not places. What a person knowingly exposes to the

public, even in his own home or office, is not a subject of Fourth Amendment protection.” Katz v

United States, 389 US 347, 351; 88 S Ct 507; 19 L Ed 2d 576 (1967); see also People v Barbee,

325 Mich App 1, 11; 923 NW2d 601 (2018) (“we conclude that defendant did not have a

reasonable or legitimate expectation of privacy in the vehicle that was parked on a public street”).

“We . . . regard the area immediately surrounding and associated with the home—what our cases

call the curtilage—as part of the home itself for Fourth Amendment purposes.” Florida v Jardines,

569 US 1, 6; 133 S Ct 1409; 185 L Ed 2d 495 (2013). The basic purpose of the Fourth Amendment

is to safeguard the privacy and security of persons against arbitrary invasions by governmental

officials. Carpenter v United States, 585 US 296, 303; 138 S Ct 2206; 201 L Ed 2d 507 (2018).

Finally, plaintiffs cite Long Lake Twp v Maxon, ___ Mich ___, ___; ___ NW3d ___ (2024)

(Docket No. 164948); slip op at 2, in which our Supreme Court simply held that the exclusionary

rule does not apply to a civil proceeding to enforce zoning and nuisance ordinances, declining to

address whether the use of an aerial drone constituted an unreasonable search in violation of the

United States or Michigan Constitutions.

3. DISCUSSION AND RESOLUTION

Initially, plaintiffs’ cause of action for an alleged Fourth Amendment violation is

problematic because BWL is not a state entity but rather a municipal entity, the claim was not

based on the Michigan Constitution, and the claim was not labeled as a § 1983 action. Moreover,

we fail to see how there was any Fourth Amendment “search,” even accepting all of plaintiffs’

allegations. See Kyllo v United States, 533 US 27, 32 n 1; 121 S Ct 2038; 150 L Ed 2d 94 (2001)

(“When the Fourth Amendment was adopted, as now, to ‘search’ meant to look over or through

for the purpose of finding something; to explore; to examine by inspection; as, to search the house

for a book; to search the wood for a thief.”) (quotation marks, alteration, and citation omitted).

Bonnie testified that on January 5, 2022, at around 9:15 a.m., three young men from Wright

Tree Service appeared in a neighbor’s yard in a bucket truck. When plaintiffs’ dog began barking,

Bonnie went outside in her pajamas and a pair of boots to investigate. She “asked them what the

hell they were doing,” or something to that effect. Bonnie testified that the driver of the bucket

truck was hostile and rude. The Wright driver told her “don’t worry about it, it’s none of your

business.” According to Bonnie, the men did not cut anything. Bonnie testified that eventually

one of the men sitting in the passenger seat of the truck while on the neighboring property held up

a cellphone with two hands and directed the phone in her direction through the truck’s windshield,

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leaving her with the belief that he was photographing or videotaping her. Bonnie admitted that it

was possible that he was playing a video game. She asserted that the young men were acting stupid

and were snickering and laughing at her in a disrespectful manner, even though she could not hear

them as they were in the truck. Their conduct upset her. With her cellphone, Bonnie took video

and a picture of the man pointing his cellphone at her. Bonnie conceded that she had no knowledge

or evidence that she had actually been photographed or videotaped.

The Wright employee accused of filming or photographing Bonnie was Kegan Hatt. Hatt

averred in his affidavit that he and coworkers were on the neighboring property to trim trees on

that property, that they never entered plaintiffs’ property, that they were not there to trim plaintiffs’

trees, that Bonnie approached the crew in an aggressive and threatening manner, demanding that

they stop any trimming work, that the men then returned to their bucket truck to await

management’s arrival, that Hatt began watching TikTok videos on his cellphone while sitting in

the truck, that upon information and belief Bonnie took a photograph of Hatt, and that he did not

“record any video or take any photograph of Bonnie.”

The trial court summarily dismissed the Fourth Amendment claim on the basis that

plaintiffs provided no evidence contradicting Hatt’s affidavit and his assertion that he did not film

or photograph Bonnie. This reasoning constituted error because one could reasonably infer from

the photograph that Bonnie took of Hatt that Hatt was photographing or videotaping Bonnie.

Nevertheless, we affirm the trial court’s dismissal of the count albeit for different reasons. See

Washburn v Michailoff, 240 Mich App 669, 678 n 6; 613 NW2d 405 (2000) (this Court may affirm

a trial court’s decision when it reaches the right result albeit for different reasons). For the reasons

noted earlier, we affirm on the basis that plaintiffs sought money damages but failed to allege a

state constitutional-tort claim or a § 1983 claim.

Furthermore, assuming that Hatt actually videotaped or photographed Bonnie and that a

“search” occurred, Bonnie was in plain view in her backyard when the incident took place;

therefore, she had no reasonable expectation of privacy that would trigger Fourth Amendment

protections. With respect to plaintiffs’ curtilage argument, in United States v Dunn, 480 US 294,

301; 107 S Ct 1134; 94 L Ed 2d 326 (1987), the United States Supreme Court explained:

Drawing upon the Court’s own cases and the cumulative experience of the

lower courts that have grappled with the task of defining the extent of a home’s

curtilage, we believe that curtilage questions should be resolved with particular

reference to four factors: the proximity of the area claimed to be curtilage to the

home, whether the area is included within an enclosure surrounding the home, the

nature of the uses to which the area is put, and the steps taken by the resident to

protect the area from observation by people passing by.

Here, Bonnie was in her backyard, and she referenced the presence of a fence between the

properties. But the facts indisputably established that Bonnie exited her home, approached the

Wright employees, and initiated direct contact with them, knowingly placing herself in plain and

open view. See Kyllo, 533 US at 33 (We have held “that a Fourth Amendment search does not

occur—even when the explicitly protected location of a house is concerned—unless the individual

manifested a subjective expectation of privacy in the object of the challenged search, and society

is willing to recognize that expectation as reasonable.”) (quotation marks, citation, and alteration

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omitted; emphasis added, except for “house”). And there is no evidence or indication that the three

Wright employees were unlawfully on the neighbor’s property.

IV. CONCLUSION

We hold that there exists a genuine issue of material fact regarding whether BWL has a

prescriptive easement, whether its vegetation-management plan exceeds the scope of the alleged

easement, and whether a trespass-nuisance arose for purposes of abatement relative to the alleged

service-drop hazard. We also hold that plaintiffs stated a valid claim for trespass-nuisance, but

only in regard to the claim for equitable relief.13 Accordingly, the trial court erred by granting

summary disposition in favor of BWL on these issues. But we affirm the trial court’s ruling

summarily dismissing the Takings and Fourth Amendment claims.

We affirm in part, reverse in part, and remand for further proceedings consistent with this

opinion. We do not retain jurisdiction. No party having fully prevailed on appeal, we decline to

tax costs under MCR 7.219.

/s/ Michael J. Kelly

/s/ Anica Letica

/s/ Randy J. Wallace

13

The trial court did not err by dismissing any claims for monetary damages made by plaintiffs as

it pertained to the trespass-nuisance claim; however, the court erred when it dismissed plaintiffs’

claims for equitable relief as it pertained to the trespass-nuisance claim.

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