Easements and private roads: who may use the road, who pays for it and who can block it
I am Mitchell Bisson, a Grand Rapids real estate lawyer. I have litigated for over 15 years. This page covers private roads and shared driveways, such as the dirt road to the back lot or the lane that crosses a neighbor’s land: whether a road is public or private, who may use it, who pays for upkeep and what to do when it is blocked. I represent homeowners on both sides of these disputes, whether the road crosses your land or you cross someone else’s. I do not promise outcomes.
The short answer. One way a road becomes public is ten years of public use that meets the highway-by-user test, and a road that has not been made public stays private. MCL 221.20; Kent County Road Commission v. Hunting, 170 Mich. App. 222, 230-232 (1988). A private road crosses land under an easement, and the easement’s grant sets what its holder may do. Blackhawk Development Corp. v. Village of Dexter, 473 Mich. 33, 41-42 (2005). The owner of the land under the road cannot block it, and the holder cannot enlarge it. Morse v. Colitti, 317 Mich. App. 526, 544-547 (2016); Schadewald v. Brule, 225 Mich. App. 26, 36-41 (1997). Who pays for upkeep depends on the document, and if there is none, the cost of a road both sides use is shared in proportion to use. Bowen v. Buck & Fur Hunting Club, 217 Mich. App. 191, 193-194 (1996).
Road disputes are some of the longest-running fights between neighbors. They usually begin with a gate, a pile of gravel, a new tenant using the road for deliveries, or a bill for plowing that someone refuses to pay. The legal question underneath is nearly always the same: what right does each person have, and where does it come from. The answer is in the deed, the plat, the recorded easement or the history of how the road was used.
I start with the chain of title and the survey. I walk the road when I can. Then I tell you whether the road is public or private, who has the right to use it, what they may do on it, and what the law lets you do about the problem. For a neighbor who needs to use your land to reach theirs, or for a property owner whose road has been blocked, the starting point is the same.
Easement and private road issues at a glance
The table sets out the questions that come up most often, what has to be shown, and the rule that governs.
| Issue | What must be shown | Time limit or key rule | Authority |
|---|---|---|---|
| Public road by use (highway by user) | A defined line of travel with definite boundaries, used and worked on by public authorities, and traveled by the public openly, notoriously and exclusively | 10 consecutive years without interruption. Roads laid out but not recorded can qualify after 8 years. A road made public by time and use is 4 rods wide | MCL 221.20; Kent County Road Commission v. Hunting, 170 Mich. App. 222, 230-232 (1988) |
| Prescription or adverse possession against public land | Not available against a municipal corporation, political subdivision or county road commission | The statute removes the limitations periods and the adverse possession, acquiescence and prescriptive easement claims in actions involving land, including a highway, street, alley or easement | MCL 600.5821(2) |
| Prescriptive easement over a private road | Open, notorious, adverse and continuous use by the claimant or a predecessor | 15 years. Once vested, it is appurtenant and passes to later owners in the chain of title | Marlette Auto Wash, LLC v. Van Dyke SC Properties, LLC, 501 Mich. 192 (2018) |
| Easement by necessity | A split of one parcel that leaves one resulting parcel landlocked except across the other | Strict necessity. The easement ends when the necessity ends | Charles A. Murray Trust v. Futrell, 303 Mich. App. 28, 34, 41-42, 46-49 (2013) |
| Easement implied from prior use | During unity of title, an apparently permanent and obvious servitude, continuity, and reasonable necessity | The necessity is reasonable, not strict | Charles A. Murray Trust v. Futrell, 303 Mich. App. 28, 41-42 (2013) |
| Scope of the road easement | What the grant provides | Use must be confined strictly to the purposes of the grant, with no unnecessary improvements that unreasonably burden the servient land, and no extension to other land | Blackhawk Development Corp. v. Village of Dexter, 473 Mich. 33, 41-42 (2005); Schadewald v. Brule, 225 Mich. App. 26, 36-41 (1997) |
| Cost of maintenance | Joint use of the road by the easement holder and the landowner | Costs are shared in proportion to each party’s use, unless the documents say otherwise | Bowen v. Buck & Fur Hunting Club, 217 Mich. App. 191, 193-194 (1996) |
| Blocked or relocated road | Interference with the holder’s unobstructed passage | Injunction and restoration. Treble damages under MCL 600.2919(1) do not apply to an easement holder | Tittiger v. Johnson, 103 Mich. App. 437, 439-442 (1981) |
| Township private road across a neighbor | Not available | The private roads act was held unconstitutional | Tolksdorf v. Griffith, 464 Mich. 1 (2001) |
Is the road public or private?
The answer controls everything else. A public road is open to everyone. A private road belongs to the people who own the land under it, subject to easements for the people entitled to use it. A road can become public by use. Under MCL 221.20, roads used as public highways for 10 years or more are public highways, and roads laid out but not recorded and used 8 years or more are public highways. A highway established by time and use is four rods wide. MCL 221.20.
The Court of Appeals has said that a highway by user requires a defined line of travel with definite boundaries, that the line be used and worked upon by public authorities and traveled by the public for 10 consecutive years without interruption, and that the use be open, notorious and exclusive. It also explained that a landowner can rebut the presumption of a 66-foot width by showing open, notorious and adverse control of the land during that 10-year period. Kent County Road Commission v. Hunting, 170 Mich. App. 222, 230-232 (1988). A road that neighbors use and one neighbor plows is not necessarily public. Work on the road by public authorities over the period is one of the things the court looks for.
The same statute that protects public bodies also limits claims against them. A municipal corporation, political subdivision or county road commission is not subject to the limitations periods or laches, and cannot be subjected to a claim of adverse possession, acquiescence for the statutory period or a prescriptive easement in actions involving land, including a public highway, street, alley or easement. MCL 600.5821(2). If your driveway runs over land a township owns, long use will not give you rights in it.
If the road runs through a plat, the plat matters. A purchaser of a platted lot takes the interest described in the deed plus the rights shown on the plat. Morse v. Colitti, 317 Mich. App. 526, 534 (2016). A recorded plat is the first document I pull.
How a private road easement comes into existence
An express easement comes from a recorded deed or agreement, and the language sets the scope. Without a written grant, a court may recognize an easement in three ways.
- Easement by necessity. It can arise when a landowner splits a parcel so that one resulting parcel is landlocked except for access across the other. Michigan requires strict necessity, and the easement ends when the necessity ends. Charles A. Murray Trust v. Futrell, 303 Mich. App. 28, 34, 41-42, 46-49 (2013).
- Easement implied from prior use. It requires an apparently permanent and obvious servitude imposed during unity of title, continuity, and that the easement be reasonably necessary for fair enjoyment of the benefited parcel. Necessity there is reasonable, not strict. Charles A. Murray Trust v. Futrell, 303 Mich. App. 28, 41-42 (2013).
- Prescriptive easement. Open, notorious, adverse and continuous use for 15 years can create one, and a vested prescriptive easement passes to later owners. Marlette Auto Wash, LLC v. Van Dyke SC Properties, LLC, 501 Mich. 192 (2018).
The Michigan Supreme Court struck down the Opening of Private Roads and Temporary Highways Act, MCL 229.1 et seq., as authorizing a taking whose primary benefit goes to a private person. Tolksdorf v. Griffith, 464 Mich. 1 (2001). So a landlocked owner cannot ask a township to open a private road across a neighbor’s land. The options are the easement doctrines above or a negotiated agreement.
What the holder of a road easement can and cannot do
The holder’s use must be confined strictly to the purposes of the grant. The holder cannot make improvements that are unnecessary for effective use of the easement or that unreasonably burden the servient land, and the language of the grant sets the scope. Blackhawk Development Corp. v. Village of Dexter, 473 Mich. 33, 41-42 (2005). A holder may maintain the easement, and the Court of Appeals applies a two-step test to repairs and improvements: whether they are necessary, and if so, whether they unreasonably burden the servient estate. Morse v. Colitti, 317 Mich. App. 526, 544-547 (2016).
The holder cannot unilaterally extend an appurtenant easement to benefit additional land that the grant does not name. In Schadewald, the Court of Appeals held that use beyond the easement’s reasonable scope was a continuing trespass that called for an injunction. Schadewald v. Brule, 225 Mich. App. 26, 36-41 (1997). An easement for ingress and egress does not by itself carry riparian rights such as a dock. Dyball v. Lennox, 260 Mich. App. 698 (2004). If your neighbor’s guests, tenants or customers are using the road more heavily than the original grant allows, or if the neighbor has bought a second lot and wants to use the road for it, scope is the issue.
What the owner of the land under the road can and cannot do
A right of way carries unobstructed passage and the rights incident to it. The owner of the land may use it in ways that are not inconsistent with the easement. Morrow v. Boldt, 203 Mich. App. 324, 329-330 (1994). The fee owner’s fences and structures may not hinder the holder’s unobstructed passage. Morse v. Colitti, 317 Mich. App. 526, 544-547 (2016). A locked gate, a structure across the road, or a move of the road to a different part of the land without the holder’s agreement is the kind of interference that leads to a lawsuit.
MCL 600.2919(1) triples damages for cutting trees, taking gravel and similar acts, but it does not help the holder. The Court of Appeals held that it does not apply to an easement holder suing the servient owner, because an easement carries no title or possession and trespass to land does not lie. In that case the owner who relocated and blocked the road was ordered to restore it and enjoined from interfering. Tittiger v. Johnson, 103 Mich. App. 437, 439-442 (1981). The holder’s remedy is an injunction and restoration.
Maintenance, snow plowing and who pays
Start with the documents. A recorded road maintenance agreement, a plat restriction or a clause in the deed controls cost sharing. Where none exists, the cost of maintaining an easement used jointly by the holder and the landowner is paid in proportion to each party’s use. Bowen v. Buck & Fur Hunting Club, 217 Mich. App. 191, 193-194 (1996). In Bowen, the road was the plaintiffs’ only access.
The Court of Appeals refused to enforce a cost allocation formula that was based on speculation about use and sent the case back with instructions to follow Bowen. It also held that maintenance duties under an ingress and egress easement are limited to repairs incidental to safe entry and exit and do not extend to landscaping beyond the paved roadway. Bayberry Group, Inc. v. Crystal Beach Condominium Ass’n, 334 Mich. App. 385 (2020). If your neighbor says you owe half and you use the road a few times a week, or you want the neighbors who drive it daily to pay their share, the question is what the documents say and what the use actually is.
Safety is a separate issue. The easement owner, not the servient owner, has the duty to maintain the easement in a safe condition to prevent injuries to third parties. Morrow v. Boldt, 203 Mich. App. 324, 329-330 (1994). If a visitor is hurt on a shared drive, that allocation of responsibility is where the fight over liability begins, and I look at insurance and the road agreement first.
Evidence that decides these cases
Road cases turn on documents and on history. The deed and the plat show what was granted. A survey shows where the road actually runs compared with where the paper says it runs. Aerial photographs from different years can show when the road first appeared and whether it moved. Plowing and grading records, tax records and statements from long-time neighbors can show who used and maintained the road and for how long. Photographs of gates, ditches and signs show what was done and when. The register of deeds can tell you whether a road maintenance agreement or easement was ever recorded, and the county road commission can tell you whether it has ever plowed, graded or accepted the road. I tell clients to start collecting these before anything is filed, and to keep every text and email about the road.
Defenses I see most often
- The road is public. If the road became a highway by user, neither neighbor controls it. Kent County Road Commission v. Hunting, 170 Mich. App. 222, 230-232 (1988).
- The land is publicly owned. Claims of adverse possession or prescriptive easement do not run against a municipality or a road commission. MCL 600.5821(2).
- The use exceeds the grant. The holder’s use must stay within the purposes of the easement. Blackhawk Development Corp. v. Village of Dexter, 473 Mich. 33, 41-42 (2005).
- The necessity has ended. An easement by necessity ends when the necessity does. Charles A. Murray Trust v. Futrell, 303 Mich. App. 28, 34, 41-42, 46-49 (2013).
- The use was not adverse or continuous. A prescriptive claim needs open, notorious, adverse and continuous use for the full period. Marlette Auto Wash, LLC v. Van Dyke SC Properties, LLC, 501 Mich. 192 (2018).
- The cost claim has no basis in use. Maintenance shares follow the documents or proportionate use, not guesswork. Bowen v. Buck & Fur Hunting Club, 217 Mich. App. 191, 193-194 (1996); Bayberry Group, Inc. v. Crystal Beach Condominium Ass’n, 334 Mich. App. 385 (2020).
Remedies
A person claiming an interest in land can sue in the circuit court against anyone who claims an inconsistent interest, and the action is equitable. MCL 600.2932(1), (5). That is the quiet title action, and it is a common way to settle disputes over whether an easement exists and how wide it is. Courts can enjoin interference with a road, order a blocked or relocated road restored, and enjoin a holder who extends a road beyond its grant. Tittiger v. Johnson, 103 Mich. App. 437, 439-442 (1981); Schadewald v. Brule, 225 Mich. App. 26, 36-41 (1997).
How I handle an easement or private road dispute
- Pull the title and the plat. I get the deeds, any recorded easement, the plat and the survey for both properties, and I find out whether the road is public.
- Walk the road. I look at the width, the surface, the gates and the structures, and I photograph them before anything changes.
- Define the right. I work out whether the easement is express, implied or prescriptive, and what the grant lets each side do.
- Gather the history. Plowing records, tax assessments, road commission records and the memories of long-time neighbors can decide whether a road is public or whether use was adverse.
- Send a written demand. A clear letter that sets out the right and the problem resolves many road disputes before anyone files.
- Seek a recorded agreement. Where both sides want peace, a recorded road agreement on scope, upkeep and cost sharing ends the fight for the next owners too.
- File if needed. If the neighbor will not move, I file in circuit court for quiet title and an injunction, and prepare the case for trial.
Ways an easement dispute may end without a trial
- Recorded road agreement. The owners sign and record terms for use, upkeep and cost sharing.
- Consent order. The court enters an order that opens the road and sets limits on gates or use.
- Purchase or relocation. One side buys the easement or the strip, or both agree to a new route.
- Cost settlement. The neighbors agree on a payment for past maintenance and a formula going forward.
What I need from you
Bring your deed, your title policy, any survey and any recorded easement, road agreement or plat. Bring photographs of the road and anything blocking it, bills for plowing and repairs, and every letter or text from the neighbor. Write out how long the road has been used, who used it, who maintained it, and when the problem started. Do not move a gate, grade the road or confront the neighbor in a way that could be called a trespass until we have talked.
Where your Kent County easement case will be heard
An action to determine competing interests in land is filed in the circuit court, which for Kent County is the 17th Judicial Circuit. MCL 600.2932(1); MCL 600.518. The district court has exclusive jurisdiction in civil actions when the amount in controversy does not exceed $25,000. MCL 600.8301(1). Michigan law sets the Kent County district courts by municipality: the 61st District Court serves the city of Grand Rapids, the 59th serves the cities of Grandville and Walker, the 62A serves the city of Wyoming, the 62B serves the city of Kentwood, and the 63rd serves the rest of Kent County. MCL 600.8128a; MCL 600.8130.
Why people hire me for an easement or private road dispute
You work directly with me, the lawyer who will appear for you. I read the title and the plat before I give an opinion, I tell you where your position is strong and where it is weak, and I tell you what each path is likely to cost. I do not promise outcomes. I act for owners on both sides of these disputes, so I know what the other side will argue. My fee depends on the work involved, and we talk about it at the consultation before you decide whether to hire me.
Questions I hear from homeowners about easements and private roads in Michigan
Can someone gain title by adverse possession to land owned by the state, a city, or a township?
No. Under MCL 600.5821(1), an action to recover land to which this state is a party is not subject to the periods of limitations or laches. Under subsection (2), a municipal corporation, political subdivision, or county road commission is not subject to a claim of adverse possession, acquiescence for the statutory period, or a prescriptive easement in an action involving land, including a public highway, street, alley, or easement.
When does Michigan law give me an easement by necessity across a neighbor’s land?
An easement by necessity can arise when a landowner splits a parcel so that one resulting parcel is landlocked except for access across the other. Michigan requires strict necessity, and the easement ends when the necessity ends. The Court of Appeals explained this in Charles A Murray Trust v Futrell.
My lot has no road access and the neighbor will not grant an easement. Can the township open a private road across their land?
Not under Michigan’s private roads act. In Tolksdorf v Griffith, the Michigan Supreme Court struck down the Opening of Private Roads and Temporary Highways Act, MCL 229.1 et seq., holding that it authorized a taking that primarily benefited a private landowner, contrary to Const 1963, art 10, section 2. A landlocked owner is left with easement doctrines or a negotiated agreement.
What is an easement implied from prior use, and how is it different from an easement by necessity?
An easement implied from a quasi-easement requires three things: during the time both parcels had one owner, an apparently permanent and obvious servitude was imposed on one part in favor of another; the use was continuous; and the easement is reasonably necessary for fair enjoyment of the benefited parcel. Necessity there is reasonable, not strict.
Can the owner of an easement across my land use it to reach other property or expand its use?
Not unilaterally. In Schadewald v Brule, the Court of Appeals held that the owner of a dominant parcel could not extend an appurtenant easement to benefit additional land not specified in the grant, and that use beyond the reasonable exercise of the easement can be a trespass. The court directed entry of an injunction.
Does an easement to reach a lake let a backlot owner install a dock or moor a boat?
Not by itself. In Dyball v Lennox, the Court of Appeals held that an easement granted in plain language for ingress and egress did not carry riparian rights such as maintaining a dock or permanently mooring a boat. The court enforced the easement as written and would not look at outside circumstances to enlarge it.
Related Michigan pages
- Grand Rapids real estate attorney
- Boundary and easement disputes: fences, acquiescence, prescriptive rights and trees
- Quiet title and adverse possession
- Condo and HOA disputes
- Neighbor disputes
- Grand Rapids civil litigation attorney
- Boundaries, adverse possession and easements
- Real estate FAQs
- Michigan legal FAQs
I represent homeowners in easement and private road disputes in Kent County and West Michigan. Contact me 24/7 by phone or email. Your Rights, My Fight! Call for a free initial consultation.
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Law Offices of Mitchell S. Bisson, 2828 Kraft Ave SE, Suite 295, Grand Rapids, MI 49512, serving Kent County and West Michigan.
This page provides general information about Michigan law and is not legal advice. Reading it does not create an attorney-client relationship. Laws change and every case turns on its own facts. Consult a licensed attorney about your specific situation.