Action to remove alleged encroachments; Trespass; Easement for a utility pole

The court held that the trial court did not err in denying plaintiff’s motion for summary disposition in this trespass case. It alleged that defendant-DTE had encroached upon plaintiff’s property. Plaintiff did “not squarely confront the trial court’s conclusion that the 2001 aerial photograph” confirmed that Lycaste Street (which is owned by defendant and runs along the eastern border of plaintiff’s property) “had already been widened by that time, fatally undercutting plaintiff’s position.” Instead, it argued “that the trial court erred because, at the time that the trial court decided [its] motion for summary disposition, there was no genuine question of material fact on the then-existing record about whether defendant had trespassed on plaintiff’s property.” The court found that the “evidence at the time of plaintiff’s motion did not conclusively show if or when Lycaste Street had been expanded or the walls had been constructed. Nor did the evidence conclusively show that defendant had moved the utility pole beyond the scope of the easement. The 2004 survey showed that an encroachment existed, and [a principal surveyor for defendant] noted that some measurements on the survey were unclear. Even if the road was widened or the walls constructed after 2004, there was no definitive evidence about when (e.g., 2005? 2007?).” Further, the surveyor “testified that the road did not appear wider in the 2021 survey than the 2004 survey, although there may have been more asphalt.” As to the green steel wall, defendant’s manager of corporate real estate “testified that it had been in place by the time that he began to work for defendant in 1994. Thus, there was a question of fact on the record as it existed when the trial court ruled on the parties’ first round of dispositive motions.” Plaintiff pointed to a “2021 e-mail that indicated that the green steel wall was intended to stop the glare of headlights. This e-mail did not, however, specify who built the wall or when, or if the wall was inconsistent with any preexisting easement.” Although it “argued that the glare would only be a problem once the housing units were built, which did not begin until 2006, defendant argued that the housing developer would have been more likely to install the wall due to the glare of lights. Either way, the e-mail did not conclusively show a lack of genuine issue of material fact.” Affirmed.