Defendants, in their brief on appeal, refer to numerous cases supporting the inarguable proposition that a mutual, permissive use of another's land does not constitute adverse use that may ripen into a prescriptive easement. Were the only available facts of record that (1) both plaintiffs (and their predecessors) and NBD mutually used the easement area to load and unload, and (2) plaintiffs' loading and unloading occurred absent plaintiffs' request for or NBD's express grant or denial of permission, we would in all likelihood conclude that plaintiffs had failed to satisfy their burden of showing prescriptive use. Worden v Assiff, 317 Mich. 436, 439-440; 27 N.W.2d 46 (1947); Wood v Denton, 53 Mich. App. 435, 437-438, 440-442; 219 N.W.2d 798 (1974). The Michigan cases noted within defendants' brief include Banach, supra; Barbaresos v Casaszar, 325 Mich. 1; 37 N.W.2d 689 (1949); Worden v Assiff, 317 Mich. 436; 27 N.W.2d 46 (1947); Hopkins v Parker, 296 Mich. 375; 296 N.W. 294 (1941); Wilkinson v Hutzel, 142 Mich. 674; 106 N.W. 207 (1906); Wood v Denton, 53 Mich. App. 435; 219 N.W.2d 798 (1974).
The doctrine of "mutual use" has historically been applied where owners of adjoining lots share a driveway that is partially on both, if not all, parcels, such that all parcels are mutually burdened and benefited—in such cases, courts have generally found the use by the parties involved to be permissive rather than adverse. See, e.g., Wilkinson v Hutzel, 142 Mich 674, 675; 106 NW 207 (1906); Worden v Assiff, 317 Mich 436, 439; 27 NW2d 46 (1947); Wasilewski v Kowal, 320 Mich 473, 474; 31 NW2d 697 (1948); Banach, 330 Mich at 438. Here, the evidence presented at trial was that the access parcel was entirely a part of defendant's property, not a mutual driveway.
The trial court's application of the "mutual use" doctrine also was not in accord with binding Michigan law. Historically, the doctrine has been applied when owners of adjoining lots share a driveway that is partly on both (or all) parcels so that all the parcels are mutually burdened and benefited. See, e.g., Wilkinson v Hutzel, 142 Mich 674, 675; 106 NW 207 (1906); Worden v Assiff, 317 Mich 436, 439; 27 NW2d 46 (1947); Wasilewski v Kowal, 320 Mich 473, 474; 31 NW2d 697 (1948); Banach v Lawera, 330 Mich 436, 438; 47 NW2d 679 (1951). "Mutual" is not the same as simultaneous or concurrent; rather, it means "1. Generally, directed by each toward the other or others; reciprocal.
There is ample authority for the proposition that mutual use of an area will not mature into a prescriptive easement until the mutuality has ended and the adverse and hostile use continues for the statutory period. Wilkinson v Hutzel, 142 Mich. 674; 106 N.W. 207 (1906); Hopkins v Parker, 296 Mich. 375; 296 N.W. 294 (1941); Worden v Assiff, 317 Mich. 436; 27 N.W.2d 46 (1947); Barbaresos v Casaszar, 325 Mich. 1; 37 N.W.2d 689 (1949); Banach v Lawera, 330 Mich. 436; 47 N.W.2d 679 (1951). Again Duba's testimony clearly evidences that he at no time voiced an adverse or hostile claim of right to use the area such as would place defendants on notice that Duba felt his use was anything other than permissive in nature.
The cases principally relied on by appellants are not, however, as readily distinguished. Worden v. Assiff, 317 Mich. 436; Wasilewski v. Kowal, 320 Mich. 473; Banach v. Lawera, 330 Mich. 436. In these this Court considered joint driveway situations where the use originated with a common grantor.
" Of like import are Milewski v. Wolski, 314 Mich. 445 (164 ALR 998); Worden v. Assiff, 317 Mich. 436; Wasilewski v. Kowal, 320 Mich. 473; Barbaresos v. Casaszar, 325 Mich. 1. Applying the principles recognized in the foregoing decisions, it must be held that plaintiffs are not entitled to the relief sought. They have not shown by the requisite degree of certainty that the parties under whom they claim acquired an easement in this driveway by adverse and hostile use for the requisite period of time.
ies for the prescriptive period raises a presumption of the granting of an easement, on the theory that each party by his use thereof has continuously asserted an adverse right in the portion of the way lying on the other's land.Arkansas: Scott v. Dishough (1907), 83 Ark. 369, 103 S.W. 1153; Colorado: see, Trueblood v. Pierce (1947), 116 Colo. 221, 179 P.2d 671, 171 A.L.R. 1270; Georgia: Thompson v. Easley (1891), 87 Ga. 320, 13 S.E. 511; Iowa: see, Ellsworth v. Martin (1929), 208 Iowa 169, 225 N.W. 417; see, Wait v. Brock (1906), 109 N.W. 471; see, Thompson v. Schappert (1940), 229 Iowa 360, 294 N.W. 580; Molene v. Tansey (1927), 208 Iowa 992, 213 N.W. 759; Maryland: Dowling v. Hennings (1863), 20 Md. 179, 83 Am. D. 545; Clark v. Henckel (1893), 26 A. 1039; Massachusetts: Barnes v. Haynes (1859), 79 Mass. (Gray) 188, 74 Am. D. 629; Michigan: Outhwaite v. Foote (1927), 240 Mich. 327, 215 N.W. 331; but see the following cases of Wilkinson v. Hutzel (1906), 142 Mich. 674, 106 N.W. 207; Worden v. Assiff (1947), 317 Mich. 436, 27 N.W.2d 46; Wasilewski v. Kowal (1948), 320 Mich. 473, 31 N.W.2d 697; Missouri: Jacobs v. Brewster (1945), 354 Mo. 729, 190 S.W.2d 894; Nebraska: Jensen v. Showalter (1907), 79 Neb. 544, 113 N.W. 202; New York: Townsend v. Bissell (1875), 4 N.Y. (Hun) 297; Nicholls v. Wentworth (1885), 100 N.Y. 455, 3 N.E. 482; Oklahoma: Johnson v. Whelan (1935), 171 Okla. 248, 42 P.2d 882, 98 A.L.R. 1096; Pennsylvania: see, Rhea v. Forsyth (1860), 37 Pa. 503, 78 Am. D. 441; South Carolina: Craven v. Rose (1871), 3 S.C. (Rich.) 72; 2 Thompson, Real Property (Perm. ed.) § 518; 4 Tiffany, Real Property (3 ed.) § 1196a, p. 568; Jones, Easements, § 277; Washburn, Easements and Servitudes (4 ed.) p. 162; 2 Temple L. Q. 391; 26 Mich. L.Rev. 453; 41 Id. 1130; 28 C.J.S., Easements, § 18j; 17 Am. Jur., Easements, §§ 56, 57, and 63; Annotation, 98 A.L.R. 1098.
"If defendant's right to the way rests on permission, such permission may be withdrawn at any time, however long continued." In Worden v. Assiff, 317 Mich. 436, we held that the mutual use by occupants of adjoining city lots of a gravel driveway in part on each of the two lots, which use was consented to, was not adverse or hostile and did not ripen into a prescriptive easement. We quoted with approval from Wilkinson v. Hutzel (syllabi), 142 Mich. 674: