Sue Thy Neighbor
How a shortcut to the Arb triggered a costly legal battle
by Julie Halpert
From the May, 2014 issue
When Nick Delbanco and his wife moved from Vermont to Ann Arbor in 1985, they were drawn to a home near Nichols Arboretum. Just a block away, a short path led to the Arb's Main Valley. "I felt like a country boy," he recalls. "I felt like I'd managed to re-create the life of somebody who lived in woods and meadows while still being in the center of town. It was wonderful to have that path right there."
That experience meant so much to Delbanco, and several of his neighbors, that when access to the path was threatened, they fought back. Though the path crosses a private driveway and backyard, residents say they have used it for decades. So when relatively new owners of the two houses sandwiching the path decided to erect a fence, Delbanco and a group of his neighbors sued. The ensuing dispute has badly damaged the community spirit of a once tight-knit neighborhood.
The Highland neighborhood is a tranquil, affluent area of majestic, 1920s-era homes north of Geddes. Delbanco says there was "a warm sense of community, and that mattered a lot to me, particularly coming from Vermont, where nobody spoke to each other."
Barbara Hilbert, another plaintiff in the lawsuit, says the neighborhood book group counts fifty residents as members, with ten or fifteen attending meetings regularly. A block party is held every year, and was sometimes hosted on the driveway that leads to the path.
Many residents are illustrious leaders in their fields, but you'd never know it. Neighbors felt comfortable asking to borrow another's lawn mower or a spoonful of cinnamon. "It was great," says Raven McCrory, who lived in the neighborhood from 1983 to 2007 and often used the path. "It was a very neighborly place."
The path that split the community first appears in public records in 1893. According to pleadings filed by Scott Munzel, the plaintiffs' attorney, an easement was granted that year by Benjamin Conrad to Margaret Huddy,
who owned land north of his, allowing her to use his property to gain access to Geddes. In 1923, when the land was platted for residential development, developer Andrew Franklin Smith retained the easement as an "outlot." In 1981, the owners of the houses on either side of the path acquired the outlot. When they sold their homes, they also sold their respective shares of the outlot.
Mark and Mia Moyad bought the house on the west side of the path in 2006. Mark Moyad later testified that he was unaware of the path at the time. In the fall of 2010, James and Elizabeth Sweetnam bought the house on the east side; they leveled it the next spring to build a new home. During the same period, the Moyads built a new garage, which required construction fencing. A January 20, 2011, email from Mia Moyad to the book group, included in court documents, said, "The Sweetnams and us have been legally advised to request no further use of the driveway as an entrance to the arb, particularly due to the dangers of the construction zone." (The Sweetnams and Moyads declined to be interviewed.)
In their court testimony and emails included in court records, the Moyads paint a very different picture of the quiet neighborhood others describe. Mark Moyad testified that he called the police six times due to disturbances associated with strangers' use of the path, including one time when their car was broken into. In a lengthy email to the book group, the Moyads complained that five to thirty people a day ran, biked, and skateboarded through their property at all hours; adult men hid in the bushes; carloads of kids parked in front of his house getting high or drunk, then took the footpath to the Arb; and Mia was approached by strangers in their driveway. In court documents, Mark Moyad said the incidents were so stressful that they considered moving.
Hilbert is surprised by the litany of problems the Moyads cited. "We live across the street, and we never saw that," she says. Delbanco calls the email "crazy," saying he rarely, if ever, saw strangers using the path. Another plaintiff, Jane Hassinger says the "hostile, violent, and very distressing" email fueled the neighbors' desire to find a compromise that would preserve their access to the path while addressing their new neighbors' concerns.
In the spring of 2011, an attorney hired by the plaintiffs asked the Moyads if they'd consider putting in a gate with a lock, giving neighbors a key, as is done with a similar entrance on Harvard Place. The Moyads didn't agree. Susan Karp, a friend of the Moyads who testified on their behalf at the trial, isn't surprised. She says most people wouldn't appreciate having others--including future owners of the houses with keys granted "in perpetuity," as on Harvard--walking through their property.
By the summer of 2011, the Moyads joined with the Sweetnams--who still hadn't moved into the neighborhood--to erect a permanent fence that blocked access to the path.
If a new resident has yet to meet other neighbors, as in the case of the Sweetnams, they are more likely to want to maintain their privacy, notes Bill �Berkowitz, a psychologist and professor emeritus at the University of Massachusetts-Lowell. But Zaire Dinzey-Flores, an associate professor of sociology at Rutgers University who lived in Ann Arbor from 1999 to 2003 as a grad student, says society's growing emphasis on private space "breaks down collaboration ... In some ways, that space [the path] is another member of the community, so by taking that away, you're eroding that sense of community."
Hilbert says she had hoped litigation could be averted, but the Moyads "just never seemed to budge." Putting up a permanent fence in the midst of negotiations, she adds, "was antagonistic." Delbanco says he's "not the sort of person who slaps lawsuits on people," but he felt the fence redefined the traditionally "warm" neighborhood. So in the summer of 2012, he, Hilbert, and eight other neighbors sued the Moyads and Sweetnams to regain access to the path.
"We were just trying to retrieve what had been ours," Delbanco says.
The lawsuit rested on a legal concept called "adverse possession." Based on English common law, it allows parties that use private land continuously for at least fifteen years without the landowner's permission to claim ownership. The plaintiffs in the Highland case weren't asking for ownership of the outlot--but they did want a "prescriptive easement" that would let them keep using the path.
The two-day trial late last year hinged on the definition of continuous use and on whether the neighbors who used the path did so without permission. When Hilbert and her husband bought their house in 1993, she says, both the Realtor and seller told her she could use the path. They walked through the easily accessible entrance "and it was like, 'Oh joy!'" she recalls. Though there's a public entrance on Geddes a few blocks away, she says the footpath "is a totally different feeling because it's your entrance." Hilbert used it often, heading to the Arb just after sunrise with a notepad as she tried to learn about all the wildflowers there.
Hassinger grew up near the neighborhood and was aware of the many paths crossing private properties that abut the Arb. She used to babysit for a family on Highland "so I knew that path, and I knew it well." She started to use it regularly after she moved to Highland in 1992. "It was common knowledge that the walkway was available for anyone to use," says Eunice Burns, the Hassingers' Realtor at the time. Carolyn Lepard, a longtime Ann Arbor Realtor who lives in the area, says she gave buyers the same information: "It was historically considered to be a public walkway."
But the defendants argued that the neighbors' use didn't meet the conditions required for a prescriptive easement, since they hadn't used the path "continuously," and those who used it had permission to do so. In court pleadings, they said that both Barbara Hilbert and the Delbancos had been given permission by prior owners. Another neighbor, Brent Ericson, in an email to the Moyads that was part of court documents, said that when he moved in, a previous owner of the outlot told him about the path and gave him permission to use it. He also said that he didn't see plaintiffs using the path. Wendy Walker-Dyes, the Moyads' attorney, argued in court documents that the evidence "supports an inference that it was mutually understood by residents that any use of the Outlot was permissive."
Karp, the Moyads' friend, says good neighbors don't sue each other. "There was no reason they [the plaintiffs] needed to pursue this," she says. "It was a huge waste of time and money and created ill will." She says the plaintiffs "seemed like entitled bullies," when in her view, they should be grateful that they were able to use the path as long as they did: "They had a good run."
On March 13, judge David Swartz ruled in favor of the defendants. "The evidence did not satisfy the burden necessary to establish a prescriptive easement," the judge wrote.
In a statement provided by their attorney, the Sweetnams and Moyads said they were pleased with the court's "support of the fundamental rights of homeowners. We look forward to putting this whole matter behind us and to being part of the great neighborhood we live in."
William Miller, a U-M professor who teaches property law, says these kinds of cases were more commonly brought in rural areas a century ago, where there were wide-open spaces and uncertain land titles. Judges find it harder to apply these rules in fairly wealthy neighborhoods now. "My sense is the judge just did not want the law of prescription to work among people who ate dinner in each other's houses," he says. He says he doesn't necessarily think this ruling establishes a precedent for blocking off other paths. "If plaintiffs came in with more compelling proof, that would change the game. Nothing in this decision does away with the law of prescribing an easement."
Michael Krassa is a sociologist and chair of the Human Dimensions of Environmental Systems program at the University of Illinois at Urbana-Champaign. He says these types of lawsuits between neighbors have become more common as social ties weaken. "We don't know our neighbors as well as we used to," he says. Krassa teaches a class about the interaction of people, their neighbors, and the physical environment, including how neighborhood bonds form. He says that during the ten-year period that he's taught the class, based on reports from his students, the number of people who know nothing about their neighbors has more than doubled.
Susan Karp says she stopped using the path on Highland once she heard the Moyads were concerned. As she walked her two dogs on a recent snowy weekend, she used another semi-private entrance to the Arb nearby--crossing the property of an elderly owner who, she says, doesn't mind neighbors passing through.
Jane Hassinger says she sometimes uses the entrance where Karp took her dogs but says the owner is not well and she "does not wish to cause him or his family any stress." Hassinger says there are many other similar entrances throughout the Arb, some with gates, some without, and she fears if they're blocked "it will close down the sense of openness and access and freedom in the neighborhood that was something we took for granted for a long time." She says it's doubtful that, given the ruling in this case, any neighbors would take measures to protest other access paths should they be blocked.
Delbanco, like Hassinger, fears other private entrances could be closed; he now uses the public Geddes entrance, which is far less convenient. He dismisses the defendants' hope to put the dispute behind them: "The idea that we'll all be happy campers now is wishful thinking at best," he says. "The circle of trust has been irrevocably broken, and a sense of shared community cannot be restored." But with the plaintiffs' legal bills approaching $100,000, he has no plans to appeal. "I'm heartily sick of it," he says.
It's hard to know whether the dispute will leave long-lasting scars. Hilbert felt awkward meeting the Sweetnams for the first time at a deposition. "It was like '�sorry to meet you under these circumstances. We're your neighbors.'" Karp says the Sweetnams can't help but feel unwelcome. "I'm sure they were very sorry they came to Ann Arbor," she says. Hassinger agrees: "They don't feel like we're a friendly community, and I feel terrible about that." Hassinger says there's bound to be psychological fallout--the once open and friendly community, she says, now feels "closed off and antagonistic."
Hilbert, though, isn't giving up: "I really hope we can come back together again," she says. She points out that the book group still meets, and the block parties are still held. After the court hearing, she hugged a neighbor who testified against her and the other plaintiffs. "I said, 'This doesn't change anything for us.'"
Though he lost, Delbanco doesn't regret bringing the lawsuit--even though he realizes it will likely have long-lasting emotional consequences. "It's true that things have soured. There was a time when everybody was awfully happy to be each other's neighbors," he says.
The conflict, he says, proves that good fences don't always make good neighbors: "In this case, good fences make bad neighbors."
[Originally published in May, 2014.]
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