Right of Access Does Not Insure Right to Travel Within One’s Property
March 14, 2025
Analysis by Ryan C. Squire from Garrett & Tully, editor of the Title Insurance Law Journal:
Prose v. Old Republic National Title Insurance Company
(Mich. 22nd Judicial Cir. Ct.; Case No. 21-000902-CK)
This case involves a title insurance claim concerning property located in Halfmoon Lake in Michigan. It arises out of an access endorsement provided by Old Republic. The insured, Mr. Prose, bought several lots on the “Treasure Island” peninsula, with a common address of 14620 Edgewater Drive and 14600 Edgewater Drive.
Prior to closing, Mr. Prose’s attorney requested a commitment for title insurance from Old Republic’s policy issuing agent, Devon Title.
Blind Lake Road crosses the island but is not a public road. Nevertheless, there has never been a problem with “actual access” to the insured properties because the roads on the property are part of a public recreation road system. These are open to the public. A bridge crosses over an inlet, and this bridge is part of Blind Lake Road. A portion of Edgewater Drive is not physically passable because it crosses a narrow isthmus between Halfmoon Lake and Blind Lake.
The Access Endorsement states: “The Company insures against loss or damage sustained by the Insured if, at Date of Policy (i) the Land does not abut and have both actual vehicular and pedestrian access to and from Edgewater Drive and/or any public road (the ‘Street’), (ii) the Street is not physically open and publicly maintained, or (iii) the Insured has no right to use existing curb cuts or entries along that portion of the Street abutting the Land.”
In view of the fact that the title policy defined “Land” to mean “the land described in Schedule A and the affixed improvements that by law constitute real property,” Prose asked the court to interpret the first clause of the Access Endorsement as follows: “The Company insures against loss or damage sustained by the Insured if, at Date of Policy (i) the [land described in Schedule A and the affixed improvements that by law constitute real property] does not abut and have both actual vehicular and pedestrian access to and from Edgewater Drive and/or any public road (the ‘Street’) ….” In short, Mr. Prose asked the court to interpret the Access Endorsement “as extending beyond the property boundary and to each improvement on the property.” Mr. Prose argued that he had no vehicular access to his lakefront improvements and the Access Endorsement insured him as having vehicular access to his lakefront improvements.
After Mr. Prose bought the property, he brought construction materials and equipment over Blind Lake Road to conduct substantial construction. He also asked the Department of Natural Resources to place a gate on the bridge and give him the only key. The Department of Natural Resources declined because it owned the land on the other side of the bridge and a state recreation area was open to the public.
Mr. Prose sued the Department of Natural Resources for access and other claims. Ultimately, Old Republic paid the Department of Natural Resources to replace the bridge, and Old Republic paid Mr. Prose—and Mr. Prose then paid the State of Michigan—to acquire an easement granting Mr. Prose legal access to his property from the nearest public road.
Mr. Prose was dissatisfied and claimed the Access Endorsement insured him as having actual vehicular access to improvements located on his property even though his property had actual vehicular access based on a legal right. The insured asserted that “right of access” meant the right to get from one part of his own parcel to every other part. This argument is very similar to the one rejected in the Community Bank decision from Pennsylvania.
The court first examined whether the Access Endorsement was ambiguous, and in particular, whether the Access Endorsement was susceptible of an interpretation that provided coverage for actual and physical vehicular access to “affixed” improvements located on the land. In short, Mr. Prose interpreted the Access Endorsement to provide coverage under two broad circumstances: “(1) the land does not have both actual vehicular and pedestrian access, and (2) [ ] the improvements (including the lakefront home) do not have both actual [vehicular and] pedestrian access.”
The court looked to extrinsic evidence, and relied heavily on the testimony of Bushnell Nielsen. Mr. Nielsen testified “affixed improvements” was included in the definition of Land in the event a claim resulted in the loss of both the land and a portion of a building built on the land. “Affixed improvements” was intended to distinguish “land that constitutes real property” from personal property such as washers and dryers. The land, and anything affixed to the land, would be considered “real estate.” Thus, a house would be considered real estate but a washer and dryer would not. Further, Mr. Nielsen testified he was unaware of any coverage provided by title insurers that would allow an insured to physically travel from one part of the insured property to another or from one improvement on the land to another improvement on the land. In fact, Mr. Nielsen testified he had never seen anyone, in his 40 years of experience, make the claim Mr. Prose was asserting. Mr. Nielsen’s expert report explained, “A right of access means the right to travel from the insured parcel to a public street, directly or indirectly. The insured parcel has a right of access if it abuts a public street. Further, the insured parcel has a right of access if it has the right to the use of an adjoining street that is privately-owned….” Mr. Nielsen’s report further opined, “Prose's position, that the Access Endorsements insure that Prose can travel from a public road to all improvements located within the Properties, is contrary to established industry customs and practices concerning the handling of claims concerning that endorsement and the court decisions that have construed title insurance policies.… The only indemnification that addresses the connection from the public road to the insured parcel is the assurance that the Land ‘abuts’ the street. It is my expert opinion that this assurance stops at the line between the street and the insured Land.” What is more, Mr. Nielsen opined, “Prose's position is a non sequitur, because every property owner has the unfettered right to cross any part of his own property in order to reach the abutting public road. The right to travel over one's own property is an incident of the ownership of that real estate.”
The court found Mr. Nielsen’s testimony was supported by other witnesses, and that Mr. Nielsen’s testimony was credible. The court thus found no ambiguity.
The court also found no ambiguity because the title policy only insured against matters existing “as of Date of Policy,” and it excluded matters arising post-policy. Here, Mr. Prose’s lakefront home did not exist on date of policy. The court thus found, “Extending protection to [Mr. Prose’s] new lakefront home … would be unfathomable and [Mr. Prose’s] interpretation of the endorsement is clearly overreaching.”
In short, there was no coverage for Mr. Prose’s lack of actual vehicular access to traverse within his property.
The court further held Old Republic “went above and beyond in satisfying its obligations under the title policy” when Old Republic paid the Department of Natural Resources to replace the bridge, and when Old Republic paid Mr. Prose, so he could then acquire an easement from the State of Michigan, granting him legal access to his property from the nearest public road.
Old Republic also sought to reform the Access Endorsement to delete the second clause of the Access Endorsement, which insured “the Street is not physically open and publicly maintained.” The court agreed, finding there had been a mutual mistake by the parties in the issuance of this particular clause. “[T]he parties have a mutual mistake as to the basic assumption of what is covered in the Access Endorsement,” namely, whether Blind Lake Road would be publicly maintained.
This decision makes eminent sense. At its most basic level: most improvements do not sit right on a property’s boundary. Most houses, for example, are set back many feet from the street. If Mr. Prose’s interpretation were accepted, the Access Endorsement would require a title insurer to build a driveway to get to a house from the public street. That is not what title insurance insures.
LeRoy Asher and John Cameron represented Old Republic and Tara Weishaar was Old Republic’s claims attorney. Thanks to Bush Nielsen for bringing this decision to the attention of the TILJ.
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