Adams v. Cleveland-Cliffs Iron Co.

• Decision Date: 02 November 1999
• Docket Number: Docket No. 203481.
• Citation: 602 N.W.2d 215,237 Mich. App. 51
• Parties: David P. ADAMS, et al., Plaintiffs-Appellees, v. CLEVELAND-CLIFFS IRON COMPANY and Empire Mining Partnership, Defendants-Appellants.
• Court: Court of Appeal of Michigan — District of US

602 N.W.2d 215

237 Mich. App. 51

David P. ADAMS, et al., Plaintiffs-Appellees, v.CLEVELAND-CLIFFS IRON COMPANY and Empire Mining Partnership, Defendants-Appellants.

Docket No. 203481.

Court of Appeals of Michigan.

Submitted May 19, 1999, at Marquette.

Decided August 6, 1999, at 9:25 a.m.

Released for Publication November 2, 1999.

Bridges and Bridges(by Caroline Bridges), Negaunee, for the plaintiffs.

Butzel Long(by John H. Dudley, Jr. and Ronald E. Reynolds), Detroit, and Richard M. Graybill, Ishpeming, for the defendants.

Before: WHITBECK, P.J., and MARKMAN and O'CONNELL, JJ.

O'CONNELL, J.

Defendants appeal as of right from a jury verdict awarding damages in trespass for invasions of plaintiffs' property by intrusions of dust, noise, and vibrations.The gravamen of this appeal presents the question whether Michigan recognizes a cause of action in trespass stemming from invasions of these intangible agents.No published decision of an appellate court of this state is directly on point.Because of the importance of this issue of first impression, we will expound on it in some detail.Following a recitation of facts, we will examine the origins of the doctrines of trespass to land and nuisance, observe recent developments of those doctrines in this and other jurisdictions, and then reaffirm for this state the traditional requirements for a cause of action in trespass.

We conclude that the law of trespass in Michigan does not cover airborne particulate, noise, or vibrations, and that a complaint alleging damages resulting from these irritants normally sounds instead in nuisance.¹

I.Facts

Plaintiffs brought suit seeking damages in both trespass and nuisance, complaining of dust, noise, and vibrations emanating from the Empire Mine, which is operated by defendantCleveland-Cliffs Iron Company and its subsidiary, defendantEmpire Iron Mining Partnership.

The Empire Mine is one of the nation's largest mines, producing eight million tons of iron ore annually.The mine operates twenty-four hours a day, year round.At the time this action was commenced, all but three plaintiffs lived near the mine, in the village of Palmer in Marquette County.Cleveland-Cliffs, which also operates the nearby Tilden Mine, employs approximately 2,200 persons, making it the area's largest civilian employer.

The Empire Mine was originally dug in the 1870s, then expanded in the 1960s.A second pit was added in 1987, and a third in 1990-91.²The mine engages in blasting operations approximately three times a week, year round, and the extraction and processing of the iron ore generates a great deal of airborne dust.Plaintiffs complain that the blasting sends tremors through their property and that defendants' dust constantly accumulates inside and outside plaintiffs' homes.Plaintiffs assert that these emanations aggravate their need to clean and repaint their homes, replace carpets and drapes, repair cracks in all masonry, replace windows, and tend to cause plumbing leaks and broken sewer pipes.

According to the testimony, the dust from the mine is fine, gritty, oily, and difficult to clean.Some plaintiffs complained that they seldom opened their windows because of the dust, and virtually every plaintiff complained that the snow in Palmer tended to be gray or black.Evidence presented at trial indicates that the emissions from the mining operations have consistently remained within applicable air-quality standards and that the amount of particulate matter accumulating over Palmer each month amounts to less than the thickness of a sheet of paper, but that this amount is nonetheless four times greater than what normally settles onto surrounding communities.

In addition to concerns about the dust, many plaintiffs testified that the noise and vibrations from the blasts caused them to suffer shock, nervousness, and sleeplessness.Finally, several plaintiffs asserted that these conditions diminished the value of their homes, in some cases to the point of rendering them unmarketable.

At the close of proofs, the trial court instructed the jury concerning both trespass and nuisance.The jury found that three of the plaintiffs were not entitled to recover under either theory.Concerning the remaining fifty-two plaintiffs, however, the jury was unable to agree on a verdict regarding the nuisance claim, but returned a verdict in favor of these plaintiffs with regard to the trespass claim, awarding damages totaling $599,199.The court denied defendants' posttrial motions for a new trial or judgment notwithstanding the verdict.

The sole issue that defendants raise on appeal is the propriety of the trial court's jury instruction concerning plaintiffs' trespass claim:

Every unauthorized intrusion onto the lands of another is a trespass upon those lands, and it gives rise to a right to recover damages for the trespass, if any damages were caused by the trespass.So a landowner who causes emissions, dust, vibration, noise from his property onto another [sic] property assumes the risk of trespass, if the dust, vibration, noise affects the neighbor's property, or if he causes by his actions, damages or invasion of his neighbor's land.

So again, to repeat.A trespass is an unauthorized intrusion into the lands of another.

Defendants did not object on the record that the trial court's instruction improperly recognized a cause of action in trespass where the intrusion complained of consisted of airborne particulate, noise, or vibrations, nor did they initially frame their issue on appeal that way.Nonetheless, in the interests of justice,³ and because the issue concerns a question of law and all the facts necessary for its resolution have been presented,⁴we will examine the related doctrines of trespass and nuisance and will determine how they bear on the intrusions at issue in this case.SeeFrericks v. Highland Twp.,228 Mich.App. 575, 586, 579 N.W.2d 441(1998)("this Court may go beyond the issues raised on appeal and address issues that, in this Court's opinion, justice requires be considered and resolved").⁵

II.Trespass and Nuisance

The general concept of "property" comprises various rights— a "bundle of sticks," as it is often called⁶— which is usually understood to include "[t]he exclusive right of possessing, enjoying, and disposing of a thing."Black's Law Dictionary (6th ed., 1990), p. 1216.As this latter characterization suggests, the right to exclude others from one's land and the right to quiet enjoyment of one's land have customarily been regarded as separate sticks in the bundle.E.g., Lucas v. South Carolina Coastal Council,505 U.S. 1003, 1044, 112 S.Ct. 2886, 120 L.Ed.2d 798(1992)(Blackmun, J., dissenting)(addressing as separate "attributes of ownership" the rights of exclusion, alienation, and enjoyment);Biggs v. Comm'r of Internal Revenue,632 F.2d 1171, 1177(C.A.5, 1980)("`title to real property ... is nothing more than a bundle of potential causes of action: for trespass, to quiet title, for interference with quiet enjoyment, and so on,'" quoting Starker v. United States,602 F.2d 1341, 1355[C.A.9, 1979]); Livingston, Public Access to Virginia's Tidelands: A Framework for Analysis of Implied Dedications and Public Prescriptive Rights, 24 Wm & Mary L R 669, 698 (1983)("The notion of fee simple ownership carries with it the idea that the owner may exclude all others from his property, shall have the quiet enjoyment of it, and shall be free from unrecorded conflicting interests in it."), citing Cribbet, Principles of the Law of Property (2d ed., 1975), pp. 263-332.⁷Thus, possessory rights to real property include as distinct interests the right to exclude and the right to enjoy, violations of which give rise to the distinct causes of action respectively of trespass and nuisance.Prosser & Keeton, Torts (5thed.),§ 87, p. 622.

A.Historical Overview

"At common law, trespass was a form of action brought to recover damages for any injury to one's person or property or relationship with another."Black's Law Dictionary (6th ed.), p. 1502.This broad usage of the term "trespass" then gave way to a narrower usage, referring to intrusions upon a person's "tangible property, real or personal."Prosser & Keeton, supra at § 13, p. 67.Today, the general concept of "trespass" has been refined into several specific forms of trespass, seeBlack's Law Dictionary (6th ed.), pp. 1502-1504, and related doctrines known by various names.Landowners seeking damages or equitable relief in response to violations of their possessory rights to land now generally proceed under the common-law derivatives of strict liability, negligence, nuisance, or trespass to land.⁸It is the latter two products of this evolution from the general concept of trespass that are at issue in the present case.

"`[T]respass is an invasion of the plaintiff's interest in the exclusive possession of his land, while nuisance is an interference with his use and enjoyment of it.' "Hadfield v. Oakland Co. Drain Comm'r,430 Mich. 139, 151, 422 N.W.2d 205(1988)(Brickley, J., joined by Riley, C.J., and Cavanagh, J.), quotingProsser & Keeton, supra at § 87, p. 622.Historically, "[e]very unauthorized intrusion upon the private premises of another is a trespass...."Giddings v. Rogalewski,192 Mich. 319, 326, 158 N.W. 951(1916).Because a trespass violated a landholder's right to exclude others from the premises, the landholder could recover at least nominal damages even in the absence of proof of any other injury.Id.Recovery for nuisance, however, traditionally required proof of actual and substantial injury.⁹Further, the doctrine of nuisance customarily called for balancing the disturbance complained of against the social utility of its cause.¹⁰

Traditionally, trespass required that the invasion of the land be direct or immediate and in the form of a physical, tangible object.See, e.g., Williams v. Oeder,103 Ohio App.3d 333, 338, n. 2, 659 N.E.2d...