Adkins v. Thomas Solvent Co., Docket No. 102137
| Court | Court of Appeal of Michigan (US) |
| Citation | 459 N.W.2d 22,184 Mich.App. 693 |
| Docket Number | Docket No. 102137 |
| Parties | Cora Bell ADKINS, Individually, and as Next Friend of Kenneth Adkins, and Denver Adkins, et al., Plaintiffs-Appellants, v. THOMAS SOLVENT COMPANY, Thermo Chem, Inc., Richard Thomas, Wesley E. Carter, d/b/a Raymond Road Landfill and d/b/a O.K. Wrecking Company, Hannah's Cement Products, Inc., Thomas Solvent Company Muskegon, TSC Transportation Company, and Thomas Development Company, Defendants-Appellees, and Canadian National Railways Company and Grand Trunk Western Railways Company, Limited, Defendants. 184 Mich.App. 693, 459 N.W.2d 22 |
| Decision Date | 23 August 1990 |
[184 MICHAPP 694] Brown & Transeth by James Burren Brown, Lansing, for plaintiffs-appellants.
Foster, Swift, Collins & Smith, P.C. by John L. Collins, Charles E. Barbieri, and Michael S. Wellman, Lansing, for Thomas Solvent Co., Thermo Chem, Inc., and Richard Thomas.
Bodman, Longley & Dahling by Frederick J. Dindoffer and Jeanne A. Van Egmond, Detroit, for Grand Trunk Western Rys. Co.
Before WEAVER, P.J., and BRENNAN and NEFF, JJ.
Plaintiffs appeal as of right from an order of dismissal pursuant to MCR 2.604 entered by the circuit court, dismissing with prejudice all of plaintiffs' claims for damages due to property depreciation or diminution in value against the Thomas Solvent defendants. We reverse and remand.
Plaintiffs brought this action alleging contamination and pollution of their property and well water as a result of defendants' alleged negligence and improper handling of toxic chemicals and industrial waste at their facilities situated near plaintiffs' residences. Plaintiffs originally alleged claims of negligence, nuisance, trespass, and strict [184 MICHAPP 695] liability. However, after agreeing that no toxic contamination had reached, or would reach, their well water from defendants' properties, plaintiffs stipulated that, except for their nuisance claim, their claims should be dismissed. Plaintiffs claim that, because of defendants' tortious acts in contaminating the ground water, their property values had diminished, notwithstanding the fact that no contaminates had come, or would come, onto their property.
In dismissing plaintiffs' claims for damages based on a nuisance theory, the trial court determined that, because no intrusion of contaminated water had occurred, there could be no quantifiable damages based on a nuisance claim. We disagree.
To recover damages under a private nuisance theory, the plaintiff need not show a physical intrusion onto the land. See, e.g., Whittemore v. Baxter Laundry Co., 181 Mich. 564, 148 N.W. 437 (1914), where our Supreme Court determined that the trial court did not err in finding that the storage of gasoline tanks on premises adjacent to the plaintiff's property constituted a private nuisance.
"[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), citing Prosser & Keeton, Torts (5th ed.), Sec. 87, p. 622.
In discussing the concept of private nuisance, Prosser & Keeton state in pertinent part:
The essence of a private nuisance is an interference with the use and enjoyment of land. The [184 MICHAPP 696] ownership or rightful possession of land necessarily involves the right not only to the unimpaired condition of the property itself, but also to some reasonable comfort and convenience in its occupation....
The different ways and combinations of ways in which the interest in the use or enjoyment of land may be invaded are infinitely variable. A private nuisance may consist of an interference with the physical condition of the land itself.... It may consist of a disturbance of the comfort or convenience of the occupant.... Likewise, it may disturb merely his peace of mind.... A threat of future injury may be a present menace and interference with enjoyment, ... and even though no use is being made of the plaintiff's land at the time, the depreciation in the use value of the property because of such conditions or activities is sufficient present damage upon which an action may be based.... So long as the interference is substantial and unreasonable, and such as would be offensive or inconvenient to the normal person, virtually any disturbance of the enjoyment of the property may amount to a nuisance. [Prosser & Keeton, supra, pp 619-620.]
On the basis of the foregoing, we...
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Adkins v. Thomas Solvent Co., Docket No. 88897
...dismissing plaintiffs' claims merely because the ground water beneath their properties had not been contaminated." 184 Mich.App. 693, 696, 459 N.W.2d 22 (1990). Emphasizing that to recover damages for nuisance, a litigant need not show physical intrusion onto the land, and distinguishing nu......