Buckeye Union Fire Ins. Co. v. State

• Decision Date: 17 July 1970
• Docket Number: J,No. 13,13
• Citation: 178 N.W.2d 476,383 Mich. 630
• Parties: BUCKEYE UNION FIRE INSURANCE COMPANY, et al., Subrogees of Our Lady of Sorrows, Roman Catholic Church, John F. Dearden, Roman Catholic Archbishop of the Archdiocese of Detroit, et al., Plaintiffs and Appellants, v. STATE of Michigan, Defendant and Appellee. EMPLOYERS MUTUAL FIRE INSURANCE COMPANY, a corporation, Assignee and Subrogee of Margaret C. Gaskin, Plaintiffs and Appellants, v. STATE of Michigan and Joseph A. Childs, Commissioner, Michigan State Police, Defendants and Appellees. an. Term.
• Court: Michigan Supreme Court

Page 476

178 N.W.2d 476

383 Mich. 630

BUCKEYE UNION FIRE INSURANCE COMPANY, et al., Subrogees of

Our Lady of Sorrows, Roman Catholic Church, John F. Dearden,

Roman Catholic Archbishop of the Archdiocese of Detroit, et

al., Plaintiffs and Appellants, v. STATE of Michigan, Defendant and Appellee.

EMPLOYERS MUTUAL FIRE INSURANCE COMPANY, a corporation, Assignee and Subrogee of Margaret C. Gaskin, Plaintiffs and Appellants, v. STATE of Michigan and Joseph A. Childs, Commissioner, Michigan State Police, Defendants and Appellees.

No. 13, Jan. Term.

Supreme Court of Michigan.

July 17, 1970.

Kennth C. Davies, Detroit, for Buckeye Union Fire Ins. Co. and others, plaintiffs and appellants.

Robert B. Tatham, Detroit, for Employers Mut. Fire Ins. Co. and others, Norman L. Zemke, P.C., Detroit, of counsel, for plaintiffs and appellants.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Russell A. Searl, Wallace K. Sagendorph and Jerome Maslowski, Asst. Attys. Gen., Lansing, for defendants.

Before the Entire Bench.

ADAMS, Justice.

FACTS AND PROCEEDINGS

Industrial property in Detroit, known as the Briggs-Meldrum Plant, was bid off at tax sale in May, 1961, to the State of Michigan for unpaid taxes. Title was conveyed to the State by tax deed of the Auditor General dated June 1, 1962. Buildings on the premises caught fire on April 10, 1963. The fire spread to neighboring properties. Plaintiffs paid for losses to such properties and commenced suit in the Court of Claims to recover from the State. That court denied recovery. The Court of Appeals affirmed (13 Mich.App. 498, 164 N.W.2d 699). We granted leave to appeal (381 Mich. 814).

Plaintiffs maintain that, because of the condition of the unoccupied Meldrum Plant which was readily accessible to vandals and trespassers, a fire hazard resulted to neighboring property owners. The condition existed when the State acquired title and continued and, in fact, worsened. It constituted a nuisance to the premises and properties insured by plaintiffs.

The State's defense is:

1. That the facts will not sustain a cause of action upon a theory of nuisance;

2. That since the property was bid in at tax sale in the name of the State, and on the date of the fire was subject to redemption therefrom, the State did not have such title to the property as would impose liability for failure to abate a preexisting hazardous condition of the premises;

3. That the State has sovereign immunity from any such liability.

I. NUISANCE

The trial judge made the following determination:

'The evidence clearly shows that as early as 1958 the building was causing concern to neighbors and to the Fire Prevention Department of the City of Detroit. The building continued to deteriorate up to time of the fire, and there is no question but what the building was a fire hazard when the State bid in the property and continued to be so until the fire occurred. * * *.

'Is a fire hazard a nuisance? An affirmative answer would appear to be obvious, and no argument to the contrary is advanced by the defendants.'

As to the liability of the State, however, the court held:

'This case would appear to be one of failure by the State to abate a nuisance that it did not create. Basically this would involve Negligence on the part of the agents of the State In not abating the nuisance; there being no claim that the State created a nuisance per se. In Royston v. City of Charlotte, 278 Mich. 255, 270 N.W. 288 it was said:

"Acts in the discharge of governmental functions which create a nuisance per se do not come within the immunity otherwise accorded. Want of care in maintenance, however, presents the question of negligence only, and not that of a public nuisance, which must rest on inherent danger even under the best of care.'

'In short, the State of Michigan has sovereign immunity from tort liability by reason of the negligent acts or omissions of its servants or agents, except as that liability has been statutorily modified.' (Emphasis added.)

The Royston case on which the trial judge relied was an action for damages for personal injuries sustained when a swing broke in a city park causing the death of plaintiff's minor decedent. This Court rejected the first of plaintiff's theories of recovery--attractive nuisance--on the ground that trespass is the basic requirement of that doctrine. Plaintiff's second theory was public nuisance. The trial court held the faulty swing to be a public nuisance which made the city liable even though in the performance of a governmental function. In deciding the holding of the trial judge was erroneous, this Court said (p. 260, 270 N.W. at p. 289--290):

'If a municipality performed a governmental function in erecting the swing and 'is not liable for injuries received by negligence of its employees and agents in the maintenance thereof,' it is inconsistent to hold that recovery may be had on the ground that such negligence of the employees or agents of the municipality in the maintenance of the swing constituted the swing a public nuisance. A city can only act through its officers or employees and if there was Negligence in making inspection of the condition of the swing and not discovering the defective condition then there was but negligence in the maintenance and no liability.

'Acts in the discharge of governmental functions which create a nuisance Per se do not come within the immunity otherwise accorded. Want of care in maintenance, however, Presents the question of negligence only, and not that of a public nuisance, which must rest on inherent danger even under the best of care.' (Emphasis added.)

It must be concluded that Royston is not applicable to a case involving a nuisance, this Court having clearly held that the situation in Royston involved negligence only. The term 'nuisance' has come to have significance in the law in a variety of meanings. It is often associated with loud noises or objectionable odors, or with some types of interference with the use and enjoyment of public places (a public highway, public park, or navigable river), or the unlicensed practice of a profession, or condition which endangers the health or safety of the public, or involves an invasion of an interest in the use and enjoyment of land. Such a wide diversification of meaning has led to confusion in determining liability or non-liability. This is especially the case when the element of negligence is injected into a case based upon a claim of nuisance.

In this case, the opinion in the Court of Appeals makes no mention of Royston (13 Mich.App. 498, 164 N.W.2d 699). Nine months later, in Maki v. City of East Tawas (1969), 18 Mich.App. 109, 170 N.W.2d 530, the Court of Appeals said (p. 118, 170 N.W.2d at p. 533):

'Thus, this Court concludes that the Royston Case, supra, insofar as it holds that want of care in maintenance presents a question of negligence only, and not that of a public nuisance, has been overruled indirectly by subsequent cases, Denny, Dahl, Young, supra, and that the plaintiff has stated a cause of action in nuisance even though the allegations relate solely to negligence.' ¹

The Royston, Denny, Dahl and Young cases involved claims for personal injuries and are within that class of cases described as nuisance having its origin in negligence and as to which contributory negligence is a defense. ² Negligence, which is antecedent to and responsible for the nuisance, is not our concern here even though the nuisance in this case may have been created by negligent acts. Plaintiffs' claims are for damage to land caused by the condition or use of defendant's land and the negligence upon which the State bases its defense is Failure to abate the existing nuisance that was upon the land when the State took title.

Since the Court of Claims Judge found there was a nuisance and since we agree with that finding, cases involving what may constitute a nuisance are not examined in this opinion. See, however, Pennoyer v. City of Saginaw (1860), 8 Mich. 534; Whittemore v. Baxter Laundry Co. (1914), 181 Mich. 564, 148 N.W. 437; Birchard v. Lansing Board of Health (1918), 204 Mich. 284, 169 N.W. 901; Burdick v. Stebbins (1930), 250 Mich. 665, 231 N.W. 57; McMorran v. Cleveland-Cliffs Iron Co. (1931), 253 Mich. 65, 234 N.W. 163; Northwest Home Owners Ass'n v. Detroit (1941), 298 Mich. 622, 299 N.W. 740; and Obrecht v. National Gypsum Co. (1960), 361 Mich. 399, 105 N.W.2d 143.

Primarily, nuisance is a condition. Liability is not predicated on tortious conduct through action or inaction on the part of those responsible for the condition. Nuisance may result from want of due care (like a hole in a highway), but may still exist as a dangerous, offensive, or hazardous condition even with the best of care. Bowman v. Humphrey (1906), 132 Iowa 234, 109 N.W. 714.

The State had notice and knowledge of the condition of the Meldrum Avenue Plant after the State acquired title thereto. The State is in no position to claim to the contrary. Any question of notice is covered in the following recitals from the opinion of the Court of Claims:

'The evidence clearly shows that as early as 1958 the building was causing concern to neighbors and to the Fire Prevention Department of the City of Detroit. The building continued to deteriorate up to time of the fire, and there is no question but what the building was a fire hazard when the State bid in the property and continued to be so until the fire occurred.

'By Notice of Violation dated August 16, 1962 the City of Detroit by its Department of Building and Safety Engineering notified the Michigan Department of Conservation that as a result of an inspection of a dangerous factory located at 3100 Meldrum the State was ordered to:

'1. Securely barricade all door and window openings in this open and dangerous building and remove all loose and dangerous sections of corrugated iron and steel frame at west section near loading deck of factory building at 3100...