Eyde v. State, Docket No. 30438

• Court: Court of Appeal of Michigan (US)
• Writing for the Court: V. J. BRENNAN
• Citation: 267 N.W.2d 442,82 Mich.App. 531
• Parties: Patrick EYDE and Michael Eyde, Plaintiffs-Appellees, and Pearl M. Mowrer, Intervening Plaintiff, v. STATE of Michigan and the Charter Township of Delta, Defendants-Appellants, and United States Environmental Protection Agency, Defendant. 82 Mich.App. 531, 267 N.W.2d 442
• Decision Date: 17 April 1978
• Docket Number: Docket No. 30438

Page 442

267 N.W.2d 442 Patrick EYDE and Michael Eyde, Plaintiffs-Appellees,
and
Pearl M. Mowrer, Intervening Plaintiff,
v.
STATE of Michigan and the Charter Township of Delta,
Defendants-Appellants,
and
United States Environmental Protection Agency, Defendant. Docket No. 30438. 82 Mich.App. 531, 267 N.W.2d 442 Court of Appeals of Michigan. April 17, 1978.
Released for Publication July 10, 1978.

Page 444

[82 MICHAPP 533] Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Charles D. Hackney, Asst. Atty. Gen., Abood & Abood by William Reheaume, Lansing, for defendants-appellants.

Sinas, Dramis, Brake, Turner, Boughton & McIntyre by Lester N. Turner, Lansing, for plaintiffs-appellees.

Before QUINN, P. J., and V. J. BRENNAN and BOSMAN, ^* JJ.

V. J. BRENNAN, Judge.

Defendants State of Michigan and Charter Township of Delta appeal from the interlocutory order of Ingham Circuit Judge Thomas L. Brown on September 21, 1976, requiring them to proceed with reforestation of plaintiff's property pursuant to an original sewage facility condemnation proceeding begun in 1970. Defendants appeal by leave granted November 1, 1976, including provision for immediate consideration and stay of trial proceedings. A brief summary of the lengthy history of this case is necessary to clarify our resolution of this appeal.

On February 11, 1970, Delta Township filed a [82 MICHAPP 534] complaint in Eaton County Circuit Court to condemn an easement against the Eyde property and that of Pearl Myers Horst. The easement was necessary to install a thirty-inch pipe to provide sewage disposal facilities for the State's secondary office complex located west of the City of Lansing in Windsor Township of Eaton County. A further purpose was to use the Carrier Creek interceptor extension as a principal sewage disposal system for future development of Delta Township.

A condemnation jury awarded the property owners $6,000. On appeal, we affirmed with Judge Targonski dissenting. Delta Township v. Eyde, 40 Mich.App. 485, 198 N.W.2d 918 (1972). The Michigan Supreme Court reversed us and adopted the dissenting view that the easement was limited to 50 feet, not 50 feet "and sufficient area for construction". Delta Township v. Eyde, 389 Mich. 549, 555-556, 208 N.W.2d 168 (1973). However, being persuaded that the $6,000 was intended to compensate for only the 50-foot easement, the Court found no need for a new trial. The cause was thus remanded to the circuit court for amendment of the judgment in conformity with the jury award by deleting the words "and sufficient area for construction".

On December 13, 1973, the present action was started as an equity suit in Ingham County Circuit Court, seeking to enjoin the construction of the sewer as violative of the Environmental Protection Act of 1970, effective October 1, 1970. M.C.L.A. § 691.1201 et seq.; M.S.A. § 14.528(201) et seq.

On April 30, 1974, Ingham County Circuit Judge Thomas L. Brown entered a final order (judgment) pursuant to an order of the Supreme Court on April 2, 1974, issued in response to a motion by defendants, in holding that the matters presented were

Page 445

not the same as presented in the condemnation[82 MICHAPP 535] action and so not precluded by the principle of res judicata. Judge Brown also found that the sewer "threatened ecological damage to the Carrier Creek as it crosses the property owned by plaintiff Eydes, (and) additional damage down stream in the Carrier Creek to the Grand River into Lake Michigan". The judgment permanently enjoined defendant Township and the State of Michigan from using the easement acquired in the condemnation action and provided that plaintiff Eyde would furnish a legally described alternate 50-foot easement for consideration. Were plaintiff unable to furnish such alternate easement, then a second legally described alternative would be necessary. Provision was included for appointment of a master were defendants to use "that portion of the present easement across plaintiffs' land from manhole 12 North". ¹

On appeal, we reversed Judge Brown's ruling by opinion of this Court dated July 26, 1974 (memorandum opinion, Docket No. 20210). The Supreme Court reversed our decision in its order of January 21, 1975. Eyde v. State of Michigan, 393 Mich. 453, 225 N.W.2d 1 (1975). The Court there reinstated the order of the Ingham County Circuit Court, giving various reasons for its decision. ²

[82 MICHAPP 536] The questions now before us involve matters which have occurred upon remand from that order to the circuit court. On August 8, 1975, the parties stipulated to an alternative route for the easement, referred to as Alternative C. ³ An amended judgment was entered that same day incorporating this alternative easement route. John Cushing and Ray White were appointed as masters to manage the project. Construction of the sewer than commenced but was delayed because of several legal challenges by Pearl Mowrer, formerly Pearl Myers Horst, both in state and Federal court. On August 29, 1975, plaintiffs obtained a temporary restraining order on the theory that the masters had not yet submitted reports to the court for approval. At the show cause hearing, the question arose whether the

Page 446

masters' authority extended to the [82 MICHAPP 537] entirety of Alternative C. No clear answer emerged at this hearing.

The temporary restraining order was dissolved on September 8, 1975. At a meeting of the masters on October 7, 1975, the court did rule that the masters' jurisdiction included the entire project. Though disputed on appeal, the matter of planting trees equal in number to those removed and whether space would be left for access by vehicles for inspection, maintenance and repair purposes emerged for consideration.

Despite the constant litigation, construction of the sewer was completed on January 12, 1976. At a hearing on September 7, 1976, the court heard testimony concerning two restoration plans. After receiving testimony, the plan submitted by Dr. Stevens was adopted. This plan proposed that the land be restored as closely as possible to its pre-construction condition. Under this plan, access to the easement by vehicles was not discussed. The estimated cost of the plan was $67,000. Dr. Stevens was substituted for Ray White as a master for the project. The court retained jurisdiction.

Delta Township moved for rehearing or clarification due to the failure of the plan to provide for vehicular access to the easement....