Fox v. Ogemaw County, Docket No. 156257

• Decision Date: 21 February 1995
• Docket Number: Docket No. 156257
• Citation: 528 N.W.2d 210,208 Mich.App. 697
• Parties: Mary K. FOX, Plaintiff-Appellee, and Jack Hoenshell, Joanna Hoenshell, Loneta Percupchik, Lynda Allen, Jon Morell, Julie Morell, James Pike, Mary Lou Pike, Donald Coates, Mark Skowronk, Dawn Skowronk, Blynn Turner, Plaintiffs, v. COUNTY OF OGEMAW and Ogemaw County Drain Commissioner, Defendants-Appellants.
• Court: Court of Appeal of Michigan — District of US

Page 210

528 N.W.2d 210

208 Mich.App. 697

Mary K. FOX, Plaintiff-Appellee and Jack Hoenshell, Joanna Hoenshell, Loneta Percupchik, Lynda Allen, Jon Morell, Julie Morell, James Pike, Mary Lou Pike, Donald Coates, Mark Skowronk Dawn Skowronk, Blynn Turner, Plaintiffs, v. COUNTY OF OGEMAW and Ogemaw County Drain Commissioner Defendants-Appellants.

Docket No. 156257.

Court of Appeals of Michigan.

Submitted Sept. 9, 1994, at Grand Rapids.

Decided Feb. 21, 1995, at 9:45 a.m.

Released for Publication March 21, 1995.

Jensen, Smith & Gilbert, P.C. by Jill K. Smith, Saginaw, for plaintiff.

Richard L. Alger, Jr., Saginaw, for defendants.

Before MacKENZIE, P.J., and RICHARD ALLEN GRIFFIN and TALBOT, ^* JJ.

MacKENZIE, P.J.

Defendants appeal as of right from a judgment that found them liable to plaintiff Mary K. Fox (hereinafter plaintiff) in the amount of $36,950 for creating a nuisance. We reverse.

In order to establish a claim that falls within the nuisance exception to governmental immunity, plaintiff had to prove the existence of a trespass-nuisance or (although a majority of the Supreme Court has yet to decide the question) a nuisance per se. Hadfield v. Oakland Co. Drain Comm'r, 430 Mich. 139, 422 N.W.2d 205 (1988); Li v. Feldt (After Second Remand), 439 Mich. 457, 487 N.W.2d 127 (1992).

Plaintiff's trial testimony established that she was the developer of several lakefront lots on an inland lake known as Flowage Lake. Flowage Lake was an artificial lake created by damming a section of the Rifle River. In 1985, the dam, which was maintained by defendants, gave way, and Flowage Lake was completely drained. Drainage of the lake exposed tree stumps and allowed mosquitoes and flies to breed. As a result of this lawsuit, defendants agreed to rebuild the dam. However, while the lake was drained, the value of plaintiff's lots was diminished. Plaintiff testified that she sold several lots at reduced prices because the lake had been drained.

On these facts, the trial court clearly erred in finding defendants liable for creating a nuisance. The Supreme Court has defined a trespass-nuisance as "a direct trespass upon, or the interference with the use or enjoyment of, land that results from a physical intrusion caused by, or under the control of, a governmental entity." Hadfield, supra, 430 Mich. at p. 145, 422 N.W.2d 205. The loss of the lake water from plaintiff's real estate, by definition, was not an invasion of her property and, therefore, did not constitute a trespass. Peterman v. Dep't of Natural Resources, 446 Mich. 177, 207, 521 N.W.2d 499 (1994). Similarly, the exposure of existing tree stumps was not an invasion of the property and thus not a trespass. Plaintiff argues that the presence of insects constitutes a trespass, citing Trowbridge v. Lansing, 237 Mich. 402, 212 N.W. 73 (1927). However, a close reading of that case confirms that the Supreme Court's most recent characterization of that case was as a case primarily involving the production of pervasive sickening odors. See Peterman, supra, 446 Mich. at p. 206, 521 N.W.2d 499. Here, there was no evidence of such pervasive, sickening odors. Furthermore, we decline to hold that the reversion of the property to its naturally lakeless state, and the consequent restoration of insect habitat, constituted a trespass-nuisance.

Assuming the existence of a nuisance per se exception to governmental immunity, see Li, supra, we also conclude that the trial court's finding of a nuisance was clearly erroneous. A nuisance per se is "an activity or condition which constitutes a nuisance at all times and under all circumstances, without regard to the care with which it is conducted or maintained." Li, supra, 439 Mich. at pp. 476-477, 487 N.W.2d 127 (opinion of Cavanagh, C.J.). "[U]nlike the nuisance in fact, nuisance per se is not predicated on the want of care, but is unreasonable by its very nature." Hadfield, supra, 430 Mich. at p. 208, 422 N.W.2d 205 (opinion of Boyle, J.). The return of plaintiff's property to its natural state, lacking an artificial lake, is not intrinsically "unreasonable," nor does it constitute a condition that is dangerous at all times and under all circumstances.

From a review of the trial transcript, it is apparent that the "nuisance" proven by plaintiff was that, until the dam was repaired and the area once again artificially flooded, her real estate could not be marketed and sold as lakefront property. Because plaintiff failed to establish either a trespass-nuisance or a nuisance per se, the trial court clearly erred in finding defendants liable to her for damages; they were immune from liability under § 7(1) of the governmental tort liability act, M.C.L. § 691.1407(1); M.S.A. § 3.996(107)(1).

Reversed.

TALBOT, J., concurred.

RICHARD ALLEN GRIFFIN, Judge (dissenting).

I respectfully dissent. The lower court did not clearly err in finding a nuisance and in assessing damages against defendants. The condition created as a result of the collapse of the dam unreasonably interfered with plaintiff's use and enjoyment of her property. The damage to plaintiff's property was serious and substantial. Irrespective of how the nuisance is categorized, I would hold that there is no governmental immunity in this instance. In my view, plaintiff has pleaded and proved a nuisance for which she is entitled to compensation by virtue of the "taking" clauses of the Michigan Constitution, Const.1963, art. 10, § 2, and the United States Constitution, U.S. Const., Am. V and Am. XIV.

While I would construe § 7 of the governmental immunity statute, M.C.L. § 691.1407; M.S.A. § 3.996(107), as coextensive with the taking clauses, see Yarrick v. Kent City, 180 Mich.App. 410, 416-422, 447 N.W.2d 803 (1989), vacated 435 Mich. 866, 457 N.W.2d 345 (1990) (Griffin, J., concurring in part and dissenting in part), I recognize that a majority of the Supreme Court has adopted a historical common-law approach in determining exceptions to immunity under § 7 of the statute. Hadfield v. Oakland Co. Drain Comm'r, 430 Mich. 139, 422 N.W.2d 205 (1988); Li v. Feldt (After Second Remand), 439 Mich. 457, 487 N.W.2d 127 (1992). However, neither Hadfield nor Li dealt with immunity exceptions based upon constitutional guarantees.

In In re Urban Renewal, Elmwood Park Project, 376 Mich. 311, 315-316, 136 N.W.2d 896 (1965), the Supreme Court summarized various conditions for which the government has been held liable for damages under the taking clauses:

Appellant concedes that generally the "taking" is construed in its literal sense, that is, after verdict is confirmed, the deed executed and award paid; but contends that there are unusual situations where the action of the city or other governmental body is such as to amount to a taking of private property, even though there is no eminent domain proceeding, and that in such situations compensation is given for the taking when it occurs. He cites Pearsall v Board of Supervisors of Eaton County, ² 74 Mich 558 [42 N.W. 77 (1889) ], a road closing case; Ranson v City of Sault Ste Marie, 143 Mich 661 [107 N.W. 439 (1906) ], a similar case in which the city restricted access to plaintiff's property; Grand Trunk Western Railroad Co v City of Detroit, 326 Mich 387 [40 N.W.2d 195 (1949) ], a case where the city attempted to reduce the value of land by restrictive zoning; and Long v City of Highland Park, 329 Mich 146 [45 N.W.2d 10 (1950) ], a similar zoning case.

2. "The term 'taking' should not be used in an unreasonable or narrow sense. It should not be limited to the absolute conversion of property, and applied to land only; but it should include cases where the value is destroyed by the action of the government, or serious injury is inflicted to the property itself, or exclusion of the owner from its enjoyment, or from any of the appurtenances thereto....

"If the public take any action which becomes necessary to subserve public use, and valuable rights of an individual are thereby interfered with, and damaged or destroyed, he is entitled to the compensation which the Constitution gives therefor, and such damage or destruction must be regarded as a 'taking.' " (p 561.)

Appellee concedes that in cases where property has been flooded because of public construction, the use and enjoyment of land reduced because of ear-rending noise of jet propulsion flights, or where ingress and egress has been made impossible by highway improvements, a taking will be held to have occurred. Cereghino v State Highway Commission, 230 Or 439; 370 P2d 694 [ (1962) ]; Bacon v United States, 295 F2d 936 [ (1961) ]; Johnson v Airport Authority of the City of Omaha, 173 Neb 801; 115 NW2d 426 [ (1962) ].

Later, in Hart v. Detroit, 416 Mich. 488, 500, 331 N.W.2d 438 (1982), the Supreme Court reiterated that a total conversion of property is not necessary for the occurrence of a "taking":

We agree that a "taking" of property may be the end result of serious injury to and diminution in the value of real property. Thom v State Highway Comm'r, 376 Mich 608; 138 NW2d 322 (1965). "Taking" is a term of art with respect to the constitutional right to just compensation and does not necessarily mean the actual and total conversion of the property. Whether a "taking" occurs for which compensation is due depends on the facts and circumstances of each case. Thom, supra ; Heinrich v Detroit, 90 MichApp 692; 282 NW2d 448 (1979).

While in many cases against the government the plaintiff pleads both "nuisance" and an unconstitutional taking, see, e.g., Jones v. East Lansing-Meridian Water & Sewer Authority, 98 Mich.App. 104, 296 N.W.2d 202 (1980), I do not believe that such alternative pleadings necessarily are required, particularly in this instance in which the government's continuation of the nuisance resulted in the partial taking of the plaintiff's property.

The majority concludes that governmental defendants are immune from liability because there was no physical...