Governale v. City of Owosso, Docket No. 18922

• Decision Date: 24 March 1975
• Docket Number: Docket No. 18922,No. 2,2
• Citation: 229 N.W.2d 918,59 Mich.App. 756
• Parties: Joseph G. GOVERNALE et al., Plaintiffs-Appellants, v. CITY OF OWOSSO, a Municipal Corporation, Defendant-Appellee
• Court: Court of Appeal of Michigan — District of US

Page 918

229 N.W.2d 918

59 Mich.App. 756

Joseph G. GOVERNALE et al., Plaintiffs-Appellants, v. CITY OF OWOSSO, a Municipal Corporation, Defendant-Appellee.

Docket No. 18922.

Court of Appeals of Michigan, Division No. 2.

March 24, 1975.

Released for Publication June 11, 1975.

Bruce S. King, Lansing, for plaintiff-appellants.

Gilbert E. Gove, Detroit, for defendant-appellee.

Before BASHARA, P.J., and R. B. BURNS and KELLY, JJ.

KELLY, Judge.

Defendant city authorized by ordinance the acquisition and construction of wells and water transmission lines in the spring of 1968. Defendant sought to run raw water mains from wells located on land it owned in the Township of Caledonia past some land owned by plaintiff fronting on Hintz Road. There were two property owners involved in the court below; the Governales and the Jankejes. Each were the owners of about 600 feet of frontage along Hintz Road and the Jankejes have filed this appeal.

Defendant's engineers, contractors, and apparently its own officers, were under the mistaken impression that Hintz Road was a section-line highway and therefore the right-of-way extended 33 feet on either side of the center line. See M.C.L.A. § 221.20; M.S.A. § 9.21. The city was mistaken. Hintz Road was not a dedicated highway and the county could only permit construction of the water line within the travelled portion of the roadway.

On Thursday, December 12, 1968, having secured a permit from Shiawassee County, the defendant started construction along Hintz outside the travelled portion and on plaintiff's property. On the following day, Friday, plaintiffs launched their objections, informed the workmen that they were encroaching on plaintiff's land, that the work should be stopped and the workmen should leave. This was of course after considerable work had been done. The plaintiffs' objections were heeded and the construction crew departed. Inexplicably the crew returned the following Monday, December 16, 1968, and resumed the work. Once again plaintiffs objected, complained of defendant's trespass and requested the workers to cease and desist and get off plaintiffs' land. These admonitions were effective, the work was rerouted and the crew later installed the pipeline under the traveled portion of Hintz Road.

There is no dispute that a trespass to plaintiffs' realty was occasioned by defendant. Plaintiffs seek review of the trial court's denial of treble damages, its allegedly inadequate compensatory damage award, and its order permitting defendant to reenter the land to remove pipeline installed during the trespass.

The applicable treble damage provision, M.C.L.A. § 600.2919(1); M.S.A. § 27A.2919(1), reads:

'Any person who:

'(a) cuts down or carries off any wood, underwood, trees, or timber or despoils or injures any trees on another's lands, or

'(c) cuts down or carries away any grass, hay, or any kind of grain from another's lands

'without the permission of the owner of the lands * * * without license to do so, is liable to the owner * * * for 3 times the amount of actual damages. If upon the trial of an action under this provision or any other action for trespass on lands it appears that the trespass was casual and involuntary, or that the defendant had probable cause to believe that the land on which the trespass was committed was his own, or that the wood, trees, or timber taken were taken for the purpose of making or repairing any public road or bridge judgment shall be given for the amount of single damages only.'

Construing comparable predecessor statutes, it has been held that treble damages may be recovered for a knowing and intentional trespass. Kelly v. Fine, 354 Mich. 384, 92 N.W.2d 511 (1958), Michigan Land & Iron Co. v. Deer Lake Co., 60 Mich. 143, 27 N.W. 10 (1886). However, a trespasser's good faith and honest belief that he possessed the legal authority to commit the complained-of act are sufficient to avoid treble damage liability. Allison v. Chandler, 11 Mich. 542 (1863). The trial judge concluded that defendant acted in good faith and honestly believed that it had the statutory authority to run the pipeline outside the roadway by mistaken faith in the section line highway statute, M.C.L.A. § 221.20; M.S.A. § 9.21. ¹ With that conclusion we cannot agree. The city obviously could not have had probable cause to believe that the land on which the trespass was committed was its own and therefore the trial judge had to find that the trespass was casual and involuntary in order to limit his award to single damages.

Casual and involuntary is the opposite of deliberate and intentional. The enabling ordinance was passed in April of 1968, the permit from Shiawassee County was obtained on December 12, 1968, the very day of the initial trespass. A permit from Caledonia Township wherein the property is located was not obtained until January 17, 1969. This was long after the trespass in question and long after the city and its contractor had proceeded to work within the township. That the city was careless, we can agree, but casual and involuntary, we cannot. Even if one conceded the first bite on December 12 to be casual, after being run off the job the next day the city should have availed itself of the time remaining on Friday and over the weekend to find out where the section line was located...