Horvath v. Delida

• Decision Date: 29 September 1995
• Docket Number: Docket No. 170077
• Citation: 213 Mich.App. 620,540 N.W.2d 760
• Parties: John J. HORVATH and Lucille Horvath, Plaintiffs-Appellees, v. Donald Lee DELIDA and Susanne Marie Delida, Defendants-Appellants.
• Court: Court of Appeal of Michigan — District of US

Page 760

540 N.W.2d 760

213 Mich.App. 620

John J. HORVATH and Lucille Horvath, Plaintiffs-Appellees, v. Donald Lee DELIDA and Susanne Marie Delida, Defendants-Appellants.

Docket No. 170077.

Court of Appeals of Michigan.

Submitted May 2, 1995, at Grand Rapids.

Decided Sept. 29, 1995, at 9:00 a.m.

Released for Publication Dec. 18, 1995.

Douglas C. Dosson, Roscommon, for plaintiffs.

Read & Sharp by John W. Sharp and Michael J. Swogger, Traverse City, for defendants.

Before DOCTOROFF, C.J., and HOLBROOK, and CORRIGAN, JJ.

HOLBROOK, Judge.

In this alleging negligent dredging case, defendants appeal as of right from an adverse judgment, entered following a jury verdict, that awarded plaintiffs $45,000 as compensation for damage to their property as a result of flooding. We reverse.

I

In 1972, defendants purchased property at the north end of West Twin Lake in Roscommon County, and in 1976, built a home on the property. In 1975, plaintiffs purchased approximately three acres near, but not on, West Twin Lake. Plaintiffs improved their property by building a home, storage barn, garage, woodshed, and two chicken coops, clearing and planting trees, putting in a lawn, and developing two fenced gardens. Defendants' property was north of, and did not abut, plaintiffs' property.

At the time that the parties purchased their respective properties, West Twin Lake was surrounded by a marshy lagoon, fed by underground springs or aquifers. Defendants decided to dredge portions of the marsh area on their property to improve the swimming area and maintain the water level. Defendant Donald Delida applied for a dredging permit from the Department of Natural Resources in 1979 to change and deepen the contour of the lake. After a public hearing, at which plaintiffs attended and objected on the basis of potential flooding, the application was approved and defendants began dredging, removing three to five feet of material from the bottom of the lake.

There is no dispute that the lake's water level rose continuously for several years after the dredging. The parties dispute, however, the cause of the water level's rise. Plaintiffs attribute the rise to defendants' dredging of the lake, while defendants attribute the rise to increased precipitation levels. The parties also dispute the overall amount that the water level rose after the dredging; plaintiffs allege five feet, while defendants allege two feet.

Plaintiffs initially noticed the water level rising in 1983, the year after the dredging occurred. By 1985, a marsh area on their property, which had been dry in 1978, was continuously wet. In 1986, plaintiffs erected a temporary dock in the marsh from two trees that had died as a result of the flooding. In 1987, water flooded one of plaintiffs' fenced gardens, entered their garage, and reached within 125 feet of their house. Between 1988 and 1990, flooding consumed another twenty-five feet of plaintiffs' property, including their other garden, and killed numerous mature trees. Sometime in 1990 or 1991, water entered plaintiffs' house, and in 1992, their well and septic system failed.

Plaintiffs filed this action in July 1992, alleging that defendants negligently dredged by opening underground springs and causing the water level of the lake to rise and flood plaintiffs' property. ¹ Plaintiffs sought damages to compensate them for the value of their property, which they claimed had been permanently and completely destroyed. In their answer to plaintiffs' complaint, defendants denied being negligent and asserted the affirmative defense that plaintiffs' claim was barred by the statute of limitations.

In the midst of plaintiffs' proofs at trial, defendants moved for a directed verdict on the basis that the period of limitation had expired. The trial court denied the motion, adopting plaintiffs' argument that their cause of action was not time-barred because some damage to plaintiffs' property was still occurring within the limitation period. The jury returned a verdict for plaintiffs, awarding damages of $45,000, the stipulated value of plaintiffs' property. Defendants appeal as of right from the judgment entered following the jury's verdict.

II

Defendants assert that the trial court erred in denying their motion for a directed verdict based on the expiration of the period of limitation. We agree and reverse.

A

The statutory period of limitation for injury to property is three years. M.C.L. § 600.5805(8); M.S.A. § 27A.5805(8). The general accrual statute, M.C.L. § 600.5827; M.S.A. § 27A.5827, provides that "the claim accrues at the time the wrong upon which the claim is based was done regardless of the time when damage results." Our Supreme Court has held that an ordinary negligence claim accrues, pursuant to § 5827, on the date that the plaintiff was harmed by the defendant's negligent act, as opposed to the date that the defendant acted negligently. Stephens v. Dixon, 449 Mich. 531, 534-535, 536 N.W.2d 755 (1995); Connelly v. Paul Ruddy's Equipment Repair & Service Co., 388 Mich. 146, 150-151, 200 N.W.2d 70 (1972). The rationale behind the Stephens- Connelly interpretation of the accrual statute is analogous to that behind application of a discovery rule: to prevent a plaintiff's valid cause of action from being barred before an injury has occurred. Stephens, supra; Larson v. Johns-Manville Sales Corp., 427 Mich. 301, 309, 399 N.W.2d 1 (1986). Thus, a plaintiff's cause of action for tortious injury accrues when all the elements of the cause of action have occurred and can be alleged in a proper complaint. Stephens, supra at 539, 536 N.W.2d 755.

We acknowledge that determining the accrual date of a cause of action for property damage as a result of flooding can be difficult. A summary of the general rules, as stated in 78 Am.Jur.2d, Waters, § 367, pp. 799-800, is instructive:

In determining when statutes of limitation commence to run against damage from an overflow of land caused by artificial construction or obstruction, the courts have, in the main, distinguished between (1) permanent, direct, or original injury, and (2) temporary, transient, recurring, continuing, or consequential injuries.

In the case of a permanent, direct, or original injury, the courts are generally agreed that such injury gives rise to but one cause of action, which covers all damages, past, present, and prospective. But the courts do not agree as to whether the limitation period starts to run from the time a construction or obstruction causing overflow is completed or from the time the land is actually harmed by overflow. There is a line of cases which takes the view that, as regards an injury of this kind, the limitation period commences to run when the construction or obstruction is completed. In other cases, however, it has been held that irrespective of the nature of the injury as original or permanent, the limitation period begins to run when the land is actually harmed by an overflow, or when such harm is manifest and discoverable, or is substantial.

Where the injury or wrong is classified by the courts not as original or permanent, but as temporary, transient, recurring, "continuing," or consequential in nature, it has been held that the limitation period starts to run only when the plaintiff's land is actually harmed by overflow, and that for the purpose of the statute of limitations, each injury causes a new cause of action to accrue, at least until the injury becomes permanent.

Michigan, and a majority of jurisdictions, holds that a cause of action for flooding, overflow, or seepage that results in property damage that is permanent as opposed to temporary accrues at the time the land is first visibly damaged. See Strong v. Neidermeier, 230 Mich. 117, 122-123, 202 N.W. 938 (1925). Plaintiffs' inability to know of or measure their ultimate damages did not toll the running of the period of limitation. Stephens supra at 538, 536 N.W.2d 755. As was stated in Connelly, 388 Mich. at 151, 200 N.W.2d 70:

Once all of the elements of an action for personal injury, including the element of damage, are present, the claim accrues and the statute of limitations begins to run. Later damages may result, but they give rise to no new cause of action, nor does the statute of limitations begin to run anew as each item of damage is incurred.

Here, defendants' alleged negligent act occurred in 1982 when they dredged the lake. There was no ongoing conduct of defendants that could be abated to end a continuous tort. Plaintiffs did not suffer any immediate injury from the dredging, but they concede that they first noticed the lake level rising in 1983 and, as early as 1985, their property had suffered damage. Under these facts, we are compelled to conclude that plaintiffs' cause of action for ordinary negligence accrued more than three years before their complaint was filed in 1992. To hold otherwise would undermine the important policies underpinning statutes of limitation, including preventing plaintiffs from sleeping on their rights, yet still providing them with reasonable opportunities to bring suit and providing defendants with fair opportunities to defend. Stephens, supra at 535-536, 536 N.W.2d 755; see also Chase v. Sabin, 445 Mich. 190, 199, 516 N.W.2d 60 (1994). Accordingly, plaintiffs' negligence claim is time-barred.

B

To avert this result, plaintiffs rely on the continuing-wrongful-acts doctrine, arguing that the continuous flooding of their property tolled the running of the limitation period until the time of the most recent wrong. Under the facts of this case, we find no merit to this argument.

Where a defendant's wrongful acts are of a continuing nature, the period of limitation will not run until the wrong is abated; therefore, a separate cause of action can accrue each day that the defendant's tortious conduct continues. See Oakwood Homeowners Ass'n, Inc. v. Ford Motor Co., 77 Mich.App. 197, 220, n. 7, 258 N.W.2d 475 (1977)....