McSwain v. Township of Redford

• Decision Date: 31 January 1989
• Docket Number: Docket No. 100932
• Citation: 434 N.W.2d 171,173 Mich.App. 492
• Parties: Marc McSWAIN, Mary McSwain, and Mary McSwain, as Next Friend of Melanie and Dawn McSwain, Plaintiffs-Appellants, v. TOWNSHIP OF REDFORD, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 171

434 N.W.2d 171

173 Mich.App. 492

Marc McSWAIN, Mary McSwain, and Mary McSwain, as Next Friend of Melanie and Dawn McSwain, Plaintiffs-Appellants, v. TOWNSHIP OF REDFORD, Defendant-Appellee.

Docket No. 100932.

Court of Appeals of Michigan.

Submitted Oct. 12, 1988.

Decided Dec. 6, 1988.

Released for Publication Jan. 31, 1989.

Patrick J. McDonald, Livonia, for plaintiffs-appellants.

Cummings, McClorey, Davis & Acho, P.C. by Marcia L. Howe and Janet K. Yarling, Livonia, for defendant-appellee.

Before WEAVER, P.J., and MAHER and SIMON, ^* JJ.

PER CURIAM.

Plaintiffs appeal as of right from the April 30, 1987, order of the Wayne Circuit Court which granted summary disposition to defendant on the basis of governmental immunity. We affirm.

Plaintiffs are owners and occupants of a home located in the Fenton-Midland Subdivision, an area of approximately twenty-five homes in defendant township. They brought suit against defendant in January, 1983, alleging that it had issued building or occupancy permits with knowledge that the soil conditions were unsuitable for the operation of private septic systems (which, at the time, was the only means of sewage disposal available to the subdivision residents). The complaint was divided into two counts: Count one requested the court to issue a writ of mandamus, compelling defendant to install a sanitary sewer system in the area; count two sought monetary damages for defendant's alleged refusal to abate the nuisance created when numerous septic systems in the area failed, causing raw sewage to rise to the surface and collect on plaintiffs' property and surrounding lands.

Plaintiffs' mandamus action was decided by then Wayne Circuit Judge (now Court of Appeals Judge) Joseph B. Sullivan. Judge Sullivan found that the soil was incapable of supporting private septic systems and that there existed an imminent health hazard due to the failing systems. He therefore ordered defendant to clean up the surface sewage and to construct a sanitary sewer system as soon as possible. He also issued a permanent injunction preventing any further development in the area. This apparently qualified the township to receive federal funds for the sewer system's construction. Neither party appealed from the order or the injunction and the sewer system has since been constructed.

On March 18, 1987, defendant filed a motion for summary disposition as to plaintiff's nuisance claim, asserting governmental immunity as a defense. Arguments on the motion were heard by a different judge, Wayne Circuit Judge Henry J. Szymanski, on April 30, 1987.

At the hearing, defendant argued, inter alia, that the decision to install, or not to install, a sanitary sewer system is, by statute, a discretionary one which is entitled to governmental immunity. Further, defendant claimed that the nuisance was a condition created and continued by the landowner, not the township; therefore, the township could not be held liable. Plaintiffs counter-argued that once the septic systems failed, and the public's health was placed in jeopardy, the township had an affirmative statutory obligation to construct a sewer system. Plaintiffs also maintained that defendant had created or continued the nuisance when it issued building/occupancy permits without first ensuring that the county had approved the septic systems and that the soil would support the septic systems.

Judge Szymanski found defendant's argument persuasive and granted the township summary disposition on the basis of governmental immunity. In so doing, Judge Szymanski stated, in pertinent part:

"Much remains to be determined in this area of governmental immunity, but I am absolutely confident that Ross [v. Consumers Power Co. (On Rehearing), 420 Mich 567; 363 NW2d 641 (1984) ] was not intended to simply provide an opportunity for the innovative pleader to turn prior allegations of negligence into existing allegations of public nuisance. And I think we must look with some degree of disapproval on those efforts to convert unsatisfactory situations in the governmental area into the existence of a nuisance.

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"The septic tanks and septic systems were there in being, and were clearly the obligation of the private landowner to maintain and maintain in a proper condition. That they failed in a consecutive order, that is, by the various private landowners, does not impose, therefore, a duty upon the government, on the governmental agency to rush to the assistance of those private landowners under any of the statutes or legislative enactments referred to by the plaintiff.

"I think in failing to assign any culpability Judge Sullivan said as much. He was looking for a solution, he found a solution, but that does not mean that there was any duty on the part of the governmental unit in this case to proceed in such manner that, failing to proceed as the plaintiff would have them do, would create a public a [sic] nuisance such as is described and relied upon by the plaintiff.

"I do not think there was any responsibility on the part of the Township of Redford to act in this instance. Therefore, there being no responsibility, I see no way in which a nuisance was created or maintained by the Township of Redford."

An order granting summary disposition to defendant and dismissing plaintiffs' complaint with prejudice was entered on May 7, 1987.

On appeal, we are first asked to determine the viability and scope of the nuisance per se exception and the intentional nuisance per accidens exception to governmental immunity. We have reviewed the Supreme Court's latest decisions in this area--particularly Hadfield v. Oakland Co. Drain Comm'r., 430 Mich. 139, 422 N.W.2d 205 (1988), and Smith v. Dep't. of Public Health, 428 Mich. 540, 410 N.W.2d 749 (1987), reh. den. 429 Mich. 1207 (1987)--and find one conclusion to be inescapable. The law is not at all clear. Those decisions have been subject to conflicting interpretations by various panels of this Court. Compare Eichhorn v. Lamphere School Dist., 166 Mich.App. 527, 541-544, 421 N.W.2d 230 (1988), lv. pending (construing Smith, supra, the Court held that governmental immunity bars a claim for intentional nuisance against a unit of government), with Bronson v. Oscoda Twp., 165 Mich.App. 431, 435 n. 4, 419 N.W.2d 27 (1988), remanded 430 Mich. 882 (1988) (also construing Smith, supra, the Court held that a claim for intentional nuisance avoids the doctrine of governmental immunity). Compare also Li v. Wong (On Remand), 170 Mich.App. 256, 428 N.W.2d 36 (1988) (construing Hadfield, supra, the Court held that the Supreme Court did not overrule precedent so as to recognize only a trespass-nuisance exception to governmental immunity), with Scott v. Dep't. of Natural Resources, 169 Mich.App. 205, 425 N.W.2d 518 (1988) (also construing Hadfield, supra, the Court held there is no longer a general intentional nuisance exception to governmental immunity; there is now only a limited trespass-nuisance exception). In the instant case, we find it unnecessary to decipher the holdings of Hadfield, supra, and Smith, supra, because, as the trial court found, defendant was also entitled to summary disposition on the ground that it had not created or maintained the nuisance and, therefore, had no responsibility to act in the manner asserted by plaintiffs.

It is well-established that a governmental unit may be liable to a private landowner when, due to improper construction of a sewer or drainage system by the governmental unit, water or sewage is cast onto the property and causes damage. A succinct statement of the law is contained in Seaman v. City of Marshall, 116 Mich. 327, 330, 74 N.W. 484 (1898):

"There is no doubt of the authority of the city to establish a system of drainage for the benefit of the highway and the citizens, and it cannot be said that it must be sufficient for every possible emergency. But the city is required to use due caution, and if, through its negligence in not providing reasonably efficacious means to take care of the water that it should reasonably expect to accumulate by reason of its gutters, a person is injured by the overflow upon his premises of water collected by the sewers, and brought to such premises, and which would not otherwise have invaded them, the city is liable for the damages."

See also Herro v. Chippewa Co. Rd. Comm'rs., 368 Mich. 263, 118 N.W.2d 271 (1962); Defer v. Detroit, 67 Mich. 346, 34 N.W. 680 (1887); Ashley v. Port Huron, 35 Mich. 296, 24 Am Rep 552 (1877); Pennoyer v. City of Saginaw, 8 Mich. 534, 535 (1860). In the instant case, the sewage which flooded plaintiffs' property was not caused by the negligent construction of a sanitary sewer system by defendant, however. Rather, defendant's liability, if any, is premised on its issuance of building/occupancy permits or its failure to construct a sewer system upon learning that several septic systems in the Fenton-Midland Subdivision had failed, discharging sewage onto plaintiffs' property. We find those allegations are too tenuous to impose liability on defendant.

"Liability for damage caused by a nuisance turns upon whether the defendant was in control, either through ownership or otherwise." 58 Am Jur 2d, Nuisances, Sec. 49, p. 616. Generally, though, control over a nuisance must be something more than merely issuing a permit or regulating activity on the property which gives rise to the...