People ex rel. MacMullan v. Babcock

• Decision Date: 22 February 1972
• Docket Number: Docket No. 9534,No. 2,2
• Citation: 38 Mich.App. 336,196 N.W.2d 489
• Parties: PEOPLE of the State of Michigan, on relation of Ralph A. MacMULLAN, Director of the Department of Conservation, Plaintiff-Appellee, v. Charles H. BABCOCK and James Babcock, as joint tenants, Defendants-Appellants, and City of Grosse Pointe Woods et al., Intervening Defendants-Appellees. PEOPLE of the State of Michigan, Ralph A. MacMullan, Director of the Department of Conservation, Plaintiff, v. Ralph REGHI and Ruth Reghi, his mother, as joint tenants, Defendants, and various intervening parties
• Court: Court of Appeal of Michigan — District of US

Page 489

196 N.W.2d 489

38 Mich.App. 336

PEOPLE of the State of Michigan, on relation of Ralph A.

MacMULLAN, Director of the Department of

Conservation, Plaintiff-Appellee, v. Charles H. BABCOCK and James Babcock, as joint tenants,

Defendants-Appellants,

and

City of Grosse Pointe Woods et al., Intervening

Defendants-Appellees.

PEOPLE of the State of Michigan, Ralph A. MacMullan, Director of the Department of Conservation, Plaintiff, v. Ralph REGHI and Ruth Reghi, his mother, as joint tenants,

Defendants, and various intervening parties.

Docket No. 9534.

Court of Appeals of Michigan, Division No. 2.

Feb. 22, 1972.

Released for Publication April 24, 1972.

Robert C. Leithauser, Leithauser & Leithauser, Detroit, for defendants-appellants.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Jerome Maslowski, Asst. Atty. Gen., for plaintiff-appellee.

Julius L. Berns, Detroit, for Milk River Drainage District.

John H. Yoe, Detroit, for St. Clair Shores.

Thomas C. Mayer, Detroit, for Harper Woods.

Before McGREGOR, P.J., and BRONSON and TARGONSKI ^*, JJ.

BRONSON, Judge.

Plaintiff filed suit in Ingham County Circuit Court, October 11, 1966, against defendants Babcock, as joint tenants, seeking to enjoin their intended land fill into Lake St. Clair. After a six-day non-jury trial, an opinion was filed February 26, 1970 and judgment was entered on May 8, 1970, granting plaintiff the injunction it sought. Defendants Babcock appeal of right.

At trial, this case was consolidated with the second case, People ex rel. Director of Conservation v. Reghi, in which the state also was granted the injunction it sought. Defendants Reghi do not appeal the determination against them.

In May, 1966, this Court decided that an appeal in a similar case between the same two parties was moot because of a then-recent amendment to the Great Lakes Submerged Lands Act, M.C.L.A. § 322.701 et seq. (Stat.Ann.1967 Rev. § 13.700(1) et seq.) See People ex rel. Director of Conservation, v. Babcock (1966), 3 Mich.App. 403, 142 N.W.2d 514. In deciding the case was moot, this Court affirmed a lower court order dissolving a restraining order which had prevented defendants from filling in the land in question since 1955. That decision was based on the Supreme Court's ruling in Klais v. Danowski (1964), 373 Mich. 262, 129 N.W.2d 414.

Subsequent to this Court's opinion in 1966, defendants Babcock, through their attorney, informed plaintiff that the considered the amendments to the Great Lakes Submerged Lands Act to be unconstitutional and that they would proceed to fill a certain section of Lake St. Clair allegedly owned by them. Plaintiff then filed the instant suit and was granted a temporary restraining order on October 11, 1966. On November 3, 1966, defendants moved to consolidate the instant case with the Reghi case. The grounds for consolidation were that plaintiff's claims in both cases were 'substantially the same' and the defendants' answers in both cases 'raised the same issues of law.' Plaintiff first objected to the said motion, but later withdrew its objections and the cases were consolidated.

On December 6, 1966, the City of St. Clair Shores moved for leave to intervene and filed a cross-complaint in the instant action. It alleged that the proposed land fill would (a) change the city's easterly boundary without its consent, and (b) close off a portion of the bay which was the outlet for the Milk River drain, a combined sewer utilized by the city, thus endangering the health, safety, and welfare of city residents. The motion to intervene was granted. The Milk River Drainage District intervened Only in the Reghi case. ¹

The consolidated cases involved areas of submerged lands contiguous to one another. The instant area is adjacent to Lot 52 of Babcock's Lakeside Subdivision at the southerly boundary of Private Claim No. 599 granted in January, 1810. The area involved in the Reghi case is adjacent to Lot 53 at Assessor's Plat No. 7 along the northerly line of Private Claim No. 624 also granted in January, 1810. At trial both defendants Babcock and defendants Reghi claimed that the adjacent areas submerged under Lake St. Clair were 'upland' at the time of the patent grants and now may be reclaimed by landfills. Defendants further claim that any attempt to control said reclamation attempts would be unconstitutional without a privision for compensation.

The trial judge entered a single judgment against both defendants Babcock and defendants Reghi. The judgment prohibited the defendants from filling in the disputed land as said fills would interfere with and retard the Milk River's flow resulting in a hazard to the public welfare. The trial judge also found that the land sought to be filled was not within Private Claim No. 599 nor within Private Claim No. 624 and that the defendants could not trace their titles in this land to the original patent grants of 1810.

The defendants' first allegation is that the trial court erred in entering a single judgment in this consolidated case. The thrust of their argument is that as a result of this action, the court erroneously entered judgment in the instant case for the Milk River Drainage District, which was not a party in the Babcock suit.

Plaintiff contends that after consolidation the two cases were treated as one and that it can perceive no reason for entering separate judgments. Further, such action would accomplish nothing of any legal substance.

GCR 1963, 505.1 allows a trial judge to consolidate cases 'when actions involving a substantial and controlling common question of law or fact are pending before the court.' This frequently occurs in two situations. First, where several actions are pending between the same parties stating claims which could have been brought in separate counts of a single claim. Second, 'where several actions are * * * tried together but each retains its separate character and requires the entry of a separate judgment.' 2 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed.), Rule 505, p. 364.

The instant case represents the second situation. This case was consolidated with Reghi for the court's convenience in trying the common questions involved in both suits. The comments to the rules make it clear that such a consolidation does not merge the two cases. When a decision is rendered, it is to be rendered separately in each case. The Federal courts have reached the same conclusion as to the Federal rule of consolidation. National Nut Company of California v. Susu Nut Co. (N.D.Ill., 1945), 61 F.Supp. 86, 87.

Plaintiff's argument that no purpose would be served by entering separate judgments ignores the consequences of single judgments; judgments for parties against others not involved in the particular suit. Indeed, that is what happened in this case.

While consolidation is allowed for the obvious administrative savings it brings, it should not be allowed where confusion and prejudice may result. 2B Barron & Holtzoff, Federal Practice & Procedure, Rule 42, § 941, p. 177. When cases are consolidated, they keep their separate identities and parties in one action do not become parties to the other, 2 Honigman & Hawkins, Supra, at 364, and pleadings in one are not pleadings in the other. MacAlister v. Guterma (CA 2, 1958), 263 F.2d 65; National Nut Company of California v. Susu Nut Co., Supra. Where the proofs and arguments are such that it is easy for a judge to lose sight of who the parties in each particular suit are, it is bad practice to grant a consolidation motion. It is obviously prejudicial for a party to find himself saddled with a judgment in favor of another who did not participate in the suit against him. We, therefore, find that the trial judge erred in entering a single judgment in this case and in entering judgment for the Milk River Drainage District against defendants Babcock.

On entry of new judgments, we think it proper for the trial judge to enter judgment for the City of St. Clair Shores against defendants Babcock. St. Clair Shores is partly embraced in the Milk River Drainage District. In its complaint, the city contended that the proposed landfill would interfere with the Milk River Drain.

The only witness called with respect to the drain was called by the drainage district. Dr. Hugo Mendelbaum, on cross-examination by the attorney representing the City of St. Clair Shores, testified that the landfill could interfere with the natural flushing effect caused by the renewal of water passing the channel beside the Babcocks' property, thus rendering pollution problems in the area more probable. This appears to establish legitimate proofs of irreparable harm by a party to the Babcock case. The fact that Dr. Mendelbaum was called by a party to the Reghi case is not important. What is, is that defendants Babcock were put on notice of these contentions and that a party to the suit elicited such proofs. This is entirely consistent with the purpose of judicial economy and convenience in consolidated suits. While separate suits retain their identity, proofs in one stand as proofs in the other as to common questions of fact. Johnson v. Manhattan Railway Co. (1933), 289 U.S. 479, 53 S.Ct. 721, 77 L.Ed. 1331; National Nut Co. of California v. Susu Nut Co., Supra; Armstrong v. Commercial Carriers, Inc. (1954), 341 Mich. 45, 67 N.W.2d 194.

Defendants nevertheless contend that Dr. Mendelbaum's testimony was insufficient to support the trial court's finding that the proposed fill would be a detriment to the health of the communities served by the drain. This argument is posited on the witness's inability to state that the fill would definitely be a health hazard. The witness did state that he could not see how it could be beneficial.

The statement on which defendants rely was the witness's expert opinion as to the ultimate fact to be decided by the trier of fact. Whether the proposed full would be detrimental was a fact for...