Persell v. Wertz, Docket No. 288858.
| Decision Date | 23 March 2010 |
| Docket Number | Docket No. 288858. |
| Citation | 791 N.W.2d 494,287 Mich.App. 576 |
| Parties | PERSELL v. WERTZ. |
| Court | Court of Appeal of Michigan — District of US |
Willingham & Coté, P.C. (by Curtis R. Hadley), East Lansing, for plaintiffs.
Bodwin & Stover, P.C. (by Randolph L. Bodwin), for defendant.
Before: OWENS, P.J., and SAWYER and O'CONNELL, JJ.
Defendant appeals a judgment of the circuit court entered on a jury verdict in favor of plaintiffs. We affirm in part, reverse in part, vacate the case evaluation sanctions, and remand for further proceedings.
Plaintiffs and defendant are neighbors in Charlotte. They originally had a very amicable relationship. Indeed,that relationship gave rise to an event that ultimately forms part of the instant dispute. Defendant had hired an excavator to dig a pond toward the rear of his property. Plaintiffs apparently found the idea appealing and it was agreed that the excavation would extend across the common property line. As a result, an artificial pond was created, with approximately three-quarters of the pond on defendant's property and the remainder on plaintiffs' property.
But that relationship seems to have deteriorated in recent years and a number of disputes have given rise to the instant litigation, with plaintiffs having filed a six-count complaint against defendant. The first two counts of the complaint alleged common-law and statutory trespass over an incident in June 2006 in which plaintiffs claim that defendant entered upon their property and sprayed an unknown herbicide, resulting in the killing of a large portion of their lawn. The third and fourth counts of the complaint allege statutory trespass and nuisance arising from defendant's, in August 2006, erecting a two-strand wire fence across the pond along the boundary line of the adjoining properties. Count V of the complaint alleged defamation based upon several statements defendant made to third parties regarding plaintiff David Persell. Count VI alleged intentional infliction of emotional distress based upon defendant's conduct regarding the preceding counts. At trial, the jury found in favor of plaintiffs on all counts except for defamation. The herbicide counts resulted in a judgment of $3,000, while the pond fence allegations resulted in a judgment of $2,200. The emotional distress claim resulted in a judgment of $15,000. With the addition of costs, case evaluation sanctions, and prejudgment interest, the total judgment was in the amount of $42,937.76.
Defendant first argues that the trial court erred by failing to dismiss counts III and IV regarding the fencing of the pond. We review this question de novo 1 and agree with defendant that these counts should have been dismissed. Plaintiffs' right to recover under these counts is dependent upon the conclusion that plaintiffs possess riparian rights in the pond giving them the right to use the entire surface of the pond. Unlike the trial court, we believe that it is clear under Michigan law that no riparian rights arise from an artificial body of water. In reaching this decision, we rely on the Supreme Court's decision in Thompson v. Enz. 2
Thompson involved the development of a parcel of land that abutted Gun Lake. The development provided for 144 lots, approximately 16 of which actually abutted the natural shoreline of Gun Lake. The remaining lots would front on canals that would give access to the lake.3 In determining whether these back lots had riparianrights, the Supreme Court made it clear that artificial waterways do not give rise to riparian rights. First, the Court observed the following principles: 4
See also Little v. Kin,5 which adopted Thompson's definition of "riparian land" being land bounded by a natural water course.
While the above alone would make it clear that an artificial pond does not create riparian lands with riparian rights, the Court went on to make the point even clearer: 6
The trial court's error in the case at bar is its reliance on an unpublished decision of this Court in Parsons v. Whittaker,7 which incorrectly distinguished Thompson. That case considered riparian rights arising from an artificial lake created when a gravel pit filled with water. The Court 8 acknowledged that there were no published decisions of a Michigan court regarding whether riparian rights arose in an artificial lake. Indeed, it acknowledged that the common-law rule was that land abutting an artificial watercourse had no riparian rights, citing Thompson for that proposition. But Parsons then distinguished Thompson on the basis that it considered the rights where the artificial watercourse connects to a natural body of water.9 Ultimately, Parsons concluded that the common law did not preclude a determination that artificial bodies of water giverise to riparian rights and that, in any event, the Inland Lakes and Streams Act 10 created riparian rights to an artificial lake at least five acres in size.
While Thompson did deal with an artificial waterway that connected to a natural lake, there is nothing in the opinion to suggest that the Court was relying on any such distinction. Rather, it seems clear to us that Thompson relied on the very broad principle that the common law does not establish riparian rights in artificial bodies of water. Furthermore, we need not determine whether Parsons correctly determined that there are statutory riparian rights because, even if Parsons is correct on this point, it does not apply to the case at bar because the pond at issue is smaller than five acres in size.
For these reasons, we concluded that the trial court erred by its reliance on Parsons and by concluding that plaintiffs could establish that they had riparian rights to use the entire surface of the artificial pond. Because plaintiffs could not establish riparian rights with respect to the artificial pond, the trial court erred by submitting counts III and IV to a jury. Furthermore, we also agree with defendant that this conclusion compels a reversal of the jury verdict on count VI, the claim for intentional infliction of emotional distress. While it is true that the emotional distress claim was based not just on the construction of the fence across the pond and the jury could have found for plaintiffs on this count without regard to the fence across the pond, it is equally true that it is impossible to determine the extent to which the fence may have improperly influenced the jury's determination that defendant inflicted emotional distress or its assessment of damages. Accordingly, while our decision on counts III and IV doesnot compel a judgment for defendant on count VI, it does invalidate the jury's verdict on that count and necessitates a new trial on count VI.
Defendant's remaining argument on appeal is that the trial court erred by denying summary disposition as to counts I and II regarding the herbiciding of plaintiffs' lawn. We disagree. With respect to count I, the common-law trespass claim involving the spraying of herbicide on plaintiffs' lawn, it is true that plaintiffs do not point to any direct evidence establishing that defendant did so on the one occasion alleged in the complaint. But, plaintiff David Persell did testify that he observed defendant spraying herbicide on plaintiffs' side of the pond on a different occasion and that he observed defendant spraying a herbicide on defendant's property about the time in question and that the resulting effect appeared similar to what plaintiffs thereafter observed on their own lawn. We conclude that this did create a factual dispute for the jury to resolve, which it resolved in plaintiffs' favor.11
But we do agree with defendant that count II, seeking treble damages under MCL 600.2919(1)(c) should have been dismissed because that statute is inapplicable to this case. Like summary disposition, questions of statutory interpretation are reviewed de novo.12 The goal of statutory interpretation is to give effect to the legislative intent. 13 In doing so, we examine the language of the statute and where the intent is clearly expressed in the statute, no further construction is necessary.14
MCL 600.2919(1) provides that a person who intentionallydoes one of the following on the...
To continue reading
Request your trial
-
Holton v. Ward
...another way, “it is clear under Michigan law that no riparian rights arise from an artificial body of water.” Persell v. Wertz, 287 Mich.App. 576, 579, 791 N.W.2d 494 (2010). As Justice Kavanagh noted in Thompson, this rule is followed by many of our sister states,9 and ultimately has its o......
-
Artificial Waterways in International Water Law: An American Perspective.
...Virginia, and New Jersey is that 'riparian rights do not ordinarily attach to artificial water bodies or streams."'); Persell v. Wertz, 287 Mich. App. 576, 579-80 ( 2010) ("[A]n artificial pond does not create riparian lands with riparian rights."); Holton v. Ward. 303 Mich. App. 718, 726 (......