Peterman v. State Dept. of Natural Resources

• Court: Michigan Supreme Court
• Writing for the Court: RILEY; BOYLE; CAVANAGH; GRIFFIN
• Citation: Peterman v. State Dept. of Natural Resources, 521 N.W.2d 499, 446 Mich. 177 (Mich. 1994)
• Decision Date: 01 March 1994
• Docket Number: No. 2,No. 95972,95972,2
• Parties: Robert L. PETERMAN and Gail O. Peterman, Plaintiffs-Appellants, v. STATE of Michigan, DEPARTMENT OF NATURAL RESOURCES, Defendant-Appellee. Calendar,

Page 499

521 N.W.2d 499

446 Mich. 177

Robert L. PETERMAN and Gail O. Peterman, Plaintiffs-Appellants, v. STATE of Michigan, DEPARTMENT OF NATURAL RESOURCES Defendant-Appellee.

No. 95972.

Calendar No. 2, March Term, 1994.

Supreme Court of Michigan.

Argued March 8, 1994.

Decided Aug. 23, 1994.

[446 Mich. 179] Philip A. Clancey, Philip A. Clancey & Associates, P.C., Thomas J. Dignan, Traverse City, for plaintiffs-appellants.

Frank J. Kelley, Atty. Gen., Thomas L. [446 Mich. 180] Casey, Sol. Gen., Counsel of Record, A. Michael Leffler, Asst. in Charge, Gary L. Hicks, Asst. Atty. Gen., Dept. of Atty. Gen., Natural Resources Div., Lansing, for defendant-appellee.

OPINION

RILEY, Judge.

In the instant case, we are presented with the scope of the constitutional guarantee that property shall not be taken by the state for public purposes without due process and just compensation. More specifically, we must determine whether the Department of Natural Resources must compensate property owners for the destruction of beachfront property caused by the filtration of sand from the water because of the construction of a boat launch. We hold that while compensation is usually not necessary for the erosion of beach under the high-water mark caused by navigational improvements by the state, compensation is due for the destruction of plaintiffs' fast lands. Moreover, because defendant's unscientific construction of the boat launch unnecessarily caused the destruction of plaintiffs' beach, compensation must be awarded for the loss of the beach. Furthermore, we are presented with the scope of the trespass-nuisance exception to sovereign immunity. We hold that the filtration of sand from a bay that leads to the erosion of fast land does not fall within the exception. Hence, we reverse the judgment of the Court of Appeals in part and reinstate the damages awarded by the trial court.

I

In 1979, plaintiffs Robert and Gail Peterman purchased a parcel of lakefront property on the Old Mission Peninsula. ¹ By early 1980, they had constructed a house on the property. An attractive feature of the property was its fifteen to twenty-foot-wide sandy beachfront. Despite plaintiffs' protests, during the spring and summer of 1980, defendant Michigan Department of Natural Resources constructed a boat-launch ramp on its property approximately thirty feet north of plaintiffs' property. ² To prevent the buildup of sand on the launch, facilitate boat launching, reduce ice damage to the ramp, and dissipate energy from waves, defendant installed jetties extending thirty feet into the bay on both sides of the ramp. ³

The jetties apparently worked so well that by August of the next year plaintiffs' beach had virtually disappeared. By October, plaintiffs had lost not only the beach, but a large tree, grass, and other fast land. ⁴ Meanwhile, the jetties accumulated hundreds of cubic yards of sand. Despite defendant's consistent removal of the sand collected on the jetties, defendant refused to replenish plaintiffs' shoreline. Plaintiffs eventually built a sea wall to prevent further erosion of their property.

Meanwhile, plaintiffs filed suit in the Court of Claims in October 1981. Plaintiffs' amended complaint alleged intentional trespass, intentional damage, intentional interference with use of their property, nuisance and a taking without just compensation. ⁵ Following a bench trial, the court found that defendant's jetties proximately caused the erosion of the shoreline by diverting sand from its natural path in the littoral drift by collecting it on the jetties. The court found that the north to south littoral drift, i.e., the natural flow of water and sand, would have replenished plaintiffs' shoreline absent the construction of the jetties and that the deprivation of the sand led to the property's erosion. The court also found that defendant's unscientific construction and design of the launch contributed to the loss of the property. ⁶ The court awarded $35,000 in damages, finding that amount to be the loss of the property's value due to the shoreline's erosion.

The Court of Appeals reversed, ⁷ finding that because the "sand was diverted from plaintiffs' land," the "facts do not constitute a 'trespass-nuisance.' " The Court held that the trial court failed to decide whether there was a taking and that the issue, therefore, was not preserved for appeal.

This Court granted leave to appeal. ⁸

II

The Court of Appeals held that because the trial court failed to rule whether plaintiffs' property was unconstitutionally taken, the issue was not preserved for appellate review. Yet, the trial court awarded damages on the basis of the lost value of plaintiffs' land, which is the appropriate award for a taking action. While not labeling the cause of action specifically, the court appeared to have ruled on the claim.

In any event, assuming, arguendo, that the trial court failed to rule on the issue, plaintiffs should not be punished for the omission of the trial court. The Court of Appeals cited Joe Dwyer, Inc. v. Jaguar Cars, Inc., 167 Mich.App. 672, 685, 423 N.W.2d 311 (1988), for the proposition that issues undecided by the trial court are not preserved for appeal. Yet, Dwyer involved a case in which the plaintiff failed to properly raise before the trial court the issue contested on appeal. Thus, Dwyer simply reiterates the time-honored rule that, absent unusual circumstances, issues not raised at trial may not be raised on appeal. See, e.g., Franklin Mining Co. v. Harris, 24 Mich. 115, 117 (1871); In re Forfeiture of Certain Personal Property, 441 Mich. 77, 84, 490 N.W.2d 322 (1992).

In the instant case, plaintiffs raised the issue below and pursued it on appeal. Thus, the issue is appropriately before this Court. Because of the interrelated nature of plaintiffs' claims, the trial judge appeared to merge the two causes of action. The Court of Appeals could have addressed this problem by remanding the case for a separation of the actions or examining the actions separately itself. In the interest of judicial economy, ⁹ we address the major issues presented.

III

A

Plaintiffs allege that defendant's actions constitute an unconstitutional taking of property without due process of law and without just compensation. Const. 1963, art. 10, § 2 provides: "Private property shall not be taken for public use without just compensation therefor being first made or secured in a manner prescribed by law." ¹⁰ In other words, "it can never be lawful to compel any man to give up his property, when it is not needed, or to lose it, whether needed or not, without being made whole." Paul v. Detroit, 32 Mich. 108, 119 (1875).

The primary source for ascertaining the meaning of a constitutional provision is to determine its plain meaning as understood by its ratifiers at the time of its adoption. Kearney v. Bd. of State Auditors, 189 Mich. 666, 671, 155 N.W. 510 (1915). ¹¹ This is so because "[t]he constitution, although drawn up by a convention, derives no vitality from its framers, but depends for its force entirely upon the popular vote." People v. Blodgett, 13 Mich. 127, 141 (1865) (Campbell, J.).

Nevertheless, "to clarify meaning, the circumstances surrounding the adoption of a constitutional provision and the purpose sought to be accomplished may be considered." Traverse City School Dist. v. Attorney General, 384 Mich. 390, 405, 185 N.W.2d 9 (1971), citing Cooley, Constitutional Limitations (6th ed), p. 81. This Court cannot properly protect the mandate of the people without examining both the origin and purpose of a constitutional provision, because provisions stripped of their context may be manipulated and distorted into unintended meanings. Lockwood v. Comm'r of Revenue, 357 Mich. 517, 557, 98 N.W.2d 753 (1959). Indeed, we must heed the intentions of the ratifiers because our constitution gains its authority from its ratification by the people--to do otherwise deprives them of the right to govern. See, e.g., Carman v. Secretary of State, 384 Mich. 443, 452, 185 N.W.2d 1 (1971). ¹²

B

"[E]ach State by virtue of its statehood has the right to exercise the power of eminent domain." Loomis v. Hartz, 165 Mich. 662, 665, 131 N.W. 85 (1911). Justice Cooley explained the origin of this power:

The eminent domain may be said to be the rightful authority which exists in every sovereignty, to control and regulate those rights of a public nature which pertain to its citizens in common, and to appropriate and control individual property for the public benefit, as the public safety, necessity, convenience and welfare may demand. The authority springs from no contract or arrangement between the government and the citizen whose property may be appropriated, but it has its foundation in the imperative law of necessity, and is recognized, and may be defended and enforced, upon the ground that no government could perpetuate its existence and further the prosperity of its people, if the means for the exercise of any of its sovereign powers might be withheld at the option of individuals. [People ex rel. Trombley v. Humphrey, 23 Mich. 471, 474 (1871).] ¹³

From its very existence as a territory, Michigan has recognized that while exercising the power of eminent domain, the state may not deprive an individual "of his property without due process of law, and without compensation." Stock v. Jefferson Twp., 114 Mich. 357, 362, 72 N.W. 132 (1897). The provision, therefore, is one that has "acquired a well-understood meaning, which the people must be supposed to have had in view in adopting them. We cannot understand these provisions unless we understand their history; and when we find them expressed in technical words, and words of art, we must suppose these words to be employed in their technical sense." 1 Cooley, Constitutional Limitations (8th ed.), p. 132.

As Justice Cooley explained, the purpose and history undergirding the provision ¹⁴ inherently limits the power...