Ray v. Mason County Drain Com'r, 17

CourtSupreme Court of Michigan
Citation224 N.W.2d 883,393 Mich. 294
Docket NumberS,No. 17,17
PartiesEdward RAY et al., Plaintiffs-Appellants, v. MASON COUNTY DRAIN COMMISSIONER, Defendant-Appellee. ept. Term. 393 Mich. 294, 224 N.W.2d 883, 7 ERC 1817, 5 Envtl. L. Rep. 20,176
Decision Date21 January 1975

[393 MICH 298] Wheeler, Upham, Bryant & Uhl by Robert H. Gillette, Grand Rapids, for plaintiffs-appellants.

Chester C. Pierce, Hamtramck, for defendant-appellee; Miller, Canfield, Paddock & Stone, Charles L. Burleigh, Jr., Detroit, of counsel.

Roger L. Conner, Grand Rapids, for amici curiae West Michigan Environmental Action Council & University of Michigan Environmental Law Society.

Before the Entire Bench.

WILLIAMS, Justice.

This is a significant case of first impression relating to Michigan's world-famous Environmental Protection Act (EPA). 1 The question involved is the kind of findings of fact required of the trial judge by GCR 1963, 517 and § 3(1) of the EPA in deciding an action brought under the EPA.

In the instant case the trial judge failed to make specific findings of facts. Rather than attempt a review De novo, we remand for full and specific findings of fact under Dauer v. Zabel, 381 Mich. 555, 558, 164 N.W.2d 1 (1969). To assist the trial judge, especially since this is a case of first impression, we set forth considerations and guidelines for proper findings of fact.

In light of the remand order, it is inappropriate to consider the other issues raised on appeal at this time.

[393 MICH 299]


This action was brought by 70% Of the landowners in the Black Creek Watershed in Mason County and by an additional group of six persons who joined the suit solely with regard to the environmental issues. Plaintiffs-appellants seek to enjoin the Mason County Drain Commissioner, defendant-appellee, from proceeding with a channelization program for the watershed and from assessing them for any part of the cost of the project. 2 The Black Creek Watershed

consists of 6,678 acres of relatively flat land, which was once used primarily for agricultural purposes, but in which today only a small number of the parcels are actively farmed

The area contains a biologically unique 'quaking forest,' swamps and potholes, and scattered, wooded areas which serve as a refuge for a wide variety of wildlife.

The existing system of open drains is inadequate to control flooding which occurs in the springtime and which inundates some 100 acres for periods up to three weeks. Apparently, such flooding does not pose health or safety hazards, but does cause some crop damage. In 1960 two farmers requested assistance of the Mason County Soil Conservation District in correcting the drainage problem. The District along with the Drain Commissioner applied for federal funds under 16 U.S.C. § 1001 et seq., a cost-sharing program which makes funds available for flood control.

The Soil Conservation Service, which administers the federal program, reviewed the application [393 MICH 300] and proposed massive modifications and changes in the existing drainage system. The plan, as it ultimately developed, called for widening, deepening, and straightening the present channels. Dredging will result in the accumulation of tons of 'spoils' which will be disposed of by heaping it on the banks of the channel reaching from 24 to 30 feet outward from the channel.

Proceedings were conducted under the Michigan Drain Code of 1956, M.C.L.A. § 280.1 et seq., M.S.A. § 11.1001 et seq. and on July 1, 1965 the Board of Determination of Necessity found that the proposed work plan was unnecessary. However, one year later a second petition was submitted and accepted over the objections of many residents that the cost of the project and the detrimental effect on the environment resulting from the channelization plan should be considered.

In May, 1971 the Drain Commissioner sent out notices that bids would be received on June 17, 1971 and set July 17, 1971 as the date for reviewing individual assessments. Construction began in October, 1971, at a projected cost of $213,990.70, of which $37,000 would be assessed against the individual landowners and consisted initially of preliminary clearing work. Bond issues of $100,000, secured by Mason County, were to go on sale November 18, 1971. On November 17, 1971 the plaintiffs filed suit.

The trial court on August 22, 1972 ruled against the plaintiffs on each of the six counts in the complaint and the Court of Appeals affirmed on July 25, 1973 and we granted leave on December 27, 1973, 391 Mich. 753 (1973). We remand for findings of fact, for without such findings we can in no way consider the merits of this case.

[393 MICH 301]


Count I of plaintiffs' complaint alleged that numerous and substantial forms of environmental degradation would result from the proposed Black Creek Watershed Project. Both sides presented their case on the environmental issues, calling both expert and lay witnesses to testify, as well as introducing many documents, reports and maps into evidence during the trial, which lasted two days.

The trial judge's entire findings of fact on the issues raised and the evidence introduced relating to the environmental questions was restricted to the following language:

'Count I is based upon MCLA 691.1202 (Environmental Protection Act), claiming the proposed project will pollute and destroy the natural resources in the area as well as increase the pollution of the Pere Marquette River and Lake Michigan, downstream from the proposed project. The plaintiffs do not sustain the burden of proof on this issue. In fact, the burden is carried by a great volume of evidence

in favor of the defendants and, therefore, Count I is denied.' (Emphasis added.)

The trial judge's conclusory statement relating to plaintiffs' Count I obviously does not comply with the requirements of GCR 1963, 517.1, which reads in pertinent part:

'In all actions tried upon the facts without a jury or with an advisory jury, the court Shall find the facts specially and state separately its conclusions of law thereon and direct the entry of the appropriate judgment. It will be sufficient if the court makes brief, definite, and pertinent findings and conclusions upon the contested matters without over elaboration of detail [393 MICH 302] or particularization of facts. If an opinion or memorandum decision is filed, it will be sufficient if the findings and conclusions appear therein.' (Emphasis added.)

What is required under GCR 1963, 517 will vary somewhat with the type of case and the nature of the fact questions involved, but at the very least GCR 1963, 517 demands that the court's findings be sufficiently detailed to give an indication of the factual basis for the judge's conclusion. Honigman and Hawkins, respected commentators on Michigan laws of procedure, make the following observations with regard to the requirements of GCR 1963, 517:

'The findings of fact must include as much of the subsidiary facts as is necessary to disclose the steps by which the trial court reached its ultimate conclusion on each factual issue. The findings should be made at a level of specificity which will disclose to the reviewing court the choices made as between competing factual premises at the critical point that controls the ultimate conclusion of fact. That is, at the point where a given choice as to the concrete facts leads inevitably to the ultimate conclusion, the findings should disclose the choice which was made, so that the appellate court may test the validity of its evidentiary support.' 2 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), p. 594.

The trial judge's statement on plaintiffs' Count I merely summarized the plaintiffs' environmental challenges and concluded that the plaintiffs have not met their burden of proof. We are not given any clue as to which facts brought out during the trial led the judge to his ultimate conclusion. Consequently we remand this action to the trial court for more complete and specific findings of facts.

[393 MICH 303] Plaintiffs are correct in asserting that as an alternative to remand this Court could hear the action De novo. However, the more appropriate disposition upon a finding that the trial judge has failed to comply with GCR 1963, 517 is to remand the original record to the trial judge 'for preparation and certification of findings of fact.' Dauer v. Zabel, 381 Mich. 555, 558, 164 N.W.2d 1, 2 (1969).

We would be ill-advised to assume the responsibilities charged to the trial judge. As Chief Justice, then Justice, T. M. Kavanagh, in speaking for the Court, said:

'. . . this Court is not in as good a position as the trial chancellor to determine what the facts are with respect to conflicting testimony. This Court in numerous cases has so indicated. The trial chancellor heard the witnesses, observed their demeanor on the stand, and was in the best position to determine their credibility and to conclude what the facts in the case really were. While this Court tries chancery cases De novo, it gives great weight to the findings of the trier of the facts, particularly where there is conflict in the testimony. This Court should not substitute its judgment for that of the chancellor.' Martin v. Arndt, 356 Mich. 128, 140, 95 N.W.2d 858, 861 (1959).


The necessity for remand stems not only from the failure to comply with GCR 1963, 517; the trial judge's conclusory statement does not measure up to the requirements for findings of fact necessary to insure that the EPA fulfills those goals for which it was enacted.

As mentioned previously, standards for acceptable findings of facts will vary somewhat with the nature of the action and the particular type of facts at issue. In order to properly visualize the type of findings of facts required under the EPA, it [393 MICH 304] is important to first have an overview of the purposes and...

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