Spiek v. Department of Transp.

• Decision Date: 08 August 1995
• Docket Number: Docket No. 151606
• Citation: 212 Mich.App. 565,538 N.W.2d 74
• Parties: Ronald S. SPIEK and Peggy J. Spiek, Plaintiffs-Appellants, v. DEPARTMENT OF TRANSPORTATION, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 74

538 N.W.2d 74

212 Mich.App. 565

Ronald S. SPIEK and Peggy J. Spiek, Plaintiffs-Appellants, v. DEPARTMENT OF TRANSPORTATION, Defendant-Appellee.

Docket No. 151606.

Court of Appeals of Michigan.

Submitted May 10, 1995, at Detroit.

Decided Aug. 8, 1995, at 9:20 a.m.

Released for Publication Oct. 10, 1995.

John J. Giannini, Detroit, for plaintiffs.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, and Patrick F. Isom and Thomas P. Scallen, Assistant Attorneys General, for defendant.

Before HOOD, P.J., and SAWYER and GRANT, ^* JJ.

PER CURIAM.

Plaintiffs appeal from an order of the Court of Claims granting summary disposition in favor of defendant of plaintiffs' inverse condemnation claim. We reverse.

Plaintiffs are the owners of real property located in the City of Warren near a portion of the I-696 expressway. Plaintiffs allege that the construction of the highway near their home has diminished the value of their property due to increased noise, pollution, dirt, and vibration. Plaintiffs' complaint also alleges that their property is particularly burdened from the expressway by the location of a service drive immediately adjacent to the front of the residence, creating an additional burden on the property. The trial court dismissed plaintiffs' claim for compensation, although it noted that there wasn't "any question that these people have suffered an intrusion," and concluded that the highway was "built for the common good" and that plaintiffs should be denied compensation as a matter of public policy. We disagree with the trial court's analysis.

It has long been recognized that a diminution in the value of property where there is no direct invasion of the property does not result in a taking that requires compensation. See Richards v. Washington Terminal Co., 233 U.S. 546, 554-558, 34 S.Ct. 654, 657-659, 58 L.Ed. 1088 (1914). However, that principle is founded upon necessity and is limited accordingly, and compensation will be due where the burden to the property goes beyond the incidental injuries that would normally be attendant and shared generally by the property owners whose lands lie within the range of inconveniences. Id.

In Richards, the Court addressed the construction of a railroad, distinguishing between the inconveniences normally attendant to property located near a railroad track and those located by a railroad tunnel, which posed additional, peculiar burdens. Similarly, this Court concluded that compensation could be due to property owners in the neighborhood of an airport where the air traffic caused unbearable noise and property damage to nearby land. See Standen v. Alpena Co., 22 Mich.App. 416, 177 N.W.2d 657 (1970).

In addition to trains and planes, the automobile has been considered by our Supreme Court, which concluded that compensation was due a property owner where his property was burdened by a change in incline on a road passing by his farmland. Thom v. State Hwy Comm'r, 376 Mich. 608, 138 N.W.2d 322 (1965). The following observation of the lead opinion in Thom is particularly noteworthy:

While we might well agree that society's interests are paramount to the individual's insofar as the latter may not, for his own convenience, prohibit a grade change, we do not agree with the Grigg Hanna [Lumber & Box Co. v. State Hwy Comm'r, 294 Mich. 346, 293 N.W. 675 (1940) ] Court's ruling that society may justly benefit itself at the expense of an individual by failing to compensate him for damage done to him in order to procure society's benefit. As Mr. Justice Potter, who wrote for the Court in the first Grigg Hanna Case, said in his earlier concurring opinion in...