Stevens v. Creek

• Citation: 121 Mich.App. 503,328 N.W.2d 672
• Decision Date: 24 January 1983
• Docket Number: Docket No. 59458
• Parties: Janet STEVENS, Plaintiff-Appellant, v. Hugh CREEK, Defendant-Appellee. 121 Mich.App. 503, 328 N.W.2d 672, 13 Envtl. L. Rep. 20,418
• Court: Court of Appeal of Michigan (US)

Page 672

328 N.W.2d 672

Janet STEVENS, Plaintiff-Appellant, v. Hugh CREEK, Defendant-Appellee.

Docket No. 59458.

121 Mich.App. 503, 328 N.W.2d 672, 13 Envtl. L. Rep. 20,418

Court of Appeals of Michigan.

Submitted Aug. 5, 1982.

Decided Nov. 18, 1982.

Released for Publication Jan. 24, 1983.

[121 MICHAPP 505] Michael E. Nye, Hillsdale, for plaintiff-appellant.

Fry, Barker & Hayne by James D. Hayne, Hillsdale, for defendant-appellee.

Before DANHOF, C.J., and J.H. GILLIS and KNOBLOCK, ^* JJ.

PER CURIAM.

Plaintiff appeals as of right from the trial court's dismissal of her action under the Michigan Environmental Protection Act (EPA), M.C.L. Sec. 691.1201 et seq.; M.S.A. Sec. 14.528(201) et seq., and from the court's denial of her claim for treble damages pursuant to M.C.L. Sec. 600.2919; M.S.A. Sec. 27A.2919.

Plaintiff is the owner of an approximately 30-acre parcel of property which adjoins the southern boundary of defendant's property. The boundary line between plaintiff's and defendant's property is located in a heavily wooded area.

In December, 1978, plaintiff commenced this action alleging that defendant had trespassed upon her property and cut down and removed timber therefrom. Plaintiff sought an injunction against defendant's continued trespass and requested an award of treble damages for defendant's alleged wilful and voluntary removal of timber from her [121 MICHAPP 506] property, M.C.L. Sec. 600.2919; M.S.A. Sec. 27A.2919. Plaintiff's first amended complaint also sought damages for the diminution of the value of her property due to defendant's entry and removal of timber. Plaintiff's second amended complaint added a third count alleging that defendant's acts constituted a violation of the EPA. Plaintiff requested that her property be restored to its condition prior to the trespass.

Following a bench trial, the court found that a trespass had occurred, granted plaintiff's request for an injunction and awarded plaintiff actual damages in the amount of $120 for defendant's removal of four face cords of wood from plaintiff's property. Plaintiff's claim for treble damages was denied. As to Count III, the court dismissed the claim on the basis that it stated no cause of action, finding that the EPA "does not apply because there was no public trust involved in this matter". Plaintiff appeals.

The first issue is whether the trial court erred in finding that the EPA was not intended to protect natural resources on land in which there is no public trust or public right to user.

Const.1963, art. 4, Sec. 52 provides:

"The conservation and development of the natural resources of the state are hereby declared to be of paramount public concern in the interest of the health, safety and general welfare of the people. The legislature shall provide for the protection of the air, water and other natural resources of the state from pollution, impairment and destruction."

In response, the Legislature enacted the EPA, formally known as the Thomas J. Anderson, Gordon Rockwell Environmental Protection Act of 1970, M.C.L. Sec. 691.1201 et seq.; M.S.A. Sec. 14.528(201) et [121 MICHAPP 507] seq. Section 2 of the act, M.C.L. Sec. 691.1202; M.S.A. Sec. 14.528(202), provides that a party may bring an action for declaratory and equitable relief against any other party "for the protection of the air, water and other natural resources and the public trust therein from pollution, impairment or destruction". Under section 3, M.C.L. Sec. 691.1203; M.S.A. Sec. 14.528(203), the plaintiff, in order to obtain relief, must make a prima facie showing that the defendant's conduct "has, or is likely to pollute, impair or destroy the air, water or other natural resources or the public trust therein". (Emphasis supplied.) Ray v. Mason County Drain Comm'r, 393 Mich. 294, 309, 224 N.W.2d 883 (1975), Whittaker & Gooding Co. v. Scio Twp., 117 Mich.App. 18, 323 N.W.2d 574 (1982).

The language of Sec. 3 is disjunctive; plaintiff may make a prima facie case by establishing existing or probable future pollution, impairment or destruction of natural resources or of the public trust in those resources. We find nothing in the language which would limit the protections in the act to natural resources affecting land in which there is a public trust or a right to public access.

In Kimberly Hills Neighborhood Ass'n v. Dion, 114 Mich.App. 495, 503, 320 N.W.2d 668 (1982), this Court noted that in determining whether a plaintiff has made a prima facie case under the EPA, a dual inquiry must be conducted: (A) whether a natural resource is involved, and (B) whether the impact of the activity on the environment rises to the level of impairment to justify the trial court's injunction. See, West Michigan Environmental Action Council v. Natural Resources Comm., 405 Mich. 741, 760, 275 N.W.2d 538 (1979), cert. den. 444 U.S. 941, 100 S.Ct. 295, 62 L.Ed.2d 307 (1980).

In the case at bar, the testimony established [121 MICHAPP 508] that defendant destroyed trees on plaintiff's property. The removal of trees constitutes destruction of natural resources under the EPA. Eyde v. State of Michigan, 82 Mich.App. 531, 540, 267 N.W.2d 442 (1978), lv. den. 403 Mich. 812 (1978).

As to the second element of the inquiry, plaintiff testified that she maintained the property in question as a wildlife preserve and attempted to perpetuate it in its natural state. Plaintiff brought her claim under the EPA in order to obtain reforestation of the damaged area. Restoration of the natural habitat is a proper remedy under the EPA. See Eyde, supra.

The trial court found that EPA was inapplicable and therefore dismissed plaintiff's claim without permitting her to introduce an environmental impact study and the expert testimony of an ecologist, which could possibly have established a prima facie case under the act. This was error. The case is...