Stidham v. Algonquin Lake Community Ass'n

• Decision Date: 04 May 1984
• Docket Number: Docket No. 71217
• Citation: 348 N.W.2d 46,133 Mich.App. 94
• Parties: Rush STIDHAM, d/b/a Stidham Gravel Company, Plaintiff-Appellant, v. ALGONQUIN LAKE COMMUNITY ASSOCIATION, Defendant-Appellee. 133 Mich.App. 94, 348 N.W.2d 46
• Court: Court of Appeal of Michigan — District of US

Page 46

348 N.W.2d 46

Rush STIDHAM, d/b/a Stidham Gravel Company Plaintiff-Appellant, v. ALGONQUIN LAKE COMMUNITY ASSOCIATION, Defendant-Appellee.

Docket No. 71217.

133 Mich.App. 94, 348 N.W.2d 46

Court of Appeals of Michigan.

Submitted Dec. 14, 1983.

Decided March 21, 1984.

Released for Publication May 4, 1984.

[133 MICHAPP 95] Gregory R. Bosma, Kalamazoo, for plaintiff-appellant.

[133 MICHAPP 96] Siegel, Hudson, Gee, Shaw & Fisher by James H. Fisher, Middleville, for defendant-appellee.

Before HOLBROOK, P.J., and BRONSON and TAHVONEN, ^* JJ.

BRONSON, Judge.

Plaintiff appeals as of right from an order of summary judgment entered for defendant.

Defendant is a non-profit corporation consisting of residents of Algonquin Lake. The level of the water of the lake is controlled by a dam operated by defendant. In 1978, 1979, and 1980, defendant obtained permits from the Michigan Department of Natural Resources ("DNR") for the purpose of lowering the lake. No permit was issued in 1982, but defendant opened the dam to lower the lake on or about November 30, 1982.

Plaintiff runs a gravel business located approximately one-fourth of a mile from Algonquin Lake. He uses 1,000 gallons of water per minute to wash his gravel. The water comes from the subterranean waters under and around Algonquin Lake through plaintiff's well.

When the 1982 lowering began, plaintiff obtained a restraining order preventing a further lowering. Plaintiff filed an amended complaint for damages, alleging that the 1980 lowering caused him to replace his well at a cost of $5,000 and interrupted his business. Plaintiff sought damages for defendant's alleged unreasonable interference with plaintiff's right to use nearby subterranean water. The trial court dismissed plaintiff's complaint for failure to state a claim for which relief can be granted, GCR 1963, 117.2(1).

In Partrich v. Muscat, 84 Mich.App. 724, 729-730, 270 N.W.2d 506 (1978), this Court stated the test [133 MICHAPP 97] employed in reviewing summary judgments under GCR 1963, 117.2(1):

"The standard governing this Court's review of a grant or denial of a motion for summary judgment based on GCR 1963, 117.2(1) is well settled. The motion is to be tested by the pleadings alone. Todd v. Biglow, 51 Mich App 346; 214 NW2d 733 (1974), lv den 391 Mich 816, (1974). The motion tests the legal basis of the complaint, not whether it can be factually supported. Borman's, Inc v Lake State Development Co, 60 Mich App 175; 230 NW2d 363 (1975). The factual allegations of the complaint are taken as true, along with any inferences or conclusions which may fairly be drawn from the facts alleged. Unless the claim is so clearly unenforceable as a matter of law that no factual development can possibly justify a right to recover, the motion under this subrule should be denied. Crowther v Ross Chemical & Manufacturing Co, 42 Mich App 426; 202 NW2d 577 (1972)."

The issue before this Court is whether plaintiff has a cause of action against defendant for injury suffered in 1980 when defendant, with the permission of the DNR, opened a dam under defendant's control. Plaintiff claims that defendant breached its duty to use the lake waters in a reasonable manner, consistent with the rights of nearby subterranean water users when, aware that lake lowerings affected the subterranean water level, defendant nonetheless obtained permits in 1978, 1979, and 1980 to lower the lake level.

Defendant's permit was obtained pursuant to the Inland Lakes and Streams Act of 1972, M.C.L. Sec. 281.951 et seq.; M.S.A. Sec. 11.475(1) et seq. Pursuant to this act the DNR has authority to issue a permit if it finds that the proposed action will not adversely affect the public trust or riparian rights. The statute directs the DNR to "consider the [133 MICHAPP 98] possible effects of the proposed action upon the inland lake or stream and upon waters from which or into which its waters flow and the uses of all such waters, including uses for recreation, fish and wildlife, aesthetics, local government, agriculture, commerce and industry". M.C.L. Sec. 281.957; M.S.A. Sec. 11.475(7). A person aggrieved by any action or inaction of the DNR may request a formal hearing on the matter. M.C.L. Sec. 281.961; M.S.A. Sec. 11.475(11). ¹

The existence of the Inland Lakes and Streams Act does not preclude plaintiff's common law remedies. M.C.L. Sec. 281.957; M.S.A. Sec. 11.475(7) specifically provides that the act "shall not modify the rights and responsibilities of any riparian owner to the use of his riparian water" (emphasis added). Furthermore, the DNR's approval does not ipso facto make defendant's actions reasonable under the circumstances. Pierce v. Riley, 81 Mich.App. 39, 46, 264 N.W.2d 110 (1978). Therefore, if plaintiff's complaint sufficiently set forth a common law cause of action, summary judgment was inappropriate.

Plaintiff correctly asserts that defendant would be liable for injury caused by defendant's unreasonable intentional interference with the subterranean water supply. Maerz v. United States Steel Corp, 116 Mich.App. 710, 719-720, 323 N.W.2d 524 (1982). However, plaintiff does not allege that defendant used or withdrew subterranean waters. Instead, defendant, by opening the dam, merely returned Algonquin Lake to its natural level.

In Goodrich v. McMillan, 217 Mich. 630, 187 N.W. 368 (1922), certain cottage owners on an impounded lake brought suit against the owner of a [133 MICHAPP 99] dam which had fallen into disrepair, allowing the level of the water to recede. The defendant had acquired his flowage rights...