Wiggins v. City of Burton

• Decision Date: 08 February 2011
• Docket Number: Docket No. 293023.
• Citation: 805 N.W.2d 517,291 Mich.App. 532
• Parties: WIGGINS v. CITY OF BURTON.
• Court: Court of Appeal of Michigan — District of US

291 Mich.App. 532

805 N.W.2d 517

WIGGINS

v.CITY OF BURTON.

Docket No. 293023.

Court of Appeals of Michigan.

Submitted Nov. 4, 2010, at Detroit.Decided Feb. 8, 2011, at 9:05 a.m.

Fausone Bohn, LLP, Northville, (by Christopher S. Frescoln), for Charles D. and Susan Wiggins.

Plunkett Cooney (by Mary Massaron Ross, Detroit, Audrey J. Forbush, Flint, and Hilary A. Ballentine, Detroit) for the city of Burton.

Raftery, Janeczek & Hoelscher, P.C. (by Jeanne V. Barron, Lathrup Village, and James J. Raftery, Farmington Hills), for William L. and Paula M. Mahler.Michael J. Mangapora, P.C., Flint, (by Rex A. Ziebarth), for Thomas A. and Margaret A. Heckman.

Before: BECKERING, P.J., and JANSEN and TALBOT, JJ.

PER CURIAM.

Plaintiffs Charles D. Wiggins and Susan Wiggins (the Wiggins) appeal by right the circuit court's order denying their motion for summary disposition, granting summary disposition in favor of defendants William L. Mahler and Paula M. Mahler (the Mahlers), granting summary disposition in favor of defendants Thomas A. Heckman and Margaret A. Heckman (the Heckmans), and dismissing all claims against the city of Burton (the City) “without prejudice so that the [Wiggins] and the City ... can follow the procedure ... laid out in MCL 280.75.” The City cross-appeals the same circuit court order. We affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.

I. FACTS AND PROCEDURAL HISTORY

The dispute in this case involves the issue of surface-water drainage on three neighboring parcels of real property located in the City. The Heckmans have lived at 5217 Maple Avenue and the Mahlers have lived at 5245 Maple Avenue for some time. A subdivision known as Maplewood Meadows No. 1 was laid out and platted, apparently in the mid–1990s. Maplewood Meadows No. 1 lies to the east of the Heckman parcel and the Mahler parcel and abuts both parcels along portions of their eastern property lines.

The Wiggins purchased Lot 51 in Maplewood Meadows No. 1, commonly known as 5257 Walnut Drive, on December 19, 2003. A warranty deed executed on December 19, 2003, conveyed Lot 51 to the Wiggins “[s]ubject to all existing building and use restrictions, easements and zoning ordinances, if any.” As shown on the final plat of Maplewood Meadows No. 1, a large section of the Wiggins parcel (more specifically, the west and north sides of Lot 51) is encumbered by a “PRIVATE EASEMENT FOR STORM DETENTION.” ¹ This “storm detention” easement encumbers portions of four other adjoining lots in the subdivision as well. According to the parties, there is no granting instrument creating or relating to the storm-detention easement other than the final plat itself. The Wiggins admit that they were aware of the storm-detention easement encumbering the west and north sides of lot 51 when they purchased the parcel in 2003.

The Heckmans and Mahlers assert that the construction of Maplewood Meadows No. 1 caused significant surface-water drainage problems on their respective parcels. Specifically, the City and the Mahlers contend that before the construction of Maplewood Meadows No. 1, the surface waters historically and naturally ran away from the Heckman and Mahler parcels, and toward the area now encumbered by the storm-detention easement. The City has offered a hydrogeologic contour map to support this contention. The City and the Mahlers contend that the construction of Maplewood Meadows No. 1 reversed this historic flow of surface water, causing the surface waters to begin flowing toward the Heckman and Mahler parcels.

Thomas Heckman apparently lodged several complaints with the City concerning this surface-water drainage problem, dating as far back as June 1995. The minutes of the Burton City Council indicate that Mr. Heckman appeared before the council on several occasions to complain about the “flooding problems on his property.” On May 21, 2007, the Burton City Council voted 5 to 1 to approve the expenditure of $1,750.00 to pay for a “relief drain project at 5245 Maple and 5217 Maple Ave[nue].” The City's plan was to install individual drains on the Heckman and Mahler parcels, and to connect these individual drains to the area of the existing storm-detention easement on the Wiggins parcel by way of a 180–foot drainage pipe.

In May 2007, the Heckmans and Mahlers signed documents with the City acknowledging that the City would construct and install drains on their respective properties and that the drainage project, when completed, would “belong solely to the [Heckmans and Mahlers] and will be the [Heckmans' and Mahlers'] responsibility to maintain/repair.” Subsequently, the City contracted with Doan Enterprises, Inc. to complete the proposed drainage project. In late 2007, Doan Enterprises excavated a ditch, installed drains on the Heckman and Mahler parcels, and laid pipe connecting these drains to the area of the storm-detention easement on the Wiggins property. The practical effect of this drainage project was to carry the accumulated surface waters away from the Heckman and Mahler parcels and to deposit those waters in the Wiggins' backyard.

In March 2008, the Wiggins filed a five-count complaint in the Genesee Circuit Court, setting forth claims entitled “QUIET TITLE” (count 1), “DECLARATORY RELIEF” (count 2), “TRESPASS” (count 3), and “NUISANCE” (count 4) against the City, the Mahlers, the Heckmans, Doan Enterprises, and certain agents of the City.² The Wiggins also set forth a claim of inverse condemnation (count 5) against the City only. The Wiggins sought both money damages and injunctive, declaratory, and equitable relief. Paragraph 35 of the complaint, which captured the essence of the Wiggins' grievances, alleged that the City had

excavated a drainage trench that originated from the Mahler Property and ran in a northerly direction from the Mahler Property in a relatively straight line through the Heckman Property on the eastern edge of the Heckman Property ... and continued the excavation in a northerly direction in a straight line on the Heckman Property along the eastern edge of the Heckman Property proximate to the area where the Heckman Property borders the Wiggins Property for a distance of approximately thirty (30) feet, at which point [the City] then redirected the trench at an approximate 45–degree angle and entered into and upon the Wiggins Property and continued its excavation of the trench, removing sod, turf and soil from the Wiggins Property, and terminated the trench approximately in the middle of the Wiggins' backyard immediately adjacent to their childrens' [sic] swing set.

The Wiggins alleged that neither the City, nor the Heckmans, nor the Mahlers, nor Doan Enterprises, nor any of the City's agents had ever sought permission to enter onto their property, to excavate the ditch, or to lay the drainage pipe. The Wiggins also alleged that

[t]he [e]ffect of the project ... was ... an alteration and diversion of the natural flow of the surface water from the Heckman Property and the Mahler Property, causing an intentionally focused, increased and concentrated flow of the surface water from those properties directly onto the Wiggins Property, causing significant damages thereby.

The Wiggins asserted that none of the defendants had been authorized to enter onto their property, to excavate the ditch, or to lay the drainage pipe in question. The Wiggins alleged that since the City's construction of the drainage system, a substantially increased amount of water had begun to flow onto their property and that a permanent “retention pond” had formed in their backyard.

In count 1, the Wiggins sought an order quieting title to their property. The Wiggins acknowledged the existence of the storm-detention easement that encumbered the west and north sides of their parcel, but emphasized that they remained the fee owners of the property. The Wiggins contended that by constructing the drainage system, the City (and presumably the other named defendants) had asserted property interests adverse to their own. The Wiggins claimed that by asserting such adverse claims, the City and other named defendants had jeopardized and interfered with their interests in the property. The Wiggins asked the circuit court to quiet title in them.

In count 2, the Wiggins sought declaratory relief relating to the rights of the named defendants and the scope and extent of the existing storm-detention easement. The Wiggins requested a declaration that none of the named defendants had possessed any right to enter onto the Wiggins parcel, to excavate the trench on the Wiggins parcel, or to install the drainage pipe in question.

In count 3, the Wiggins alleged that the named defendants had trespassed on their property in two different ways. First, the Wiggins alleged that the City, Doan Enterprises, and the City's agents had physically trespassed on their property to excavate the ditch and install the drainage pipe. The Wiggins contended that the Heckmans and Mahlers had either specifically agreed to, or acquiesced in, this act of trespassing. Second, the Wiggins alleged that the City, the Heckmans, and the Mahlers had committed additional acts of trespass by improperly diverting surface waters onto the Wiggins parcel through the drainage pipe. The Wiggins sought an injunction requiring the removal of the drainage pipe and enjoining the further diversion of surface water onto their property. The Wiggins also sought money damages for the alleged trespasses that had already been committed.

In count 4, the Wiggins alleged that the presence of the drainage pipe and the diversion of surface water onto their property were conditions that unreasonably interfered with their use and enjoyment of the property. They asserted that these conditions constituted a nuisance. The Wiggins sought money damages as well as abatement of the alleged nuisance under MCL 600.2940.

Lastly, in count 5, the Wiggins claimed that the...