348303
Mich. Ct. App.Jul 23, 2020Background
- In 2013 Kelly and Brian Kay bought a Highland Township home that shares a common driveway with the neighboring Smiths; the driveway is governed by a 1927 easement allowing parcel owners to alter their portion with majority consent and without changing the connection point.
- In 2004 the Smiths shortened/widened their portion of the driveway with Jeffrey Heyn’s consent and added a drain; plaintiffs did not own the property at that time.
- After heavy rains plaintiffs alleged increased runoff from the Smiths’ driveway into their home, causing water intrusion, mold, and related health issues; plaintiffs moved out to an apartment above their garage.
- Plaintiffs sued the Smiths (and the Heyns) asserting breach of the easement agreement, trespass, nuisance, and assault and battery (the latter arising from a physical confrontation involving a hose, a leaf blower, and a metal pole).
- The Smiths moved for summary disposition under MCR 2.116(C)(10); the trial court denied the motion as to all claims. The Court of Appeals granted leave to appeal the Smiths’ interlocutory appeal and reviewed the denials de novo.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Breach of easement / implied covenant of good faith | Smiths’ 2004 driveway changes increased runoff and breached implied covenant by acting without proper care, causing harm to plaintiffs | Changes complied with easement terms: Heyn (a majority owner) consented; connection point unchanged; Smiths added drainage; no evidence of bad faith | Reversed: summary disposition for Smiths granted as to breach of easement (no bad-faith breach; plaintiffs weren’t owners in 2004) |
| Trespass (excess water) | Smiths materially increased and concentrated surface water onto plaintiffs’ property, constituting trespass | Denies increased flow/claims natural flow or consent; factual dispute on causation and volume | Affirmed denial: genuine factual dispute precluded summary disposition on trespass |
| Nuisance (water runoff) | Runoff constitutes a nuisance interfering with plaintiffs’ property use and health | Water runoff is a tangible physical intrusion and therefore should be treated as trespass, not nuisance | Reversed: nuisance claim dismissed where claim is based solely on physical intrusion (treated as trespass) |
| Assault and battery (physical altercation) | Joseph intentionally sprayed Brian with a hose and Sandra struck Brian with a metal pole | Joseph’s spraying was accidental; Brian was aggressor; Sandra acted in defense of Joseph | Affirmed denial: multiple disputed facts (intent, initial aggressor, self‑defense) preclude summary disposition |
Key Cases Cited
- Spiek v. Dep’t of Transp., 456 Mich. 331 (1998) (de novo review of summary disposition motions and standard for appellate review)
- Maiden v. Rozwood, 461 Mich. 109 (1999) (evidentiary showing required to avoid summary disposition under MCR 2.116(C)(10))
- Wiggins v. City of Burton, 291 Mich. App. 532 (2011) (owner of upper estate may not increase or concentrate surface water onto lower estate; physical water intrusion treated as trespass not nuisance)
- Commercial Union Ins. Co. v. Liberty Mut. Ins. Co., 426 Mich. 127 (1986) (definition of "bad faith" as a state of mind distinct from negligence)
- Gorman v. American Honda Motor Co., 302 Mich. App. 113 (2013) (discussion on limits of recognizing a separate cause of action for breach of an implied covenant of good faith and fair dealing)