Hadfield v. Oakland County Drain Commissioner

Co v Oakland Hadfield COUNTY DRAIN COMMISSIONER HADFIELD OAKLAND v MICHIGAN

VEENEMAN LANDRY v DETROIT LAKE ODESSA McCAUL v OF VILLAGE 14, 76815, 77011, 75494, Argued 78233. November Nos. Docket 2-5). (Calendar Rehearing March 1988. denied Nos. Decided post, Landry, 1202. P, brought Jane Hadfield an action in the Glen R. against County Drain Circuit Court the Oakland Oakland Commissioner, others, alleging that failure the defendants’ prevent by private the installation landowners of culverts subsequent along county the failure to certain drains and resulted in the obstruction of the drains remove the culverts land, damage plaintiffs’ deprived permanent to the and caused land, amounting plaintiffs to an uncon- of the use of their large taking compensation, and that stitutional without standing plaintiffs’ on the land was a accumulation of water plaintiffs sought compel public The mandamus to nuisance. court, Roberts, Farrell E. immediate removal of the drains. The J., granted summary judgment for the defendants relative to counts, trespass and mandamus and dismissed count alleging taking, addressing only allegation public judicially nuisance. The court found that while there is a plaintiff governmental immunity where a created proofs alleged plaintiffs’ has intentional nuisance the with allegation respect nuisance had failed. The to the plaintiffs the exis- court further held that the had established defendants, private but tence of a nuisance created requisite only respect commis- found intent with drain sioner, percent damages one of the and awarded damage sought. plaintiffs appealed the award without The seeking modification of the award. The defen- a new trial or a governmental immunity. cross-appealed dants on the issue of Allen, P.J., Appeals, and V. J. Brennan The Court of curiam, JJ., unpublished opinion per in an Daniels, affirmed properly holding trial found that the defendants that the court nuisance, and that created and maintained an intentional had for a trial in the trial court review absent a motion new 430 Mich 139 adequacy permitted of an award is not unless there was insuffi- (Docket 68789). support cient evidence to the verdict No. plaintiffs appeal, cross-appeal. and the defendants Veeneman, personal representative Howard of the estate of Veeneman, deceased, Jay brought an action in the Oceana against Michigan damages arising Circuit Court the State of for injury Jay from the fatal Veeneman in an off-the-road plaintiff alleged vehicle accident in Silver Lake State Park. The negligence inspect regulate in the state’s failure to and the operation provide adequate of off-road vehicles and to medical personnel, improper regula- and in fact in the state’s previous tion of off-road vehicles and its awareness of deaths injuries and of a similar nature in the area and failure to problem. court, Thomas, J., correct the The Terrence R. granted summary judgment defendant, holding for the that the by governmental immunity action was barred and the recre- act, permitted plaintiff ational user and to amend his complaint nuisance, negligent to add counts of intentional nuisance, gross negligence and or wilful and wanton miscon- Thereafter, granted summary judgment duct. the court for the dismissing defendant and entered a final order the case. The (M. Appeals, Reilly, Court of R. M. Maher and Kelly, JJ. J. P.J., concurring part dissenting part), part in and in affirmed in part opinion per curiam, finding and in reversed in an that the governmental by immunity except action was barred as to plaintiff’s allegation of intentional nuisance and that the action (Docket was not barred under the recreational user act No. 72022). appeals. The defendant Landry Landry brought Brenda and Emmett an action in the Wayne against City Circuit Court of Detroit and the De- troit-Wayne Building Authority, seeking Joint to recover dam- ages personal injuries by plaintiffs they for suffered when were attacked in a courtroom of the Court De- Recorder’s plaintiffs alleged alia, liability, troit. The inter on the basis of statutory public-buildings excep- the common-law nuisance and governmental court, immunity. Stacey, tion The Michael L. J., granted summary judgment for the defendants and dis- complaint, articulating ruling missed the no basis its on (M. P.J., Livo, Appeals, The Hood, record. Court of and J. J., concurring part dissenting part), Kelly, in and in affirmed part part, finding summary judgment inap- in and reversed in applied plaintiffs’ propriately claim intentional nui- 70836). (Docket city appeals. sance No. The brought E. in the Burton McCaul and Doris R. McCaul an action others, against Village Ionia Circuit Court Lake Odessa and v Oakland Co Drain seeking damages resulting sewage from the release of water village’s sewage plant. their farmland from the onto treatment alleged negligence court, plaintiffs The and nuisance. The Simon, Jr., J., granted summary judgment W. Charles for the defendants, holding plaintiffs alleged only had ordi- nary negligence and not intentional nuisance and that their governmental by immunity guide- claim was barred under the Co, (1984). lines of Ross Consumers Power 420 Mich 567 Maher, P.J., Appeals, Lamb, JJ., Court of R. M. and Allen affirming part reversing part unpublished in an curiam, opinion per grant summary reversed the trial court’s finding judgment, that the nuisance immunity had survived Ross and that the had suffi- (Docket 83172). ciently pled intentional nuisance No. The defen- appeals. dant opinions joined by Brickley, Justice Chief Justice Riley Cavanagh, and Justice Boyle, Justice Justice Supreme Levin, Court held: maintained; may The actions Hadñeld and McCaul Landry may actions in Veeneman and not. Riley joined by Justice Chief Justice and Justice trespass upon, Cavanagh, stated that a direct or the interfer- of, enjoyment ence with the use or land that results from a of, physical by, govern- intrusion caused or under the control entity liability. mental is not immune from tort agencies liability 1. Governmental are immune from tort engaged agency discharge where the is in the exercise or aof governmental function, excepted by unless otherwise statute or law, including liability recognized case for nuisance as at exception governmental common The nuisance law. to immu- nity according recognized historically is limited to the cause of grew action which out of the distinction between an action of trespass Trespass and an action on the case. anis invasion of Nuisance, possession an interest in the exclusive of land. is an enjoyment interference with the use and of an interest the land. governmental liability 2. Prior to the enactment of the tort act, exception governmental immunity the nuisance to was involving trespass intruding confined to cases or nuisance and grounded Taking Michigan on the Clause of the Constitu- enactment, analogous Taking tion. In cases decided after the applied. strong Clause was also link between the common- trespass-nuisance exception Taking law and the of Clause the constitution, long exception, history with the of combined the is persuasive preserve exception intent of an to the its estah- 430 Mich 139 governmental Thus, immunity in the act. lished form the governmental immunity may be avoided defense of where trespass intruding alleged action in or is and cause of nuisance proven. Had&eld, exception applicable, county 3. In the is and the may regard drain commissioner be held liable. With to the damages, findings question the of trial court failed to make of Thus, dispositive required fact of the issue. remand is to the fact, specific findings circuit court for further and more an damages findings, taking on award of based those relating damages resulting to the amount of further evidence act, necessary. or if from the defendants’ actions failure to necessary preserve Prior a trial court is not to for review appeal question findings whether the trial court made pursuant to GCR 517.1. fact Veeneman, exception apply, and 4. In does not there holding no basis for the state liable. exception apply. Landry, 5. In does not McCaul, allegations set forth sufficient of a 6. In govern- trespass-nuisance to avoid the defendant’s assertion of immunity. mental Boyle, concurring, agreed Legislature in- Justice governmental immunity codify the common law of tended to enacting governmental liability tort act and that tradi- exception trespass-nuisance private is an to nuisance tional Michigan governmental immunity under common law. How- ever, require private remedy law does not that a the common remedy sought public limited to the for an for nuisance be analogous trespass directly nuisance. invasion governmental per an immu- Nuisance se also is fact, predicated nity. on a nuisance in it is not want Unlike care, very may not its nature. The state but is unreasonable asserting immunity; per liability for a nuisance se avoid property its with- allow the state to use hold otherwise would large. regard private persons or the at out for Levin, writing agreed separately, that an action Justice McCaul; may also in Hadñeld and be maintained nuisance Landry agreed an action for that on the facts of Veeneman Boyle maintained; agreed with Justice cannot be preclude immunity act does not an by damage or a nuisance for for loss caused action per se. nuisance Hadñeld, proceedings. for further affirmed and remanded Landry, reversed. Veeneman McCaul, for trial. affirmed and remanded Oakland Co Drain concurring part dissenting part, Archer, Justice majority’s trespass- tort of stated that definition nuisance, Trespass, is too narrow. intentional nui- nuisance sance, per excep- as well as nuisance se should be held to be governmental immunity. to tions governmental prior Exceptions immunity which existed governmental liability the enactment of the tort act were Legislature. exceptions pro- retained Additional were development It vided statute. was intended that the of case describing scope law in this area continue. In exception, important responsibil- it is on focus omissions, government ity immunity for or its actions not its liability. from governmental There is no need to characterize actions or creating amounting taking omissions as conditions to a in a grant constitutional sense to relief. These tort issues are ade- quately addressed case law. Nor must nuisance amount to occurring government’s property. an invasion on other than the governmental thereby If a unit acts or fails to act and creates a nuisance, regardless the unit should be liable of where the trespass requirement or nuisance occurs. There should be no physical plaintiffs invasion of a land for the considering unit to be liable. whether a nuisance in fact was created, consider, first, the trier of fact should whether it was and, intentionally second, negligently, created whether the resulting condition created or rose to the level of an intentional nuisance because of a failure to correct the condition. (1985) App 16; 143 Mich 371 NW2d 466 reversed. 694; (1985) App 373 NW2d 193 reversed. part Justice Griffin took no in the decision of these cases. Hyde, Roger Hyde), Gualtieri & P.C. (by Q. Turner), Turner,

Turner & P.C. A. (by Donald for plaintiffs Hadfield. Napieralski, Velzen, Walsh & P.C. (by Randall Velzen),

L. for plaintiff Veeneman. Sherr, P.C.,

Paul D. Landry. Betz) Rhoades, McKee & Boer (by Michael W. for plaintiffs McCaul. Lynch,

Kohl, Hampton Secrest, Wardle, Clark & 139 430 Mich 144 Bkickley, J. Opinion Hampton Anderson) Lanie P. William for and (by in Hadñeld. the defendants Kelley, General, Louis J. Frank J. Attorney Casey, L.

Caruso, Thomas General, Assis- Solicitor A. Michael LeiHer General, tant Solicitor Gemmill, General, D. Clive for Attorneys Assistant in Veeneman. the defendant Pailen, and Wil- Counsel,

Donald Corporation Mazurek, A. L. and Dennis liam Woodard Assis- Counsel, for the defendants Corporation tant Landry. Coey, Foster, Swift, P.C. James D. Collins & (by Bemenderfer), for the defen- T.

Adkins Neil in McCaul. dants

Amici Curiae: Nelson, Klaasen,

Stanton, Bullen, Moilanen & A. Charles Nelson), P.C. for the of Jack- City (by son. Marjory

Mogill, B. Posner, & Cohen Weiss (by Cohen) Trial Association. Michigan Lawyers pre four consolidated cases J. These a nuisance the issue whether sent after this remains viable governmental immunity Power Co in Ross v Consumers Court’s decision (On Rehearing), 567; 420 Mich 363 NW2d and, so, (1984), if in what form. Consideration pre-Ross of two necessitates review question this divided over in which this Court was decisions Ro exception. See of the nuisance proper scope Lansing, City 124; 268 NW2d sario Dep’t Hwys, of State Gerzeski v (1978); (1978). are also There 149; 268 NW2d v Oakland Co Brickley, minor that are resolved in the three issues context respective cases. of their response question, primary to the we hold trespass-nuisance exception

that there is a limited trespass-nuisance immunity. to exception long Michigan history jurispru-

has a strong policy Michigan dence, it has a basis in the continuing viability comports Constitution, and its language governmental well with the tort liability the act and Ross decision.

Trespass-nuisance shall be defined as a direct trespass upon, or the interference with the use or enjoyment physical of, land that results from a by, intrusion of, caused or under the control a governmental entity. Damages may be awarded for person injury property. or Employing the same standard, historical we re- ject exception other versions of the nuisance unsupported Having are in the relevant case law. per found some historical evidence of a nuisance se public excep- and of a limited nuisance day question tion, we leave for another the exceptions sufficiently supported whether such are precedent independent trespass- so as to exist proper and, so, scope. if the issue of their

i question presented The threshold here is light governmental whether, in liability of tort any Ross, act and excep- common-law tort-based governmental immunity may recognized. tion to be We conclude that a reaffirmation of the historic trespass-nuisance exception only permitted, is not required, by language but §of 7 of the act. governmental liability Section 7 of the tort act provides: act, provided in this all Except as otherwise agencies shall immune from tort governmental government liability all cases wherein discharge in the of a agency engaged exercise Except pro- function. as otherwise act, act not be construed as in this this shall vided restricting immunity the state modifying or 1965, 1, July it liability tort as existed before from 691.1407; MSA immunity which is affirmed. [MCL 3.996(107).] performance may

Tort arise out of liability governmental, func- opposed as to a proprietary, a 3.996(113). In addi- 691.1413; tion. See MCL MSA tion, exceptions impose of 7 liabil- statutory § highways for: the failure to maintain reason- ity repair, MCL MSA 3.996(102); able 691.1402; government-owned of a motor negligent operation officer, agent, or em- government vehicle 3.996(105); MSA 691.1405; ployee, MCL buildings and maintain repair failure control, MCL MSA government under 691.1406; Ross, supra, 3.996(106). we characterized p grant immunity” with "four "broad § narrowly statutory exceptions.” drawn Michigan v in Veeneman

Defendants-appellants Odessa, Village and McCaul v of Lake and defen in Hadñeld v Oakland Co Drain dants-appellees argue against any judicially Comm’r created ex 7 interpret have so as to ceptions, and would us § to the enumerated liability specifically confine statutory exceptions. We this narrow inter reject recognize it fails the pretation because to second of 7. act shall not construed sentence § "[T]his of the modifying restricting immunity as or the 1, from as it existed before liability July state tort is 1965, immunity which affirmed.”1 1 read, 175, passage 7 Prior to of 1986 PA the last sentence of § the modifying restricting the act be construed as shall not "[T]his Co Oakland sup alone, § 7

Taken the first sentence of does port interpretation preclude act, a narrow of to the recognition any Legisla exception. of The ture’s use of the word "tort” to describe the liabil ity governmental agencies from which are to be exemplifies held immune the of intended breadth the nity.2 immu There is no doubt that nuisance liability is a tort and that for nuisance would be scope statutory governmental of within nity immu expressed § in the first sentence of 7. However, § the second sentence of 7 retains preexisting governmental immunity except law provided where otherwise the act. In Thomas v Dep’t Hwys, 1, of 11; State 247 NW2d (1976), interpreted sentence, we the second noting, "[o]bviously language this must be con precedent strued as an 'affirmation’ of case-law on subject immunity.” specifi of the state’s More cally, we note Justice Ryan’s observations his dissenting opinion supra, p Rosario, 146: scope order determine of the now [I]n

codified immunity, scope we must determine immunity which See n 16. heretofore, liability of the state from tort as it existed added). immunity hereby (emphasis affirmed.” 1964 PA 170 Legislature’s intent "tort” be taken to mean "all torts” may be culled from the action taken after Court declared 7 of of this § governmental immunity the 1964 the act unconstitutional as violative clause, title-object 1963, 4, Tawas, Const art 24. See § Maki v East (1971). 151; decision, 385 Mich title 188 NW2d At time of the act read: liability [governmental agen- An act to make uniform the engaged governmental function, injuries when in a cies]

property persons negligence caused .... present Section 7 used the word "tort” as does the Section version. scope was found to be unconstitutional because it exceeded the Maki, response Legislature act’s title. In amended the act’s title, words, eliminating negligence,” "caused 1970 PA eliminating any interpretation only and thus of "tort” to mean tort liability arising negligence. out 430 "existing immunity.” Since the com its antecedent "existing immunity” doctrine included mon-law certain its limited and defined these exceptions defined judicially created which limits, legislatively immunity is codified exceptions. the same One exceptions in issue: the doctrine of is here "nuisance.”3 also found the second

Commentators have preserve 7 a intent to legislative sentence of § recognized at exception that had been common law. Michigan recognized The court has this head very beginning. It so liability from the seemed nineteenth-century that it to the court obvious granted, and it practically taken for antedates It re- governmental-function defense decades. strongest claims for relief that can flects one nothing .... in their

be asserted There is expressions to indicate that those who drafted mind; indeed, change in one any had such statute up in these terms: of them summed the statute 170, 1964, largely is to "The net effect of Act corporations position they municipal return to enjoyed prior to the decision of the Williams [v (1961) (abro- Detroit, 231; 111 NW2d municipalities)] gating governmental immunity for legisla- surely case.” This is a situation where express expected ture should an intent important change in the law in make an incapable words misunderstood, being rather than upon implication. this basis the sen- relying tence can On justifiably avoid the be construed to words, abstract, consequence that in the seem suggest. function has no term meaning. It indisputable clear and core of art, only by reference to the term of definable applied. It has to which it has been instances Ryan course, recognition advocated of a nuisance Of Justice scope adopted today. slightly than that See with a different n 7. v Oakland Co by Opinion Brickuey, J. applied never been by Michigan pro- court to any governmental tect agency against liability in recognized situation to be within the nuisance-tres-

pass sentence, category. submit, This I should be seen as a governmental-function restoration of the law, defense as it existed in the alongside case nuisance-trespass liability. head of [Cooperrider, court, legislature, governmental tort liability Michigan, 187, 72 Mich LR 279-280 (1973).] DeMars, See also Intentional nuisance in fact: governmental it Should be a bar to a function Michigan?, defense in Det L RC 790. agree point We with these authorities on this Ryan’s interpretation and with Justice §7. of arguments, advocating While the defendants’ rec- ognition only statutory exceptions, tempt- are ingly simple straightforward, negate they ignore legislative the second half of the mandate requires §of 7. That section a continuation of the exception prior nuisance as formulated to the governmental immunity enactment of the act in 1964, as amended 1970 PA Thus, 155. an under- standing generally history of nuisance and of the exception governmental of the nuisance to immu- prior nity to the act will facilitate articulation of exception adopt the limited that we here and apply to the cases at bar.

n To find that there existed a common-law nui- exception governmental sance immunity to exception through passage that that survived of the § second sentence of 7 of the liability tort act does not answer the more difficult aspect question presented. As we noted in Legislature Ross, grant intended a broad immunity; any liability thus, must be for nuisance parameters according carefully to the limited recognized historically Thus, cause of action. pre-governmental reasoning and rationale of the immunity provide a must formula act cases may any be said to have through Legislature been embraced language §of 7. concept legal difficult, if as a Because nuisance great impossible, pains define,4 we take

not describe governmen- type liability to which excep- exposed under the nuisance tal entities are tion there is enough adopted today. say that It is not a to "nuisance” immunity. This Court has commented on amorphous a action: nature of nuisance bin, great grab bag, of Nuisance is dust comprehends the law. It er’s reasonable use and interference with an own- property of his enjoyment smoke, noise, vibration; means or the ob- of rights sup- private and of struction of easements public rights, port; with such as free interference passage along highways, enjoy- streams and recreation, and, public parks places and of ment in statutory addition, prohibited activities and structures as short, . ... . . nuisances. nuisance good beg It question "is a with. is so word term, comprehensive a its content is so hetero and scarcely more than

geneous, that it does state legal varying sance violates the widely that for or another of conclusion one thing stigmatized a nui reasons the rights others.” v Mc [Awad 386, 389-390; 98 Colgan, Mich NW2d (1959).] past: We observed in the gener- [Adjudicated cases have been so variable courts

ally regard comprehensive and definition nui- a technical [of impracticable Bd if not .... Kent Co [Kilts difficult sance] of 646, 651; (1910).] Supervisors, 127 NW 821 v Oakland Co Drain originally grew Nuisance out of the distinction between the old of trespass action and the action on the "[Trespass case. an is invasion of the interest in the possession exclusive of his land, while is an interference with his Keeton, use and of it.” enjoyment Prosser & Torts (5th ed), 87, p however, 622. generally, Nuisance § goes well beyond basic definition into broad areas of liability. Because the concepts trespass and close, "classic” nuisance so are we include both trespass within trespassory nuisance exception adopted today.

There are two types basic nuisance: public private. They nothing "have almost in com- mon, except each causes inconvenience . . . .” Keeton, someone Prosser supra, & 618. p The Restatement observes: Notwithstanding the of any absence real rela-

tion nuisance that same name for private connection between readily apparent, use application both has resulted in the two, of the same only rules with minor differences due to the distinct character of the two types 2d, Torts, of interests invaded. Restatement [4 Introductory p Note to ch 85.] "A private nuisance is a wrong, civil based on a Keeton, rights disturbance & land.” Prosser supra, p A public 618. a nuisance is "criminal offense, consisting of an interference with the rights of the . .” community large at . . Id. The public Restatement defines nuisance "an as unrea- sonable right interference with a common to the 2d, general public.” Torts, 821B, p Restatement § 87. Prosser & Keeton the overlap describe between public private nuisance: When "the individual interest public designed nuisance is protect protected law, is the under type tort then 430 Mich public nuisance regarded is as the conduct pri- either a regarded also as quite will often be are tort to those who nuisance or some other vate Id., 90, 652. p affected.” adversely § governed by is Michigan, public nuisance seq.; 600.3801 et 27A.3801 statute, MSA see MCL seq., et public as common law. Under as well General, act, prosecuting Attorney nuisance bring empowered and citizens are attorneys, nuis public defined as actions to abate activities supra, Keeton, p 652; See Prosser & ances.5 § law, 600.3805; MSA 27A.3805. "At common MCL nui public of law constitute acts in violation to flow public presumed Harm to the sance. enacted to from the violation of a valid statute Attor health, and welfare.” preserve public safety ney Peterson, General v 445, 465; 164 (1969).6 NW2d 43 per are nuisance se categories additional

Two This Court "per in fact or accidens.” and nuisance that difference: explained has nature, nui- point of view of their "From the per classified as nuisances se are sometimes sances or at nuisance at law, A per accidens or fact. and nuisances act, per a nuisance se is an law or a nuisance at all occupation, or structure which is circumstances, regardless of any under times and location per in fact or surroundings. or Nuisances nuisances accidens are those which become surroundings, and an of circumstances reason act as a matter may be found to be a nuisance relief, seeking only equitable Generally, we do not view actions falling purview injunction, within the as such as abatement immunity. See n 15. trespass-nuisance exception herein does not distin as defined nuisance, encompasses public private guish both but between long prerequisites trespass-nuisance categories, are met. as analogous exception, there exists a limited Whether interest, private property re- trespass-nuisance but without to mains an open question. n 16. See v 153 Oakland Co Drain Brickley, J. Opinion tendency

fact where the natural of the act is to danger injury person create and inflict on or prop erty. limited, per necessarily The number of nuisances se is greater and far of nui number per [Rosario, sances are nuisances accidens.” su Fitzgerald, J.), pra, pp quoting 132-133 (opinion of Inc, Saginaw Service, Bluemer v Central &Oil Gas 399, 411; 356 97 90 (1959).] Mich NW2d in Nuisance fact has been divided into two fur- ther negli- subclasses of nuisance: intentional and Gerzeski, gent. supra, p Glover, 158. Dahl v 639, (1956), 644; Mich 75 NW2d the Court approved instructions jury described nuisance se per as well as the two types nuisance fact. also Denny Garavaglia, 331; See (1952). 52 NW2d 521

These per distinctions —between nuisance se and fact, nuisance in and between intentional nuisance in fact negligent nuisance fact —became the foundation for opinion the differences of in Rosario Thus, with Gerzeski. brief this introduction the concept of generally, nuisance we turn to the question proper scope excep- nuisance tion immunity light of our interpretation Ross. §

iii The opinions various in the Rosario and Ger- zeski represent partial cases options menu of the available when considering appropriate scope exception. of the nuisance There has no been clear and, majority view, one any given that our opinion in Ross governmental- redefined the entire immunity landscape, we are at this compelled point analyze light. issue in a fresh recognize we now not one by any opinions advanced one of the in those 430 but, rather, that best reflects cases, is one law, to the prior common as it existed at exception act. Of liability tort adoption governmental of the Justice and Gerzeski only the Rosario opinions, this histori- Ryan’s dissenting opinions employed required by to be which we find approach, cal of 7. second sentence §

A precedent deal of historical great There is a exception of the nuisance prong favor of the first the Rosario and Gerzeski dissents. by advocated it an for Ryan referred to as Justice ,”7 Gerzeski, 171, supra, p "intruding nuisance it "nuisance-tres terms Cooperrider Professor supra, p 280. find We exception. Cooperrider, pass” recognized clearly nuisance was type that this of of the to the enactment prior at common law act, Legis and that liability tort governmental it the second sen preserve intended to lature 7. tence of § governmental recognize cases to

The earliest Ryan intruding "situations wherein nuisances as Justice described trespass instrumentality damage from of an is caused the direct Gerzeski, supra, p private property.” government-owned land onto added). adopt (emphasis exception limitation on the do not the source We language emphasized might of inferred from the that Ryan’s opinion. Justice illogical inconsistent with limitation would be Such a trespass-nuisance early "taking” cases some of the rationale. While land,” see, e.g., government-owned an intrusion "from did involve (1899) (ice Ed, 315; 81 and snow of 122 Mich NW Ferris v Bd cases, buildings), flooding falling example, rather, for most of the the roof of school off but, land, originated from state involve water that did not responsible government directly water that the defendant controlling. for Ryan confusing injury origin may the intrusion Justice have been requirement outside the defendant’s that the occur with the 646; 339; See, Supervisors, property. e.g., 162 Mich Kilts v Kent Co Bd of Ed, (1910); Rapids Bd of Daniels v Grand 127 NW 821 158 NW 23 (1916). course, part requirement, remains That exception, element. does the causation or control v Oakland Co Opinion by Beickley, liability8 involved some of direct type invasion government entity of the plaintiffs’ land. The actions were characterized either as trespass or nuisance, but invariably focused on the aspect of direct, physical invasion. This focus stemmed from the primary rationale for imposing liability: "Taking” constitution, Clause of the beginning in 1835, 1, 19, Const art and continuing through § constitution, our present 10, §2, Const art guarantees the property rights of citizens are protected from governmental taking "without just compensation.” invasions Trespassory stopped short being "takings” of property were consid- ered actions which entities should not escape liability.

The earliest trespass-nuisance case was an ac- against tion City Saginaw for damages 8 Ross, supra, pp 596-608, In we the discussed historical difference (state) sovereign immunity governmental between which governmental was immunity, and applied government engaged to "inferior” divisions of when in governmental immunity functions. The rationale for originally sovereign immunity: derived from theory township city represents The true is that the causing things done, and, State, State in enjoys immunity these to be like the it responsibility injury from in case of imparting portion powers, . .

individuals . [because in] its imparts Detroit, immunity. the State also its own [Nicholson 246, 258-259; (1902).] 129 Mich 88 NW 695 Detroit, 231; (1961), abrogated Williams v 364 Mich 1 NW2d governmental immunity municipalities, common-law and the same counties, townships, villages for see Co Myers was abolished in v Gene Auditor, 1; (1965), 375 Mich 133 NW2d 190 and Keenan v Co, (1966). 57; However, 1964, Midland 138 NW2d 759 in governmental act, liability specifically, tort first sentence of "[t]he 7[,] only governmental immunity was intended to § not restore to non- sovereign governmental agencies, provide but to uniform treatment agencies.” Ross, supra, p for state and local 605. Thus, period there was a of time between when municipalities sentence of 7 of the act application by governmental immunity. were not covered The first statutory immunity required § established governmental units; of uniform standards to all incorporated govern- second sentence of 7 mental the earlier common law of § immunity into the statute. 430 Mich 139 Brickley, caused surface water that was upon thrown land from ditches created and main- tained by the city. Court, This without discussing liability terms immunity, opined "that the city, by creating nuisance, which the evidence offered tended to prove, prima facie liable for its continuance.” Pennoyer v Saginaw, 8 (1860). The defendant’s Pennoyer may be characterized actions as ei- trespass ther or nuisance. Kalamazoo, Sheldon v (1872), 24 Mich 383

plaintiff sued the city over the removal of his fence, which the city claimed "encroached” on the line of a road. The plaintiff had offered to show that his fence was on his property. Referring to the injury as a the Sheldon trespass,” "wilful Court employed taking analysis to this case of municipal "invasion”: If the property dispute subject is not to the public mazoo asserted, easement village then the of Kala possession has taken property it could lawfully not nation. appropriate legal without a condem authority There is no that we can find

which holds such to would private an invasion of lands not corporation, be an act of the and none which exempt corporation liability from to an wrong. [Id., action for the pp 386-387.] Huron, Ashley v Port (1877), 35 Mich 296 in- damage volved property flooding. due to The flood- ing was caused cutting of a sewer "under authorities, the direction of the and under city city legislation the validity disputed.” which is not Id., 297. p opinion In an Chief by Justice Cooley, the Ashley Court articulated the issue one of immunity. ap- The trial court had a in parently directed verdict favor of the defen- dant, ground on the Co v Oakland by Brickley, ordering city,

that the in the construction the it, constructing acting sewer and was the legislative discretionary of its exercise author- ity, ity consequently exempt any and was from liabil- might persons happen injured. to who to be [Id., p 297.] Cooley Chief Justice noted first: But is strictly it not the failure to construct to carry complained sewers off the water is off case; positive in this it casting is of the act [sic] upon plaintiff’s premises water the sewer already [Id., p constructed. 300.] He of an approved analogous Massachusetts case that had affirmed clear "the liability of defen- an dant where the injury accomplished premises actual invasion of . . Id., another’s . .” added). pp 300-301 (emphasis Expressing general applied rule to be Ashley situations, these Court again empha- "taking” sized a rationale imposing liability on municipal defendants: very It is manifest this from to author- reference

ities, no an they recognize in municipal corporations exemption from responsibility injury where injury individual has is a direct received accom- plished by corporate a act which is in the nature trespass upon right of a him. The of an individual occupation enjoyment premises of his exclusive, public and the no authorities have more liberty trespass it upon private than has If individual. the corporation people send with picks first spades a street it through cut without acquiring right way, it is liable for a tort; stances flood of water that it is but no more liable under circum- such pours than it it upon is when his land a sewer so constructed flooding must a necessary result. The 158 Opinion J. unjustifiable,

one is no more and no more an wrong, actionable than the other. Each is a tres- pass, and in city each instance the exceeds its jurisdiction. municipal lawful A charter never gives give authority appropri- and never could compensation, ate the freehold of a citizen without it through taking whethér be done an actual of it buildings, by flooding for streets or it so as to possession. interfere with the property owner’s His right appropriated in the one case as much inas the other. jurisdiction

A appears like excess of when in the powers municipal corporation exercise of its a injury creates a nuisance to the of an individual. familiar, liability in The doctrine of such cases is upon Pennoyer [Id., p .... and was acted 301. Emphasis added. Citations omitted.] (1887), Flint, 401; 67 Mich 34 NW 719 Rice v trespass-nuisance category, fits also although within immunity Rice does not mention the plaintiffs building Rice, In founda- defense. changed damaged city when the tions were grade flooding causing nearby street, on the Citing plaintiff’s Ashley Pennoyer, land.

Court held: upon direct act which causes water to flow

For a municipal- premises injury another to his right responsible. cityA has no more ity is property private the invasion of invade or cause [Id., p than an individual. 403.] City Marshall, 327; Seaman (1898), negligence part alleged on the NW city Seaman sued issue. of the defendant damages city to his basement caused flowed there because water accumulated Co Drain v Oakland Brickley, off carry inadequate drain tile was sewer or storm water. stated: applied was rule to be general if, caution, and required to use due city is [T]he reasonably negligence providing in not

through its it care of the water efficacious means to take should of its by reason reasonably expect to accumulate person injured by the overflow gutters, a is sewers, premises collected upon his of water would brought premises, to such and which and not otherwise have invaded for the them, city is liable [Id., damages. p 330.] Thus, not on an official liability premised that resulted in dam- municipality decision of the of the in not age, negligence city but on the harm when it de- allowing for foreseeable in Negligence was found signed system. the sewer obstructions, failure to or for city’s "remov[e] known, it constructing gutter a which should have expected, bring or would water to reasonably have point faster than the means controversy expected could to take care provided reasonably .’’Id., it . . . p 331. This trend toward liability trespass-nuisance was continued in Ferris involving negligence cases Ed, v Bd of (1899), which, 315; NW time, personal for the first for recovery allowed Ferris, injuries damage. rather than property and ice had fallen off snow the roof of a school building plaintiff’s onto the The property. plaintiff injuries slipped sued for he incurred when he fell on the accumulated ice. The trial court had held a municipal corporation could not be negligence. held liable for appeal, plaintiff On argued that "where the is the result of the injury direct act or trespass it municipality, 430 Mich liable, no matter whether acting public or Id., added).9 private capacity.” p 318 (emphasis Rice, supra, the Ferris Citing approved Court the plaintiffs argument: plaintiff right had the to the exclusive use enjoyment property, his and the defendant had no right more building to erect a in such a manner the ice and snow would inevitably roof, slide from the precipitated and be upon the plaintiff’s premises, it than would have to accumu- upon late water it to premises, its own permit then body upon flow in a premises. his It has been many times held in this court that a city has no right invade, more of, cause the invasion

private property, than an [Id., individual. p 318. Emphasis added.] The Ferris Court noted that the action was not based on neglect a rendering performance in the corporate of a duty work purposes unfit for the intended,

which it was doing but the wrongful of a act, causing a injury direct person to the of the plaintiff, while outside the limits of the defen premises. [Id., dant’s p 319.] Muskegon, 210; (1906), Alberts v empha 109 NW 262 trespass Ferris, sized the direct distinguished element of when it city protected Ferris and by governmental found the defendant immu nity. the from city Alberts held that the was not liable for the destruction of plaintiffs property by by sparks ignited a fire caused that were city a repairing steamroller used the street. The emphasized:

Alberts Court damages resulting The case at bar is not one of from a direct trespass city amounting or from misfeasance of the to a tres- pass. consequential It injury resulting is a case of directly from negligent agents. [Id., p conduct of the defendant’s 215.] Apparently, decided, at sparks the time Alberts was were not trespassory considered to law it is physical present be a invasion. We note that under likely that such an requisite invasion would constitute the trespass-nuisance. intrusion for Co v Oakland Brickley,

The of the it parameters applies originating negligence a nuisance were further Supervisors, Kilts v Kent Co Bd of defined in (1910). Kilts, 646; plain Mich 127 NW 821 tiff’s decedent was killed at a worksite where a collapsed tower due to insufficient support. Court found performing a county function in contracting for con struction Regarding plaintiff’s tower. claim that the county should nevertheless be held nuisance, liable because the tower awas the Court stated that such a claim "would an extension of Id., the law of p nuisance.” 649.

During period, this time cases involving trespass or a physical plaintiff’s invasion of a land amount- ing "classic” nuisance continued to form the See, basis of the exception. General e.g., Attorney ex rel Wyoming Twp Rapids, of Grand City (1913). 503, ("A 538; cannot, Mich 141 NW 890 city legislative without direct pollute authority, stream with sewage its to the injury lower proprietors. And it cannot legislative be done authority without making compensation to the owners.”) City Donaldson v injured riparian Marshall, 359; (1929), 225 NW 529 although not addressing governmental immunity directly, held that had city to maintain duty its drain so as to prevent the flow of from water causing accumulation on the plaintiff’s land.

Generalizing cases, from these early appears it that where an invasion or plain- intrusion onto a occurred, tiff’s land the defendants were often liable, regardless found of whether municipal- ity acted directly, through an order perhaps, or whether its agents acted intentionally negli- gently produce the invasion. Consideration (the invasion), the effect rather than of the act 162 430 Mich 139 Brickley, effect, that caused the continued to be the primary through focus the 1950’s.

For example, Robinson v Wyoming Twp, 312 14; (1945), Mich 19 469 NW2d the defendant was held liable for the destruction of the plaintiff’s fire. property by The fire was caused by a kerosene spill resulted from flooding that occurred because of the way township had constructed a park rule, general lake. As a the Robinson Court stated: public, "That neither constructing high-

ways, private nor parties for the benefit of their lands, own can turn water from its natural course another, onto the lands of [Id., is well p settled.” 24.] Robinson held:

From the evidence in the jury case at bar the could find that township Wyoming had so park constructed its flooding and lake that plaintiffs’ property was a natural result from sur- plus flowing water out of the breakthrough in the embankment. The the facts this case it take out of general rule that a municipality is not liable agents. [Id., negligence of its officers and p 25.] In Rogers v Kent Comm’rs, Bd of Co Road 661, 666; Mich (1948), NW2d 358 the Court found "a continuing trespass” in the fail- county’s ure to remove a metal post that had part been of a snow fence that it had installed with permission on plaintiff’s property. plaintiff’s decedent was killed when post. his tractor hit the Detroit,

Defnet 254; v 41 NW2d 539 (1950), and Herro Chippewa Comm’rs, Co Road 263; (1962), represent NW2d more Oakland Co by Opinion Brickley, J. applications to classic tres- of the

recent pass-nuisance They this nar- reinforce situations. exception’s scope, interpretation the rower "taking” emphasizing the rationale. while plagued by plaintiff obnox- Defnet, was fireplace leaking and an even- from his fumes ious tual cave-in sewer that by backyard, old caused an of his informed him was the defendant had investigation, per- a further off.” After "blocked running functioning fectly was discovered sewer property. plaintiffs The Court held: under the of an active sewer since The maintenance trespass. a plaintiffs’ lands constitutes beneath under Although the sewer line break was city relieve the property, that does not Defnet from the 258. [Id., trespass. p damages caused its Emphasis added.] general noting

Enunciating rule, the "tak- and ing” connection, the Defnet Court concluded: taking its tortious city The cannot excuse invoking

private property by governmental the shibboleth function. [Id.] wrongful stemming Herro death action breakthrough flooding from the of water had impounded purposes for of the defendant’s been project. road construction In addition to the death complete decedent, destruc private summer residence occurred. The tion of alleged plaintiff, residence, a visitor at the both trespass and nuisance. discussing citing Ashley, Rice, Sea

After Rogers, man, Ferris, Robinson, and distin argued guishing defendant, the cases right of Court referred to "the common-law Herró trespass, recovery no matter for water destructive 430 Mich 139 who private or trespasser-flooder might Id., . . p . It expressed general 272. two rules to be applied: first Michigan The is that —in city, village, —no township, county, any administrative division

thereof, has been held from liability immune for flooding private destructive property occasioned by trespass, provided trespass pleaded proved in Ashley and like cases. . Ashley second is that . . stands ... proposition

the intrude citizen . that even the State "could not upon possession the lawful of a . . .” [Id.] Finding plaintiff’s that the action was not barred immunity, the Court also held there should no distinction between a continuing trespass and one occurring suddenly or directly. conclusion,

Finally, Court, its the Herró like Defnet, rationale, stressed the "taking” quoting Ashley: municipal "A gives charter never and never give could authority appropriate the freehold compensation, a citizen without whether it be done an

through ings, owner’s ated in taking actual of it for streets or build- it flooding so as to interfere with the possession. right His property appropri- is [Id., the one case as much as in the other.” p 275. Citations omitted.] Although Herró emphasized the "taking” rationale and the need for some invasion of a private prop- interest, erty plaintiff Herró merely Therefore, visitor on the land. Herró clear makes in an plaintiff action claiming the tres- pass-nuisance exception need not be the owner the land on which the invasion occurs. Co v Oakland

B As is evident from above discussion of the "Taking” early cases, the Clause of the constitu- trespass-nuisance tion10 formed the basis of the prior Ryan as it evolved to 1964. Justice taking rationale: described [intruding-nuisance] potentially cases the dan- gerous instrumentality literally or condition moves government-owned adjacent prop- from land onto erty. Consequently, neighboring premises occupants subject its are to either the creation of a foreign premises to the or direct risk and immedi- injury. transpires government ate When this deprives effectively posses- an owner of the useful sion of that which he owns. This Court views such public taking. action analysis Under this obliged pay compensation state reasonable ensuing damages "taking” from such in accord- ance the Constitution of the State of Michi- with 10, gan, [Gerzeski, supra, p 2. Const art § (dissenting opinion). Citations omitted.] Ryan emphasized the interconnection of Justice Taking trespass-nuisance ex- Clause and the ception explicitly more when he even stated:_ 1963, 10, provides: Const art 2§ property public shall not be taken for use without Private being

just compensation therefor first made or secured a prescribed Compensation by law. shall determined manner in be proceedings in a court record. provision Direct reliance on this constitutional should not be confused trespass-nuisance exception, In with the assertion of the Buckeye however. 630; Michigan, Union Fire Ins Co v 383 Mich 178 NW2d contrast, (1970), taking. By the Court found an unconstitutional Ryan’s opinion trespass-nuisance in Gerzeski and the other Justice taking provision merely of the constitution cases that cited employed provision judicially a created rule as rationale for the governmental impose liability setting involving that would in a tort immunity. 430 by Brickuey, "taking” is the result of an "intrud- [W]hen nuisance,” ing validly the state cannot raise sover- eign immunity liability from to paying avoid com- pensation [Gerzeski, damaged party. supra, p to a 171.] supra, Ashley, Cooley 301,

In p Justice ob- served: municipal gives A charter never and never could

give authority appropriate the freehold of a compensation, citizen without whether it be done through ings, taking an actual it for streets build- flooding or by it so as to with interfere possession. property right owner’s appropri- His ated in the one case as much in the other. taking above,

As noted ployed a rationale was also em- supra. supra, p Sheldon, Defnet, 258, city the Court held that "[t]he cannot excuse its taking private invoking property by tortious the (Emphasis governmental shibboleth of added.) function.” Co, In Bator Ford 648; Motor (1934), city NW 906 the defendant had contracted Company lay for the defendant Ford Motor pipes. Damage plaintiffs building water to the Although plaintiff resulted from the work. had alleged pass, negligence, contract, breach of and tres- employed taking analysis

the Court a response defense of immu- nity. private If property pub- cannot be taken corporation ., public

lic nor for . . surely use private property cannot taken private use and benefit of corporation with- [Id., out at just compensation. least pp 665-666.] p supra, Herró, Likewise in one of the cases v Oakland Co by Opinion Brickley, J. exception, we the nuisance often for cited most stated: is actu- where real estate true that remains [I]t sand, water, earth, superinduced by

ally invaded material,... taking the it is a within other meaning of the Constitution. applied analogous post-1964 cases, this Court liability Taking of as the basis Clause might as characterized have been situations according trespass-nuisance defini- the earlier Michigan, Buckeye Fire Ins Co v Union tions.11In 608; Comm’r, Hwy example, in Thom v State For (1965), presented: following question was NW2d 322 highway changes grade a unit [W]hen abutting owner’s way of an as to diminish the value in such a property by highway, right impairment of access to the of his ..., property the extent of the diminu- that owner’s Pías] use, value, thereby public’s "taken” for the

tion in its been [Id., p entitling just compensation 625.] the owner to therefor[?] majority opinion. responded affirmatively, there was no but The Court The that ran modifications, highway improvements highway department in a made state had along plaintiffs’ property; as a result of the one side plaintiffs’ prop- higher highway ten feet than moving equipment difficulty off their erty they farm on and had land. "taking” quoted adopted definition of the liberal Justice Souris Carter, 32 Mich have overruled Pontiac v Justice Souris would above. grade change (1875), injured had held that one which damages. abutting no cause of action for an street had separate opinion, to overrule saw no need Black, in a Justice expressly Carter, Cooley) (specifically, had Justice in that the Court supra, Ashley, distinguished and other cases. Justice that case in [plaintiffs] "proof adduced establishes noted that Black taking [citing Ashley trespass and a and Herro] an actionable both from them of a valuable Id., pp (empha property right . . .” 633-634 . added). sis Thus, taking agreed because of that causes of that a had occurred Justice Black plaintiffs’ land. He found in value of the the diminution partial taking alleging alleging trespass both arise and those action out Quoting Taking 10, 2. in Const art § contract” evident of the "constitutional Court, Supreme described the Justice Black Alabama Clause 430 Mich 139 630; (1970), although NW2d 476 plaintiff alleged had nuisance and this Court found nuisance, the holding premised was on the fact that an unconstitutional taking had occurred.12 Damage to the plaintiff’s property had been caused by a fire that spread from owned property by the state and found to be a fire hazard the trial judge.

The two causes of action were treated synony- hand, mously. On the one Court Buckeye noted that the defendant’s actions amounted to a taking. Id., p hand, 641. On the other the Court observed fire permitted hazard which the state to [t]he continue was a nuisance directly which interfered property

with the mately plaintiffs’ subrogors of and ulti- damage. led to its . . . There is no sover- eign immunity applicable to a situation of nui- sance as [Id., we have in pp this case. 643-644. Emphasis added.] Thus, there strong is a link between the com- mon-law trespass-nuisance exception and the Tak- "a private prop- constitutional contract made for the benefit of owners, erty on the entirely and it is reasonable to a contract [infer] part municipality pay in the instant case to person injured just damages remuneration for the sustained consequence public improvement, as a Constitution just of this as the guarantees.” [Id., 637, p quoting City Hunter v

Mobile, 318; (1943).] 244 Ala 13 So 2d Noting unnecessary question, it immunity to address the recently suit, because the immunity state had waived its from Justice Taking represented "judicial Black concluded that the ance that no pay according Clause assur- one, State,’ having not 'even the can 'take’ without Id., p to the forms and remedies of law.” 638. postulated Buckeye Commentators have that the Court in would trespass-nuisance have found a had the defendant been subordinate governmental unit, Cooperrider, supra, p rather than the state. 248. DeMars, supra, p ("[T]he apparently See could not assess court believed that it liability against solely the state on the nuisance fiat”). statutory classification which derived from case law rather than v Oakland Co Opinion by Brickley,

ing Clause of the constitution. Combined with the long history exception, constitutionally this policy provides based a solid foundation for the trespass-nuisance reaffirmation of as a basis of governmental liability. strong presence tort trespass-nuisance prior in the case law light origins, persuades of its constitutional us that Legislature through language intended, preserve excep- 7,§ the second sentence of tion its established form.

Therefore, we find that will success- fully immunity avoid a defense they allege prove whenever a cause of action trespass intruding Trespass-nui- nuisance. trespass sance shall be defined as or interference enjoyment by with the use or of land caused physical by intrusion that is in set motion government agents resulting personal or its damage. property may or The elements be summa- (nuisance trespass); rized as: condition or cause (physical intrusion); (by and causation or control government).

c exception type We have limited the to the governmental liability recog- nuisance that was prior nized to 1964. As is evident from the histori- analysis majority above, cal offered the vast applying exception governmen- cases a nuisance immunity trespass intruding tal involved or nui- Utilizing approach, reject sance. the same we thus exception, several other versions of the claimed clearly cases, in these that would scope exception beyond extend the of the recognized which was and would hence legislative contrary Finally, run intent. we de- question cline to address the whether the nuisance 430 Brickley, exception might to nuisances further extended be per that would nuisance or to a form se analogous trespass-nuisance. directly Such representation exception have some of the forms pre-1964 however, law; of the the facts in the case presented resolution of not necessitate do cases issues. these

i approach Having found that an historical §of 7 of the the second sentence mandated liability act, it is clear that the tort the "intentional nuisance” ex- versions of various ception, in Rosario and which were formulated legislative encompassed by Gerzeski, are not provision. pre-1964 case There is no intent of applies recognizes or either an "inten- law that exception, "negligent” any or a tional” form. in the unnecessary Thus, embroiled it is to become precipi- many complicated issues that were opinions. by the Rosario and Gerzeski tated exception trespass-nuisance on the focuses condition, mind of the than on the state of rather Moody’s opinions By contrast, Justice defendant. in Rosario and Gerzeski would included all have scope "intentional” nuisances within exception. Fitzgerald would have broad- Justice nuisances, all ened the to include negligent. Because Justice whether intentional "swing Moody decisions, in those his was vote” the exception version of the has intentional-nuisance Appeals.13 adopted often the of most Court been originated tragic in and Both Gerzeski Rosario plain- involving Rosario, In the accidents children. decedent, old, in months drowned an tiffs nineteen Appeals, as cases in Court of as well See the instant cases the cited footnote 14. in Co v Oakland Beickley, because of allegedly drain that existed

open sewer com- negligence. plaintiffs The the defendant’s Lansing "knew City plaint averred top no on said known that there was should have drain,” inherently "constituted an the drain condition,” had done city which dangerous of "attrac- There was also a claim nothing about. tive nuisance.” Justice Kav joined by Chief Fitzgerald,

Justice anagh found that broad Levin, and Justice plaintiff and that exception existed nuisance fact; in therefore pled nuisance sufficiently had immu on based summary judgment attractive nui concept improper. nity to the facts of inapplicable was held to be sance Rosario. Justice Justice Wil Moody, joined by result, have with that but would concurred liams, of the intentional-nui the formulation applied opinion that he described his sance Gerzeski. Justice Cole joined by Justice Ryan, man, dissented. Gerzeski, twelve, ages ten and boys, two been created pond in a that had

drowned it "bor when highway department defendant constructing portion soil for use rowed” drain, 'flowing "a preexisting from a I-75. Water pit, of the borrow the surface well’ beneath surrounding lake combined the water level of the Id., 154. The had p boys fill with water.” pit frozen surface and apparently on ventured out the drain flowed point at had drowned where one boys The father of also pond. into the out to he went look them. The drowned when gross alleged attractive department highway on the negligence part Commission. Highway the State Justice Chief Fitzgerald, joined by Justice Kav anagh adop- Levin, again advocated and Justice 172 430 Mich 139 by Opinion Bkickley, J.

tion of an expanded nuisance exception. Court The in Gerzeski had found that Appeals of tres- only pass-nuisance within per se fell the nuisance exception. Moody

Justice opined that hold govern- the "[t]o ment immune from consequences of its inten- tional acts which create a nuisance would Id., be . . . unconscionable.” p 162. He would have found governmental immunity defense inappli- cable whenever the trier of fact finds that a gov- ernmental agency "intended bring about conditions which are in fact found to a nui- sance.” Id.

It is obvious that neither Rosario nor Gerzeski trespass-nuisance. Thus, involved a the exception adopted is today would not apply to either case. perceive Because we pre-1964 no historical basis for an intentional-nuisance exception, we exists, find that no exception such and we decline to enter the debate over the proper definition of adopting intent. By approach historical is mandated tort liability act Ross, we questions also avoid related to the sufficiency requisite intent —issues with Appeals which the Court of grappled has since Rosario and Gerzeski.14 14 Moody bring Justice articulated an about the condi "intent[ ] standard, Rosario, tions which are fact found to be a nuisance” p 142, supra, by plaintiff-appellee App Appeals judges which is advocated some Court of Michigan, in Veeneman. See Martin v 129 Mich (1983) 112; (dissent); Carney Dep’t 341 239 NW2d v (1985) (concur Transportation, App 690; 145 Mich 378 NW2d 574 rence). majority Appeals panels plaintiff of Court of hold that a purpose causing must show that the defendant either acted 'substantially the harm or knew the harm was certain’ to follow.” Detroit, (1985). 194; See, App e.g., v 143 Mich 371 Sanford NW2d 904 Carney Dep’t Transportation, 690; App v 145 Mich 398 NW2d 594 (1985); (1983); App 590; Petoskey, v 124 Mich Keiswetter NW2d 94 Michigan, App 100; (1983); (1983); Martin v 129 Mich 341 NW2d 239 130; Transportation Dep’t, App

Pate v Pacini v 339 NW2d 3 Detroit, 1; (1983); App Crosby NW2d Co v Oakland version of the

Although broadest problems application, not as present many does for the same inten- rejected it is reasons version. The broad view would tional-nuisance negligent and intentional— include all nuisances — exception. of the There are purview within the support reasons creation undoubtedly policy interpretation exception, of such a broad of but undercut policies severely those have been act this governmental immunity interpreted as in Ross. Court Ross, Legislature’s

In we addressed obvious immu- intent to the field of occupy law, impose and we moved nity carefully judi- upon cial construction those terms only Therefore, required interpretation. statute of either of the majority options endorsement Rosario or Gerzeski would contradict the clear import of Ross.

2 Ryan, In addition to trespass-nuisance, Justice dissents, in his in- Rosario/Gerzeski would have per cluded nuisance se as a of liability. basis act, per occupation, nuisance se is an ”[A] Detroit, 213; App (1983); Detroit, 123 Mich 333 NW2d 557 Ford v 91 (1979). 333; App 283 NW2d 739 confusion, panels allegations To to the add some commissions, have found that of omissions, opposed automatically negligent as are See, Comm, e.g., rather than intentional. Furness v Public Service 100 365; (1980); App Twp, Mich Mich 299 NW2d 35 Schroeder v Canton (1985). 439, 443; App 377 NW2d 822 While others have found pleading that use of the word "refused” is sufficient to take a out of realm, See, negligent e.g., and into the intentional. Pacini v Detroit, 1; (1983); Rosario, App supra, p 126 Mich 336 NW2d 882 see J.). (Moody, Judge City As noted Garcia v Kaufman Jackson, 254, 264; (1986), App practice, 152 Mich 393 NW2d 599 "[i]n intentionally merely the distinction between tortious conduct and negligent conduct is often so that an act otherwise tradition- blurred recognized negligent ally conduct is deemed to be intentional.” 430 Mich structure which is a nuisance at all under times and circumstances, any regardless of location or surroundings.” [Rosario, supra, p 133.] Since none of the in the cases at bar per se, have claimed a nuisance since such implausible claim would be under the facts of cases, these we decline to consider at this time the viability per exception. of a se pre-1964

However, we note that three are cases support often cited the inclusion of nuisances per exception: Royston City se within the v (1936), Charlotte, 255; 278 Mich 270 NW 288 Trow bridge Lansing, City 402; 73NW (1927), Twp Attorney Wyoming General ex rel Rapids, supra. v Grand We also observe that two category trespassn of these cases fall into the uisance.15 Trowbridge, plaintiffs sought abatement operation city’s "piggery,” essentially of a hogs kept

site where municipal were and fed truckloads of garbage. alleged plaintiffs "physical had discomfort sickening, nauseating, and offensive

from the "they annoyed by addition, in odors.” In were flies great unusual numbers.” Insects and odors trespassory may characterized as intrusions of a be plaintiffs’ property presence on the nature. Their constituted a nuisance and was the control within municipal of the defendant. may Attor- be drawn from

The same conclusion Twp, supra. Wyoming ney In General ex rel sewage city’s depositing in case, of the defendant alleged a nuisance was to be the river plaintiffs riparian plaintiff in Like the owners. emphasized equitable Trowbridge Wyoming nature Both Thus, questionable granted. whether these cases it is of the relief governmental immunity. nSee in the context of even be cited should 5. Co Drain v Oakland Bkickley,

Trowbridge, sought of these abatement Pennoyer, Ashley, and Sea- nuisance. alleged (175 man were cited as controlling precedent 534), compensation to just and several references id., 534, sewage were See 539. The pp made. land, id., allegedly upon” plaintiffs’ p was "cast 505, Thus, trespass-nuisance. a certainly both in Trowbridge and Wyoming, of the activities while capable being per described as nuisances se, clearly trespass-nuisance were line with the exception adopted today. Royston has been subject interpretations.16 to various

Nonetheless, per no because nuisance se is al- leged cases, in these we refrain at time this from a complete these analysis cases. leave We day question another whether there is suffi- precedent cient historical support nuisance per se exception.

Although vast majority applying cases exception nuisance immunity prior to the enactment the governmental tort liability act 1964 involved trespass classic intruding private property, onto there is at rule, least one Pound Garden to this Dist, City School 499; 127 NW2d 390 (1964), discussed below. This apparent departure Moody’s opinion Gerzeski, 159, supra, p interpreted Justice Royston excluding only negligence purview as claims from the exception, thereby leaving open the door to the inclusion of "inten contrast, By Royston tional merely stating nuisances. Ryan Justice read per exception. Id., that nuisances se were in the included p n 7. import We find that both of these views tend to stretch the Royston Royston alleged negligent decision. The Court held that the dictum, municipality’s acts immunity. fell within the In it indicated per that immunity se nuisances "do not come within the otherwise supra, Royston, p adopt Royston’s accorded.” misstatement 260. We decline to the of law. precedent public analo- from involved a private gous trespass-nuisance, with no to but property However, nui- as with at stake. interest per full se, consider the we do not now sance import of Pound case. the plaintiff injured on ice cre- Pound, the was drainage by improper on a sidewalk

ated applied property. The Pound Court from school quoting extensively case, Ferris, that from plaintiff’s allegations the were within held the Ferris criterion person " injury of to the 'a direct plaintiff, the of of while outside limits the ” p premises.’ Id., the defendant’s 501. refused to The Pound Court plaintiff a who is establish a distinction between upon premises by directly injured while his own plaintiff and another wrongful the act of defendant directly place, in a injured is such who likewise right he public way, has a be and a where subject authority is defendant. which not justification Such distinction would be without [Id., logic public policy. p 502.] might Thus, for an Pound used as basis argument public nuisance, which that a form trespass-nuisance but occurs mirrors the situation public property, included on should be within historically recognized exception.17 However, we question whether such decline address 17However, argued may is also be that Pound not within it incorporate Legislature body into 7§ case intended to law that act, original liability 170. tort 1964 PA of the language incorporated immunity from of 7 all § the last sentence "heretofore, immunity hereby liability existing af- tort firmed.” which 170, 1132, See 1964 PA SB n 1. The bill became 24, 6, 1964, passed February on the Senate on March introduced Although passed April Pound 1964. House 1964. was decided 22, 1964, April signed by it was with on the bill amendments 19, 1964, post-Pound May on none of the amendments Governor related language. to the "heretofore” 177 v Oakland Co Drain Opinion J. exception

limited nuisance has a sufficient historical the cases at basis because none of bar to Pound. analogous are

IV Applying governmen- to herein, tal as defined immunity we affirm the Hadfield v decisions of the Court of in Appeals Oakland Co Drain Comm’r and McCaul v Lake in Odessa, finding the exception applicable. We re- verse the decisions of the Court of Appeals in Michigan Detroit, Veeneman v v Landry where defendants were denied There immunity. are three Hadfield, presented additional issues in Veeneman, and Landry, which are discussed context of respective their cases.

Three of the four cases at bar resulted sum- 117.2(1) (MCR mary judgment, 1963, GCR 2.116[C][8]). We note that under this rule the court factfinder, "does not act as a nor does the court attempt probe parties’ ability prove their allegations. Thus, the court accepts as true all well-pleaded facts.” Abel Eli Co, Lilly & 311, Mich 324; 343 (1984), NW2d 164 reh den 419 (1984), cert den sub nom Squibb ER & Sons, Abel, Inc v (1984). 469 US 833

A HADFIELD v OAKLAND COUNTY DRAIN COMMISSIONER

This case arose out of the flooding of plaintiffs’ sod farm allegedly caused by the obstruction of the Big Meadows and Paint Creek Drains due to defen- dants’18 prevent failure to the installation of cer- Department longer of Natural Resources is no a defendant in judge this case. plaintiffs The trial proved found that had not inten- 430 Mich 139 Beickley, to remove subsequent failure tain culverts19 those culverts. from the permission requested from the to remove dirt commissioner20

drain land. backing onto their water from keep drains beginning evidence that Plaintiffs introduced which, for a "drainage tiles” they installed time, eliminated completely largely period problem. the 1967, to

However, complained plaintiffs in the improper function- about the drain commissioner The son bulldozed plaintiffs’ of the drains. ing drains, functioning their until improved which 1969, in and again plaintiffs complained 1969. The out and bulldozed the their son cleaned again 1973, to hired a contractor drains. In drains, but, great quantity clean the because drains, to the contractor was unable of mud in the petition not to the task. Plaintiffs did perform out the drains. commissioner clean have the drain 280.194; MSA 11.1194. MCL See in 1972 began that The accumulation of water in to off than had the water longer took drain 1973, drain commissioner’s previous years. wrote to the culverts and letters office discovered installed them contacted those who had Appeals dne, affirmed. to the and the Court tional nuisance as appealed ruling. Plaintiffs-appellants have not that neighboring landowners. The were installed 19 Theculverts County Drain Commissioner of had the Oakland landowners their informed However, they 1970. intent to install some of the culverts in juris (incorrectly) commissioner lacked informed that the drain were nothing prevent part do to that of the drain and could diction over installation of the culverts sioner, proposed. Eventually, commis the drain 1976, brought against the landowners to have suit culverts removed. charges Code, seq.; seq., et MSA 11.1001 et The Drain MCL 280.1 responsibility County with "the Drain Commissioner the Oakland widening maintaining, deepening, establishing, inspecting, and other controlling operation County drains.” The and flow of the wise Big jurisdiction within the Creek Drains are Meadows and Paint the drain commissioner. v Oakland Co Drain Opinion by Brickley, pursue negotiated removal of the cul- dnr approach failed, verts. When this the drain com- office, 1976, missioner’s who had sued the landowners installed culverts.

Plaintiffs discovered the culverts com- plained eventually commissioner, to the drain brought against suit in 1977 the current defen- Department dants and the of Natural Resources. complaint The contained four counts. "Trespass count, Lands,” first entitled

alleged that defendants’ actions and omissions resulting in the obstructions to drains caused permanent damage plaintiffs’ "virtually land destroy[ing] . . . the sod farm business .” Plain alleged they repeat tiffs in 1975 and 1976 had edly requested the to take defendants action re garding drains, the condition of but that defen dants failed to do so. Because of defendants’ fail plaintiffs alleged ures, stopped

the waters were obstructed and so as to up large quantities back flow in across and upon property, trespassing the Plaintiffs’ there- upon inundating of and the lands the Plaintiffs’ depth sod farm of feet muddy to a several with water, causing the Plaintiffs’ sod farm to inun- destroying present crops, dated and chattels, and future equipment, pro- fixtures and the land of ductivity and the like .... alleged taking

Count ii an "unconstitutional of compensation.” land without that Plaintiffs averred through act, their acts and failures to defen- dants had interfered, hindered,

unjustifiably unlawfully and prevented deprived the Plaintiffs of the use of purpose they the lands for the had which been used and were intended. 430 The in nuisance. public sounded third count

The alleged plaintiffs standing on water large

that the accumulation health a serious land the Plaintiffs’ constitute^] .... hazard man- sought count fourth plaintiffs’ the

Finally, removed. immediately drains to have the damus disputed jurisdiction its drain commission The It did concede fulfill its duties. failure to and its argued It blockage. culverts constituted that up as far flooding not cause blockage did that flooding farm and that plaintiffs’ the drain heavy a combination caused was instead land, nature and the marsh-like rainfall flooding. pre-culvert apparent by made E. heard Farrell Roberts Judge Circuit Oakland June, 1981. Sum- May, April, testimony (tres- i counts entered as to was mary judgment (mandamus). (taking) n Count pass) and iv on defen- completion proofs at dismissed dants’ motion. only

Thus, addressed opinion the trial court that hi, The court observed public nuisance. count [govern- created judicially "there is a has plaintiff where immunity] mental The court . nuisances.” alleged . . intentional opinion fact that its preliminarily noted public the existence of both pled had private nuisance. claim,

However, regard had failed. plaintiffs’ proofs the court held stated: judge testimony or evidence adduced no Plaintiffs have the Defendants’ tend establish which would to "an interest common in harm activities resulted Co Oakland v Opinion by Brickley, general public, peculiar to the rather than to one individual, Twp Young; several.” [Garfield 337, 342; (1957).] 82 NW2d 876 Relying on the definition private Kilts, supra, Judge Roberts found that offered in plaintiffs had established the private existence of a nuisance created defendants. bar,

"In the case at Plaintiffs have introduced evidence that failing Defendants’ activities in to remove the silt from allowing the drains and in installed, the culverts to be have created a condi- tion which flooding problems exacerbated the on Further, the Plaintiffs’ farm. the Plaintiffs have adduced evidence that the ocdc allowed this condi- adequate tion to continue after notice of the dam- ages being Additionally, caused. Plaintiffs have shown that dants condition created the Defen- prevented the Plaintiffs from carrying on their permitted. sod effectively business as as the terrain Therefore, this Court finds that Plain- tiffs have private established the existence of nui- sance created the Defendants.” The judge then proceeded to determine whether private "intentional,” nuisance was having interpreted Rosario as requiring that determina- tion. Employing the test of "knowledge that harm to the plaintiff was 'substantially certain’ to fol- low,” jdnr’s n see judge found that actions were not intentional. If anything, the court found them to be negligent, but also found that "upon being notified of these problems the dnr began take steps such as were permissible ... Thus, rectify situation.” standard, even under a negligence ap- the judge peared to indicate the dnr would not be liable.

Regarding the defendant commission, drain how- J. requisite The intent. the ever, court found the although was the commission that court noted early problem 1967, aware as the of aware of steps proposed not take it did as of culverts the plaintiffs Thus, 1976. until remove them to "demonstrat[ed] the continued to have found were commis- [drain the nuisance after of the existence harm to to that have known or should sion] 'knew substantially certain Plaintiff[s] was the follow.’ ” Judge issue of dam- addressed the then Roberts damages approx- alleged ages. plaintiffs of had The composed damages imately $2,300,000. were These profits profits, past until the land lost future lost of returned replanting. cleanup and normal, of the and costs to findings, judge that stated the In his dispute evidence Plaintiffs’ did not "[defendants . . . .”21 amount] [as to this par- position judge the two between took apparently believed He of events. ties’ versions that culverts flooding would which exacerbated anyway the the nature of due to have occurred unusually heavy 1975, and he rainfall land damages they percent one awarded sought. response drain commission’s to the defendant

In notwithstanding verdict, judgment the motion for or sions ‘of findings clarify conclu- of fact and motion to entry plaintiffs’ of motion for law, and to judgment, and award and interest taxation of costs opin- judge expert fees, issued another the trial of findings. affirming its earlier ion allegation response that it had defendants’ brief, they that did not admit claim In their defendants However, accurate, they state at trial. did so amounts were contradicting de- the losses not introduce evidence defendants did damages went case on by plaintiffs. of defendants’ The thrust scribed to flooding, they plaintiffs’ causation; disputing due to losses not while flooding. placement not cause the argued the culverts did v Oakland Co Opinion by Brickley, question failed to address of causation in re- finding gard private its nuisance, the court quoted findings, "clearly from its earlier which stated that the conduct of Defendants was damages.” cause in fact of the Plaintiffs’ Regarding finding nuisance, its intentional quoted court definition from Rosario and holding negligent reiterated its that defendants’ knowledge acts, combined with their that harm substantially follow, certain to amounted to requisite intent. findings The court declined to amend its of fact experts state one defendants’ had visited change the farm. The court noted that such a would not affect the outcome because of the court’s weight plaintiffs’ discretion to accord more to the experts than to those of the defendants.

Finally, granted part the court and denied in part plaintiffs’ entry judgment, motion for taxa- expert tion interest, of costs and and award of fees. plaintiffs appealed damage The the award with- seeking out a modification of the award a new judge. trial from the trial Defendant drain com- Big missioner, and defendants Meadows Drain and cross-appealed Paint Creek Drain on the issue of governmental unpublished immunity. opin- In an Appeals ion, the Court of affirmed the decision of the court on both issues. trial

Regarding application of the "intentional nui- exception, sance” the Court found: amply supported finding evidence a that [T]he defendants causing continued the condition the knowledge nuisance with full plaintiffs had property damage sustained considerable and that plaintiffs’ injury further interests was substan tially certain to occur. v Oakland [Hadfield Co Comm’r, unpublished opinion per curiam of 430 September Appeals, 20, Court of decided (Docket 68789).] No. misread that defendants had The Court concluded opinion court trial court and the lower the had properly that defendants had created found maintained an intentional nuisance. viewing damages Regarding issue, Court, "great weight appeal of the evidence” rejected challenge award, amount they plaintiffs’ had moved claim not first because Further, trial in the circuit court. for a new that, motion, review of held absent such court adequacy permitted unless is not the there was the award insufficient) (i.e., support no evidence the verdict. plaintiffs’ applica- Appeals Court of denied

The plaintiffs rehearing, appealed to this tion for cross-appealed. appeal Leave to Court. Defendants (1986). granted. 424 Mich 876 immunity, Regarding the issue of represents case a clear find that Hadñeld we trespass-nuisance. example of an actionable an inter- trial court found that ference with suffered enjoyment land. of their use physical intrusion onto The interference was property county private the that was caused or to act. actions failure drain commissioner’s trespass-nuisance Thus, for which it amounted to a may county held liable. the drain commissioner be directly in line with the The Hadfield case is prior exception it to the enactment evolved liability The facts of tort act. the remarkably the to one of are similar Hadñeld Sagi Pennoyer cases: v earliest Hadfield Co Oakland Opinion by Brickley, supra, plaintiff alleged naw, in which the that the city surplus "whereby maintained ditches the sur- city upon face water is thrown the land of plaintiff, great injury.” early to his Another Ashley supra, case, Huron, v Port also involved flooding, although, Pennoyer, flooding as in (rather directly to a was failure to tied deliberate act than act) by Rice, the defendant. See also supra. trespass-nuisance

The "direct act” element of time, however, was weakened over so that eventu trespass-nuisances ally, stemming negligent from acts held to be were actionable. The Seaman case directly point regard. Seaman, on in is defendant failing this

city negligence held liable for its drainage system to maintain its which plaintiff’s an caused invasion water on the property. supra, p Likewise, Herro, Court right recovery "the described common-law trespass, for destructive water no who matter private trespasser-flooder might be trespass-nuisance Thus, under the historical ex- ception today, agree that is reaffirmed we with the court’s that lower determination the defendant flooding may held liable for the to the farm.

The second issue Hadñeld relates to dam- age appealed. award which have Appeals claim and the held

Defendants Court plaintiffs’ appeal since an could not be heard arguing appeal against of an award is amount great weight only can of the evidence preserved by if a motion for a new be considered trial made before the trial court.

186 430 Mich 139 Opinion by Brickley, J. erred in Appeals

We believe that the Court concluding "great weight the of the evidence” plaintiffs’ appeal. the sole basis was, however, in Court’s error understandable light clarity consistency of the lack of and brief. Plaintiffs’ brief referred to and plaintiffs’ following grounds appeal: the four for the confused damages whether the amount of awarded the the against great weight trial court was evidence,22 whether there was insufficient evidence award,23 the amount of the support whether error,24 amount of the award constituted clear and whether the trial failed to base his conclu- judge damages upon findings sions as to sufficient of fact regarding causation.25 damages manifestly . . lower court’s awarded . [T]he [are] inadequate contrary great weight and to the evidence. [the] findings respecting damages utterly court’s are lack [T]he ing support, evidential and bear no rational relation [sic] proofs. ship to the given Even if the court is the benefit of the and one doubt any support considers rational view of the record would [that] award, damage unexplained the court’s use of the formulaic approach calculating compensable clear losses [sic] error. upon Since the issue of causation in this action turned tangible considerations of drain matters —such as the size of the district, through depth, passing drain volume water [of] drain, table, flow, the water visual observation of water consequential silting and the measurement of obstructions effects—the assessment of according damages should have made been testimony to assessment of this data. Since the and, provided additionally, comprehensive inspections this data during period question, by taken at different times both experts layman, ample the court had material to work sifting through opinions judging data with. After formulated after inspections, applied the court should have against conclusions it drew from this the undis- assessment v Oakland Co

Each of arguments these appellate relevant review of a trial court’s ultimate conclusions. The three, however, first opposed last, as to the require that an appellate court review the evidence and determine, to the degree required by particu review, lar standard of whether the trial court’s conclusions are consistent with that evidence. The requires only a determination last whether adequate trial court made findings of fact to ex conclusions, plain its ultimate and no inquiry into of accuracy findings these is necessary.26 puted estimates business losses suffered the Hadfields year year. from of the farm were to The court should have decided which areas impacted actually upon [by] the nuisance [sic] acreage actually and determine how much of the of sod was lost in those areas. solely proper Defendants have focused on the review of the accuracy judge’s They argue of the conclusions. that a motion for a prerequisite appellate "great trial a new is review under the weight proposition they of the evidence” standard. For this cite four cases, 439; Jermstad, jury all of involved which trials: Davis v 350 Mich (1957), Peters, 182; NW2d Nadolski v 332 Mich 50 NW2d (1952), DeGrandchamp, 439; App 744 (1976), Groth v 71 Mich 248 NW2d 576 Freight Lines, 307; App and Walls v Transamerica (1971). proposition applies 194 NW2d 422 Whether this to bench trials questionable. is Underlying requirement the new trial motion is our concern that appellate may trial law upon fact-finding province jury. courts not invade the of a We not, such, However, jury’s finding a review fact for error. a judge’s improper denial of a motion for a new trial is an error of may thus be reviewed even when that motion was based jury. the factual error of a However, 1963, 1963, GCR 517 and GCR 810 would seem to indicate that in a trial the same bench considerations vis-á-vis the factfinder that, jury, are not relevant. These rules make clear unlike a trial upon judge must list facts which he bases his decision and that an appellate findings challenge may judgment any court reverse the whenever of those Thus, clearly "great weight are erroneous. of the evidence” setting. would seem to be irrelevant in the trial bench light adequate of the fact that the trial court failed to make fact, findings parties’ apparent we do not now resolve the confusion (i.e., concerning proper appeal "great weight form of of the erroneous”) "clearly preserve necessary and motions evidence” appeal accuracy adequacy such findings where the rather than the of factual will, however, question. in a bench trial is in We consider appropriate clarify administrative action to the relevant rules procedure. 430 Mich Opinion by Brickley, judge’s findings It is the trial failure to make dispositive fact that of this issue. GCR pertinent part: 517.1 states In all upon actions tried the facts jury without a or with an advisory jury, the court shall find the facts specially and state separately its conclusions of law thereon and entry appro- direct the priate judgment. necessary need Requests . . . findings for are not purposes review. No any finding be taken to or decision. Once the existence of a nuisance and defen- responsibility dants’ for it case, were shown in this question the critical became the amount of dam- age plaintiffs’ land caused that nuisance. flooding Since defendants admitted that had oc- argued curred, but it was caused factors culverts, unrelated to the installation of the damages amount of for which defendants were only by determining liable could be ascertained flooding how much of the was caused the instal- court, however, lation of the culverts. The trial attempt made no to do so. findings damages

The trial court’s toas are no summary testimony more than a and the of the witnesses’ parties’ quite simply evidence.27The court argued damages not, Defendants have also that the amount of as such, not, therefore, finding may of fact and be reviewed for clear However, question. error. We also need not reach this we observe that consistently damage the federal courts have held that the size of a award is a factual determination based on the evidence and reviewa- Manausa, "clearly E.g., ble under the erroneous” standard. Smith v (CA 353, 6, 1976); States, 535 F2d (CA Felder v United 543 F2d 657 (CA 9, Orleans, 24, 5, 1976); 1973); v 484 F2d Jacobs New (CA 1, Corp Wheeler, & 470 F2d Welch Carr Construction 1972). findings findings The court’s introduction to its of facts and those relevant to causation read follows: Court, parties, having representations This heard the of the evidence, having testimony having taken reviewed the following findings makes the of fact: v Oakland Co Opinion by Brickley, 33. That Glen Hadfield testified on behalf of Plaintiffs. He graduat- testified that he had worked on Plaintiffs’ farm since ing in 1972 longer high testimony from school. commencing His indicates that property water accumulated on Plaintiffs’ and took prior years than to drain off. Moshier, neighbor Plaintiffs, 34. That Delbert a sod farmer on testified behalf of property Plaintiffs that the drain near his draining full properly. of silt and not He also testified that requested he had not the ocdc to clean the drain but instead had done so himself. He further testified that he continues to any flooding. farm that the rains were Lastly, sod and has not lost he testified unusually heavy in 1975. expert 35. That Delton Lohff testified as an on Plaintiffs’ professional engineer behalf. Mr. employed by Lohff is a Hieft Engineering. visually farm, 36. That Mr. Lohff observed the Hadfield drains and the of the area maps culverts in 1975. Mr. Lohff also examined including Geological Survey’s the United States quadrangle maps. arriving at his conclusions Mr. Lohff did not take into account rainfall data and did not measure the drainage area or stream flow. testimony 37. That Mr. LohfFs indicates that the Hadfield lying high farm is located on low land with a water table and loosely plain. could be characterized as a flood Mr. LohfFs testimony may portions further indicates that of Plaintiffs’ farm swampy be characterized as or wetlands. testimony 38. flooding That Mr. LohfFs indicates that the exacerbated, part, the Hadfield farm was caused in improper presence maintenance of the drains and the culverts. portion 39. That a former owner of a of the Hadfield farm flooding testified years. period farm. every occurred on the farm two or three witness, Wart, during This Mr. further testified that ownership of his no drain tiles had been installed on the 40. That James Boulton testified on behalf of the Mr. dnr. employed by Boulton is ment Manage- the dnr as its Flood Hazard professional engineer Chief. Mr. Boulton is a licensed degree engineering with a Michigan. University civil from the 41. That Mr. Boulton did not visit the Hadfield farm in preparing findings. his Mr. surveys Boulton relied on field by consulting engineers development submitted along in a subdivision Big Meadow and Paint Creek Mr. Boulton [D]rains. surveys by further relied on field submitted him the ocdc. 42. That Mr. Boulton characterized the Hadfield farm as swampy or a wetland and stated that the area could be charac- plain. terizes as a flood [sic] 43. That Mr. Boulton further testified that the most severe Mich by Bkickley, failed to express its own view as to this evidence or a factual basis for damages A awarded. mere recitation of the parties’ claims without find ings as to which claims are true or in part true is insufficient. Patrons' Mutual Fire Ins Co v Good man, 66; 167 Powell v (1918); NW2d 955 Collias, (1975). 709; Mich App 229 NW2d 897 Instead, findings must disclose basis for each

[t]he necessary ultimate fact to sustain the court’s con- clusions of law. flooding up occurs when water rises to but not over a culvert. upstream He stated that this would increase the water level at Ramsey Road nine inches but that the water would not overflow the banks onto the land. He further stated that as the proceeded drain further into the Hadfield farm the water level impact would diminish and the on the farm would be minimal. opinion flooding 44. in Mr. That Boulton’s of the Hadfield farm was not due to the installation of the culverts. Snyder 45. That David testified on behalf of Defendant ocdc. Snyder employee Snyder Mr. is an of the ocdc. Mr. testified as surrounding application to the circumstances the farmers’ He also culverts. testified that the Hadfield farm contains a swampy wooded area. 46. That Bob Fredericks testified on behalf of the Defendant ocdc. Mr. Fredericks testified as to the use of welfare ocdc’s crews to maintain the the Mr. drain. Fredericks also testified as to availability repair of funds to maintain and the drains. McCoy. 47. That Plaintiffs called in rebuttal a Mr. Mr. McCoy non-degreed registered surveyor. is a land findings McCoy survey 48. That Mr. at arrived his use of maps, making actually area cross sections of the after

walking compiling longitudinal the drains and then the data on drawings. findings McCoy’s 49. That Mr. indicate that the culverts impinge upon adjacent the flow of water to Plaintiffs’ farm. Mr. McCoy further testified that there is a natural fall in the drainage system which allows water to drain off the Hadfield clogged Lastly, McCoy farm. with silt. Mr. testified that the drains were 50. That the introduced exhibits which indicate Defendant heavy unusually rains fell in the area of the Hadfield farm that in 1975. Co Dkain v Oakland Opinion Brickley, J. include as much of findings fact must The necessary to disclose the as is

subsidiary facts steps by which its ultimate the trial court reached findings each factual issue. on conclusion should be made disclose to the which will specificity at a level of reviewing made as court the choices premises the critical competing factual at between the ultimate conclusion of fact. point that controls is, given choice as to the point That at the where inevitably to the ultimate facts leads concrete conclusion, findings should disclose the choice Hawkins, Honigman .... & which was made [2 (2d ed), p Michigan Annotated Court Rules 594.] ultimate conclusions as to dam- judge’s The trial follows: ages in this case read as flooding finds while occurred at This Court prior the Hadfield farm nuisance, the to the creation of the nuisance increased or exacerbated provided . problem. . . Court was not [T]his regard ag with exact measurements with gravation flooding of the of the Plaintiffs’ farm. However, based on this Court’s evaluation of [sic] witnesses, and the demeanor of the the evidence (1/100) this Court that on finds one-hundreth [sic] damages provide claimed would reasonable compensation aggravation for the of Plaintiffs’ flooding problems. damages Plaintiffs estimate that to their years farm over the amounts to between Two Million, Thousand, One Hundred Seventeen One ($2,117,188.00) Eighty-eight Hundred Dollars and two and No/100 Million, Thirty- Two Three Hundred Thousand, Eighty-eight One Hundred and No/ ($2,332,188.00) Dollars. As the Defendants did evidence, dispute not Plaintiffs’ this Court will Thus, accept higher figure. applying our for mula, Plaintiffs are entitled to one one-hundredth (Vioo) higher estimate, of the Twenty-three Thousand, Three Twenty-one Hundred and 88/100 ($23,321.88)Dollars. 430 Mich 139 Obviously, the trial judge believed that the flood- ing was in part due to the installation culverts and in part However, due to other causes. he failed to any make factual findings support one-percent his formula. See n 26. To the contrary, the one-percent formula seems to have been wholly and is arbitrary un- precisely type of supported 1963, conclusion that GCR 517.1 was designed to prevent. An unadorned citation to "the evidence and the demeanor of the witnesses” does begin not to accomplish purposes of the rule. sum, we hold prior that a review by the trial court is not necessary preserve for appeal question whether the trial court made findings of fact pursuant 1963, to GCR 517.1. Accordingly, we remand this case to the circuit court for further and more specific findings fact, a damage award upon based and, those findings, if necessary, taking of further evidence on the question of the amount of damage resulting from defendants’ ac- tions or failure to act.

B VEENEMAN v MICHIGAN Plaintiffs decedent was in fatally injured a dune buggy 23, accident on May 1981. The dune buggy overturned in the Park, Silver Lake State Oceana within County, an area designated for use off- road vehicles.

Plaintiff brought this wrongful death action in March, 1982, against the State of Michigan,28 alleg- ing negligence stemming part from defendant’s alleged failure inspect vehicles, to regulate the operation of the off-road vehicles in various ways, brought against Plaintiff Appletree had a second action Automo tive, Inc., Appletree which was consolidated in the circuit court. is not party appeal. to this Co Drain v Oakland Plain- personnel. medical adequate provide in September, filed complaint,

tiffs first amended nuisance, allega- based on 1982, added a count fact, alleging that and a count tions of proprietary to a activities amounted defendant’s was based also claim function. The nuisance-in-fact regu- improperly allegations that defendant on off-road vehicles and lated "[defendant of a similar injuries deaths and previous aware of area, prob- to correct in the but failed nature lem.” 2, 1983, Terrence R. Thomas Judge May

On summary judgment motion for granted defendant’s 117.2(1). held the The court under GCR and the immunity action barred statute, 300.201; user MCL MSA recreational 13.1485.

The trial court found to this matter

that providing the State’s interest relative public parkway consistent with both general concerning governmental im- the munity together the other statute of off-road vehicle areas . . . are statute mandatory provisions of with the protec- such that the State would be entitled to the governmental tions doctrine immunity .... granted plaintiffs The court also motion to amend complaint. its complaint

Plaintiffs second amended added an count, negligent intentional nuisance nuisance count, sounding gross negligence as well as one and or wilful wanton misconduct. The intentional previous nuisance claim was a restatement claim, under a new title. Judge Thomas entered a final order of dismissal granting defendant’s motion for summary after appealed, on June 1983. Plaintiff judgment 139 Mich Opinion by Beickley, Appeals part the Court of affirmed in and reversed part. Appeals The Court of held that the action was governmental immunity except barred as to plaintiffs allegation of intentional nuisance and that the was not action barred the recreational Judge Kelly user act. dissented from Court’s finding plaintiff sufficiently pled had inten- tional nuisance.

The Court stated the rule from Justice Moody’s opinions regarding in Rosario Gerzeski definition of n intentional nuisance. See 14. The allegations negli- Court held gence, allegation combined with his previous that defendant was aware deaths

injuries area, of a similar in the nature and know- this, ing appropriate measures[,] failed take [143 694, 701; App (1985),] NW2d allegation constituted a sufficient of intentional nuisance. accepted plaintiffs arguments also Court finding

under the suit. act, the recreational user no bar to dissenting opinion, Judge In his Kelly focused plaintiffs complaint alleged on the fact that had only part omissive acts on the of defendant. He " would have held that 'acts of omission rather generally than commission are not characterized ” (citations omitted). p Id., intentional torts.’ Accepting pleaded plain as true the facts Veeneman, tiff in we find that there nois basis for holding trespass-nui the state liable under immunity sance that is allegations described herein. There are no of tres intruding passory or nuisance and no facts that support allegation. addition, would such an Co Drain v Oakland not amount do alleged Veeneman facts as se, analogous at all they nor are per nuisance Thus, it to consider unnecessary the Pound case. per of either a nuisance possible applicability exception limited or a se Therefore, we re- above. that described such as Appeals of the Court the decision verse “grant on order of dismissal based reinstate the judgment. for summary motion of defendant’s suit is barred find that this Because we to ad- unnecessary it is immunity, to the recreational raised relative dress the issues act. user

c DETROIT v LANDRY stated succinctly has Appeals The Court in this case: facts City of brought against defendant suit Plaintiffs Build Wayne Detroit Joint and defendant

Detroit inju personal Authority seeking to recover ing 18, 1981, alleged that on December ries. Plaintiffs Court, located present in Recorder’s they were City in the Hall of Justice Murphy the Frank purpose of in court for the Plaintiffs were Detroit. testifying alleged Fleming. Plaintiffs against Rosie Fleming injuries when serious they sustained knife in the courtroom. with a them attacked Plaintiffs in injuries, which their averred wounds, partial pa injuries, internal stab cluded ralysis, permanent impairment, breathing caused defendants’ scarring, proximately were in the court security provisions for inadequate negligence, alleged complaint Plaintiffs’ house. [Landry De and nuisance. of contract breach (1985).] 16, 19; troit, App NW2d are most complaint of plaintiffs’ aspects Several Opinion by Brickley, J. to relevant the two issues of this appeal. Plaintiffs based of have their claim both liability on the exception common-law nuisance and the statutory public-buildings governmental to immu- 3.996(106). 691.1406; MCL nity, i, MSA In count plaintiffs alia, alleged, inter "that the injuries hereinafter described were direct result of a dangerous and/or defective existing condition within a public building care, control, under the maintenance jurisdiction of the Defendants.” We do not reach substance of this issue second for the reasons indicated below. ii plaintiffs’

Count of second amended complaint alleged negligent nuisance and intentional nui- sance. alleged Plaintiffs defendants’ knowledge the presence dangerous persons, of the fact that other courthouses employ security measures such detectors, as metal and that metal "were detectors supposed to be to adequately protect installed public, but said metal detectors were not installed in time.” Plaintiffs alleged further that defendants had deceptive appearance caused a to safety exist in the court building through stationing inadequate personnel provide to safety to plaintiffs.

Defendants moved for summary under judgment 1963, 117.2(1), claiming OCR immu- dismissed nity. trial court complaint after granting defendants’ motion. The court articulated no basis for ruling its on the record.

Plaintiffs appealed judgment rul- summary ing in the of Appeals, Court which affirmed in part split and reversed in in a part major- decision. The ity found that summary judgment inappropri- applied ately claim, to the intentional but affirmed the disposition of all other claims. Kelly Judge dissented; M. J. he found insufficient nuisance, allegations of intentional but would have v Oakland Co Opinion by Brickley, go to exception claim public-buildings allowed the to trial. implied first addressed the contract

The majority claim, here, held issue not at which could consti- identify facts had "fail[ed] consideration, offer, reliance acceptance, tute an inference give would rise other facts which 21. Id., p that a contract existed.” public-build- regarding pleadings Plaintiffs’ deficient. were also found ings exception29 observed: Appeals majority The Court of injuries allege not that their were do [P]laintiffs building or part a structural sustained from v 70 Taylor, a fixture attached thereto. Zawadzki (1976), 545, 551; 161 lv den App Mich 246 NW2d (1977). allege not that do 399 Mich 875 Plaintiffs for being a manner the courtroom was used Unlike the cases it not intended. which Schools, plaintiffs, Bush Oscoda Area cited [v (1979)], Lockaby 716; 275 268 and 405 NW2d Mich (1979), 65; 406 276 1 Wayne County, NW2d being present in the case was used the courtroom allegations Plaintiffs’ expected, as a courtroom. as concerning dangerous condition the defective or stem from the condition Court not Recorder’s the opera- building itself but from the activities building. Consequently, tions within the conducted pub- within the plaintiffs have not stated a claim Svitchan, 100 exception. Vargo v lic-buildings 29 3.996(106) part: 691.1406; provides in MSA MCL obligation repair agencies have the to Governmental buildings open public control for under their when maintain use members of agencies public. liable are Governmental resulting danger- damage property bodily injury from a for building governmen- public if the condition of a ous or defective knowledge agency of the defect actual or constructive tal had knowledge, and, acquiring to failed time after reasonable reasonably necessary to remedy or to take action the condition against protect the condition. 430 Mich Brickley, 809, 822-823; (1980), Mich App app NW2d dis (1982). [Id., p 1035[, 22.][30] However, the Court found the intentional nui- sance allegations Regarding plain- be sufficient. pleading action, tiffs’ of a nuisance cause of majority quoted the definition from Buckeye, supra. It noted the facts of Buckeye, specifically that observing the nuisance in that case was a building found to a fire hazard and "readily accessible vandals trespassers . . .” Landry, supra, p 23. The Court . allegations held that of omissive acts do not auto- convert a matically claim of nuisance negli- into a gence Regarding claim. defendants’ argument lacked they courtroom, control over the the major- noted ity questions issue raised of fact that could not be considered on review a sum- mary judgment. intent,

On the issue of the majority applied the test that requires an bring about condi- "inten[t] Rosario, tions which nuisance,” are found to be a supra, p J.), and concluded: (Moody, allegation, Plaintiffs’ that defendants refused to measures, necessary safety pleads

take ate condition. a a deliber- act by agency to create the Rosario, p 143. Plaintiffs’ allegations of dangerous condition are on based the fact that dangerous persons brought together are with their building. accusers in conclude, same A trier of fact could circumstances, under those that the ab- 30judge Kelly, issue, dissenting regard with to this would have found that alleged which, believed, facts if [had] would allow reasonable minds to conclude that tor devices in the absence of metal detec- Murphy Frank of Hall Justice created a dangerous public building prose- in which to conduct criminal [Id., p cutions. 28.] Co Drain v Oakland Bkickley, metal detectors such as safety devices of

sence a constituted which dangerous condition created supra, p [Landry, in fact. 25.] nuisance in the Court rehearing motion Defendants’ to this appealed denied. Defendants was Appeals (1986). 424 Mich 876 granted. leave was Court public-buildings cross-appeal did not Plaintiffs issue. exception fall within does not that this case

It is obvious reaffirmed is exception trespass-nuisance whether questionable It even be may today. all, but facts at on these present is nui- intruding trespass no there was certainly invasion allegation physical no There was sance. interfer- alleged was there nor private property, Moreover, land. enjoyment the use or ence with the case public property, on although occurring Pound, the incident since analogous not at all See discus- property. defendants’ on the occurred no Pound, ante, There has been pp 176-177. sion of se, plausi- nor is one per of a nuisance allegation issue was Thus, on this summary judgment ble. holding of the and we reverse appropriate, Appeals. Court of a closer presents exception public-buildings it However, today not address we do

question. appealed. it not properly because discussed, and their brief appealed, Defendants Plaintiffs’ brief nuisance-exception issue. only nui- as to arguments to defendants’ responded trial court erred sance, argued that also but maintaining summary judgment, granting Defendants applied. public-buildings 200 430 139 Mich Opinion by Brickley, J.

then filed a reply answering plaintiffs’ brief public- buildings exception arguments.31 7.302(F)(4)(a)

MCR states: Court, Unless appeals otherwise ordered shall be limited to the applica- issues raised in the appeal. tion for leave to Press, Peisner v Detroit Free

As we noted in 421 125, 129, (1984): 5; n NW2d appellate procedure designed Our to focus the appeal provide issues on opportunity This issues in parties with an fully argue to brief and those issues. purpose injection is frustrated of new answering Appellees wishing brief. challenge rulings adverse to them should do so directly by way cross-appeal.[32] of a

D McCAUL v LAKE ODESSA The facts of this case presented are as by Court Appeals:

Plaintiffs Burton E. and Doris R. McCaul are reply point Defendants’ brief did not out that had failed addition, cross-appeal. argument, at the outset of oral counsel for defendants stated that the two issues before the Court were public-buildings However, exception. nuisance and the situation involves the Court’s since this this grant appeal decision leave to issue, may it, defendants not be said to have "waived” exclusion of thereby requiring the Court to consider it. might Plaintiffs pursuant have asked the Court to add the issue 7.302(F)(4)(b), pertinent part: to MCR which reads in any party, good cause, grant On motion may the Court request application to add additional issues not raised in the appeal granting appeal.

for leave to or in the order leave to However, plaintiff did not so move. Co Oakland Brickley, Township, in Odessa farmland located

owners of sewage 1971 a During 1970 and County. Ionia Associates, designed by Gove plant was treatment land Inc., Construction on by Leach and built boundary of adjacent to the eastern immediately operation plant put into plaintiffs’ farm. recycle Village Lake Odessa to by the in 1971 municipal On wastewater. treat Lake Odessa’s and several occasions sewage partially treated raw or plaintiffs’ land. plant onto from the water flowed near plaintiffs and another landowner In 1973 resulting damages plant jointly filed suit for the from the flow of lands. A sewage water onto their 13, 1974; August entered into on settlement was $7,500 given a release was plaintiffs received Associates, Odessa, Village Gove the of Lake The suit was dismissed and Leach Construction. prejudice. with 1981, 9, this plaintiffs initiated On November Odessa, against Village of Lake Gove

lawsuit Plaintiffs al- and Leach Construction. Associates plain- sewage released onto leged that water was thereafter, causing during 1978 and tiffs’ land judg- damage. Defendants moved for accelerated 116.1(5) 1963, ground on the that under GCR ment by settle- plaintiffs’ action was barred 6, 1982, July the circuit ment and release. On ap- motion. Plaintiffs granted defendants’ court which, per unpublished pealed to this Court an 31, 1983, reversed opinion issued October curiam judgment grant of accelerated the trial court’s the judgment Accelerated Village of Lake Odessa. Construc- of Gove Associates and Leach in favor case was remanded tion was affirmed. The taken, discovery was and a circuit court where 19, 1985. January for trial date was set 22, 1985, Supreme Michigan January On opinion in Ross v Consumers Court issued its 28, 1985, Co, Village January supra. On Power summary judg- motion for of Lake Odessa filed a 117.2(1), 1963, asserting pursuant to GCR ment by governmen- plaintiffs’ claims were barred that guide- newly enunciated immunity under tal 430 Mich Bkickley, lines of At January Ross. 1985 hearing on motion, court, this the circuit observing after that holding the Ross governmental redefined the terms on which immunity liability tort granted and the reasons for immunity, held plaintiffs’ negligence claim was barred immunity. The court did not reach question the nuisance claim. plaintiffs’ whether Ross also barred Instead, plain- court held that pled nuisance, tiffs only had ordinary not inten- Summary tional nuisance. judgment was therefore granted to defendant.1 1Third-party Associates, defendants Gove Inc. and J. Leach Construction, Inc., appeal upon have been dismissed from this stipulation parties. Odessa, v Lake unpublished opinion per [McCaul curiam of Court Appeals, decided February (Docket 13, 83172).] No. The Court of Appeals identified the questions presented as whether the nuisance exception sur vived Ross and plaintiffs whether McCaul suffi ciently pled intentional nuisance. panel The re fused to consider count i plaintiffs’ of complaint, which plaintiffs alleged had an unconstitutional taking, because the issue was raised for the first time on appeal.

The Court first upheld the viability of the nui sance exception, noting that recent Court of Ap peals cases had held expressly that the exception had survived Ross.

Regarding the issue nuisance, of intentional the Court stated that plaintiffs must allege nui- sance as well as intent. Applying definition ("nuisance from Buckeye condition”), is panel plaintiffs held that had sufficiently alleged nuisance. complaint "Plaintiffs’ clearly alleges hazardous and offensive condition. Paragraph states that raw or partially treated sewage water Co Drain v Oakland plain- time to onto time to flow allowed from

was abutting tiffs’ lands.” intent, under any held that Court

Regarding the standard. The intent, had met plaintiffs of test com- plaintiffs’ of quoted paragraph from Court of intent: finding for its support plaint informed the repeatedly plaintiffs "The have of these occur- Village Odessa of each of Lake Village has sewage, taken of flow of but rences no action to prevent stop the or to remedy or flow further incidents of this nature.” Therefore, reversed Appeals the Court finding grant summary judgment, trial court’s intentional sufficiently pled that had and leave was appealed, nuisance. Defendant (1986). 425 Mich 879 granted. applicable review the standard

Applying GCR motions under judgment summary Hadfield, case, like 117.2(1), this apparent it is trespass-nui of the the requirements conforms to Thus, the Court we affirm exception. sance inap judgment Appeals finding summary propriate. allegations are sufficient

Whether there control or of defendant’s of a nuisance existence not in dis- the nuisance are the creation of over are whether questions pute only here. complaint, plaintiffs’ exists and whether true, that conforms to a claim read as states exception. analogous directly the facts are

Superficially, sewage cases discussed flooding and early exception trespass-nuisance to which the above Rice, Seaman, Pennoyer, Ashley, See applied. case, analogous Herro. We have noted that an Twp, although rel Wyoming General ex Attorney 430 Mich Opinion by Boyle, J. example per characterized as an se, of nuisance supra (opinion J.), Gerzeski, see also Ryan, requirements trespass-nui conformed to the of a sewage allegedly case, sance. In that was also "cast upon” plaintiffs’ land. plaintiffs’ allegations regarding Hadfield, As in trespass taking and unconstitutional establish the trespass-nuisance. existence of The McCauls al- leged adjacent facility that the wastewater-treatment is property to their and that the defendants partially sewage "caused or allowed raw treated system water to flow from the . . . onto the lands sewage” alleg- of the edly . . . .” The "flow of crops; caused: contamination of their well and production; animals; death of loss of and loss of vigor among dairy health and as herd, their as well flooding, smells, obnoxious and health effects to family. plain- the McCaul count, In their nuisance village tiffs averred that the actions of the tute an interference with the use and "consti- enjoyment plaintiffs’ property . . . .” allegations Plaintiffs have set forth sufficient trespass-nuisance to avoid defendant’s assertion governmental immunity. Appeals of decision is The Court of

affirmed, and the case remanded for opinion. trial in accordance with this Riley, C.J., J., Cavanagh, concurred with J. (concurring). premise Boyle, The basic of the opinion governmental § lead tort liability requires act a continuation of the nui- prior sance as formulated to its enact- ment agree 1964 and as amended 1970 PA 155. I Legislature codify intended to immunity, common law of I I agree with the resolution of each of these cases. v Oakland Co Boyle, Opinion separately not neces- that as it is to observe

write sary law what the common in this case to decide necessary points decision, beyond it for is includes unnecessary nui- that the common-law to conclude exception only ex- those includes sance pressly theories prior Michigan

necessary I decision. to a opinion’s I that because believe also write emphasis suggests implicitly Taking Clause on the potentially viable claims. demise of other opinion the traditional is correct The lead recognized trespass-nuisance theory an is well Michigan immunity theory simply trespass-nuisance is law. The case recognized private law. at common nuisance category opinion further notes the The lead Michigan governed by public which is nuisance law, and for which a as common statute as well remedy opinion The lead would is abatement. public private remedy any nui- limit, however, sought to that is for an invasion sance which analogous trespass directly is nuisance. I which disagree required by a limitation that such common law.

i "impenetrable may an The law of nuisance agreement jungle,” are in but the commentators historically, that, has been limited to the invasion of two distinct interests. liability the the

One of these two fields bears It public common nuisance. covers name of invasion of rights, say, rights public which is to public, common to all members of the example such as for right to the free and safe of the use criminal, public origin it highway. In its until exclusively it remained teenth criminal the six- remedy century, when as an incidental tort 430 Mich Boyle, J. damages were private first awarded to individuals who could show they had particular suffered harm, distinct from that suffered other mem- bers public general. The limitations thus imposed nuisance is still and significance still have today. A ., normally a criminal offense . . recovery damages of is still limited to those harm, particular who can show from that suffered exercising of a kind different public other members of the public right. . . . liability other field of private is called nui- It sance. covers the private invasion of the interest in the use and enjoyment of In origin land. its it purely character, was mained so. It tortious in and it has re- always against land, a tort and the plaintiff’s action must always upon be founded his interest in the Torts, 2d, land. Restatement [4 40, Introductory Note to pp ch 84-85. See also (5th Keeton, ed), 86, Prosser & Torts pp § 618-619.] v Kent Supervisors, Kilts Co Bd of In 646, 651; (1910), 127 NW 821 this Court described a nuisance as follows: involves, defect, only nuisance not a but [A]

threatening if a health of the or, impending danger public, or to the nuisance, private property rights to the persons sustaining peculiar relations to .... adjudicated same While cases have been generally regard so variable that courts cal and impracticable, a techni- comprehensive definition difficult if not opinion the trend of seems to be that view to the circumstances must be examined awith ascertaining alleged whether the condition is one so serious as to interfere with the comfort of enjoyment property, threatening life and of or so impending danger persons as to constitute an to enjoyment legitimate rights. of their Prior this Court had occasion to declare public a nuisance created the state and to order General ex rel Attorney Wyoming its abatement. Co Drain v Oakland Boyle, J. Rapids, 503; Mich 141 NW 890 Twp v Grand (1913) Trow river); (disposing sewage of raw a Lansing, of bridge City 402; 212 NW (1927) a both (decaying garbage "piggery”). cases, the with the only these interference was not personal rights af property persons fected, rights large also commu but with the a nity people. Court,

Presumably, recognizing this after against government of abatement for a remedy nuisance, deprive would not private indi- special vidual who suffered harm because of the same nuisance from a well remedy established at common law. It follow the public should nuisance even where not on remedy, based inva- rights, sion of exception another’s is an property immunity. per A an govern- se is also mental immunity. Nuisance se per is but cate- gory proof which may establish an invasion of public private or rights. Nuisance or at per se law is in defined an Michigan as activity or condition which a constitutes nuisance regard without to the care with which it is conducted or the circum- v Saginaw stances under which it exists. Bluemer Service, Inc, Central & Oil Gas 399, 411; 356 Mich (1959). 97 90 NW2d

It distinguished is from the per nuisance acci- dens or nuisance in fact which is a condition which becomes a nuisance by reason circum- stances and surroundings, predi- is liability cated Id. negligence. DeMars, on See Inten- also tional nuisance in fact: Should it a bar to a function defense in Michigan?, Det C L R 773.

As the lead opinion indicates, of Roy cases ston City v of Charlotte, 255; 278 Mich 270 NW (1936), Trowbridge, General ex Attorney 430 Mich Boyle, J. Twp rel support cited Wyoming are often I exception. within the per of nuisance se inclusion from the refuse lead agree opinion with the in Trowbridge sewage and the in piggery the nui- falling within were conditions Wyoming that had agree I also per category. sance se made, not, it was both activities which claim been invasion trespass-nuisance amount could private property. of the use and enjoyment damages a support is for claim of Royston also per A per se. nuisance resulting from a nuisance in- from nuisance arises constituting public se care. even under the best danger herent only is se” means "per that a nuisance statement negligent out of conduct. it does not arise (4th Prosser, ed), 88, p 582. Torts § words, fact, the nuisance

In other unlike on per predicated the want se not Ac care, very nature. but is unreasonable its wherein cordingly, few instances "[i]n or may this Court label condition Legislature or nature, its very unreasonable activity patently in con liability not circumvent its may the state raising or operation by with the situation nection immunity.” Gerzeski sovereign the shield of 149, 169; 268 NW2d Dep't Hwy State (1978) (Ryan, J., To hold other dissenting). wise, right an would allow the state absolute it choose manner property any may use its large private at regard without Id. persons. result,

Therefore, I in the while concur respectfully disagree, I analysis, much of the indicated.

ii of dispositions opinion’s I lead agree with Hadfield v Co Oakland by Separate Opinion Levin, J. v Oakland Co Drain Hadfield Comm’r and McCaul Village of Lake Odessa which hold that may defendants be held liable for the harm to the plaintiffs’ respective property on the basis trespass-nuisance private theory. or nuisance agree Appeals

I further that Court deci- Michigan sion in Veeneman v must be reversed as recognizes excep- far it an as intentional nuisance governmental immunity tion to facts on the basis of the Further, case. it is clear in that case plaintiffs private that cannot sustain either a nui- public sance or of the nuisance on the basis of the facts agree reasons, For case. the same I that the Appeals Landry Court of decision in v Detroit must be reversed. (separate opinion). agree my I with

Levin, colleagues may that an action for nuisance against in maintained the Oakland County Drain Commissioner in McCaul against Village opin- of Lake Odessa. The lead ion reviews the authorities establish that a there is that survived the liability act,1 enactment tort at where, least a case forth set in the lead opinion, "trespass there is a or interference with enjoyment physical the use or of land caused a government intrusion is set motion agents resulting personal property or its damage.”2 in Hadfield and McCaul alleged trespass such or interference. agree governmen- Boyle with Justice that the

I liability preclude damage tal tort act does not public action for loss caused nuisance or a per private se, nuisance sance nor a but that neither a nui- may nuisance action be main- 3.996(101). 691.1401; 1 1964 PA MCL MSA 2 Ante, p 169. 139 430 Mich

210 by Separate Opinion Levin, J. in Veeneman of the facts”3 "on the basis tained Landry. and that of Court agrees the majority

Because a in Veene- cannot be maintained nuisance actions the cases Landry, man disposition of instant this Court not that we decide whether require does may for holding in that an action nuisance erred of City of Rosario v the maintained on facts be (1978), 124; 230 Lansing, 403 268 NW2d 268 of State 149; 403 Mich Dep’t Hwys, Gerzeski (1978).4 525 NW2d Rosario, a of the Court concluded majority

In of a aby the maintenance drain negligent that an in the of a child was resulting death city Gerzeski, supra at a actionable nuisance.5 3Ante, p 209. 4 Court, appeal, sought fully granting to more this in leave While exception, disposition of in Veeneman define the nuisance and the liability. basis regard Landry appears to be—without to whether the owner private person property government or is no tort there a —that if, probably cases be same in those would result Veeneman, charged private person a fee a owned the sand dunes and if, Landry, government privatized had for admittance or operation of the courthouse. 5 signed qualifica Although opinion by justices four without no Gerzeski, majority that a a of the Court ruled

tion Rosario and public be as an nuisance action could maintained liability damages governmental act suffered on property, thereby tort finding property resulting from condition of the a emanating recovery limited to caused activities that from was not losses governmental property impinge plaintiff’s that on the use of 124; property. City Lansing, 268 NW2d Rosario v J.). (1978) (Fitzgerald, prevents pollution the use states that where "the beach The Restatement navigable bathing public or kills the fish in a of the stream of a so fish, community right deprives it all members Torts, 821B, 2d, public com a nuisance.” Restatement § becomes g, p supplied). (emphasis ment stage an in the also states that while at earlier The Restatement nuisance, constituting development only a the law of conduct nuisance, public clearly it is now established criminal offense was subject responsibility. Thus need not be to criminal "that a defendant crime, prosecuted may municipal corporation, cannot for a which a still be liable in tort nuisance liable.” Restatement for the or maintenance of a creation private is such individual would be if the conduct Torts, 2d, 821B, d, p comment 89. § v Oakland Co Separate Levin, majority concluded that a nuisance action could be maintained where persons drowned in a frozen artificial pond created and owned Depart- ment of State Highways. Two of the five-justice majority stated could, the trial judge on the evidence, properly find that the state had created an intentional it because "intentionally pond constructed the in the path of a warm water flow” and directly resulted in pond’s "[t]his deceptive appearance and, sense, in a created a trap those crossing its surface.”6 Gerzeski, contrast with it does not appear Veeneman the state failed to guard against that a risk that would not have apparent been to a person using the sand dunes for recreational pur- Ponds, poses. lakes, or sand dunes are not ordinar- public ily nuisances in their condition, natural unless there is a trap, such as the warm water that converted the ice pond in Gerzeski into a justices constituting 6 The five-justice other three majority separately express wrote governmental to exception the view that the nuisance to immunity should not be limited to cases where the judge giving determines that the conduct rise to the nuisance was intentional, stating judge that while the trial in that case had accurately giving determined that the conduct rise to the nuisance intentional, was necessary finding determination was not for a governmental liability. Dep’t Health, While in Smith 544; v the of Public 428 Mich (1987), majority NW2d 749 of this Court held that there "is no exception 'intentional tort’ immunity,” it does not deciding damage follow that in for may whether a action be maintained public nuisance, significance no should be attached to whether the government intentionally merely negligently or maintained the condi- gave Torts, tion that 2d, 821B, rise to the p 87, loss. 4 Restatement § public defines a nuisance as "an unreasonable interference with a right general public.” common to the opinion trespass The lead states that the is constitution- rooted, ally but it protects does not consider whether the constitution against physical injury intentionally caused the state. In an case, appropriate constitution, the Court should consider whether the taking property which bars the just compen- state from one’s without sation, protects against property by intentionally causing disabling person the state enjoying a from his injury Compare him or death. Dep’t (1976) Hwys, 1; Thomas v of State 398 Mich 247 NW2d 530 (Levin, J., concurring). Separate Opinion Levin, J. trap trap, just quicksand a in sand could create as tip dunes that sand can Failure warn dunes.7 over a dune way buggy in the same waves might tip does not render natural over boat condition a nuisance. again Landry,

Similarly, in contrast with deceptive appearance or Gerzeski, there no trap. may ularly that a in a criminal case8 The risk defendant partic person courthouse, in a another

attack grieva the apparent has a one with attacker whom apparent. physical nce,9 is An risk implicit and much or canoe will in that situation is assault is buggy that a dune like risk sand tip over. public un

A nuisance has been defined "an right common to reasonable interference with a general Failing public.”10 apparent to warn recreational with the use users of an of risk associated is an sand dunes their natural state not right use interference with their unreasonable the sand dunes. A courthouse crowded frequently assemblage judges, lawyers, an court personnel, victims, witnesses, defendants, their representatives, families, large. Failing at media persons encouraged even to warn apparent required in to be the courthouse of against danger guard physical to assault or is an interference with risk11 not unreasonable 7 might support enough thick to The risk that ice not be a skater’s where, weight ordinarily apparent, on is but not the facts Gerzeski controlling opinion, in the state was held the Court as stated of "[t]he pond judge intentionally in the Claims to have water constructed pond’s path deceptive appearance "directly in of a which resulted warm flow” and, sense, crossing trap in a created a for those 149, 162; Dep’t Hwys, 268 of State 403 Mich its surface.” Gerzeski J.). (1978) (Moody, 525 NW2d 8 person in a or on the street. Or indeed another courthouse 9 against testify were in court to the attacker. 10 Torts, 821B, 2d, p 4 Restatement § 87. 11 Cunningham Drug Stores, Inc, 495; 418 Cf. Williams v (1988). NW2d v Oakland Co Opinion by Archer, J. right general public.12 common to the (concurring part dissenting in

Archer, part). agree opinion I with the lead that there is a trespass exception governmental and a nuisance immunity. opinion’s However, the lead definition trespass-nuisance of the tort of is too narrow. In analysis, opinion their the lead discusses the torts these torts trespass though and nuisance as single category. constitute a Prior decisions have generally individually considered these torts be- differing cause of the interests involved. Our Court interpretation has discussed a broader of the nui- exception.1 trespass, sance sance, I would hold that nui- nuisance,

and intentional as well as nui- per exceptions governmental se, sance munity. are im- interpretation Our of the nuisance governmental immunity begins § with 7 governmental liability act, tort MCL 691.1407; provided: MSA which 3.996(107), Except as this act provided, otherwise all governmental agencies shall be immune from tort liability in all cases government wherein the agency engaged is in the exercise discharge or of a governmental Except function. pro otherwise herein, vided this act shall not be construed as modifying restricting the immunity of the state liability from tort heretofore, as it existed which immunity is affirmed.[2] building exception question 12 Iwould decide the Landry on the merits. Dep’t Hwys, 149; Gerzeski v of State 403 Mich 268 NW2d 525 (1978); City Lansing, 124; (1978). Rosario v 268 NW2d 230 provides: The statute was amended in 1986 and Except provided act, as otherwise in this all agencies liability shall be immune from tort in all cases government agency engaged wherein the in the exercise or Mich 139 430. Archer, opinion agree lead under I with exceptions govern §of 7 the sentence immunity second prior enact existed to the mental which addition, are ment of statute retained. exceptions governmental Legislature enacted has munity. im Except discharge governmental of function. as otherwise a act, modify provided in this this act shall not be construed as immunity liability ing restricting from the state tort or of 1, 1965, July immunity is affirmed. as it existed before which (On Co the Court determined Ross v Consumers Power As (1984): 591-592; Rehearing), 420 363 NW2d local) 1) (state agencies statutorily All and are injuries arising keep highways out of liable for reasonable operation agent, the failure (MCL 691.1402; 3.996[102]),negligent repair MSA officer, government-owned vehicle a motor an (MCL 691.1405; 3.996[105]), employee or MSA and dan- buildings

gerous under the or defective conditions in (MCL691.1406; 3.996[106]). agency’s MSA control local) 2) (state governmental agencies tort All and have arising performance propri- liability injuries for out of a activity etary "Proprietary any is defined as function. function” profit, excluding primarily pecuniary for activities conducted (see 691.1413; normally supported by 3.996[113]). or MCL taxes fees MSA local) 4) (state governmental agencies vicariously All and are negligent operation government-owned motor liable vehicles (MCL officers, 691.1405; employees, agents and their 3.996[105]). liability may other MSA Vicarious for all torts officer, imposed governmental agency only on when its em- during agent, acting employment ployee, or the course of his scope authority, and within the engaged etary, of his commits tort while activity non-governmental propri- in an which or exception. statutory or within a which falls 5) Judges, legislators, highest the absolutely all and executive officials of government are immune from all tort levels liability they acting respective judi- their whenever are within cial, officers, legislative, authority. executive Lower level only employees, agents liability are from tort immune they when are a) acting during employment the course of and are their acting, scope acting, reasonably they believe are within the authority; of their b) acting faith; good Co Oakland Opinion Archer, J. describing scope exception, In the of this it is important responsibility govern- to focus on the of immunity omissions, ment for its actions or not its requires liability. from This the conclusion that Legislature the did intend that the case law con- developed tinue to in be this area to address policy-based governmental liability may which at issue in future cases. opinion trespass stated,

As the lead has and exceptions governmental immunity nuisance to long recognized Michigan. have been The Court governmental also has addressed the rationale for liability. However, is there no need to characterize governmental creating actions or omissions as con amounting "taking” ditions to a in a constitutional grant sense to be are to able relief. These tort issues adequately law, addressed the case there no is need in most cases raise constitu tional concerns. disagree

I also the with assertion that nuisance must amount to some kind of invasion that occurs government’s prop- other than on the defendant erty. Certainly governmental if the unit or acts thereby nuisance, fails to act and governmental creates a the regardless unit should be liable trespass where the or There occurs. requirement physical should be no of a invasion plaintiff’s governmental a land for the unit to be liable. Governmental entities own and control vast responsibly state, resources this and should act managing these resources. If a condition is c) performing discretionary-decisional, opposed to ministe- rial-operational, acts. Kalamazoo, (1872). See Sheldon v entirely The doctrine is untenable there can be no municipal liability by municipal for unlawful acts done authori- prejudice private parties. ties to the 430 Archer, J. brought governmental unit the attention of noth- or officers do officials ing problem, such condition then correct may circumstances nuisance in fact. When be a surroundings present questions, the trier such may in fact whether a nuisance of fact determine considering question fact, this was created. jury first, nui- whether should consider intentionally negli- or sance in fact was created gently. negligence question found, Second, if resulting rises is whether the condition created of an intentional nuisance because to governmental level unit failed to correct condition. governmental agency words, in- In other did the bring in about the conditions which are tend Moody’s Justice fact found to be nuisance. See supra. disagree opinions Rosario, I in Gerzeski and opinion’s lead characterization with the Rosario, in and find causes of action Gerzeski and pre- of the defendant should be the intent jury. agree Therefore, I with the lead sented Appeals opinion the Court of decisions Co Drain Comm’r and Hadñeld v Oakland affirmed. How- McCaul v Lake Odessa should be ever, of the Court I also affirm decisions would Michigan Landry Appeals v Veeneman nuisance. Detroit the issues of intentional on part J., in the decision of these took no Griffin, cases.

Case Details

Case Name: Hadfield v. Oakland County Drain Commissioner

Court Name: Michigan Supreme Court

Date Published: Mar 29, 1988

Citation: 422 N.W.2d 205

Docket Number: Docket Nos. 75494, 76815, 77011, 78233, (Calendar Nos. 2-5)

Court Abbreviation: Mich.