Defendants appeal by leave granted the trial court’s denial of their motion for summary disposition of plaintiffs’ claims of negligence, negligence per se, nuisance, trespass, and conspiracy. 1 The essence of plaintiffs’ complaint is that defendants’ actions have caused Silver Lake in Cheboygan County to rise, flooding plaintiffs’ low-lying forested property. Defendants contend that plaintiffs’ claims are time-barred because the alleged acts that resulted in the flooding occurred more than three years before plaintiffs filed this lawsuit on October 10, 2005. We conclude that the plain text of MCL 600.5805(10) and MCL 600.5827 bars plaintiffs’ claim for money damages under any of plaintiffs’ liability theories. However, the trial court properly determined that a claim for equitable relief to enforce a flowage easement is subject to the 15-year period set forth in MCL 600.5801(4). Nevertheless, the trial court should have granted defendant’s motion for summary disposition because plaintiff had not properly pleaded such a claim. In sum, the trial court should have dismissed plaintiffs’ claims for money damages as timed-barred by the statute of limitations, leaving no viable cause of action to support plaintiffs claim for equitable relief. Consequently, we reverse and remand *647 without prejudice to plaintiffs’ ability to file in the trial court a motion to amend their complaint. MCR 2.116(0(5).
I. SUMMARY OF FACTS AND PROCEEDINGS
The facts relevant to this appeal are not in dispute. In 1997, defendants — with the permission of the Department of Environmental Quality (DEQ) — replaced with a concrete spillway an existing wooden spillway connecting Silver Lake to the Indian River. Plaintiffs allege that the DEQ permit required the replacement spillway to be the same elevation as the old wooden spillway but defendants improperly constructed the new concrete spillway 7.32 inches higher than the old one. Also, plaintiffs allege that sometime in 1998 the Lake Association caused a 2- by 6-inch board to be placed across the spillway, further elevating the lake. In addition, plaintiffs allege that sometime before November 2001, defendants partially capped a 4-inch PVC pipe running through a culvert, which had also allowed water to drain from Silver Lake into the river. Plaintiffs discovered the cap and removed it in November 2001. 2
Plaintiffs assert that the effect of defendants’ actions was to raise the water level of Silver Lake, causing water from the lake to flood plaintiffs’ low-lying wooded property. Plaintiffs contend that they did not immediately appreciate what was happening because it was not observable. Although plaintiffs noticed some trees on their wooded wetland began dying in 2001, they did not realize that an elevated lake level was flooding their land or that this was injuring the trees. Plaintiffs allege that they only discovered the elevated spillway after *648 having the area surveyed on April 12, 2005. Plaintiffs filed this action on October 10, 2005, seeking an injunction requiring defendants to return the spillway to its previous level and damages for injury to the trees.
The trial court denied defendants’ motion for summary disposition that contended plaintiffs’ claims were time-barred, stating in pertinent part:
Cameron[ 3 ] states that the “right of flowage is an easement that generally can be acquired only by prescription (if water flows over fifteen years over upland property either constantly or with sufficient intermittent frequency) or by a written instrument such as a deed. Beaverton Power Company v Wolverine Power Company,245 Mich 541 , 546;222 NW 703 (1929)”.
[A]ssuming the water level was improperly elevated in 1997 causing water to be diverted to Plaintiffs’ property in 2001 after the culvert was capped, Plaintiffs’ complaint is not time barred. In order to be time barred, the Defendants would have had to acquire a prescriptive easement permitting them to flood Plaintiffs’ property by having conducted such activity for fifteen continuous years.
If indeed plaintiffs’ claims are true, this is an ongoing wrongful act injuring Plaintiffs’ property rights.
Defendants moved for reconsideration, which the trial court denied. For the purpose of deciding the motion, the trial court assumed that defendants committed wrongful acts in 1997 and 2001 when they raised the lake level and caused water to improperly encroach on plaintiffs’ property. The court opined that this “wrongful impoundment” on plaintiffs’ property was ongoing and that defendants had no easement or other legal right to divert water onto plaintiffs’ property. In denying reconsideration, the trial court stated:
*649 Plaintiff [sic] is permitted under law to bring an action to require this wrongful impoundment of water to cease and desist as the Defendants have no legal right for this activity. If the Defendants had been engaged in this conduct for 15 years prior to the litigation, then they might have acquired a prescriptive easement which would have given them a right to continue this activity. They did not and Plaintiff is entitled to challenge its contrivance.
The trial court left unresolved how far back plaintiffs could claim damages.
II. STANDARD OF REVIEW
This Court reviews de novo a trial court’s decision on a motion for summary disposition under MCR 2.116(C)(7).
Trentadue v Buckler Automatic Lawn Sprinkler Co,
III. ANALYSIS
A. MONEY DAMAGES
Defendants argue that plaintiffs filed an action asserting claims of negligence, negligence per se, nuisance, trespass, and conspiracy, not an action to quiet
*650
title to property. Therefore, defendants argue, the trial court erred by applying the 15-year limitations period of MCL 600.5801(4) to plaintiffs’ claims. Defendants argue that the proper statute of limitations is MCL 600.5805(10): “The period of limitations is 3 years after the time of the death or injury for all other actions to recover damages for the death of a person, or for injury to a person or property.” Defendants principally rely on
Horvath v Delida,
On appeal, plaintiffs argue that defendants concealed the fact that the replacement spillway was higher than the old spillway, contrary to the permit the DEQ issued, and that this Court therefore should apply the discovery rule by which a claim does not accrue until the plaintiff discovers or should have discovered the alleged wrongful act.
Johnson v Caldwell,
On the other hand, defendants argue that the trial court erred by applying the continuing-wrongful-acts doctrine to deny defendants’ motion for summary disposition. They contend that the trial court confused the fact of alleged finite wrongful acts (in 1997 and 2001) with the continuing harmful effects of those acts. Defendants point to
Horvath,
in which the plaintiffs alleged that the defendants’ single wrongful act (dredging) resulted in continuing flooding to their property. The
Horvath
Court held that the plaintiffs “misapprehend the crux of the doctrine: a continuing wrong is established by continual tortious
acts,
not by continual harmful effects from an original, completed act.”
Horvath, supra
at 627 (emphasis in original). Moreover, defendants argue that the continuing-wrongful-acts doctrine no longer applies in Michigan in light of
Garg
*652
v Macomb Co Community Mental Health Services,
We conclude that plaintiffs’ claim for money damages for injury to plaintiffs’ property is a claim for injury to property within the plain text of MCL 600.5805(10), whether the claim is for the death of trees or for the submersion of the land. The claim accrued “[e]xcept as otherwise expressly provided ... at the time the wrong upon which the claim is based was done regardless of the time when damage results.” MCL 600.5827. Whether “the wrong” is viewed as the raising of the spillway (1997), or the capping of the culvert (2001), or the flooding of plaintiffs’ property and resulting death of tress (2001 and before), plaintiffs 2005 lawsuit was filed more than three years after the time of the injury to property. MCL 600.5805(10). Consequently, plaintiffs’ claim for money damages is time-barred.
The judicially created discovery rule cannot save plaintiffs’ claim. Trentadue, supra at 389, 393. Plaintiffs’ reliance on fraudulent concealment, MCL 600.5855, is also misplaced. Defendants did nothing to conceal the height of the spillway or the capping of the culvert, which was discovered and removed by plaintiffs in 2001. The statutory scheme of limitations periods is exclusive and precludes tolling the accrual of a claim based on discovery where no statute tolls the running of the limitations period. Trentadue, supra at 389.
Plaintiffs fail to gain the benefit of a longer period of limitations by alleging a count of civil conspiracy. De
*653
fendants correctly cite
Gilbert v Grand Trunk W R,
Plaintiffs also argue that their claim is not barred by the statute of limitations because the flooding of their property caused by the raised spillway constitutes a continuing tort of either trespass or nuisance. Claims of trespass and nuisance include overlapping concepts and are difficult to distinguish.
Traver Lakes Community Maintenance Ass’n v Douglas Co,
subject to liability for private nuisance for a nontrespassory invasion of another’s interest in the private use and enjoyment of land if (a) the other has property rights and privileges in respect to the use or enjoyment interfered with, (b) the invasion results in significant harm, (c) the actor’s conduct is the legal cause of the invasion, and (d) the invasion is either (i) intentional and unreasonable, or (ii) unintentional and otherwise actionable under the rules governing liability for negligent, reckless, or ultrahazardous conduct. [Cloverleaf Car Co, supra at 193 (citation omitted).]
Assuming for the sake of analysis that plaintiffs have properly pleaded, and the circumstances support, a claim for either trespass or nuisance, plaintiffs still seek to recover money damages for injury to property. Our Supreme Court has recently opined that the “ ‘continuing violations’ doctrine is contrary to the language of [MCL 500.5805].” Garg, supra at 290. Therefore, the Court held that “the doctrine has no continued place in the jurisprudence of this state.” Id. The Garg case was a discrimination lawsuit in which the Court held that for the plaintiffs claim to survive the plain text of the *655 three-year limitations period of MCL 500.5805(10) and that of the accrual statute, MCL 500.5827, the plaintiff was required to file her claim within three years of an adverse employment act. Garg, supra at 281-282. The holding of Garg does not appear limited to discrimination cases; rather, the Court applied the plain text of the limitations and accrual statutes at issue here.
Further, this Court’s decision in
Horvath
does not support defendants’ continuous-violations theory. In
Horvath,
the defendants obtained a Department of Natural Resources permit and dredged the bottom of a Roscommon County lake in 1983. The plaintiffs noticed that the lake level began to rise that year and continued to do so. Eventually, in 1991 and 1992 water entered the plaintiffs’ home, and their well and septic system failed. The plaintiffs sued in 1992, alleging that the defendants had negligently opened underground springs, resulting in the rising lake level that flooded the plaintiffs’ property. The
Horvath
Court held that a cause of action for flooding accrues with respect to permanent as opposed to transient damage when “the land is first visibly damaged.”
Horvath, supra
at 625. Since the plaintiffs noticed damage in 1985, their 1992 claim was time-barred.
Id.
at 626. The Court also addressed the continuing-wrongful-acts doctrine and distinguished the main cases on which plaintiffs rely:
Defnet
(trespass);
DiFronzo
(trespass and nuisance);
Moore v City of Pontiac,
In seeking to apply the continuing-wrongful-acts doctrine in this case, plaintiffs misapprehend the crux of the doctrine: a continuing wrong is established by continual tortious acts, not by continual harmful effects from an original, completed act. See, e.g., Defnet, supra (the continuing-wrongful-acts doctrine applied where the de *656 fendants’ maintenance of an active sewer on the plaintiffs’ property for nearly thirty years constituted a continuing trespass); Difronzo v Port Sanilac,166 Mich App 148 ;419 NW2d 756 (1988) (the defendants’ building of a harbor and necessary facilities on Lake Huron bottom land adjacent to the plaintiffs property constituted an ongoing nuisance); Moore, supra (operation of a sanitary landfill constituted a continuing nuisance); Oakwood Homeowners Ass’n, Inc [v Ford Motor Co,77 Mich App 197 ;258 NW2d 475 (1977)] (operation of manufacturing plants that caused air pollution constituted a continuing tort); Hodgeson v Genesee Co Drain Comm’r,52 Mich App 411 ;217 NW2d 395 (1974) (maintenance of storm sewer drain under the plaintiffs’ property, which caused periodic flooding, constituted a continuing nuisance).
Here, defendants are alleged to have committed a single tortious act in 1982 when they dredged the lake, and from that single act plaintiffs’ property suffered noticeable permanent damage beginning as early as 1985 and intensifying over time. Accordingly, because plaintiffs have only established aggravated ill effects from a single tortious act, their reliance on the continuing-wrongful-acts doctrine is misplaced. [Horvath, supra at 627-628.]
Defendants persuasively argue that as in Horvath, plaintiffs have alleged at most only two distinct tortious acts occurring in 1997 (spillway replacement) and the 2001 (capped culvert). The flooding and tree damage since 2001 are merely the harmful effects of the completed tortious acts. The distinctions noted in Horvath with respect to the continuous-wrongful-act doctrine apply equally to the present case. Defendants have not physically intruded on or under plaintiffs’ property with an active sewer (Defnet), nor annually delivered water through a sewer under plaintiffs’ property to plaintiffs’ basement (Hodgeson). Neither have defendants constructed a walkway across plaintiffs’ property and physically interfered with their riparian rights (Difronzo). Defendants also did not within one year of *657 plaintiffs’ lawsuit build “a tire shredding operation” that “made a loud shrill-like scream every five seconds while being utilized” and “gave off noxious odors and... produced soot, particles and fibers which entered plaintiffs’ home.” Moore, supra at 612. Indeed, defendants have performed no wrongful acts causing water to be diverted from their own property to plaintiffs’ property. Rather, plaintiffs allege that defendants have obstructed the rate of the flow of water over the now raised spillway that naturally accumulates on their own property and then spreads across plaintiffs’ property.
Several other panels of this Court have followed the
Horvath
Court’s analysis by severing tortious acts from the harmful effects of those acts.
See Attorney General v Harkins,
We conclude that regardless of the legal theory plaintiffs advance, their claim for money damages is based on injury to property, i.e., either the death of trees or the submersion of their land. In light of Garg, whether these claims are timely is determined by the plain text of MCL 600.5805(10). Plaintiffs’ claim accrued “[e]xcept as otherwise expressly provided ... at the time the wrong upon which the claim is based was done regardless of the time when damage results.” MCL 600.5827. Whether the alleged “wrong” is the raising of the *658 spillway (1997), the capping of the culvert (2001), or even the flooding of plaintiffs’ property resulting in the loss of tress (2001 and before), plaintiffs 2005 lawsuit was filed more than three years after the property was injured. MCL 600.5805(10). Plaintiffs point to no statute that extends the limitations period. Trentadue, supra at 389. Consequently, plaintiffs’ claims for money damages are time-barred and the trial court erred in not granting defendants summary disposition with respect to this portion of plaintiffs’ complaint.
B. EQUITABLE RELIEF
We conclude that the trial court erred in denying defendants’ motion for summary disposition of that portion of plaintiffs’ complaint seeking equitable relief.
To the extent plaintiffs’ complaint is premised on defendants’ alleged violation of the DEQ permit, it is time-barred. Plaintiffs’ complaint alleges that they are entitled to relief because defendants installed the new spillway higher than the DEQ permit allowed. Such a theory would raise the issue whether plaintiffs have standing to enforce the requirements of the permit. Assuming plaintiffs have standing to challenge the conduct, caselaw indicates that the proper statute of limitations is the general six-year statute of limitations applicable to “[a]ll other personal actions.” MCL 600.5813. The statutes of limitations “apply equally to all actions whether equitable or legal relief is sought.” MCL 600.5815. This Court has applied the six-year limitations period to the Attorney General’s “equitable action to restore wetlands that were altered in violation of a permit issued under Part 303 (Wetland Protection) of the Natural Resources and Environmental Protection Act (NREPA), MCL 324.30301 et seq.” Harkins, supra at 566. So, even assuming that plaintiffs have *659 standing to enforce the terms and conditions of the DEQ permit, their 2005 action regarding the 1997 spillway construction is barred by the six-year statute of limitations.
Although plaintiffs do not clearly allege it, we view the essence of plaintiffs’ complaint for equitable relief as one to enforce a flowage easement over defendants’ property. 9 The trial court applied the 15-year limitations period of MCL 600.5801(4), reasoning that because it would take that long for defendants to obtain a prescriptive easement for water flow over to plaintiffs’ property, plaintiffs should have that long to seek redress from a court to prevent defendants from obtaining a prescriptive easement to flood plaintiffs’ property.
MCL 600.5801 provides:
No person may bring or maintain any action for the recovery or possession of any lands or make any entry upon any lands unless, after the claim or right to make the entry first accrued to himself or to someone through whom he claims, he commences the action or makes the entry within the periods of time prescribed by this section.
(4) In all other cases under this section, the period of limitation is 15 years.
A claim to enforce or prevent the creation of an easement does not neatly fit into a statute of limitations barring recovery of possession of real property because an easement is a not a possessory right. See
Tittiger v Johnson,
The specific easement at issue is somewhat amorphous. “The right of flowage is an easement that can only be acquired by prescription or by a writing such as a deed.”
Lenawee Co Bd of Comm’rs v Abraham,
But from the perspective of the upstream property owners, a flowage easement may arise from the natural or long-existing rate of flowing water away from the upstream property over to the downstream properties. This was the essence of
Cranson v Snyder,
Here, plaintiffs seek to invoke the equitable jurisdiction of the court to prevent the flooding of their property. They seek both to preclude defendants from creating a prescriptive easement of flowage that would authorize the continuation of the flooding and to enforce their own flowage easement in the pre-existing rate of water flow over the spillway that defendants control. Assuming that plaintiffs have an easement in the pre-existing rate of flow over the old spillway or, stated differently, that defendants do not already have a prescriptive easement in water flow to plaintiffs’ property, plaintiffs’ own flowage easement arises from the common law, not the DEQ permit. Consequently, the general six-year statute of limitations of MCL 600.5813 does not necessarily apply.
Indeed, some cases suggest that because equitable relief redresses future harm, statutes of limitations do not apply. See, e.g.,
Wayne Co Chief Executive v Cover-
*662
nor,
We conclude that the trial court correctly applied the 15-year limitations period of MCL 600.5801(4) to plaintiffs’ equitable claim seeking to preclude defendants from obtaining a prescriptive flowage easement that would flood plaintiffs’ property. “An easement by prescription results from use of another’s property that is open, notorious, adverse, and continuous for a period of fifteen years.”
Plymouth Canton Community Crier, Inc v Prose,
But because a claim for equitable relief to enforce a flowage easement would not be time-barred does not mean that plaintiffs have properly pleaded a cause of action to do so. “ Tt is not the remedy that supports the cause of action, but rather the cause of action that supports a remedy.’ ”
Henry v Dow Chemical Co,
It is well settled that an injunction is an equitable remedy, not an independent cause of action.
Klay v United HealthGroup, Inc,
C. CONCLUSION
We hold the plain text of MCL 600.5805(10) and MCL 600.5827 bars plaintiffs’ claim for money damages under any of plaintiffs’ liability theories. With respect to plaintiffs’ claim for equitable relief to either enforce a natural flowage easement or preclude the creation of a prescriptive flowage easement, we hold that the trial court correctly applied the 15-year period of limitations of MCL 600.5801(4). But because plaintiffs have no properly pleaded cause of action for equitable relief currently before the court, we must reverse the denial of defendants’ motion for summary disposition.
We reverse and remand for further proceedings without prejudice to plaintiffs’ ability to file in the trial court a motion to amend their complaint. We do not retain jurisdiction.
Notes
Plaintiffs also allege in their second amended complaint a violation of the Natural Resources and Environmental Protection Act, MCL 324.1701 et seq., which defendants assert the trial court dismissed on substantive grounds. We do not address this claim because it was not included in defendants’ application for leave to appeal and plaintiffs have not cross-appealed.
Plaintiffs’ counsel conceded at oral argument in the trial court that the PVC pipe was a “minor issue” because it had little effect on the lake level.
1 Cameron, Michigan Real Property Law: Principles and Commentary (3d ed), § 3.20, p 123.
We note that in Trentadue, supra at 393, our Supreme Court specifically overruled Johnson and its progeny with respect to the judicially crafted discovery rule. The Court held that “the statutory scheme is exclusive and thus precludes this common-law practice of tolling accrual based on discovery in cases where none of the statutory tolling provisions apply.” Trentadue, supra at 389.
The Defnet Court held that a 1945 action against the city for maintaining an active sewer under the plaintiffs’ property since 1915 (when the city vacated an alley) was not time-barred because “[w]here there are continuing wrongful acts within the period limited by the statute (CL 1948, § 609.13 [Stat Ann § 27.605]), recovery is not barred.” Defnet, supra at 258.
The village had constructed a walkway across the plaintiffs’ lakefront property, as well as harbor facilities that interfered with the plaintiffs’ littoral rights.
DiFronzo, supra
at 151-152. The Court viewed the plaintiffs claim as one of inverse condemnation. The Court also opined, “If a nuisance is of a continuing nature the period of limitations does not begin to run from the date of the first act.”
Id.
at 156, citing
Hodgeson v Genesee Co Drain Comm’r,
In Hodgeson, like Defnet, a storm sewer ran underneath the plaintiffs’ property. “The law is clear that where there are wrongful acts of a continuing nature, the statute of limitations does not begin to run from the date of the first act.” Hodgeson, supra at 413, citing Defnet.
Garg
was a discrimination case in which our Supreme Court overruled the “continuing violations” doctrine of
Sumner v Goodyear Tire & Rubber Co,
As discussed earlier, a flowage easement could arise from longstanding flow of water. We assume plaintiffs could allege facts that would support such a claim. See MCR 2.116(I)(5).