trespass-nuisance exception in Michigan

2000Two years later, in Li, supra at 590-594 , 456 N.W.2d 55 , this Court reaffirmed the view that the second sentence of § 7 provides statutory authority for application of the trespass-nuisance exception to a claim of immunity made by an inferior governmental agency.

2000Two years later, in Li, supra at 590-594 , 456 N.W.2d 55 , this Court reaffirmed the view that the second sentence of § 7 provides statutory authority for application of the trespass-nuisance exception to a claim of immunity made by an inferior governmental agency.

1978The trespass nuisance exception has been carved out by this Court and remains a part of our case law. 2 Although it is correct that the Buddy Court of Appeals panel specifically referred to the case Buckeye Union Fire Ins Co v Michigan, 383 Mich 630 ; 178 NW2d 476 (1970), in reaching the stated conclusion, a careful examination of the Buddy case reveals that the connection between the Royston and Bluemer cases was reached by the Court.

1978The trespass nuisance exception has been carved out by this Court and remains a part of our case law. 2 Although it is correct that the Buddy Court of Appeals panel specifically referred to the case Buckeye Union Fire Ins Co v Michigan, 383 Mich 630 ; 178 NW2d 476 (1970), in reaching the stated conclusion, a careful examination of the Buddy case reveals that the connection between the Royston and Bluemer cases was reached by the Court.

2002Using a consistent approach, I conclude that the trespass-nuisance exception still exists 1 420 Mich 567 ; 363 NW2d 641 (1984). 2 and that it applies to municipal units of government.

2002Using a consistent approach, I conclude that the trespass-nuisance exception still exists 1 420 Mich 567 ; 363 NW2d 641 (1984). 2 and that it applies to municipal units of government.

2010Therefore, we decline to discuss those claims at this time.” [Id. at 699.] Thus, although presented the opportunity, our Supreme Court declined to adopt Justice Kelly’s views that Buckeye “acknowledged that the trespass-nuisance exception has a constitutional basis,” and that “governmental immunity is not a defense to a constitutional tort claim, hence not to a claim based on trespass-nuisance.” Pohutski, supra at 709 (KELLY, J., dissenting), citing Thom v State Hwy Comm’r, 376 Mich 608, 628 ; 138 NW2d 322 (1965).

2010Therefore, we decline to discuss those claims at this time.” [Id. at 699.] Thus, although presented the opportunity, our Supreme Court declined to adopt Justice Kelly’s views that Buckeye “acknowledged that the trespass-nuisance exception has a constitutional basis,” and that “governmental immunity is not a defense to a constitutional tort claim, hence not to a claim based on trespass-nuisance.” Pohutski, supra at 709 (KELLY, J., dissenting), citing Thom v State Hwy Comm’r, 376 Mich 608, 628 ; 138 NW2d 322 (1965).

2002In determining if the statutory exceptions permit a trespass-nuisance exception, we are guided by the principle expressed in Nawrocki v Macomb Co Rd Comm, 463 Mich 143, 158 ; 615 NW2d 702 (2000): “There is one basic principle that must guide our decision today: the immunity conferred upon governmental agencies is broad, and the statutory exceptions thereto are to be narrowly construed.” (Emphasis in original.) With this principle in mind, we hold that the plain language of the governmental tort liability act does not contain a trespass-nuisance exception to governmental immunity.

2002In determining if the statutory exceptions permit a trespass-nuisance exception, we are guided by the principle expressed in Nawrocki v Macomb Co Rd Comm, 463 Mich 143, 158 ; 615 NW2d 702 (2000): “There is one basic principle that must guide our decision today: the immunity conferred upon governmental agencies is broad, and the statutory exceptions thereto are to be narrowly construed.” (Emphasis in original.) With this principle in mind, we hold that the plain language of the governmental tort liability act does not contain a trespass-nuisance exception to governmental immunity.

2000As substantive reasons in favor of upholding the Hadfield interpretation of § 7, the Li majority explained: (1) that the preamble to the governmental tort liability act evidenced an intent to treat "sovereign (state) and nonsovereign entities" alike; (2) that a legislator on the special committee drafting the act had explained that the committee "`sought to achieve legislation that would put all government on the same basis;'" (3) that "the nature of governmental immunity is such that there is no reason to treat the state and *9 local entities differently," citing Nicholson v. Detroit, 129 Mic

2000As substantive reasons in favor of upholding the Hadfield interpretation of § 7, the Li majority explained: (1) that the preamble to the governmental tort liability act evidenced an intent to treat "sovereign (state) and nonsovereign entities" alike; (2) that a legislator on the special committee drafting the act had explained that the committee "`sought to achieve legislation that would put all government on the same basis;'" (3) that "the nature of governmental immunity is such that there is no reason to treat the state and *9 local entities differently," citing Nicholson v. Detroit, 129 Mic

2023Id.

2022Pohutski v Allen Park, 465 Mich 675, 679 , 686- 690; 641 NW2d 219 (2002); Blue Harvest, Inc v Dep’t of Transp, 288 Mich App 267, 274 ; 792 NW2d 798 (2010). 6 Defendants alternatively argue that plaintiff’s nuisance claim was properly dismissed because he failed to establish that defendants’ filling activities proximately caused the water intrusion onto his property.

2022Pohutski v Allen Park, 465 Mich 675, 679 , 686- 690; 641 NW2d 219 (2002); Blue Harvest, Inc v Dep’t of Transp, 288 Mich App 267, 274 ; 792 NW2d 798 (2010). 6 Defendants alternatively argue that plaintiff’s nuisance claim was properly dismissed because he failed to establish that defendants’ filling activities proximately caused the water intrusion onto his property.

2010The doctrine has been modified by the legislature, abolished by the legislature, reestablished by the legislature, and further modified by the legislature.” [McDowell v State Hwy Comm’r, 365 Mich 268, 271 ; 112 NW2d 491 (1961), quoting the brief of the Attorney General (emphasis added).] The Legislature has not seen fit to expand upon this “creature of the legislature” by providing a trespass-nuisance exception to governmental immunity for claims against the state, and there is simply no indication that a common-law trespass-nuisance exception to sovereign immunity was in effect at the time of

2010The doctrine has been modified by the legislature, abolished by the legislature, reestablished by the legislature, and further modified by the legislature.” [McDowell v State Hwy Comm’r, 365 Mich 268, 271 ; 112 NW2d 491 (1961), quoting the brief of the Attorney General (emphasis added).] The Legislature has not seen fit to expand upon this “creature of the legislature” by providing a trespass-nuisance exception to governmental immunity for claims against the state, and there is simply no indication that a common-law trespass-nuisance exception to sovereign immunity was in effect at the time of

2007In light of Pohutski , are issues relating to putative plaintiffs unnamed as of April 2, 2002, sufficiently disparate from issues relating to plaintiffs who were named as of April 2, 2002, to the extent that certification of a single class containing both groups of plaintiffs would be inappropriate under MCR 3.501(A)(1)? [ 474 Mich 916 (2005).] The matter is therefore now before this Court for consideration as on leave granted. *305 Defendant first argues that the trial court was procedurally precluded from considering plaintiffs’ “renewed motion for class certification” by statute, case-law,

2006Mazumder, supra at 45 n 2. 5 The Court in Mazumder, supra at 59-60 , also cited Pohutski , in which the Supreme Court, contrary to 14 years of consistent Supreme Court and Court of Appeals precedent, eliminated the trespass-nuisance exception to governmental immunity on the basis that the plain language of the governmental tort liability act did not contemplate the trespass-nuisance exception.

2006Mazumder, supra at 45 n 2. 5 The Court in Mazumder, supra at 59-60 , also cited Pohutski , in which the Supreme Court, contrary to 14 years of consistent Supreme Court and Court of Appeals precedent, eliminated the trespass-nuisance exception to governmental immunity on the basis that the plain language of the governmental tort liability act did not contemplate the trespass-nuisance exception.

2006Id. at 689-690 , 641 N.W.2d 219 .

2006The parties are directed to include among the issues briefed: (1) whether, in general, a lease includes both the inner and outer walls of the leased premises, see, e.g., Forbes v. Gorman, 159 Mich. 291, 294 , 123 N.W. 1089 (1909), and (2) whether the general rule was modified by the portion of the subject lease that limited the tenant's right to make "alterations or repairs or redecoration to the interior of the Premises or to install additional equipment or major appliances without the written consent of Management." The Real Property Law Section of the State Bar of Michigan, the Michigan Ass

2006The parties are directed to include among the issues briefed: (1) whether, in general, a lease includes both the inner and outer walls of the leased premises, see, e.g., Forbes v. Gorman, 159 Mich. 291, 294 , 123 N.W. 1089 (1909), and (2) whether the general rule was modified by the portion of the subject lease that limited the tenant's right to make "alterations or repairs or redecoration to the interior of the Premises or to install additional equipment or major appliances without the written consent of Management." The Real Property Law Section of the State Bar of Michigan, the Michigan Ass

2005Hadfield, supra at 161 (opinion by BRICKLEY, J.); Tracer Lakes Community Maintenance Ass’n v. Douglas Co, 224 Mich App 335, 345 ; 568 NW2d 847 (1997).

2005Hadfield, supra at 161 (opinion by BRICKLEY, J.); Tracer Lakes Community Maintenance Ass’n v. Douglas Co, 224 Mich App 335, 345 ; 568 NW2d 847 (1997).

2000Id.

1998Accordingly, the trial court did not err in ruling that plaintiffs did not need to prove negligence as a predicate to establishing liability under the trespass-nuisance exception to governmental immunity. 3 Id.; Robinson, supra at 23-24 .

1998Accordingly, the trial court did not err in ruling that plaintiffs did not need to prove negligence as a predicate to establishing liability under the trespass-nuisance exception to governmental liability. [3] Id.; Robinson, supra at 23-24 , 19 N.W.2d 469 .

1996Oxenrider v Gvoic, 340 Mich 591 ; 66 NW2d 80 (1954). 9 In Oxenrider , the plaintiff sued a private landowner in a nuisance action for damage caused to his property from the collapse of the landowner’s neighboring buildings.

1996Oxenrider v Gvoic, 340 Mich 591 ; 66 NW2d 80 (1954). 9 In Oxenrider , the plaintiff sued a private landowner in a nuisance action for damage caused to his property from the collapse of the landowner’s neighboring buildings.

1996Causation or control, in turn, exists if the governmental entity has “either created the nuisance, owns or controls the property from which the nuisance arose, or employed another that it knows is likely to create a nuisance.” Kuriakuz v West Bloomfield Twp, 196 Mich App 175, 177 ; 492 NW2d 757 (1992).

1996Causation or control, in turn, exists if the governmental entity has “either created the nuisance, owns or controls the property from which the nuisance arose, or employed another that it knows is likely to create a nuisance.” Kuriakuz v West Bloomfield Twp, 196 Mich App 175, 177 ; 492 NW2d 757 (1992).

1991See Hadfield, supra at 176 ; Pound v Garden City School Dist, 372 Mich 499 ; 127 *684 NW2d 390 (1964).

1991The Supreme Court recognized the existence of the trespass-nuisance exception to governmental immunity in Hadñeld, supra. The plurality opinion summarized the early trespass-nuisance cases as follows: Generalizing from these early cases, it appears that where an invasion or intrusion onto a plaintiff’s land occurred, the defendants were often found liable, regardless of whether the municipality acted directly, through an order perhaps, or whether its agents acted intentionally or negligently to produce the invasion. [Id. at 161.] The Court did recognize that the plaintiff does not *683 necessa

1991The Supreme Court recognized the existence of the trespass-nuisance exception to governmental immunity in Hadñeld, supra. The plurality opinion summarized the early trespass-nuisance cases as follows: Generalizing from these early cases, it appears that where an invasion or intrusion onto a plaintiff’s land occurred, the defendants were often found liable, regardless of whether the municipality acted directly, through an order perhaps, or whether its agents acted intentionally or negligently to produce the invasion. [Id. at 161.] The Court did recognize that the plaintiff does not *683 necessa

1988Citations omitted.] Justice RYAN emphasized the interconnection of the Taking Clause and the trespass-nuisance exception even more explicitly when he stated: *166 [W]hen the "taking" is the result of an "intruding nuisance," the state cannot validly raise sovereign immunity from liability to avoid paying compensation to a damaged party. [ Gerzeski, supra, p 171 .] In Ashley, supra, p 301 , Justice COOLEY observed: A municipal charter never gives and never could give authority to appropriate the freehold of a citizen without compensation, whether it be done through an actual taking of it for st

1988Citations omitted.] Justice Ryan emphasized the interconnection of the Taking Clause and the trespass-nuisance exception even more explicitly when he stated:_ [W]hen the "taking” is the result of an "intruding nuisance,” the state cannot validly raise sovereign immunity from liability to avoid paying compensation to a damaged party. [Gerzeski, supra, p 171 .] In Ashley, supra, p 301 , Justice Cooley observed: A municipal charter never gives and never could give authority to appropriate the freehold of a citizen without compensation, whether it be done through an actual taking of it for streets

1988Citations omitted.] Justice RYAN emphasized the interconnection of the Taking Clause and the trespass-nuisance exception even more explicitly when he stated: *166 [W]hen the "taking" is the result of an "intruding nuisance," the state cannot validly raise sovereign immunity from liability to avoid paying compensation to a damaged party. [ Gerzeski, supra, p 171 .] In Ashley, supra, p 301 , Justice COOLEY observed: A municipal charter never gives and never could give authority to appropriate the freehold of a citizen without compensation, whether it be done through an actual taking of it for st

1988Citations omitted.] Justice Ryan emphasized the interconnection of the Taking Clause and the trespass-nuisance exception even more explicitly when he stated:_ [W]hen the "taking” is the result of an "intruding nuisance,” the state cannot validly raise sovereign immunity from liability to avoid paying compensation to a damaged party. [Gerzeski, supra, p 171 .] In Ashley, supra, p 301 , Justice Cooley observed: A municipal charter never gives and never could give authority to appropriate the freehold of a citizen without compensation, whether it be done through an actual taking of it for streets

1988Compare also Li v Wong (On Remand), 170 Mich App 256 ; 428 NW2d 36 (1988) (construing Hadfield, supra, the Court held that the Supreme Court did not overrule precedent so as to recognize only a trespass-nuisance exception to governmental immunity), with Scott v Dep’t of Natural Resources, 169 Mich App 205 ; 425 NW2d 518 (1988) (also construing Hadñeld, supra, the Court held there is no longer a general intentional nuisance exception to governmental immunity; there is now only a limited trespass-nuisance exception).

1988Compare also Li v Wong (On Remand), 170 Mich App 256 ; 428 NW2d 36 (1988) (construing Hadfield, supra, the Court held that the Supreme Court did not overrule precedent so as to recognize only a trespass-nuisance exception to governmental immunity), with Scott v Dep’t of Natural Resources, 169 Mich App 205 ; 425 NW2d 518 (1988) (also construing Hadñeld, supra, the Court held there is no longer a general intentional nuisance exception to governmental immunity; there is now only a limited trespass-nuisance exception).