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Persell v. Wertz

March 23, 2010

DAVID PERSELL AND KAYE PERSELL, PLAINTIFFS-APPELLEES,
v.
DENNIS WERTZ, DEFENDANT-APPELLANT.



Eaton Circuit Court LC No. 06-001144-CZ

The opinion of the court was delivered by: Sawyer, J.

FOR PUBLICATION

Before: OWENS, P.J., and SAWYER and O'CONNELL, JJ.

Defendant appeals from a judgment of the circuit court entered on a jury verdict in favor of plaintiffs. We affirm in part, reverse in part, vacate the case evaluation sanctions and remand for further proceedings.

Plaintiffs and defendant are neighbors in Charlotte. They originally had a very amicable relationship. Indeed, that relationship gave rise to an event that ultimately forms part of the instant dispute. Defendant had hired an excavator to dig a pond towards the rear of his property. Plaintiffs apparently found the idea appealing and it was agreed that the excavation would extend across the common property line. As a result, an artificial pond was created, with approximately three-quarters of the pond on defendant's property and the remainder on plaintiffs' property.

But that relationship seems to have deteriorated in recent years and a number of disputes have given rise to the instant litigation, with plaintiffs having filed a six-count complaint against defendant. The first two counts of the complaint alleged common law and statutory trespass over an incident in June 2006 in which plaintiffs claim that defendant entered upon their property, sprayed an unknown herbicide, resulting in the killing of a large portion of their lawn. The third and fourth counts of the complaint allege statutory trespass and nuisance arising from defendant, in August 2006, erecting a two-strand wire fence across the pond along the boundary line of the adjoining properties. Count V of the complaint alleged defamation based upon several statements defendant made to third parties regarding plaintiff David Persell. Count VI alleged intentional infliction of emotional distress based upon defendant's conduct regarding the preceding counts. At trial, the jury found in favor of plaintiffs on all counts except for defamation. The herbicide counts resulted in a judgment of $3,000, while the pond fence resulted in a judgment of $2,200. The emotional distress claim resulted in a judgment of $15,000. With the addition of costs, case evaluation sanctions, and prejudgment interest, the total judgment was in the amount of $42,937.76.

Defendant first argues that the trial court erred in failing to dismiss Counts III and IV regarding the fencing of the pond. We review this question de novo*fn1 and agree with defendant that these counts should have been dismissed. Plaintiffs' right to recover under these counts is dependent upon the conclusion that plaintiffs possess riparian rights in the pond giving it the right to use the entire surface of the pond. Unlike the trial court, we believe that it is clear under Michigan law that no riparian rights arise from an artificial body of water. In reaching this decision, we rely on the Supreme Court's decision in Thompson v Enz.*fn2

Thompson involved the development of a parcel of land that abutted Gun Lake. The development provided for 144 lots, approximately 16 of which actually abutted the natural shoreline of Gun Lake. The remaining lots would front on canals that would give access to the lake.*fn3 In determining whether these back lots had riparian rights, the Supreme Court made it clear that artificial waterways do not give rise to riparian rights. First, the Court observed the following principles:*fn4

"Riparian land" is defined as a parcel of land which includes therein a part of or is bounded by a natural water course. 4 Restatement, Torts, § 843, p 326. See, also, Palmer v Dodd, 64 Mich 474, 476 [31 NW 209 (1887)]; Stark v Miller, 113 Mich 465 [71 NW 876 (1897)]; Monroe Carp Pond Co v River Raisin Paper Co, 240 Mich 279, 287 [215 NW 325 (1927).

A "riparian proprietor" is a person who is in possession of riparian lands or who owns an estate therein. 4 Restatement, Torts, § 844, p 331.

See also Little v Kin*fn5 which adopted Thompson's definition of "riparian land" being land bounded by a natural water course.

While the above alone would make it clear that an artificial pond does not create riparian lands with riparian rights, the Court went on to make the point even clearer:*fn6

Artificial water courses are waterways that owe their origin to acts of man, such as canals, drainage and irrigation ditches, aqueducts, flumes, and the like. 4 ...


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