Ottawa Circuit Court LC Nos. 04-051026-CZ & 04-002340-MZ.
The opinion of the court was delivered by: Meter, P.J.
Before: METER, P.J., and MURRAY and BECKERING, JJ.
Defendant Department of Transportation (DOT) appeals as of right from an order denying its motion for summary disposition on grounds of governmental immunity regarding plaintiffs' trespass-nuisance claim. Plaintiffs cross-appeal to challenge the grant of summary disposition to both defendants on plaintiffs' inverse-condemnation claim. We reverse the trial court's order relating to the trespass-nuisance claim but affirm in all other respects. Of particular note is our holding that there is no trespass-nuisance exception to the doctrine of sovereign immunity.
Plaintiffs are engaged in the commercial production of blueberries in Ottawa and Muskegon counties. Plaintiffs own or lease property that is adjacent to highways or primary county roads. DOT contracts with county road commissions, including defendant Ottawa County Road Commission (Ottawa County), to maintain the highways and county roads during the winter, when salt is used to prevent the formation of ice on the highways and roads. Plaintiffs claim that the amount of salt used in western Michigan has increased during a 15-year period. They allege that droplets of salt-laden water are thrown into the air by passing vehicles and are then blown by the wind onto plaintiffs' property. They contend that this salt spray causes damage to plaintiffs' blueberry bushes, which results in a loss of blueberry production from those bushes.
Plaintiffs sued DOT and Ottawa County, alleging inverse condemnation. Plaintiffs also raised a claim of trespass nuisance against DOT. The trial court granted summary disposition under MCR 2.116(C)(10) to DOT and Ottawa County on the inverse-condemnation claims, finding that plaintiffs failed to present evidence to establish that their injury was "of a unique or peculiar character different from the effects experienced by all similarly situated property owners." The trial court concluded that plaintiffs were not permanently deprived of their property and that "the incidental entry of road salt onto Plaintiffs' properties has only rendered the growing of blueberries uneconomical." The trial court further found that there was no "direct and immediate intrusion" onto plaintiff's property in this case.*fn1
The trial court subsequently denied DOT's motion for summary disposition under MCR 2.116(C)(7) (governmental immunity) on the trespass-nuisance claim and instead found that plaintiffs were entitled to summary disposition on this claim under MCR 2.116(C)(10). The trial court followed Hadfield v Oakland Co Drain Comm'r, 430 Mich 139, 147-149; 422 NW2d 205 (1988), overruled by Pohutski v City of Allen Park, 465 Mich 675; 641 NW2d 219 (2002). Hadfield held that a limited trespass-nuisance exception to governmental immunity existed, consistent with case law predating the enactment of statutory immunity. See Hadfield, 430 Mich at 147-150. The trial court concluded that plaintiffs established the elements for their trespass-nuisance claim and that plaintiffs were therefore entitled to summary disposition.
On appeal, DOT argues that the trial court erred in denying its motion for summary disposition on the trespass-nuisance claim because it is entitled to immunity with regard to this claim.
This Court reviews de novo a trial court's grant of summary disposition. Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999). In determining whether summary disposition under MCR 2.116(C)(7) is appropriate, a court considers all documentary evidence submitted by the parties, accepting as true the contents of the complaint unless affidavits or other appropriate documents specifically contradict them. See Patterson v Kleiman, 447 Mich 429, 433-435; 526 NW2d 879 (1994). "If the facts are not in dispute and reasonable minds could not differ concerning the legal effect of those facts, whether a claim is barred by immunity is a question for the court to decide as a matter of law." Poppen v Tovey, 256 Mich App 351, 354; 664 NW2d 269 (2003); see also Cain v Lansing Housing Comm, 235 Mich App 566, 568; 599 NW2d 516 (1999) ("applicability of governmental immunity is a question of law that is reviewed de novo on appeal").
Disposition of the present issue requires this Court to resolve the question whether the tort of trespass nuisance is an exception to governmental immunity. Trespass nuisance is a trespass or interference with the use or enjoyment of land by way of a physical intrusion that the government sets in motion and that results in personal or property damage. McDowell v Detroit, 264 Mich App 337, 352; 690 NW2d 513 (2004), rev'd on other gds 477 Mich 1079 (2007). Its elements have been stated simply as a condition, a cause, and control by the government. Id.
MCL 691.1407(1) provides:
Except as otherwise provided in this act, a governmental agency is immune from tort liability if the governmental agency is engaged in the exercise or discharge of a governmental function. Except as otherwise provided in this act, this act does not modify or restrict the immunity of the state from tort liability as it existed before July 1, 1965, which immunity is affirmed.
"Absent a statutory exception, a governmental agency is immune from tort liability when it exercises or discharges a governmental function." Maskery v Univ of Mich Bd of Regents, 468 Mich 609, 613; 664 NW2d 165 (2003). A "governmental agency" is "the state or a political subdivision." MCL 691.1401(d). "State" means the state of Michigan and its agencies, departments, commissions, courts, boards, councils, and statutorily created task forces and includes every public university and college of the state, whether established as a constitutional corporation or otherwise. [MCL 691.1401(c).]
"Political subdivision" means a municipal corporation, county, county road commission, school district, community college district, port district, metropolitan district, or transportation authority or a combination of 2 or more of these when acting jointly; a district or authority authorized by law or formed by 1 or more political subdivisions; or an agency, department, court, board, or council of a political subdivision. [MCL 691.1401(b).]
The statutory exceptions to governmental immunity are: failure to maintain highways, MCL 691.1402(1); the negligent operation of government-owned vehicles, MCL 691.1405; public building defects, MCL 691.1406; the performance of proprietary functions, MCL 691.1413; and the ownership or operation of a government hospital, MCL 691.1407(4). MCL 691.1417 et seq. also provides for liability for sewage-disposal-system events. None of these exceptions is relevant to the present case.
Previously, the Supreme Court held that a limited, non-statutory trespass-nuisance exception existed to governmental immunity. Hadfield, 430 Mich at 145. Later, in Pohutski, 465 Mich at 685, the Supreme Court noted that it had "strayed from the plain meaning" of MCL 691.1407(1) when it concluded in Hadfield that "the historic trespass-nuisance exception was required by the language of [MCL 691.1407(1)]." The Supreme Court in Pohuski overruled Hadfield to "rectify Hadfield's misconstruction of the statutory text." Pohutski,465 Mich at 695.
Significantly, however, the Pohutski Court, in reaching its conclusions, relied on the word "state" from the second sentence of MCL 691.1407(1). Pohutski, 465 Mich at 688-689. Again, this sentence states: "Except as otherwise provided in this act, this act does not modify or restrict the immunity of the state from tort liability as it existed before July 1, 1965, which immunity is affirmed." (Emphasis added.) The Pohutski Court concluded that because cities, and not the state as defined in MCL 691.1401(c), were involved in that case, the second sentence of § 7 was simply inapplicable. Pohutski, 465 Mich at 689. The Court then held that, for cities, "the plain language of the governmental tort liability act does not contain a trespass-nuisance exception to governmental immunity." Id. at 689-690.
The Pohutski Court stated:
Because the state is not involved as a party in these cases, we need not explicate fully the meaning of the second sentence of § 7. We agree with Justice GRIFFIN [in Li v Feldt (After Remand), 434 Mich 584, 599; 456 NW2d 55 (1990), abrogated by Pohutski, supra,] that, at most, the language of the second sentence requires an historical analysis of the state's sovereign immunity, but we have no occasion to undertake such an analysis here. Therefore, contrary to the dissent's assertion, we make no determinations regarding common-law exceptions to the state's governmental immunity. [Pohutski, 465 Mich at 688 n 1 (emphasis in original).]
Here, the "state," as defined in MCL 691.1401(c), is indeed involved. The question, then, is whether the second sentence of § 7 allows plaintiffs to pursue the instant lawsuit or whether DOT is protected by governmental immunity.
We find no basis to conclude that a trespass-nuisance exception exists for claims against the state. Plaintiffs argue that the second sentence of § 7 preserves a common-law exception to governmental immunity for trespass nuisance, but they cite only Hadfield to support this position. Hadfield and the pertinent cases cited therein, however, did not address "sovereign immunity" (i.e., the immunity of the state). See Pohutski, 465 Mich at 682 (discussing sovereign immunity); see also Myers v Genesee County Auditor, 375 Mich 1, 6; 133 NW2d 190 (1965) ("[s]overeign immunity is a specific term limited in its application to the State and to the departments, commissions, boards, institutions and instrumentalities of the State" [emphasis in original]).
"So far as the State itself is concerned, the doctrine of sovereign immunity as it presently exists in Michigan is a creature of the legislature. The doctrine has been modified by the legislature, abolished by the legislature, re-established by the legislature, and further modified by the legislature." [McDowell v Mackie, 365 Mich 268, 270-271; 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 [L]egislature" 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 the enactment of § 7.
In Ross v Consumers Power Co, 420 Mich 567; 363 NW2d 641 (1984), the Supreme Court examined MCL 691.1407(1). It first discussed the "ancient common-law ...