BLUE HARVEST, INC v. DEPARTMENT OF TRANSPORTATION, 288 Mich. App. 267

METER, E J. 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 pertinent 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 claim, 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 plaintiffs’ property in this case.

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 determined 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 caselaw predating the enactment of statutory immunity. See Hadfield, 430 Mich at 147-150 (opinion by BRICKLEY, J.). 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 by 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 grounds 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 certain governmental hospitals, 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, nonstatutory trespass-nuisance exception existed to governmental immunity. Hadfield, 430 Mich at 145 (opinion by BRICKLEY, J.).

Later, in Pohutski, 465 Mich at 685, the Supreme Court noted that it had “strayed from the plain language” 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). Id. 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 MCL 691.1407(1) 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 [MCL 691.1407(1)].

We agree with Justice Griffin [in his partial dissent in Li v Feldt (After Remand), 434 Mich 584, 599; 456 NW2d 55 (1990), overruled in part by Pohutski] 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 MCL 691.1407(1) 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 MCL 691.1407(1) 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 Co Auditor, 375 Mich 1, 6; 133 NW2d 190 (1965) (“Sovereign immunity is a specific term limited in its application to the State and to the departments, commissions, boards, institutions, and instrumentalities of the State.”). “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, 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 the enactment of MCL 691.1407(1).

In Ross v Consumers Power Co (On Rehearing), 420 Mich 567; 363 NW2d 641 (1984), the Supreme Court examined MCL 691.1407(1). It first discussed the “ancient common-law concept” of sovereign immunity, Ross, 420 Mich at 597, and later stated: The first sentence of § 7 was intended to not only restore governmental immunity to non-sovereign governmental agencies, but to provide uniform treatment for state and local agencies.

Furthermore, the affirmance of common-law sovereign immunity in the second sentence of § 7 was a clear directive that this Court henceforth could not... judicially abrogate the state’s sovereign immunity. ... Therefore, at the time § 7 was enacted, the state was immune from tort liability when it was engaged in the exercise or discharge of a governmental function, unless a statutory exception was applicable. This same immunity is reiterated by the first and second sentences of § 7. In

summary, at the time § 7 was enacted and became effective, the state enjoyed immunity from tort liability at common law whenever it was engaged in the exercise or discharge of a governmental function, unless a statutory exception was applicable. This common-law sovereign immunity was codified by the second sentence of § 7. The immunity granted to the state by the first sentence of § 7 is essentially coextensive with this common-law immunity. We note that this

interpretation furthers the Legislature’s intent to create uniform standards of liability for state and non-sovereign governmental agencies. [Id. at 605-606, 608.] Ross clearly indicates that exceptions to sovereign immunity must be granted by the Legislature. Again, the Legislature has not provided such an exception for trespass-nuisance claims. We thus hold that DOT was entitled to

summary disposition with regard to plaintiffs’ trespass-nuisance claim. In their cross-appeal, plaintiffs claim that the trial court should not have granted defendants

summary disposition with regard to the inverse-condemnation claim. In reviewing a motion for

summary disposition under MCR 2.116(0(10), this Court considers the pleadings, depositions, admissions, and other documentary evidence in the light most favorable to the nonmovant. Morris & Doherty, PC v Lockwood, 259 Mich App 38, 42 n 2; 672 NW2d 884 (2003). If the evidence fails to demonstrate a genuine issue of material fact, the movant is entitled to judgment as a matter of law. Franchino v Franchino, 263 Mich App 172, 181; 687 NW2d 620 (2004).

A genuine issue of material fact exists when, after the court reviews the record in the light most favorable to the nonmovant, there remains an issue upon which reasonable minds could differ. West v Gen Motors Corp, 469 Mich 177, 183; 665 NW2d 468 (2003). “ ‘Eminent domain’ or ‘condemnation’ is the power of a government to take private property.” Silver Creek Drain Dist v Extrusions Div, Inc, 468 Mich 367, 373; 663 NW2d 436 (2003). The United States Constitution precludes the federal government from taking private property unless it is taken for a public use and with just compensation.

US Const, Am V Similarly, the Michigan Constitution requires that “[p]rivate property shall not be taken for public use without just compensation.” Const 1963, art 10, § 2.

Additionally, MCL 213.55(1) requires that, in the event the parties fail to agree with regard to the purchase of the property, courts ascertain and determine just compensation to be made for condemned property. “An inverse or reverse condemnation suit is one instituted by a landowner whose property has been taken for public use without the commencement of condemnation proceedings.” Electro-Tech, Inc v H F Campbell Co, 433 Mich 57, 88-89; 445 NW2d 61 (1989) (citation and quotation marks omitted). “While there is no exact formula to establish a de facto taking, there must be some action by the government specifically directed toward the plaintiffs property that has the effect of limiting the use of the property.” Dorman v Clinton Twp, 269 Mich App 638, 645; 714 NW2d 350 (2006) (citation and quotation marks omitted).

Generally, a plaintiff alleging a de facto taking or inverse condemnation must establish (1) that the government’s actions were a substantial cause of the decline of the property’s value and (2) that the government abused its powers in affirmative actions directly aimed at the property. Hinojosa v Dep’t of Natural Resources, 263 Mich App 537, 548; 688 NW2d 550 (2004). “Further, a plaintiff alleging inverse condemnation must prove a casual connection between the government’s action and the alleged damages.” Id.

Additionally, [a]ny injury to the property of an individual which deprives the owner of the ordinary use of it is equivalent to a taking, and entitles him to compensation. So a partial destruction or diminution of value of property by

an act of government, which directly and not merely incidentally affects it, is to that extent an appropriation. [Peterman v Dep’t of Natural Resources, 446 Mich 177, 190; 521 NW2d 499 (1994) (citations and quotation marks omitted).] In cases involving a “legalized nuisance,” e.g., “the persistent passing of trains on a railroad, or planes in the air, or vehicles on the road,” a plaintiff must allege that the property is directly affected in a manner that is unique or peculiar relative to the property of other similarly situated persons. Spiek v Dep’t of Transp, 456 Mich 331, 345; 572 NW2d 201 (1998).

In Spiek, 456 Mich at 334, the plaintiffs’ residence abutted the service drive to an interstate highway, and they initiated an inverse-condemnation action against the defendant, “alleging that defendant’s actions in locating the service drive adjacent to their property had ‘so interfered with Plaintiffs’ quiet use and enjoyment of the property as to render it worthless, and to constitute a taking of property for public purpose without payment of just compensation ....’” The trial court granted the defendant’s motion for

summary disposition “ ‘as a matter of public policy.’ ” Id. at 336. This Court reversed, concluding that the plaintiffs should have been afforded an opportunity to establish that their use and enjoyment of the property was affected detrimentally to a degree greater than the public. Id. The Supreme Court granted leave to appeal “to decide whether noise, dust, vibration, and fumes experienced by owners of property along an interstate freeway constitute a taking of a recognized property interest where the effects alleged are not unique or peculiar in character.” Id. at 332.

The Supreme Court opined that if “a legalized nuisance affects all in its vicinity in common, damages generally are not recoverable under just-compensation theoiy” because such common injuries are “incidental effects not amounting to an appropriation.” Id. at 345. The Court discussed the common-law doctrine of damnum absque injuria: “ ‘Loss, hurt, or harm without injury in the legal sense; that is, without such breach of duty as is redressible by a legal action. A loss or injury which does not give rise to an action for damages against the person causing it.’ ” Id. at 346, quoting Black’s Law Dictionary (6th ed).

The Spiek Court noted that if the plaintiff alleges that the property is directly affected in a manner that is unique or peculiar in comparison to the property of other similarly situated persons, the plaintiff states a claim for which the relief sought may be granted under well-established principles for proving the right to compensation. [Spiek, 456 Mich at 346.] The Court specifically explained: The right to just compensation, in the context of an inverse condemnation suit for diminution in value caused by the alleged harmful affects to property abutting a public highway, exists only where the landowner can allege a unique or special injury, that is, an injury that is different in kind, not simply in degree, from the harm suffered by all persons similarly situated.

While the Michigan courts have not had the opportunity to address this issue directly in recent years, the overwhelming weight of foreign authority supports this conclusion, as do contemporary public policy considerations. [Id. at 348.] The Court opined further: In the context of traffic flow, a degree of harm threshold, as opposed to the well-established difference in kind threshold, would be unworkable both in a practical sense and from the standpoint of public policy because it would depend on the amount of traffic traveling a particular highway at a particular time that may change over time because of factors unrelated to and out of the control of the state.

For example, demographic changes and economic changes affecting commercial and industrial development may determine the degree of harm, rather than the actual location of the highway in a particular place by the state. To require the state to litigate every case in which a person owning land abutting a public highway feels aggrieved by changing traffic conditions would wreak havoc on the state’s ability to provide and maintain public highways and place within the judicial realm that which is inappropriate for judicial remedy.

Where harm is shared in common by many members of the public, the appropriate remedy lies with the legislative branch and the regulatory bodies created thereby, which participate extensively in the regulation of vibrations, pollution, noise, etc., associated with the operation of motor vehicles on public highways. Only where the harm is peculiar or unique in this context does the judicial remedy become appropriate. [Id. at 349.] The Supreme Court concluded that the defendant was entitled to

summary disposition because the plaintiffs had failed to overcome the doctrine of damnum absque injuria by failing to “alleg[e] harm of a character different from that suffered by all living in similar proximity to a highway.” Id. at 350. The Court found that the “plaintiffs’ complaint alleges the same type of incidental and consequential harm as is experienced by all persons similarly situated to plaintiffs in that they reside near a public highway.” Id.

The Court further rejected the plaintiffs’ assertion “that recovery was available if the harm suffered merely differed in degree from the inconvenience experienced by the public at large.” Id. The Court ultimately held: The just-compensation requirement in the Michigan Constitution does not require the state to compensate every property owner living in proximity to a public highway for the normal inconveniences associated therewith. The plaintiff states a claim for which relief may be granted only where the plaintiff alleges harm of a unique or peculiar kind.

We reverse the decision of the Court of Appeals and reinstate the trial court’s order granting defendant’s motion for

summary disposition. [Id. at 350-351.] In this case, defendants used salt as a means to prevent ice from building up on public highways and roads. Notably, plaintiffs allege that the harm is caused not by the act of administering salt to the highways and roads, but as a result of traffic causing salt spray to ultimately invade plaintiffs’ property, thereby harming their blueberry crops. Ottawa County formed the Ottawa County Road Salt Commission to identify strategies to modify Ottawa County’s winter road maintenance to prevent further environmental impacts related to the application of road salt.

A survey was conducted, which estimated losses to blueberry production for 2003. The survey looked at 16 property owners with 32 farms. Fifteen farms did not provide any information regarding losses. The other 17 farms listed losses ranging from $3,000 to $200,000. Seven farms listed losses of less than $10,000; seven farms listed losses between $10,000 and $50,000; one farm listed losses of $80,000; one farm listed losses of $120,000; and one farm listed losses of $200,000.

The road salt commission noted that the environmental impact from road salt received attention after blueberry growers reported damage to blueberry bushes near roadways. The road salt commission also acknowledged: The threat of increasing road salt usage to the blueberry industry is not the only cause for concern. If current winter road maintenance practices are not changed, the damage observed to roadside trees and ornamental plants could become more widespread. Other impacts could also become more pronounced. Elevated levels of chloride, for example, have been detected in irrigation ponds adjacent to roadways.

Rising chloride levels have also been found in groundwater in Illinois, as well as in the Great Lakes. While the chloride levels detected in groundwater and in the Great Lakes are not yet believed to be harmful to humans, some research indicates that these levels have already altered our ecosystems. For instance, researchers have identified the increased salinity in the Great Lakes as a factor in the migration of some exotic species to this region. The road salt commission’s report, Recommendations for Salt Management, generally focused on the environmental impact on blueberry crops.

Nevertheless, as noted in the report’s facts and findings regarding impacts of road salt usage: Other environmental impacts, including damage to other types of roadside vegetation and water resources, are occurring or suspected of occurring as a result of road salt usage. The effect of road salt exposure on trees is explained in an

article which appeared in Michigan Landscape Magazine (See Attachment K). The impact on water resources is documented in Table 1 and Figures 1-2. The road salt commission also provided measures designed to eliminate the damaging effects of road salt exposure to blueberries by establishing windbreaks using salt resistant tree species, placing the first row of blueberry plantings at least 300 feet from the road, digging irrigation ponds at the back of the field away from roads, and improving drainage around fields.

Certainly, plaintiffs have suffered some kind of loss as a result of the application of the road salt; however, their claims are precluded under the common-law doctrine of damnum absque injuria. See Spiek, 456 Mich at 346. Ultimately, the harm is akin to that resulting from “the amount of traffic traveling a particular highway at a particular time . . . See id. at 349.

The by-product pollution is suffered by all people owning land adjacent to the salted roads, and the harm-causing factors are “unrelated to and out of the control of the state.” Id. “[A]cts done in the proper exercise of governmental powers, and not directly encroaching upon private property, though their consequences may impair its use, are universally held not to be a taking within the meaning of the constitutional provision.” Case v Saginaw, 291 Mich 130, 141; 288 NW 357 (1939) (citation and quotation marks omitted). Thus, such acts do not entitle the property owner to compensation from the state.

Id. at 141-142. Plaintiffs maintain that their injury is different from other similarly situated property owners. Plaintiffs emphasize the loss of their cash crop as compared to other property owners’ lawns, ornamental plantings, or incidental roadside vegetation. However, plaintiffs’ injury clearly is merely of a different degree than that suffered by the public at large and therefore is not actionable. Spiek, 456 Mich at 350. Affirmed in part, reversed in part, and remanded for entry of judgment in favor of DOT. We do not retain jurisdiction. MURRAY, J., concurred. The trial court first granted

summary disposition to Ottawa County in a separate proceeding and then later applied the same rationale in granting

summary disposition to DOT. Plaintiffs contend that their trespass-nuisance claim rises to the level of an unconstitutional-taking claim and therefore cannot be barred by sovereign immunity. We need not decide whether such a taking claim would be exempt from sovereign immunity because, as noted later in this opinion, plaintiffs have failed to set forth the necessary allegations to constitute an unconstitutional-taking claim.