Fox v. Ogemaw County , 208 Mich. App. 697 ( 1995 )

Mackenzie, P.J.

Defendants appeal as of right from a judgment that found them liable to plaintiff Mary K. Fox (hereinafter plaintiff) in the amount of $36,950 for creating a nuisance. We reverse.

In order to establish a claim that falls within the nuisance exception to governmental immunity, plaintiff had to prove the existence of a trespass-nuisance or (although a majority of the Supreme Court has yet to decide the question) a nuisance per se. Hadfield v Oakland Co Drain Comm’r, 430 Mich 139; 422 NW2d 205 (1988); Li v Feldt (After Second Remand), 439 Mich 457; 487 NW2d 127 (1992).

Plaintiffs trial testimony established that she was the developer of several lakefront lots on an inland lake known as Flowage Lake. Flowage Lake was an artificial lake created by damming a section of the Rifle River. In 1985, the dam, which was maintained by defendants, gave way, and Flowage Lake was completely drained. Drainage of the lake exposed tree stumps and allowed mosquitoes and flies to breed. As a result of this lawsuit, defendants agreed to rebuild the dam. However, while the lake was drained, the value of plaintiffs lots was diminished. Plaintiff testified that she sold several lots at reduced prices because the lake had been drained.

On these facts, the trial court clearly erred in finding defendants liable for creating a nuisance. The Supreme Court has defined a trespass-nuisance as "a direct trespass upon, or the interference with the use or enjoyment of, land that results from a physical intrusion caused by, or under the control of, a governmental entity.” Hadfield, supra, p 145. The loss of the lake water from plaintiffs real estate, by definition, was not an invasion of her property and, therefore, did not constitute a trespass. Peterman v Dep’t of Natural Resources, 446 Mich 177, 207; 521 NW2d 499 (1994). Similarly, the exposure of existing tree stumps was not an invasion of the property and thus not a trespass. Plaintiff argues that the presence of insects constitutes a trespass, citing Trowbridge v Lansing, 237 Mich 402; 212 NW 73 (1927). However, a close reading of that case confirms that the Supreme Court’s most recent characterization of that case was as a case primarily involving the production of pervasive sickening odors. See Peterman, supra, p 206. Here, there was no evidence of such pervasive, sickening odors. Furthermore, we decline to hold that the reversion of the property to its naturally lakeless state, and the consequent restoration of insect habitat, constituted a trespass-nuisance.

Assuming the existence of a nuisance per se exception to governmental immunity, see Li, supra, we also conclude that the trial court’s finding of a nuisance was clearly erroneous. A nuisance per se is "an activity or condition which constitutes a nuisance at all times and under all circumstances, without regard to the care with which it is conducted or maintained.” Li, supra, pp 476-477 (opinion of Cavanagh, C.J.). "[U]nlike the nuisance in fact, nuisance per se is not predicated on the want of care, but is unreasonable by its very nature.” Hadfield, supra, p 208 (opinion of Boyle, J.). The return of plaintiffs property to its natural state, lacking an artificial lake, is not intrinsically "unreasonable,” nor does it constitute a condition that is dangerous at all times and under all circumstances.

From a review of the trial transcript, it is apparent that the "nuisance” proven by plaintiff was that, until the dam was repaired and the area once again artificially flooded, her real estate could not be marketed and sold as lakefront property. Because plaintiff failed to establish either a trespass-nuisance or a nuisance per se, the trial court clearly erred in finding defendants liable to her for damages; they were immune from liability under § 7(1) of the governmental tort liability act, MCL 691.1407(1); MSA 3.996(107)(1).

Reversed.

M. J. Talbot, J., concurred.