Anson v. Barry County Drain Commissioner , 210 Mich. App. 322 ( 1995 )

210 Mich. App. 322 (1995) 533 N.W.2d 19

ANSON
v.
BARRY COUNTY DRAIN COMMISSIONER

Docket No. 164564.

Michigan Court of Appeals.

Submitted December 13, 1994, at Grand Rapids. Decided April 28, 1995, at 9:25 A.M.

Vandervoort, Cooke, McFee, Christ, Carpenter & Fisher, P.C. (by Nelson Karre), for the plaintiffs.

Dale A. Crowley, Prosecuting Attorney, for the defendants.

Before: MacKENZIE, P.J., and J.W. FITZGERALD^[*] and C.O. GRATHWOHL,^[**] JJ.

MacKENZIE, P.J.

Plaintiffs appeal as of right from an order dismissing their complaint for mandamus and voiding a 1969 judgment. We reverse and remand.

On September 5, 1969, a judgment was entered pursuant to the Inland Lake Level Act, MCL 281.61 et seq.; MSA 11.300(1) et seq., establishing the normal level of Pine Lake at 890.5 feet above sea level, and ordering that the maximum level of the lake not exceed 891 feet and the minimum level not fall below 890 feet. The judgment stated that the normal level could be attained by the establishment of a well or wells.

In November 1992, plaintiffs, who are Pine Lake waterfront property owners, filed this action to enforce the 1969 judgment. They alleged that the lake had risen to a level in excess of 893 feet, resulting in the loss of beach front and shoreline, and damage to sea walls and other improvements. Defendants' answer admitted that the lake level exceeded 891 feet, but averred that the 1969 judgment only envisioned raising the lake level through the use of wells, and that since 1971 the lake had been allowed to seek its own natural level.

Plaintiffs subsequently moved for summary disposition pursuant to MCR 2.116(C)(10), arguing that because defendants admitted that the lake level was in excess of the 1969 judgment maximum level, there was no genuine issue of material fact. In support of their motion, plaintiffs presented numerous affidavits describing plaintiffs' loss of beach front and trees due to flooding, flooded sewer systems, and flooded basements and crawl spaces. They also detailed the expense of hauling in dirt and sand, rebuilding docks, and raising levels of patios and boathouses.

Defendants did not file a response to plaintiffs' motion. At the hearing regarding the motion, however, they offered letters and affidavits from property owners and the Department of Natural Resources taking the position that the present lake level should not be lowered.

The trial court denied plaintiffs' motion for summary disposition. The court then, on its own motion, declared the 1969 judgment null and void and ordered plaintiffs' complaint dismissed. In so doing, the court ruled that the 1969 judgment was too old to be enforced. It also noted that the 1969 proceedings were not subject to new requirements, added in 1992, for initiating an action to determine a lake's normal level. See 1992 PA 52, effective May 20, 1992. On the basis of these considerations, the court ordered that plaintiffs would have to institute a new action to redetermine the normal level of the lake if they wanted the level of Pine Lake changed.

On appeal, plaintiffs contend that the trial court should not have voided the 1969 judgment that determined the normal level of Pine Lake to be 890.5 feet above sea level. We agree.

MCL 281.70(5); MSA 11.300(10)(5), as amended, sets forth the powers and duties of the trial court in an action under the Inland Lake Level Act. The language of that subsection is substantially unchanged from the language of the statute as originally enacted and provides, in relevant part:

The court shall determine the normal level to be established and maintained, shall have continuing jurisdiction, and may provide for departure from the normal level as necessary to accomplish the purposes of this act.

The purpose of the act is to provide for the control and maintenance of inland lake levels for the benefit and welfare of the public. In re Van Ettan Lake, 149 Mich App 517, 525; 386 NW2d 572 (1986).

Applying the statute to this case, it is apparent that the trial court had continuing jurisdiction over the 1969 proceedings, and that it had the power to order a departure from the lake level as determined in 1969 upon a showing that such a departure is necessary for the benefit and welfare of the public. However, the statute does not grant courts the authority to simply abolish a prior determination of the normal lake level, as the trial court in this case did. Nor does the statute authorize a departure from the established lake level without a showing that that level is no longer beneficial. Further, the statute, as amended, does not contemplate insisting, again as the court in this case did, that the parties initiate a new cause of action when a change in the lake level is sought. Rather, it is clear that the Legislature intended courts to exercise their continuing jurisdiction to decide whether a departure from a previously established level is necessary for the benefit and welfare of the public, and, if so, to provide for such a departure.

In light of the provisions of MCL 281.70(5); MSA 11.300(10)(5), we hold that the trial court erred in voiding the 1969 judgment establishing the normal level of Pine Lake and sua sponte ordering the dismissal of plaintiffs' action. We further hold that plaintiffs need not initiate a new action to determine the normal level of Pine Lake under MCL 281.63; MSA 11.300(3), as amended, but instead may invoke the court's continuing jurisdiction under MCL 281.70(5); MSA 11.300(10)(5) to assert their claim that the 1969 lake level should not be departed from. Until the necessity for a departure from that judgment is demonstrated and the court, in the exercise of its continuing jurisdiction, orders a departure from the 1969 judgment, it remains in effect.

As this case presently stands, a question of fact exists regarding whether the normal level of Pine Lake as established in the 1969 judgment remains beneficial to the public. To resolve that issue, we remand the matter to the trial court for a hearing to determine whether a departure from the established normal level is necessary. The hearing on remand shall be conducted consistent with the procedures set forth in MCL 281.70; MSA 11.300(10).

Finally, plaintiffs' contention that the trial judge should have disqualified himself from this case pursuant to MCR 2.003(B)(3) is without merit. The judge's limited contact with the Pine Lake Association in 1965 is far too tenuous to overcome the presumption of impartiality. In re Forfeiture of $1,159,420, 194 Mich App 134, 151; 486 NW2d 326 (1992).

Reversed and remanded for further proceedings consistent with this opinion. We retain no further jurisdiction.

NOTES

[*] Former Court of Appeals judge, sitting on the Court of Appeals by assignment pursuant to Administrative Order No. 1994-7.

[**] Circuit judge, sitting on the Court of Appeals by assignment.