The question before us is whether a claim for relief may be maintained by plaintiffs who claim the right to damages in nuisance for property depreciation caused by environmental contamination of ground water despite testimony by both plaintiffs' and defendants' experts that their properties were not and would never be subject to ground water contamination emanating from the defendants' property.
The trial court dismissed these plaintiffs' claims on the basis that it found no support for recovery in Michigan law. The Court of Appeals reversed the decision of the trial court, rejecting its conclusion that the facts presented no cognizable claim for nuisance.
We are persuaded that the boundaries of a traditional nuisance claim should not be relaxed to permit recovery on these facts. Compensation for a decline in property value caused by unfounded perception of underground contamination is inextricably entwined with complex policy questions
We reverse the decision of the Court of Appeals, reinstate the trial court's judgment in favor of defendants, and remand to the trial court for a continuation of proceedings as to the remaining plaintiffs.
In 1984, the plaintiffs sued the Thomas Solvent Company in the Calhoun Circuit Court for damages and injunctive relief from injuries allegedly resulting from the improper handling of chemicals and industrial waste. Claiming that the Thomas Solvent Company's and other defendants' improper handling and storage of toxic chemicals and industrial waste had contaminated the ground water, the plaintiffs brought claims sounding in negligence, continuing nuisance, continuing trespass, strict liability, and ultrahazardous activities.
Originally, approximately fifty plaintiffs brought suit against the Thomas Solvent defendants,
In 1985, the complaint was amended and approximately nineteen plaintiffs were added. Discovery continued, and various motions for summary disposition were brought as the parties and the court sought to sharpen and narrow the issues. As discovery continued, it became clear that contaminants allegedly discharged into the ground water by the defendants never reached these plaintiffs' property. The plaintiffs' expert, Yaron Sternberg, concluded that a ground water divide separated the flow of ground water in the area, with water on the north side of the divide flowing generally north or northwesterly and the water on the south side of the divide flowing in a westerly direction. He testified that no contaminants from the Thomas Solvent facilities had any effect on the
This appeal involves the claims of twenty-two plaintiffs who live over 2000 feet south and east from the Thomas Solvent facilities and whose claims were eventually dismissed by the trial court. The Grand Trunk Railroad defendants filed a motion for summary disposition, seeking to dismiss the claims of those plaintiffs whose property was not affected by the contaminants allegedly released by Grand Trunk. The Thomas Solvent defendants joined in the motion.
The plaintiffs claimed an appeal as of right from the trial court's summary disposition order. The Court of Appeals reversed the trial court's order and remanded the case to the trial court for further proceedings. Recognizing that no contamination had reached or would reach the well water of the plaintiffs, the Court of Appeals nevertheless concluded that the trial court had erred in finding that the plaintiffs had not shown some damage "and in summarily dismissing plaintiffs' claims merely because the ground water beneath their properties had not been contaminated." 184 Mich.App. 693, 696; 459 N.W.2d 22 (1990). Emphasizing that to recover damages for nuisance, a litigant need not show physical intrusion onto the land, and distinguishing nuisance from trespass, the Court of Appeals relied on this Court's opinions in Whittemore v Baxter Laundry Co, 181 Mich. 564; 148 NW 437 (1914), and Hadfield v Oakland Co Drain Comm'r, 430 Mich. 139, 151; 422 N.W.2d 205 (1988), citing Prosser & Keeton, Torts (5th ed), § 87, p 622.
This Court granted the defendants' application for leave to appeal to consider whether the Court
The trial court granted the defendants' motion for summary disposition pursuant to MCR 2.116(C)(10). The parties had agreed, both in a stipulation filed with the court and during oral argument on the motion, that no ground water contamination from the defendants' property ever reached the plaintiffs' property because of a ground water divide which acted as a hydrogeological barrier that precluded the possibility of migration of any contaminants from defendants' property. The trial court concluded that the defendants would be entitled to judgment as a matter of law. General Motors Corp v Detroit, 372 Mich. 234; 126 N.W.2d 108 (1964), cert den 377 U.S. 977 (1964). For a summary disposition to be upheld on appeal, the Court must review the record to ascertain whether the defendants would have been entitled to the judgment as a matter of law. American Employers' Ins Co v Christman & Bros Co, 284 Mich. 36; 278 NW 750 (1938).
The Court of Appeals held that because a physical intrusion or physical effect is not required to sustain a claim for nuisance, the trial court erred in dismissing the plaintiffs' claims. For the reasons that follow, we find that the trial court did not err in dismissing the claims.
Historically, Michigan has recognized two distinct versions of nuisance, public nuisance and private nuisance. Hadfield, supra, p 205. A private nuisance is a nontrespassory invasion of another's interest in the private use and enjoyment of land.
According to the Restatement, an actor is subject to liability for private nuisance for a nontrespassory invasion of another's interest in the private use and enjoyment of land if (a) the other has property rights and privileges in respect to the use or enjoyment interfered with, (b) the invasion results in significant harm (c) the actor's conduct is the legal cause of the invasion, and (d) the invasion is either (i) intentional and unreasonable, or (ii) unintentional and otherwise actionable under the rules governing liability for negligent, reckless, or ultrahazardous conduct. 4 Restatement Torts, 2d, §§ 821D-F, 822, pp 100-115.
Prosser & Keeton's enumeration of the requirements to recover on a private nuisance theory is similar. They set forth the following requirements:
Once these general definitions have been stated, application to any given set of facts is, nevertheless, problematic. Despite almost a century during which this Court has repeatedly recognized the difficulty in defining the concept of nuisance,
The plaintiffs alleged that the defendants' improper handling and storage of toxic chemicals and hazardous waste contaminated underground water in the area, thus supporting their recovery of money damages for nuisance. Although the plaintiffs' first amended complaint failed to specify whether their claims were founded on public or private nuisance, the parties have argued, and the
The Court of Appeals focused upon the lack of any physical intrusion onto plaintiffs' land, stressing that an interference with the use and enjoyment of land need not involve a physical or tangible intrusion. We do not disagree with this rule of law.
The crux of the plaintiffs' complaint is that publicity concerning the contamination of ground water in the area (although concededly not their ground water) caused diminution in the value of the plaintiffs' property. This theory cannot form the basis for recovery because negative publicity resulting in unfounded fear about dangers in the vicinity of the property does not constitute a significant interference with the use and enjoyment of land.
The doctrine of nuisance traditionally encompassed geographic, temporal, and proprietary aspects. In geographic terms, nuisance arose when occupants of neighboring land had a dispute, typically over the proper use of the defendant's land.
In temporal terms, nuisance normally required some degree of permanence. If the asserted interference was "temporary and evanescent," there was no actionable nuisance.
As the doctrine of trespass was gradually transmuted into the action upon the case for nuisance, the requirement that the injury involve entry onto the complainant's land was eliminated.
Nuisance on the case thus involved the common law's attempt to ensure accommodation between conflicting uses of adjoining property. An early opinion from this Court explains:
Because the doctrine sought to acknowledge the right of both the property owner to carry out a particular use and the neighbor whose property or use and enjoyment of property might be injured by the use, de minimus annoyances were not actionable. Only for a substantial interference with the use and enjoyment of property would an action lie. As a part of this scheme, courts frequently concluded that diminution in property values alone constitutes damnum absque injuria.
The reasoning in Gunther v EI DuPont de
That same reasoning applies to this case. Plaintiffs have stipulated the dismissal of all claims except those predicated upon an alleged depreciation in the market value of the property because of the unfounded fears of purchasers. The fact, as the dissent recognizes, that plaintiffs make no claim for "relief arising out of their own `fears,'" post, p 362, illustrates the point that defendants' activities have not interfered with their use and enjoyment of property.
This Court has held that property depreciation alone is insufficient to constitute a nuisance. Plassey v S Loewenstein & Son, 330 Mich. 525, 530; 48 N.W.2d 126
Just as the development of nuisance on the case responded to the limitations of trespass by recognizing a cause of action when there was damage, but not injury amounting to use, the modern formulation of nuisance in fact, acknowledges changing conditions by declining to recognize a cause of action where damage and injury are both predicated on unfounded fear of third parties that depreciates property values. The rationale may be
This response also corresponds with the historical premise underlying tort liability for nuisance in fact, i.e., that when some significant interference with the use and enjoyment of land causes the property value loss, courts of law accommodate conflicting interests by recognizing claims designed to shift the loss.
Plaintiffs correctly observe that property depreciation is a traditional element of damages in a nuisance action. See, e.g., Prosser, supra, § 89, pp 637-640. We are not persuaded, however, and the dissent has not cited authority to the contrary, that an allegation of property depreciation alone sets forth a cognizable claim in private nuisance of significant interference with the use and enjoyment of a person's property. Diminution in property values caused by negative publicity is, on these facts, damnum absque injuria — a loss without an injury in the legal sense.
Contrary to the dissent's observation, neither Garfield Twp, Smith, Plassey, nor Warren Twp School Dist stand for the proposition that plaintiffs in this case have a cognizable claim of nuisance. Defendant's business is a lawful business, and the fact that violations of the law may have occurred on the property does not make the conduct of the business a nuisance in fact. Indeed, Garfield Twp rejects the precise argument upon which the dissent relies.
We are thus unpersuaded by the dissent's attempt to avoid the stipulation of the parties by referring throughout the opinion to facts and counts that are not before us. Nor do we find convincing the dissent's disparagement of the 600-year provenance of the concept of damage without injury, or the assertion that the assumption on which we proceed "presents an abstract, desiccated
In short, we do not agree with the dissent's suggestion that wholly unfounded fears of third parties regarding the conduct of a lawful business satisfy the requirement for a legally cognizable injury as long as property values decline. Indeed, we would think it not only "odd" (LEVIN, J., post, p 349), but anachronistic that a claim of nuisance in fact could be based on unfounded fears regarding persons with AIDS moving into a neighborhood, the establishment of otherwise lawful group homes for the disabled, or unrelated persons living together,
The plaintiffs concede that a ground water divide prevented the migration of contaminated water to their property. Nevertheless, the plaintiffs seek to recover for damages because the defendants allegedly contaminated property in the general area. Under such a theory, a cause of action could be stated on behalf of any individual who could demonstrate an effect on property values even if the polluted ground water had neither strayed from defendants' own property, nor disturbed a plaintiff's enjoyment by the fear that it would do so.
If any property owner in the vicinity of the numerous hazardous waste sites that have been identified
For these reasons, we conclude that the Court of Appeals erred when it reversed the trial court's grant of the defendants' summary disposition motion. We reverse the decision of the Court of Appeals, reinstate the trial court's judgment granting summary disposition in favor of the defendants, and remand to the trial court for a
BRICKLEY, GRIFFIN, and MALLETT, JJ., concurred with BOYLE, J.
RILEY, J. (concurring).
While I agree with the result reached by the majority, I disagree with certain statements made by the majority that suggest that this Court will not hesitate to expand the traditional common-law view or to even abandon such view if it is decided that some policy reason suggests doing so. Ante, p 317. I believe that such broad speculation concerning the future treatment by this Court of traditional common-law doctrine is unwarranted.
LEVIN, J. (dissenting).
Plaintiffs, a group of Battle Creek homeowners, claim that the Thomas Solvent defendants contaminated soil and ground water in the vicinity of their homes through negligent or intentional discharge of toxic chemicals and industrial wastes. The contamination has not reached and will not reach plaintiffs' land. Plaintiffs nevertheless claim that the contamination of neighboring land has adversely affected the value of their homes.
The majority holds, as a matter of law, that because "diminution in property values alone constitutes damnum absque injuria,"
Preservation of property value is, in itself, a legally cognizable interest in this setting, whether any structure on the land is a home or rental
A condition, tortiously or intentionally created or maintained on neighboring property, that is a substantial and unreasonable nontrespassory interference with the use and enjoyment of property, may constitute a nuisance.
We would hold that a homeowner may maintain a nuisance action to recover damages for a decline in the market value of his home that reflects interference with the use and enjoyment of his home by a condition tortiously created or maintained by the defendant on neighboring property, and that the homeowner may do so without demonstrating interference with use or enjoyment that
The majority asserts, factually, that "unfounded fears of third parties,"
In finding as a fact, without a trial on the merits, that any decline in the value of plaintiffs' homes was attributable to unfounded fears, the majority proceeds on the assumption — without requiring defendants to evidentially support, or providing plaintiffs an opportunity to evidentially refute that assumption — that none of the reduction in value was attributable to well-founded concern about contamination by the defendants of soil and water supply in the neighborhood.
It appears — contrary to the majority's "unfounded" fear characterization — that the claimed reduction in the value of plaintiffs' homes was attributable both to factually well-founded concern about contamination of the soil and water supply in the neighborhood, and unfounded concern of soil and water supply contamination respecting plaintiffs' homes.
If the majority were to allow plaintiff homeowners their day in court, plaintiffs might establish that the claimed decline in the value of their homes was in fact partly attributable to well-founded concern of potential buyers about contamination of soil and water supply in the neighborhood, although also in part attributable to unfounded concern about contamination of the soil and water supply for plaintiffs' homes.
Even if potential buyers were to be made aware
At a trial, defendants would have an opportunity to show, if they can, that any decline in the market value was temporary, and that fully informed buyers later offered to pay prices for plaintiffs' homes that fully rectified any decline in the market value attributable to well-founded concerns that defendants had contaminated soil and ground water in the neighborhood.
This does not appear to be a case where the plaintiffs seek to recover damages for a decline in value that is attributable to mass hysteria without any unlawful or tortious misconduct on the part of defendants.
The plaintiffs seek only an opportunity to produce evidence in a court of law tending to show that the negligence or intentional misconduct of the Thomas Solvent defendants did in fact contaminate soil and ground water in the neighborhood and caused plaintiffs economic loss in the form of a decline in the market value of their homes.
The general rule is that where there are multiple causes — here, well-founded fears concerning contamination of soil and water supply in the neighborhood and unfounded fears that soil and water supply for plaintiffs' homes were contaminated — the tort-feasor is subject to liability as long as his misconduct is a cause of the decline in market value; it need not be the sole cause of plaintiffs' loss.
It would be to announce an essentially unprecedented but nevertheless somewhat trendy exception.
The Thomas Solvent defendants
It does not appear on the record by what means this news was disseminated, whether plaintiffs were told by governmental agencies not to drink well water, or whether plaintiffs were supplied with or obtained bottled water. Plaintiffs argue in this Court that "the neighborhood was told not to drink their water, and bottled water was supplied by government agencies."
During the course of discovery, it became apparent that the property of the twenty-two plaintiffs who are parties to this appeal had not been and never would be contaminated by any toxic substances migrating from defendants' facilities. A feature of the underground landscape known as a hydrogeological divide prevented ground water
The Thomas Solvent defendants, claiming that there was no genuine issue of material fact, moved for summary disposition with respect to all claims of the instant plaintiffs, whose properties are located over 2,000 feet south and east of the Thomas Solvent facilities.
Plaintiffs stipulated to dismissal of their claims against defendants except to the extent that plaintiffs claimed damages for reduction in the market value of their homes. Defendants' brief asserts that, by entering into the stipulation, plaintiffs have "abandoned any claims for loss of use and enjoyment of their property," including any right to rely on allegations of altered conduct in response to the publicized contamination.
The circuit court concluded that any reduction in value should be attributed to unfounded public perception of contamination, and not to the claimed conduct of defendants, and dismissed plaintiffs' remaining claims against the Thomas Solvent defendants.
The Court of Appeals reversed and remanded for trial, stating that "[p]laintiffs are not precluded
The majority acknowledges that "property depreciation is a traditional element of damages in a nuisance action." The majority asserts, however, that "an allegation of property depreciation alone" does not set forth "a cognizable claim in private nuisance of significant interference with the use and enjoyment of a person's property."
In stating that the "issue [is] whether plaintiffs may proceed with their nuisance in fact claims solely on the basis of property depreciation due to public concern about contaminants in the general
There is no basis in the record for assuming, without factual support, that the only change caused to plaintiffs' neighborhood by the contamination of property in the area is an attitudinal shift in the community or a statistical shift in the value of homes and other property in the neighborhood.
Were this case to be remanded for trial, it might appear — indeed, it seems far more probable that it would appear — that the character of the neighborhood has changed for the worse. If, as plaintiffs have alleged, the conduct of defendants contaminated soil and ground water in the neighborhood with toxic chemicals and industrial wastes, efforts to "mop up" the contamination might be of limited efficacy, resulting in an unusual number of abandoned, neglected, and otherwise depressed properties in the neighborhood, with inimical effect on the market value of all property in the vicinity.
An award of damages for a reduction in the value of uncontaminated land was affirmed in Exxon Corp v Yarema, 69 Md.App. 124; 516 A.2d 990 (1986). Exxon operated a service station with leaking underground gasoline storage tanks. Contamination reached property owned by some but
The plaintiffs, here as in Exxon, complain of "tortious interference."
The Maryland appellate court explained that its
The instant plaintiffs similarly allege that they were told not to drink their well water and were unable to sell their property after adverse information was disseminated through governmental agencies.
Plaintiffs do not allege that the sale of their property was prohibited outright. Were this case remanded for trial, however, plaintiffs might be able to show that they have been unable to sell their property at any but a significantly reduced,
The majority distinguishes Exxon on the ground that the instant case presents "no claim of contaminated well water or the preclusion of sale. This case comes to us singularly on the issue whether plaintiffs may proceed with their nuisance in fact claims solely on the basis of property depreciation due to public concern about contaminants in the general area."
The majority misapprehends plaintiffs' remaining claim for relief as a bare assertion that popular fears of contamination should subject defendants to liability for property depreciation. The complaint sought compensation for personal injury and property damage.
Plaintiffs' factual allegations are broader than their remaining claim for a specific element of damages. They have alleged a range of facts amounting to an interference with interests in the use and enjoyment of property beyond "mere" reduction in the market value of their homes.
Although plaintiffs have stipulated to relinquish the right to seek damages for interference with their use and enjoyment of property in forms distinct from depreciation, the disposition of this case should not depend on whether they so stipulated rather than continuing to insist on seeking to recover damages for personal injury as well as for a decline in market value. To rely on plaintiffs' decision not further to seek damages for personal injury, a narrow point without legal foundation until today's decision, reduces the jurisprudential significance of this case to a hypertechnicality, and encourages parties generally to give no quarter in litigation, lest the trial or an appellate court find against the stipulating party on a hypertechnicality.
According to the majority, "[t]his Court has held that property depreciation alone is insufficient to constitute a nuisance."
Plaintiffs here, in contrast, assert a damage claim for actual, not potential, diminution of value, arising out of defendants' past, allegedly unlawful activity.
In Warren Twp, the plaintiffs sought to prevent condemnation of a site for a proposed airport. In declining to enjoin condemnation to preclude potential damage to the plaintiffs' property, the Court said that the plaintiffs would have a cause of action for damages "if conditions they now claim are threatened should hereafter arise."
In Plassey, the Court reaffirmed the rule that equity "`will not interfere in advance of the creation of a nuisance where the injury is doubtful or contingent, and anticipated merely from the use to which the property is to be put.'"
Decisions denying injunctive relief in nuisance cases do not necessarily justify dismissal of an action for damages, because a judgment denying injunctive relief may turn on application of rules relating to equitable remedies.
The usual rule of equity applies to the instant plaintiffs' claim for property depreciation; before an injunction will issue,
This Court has recognized that refusal to enjoin a lawful business as a nuisance does not preclude a damage recovery for property depreciation, stating that "[a]s to such injury, if any, complainants have an adequate remedy at law." Ballentine v Webb, 84 Mich. 38, 45; 47 NW 485; 13 LRA 321 (1890) (emphasis added).
Decisions granting injunctive relief against an alleged prospective nuisance, however, generally support damage awards in factual settings in which the harm has already occurred, because an injunction will not issue absent evidence of a significant interference with the use and enjoyment of property.
The Second Restatement of Torts explains that "[a] potent cause of confusion" in private nuisance is the citation of cases in equity "as precedents in actions at law without regard to their differences." The Restatement observes that "[C]onsiderations enter into the determination of the right to an injunction that are inapplicable or have less weight in determining the right to damages":
The majority acknowledges these considerations, but disposes of them by stating that, "[i]n both law and equity, ... unfounded fears cannot constitute an allegation of a nuisance in fact with regard to these plaintiffs."
Warren Twp and similar cases
The business at issue in these cases, unlike defendants' conduct in the instant case, was not only "lawful," but was regarded as an essential public service. All the cases relied on by Warren Twp characterize aviation as crucial to modern
Protecting polluters of the water supply against the consequences of their conduct is not, in contrast with facilitating airport development and operation, an interest deserving of judicial indulgence.
Where the plaintiff's primary claim of loss is property depreciation, courts have traditionally been reluctant to enjoin the operation of a lawful business as a nuisance. This reluctance derived in large measure from recognition of the adequacy and appropriateness of the damage remedy.
The law of nuisance has recognized that property depreciation, in itself, may constitute an interference with an interest in the use and enjoyment
As the majority's historical survey suggests, the remedy of damages for property depreciation is at the core of the nuisance action;
Injuries to property value and to a plaintiff's peace of mind are aspects of the same general kind of harm in nuisance actions; both flow from the relationship of a plaintiff to the land.
After repeatedly adverting to the business of the instant defendants as "lawful,"
Garfield Twp held that operation of an otherwise lawfully conducted junkyard could not be enjoined as a nuisance per se merely because the owner had flouted a local ordinance requiring that such businesses be licensed.
Such holdings do not suggest that as long as the "[d]efendant's business is a lawful business,"
Rather, as set forth in the Second Restatement formulation, because recovery for unintentional nuisance may be predicated on a showing that the defendant's conduct is independently actionable in tort:
Plaintiffs in the instant case have alleged that defendants' discharge of toxic chemicals and hazardous waste, even if unintentional, was "otherwise actionable under the rules governing liability
This Court has also recognized not only that violations of "applicable law or restrictions" may be pertinent to a finding of nuisance, but that even in the absence of such a violation a lawful business may be enjoined as a nuisance if circumstances otherwise warrant.
The majority's other references to cases involving claimed property depreciation in the context of siting of business operations cast no light on the instant case.
Similarly unpersuasive is the majority's statement adverting to an unrelated passage of the dissent as follows:
The "conditions" on adjoining property enumerated
To the extent that the majority's illustration has any bearing at all on the instant case, it is contrary to the principle that an interference with use and enjoyment of property will not constitute actionable nuisance unless it affects
Although it would undoubtedly be considered "anachronistic" to enjoin the placement of a woman with leprosy in a residential district in 1992, the public understanding, or misunderstanding, of leprosy in 1898 justified such action.
If equally overpowering fears now grip the public with regard to toxic waste, radioactive contamination, or similar modern perils, this Court may not properly dismiss such fears out of hand.
The majority's analysis implicitly assumes that resolution of this case is governed by the doctrine that mere apprehension of injury, based on an unfounded perception of danger, is not actionable in tort. In general, this proposition is indisputable as applied to the wholly unreasonable fears of a plaintiff. However, even fears without factual foundation may permit of recovery in nuisance if the fears are of a kind to be expected from a normal member of the affected community.
Further, the instant case does not present a claim based on plaintiffs' own apprehension of injury or perception of danger. Plaintiffs assert, rather, that the normal fears of potential buyers, both factually founded and unfounded, precipitated a decline in the value of plaintiffs' property.
The majority declares:
Rockenbach v Apostle, 330 Mich. 338; 47 N.W.2d 636 (1951),
In Dillon v Moran, 237 Mich. 130, 131; 211 NW 67 (1926), this Court enjoined as a nuisance the proposed establishment of a funeral home in a residential district on the sole ground that "plaintiff would suffer material pecuniary loss" if defendant's plans were carried out. (Emphasis added.) The plaintiff's property was adjacent to the proposed site. The Court cited no interference with an interest in the use and enjoyment of property, and no inconvenience that might be suffered by the plaintiff, except "pecuniary loss."
Dillon makes clear that "diminution in property values alone" is not always "damnum absque injuria,"
It is odd to assert that although relief is available against a defendant conducting a lawful business and committing no independently actionable wrong, it is unavailable where plaintiffs' allegations, if proved, render defendants at least subject to liability to numerous property owners in plaintiffs' immediate neighborhood.
Further, if the proposed establishment of a lawful business may be enjoined as a nuisance in fact, a damage remedy should be available to compensate for pecuniary harm already suffered as the result of unlawful or tortious conduct.
This Court has on other occasions held that the prospect of residential property depreciation, even when based on the unfounded fears of the community constituting the market for such property, is
In Birchard v Lansing Bd of Health, 204 Mich. 284; 169 NW 901 (1918), this Court enjoined the establishment of a "pesthouse" (hospital for contagious diseases) that was to be operated by the city pursuant to its charter. The Court followed Barth v Christian Psychopathic Hosp Ass'n, 196 Mich. 642; 163 NW 62 (1917),
We again emphasize that the claimed decline in the value of the instant plaintiffs' homes appears to be attributable to factually founded as well as unfounded fear.
Courts in other jurisdictions addressing the
The Washington Supreme Court, focusing on emotional reaction as a factual reality of the case, concluded that the hospital would interfere with "the comfortable enjoyment of the property"
The majority of jurisdictions addressing the question holds that when property owners are awarded damages in compensation for diminution of property value attributable to easements for power lines, gas or oil pipe lines, or related structures, the elements and measure of compensation include potential purchasers' fear or apprehension of danger. Most of these authorities hold that because such fears in fact materially affect property values, they should be included in the calculus of damage.
The court in Texas Electric Service Co v Nelon, 546 S.W.2d 864, 868 (Tex Civ App, 1977), adopted a typical formulation addressing normal fear that depresses the value of the subject property:
Like Everett v Paschall, supra, condemnation cases illustrate that the relevant "truth" is not whether there is actual danger, but whether the
Plaintiffs have not alleged the existence of a condition that no reasonable person of ordinary sensibilities could find worrisome or offensive.
A particular use of neighboring land may be offensive to some persons and not to others. Accordingly, for both hypersensitive and insensitive property owners, "[r]ights and privileges as to the use and enjoyment of land are based on the general standards of normal persons in the community and not on the standards of the individuals who happen to be there at the time."
The instant plaintiffs, by virtue of superior knowledge and the lapse of time, might be inured to any fears manifesting themselves in property depreciation in their neighborhood. Nonetheless, just as a deaf plaintiff suffers a "genuine interference with the use and enjoyment of his land" when the use of neighboring property reduces the willingness of other persons to visit his property, plaintiffs here should be able to recover damages for a "genuine interference with the use and enjoyment of [their] land" if defendants' use of neighboring property reduces the willingness of potential purchasers to occupy property in the neighborhood, substantially and adversely affecting the value of plaintiffs' property.
The majority rejects plaintiffs' claim that the conduct of defendants, rather than negative publicity or the "unfounded fears of third parties,"
One might hypothesize a category of cases in which "negative publicity" only remotely connected with the defendant's conduct adversely affects the value of the plaintiff's property, but defendants have not established that the instant case belongs in such a category.
Manifesting greater concern about the diffusion of liability than the instant defendants are alleged to have shown for the diffusion of hazardous waste, the majority sounds an alarm:
The majority's hypothetical case, in which contamination
The majority concludes by animadverting upon a claim that recognition of the instant plaintiffs' cause of action might lead to "reordering of a polluter's resources for the benefit of persons who have suffered no cognizable harm at the expense of those claimants who have been subjected to a substantial and unreasonable interference in the
The majority's fears are unfounded — possibly the only truly unfounded fears in this case. We doubt that actions of the kind before us today would even ripple the surface of the sea of troubles that engulfed the instant defendants as a result of their handling of toxic waste.
CAVANAGH, C.J., concurred with LEVIN, J.
We here further respond to observations in the majority opinion concerning Smith v Western Wayne Co Conservation Ass'n, 380 Mich. 526, 543; 158 N.W.2d 463 (1968), and Gunther v E I DuPont de Nemours & Co, 157 F.Supp. 25 (ND W Va, 1957).
The majority cites Smith for the proposition that "a cause of action for nuisance may not be based on unfounded fears."
The Smith plaintiffs asserted that operation of a gun range in the neighborhood adversely affected the value of their property, supporting this claim with evidence of the noise of the gun range.
The primary focus of the opinion in Smith was not safety, but noise. The trial court reviewed testimonial and demonstrative evidence of the degree of disturbance caused by operation of the range, and found that the noise was not "`such as would shock a person of ordinary sensibilities or cause actual physical discomfort.'"
The instant plaintiffs do not seek an injunction, and assert no claim for any kind of relief arising out of their own "fears" (founded or not).
Gunther said by the majority to "exemplif[y]
The plaintiffs presented no evidence of property depreciation and did not request damages therefor. The court declined to enjoin the defendant's business on the basis of the plaintiffs' "unfounded" belief "that the test blasting had injured them"
The jury in Gunther found, in response to questions submitted by the court, that the testing operations had not caused physical damage to the
Thus, in the words of the majority, "not only ha[d] these plaintiffs not alleged significant interference with their use and enjoyment of property, they do not here posit any interference at all."
The court in Gunther held that characterization of noise as a nuisance "depends on its effect on a person of ordinary sensibilities, not the effect on a particular individual."
The court declined to enjoin the defendant's testing operations, an aspect of a lawful business carried on without negligence, because the plaintiffs had shown no cognizable tangible or intangible injury to their property or their persons.
In contrast, it is precisely the claim of the instant plaintiffs that normal members of the community in which they live were alarmed by
Plaintiffs also alleged that, from 1970 to 1981, the Thomas Solvent defendants were licensed by the Department of Natural Resources to haul liquid industrial waste, that the DNR had initiated administrative proceedings seeking revocation of Thomas Solvent's 1981 license and denial of its 1982 and 1983 license applications, and that the DNR had also denied Thomas Solvent's application for a license to transport hazardous waste under 1979 PA 64, MCL 299.501 et seq.; MSA 13.30(1) et seq. Federal and state investigations of ground water and soil in the vicinity allegedly disclosed high levels of contamination.
Alleging negligence, continuing nuisance and trespass, ultrahazardous activities, and that defendants should be held strictly liable, plaintiffs commenced this action, seeking compensation for personal injury and property damage, and injunctive relief to restore the contaminated soil and water to their original condition and to prevent further contamination.
A separate count of the complaint sought recovery for loss of property value due to the migration of hazardous chemicals "to the surrounding area, including the properties owned or occupied by Plaintiffs," allegedly causing such properties "to lose value, to become unsaleable, uninhabitable, and worthless with a loss of the normal use and enjoyment thereof."
Quoting 10 Am Jur, Cemeteries, § 16, p 498, McCaw held that, where there was no actual danger of ground water contamination, the operation of a cemetery would not be enjoined as a nuisance "merely because it is a constant reminder of death and has a depressing influence on the minds of persons who observe it, or because it tends to depreciate the value of property in the neighborhood, or is offensive to the aesthetic sense of an adjoining proprietor." (Emphasis added.)
The majority cites McCaw for the proposition that property depreciation caused by unfounded fears does not constitute a nuisance, ante, p 313, n 29. In addition to the analysis offered by the Maryland appellate court, McCaw is distinguishable from the instant case on other grounds. First, McCaw involved denial of injunctive relief (see subpart c). Second, it followed the almost universal rule against characterization of cemeteries as nuisances. See 14 Am Jur 2d, Cemeteries, § 12, pp 714-715. Finally, the case was decided under Kentucky law, which is peculiarly resistant to nuisance claims of this kind. Kentucky, unlike Michigan, is one of the few jurisdictions refusing to enjoin as a private nuisance the operation of a funeral home in a residential district. See LD Pearson & Son v Bonnie, 209 Ky. 307; 272 SW 375; 8 ALR4th 324, 335 (1925), holding that potential depreciation and "sentimental" aversion to mortuaries did not amount to a substantial and material interference with the use and enjoyment of neighboring property. Cf. anno: Funeral home as private nuisance, 8 ALR4th 324, discussed in n 64.
The court's construction of "harm to property" comports with the Restatement view of private nuisance as a "nontrespassory invasion of another's interest in the private use and enjoyment of land." 4 Restatement Torts, 2d, ch 40 (Nuisance), § 821D, p 100 (emphasis added). See comment b, p 101, and also ch 1 (Definitions), § 1, pp 2-4, which broadly defines "interest."
Plaintiffs argue that the stipulation striking other elements of damages "does not mean that the facts leading up to the tort can not be entered into evidence, and indeed, such facts would be presented to a jury to support the reasons for the property being devalued."
The majority asserts that plaintiffs' allegations regarding "contamination of municipal water ... are not properly before us since the plaintiffs failed to appeal from the trial court's order denying leave to amend their complaint" to reflect such claims. Ante, p 301, n 4. In their complaint, however, plaintiffs alleged facts tending to support the conclusion that defendants' conduct had led to contamination of municipal well water.
At ante, p 312, n 28, the majority also cites Henkel v Detroit, 49 Mich. 249; 13 NW 611 (1882), discussed in n 53.
The Court noted, however, that if a proposed use of neighboring land "would unquestionably result in a nuisance affecting the rights of individuals," a cause of action in private nuisance would accrue, potentially justifying an injunction. Id., p 530.
See part III.
See also Conway v Gampel, 235 Mich. 511, 514; 209 NW 562 (1926), similarly acknowledging the propriety of a damage remedy as an alternative to injunctive relief in a private nuisance action involving property depreciation; Rohan v Detroit Racing Ass'n, 314 Mich. 326, 360-361; 22 N.W.2d 433 (1946) (a court of equity will abate nuisance "`only in cases where an action at law would afford no adequate redress'") (quoting Adams v Kalamazoo Ice & Fuel Co, 245 Mich. 261; 222 NW 86 ); Turner v Hart, 71 Mich. 128, 139; 38 NW 890 (1888) ("It is not always a matter of course to grant relief in [private nuisance] cases, in a court of equity, when the law side of the court is open for legal redress").
The Court of Appeals in the instant case distinguished Smith v Western Wayne Co Conservation Ass'n, 380 Mich. 526, 543; 158 N.W.2d 463 (1968) (see Appendix, part A), on the ground that Smith involved an injunction. The majority, citing Exxon, p 151, n 5, rejects this distinction as a "non sequitur," apparently concluding that the remedy sought is not material to the question "whether an action in damage for nuisance in fact can be predicated upon unfounded fears of ground water contamination." Ante, p 312, n 27 (emphasis added). While the proposition expressed in n 5 of Exxon is correct as applied to Exxon itself, it is overbroad if applied to demolish the distinction between Smith and the instant case.
In sum, "denial of relief by way of injunction is not always a precedent for denial of relief by way of damages. Consequently, liability for damages should be treated independently...." Id.
The Restatement notes that in damage actions,
Accordingly, damages may also be available if the defendant's use of property is negligent or otherwise unlawful, as plaintiffs here allege.
Gunther v E I DuPont de Nemours & Co, 157 F.Supp. 25 (ND W Va, 1957) (see Appendix, part B), cited by the majority at ante, pp 310-311, illustrates this principle. Even if the plaintiffs in that case had offered evidence "sufficient in law to show that a nuisance does exist," the court concluded, "it does not necessarily follow that an injunction order, abating the nuisance, must be issued." 157 F.Supp. 33. Stressing the economic importance to the defendant, and to the entire community, of continued testing, id., pp 27, 34, the court explained that the "comparative hardship" to the defendant outweighed any inconvenience the Gunthers could adduce. Id., p 33.
Plaintiffs' claim for relief cannot be so characterized. Although the majority repeatedly intones "damnum absque injuria" as if it were the irrefragable conclusion of a legal syllogism, it appears as a free-floating conclusion of law, expressing assumption of the very issue to be decided. Thus, neither this "rule" nor the authorities cited by the majority justify denial of relief.
Judicial opinions that have characterized property depreciation as damnum absque injuria have generally predicated the holding on the absence of nuisance. See, e.g., Grand Rapids & Indiana R Co v Heisel, 38 Mich. 62; 31 Am Rep 306 (1878), cited by the majority ante, p 309, n 22 (because the plaintiff lacked proprietary rights in the street, the mere placing of railroad tracks, an activity in furtherance of a lawful business and not a nuisance in itself, was damnum absque injuria with regard to her insofar as it affected only the value of her property; noise or other legal grievances constituted actionable nuisance to the extent they resulted from improper conduct of the railroad, although property depreciation was an inappropriate measure of damages, because the harm suffered was not permanent); Winget v Winn-Dixie Stores, Inc, 242 S.C. 152, 159-162; 130 S.E.2d 363 (1963), cited by the majority ante, p 311, n 25 (an action for damages arising out of the operation of a supermarket on the edge of the plaintiffs' residential neighborhood; because the establishment was "a lawful one" and was sited in an appropriately zoned district, location alone could not make it a nuisance, but property depreciation arising out of operation of the business was compensable where the interferences with the plaintiffs' rights were "not normal or necessary incidents of" operation); Bader v Iowa Metropolitan Sewer Co, 178 N.W.2d 305, 307 (Iowa, 1970), cited by the majority ante, p 310, n 24, where the court refused to enjoin a sewage treatment lagoon and stated that a "lawful use" of property that does not create a public or private nuisance (the "[p]laintiff's evidence of a nuisance resulting from odors emitting from the lagoons was not satisfactory") "cannot be enjoined because of, or damages recovered for, the diminution in value of neighboring properties resulting therefrom."
In making this assertion, however, the court in Bader invoked Gunther, and cited other authorities rendering similar holdings relating to enjoining a lawful business. In modern nuisance actions, the phrase damnum absque injuria, which, in the majority's words, means "a loss without an injury in the legal sense," ante, p 314, is almost invariably invoked in cases involving requests for injunctive relief.
According to 4 Restatement Torts, 2d, § 821D, comment b, p 101, the "[i]nterest in use and enjoyment" encompasses "freedom from annoyance and discomfort," which is distinct not only from "freedom from detrimental change in the physical condition of the land itself," but also from the personalty "interest in freedom from emotional distress." Freedom from discomfort and annoyance "is essentially an interest in the usability of land and, although it involves an element of personal tastes and sensibilities, it receives much greater legal protection." (Emphasis added).
The instant plaintiffs have alleged that defendants' use of their facilities violated applicable laws regulating the storage and shipment of hazardous waste. Such violations of law are not comparable with the violations of licensing and zoning ordinances discussed in Garfield Twp.
In Rockenbach v Apostle, 330 Mich. 338, 344; 47 N.W.2d 636 (1951), the Court held that an ordinance allowing the maintenance of a funeral home in a district zoned for residential or commercial purposes "is permissive only, and not controlling as to whether [the] establishment would constitute a nuisance which might be enjoined by an equity court.... A nuisance will not be upheld solely on the ground that it has been permitted by municipal ordinance." (Citations omitted.)
In Henkel, this Court denied both injunctive relief and damages for property depreciation when customers' access to the plaintiff's pork packing business was impeded by the expansion of a public market. The plaintiff had "come to the nuisance" by establishing his business on the site in the knowledge of its use for the market. The Court enumerated the public benefits derived from operation of the market, which was situated and conducted pursuant to validly enacted city regulations, and concluded:
Ground water contamination is not "market regulation." The instant plaintiffs should not be deprived of a damage remedy for property depreciation triggered by defendant's allegedly unauthorized acts on the theory that all property owners are "supposed to calculate upon the probability of [their] interests being affected" by unlawful discharge of toxic chemicals and hazardous waste on nearby property. Id.
The old English decisions discussed ante, p 309, n 21, such as the Gloucester Grammar School Case, YB 11 Hy IV, Mich, pl 21 (1409), found no injuria and denied recovery for lost income when neighboring properties were given over to the establishment of businesses competing directly with those of the plaintiffs. These cases establish nothing more than that the operation of a business on neighboring property cannot be held to be a nuisance simply because it competes with the business on the plaintiff's property.
See also McMorran v Fitzgerald, 106 Mich. 649, 652; 64 NW 569 (1895), cited by the majority at 310, in which this Court enjoined operation of a boat repair business in a residential neighborhood. The Court observed that the defendants "could look at the matter only from the standpoint of business, to which all other interests should yield, — a sentiment which is not uncommon, but one which the law does not sanction." Id., p 653 (emphasis added).
These cases concerned actions for injunctive relief, and demonstrate that evidence of property depreciation may support a nuisance action even in equity.
Courts addressing anticipated psychic effects of nearby businesses have not always sharply distinguished the apprehensions of the plaintiffs from the apprehensions of other persons forming a potential market for residential property in the neighborhood. The focus on market value, however, manifests judicial recognition that property depreciation, if proved, supports a cause of action in nuisance on these facts.
The majority asserts that such cases "do not establish that property depreciation on the basis of unfounded fear of third parties makes out a compensable allegation of nuisance in fact. Indeed, Kundinger ... itself points to the need to show invasion of a legally cognizable interest," such as emotional distress. Ante, p 315, n 32.
The preservation of property value is itself a "legally cognizable interest" protected against unreasonable interference by the law of nuisance. The instant plaintiffs need not have "allege[d] an increased risk of illness, threat to safety, or lack of a habitable dwelling caused by contaminants released by the defendants," ante, p 318, to recover in nuisance for diminution of property value.
See Brink v Shepard, 215 Mich. 390, 392; 184 NW 404 (1921), addressing a tuberculosis sanitarium in a residential district:
The Court enjoined maintenance of the facility partly on the basis of the plaintiffs' financial loss: "[P]roperty values in this locality are at least 25 per cent. lower with the sanatorium there than they would be without it." Id., p 393.
See also Falkner v Brookfield, 368 Mich. 17, 22-25; 117 N.W.2d 125 (1962), reaffirming the rule of Saier and Rockenbach. In Falkner, this Court reversed dismissal of the claim that operation of an automobile junkyard constituted an enjoinable nuisance. The holding was based in part upon plaintiffs' claim that proximity to the operation would be depressing, elicit fear in the minds of local residents, and reduce property values in the neighborhood.
Plaintiffs may recover damages for property depreciation only insofar as they are able to prove at trial that the damage to their property is permanent, as would be demonstrated by sale or appraisal. Transient or temporary diminution of value, by contrast, is compensable by reference to the disparity in equivalent rental value for the period during which the property was deleteriously affected by defendants' conduct. 66 CJS, Nuisances, § 175, pp 978-979.
Plaintiffs allege that defendants negligently or intentionally permitted toxic chemicals and industrial waste to contaminate ground water that supplies private residences. Such activity is inappropriate to any neighborhood, whether or not exclusively residential. Further, although the "character of the locality" is always relevant to a finding of nuisance, see 4 Restatement Torts, 2d, § 827, comment g, pp 127-128, it is particularly important in actions for injunction.
Similarly, the portion of the Restatement addressing liability in nuisance states, in a comment on causation:
The court similarly honored common but scientifically dubious fears in a nuisance action for injunction, Ferry v Seattle (On Rehearing), 116 Wn. 648; 203 P 40 (1922) (reservoir eliciting fear of disaster and loss of life), and a nuisance action for damages, including property depreciation, Champa v Washington Compressed Gas Co, 146 Wn. 190; 262 P 228 (1927) (gas plant eliciting fear of personal injury and property damage).
See also Baltimore v Fairfield Improvement Co, n 56 supra, enjoining the placement of a woman with leprosy in a residential district. The City of Baltimore was held to be committing a public nuisance with respect to adjoining properties. Irrespective of the actual risk of contagion, the public was terrified of lepers, with resulting injury to neighbors' property values and sense of well-being. The court said:
A number of jurisdictions require that fears, to be compensable, must be reasonable. Reasonableness is variously defined; it may refer to fears experienced by ordinary persons whether or not grounded in fact, or, more stringently, to fears "grounded in scientific observation." All jurisdictions holding that fears of prospective purchasers are compensable require the property owner to demonstrate that such fears in fact adversely affected property value. Id.
The majority states that "courts have typically rejected liability where a litigant failed to establish proximity between the asserted interference and the litigant's property. See, e.g., Renaud v Martin Marietta Corp, 749 F.Supp. 1545; 32 ERC 1721 (D Colo, 1990)." Id., p 308, n 17 (emphasis added).
Renaud turned on the question whether the plaintiffs adequately demonstrated a chain of causation involving the health effects of contaminants originating on property of the defendants. The court in Renaud granted summary judgment in favor of the defendants because the plaintiffs had failed to make out a "prima facie case of causation." Renaud, 749 F.Supp. 1555. The plaintiffs, a group of community members, alleged that they had been physically injured by contamination present in a water treatment plant located downhill and downstream from a Martin Marietta facility generating large quantities of toxic waste. The court held that, having failed to refute the defendants' epidemiological evidence or to present appropriate epidemiological findings of their own, the plaintiffs had not sustained their burden of demonstrating exposure to the contaminants at levels sufficient to cause the claimed injuries.
The instant case presents no dispute whether contamination has migrated from defendants' to plaintiffs' property or has adversely affected plaintiffs' health. Rather, plaintiffs seek an opportunity to prove that the value of their property has been diminished as a result of the contamination of neighboring land. Plaintiffs (whose property was not contaminated) and their neighbors (whose property was contaminated) may have suffered distinct and independent injuries to their respective property rights by the same conduct of defendants.
Plaintiffs amended their complaint in 1985 to add a fraudulent conveyance claim, alleging that the Thomas Solvent corporate defendants had been reorganized, and their assets shifted, on the eve of the April 1984 filing of a Chapter 11 petition. See In re Thomas Solvent Co, unpublished ruling of the United States Bankruptcy Court (WD, Mich), decided April 6, 1984 (Docket No. 84-00843). Under bankruptcy law, 11 USC 101 et seq., and the law of fraudulent conveyance, MCL 566.11 et seq.; MSA 26.881 et seq., plaintiffs were "creditors" of the Thomas Solvent corporate defendants by virtue of plaintiffs' claims against such defendants. Plaintiffs alleged that the reorganization and transfer of assets unlawfully hindered plaintiffs' ability to recover damages from the Thomas Solvent corporate defendants.
For rental properties such as the trailer court, market value is directly dependent on rent and occupancy levels.
The trial court in Smith also said:
This assertion of the trial court is independent of the assertion in the paragraph previously quoted; because the two rulings appear in a seriatim discussion of the plaintiffs' arguments for an injunction, no logical or doctrinal connection between property values and the alleged nuisance created by the plaintiffs' fear was implied.
Warren Twp constitutes the sole authority for this portion of Smith. The holding goes no further than Warren Twp itself: Prospective operation of a lawful business, not shown to be a nuisance, is not transformed into an enjoinable nuisance merely by evidence that neighboring property values may decline, particularly where, as in Smith, the evidence of such decline is speculative and equivocal.
Plaintiffs' subjective belief that they had been harmed by the defendant's activity was "unfounded" because it conflicted not simply with scientific inquiry, but with the standard for actionable nuisance: The court found that, unlike the plaintiffs, ordinary members of the affected community did not find the sound of the testing to interfere with their enjoyment of property. 157 F.Supp. 32.
The jury in Gunther had found that the defendant was not using the testing site unreasonably; the court observed that "[t]he testing operations, in themselves, are not unlawful in any particular...." 157 F.Supp. 33. Although the jury was not permitted to address the explicit question whose answer would have been weighed against this determination, the evidence showed no "interference with ... sleep, social life or other usual home activities" except to the extent experienced by a plaintiff whose hypersensitivity was apparently not disputed. Id.
It was in this context that the court reasoned that the plaintiff's "enjoyment of the property [had not] been lessened, in the sense that a court should or will grant injunctive relief," Gunther, 157 F.Supp. 33 (emphasis added), except insofar as "they believed that the test blasting had injured them. If such belief is unfounded, what is left other than depreciation in value? Mere diminution of the value of property because of the use to which adjoining or nearby premises is devoted, if unaccompanied with other ill results, is damnum absque injuria ...." Id.
O'Donnell, a negligence action, addressed speculative future harm only. The result turned on application of damage rules peculiar to subsidence cases. The plaintiff alleged no interference with the use and enjoyment of property, but claimed as an element of damages that his property would be devalued if prospective purchasers were concerned about future subsidence due to the withdrawal of lateral support. The Court disclaimed any ruling "for the case in which it clearly appears beyond any question that the damages, although in futuro, are bound to occur." Id., 273 Mich. 40. The Court applied an English rule not generally adopted by United States jurisdictions, governing damages in subsidence actions, where the focus is on ascertainable completed physical harm to the property: "[P]rospective damages may not be recovered in such an action and... a new action must be brought each time a new damage occurs...." Id., pp 41-42. See, generally, 4 Restatement Torts, 2d, ch 39 (Interests in the support of land), pp 62-82; McCormick, Damages, § 127, pp 500-515.
In Miller, the plaintiffs offered to demonstrate that pollution would reach their property in the future (cf. O'Donnell), but apparently did not offer evidence of current property depreciation.
McCaw is discussed in n 16.