Opinion
BOYLE, Justice.
We granted leave to appeal in this case 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. We hold that such effects do not constitute a taking of a recognized property interest where the plaintiff fails to allege that the damages incurred are unique, special, or peculiar, or in some way different in kind or character from the effects incurred by all property owners who reside adjacent to freeways or other busy highways.
We reverse the decision of the Court of Appeals and reinstate the decision of the trial court granting summary disposition.
I
Plaintiffs Ronald and Peggy Spiek purchased residential property on Eleven Mile Road in the City of Warren in 1961, and have lived there ever since. Their property now abuts the service drive to Interstate 696. The service drive opened to traffic in 1976, and the section of the interstate running parallel to that service drive opened in 1979. The full extent of 1-696, as we now know it, running continuously from Interstate 275 near Farmington Hills and Novi to Interstate 94 near St. Clair Shores, was completed and opened in 1989.
On April 20, 1990, plaintiffs filed a complaint against defendant Department of Transportation for inverse condemnation
Defendant moved for summary disposition in the Court of Claims on April 23, 1991, pursuant to MCR 2.116(C)(7), (8), or (10), arguing that plaintiffs' claim of damages was barred by the three-year period of limitation applicable to actions in the Court of Claims,
On February 26, 1992, defendant filed a second motion for summary disposition pursuant to MCR 2.116(C)(8) or (10). Consistent with its previous motion, defendant argued as follows:
In their response to defendant's motion, plaintiffs answered paragraph 5 as follows: "Plaintiffs deny that Defendant's actions do not constitute a taking, and further allege that to the extent that similarly-situated property-owners have been affected in a like manner, then they, too, are entitled to constitutionally-required just compensation."
The trial court heard oral arguments and granted the defendant's motion "as a matter of public policy." During oral arguments, the trial judge asked plaintiffs' counsel where or how to "draw the line" in this type of case.
The Court of Appeals reversed:
In reaching this conclusion, the Court of Appeals reasoned as follows:
We initially disposed of this case by a peremptory order of reversal on the basis of MCR 2.116(C)(10). 453 Mich. 857, 552 N.W.2d 180 (1996). On plaintiffs' motion for reconsideration, we granted leave to appeal. 454 Mich. 903, 564 N.W.2d 44 (1997). We conclude that the Court of Appeals erred in its interpretation of the governing legal principles.
II
A
Appellate review of a motion for summary disposition is de novo. MCR 2.116(C)(8) tests the legal sufficiency of the claim on the pleadings alone to determine whether the plaintiff has stated a claim on which relief may be granted. The motion must be granted if no factual development could justify the plaintiffs' claim for relief. MCR 2.116(C)(10) tests the factual support of a plaintiff's claim. The court considers the affidavits, pleadings, depositions, admissions, and other documentary evidence submitted or filed in the action to determine whether a genuine issue of any material fact exists to warrant a trial. Singerman v. Municipal Service Bureau, Inc., 455 Mich. 135, 138, 565 N.W.2d 383 (1997). See also Skinner v. Square D Co., 445 Mich. 153, 160-161, 516 N.W.2d 475 (1994).
The defendant did not separately argue the standards under MCR 2.116(C)(8) and MCR 2.116(C)(10), and the trial court did not specifically state whether it was granting defendant's motion for summary disposition on the basis of subrule (C)(8) or (10). However, we conclude that review under subrule (C)(8) is appropriate because the factual record in this case is limited to the record made before the trial court.
We conclude that plaintiffs' complaint fails to state a claim on which the relief sought may be granted. Taking all plaintiffs' factual allegations as true, the complaint fails to allege an essential element of their cause of action: that the damage to their property is of a unique or peculiar character different from the effects experienced by all other similarly situated property owners. In other words, plaintiffs fail to allege an injury unlike that experienced by all who live in proximity to a highway. Thus, their case is barred by the well-accepted rule that property owners are not entitled to compensation for highway noise that is necessarily incident to proximity to a highway.
B
In deciding whether plaintiffs' complaint survived defendant's motion for summary disposition, the Court of Appeals reasoned as follows:
"`It has always been a basic principle of the law that "If the work is of great public benefit, the public can afford to pay for it." Eaton v. Railroad Co., [51 N.H. 504, 518, 12 Am.Rep. 147 (1872) ].' [Thom, supra at 623, 138 N.W.2d 322.]" [212 Mich.App. at 566-568, 538 N.W.2d 74.]
The Court of Appeals references the relevant precedents. However, we respectfully
The Court of Appeals concluded that, under Richards, plaintiffs must be given the opportunity to demonstrate that their property was "detrimentally affected to a greater degree than that of the citizenry at large in conjunction with the normal use of a highway." 212 Mich.App. at 568, 538 N.W.2d 74 (emphasis added).
In Richards, the plaintiff sued for diminution in the value of his property caused by a railroad being located adjacent to his property. However, unlike others whose property the railroad affected, the plaintiff's property was situated so that when the train went through a tunnel, the "smoke ... cinders and gasses" from the train were expelled onto the plaintiff's property and into his home by "a fanning system installed in the tunnel...." Id. at 549, 34 S.Ct. at 655. The plaintiff also alleged that his house had been "damaged by vibrations caused by the movement of trains on the track or in the tunnel, resulting in cracking the walls ..., breaking glass ..., and disturbing the peace and slumber of the occupants." Id. at 550, 34 S.Ct. at 655. The United States Supreme Court reversed the dismissal of the plaintiff's claim because the effects of the railroad passing through the tunnel near his property were unique and peculiar to him. The Court explained that recovery was available only
The plaintiff was not allowed to seek recovery for the separate allegation of vibration causing cracks, etc., because this type of harm is that which all persons living near the railroad would suffer in common. Thus, the Court of Appeals conclusion that plaintiffs could recover if affected to a different degree than the citizenry at large fails to properly consider the more specific inquiry required by Richards: the effect on those property owners whose lands lie within the range of inconveniences necessarily incident to the operation of a railroad. Indeed, the very passage from Richards on which the Court of Appeals purported to rely reveals that the plaintiffs here have failed to meet the requirements of that case:
While allowing the plaintiff to seek recovery for the peculiar effects of the tunnel exhaust system, the Court denied the plaintiff the right to seek recovery for vibration, because "those consequential damages that are necessarily incident to proximity to the railroad" are not compensable. Id. The Court of Appeals incorrectly concluded that Richards supported the conclusion that the plaintiffs could recover if they could show they were harmed to a degree greater than the citizenry at large. The plaintiff in Richards prevailed, not merely on the basis of a difference in degree from the inconvenience experienced by the public at large, but because the harm he suffered was different in kind or character from that experienced by those similarly situated.
Causby is also distinguishable from the case before us. Our plaintiffs have not suffered a physical invasion. Causby is a singular example tailored to the unique requirements of modern air travel and its effects on land ownership rights. Whereas a taking akin to a physical intrusion was compensable in Causby, the plaintiffs here experienced the type of effects referenced by the Supreme Court in Richards as part of the incidental inconvenience of living in proximity to the road.
Further, the Court's analysis in Causby was wholly consistent with its analysis in Richards. In Causby, the Court reasoned:
Thus, only the plaintiff uniquely affected by the physical invasion of frequent low-flying aircraft will recover for a taking, while those suffering merely the normal inconveniences of modern air travel over their lands at higher altitudes will not recover. Just as in Richards, where the fanning system on the tunnel uniquely harmed the plaintiff, in Causby the aircraft were uniquely harmful to those over whose property the aircraft consistently flew at low altitude, thereby amounting to a physical invasion. Again, the analysis turned on the fact that the plaintiff suffered harm that differed in kind, as opposed to degree, from the harm suffered by others similarly situated or the public at large. Were the inquiry simply a matter of degree, the conclusion that a physical invasion had occurred would have been unnecessary. However, recovery was available only after the Court concluded that the plaintiff, unlike others living under the flight path at higher altitudes, suffered a unique physical invasion of his property. It is precisely this factor, which the Supreme Court and this Court have identified as critical to the analysis,
C
Courts commonly refer to the persistent passing of trains on a railroad, or planes in the air, or vehicles on the road as "legalized nuisances." See, e.g., Richards, supra, at 552-554, 34 S.Ct. at 656-657. As explained above, if such a legalized nuisance affects all in its vicinity in common, damages generally are not recoverable under just-compensation theory. Courts treat such common harms as incidental effects not amounting to an appropriation. Cf. Peterman v. Dep't of Natural Resources, 446 Mich. 177, 190, 521 N.W.2d 499 (1994)(acknowledging recovery where partial destruction or diminution in value "directly and not merely incidentally affects" the property). Where, however, 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. This immunity against recovery for the effects of a legalized nuisance exists under the rubric of the common-law doctrine of damnum absque injuria, which underlies the reasoning offered in the cases discussed above.
Black's Law Dictionary (6th ed) p 393, defines damnum absque injuria as follows:
Several Michigan cases have discussed the concept of damnum absque injuria in the context of taking jurisprudence as applied to public highways. Over one-hundred years ago, in Buhl v. Fort Street Union Depot Co., 98 Mich. 596, 57 N.W. 829 (1894), this Court recognized the distinction between special or peculiar injuries and injuries suffered in common with the general public. In Buhl, the defendant obtained property from the City of Detroit for the purpose of maintaining a depot, which required the closing of Fourth Street between Congress and Fort Streets in downtown Detroit. Id. at 597, 57 N.W. 829. The plaintiff sued because his property was made "less accessible," and alleged, inter alia, a taking. Id. The Court explained:
"There is no doubt but a property-owner has an easement in a street upon which his property abuts which is special to him and should be protected, but here the plaintiffs own no property fronting or abutting on the part of the street which was vacated. Their property is surrounded by streets not touched or affected by the vacating ordinance. They will be obliged to go a little further to reach Twelfth street, but that is an inconvenience different in degree only from that suffered by all other persons, and it furnishes no ground whatever for injunctive relief. Nor are the
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 land owner 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,
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
We are persuaded that the Court of Appeals erred in concluding that plaintiffs could recover if affected to a different degree than the public at large. Summary disposition in favor of the defendant in the Court of Claims was appropriate. Plaintiffs were required to overcome the doctrine of damnum absque injuria by alleging harm of a rent character different from that suffered by all living in similar proximity to a highway.
Plaintiffs' complaint does not allege harm to plaintiffs' property that differs in kind from the harm suffered by all living in proximity to a public highway in Michigan. Rather, 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. Moreover, plaintiffs did not seek leave to amend their complaint,
III
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.
MALLETT, C.J., and BRICKLEY, MICHAEL F. CAVANAGH, WEAVER, MARILYN J. KELLY, and TAYLOR, JJ., concurred with BOYLE, J.
FootNotes
However, more recently we stated:
Comment
User Comments