S D WARREN CO V HYDAKER-WHEATLAKE CO
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STATE OF MICHIGAN
COURT OF APPEALS
S. D. WARREN COMPANY,
UNPUBLISHED
February 6, 2001
Plaintiff-Appellee,
v
No. 216208
Muskegon Circuit Court
LC No. 96-334247-NZ
HYDAKER-WHEATLAKE COMPANY,
Defendant/Third-Party PlaintiffAppellee,
and
CONSUMERS POWER COMPANY,
Defendant/Third-Party PlaintiffAppellant,
and
KELLY SERVICES, INC.,
Third-Party Defendant-Appellee,
and
STATE OF MICHIGAN, DEPARTMENT OF
NATURAL RESOURCES, and CITY OF
MUSKEGON,
Third-Party Defendants.
S. D. WARREN COMPANY,
Plaintiff-Appellee,
-1-
v
No. 216271
Muskegon Circuit Court
LC No. 96-334247-NZ
HYDAKER-WHEATLAKE COMPANY,
Defendant/Third-Party PlaintiffAppellant,
and
CONSUMERS POWER COMPANY,
Defendant/Third-Party PlaintiffAppellee,
and
KELLY SERVICES, INC.,
Third-Party Defendant-Appellee,
and
STATE OF MICHIGAN, DEPARTMENT OF
NATURAL RESOURCES, and CITY OF
MUSKEGON,
Third-Party Defendants.
Before: Saad, P.J., and Jansen and Talbot, JJ.
JANSEN, J. (concurring in part and dissenting in part).
I agree in large part with the majority’s opinion, but respectfully disagree with part III, D.
I accept that the issue of whether there was actual or constructive knowledge of the underground
sewer on the part of Consumers Power Company and Hydaker-Wheatlake Company is a question
of fact that must be resolved by a fact finder. That being said, I would not hold as a matter of
law that contractors employed to do work on land not in a public street or right of way are not
required to search for easements where they have no interest in the title to the land and where
there is nothing in the nature of the land to cause the contractor to make the inquiry. Rather, I
believe that, the issue of actual or constructive knowledge being a question of fact, the question
of whether the recorded easement gave notice to Consumers Power and Hydaker-Wheatlake of
the underground sewer is simply one piece of evidence that should be considered by the jury in
making its ultimate determination whether Consumers Power and Hydaker-Wheatlake had actual
-2-
or constructive knowledge in this case.
important evidence as a matter of law.
Thus, I would not foreclose consideration of this
In all other respects, I agree with the majority’s opinion.
/s/ Kathleen Jansen
-3-
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