MUSKEGON CONSERVATION CLUB V CITY OF NORTH MUSKEGON
Annotate this Case
Download PDF
STATE OF MICHIGAN
COURT OF APPEALS
MUSKEGON CONSERVATION CLUB,
UNPUBLISHED
November 1, 2007
Plaintiff-Appellee,
v
No. 270643
Muskegon Circuit Court
LC No. 03-042755-ND
CITY OF NORTH MUSKEGON,
Defendant-Appellant.
Before: Hoekstra, P.J., and Sawyer and Murray, JJ.
PER CURIAM.
In this inverse condemnation action, defendant appeals as of right a judgment in favor of
plaintiff entered by the trial court following a jury trial. Because we conclude that plaintiff’s
proofs failed to establish a de facto taking, we vacate the judgment entered by the trial court and
remand this matter for entry of an order dismissing the action.
I. Basic Facts and Procedural History
The evidence produced at trial showed that in 1951 plaintiff granted defendant an
easement across its property to install a storm sewer drain. This drain was extended at the
request of plaintiff in 1965 because plaintiff was constructing a marina basin that altered the
shoreline in the area of the easement. Because of a drop in elevation and the necessity of
negotiating the extended drain line over existing utility pipes and under a railroad track,
defendant installed a concrete sump at the terminus of the existing line to collect water during
heavy rains. The sump was designed with a grated opening at its top to allow for the discharge
of storm water into the surrounding area if it filled beyond its capacity. Plaintiff gave its
approval to install the sump “in accordance with the plans and specifications prepared by”
defendant’s engineer by way of a written agreement executed by the parties in July 1965.1
1
This agreement stated in relevant part:
Whereas the [Muskegon Conservation Club] now desires that the [City of North
Muskegon] extend said storm sewer drain across said lands from its present point
of termination as shown by a map prepared Alfred E. Hansen City Engineer, to
(continued…)
-1-
Ten years later in 1975, plaintiff installed a wooden seawall in which a hole
accommodating the storm sewer discharge pipe was cut. Over time the wooden sea wall
deteriorated and was replaced in a piecemeal fashion throughout the mid-1980s and early 1990s,
with a sheet metal seawall that was placed adjacent to the original wooden seawall. A hole was
again cut in the sheet metal wall for the storm water drainage pipe.
According to plaintiff the sump performed without incident until sometime in 2001, when
it began to periodically overflow excessive amounts of water. As designed, the excess storm
water drained across plaintiff’s property. At trial, plaintiff maintained that this excess storm
water drainage eroded its property along the shoreline and undermined its sheet metal seawall.
Plaintiff claimed damages for the attempted repairs to the sheet metal seawall and to permanently
replace it with one that would withstand the water overflowing from the sump, which it asserted
constituted a de facto taking of its property by defendant. The jury apparently agreed and
rendered a verdict in plaintiff’s favor. This appeal ensued.
II. Analysis
On appeal, we find dispositive defendant’s claim that its motion for a directed verdict
was improperly denied by the trial court. This Court reviews de novo a trial court’s decision on
a motion for a directed verdict, considering the evidence in the light most favorable to the
nonmoving party. Zsigo v Hurley Med Ctr, 475 Mich 215, 220-221; 716 NW2d 220 (2006). A
directed verdict is appropriate when no material factual questions exist on which reasonable
minds could differ. Merkur Steel Supply v Detroit, 261 Mich App 116, 123; 680 NW2d 485
(2004).
“An inverse or reverse condemnation suit is one instituted by a landowner whose
property has been taken for public use ‘without the commencement of condemnation
proceedings.’” Electro-Tech, Inc v H F Campbell Co, 433 Mich 57, 88-89; 445 NW2d 61
(1989), quoting Hart v Detroit, 416 Mich 488, 494; 331 NW2d 438 (1982). There is no exact
formula for establishing a de facto taking. Dorman v Clinton Twp, 269 Mich App 638, 645; 714
NW2d 350 (2006). It is nonetheless universally accepted that a plaintiff alleging inverse
condemnation must establish, among other things, “that the government abused its legitimate
powers in affirmative actions directly aimed at the plaintiff's property.” Hinojosa v Dep’t of
Natural Resources, 263 Mich App 537, 548; 688 NW2d 550 (2004) (internal quotation marks
omitted).
In this case, plaintiff asserted and the trial court agreed that the relevant governmental
action establishing this requirement for a de facto taking was the sump’s discharge of water
across plaintiff’s property. The discharge of water from the sump is not, however, an
“affirmative” action by defendant. Rather, it is merely the passive result of the design and
installation of the storm sewer extension requested by plaintiff. Thus, we agree with defendant
that the governmental action relevant here is defendant’s extension of the storm sewer line in
(…continued)
the channel dreged [sic] by [Muskegon Conservation Club] across said lands as
shown on said map, in accordance with the plans and specifications prepared by
said engineer.
-2-
1965. With regard to this affirmative act, however, the undisputed evidence shows that the
extension was constructed at the request of plaintiff and with its tacit, if not express, approval of
the design proposed by defendant’s engineer. Further, there is no evidence or claim that the
sump installed as part of that project was defectively constructed or negligently maintained, or
that the system did not operate in accordance with its approved design. In light of these facts,
and considering plaintiff’s acknowledgement that the sump was in place for nearly forty years
without incident, it cannot be reasonably concluded that defendant’s placement of that structure
on defendant’s property was an “abuse” of its legitimate powers. A directed verdict of plaintiff’s
claim for inverse condemnation was, therefore, required. Merkur Steel Supply, supra.
Consequently, we vacate the judgment entered by the trial court and remand this matter
for entry of an order dismissing this action.2 We do not retain jurisdiction.
/s/ Joel P. Hoekstra
/s/ David H. Sawyer
/s/ Christopher M. Murray
2
Given our resolution of this matter, it is unnecessary for us to address the remaining issues
raised on appeal.
-3-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
