LAWRENCE TERLECKI V RANDY STEWARTAnnotate this Case
STATE OF MICHIGAN
COURT OF APPEALS
LAWRENCE TERLECKI and MARGARET
April 22, 2008
Cheboygan Circuit Court
LC No. 05-007498-NZ
RANDY STEWART and GREAT LAKES
MARINE CONSTRUCTION, INC.,
Advance Sheets Version
SILVER LAKE PROPERTY ASSOCIATION
OF INDIAN RIVER, MARK W. STEPHENS,
ROBERT NIKOLAS, and MARY DOE,
Before: Markey, P.J., and Meter and Murray, JJ.
Defendants appeal by leave granted the trial court's denial of their motion for summary
disposition of plaintiffs' claims of negligence, negligence per se, nuisance, trespass, and
conspiracy.1 The essence of plaintiffs' complaint is that defendants' actions have caused Silver
Lake in Cheboygan County to rise, flooding plaintiffs' low-lying forested property. Defendants
contend that plaintiffs' claims are time-barred because the alleged acts that resulted in the
flooding occurred more than three years before plaintiffs filed this lawsuit on October 10, 2005.
We conclude that the plain text of MCL 600.5805(10) and MCL 600.5827 bars plaintiffs' claim
Plaintiffs also allege in their second amended complaint a violation of the Natural Resources
and Environmental Protection Act, MCL 324.1701 et seq., which defendants assert the trial court
dismissed on substantive grounds. We do not address this claim because it was not included in
defendants' application for leave to appeal and plaintiffs have not cross-appealed.
for money damages under any of plaintiffs' liability theories. However, the trial court properly
determined that a claim for equitable relief to enforce a flowage easement is subject to the 15
year period set forth in MCL 600.5801(4). Nevertheless, the trial court should have granted
defendant's motion for summary disposition because plaintiff had not properly pleaded such a
claim. In sum, the trial court should have dismissed plaintiffs' claims for money damages as
timed-barred by the statute of limitations, leaving no viable cause of action to support plaintiffs
claim for equitable relief. Consequently, we reverse and remand without prejudice to plaintiffs'
ability to file in the trial court a motion to amend their complaint. MCR 2.116(I)(5).
I. Summary of Facts and Proceedings
The facts relevant to this appeal are not in dispute. In 1997, defendants—with the
permission of the Department of Environmental Quality (DEQ)—replaced with a concrete
spillway an existing wooden spillway connecting Silver Lake to the Indian River. Plaintiffs
allege that the DEQ permit required the replacement spillway to be the same elevation as the old
wooden spillway but defendants improperly constructed the new concrete spillway 7.32 inches
higher than the old one. Also, plaintiffs allege that sometime in 1998 the Lake Association
caused a 2- by 6-inch board to be placed across the spillway, further elevating the lake. In
addition, plaintiffs allege that sometime before November 2001, defendants partially capped a 4
inch PVC pipe running through a culvert, which had also allowed water to drain from Silver
Lake into the river. Plaintiffs discovered the cap and removed it in November 2001.2
Plaintiffs assert that the effect of defendants' actions was to raise the water level of Silver
Lake, causing water from the lake to flood plaintiffs' low-lying wooded property. Plaintiffs
contend that they did not immediately appreciate what was happening because it was not
observable. Although plaintiffs noticed some trees on their wooded wetland began dying in
2001, they did not realize that an elevated lake level was flooding their land or that this was
injuring the trees. Plaintiffs allege that they only discovered the elevated spillway after having
the area surveyed on April 12, 2005. Plaintiffs filed this action on October 10, 2005, seeking an
injunction requiring defendants to return the spillway to its previous level and damages for injury
to the trees.
The trial court denied defendants' motion for summary disposition that contended
plaintiffs' claims were time-barred, stating in pertinent part:
Cameron states that the "right of flowage is an easement that generally
can be acquired only by prescription (if water flows over fifteen years over upland
property either constantly or with sufficient intermittent frequency) or by a
written instrument such as a deed. Beaverton Power Company v Wolverine
Power Company, 245 Mich 541, 546; 222 NW 703 (1929)".
Plaintiffs' counsel conceded at oral argument in the trial court that the PVC pipe was a "minor
issue" because it had little effect on the lake level.
1 Cameron, Michigan Real Property Law: Principles and Commentary (3d ed), § 3.20, p 123.
[A]ssuming the water level was improperly elevated in 1997 causing water
to be diverted to Plaintiffs' property in 2001 after the culvert was capped,
Plaintiffs' complaint is not time barred. In order to be time barred, the Defendants
would have had to acquire a prescriptive easement permitting them to flood
Plaintiffs' property by having conducted such activity for fifteen continuous years.
If indeed plaintiffs' claims are true, this is an ongoing wrongful act injuring
Plaintiffs' property rights.
Defendants moved for reconsideration, which the trial court denied. For the purpose of
deciding the motion, the trial court assumed that defendants committed wrongful acts in 1997
and 2001 when they raised the lake level and caused water to improperly encroach on plaintiffs'
property. The court opined that this "wrongful impoundment" on plaintiffs' property was
ongoing and that Defendants had no easement or other legal right to divert water onto plaintiffs'
property. In denying reconsideration, the trial court stated:
Plaintiff [sic] is permitted under law to bring an action to require this
wrongful impoundment of water to cease and desist as the Defendants have no
legal right for this activity. If the Defendants had been engaged in this conduct
for 15 years prior to the litigation, then they might have acquired a prescriptive
easement which would have given them a right to continue this activity. They did
not and Plaintiff is entitled to challenge its contrivance.
The trial court left unresolved how far back plaintiffs could claim damages.
II. Standard of Review
This Court reviews de novo a trial court's decision on a motion for summary disposition
under MCR 2.116(C)(7). Trentadue v Buckler Automatic Lawn Sprinkler Co, 479 Mich 378,
386; 738 NW2d 664 (2007). Summary disposition is proper when a claim is barred by the
statute of limitations. Waltz v Wyse, 469 Mich 642, 647; 677 NW2d 813 (2004). When
addressing a C(7) motion, the trial court must accept as true the allegations of the complaint
unless contradicted by the parties' documentary submissions. Patterson v Kleiman, 447 Mich
429, 434 n 6; 526 NW2d 879 (1994). When the material facts are not disputed, this Court
reviews de novo as a question of law whether a claim is barred by the statute of limitations.
Trentadue, supra at 386. The interpretation of statutes also requires de novo review. Id.
A. Money Damages
Defendants argue that plaintiffs filed an action asserting claims of negligence, negligence
per se, nuisance, trespass, and conspiracy, not an action to quiet title to property. Therefore,
defendants argue, the trial court erred by applying the 15-year limitations period of MCL
600.5801(4) to plaintiffs' claims. Defendants argue that the proper statute of limitations is MCL
600.5805(10): "The period of limitations is 3 years after the time of the death or injury for all
other actions to recover damages for the death of a person, or for injury to a person or property."
Defendants principally rely on Horvath v Delida, 213 Mich App 620; 540 NW2d 760 (1995),
which applied the three-year statutory period of limitations to claims of negligence, trespass, and
nuisance flooding injury to property. Defendants further argue that plaintiffs' civil conspiracy
claim takes on the limitations period of the underlying wrongful act.
On appeal, plaintiffs argue that defendants concealed the fact that the replacement
spillway was higher than the old spillway, contrary to the permit the DEQ issued and that this
Court therefore should apply the discovery rule by which a claim does not accrue until the
plaintiff discovers or should have discovered the alleged wrongful act. Johnson v Caldwell, 371
Mich 368, 379; 123 NW2d 785 (1963).4 Plaintiffs also distinguish Horvath on the ground that in
Horvath the water table changed by two to five feet but here the lake level rose only 7½ inches.
Further, plaintiffs assert that the trial court properly invoked the continuous-tort doctrine.
Specifically, plaintiffs contend the flooding caused by the raised spillway constitutes continuing
torts of trespass and nuisance, citing Defnet v Detroit, 327 Mich 254; 41 NW2d 539 (1950),5
DiFronzo v Village of Port Sanilac, 166 Mich App 148; 419 NW2d 756 (1988),6 and Hodgeson v
Genesee Co Drain Comm'r, 52 Mich App 411; 217 NW2d 395 (1974).7
On the other hand, defendants argue that the trial court erred by applying the continuing
wrongful-acts doctrine to deny defendants' motion for summary disposition. They contend that
the trial court confused the fact of alleged finite wrongful acts (in 1997 and 2001) with the
continuing harmful effects of those acts. Defendants point to Horvath, in which the plaintiffs
alleged that the defendants' single wrongful act (dredging) resulted in continuing flooding to
their property. The Horvath Court held that the plaintiffs "misapprehend the crux of the
doctrine: a continuing wrong is established by continual tortious acts, not by continual harmful
effects from an original, completed act." Horvath, supra at 627 (emphasis in original).
Moreover, defendants argue that the continuing-wrongful-acts doctrine no longer applies in
We note that in Trentadue, supra at 393, our Supreme Court specifically overruled Johnson and
its progeny with respect to the judicially crafted discovery rule. The Court held that "the
statutory scheme is exclusive and thus precludes this common-law practice of tolling accrual
based on discovery in cases where none of the statutory tolling provisions apply." Trentadue,
supra at 389.
The Defnet Court held that a 1945 action against the city for maintaining an active sewer under
the plaintiffs' property since 1915 (when the city vacated an alley) was not time-barred because
"[w]here there are continuing wrongful acts within the period limited by the statute (CL 1948, §
609.13 [Stat Ann § 27.605]), recovery is not barred." Defnet, supra at 258.
The village had constructed a walkway across the plaintiffs' lakefront property, as well as
harbor facilities that interfered with the plaintiffs' littoral rights. DiFronzo, supra at 151-152.
The Court viewed the plaintiff's claim as one of inverse condemnation. The Court also opined,
"If a nuisance is of a continuing nature the period of limitations does not begin to run from the
date of the first act." Id. at 156, citing Hodgeson v Genesee Co Drain Comm’r, 52 Mich App
411; 217 NW2d 395 (1974).
In Hodgeson, like Defnet, a storm sewer ran underneath the plaintiffs' property. "The law is
clear that where there are wrongful acts of a continuing nature, the statute of limitations does not
begin to run from the date of the first act." Hodgeson, supra at 413, citing Defnet.
Michigan in light of Garg v Macomb Co Community Mental Health Services, 472 Mich 263; 696
NW2d 646 (2005), amended 473 Mich 1205 (2005).8
We conclude that plaintiffs' claim for money damages for injury to plaintiffs' property is
a claim for injury to property within the plain text of MCL 600.5805(10), whether the claim is
for the death of trees or for the submersion of the land. The claim accrued, "[e]xcept as
otherwise expressly provided . . . at the time the wrong upon which the claim is based was done
regardless of the time when damage results." MCL 600.5827. Whether "the wrong" is viewed
as the raising of the spillway (1997), or the capping of the culvert (2001), or the flooding of
plaintiffs' property and resulting death of tress (2001 and before), plaintiffs 2005 lawsuit was
filed more than three years after the time of the injury to property. MCL 600.5805(10).
Consequently, plaintiffs' claim for money damages is time-barred.
The judicially created discovery rule cannot save plaintiffs' claim. Trentadue, supra at
389, 393. Plaintiffs' reliance on fraudulent concealment, MCL 600.5855, is also misplaced.
Defendants did nothing to conceal the height of the spillway or the capping of the culvert, which
was discovered and removed by plaintiffs in 2001. The statutory scheme of limitations periods is
exclusive and precludes tolling the accrual of a claim based on discovery where no statute tolls
the running of the limitations period. Trentadue, supra at 389.
Plaintiffs fail to gain the benefit of a longer period of limitations by alleging a count of
civil conspiracy. Defendants correctly cite Gilbert v Grand Trunk W R, 95 Mich App 308, 313;
290 NW2d 426 (1980), which cites Roche v Blair, 305 Mich 608, 614-615; 9 NW2d 861 (1943),
for the proposition that "the gravamen of the action is not the conspiracy but the wrongful act."
Consequently, an allegation of conspiracy is "superfluous" as far as determining the applicable
statute of limitations. Gilbert, supra at 313. It follows that the conspiracy claim takes on the
limitations period for the underlying wrong that was the object of the conspiracy. Further, it is
the wrongful act, not the agreement to commit a wrongful act, that commences the running of the
limitations period. "The conspiracy standing alone without the commission of acts causing
damage would not be actionable. The cause of action does not result from the conspiracy but
from the acts done." Roche, supra at 614. Here, plaintiffs alleged a conspiracy to erect the
replacement spillway higher than the DEQ permit allowed. But the wrongful act occurred in
1997 when the spillway was replaced, allegedly higher than permitted, resulting in the alleged
injuries to property occurring in 2001 (trees) or earlier (flooding). Therefore, MCL
600.5805(10) and MCL 600.5827 control the limitations period and accrual of plaintiffs
conspiracy claim. The conspiracy claim accrued at the latest in 2001 and was time-barred in
2005 by the three-year limitations period of MCL 600.5805(10).
Garg was a discrimination case in which our Supreme Court overruled the "continuing
violations" doctrine of Sumner v Goodyear Tire & Rubber Co, 427 Mich 505; 398 NW2d 368
(1986), because it was contrary to the plain text of MCL 600.5805 and MCL 600.5827. Garg,
supra at 266, 281-284, 290.
Plaintiffs also argue that their claim is not barred by the statute of limitations because the
flooding of their property caused by the raised spillway constitutes a continuing tort of either
trespass or nuisance. Claims of trespass and nuisance include overlapping concepts and are
difficult to distinguish. Traver Lakes Community Maintenance Ass'n v Douglas Co, 224 Mich
App 335, 344; 568 NW2d 847 (1997). "[T]respass is an invasion of the plaintiff's interest in the
exclusive possession of his land, while nuisance is an interference with his use and enjoyment of
it." Adams v Cleveland-Cliffs Iron Co, 237 Mich App 51, 59; 602 NW2d 215 (1999) (citations
omitted). In Michigan, recovery for trespass to land "is available only upon proof of an
unauthorized direct or immediate intrusion of a physical, tangible object onto land over which
the plaintiff has a right of exclusive possession." Id. at 67. Moreover, the intrusion must be
intentional. Cloverleaf Car Co v Phillips Petroleum Co, 213 Mich App 186, 195; 540 NW2d
297 (1995). "If the intrusion was due to an accident caused by negligence or an abnormally
dangerous condition, an action for trespass is not proper." Id., citing Prosser & Keeton, Torts
(5th ed), § 13, pp 73-74. 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. [Cloverleaf Car Co, supra at 193
Assuming for the sake of analysis that plaintiffs have properly pleaded and the
circumstances support, a claim for either trespass or nuisance, plaintiffs still seek to recover
money damages for injury to property. Our Supreme Court has recently opined that the
"'continuing violations' doctrine is contrary to the language of [MCL 500.5805]." Garg, supra at
290. Therefore, the Court held that "the doctrine has no continued place in the jurisprudence of
this state." Id. The Garg case was a discrimination lawsuit in which the Court held that for the
plaintiff's claim to survive the plain text of the three-year limitations period of
MCL 500.5805(10) and that of the accrual statute, MCL 500.5827, the plaintiff was required to
file her claim within three years of an adverse employment act. Garg, supra at 281-282. The
holding of Garg does not appear limited to discrimination cases; rather, the Court applied the
plain text of the limitations and accrual statutes at issue here.
Further, this Court's decision in Horvath does not support defendants' continuous
violations theory. In Horvath, the defendants obtained a Department of Natural Resources
permit and dredged the bottom of a Roscommon County lake in 1983. The plaintiffs noticed that
the lake level began to rise that year and continued to do so. Eventually, in 1991 and 1992 water
entered the plaintiffs' home, and their well and septic system failed. The plaintiffs sued in 1992,
alleging that the defendants had negligently opened underground springs, resulting in the rising
lake level that flooded the plaintiffs' property. The Horvath Court held that a cause of action for
flooding accrues with respect to permanent as opposed to transient damage when "the land is
first visibly damaged." Horvath, supra at 625. Since the plaintiffs noticed damage in 1985, their
1992 claim was time-barred. Id. at 626. The Court also addressed the continuing-wrongful-acts
doctrine and distinguished the main cases on which plaintiffs rely: Defnet (trespass); DiFronzo)
(trespass and nuisance); Moore v City of Pontiac, 143 Mich App 610, 614; 372 NW2d 627
(1985) (nuisance); and Hodgeson (nuisance). The Horvath Court opined:
In seeking to apply the continuing-wrongful-acts doctrine in this case,
plaintiffs misapprehend the crux of the doctrine: a continuing wrong is established
by continual tortious acts, not by continual harmful effects from an original,
completed act. See, e.g., Defnet, supra (the continuing-wrongful-acts doctrine
applied where the defendants' maintenance of an active sewer on the plaintiffs'
property for nearly thirty years constituted a continuing trespass); Difronzo v Port
Sanilac, 166 Mich App 148; 419 NW2d 756 (1988) (the defendants' building of a
harbor and necessary facilities on Lake Huron bottom land adjacent to the
plaintiff's property constituted an ongoing nuisance); Moore, supra (operation of a
sanitary landfill constituted a continuing nuisance); Oakwood Homeowners Ass'n,
Inc [v Ford Motor Co, 77 Mich App 197; 258 NW2d 475 (1977)] (operation of
manufacturing plants that caused air pollution constituted a continuing tort);
Hodgeson v Genesee Co Drain Comm'r, 52 Mich App 411; 217 NW2d 395
(1974) (maintenance of storm sewer drain under the plaintiffs' property, which
caused periodic flooding, constituted a continuing nuisance).
Here, defendants are alleged to have committed a single tortious act in
1982 when they dredged the lake, and from that single act plaintiffs' property
suffered noticeable permanent damage beginning as early as 1985 and
intensifying over time. Accordingly, because plaintiffs have only established
aggravated ill effects from a single tortious act, their reliance on the continuing
wrongful-acts doctrine is misplaced. [Horvath, supra at 627-628.]
Defendants persuasively argue that as in Horvath, plaintiffs have alleged at most only
two distinct tortious acts occurring in 1997 (spillway replacement) and the 2001 (capped
culvert). The flooding and tree damage since 2001 are merely the harmful effects of the
completed tortious acts. The distinctions noted in Horvath with respect to the continuous
wrongful-act doctrine apply equally to the present case. Defendants have not physically intruded
on or under plaintiffs' property with an active sewer (Defnet), nor annually delivered water
through a sewer under plaintiffs' property to plaintiffs' basement (Hodgeson). Neither have
defendants constructed a walkway across plaintiffs' property and physically interfered with their
riparian rights (Difronzo). Defendants also did not within one year of plaintiffs' lawsuit build "a
tire shredding operation" that "made a loud shrill-like scream every five seconds while being
utilized" and "gave off noxious odors and . . . produced soot, particles and fibers which entered
plaintiffs' home." Moore, supra at 612. Indeed, defendants have performed no wrongful acts
causing water to be diverted from their own property to plaintiffs' property. Rather, plaintiffs
allege that defendants have obstructed the rate of the flow of water over the now raised spillway
that naturally accumulates on their own property and then spreads across plaintiffs' property.
Several other panels of this Court have followed the Horvath Court's analysis by severing
tortious acts from the harmful effects of those acts. See Attorney General v Harkins, 257 Mich
App 564, 572; 669 NW2d 296 (2003); Jackson Co Hog Producers v Consumers Power Co, 234
Mich App 72, 81-82; 592 NW2d 112 (1999) (trespass and nuisance); and Forest City
Enterprises, Inc v Leemon Oil Co, 228 Mich App 57, 76 n 7; 577 NW2d 150 (1998) (nuisance).
But also see Travers Lakes Community Maintenance Ass'n, supra at 346-348 (Although applying
Horvath to the plaintiff's negligence claim the Court distinguished claims for nuisance because
nuisance is a condition and not an act or failure to act.).
We conclude that regardless of the legal theory plaintiffs advance, their claim for money
damages is based on injury to property, i.e., either the death of trees or the submersion of their
land. In light of Garg, whether these claims are timely is determined by the plain text of MCL
600.5805(10). Plaintiffs' claim accrued "[e]xcept as otherwise expressly provided . . . at the time
the wrong upon which the claim is based was done regardless of the time when damage results."
MCL 600.5827. Whether the alleged "wrong" is the raising of the spillway (1997), the capping
of the culvert (2001), or even the flooding of plaintiffs' property resulting in the loss of tress
(2001 and before), plaintiffs 2005 lawsuit was filed more than three years after the property was
injured. MCL 600.5805(10). Plaintiffs point to no statute that extends the limitations period.
Trentadue, supra at 389. Consequently, plaintiffs' claims for money damages are time-barred
and the trial court erred in not granting defendants summary disposition with respect to this
portion of plaintiffs' complaint.
B. Equitable Relief
We conclude that the trial court erred in denying defendants' motion for summary
disposition of that portion of plaintiffs' complaint seeking equitable relief.
To the extent plaintiffs' complaint is premised on defendants' alleged violation of the
DEQ permit, it is time-barred. Plaintiffs' complaint alleges that they are entitled to relief because
defendants installed the new spillway higher than the DEQ permit allowed. Such a theory would
raise the issue whether plaintiffs have standing to enforce the requirements of the permit.
Assuming plaintiffs have standing to challenge the conduct, caselaw indicates that the proper
statute of limitations is the general six-year statute of limitations applicable to "[a]ll other
personal actions." MCL 600.5813. The statutes of limitations "apply equally to all actions
whether equitable or legal relief is sought." MCL 600.5815. This Court has applied the six-year
limitations period to the Attorney General's "equitable action to restore wetlands that were
altered in violation of a permit issued under Part 303 (Wetland Protection) of the Natural
Resources and Environmental Protection Act (NREPA), MCL 324.30301 et seq." Harkins,
supra at 566. So, even assuming that plaintiffs have standing to enforce the terms and conditions
of the DEQ permit, their 2005 action regarding the 1997 spillway construction is barred by the
six-year statute of limitations.
Although plaintiffs do not clearly allege it, we view the essence of plaintiffs' complaint
for equitable relief as one to enforce a flowage easement over defendants' property.9 The trial
court applied the 15-year limitations period of MCL 600.5801(4), reasoning that because it
would take that long for defendants to obtain a prescriptive easement for water flow over to
As discussed earlier, a flowage easement could arise from longstanding flow of water. We
assume plaintiffs could allege facts that would support such a claim. See MCR 2.116(I)(5).
plaintiffs' property, plaintiffs should have that long to seek redress from a court to prevent
defendants from obtaining a prescriptive easement to flood plaintiffs' property.
MCL 600.5801 provides:
No person may bring or maintain any action for the recovery or possession
of any lands or make any entry upon any lands unless, after the claim or right to
make the entry first accrued to himself or to someone through whom he claims, he
commences the action or makes the entry within the periods of time prescribed by
(4) In all other cases under this section, the period of limitation is 15 years.
A claim to enforce or prevent the creation of an easement does not neatly fit into a statute
of limitations barring recovery of possession of real property because an easement is a not a
possessory right. See Tittiger v Johnson, 103 Mich App 437, 440-441; 303 NW2d 26 (1981).
Rather, an easement is "a right to use the land burdened by the easement rather than a right to
occupy and use the land as an owner." Dep't of Natural Resources v Carmody-Lahti Real Estate,
Inc, 472 Mich 359, 378; 699 NW2d 272 (2005) (citations omitted). An owner of an easement
cannot displace the possessor or the owner of the land, but he has a qualified right to possession
so far as may be necessary for its enjoyment. Id. at 378 n 39.
The specific easement at issue is somewhat amorphous. "The right of flowage is an
easement that can only be acquired by prescription or by a writing such as a deed." Lenawee Co
Bd of Comm'rs v Abraham, 93 Mich App 774; 287 NW2d 371 (1979), citing Beaverton Power
Co v Wolverine Power Co, 245 Mich 541, 546; 222 NW 703 (1929). As stated in headnote 3 of
Abraham, supra at 775, it is an easement "to flow water over another's land." The easement may
be one of two different types. In the Abraham and Beaverton cases, it was the right to erect a
dam that flooded or flowed water onto upstream properties. The existence of this type of
flowage easement, however, does not extend a reciprocal right to the servient estate to have the
artificial water level maintained. See Drainage Bd v Village of Homer, 351 Mich 73, 80-83; 87
NW2d 72 (1957), and Goodrich v McMillan, 217 Mich 630, 633; 187 NW 368 (1922). "'The
fact that the exercise of the easement is of advantage to the owner of the servient estate will give
him no right to insist on the exercise of the easement on the part of the dominant owner. An
easement exists for the benefit of the dominant estate alone, and the servient owner acquires no
right to insist on its continuance, or to ask for damages on its abandonment.'" Id., quoting and
adopting 3 Farnham on Waters and Water Rights at 2402-2403. Thus, the owner of the dominant
estate may raise or lower the water level between the natural low-water mark and the easement
high-water mark. Drainage Bd, supra at 83.
But from the perspective of the upstream property owners, a flowage easement may arise
from the natural or long-existing rate of flowing water away from the upstream property over to
the downstream properties. This was the essence of Cranson v Snyder, 137 Mich 340; 100 NW
674 (1904), and Carley v Jennings, 131 Mich 385; 91 NW 634 (1902), on which plaintiffs rely in
asserting a right to injunctive relief to enforce a right to maintain the spillway at its pre-existing
level. "It is the settled law of this State that the natural flowage of water from the upper estate is
a natural servitude which the owner of the lower estate must bear." Id. at 387. The Court in both
Cranson and Carley affirmed trial court decrees to enjoin obstructions of a long-existing rate of
water flow over to the servient property.
Here, plaintiffs seek to invoke the equitable jurisdiction of the court to prevent the
flooding of their property. They seek both to preclude defendants from creating a prescriptive
easement of flowage that would authorize the continuation of the flooding and to enforce their
own flowage easement in the pre-existing rate of water flow over the spillway that defendants
control. Assuming that plaintiffs have an easement in the pre-existing rate of flow over the old
spillway or, stated differently, that defendants do not already have a prescriptive easement in
water flow to flow plaintiffs' property, plaintiffs' own flowage easement arises from the common
law, not the DEQ permit. Consequently, the general six-year statute of limitations of MCL
600.5813 does not necessarily apply.
Indeed, some cases suggest that because equitable relief redresses future harm, statutes of
limitations do not apply. See, e.g., Wayne Co Chief Executive v Governor, 230 Mich App 258,
274; 583 NW2d 512 (1998), citing Taxpayers Allied For Constitutional Taxation v Wayne Co,
450 Mich 119, 128-129; 537 NW2d 536 (1995) (the statute of limitations does not affect a claim
for injunctive relief to prevent a future wrong). In both of those cases, however, the issue
addressed was the enforcement of constitutional limits on taxation. Furthermore, neither case
discussed the effect of MCL 600.5815, as this Court did in Harkins, supra at 570-571. In
addition, the Court in Taxpayers, supra, noted that, "statutes of limitation may apply by analogy
to equitable claims." Taxpayers, supra 127 n 9. "If legal limitations periods did not apply to
analogous equitable suits, 'a plaintiff [could] dodge the bar set up by a limitations statute simply
by resorting to an alternate form of relief provided by equity.'" Id., quoting Lothian v Detroit,
414 Mich 160, 169; 324 NW2d 9 (1982).
We conclude that the trial court correctly applied the 15-year limitations period of MCL
600.5801(4) to plaintiffs' equitable claim seeking to preclude defendants from obtaining a
prescriptive flowage easement that would flood plaintiffs' property. "An easement by
prescription results from use of another's property that is open, notorious, adverse, and
continuous for a period of fifteen years." Plymouth Canton Community Crier, Inc v Prose, 242
Mich App 676, 679; 619 NW2d 725 (2000), citing MCL 600.5801 and Goodall v Whitefish
Hunting Club, 208 Mich App 642, 645; 528 NW2d 221 (1995). Likewise, a flowage easement
may arise "from an open, notorious, continuous, and adverse use across the land of another for a
period of 15 years." Cook v Grand River Hydroelectric Power Co, Inc, 131 Mich App 821, 826;
346 NW2d 881 (1984). Also, a prescriptive flowage easement may be lost by a 15-year period
of continuous nonuse. Id. at 827, citing McDonald v Sargent, 308 Mich 341; 13 NW2d 843
(1944). The owner of flooded property "may at any time, during the prescriptive period of
flowage, protect his rights . . . ." Drainage Bd, supra at 80, citing Goodrich, supra at 633.
"There is not an instant during the time that the prescriptive period is running when [the owner of
the servient estate] could not compel the owner of the dam to remove it . . . ." Id. at 633, quoting
3 Farnham on Waters and Water Rights at 2406. Thus, the statute of limitation on actions to
prevent a prescriptive flowage easement from arising is the 15-year limitations period of MCL
600.5801(4). This same reasoning would justify invoking the 15-year limitations period for an
action to remove obstructions to a natural flowage easement. See Longton v Stedman, 196 Mich
543, 545; 162 NW 947 (1917) (an easement may be enforced at any time up to its
extinguishment by adverse possession).
But because a claim for equitable relief to enforce a flowage easement would not be time
barred does not mean that plaintiffs have properly pleaded a cause of action to do so. "'It is not
the remedy that supports the cause of action, but rather the cause of action that supports a
remedy.'" Henry v Dow Chemical Co, 473 Mich 63, 96-97; 701 NW2d 684 (2005), quoting
Wood v Wyeth-Ayerst Labs, 82 SW3d 849, 855 (Ky, 2002).
It is well settled that an injunction is an equitable remedy, not an independent cause of
action. Klay v United HealthGroup, Inc, 376 F3d 1092, 1100 (CA11, 2004); Fletcher v Conoco
Pipe Line Co, 129 F Supp 2d 1255, 1264 (WD Mo, 2001). As the Fletcher Court stated,
"[p]laintiffs must allege some wrongful conduct on the part of Defendant for which their
requested injunction is an appropriate remedy." Here, plaintiffs' second amended complaint
contained five separate counts, and, after reciting these specific claims, requested both
compensatory damages and equitable relief. However, because we have concluded that
plaintiffs' tort claims were time-barred and the trial court had dismissed plaintiffs' statutory
claim, plaintiffs currently have no viable claim against defendants; therefore, equitable relief in
the form of an injunction is unavailable. Although this is the posture of this case now, on
remand plaintiffs may move to amend their complaint and then seek equitable relief.
We hold the plain text of MCL 600.5805(10) and MCL 600.5827 bars plaintiffs' claim
for money damages under any of plaintiffs' liability theories. With respect to plaintiffs' claim for
equitable relief to either enforce a natural flowage easement or preclude the creation of a
prescriptive flowage easement, we hold that the trial court correctly applied the 15-year period of
limitations of MCL 600.5801(4). But because plaintiffs have no properly pleaded cause of
action for equitable relief currently before the court, we must reverse the denial of defendants'
motion for summary disposition.
We reverse and remand for further proceedings without prejudice to plaintiffs' ability to
file in the trial court a motion to amend their complaint. We do not retain jurisdiction.
/s/ Jane E. Markey
/s/ Patrick M. Meter
/s/ Christopher M. Murray