RICHARD MORSE V CONSUMERS ENERGY CO
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STATE OF MICHIGAN
COURT OF APPEALS
RICHARD MORSE,
UNPUBLISHED
February 22, 2011
Plaintiff/Counter-DefendantAppellee,
v
No. 292688
Barry Circuit Court
LC No. 08-000009-CH
CONSUMERS ENERGY CO,
Defendant,1
and
MARC COLITTI and JOAN COLITTI,
Intervening Defendants/CounterPlaintiffs-Appellants.
Before: MURPHY, C.J., and METER and GLEICHER, JJ.
PER CURIAM.
Following a bench trial, the trial court entered a judgment indicating that defendants had
no cause of action for damages related to their alleged easement right to place a power pole on
plaintiff’s property. The court did award defendants equitable relief for erosion and water runoff
caused by plaintiff’s construction project. Defendants appeal as of right. We affirm.
The parties are neighbors. Defendants own a rental home that had electrical service
supplied by an overhead wire from a power pole located on plaintiff’s property. In 2007,
defendants had the electricity disconnected while the home was being renovated. While the
electricity was disconnected, plaintiff had Consumers Energy remove the power pole from his
property so that he could build a new garage. Because the power pole was removed,
reinstallation of electrical service to defendants’ rental home was delayed while Consumers
1
Consumers Energy was dismissed from this case before trial. For ease of reference, this
opinion will use the term “defendants” in referring to Marc and Joan Colitti.
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attempted to find an alternative route to run wiring for service. At trial, defendants alleged that
plaintiff interfered with their prescriptive-easement rights. The trial court ruled that defendants
did not have a cause of action against plaintiff for damages related to removal of the power pole.
On appeal, defendants first contend that they had a prescriptive easement and that the
trial court erred in finding that they had no cause of action against plaintiff for damages related
to their loss of electrical service. We review a trial court’s factual findings in an action for a
prescriptive easement for clear error, while the court’s ultimate holding is reviewed de novo.
Mulcahy v Verhines, 276 Mich App 693, 698; 742 NW2d 393 (2007). “A finding is clearly
erroneous where, after reviewing the entire record, this Court is left with a definite and firm
conviction that a mistake has been made.” Alan Custom Homes, Inc v Krol, 256 Mich App 505,
512; 667 NW2d 379 (2003).
“An easement is a right to use the land of another for a specific purpose.” Killips v
Mannisto, 244 Mich App 256, 258; 624 NW2d 224 (2001). “An easement by prescription arises
from a use of the servient estate that is open, notorious, adverse, and continuous for a period of
fifteen years.” Id. at 258-259. “The burden is on the party claiming a prescriptive easement to
show by satisfactory proof that the use of the [opposing party’s] property was of such a character
and continued for such a length of time that it ripened into a prescriptive easement.” Mulcahy,
276 Mich App at 699.
We find that defendants failed to prove that they had a prescriptive-easement right to
place the secondary power pole on plaintiff’s property. The evidence showed that at some point
before the parties owned their respective properties, Consumers installed the pole and then used
and maintained it over the years to provide electrical service to defendants’ rental home. The
pole was installed and used in the context of Consumers’ business enterprise. The easement
belonged to Consumers, and if plaintiff interfered with Consumers’ easement, Consumers would
be the party entitled to damages, not defendants. We find that the trial court did not err in
finding that defendants had no cause of action against plaintiff for damages associated with the
delayed reinstallation of electrical service.
Next, defendants argue that the trial court erred in failing to award monetary damages for
plaintiff’s trespass onto their land. At trial, defendants alleged that plaintiff constructed his
garage in a manner that caused eroded sediment and water to run onto their property.
Defendants also alleged that when plaintiff built a speed bump on the roadway that abuts both
parties’ properties, he caused water to run into defendants’ driveway and garage. The trial court
found that the erosion amounted to a trespass and awarded defendants equitable relief. The trial
court ordered plaintiff to remove the speed bump but concluded that it was unclear whether the
speed bump caused water runoff onto defendants’ driveway and into their garage.
Defendants contend that the trial court should have awarded monetary damages for
trespass. “This Court reviews a trial court’s findings of fact in a bench trial for clear error and its
conclusions of law de novo.” Alan Custom Homes, Inc, 256 Mich App at 512. We review a trial
court’s determination of damages for clear error. Marshall Lasser, PC v George, 252 Mich App
104, 110; 651 NW2d 158 (2002).
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Recovery for trespass to land in Michigan 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. [A] direct or
immediate invasion for purposes of trespass is one that is accomplished by any
means that the offender knew or reasonably should have known would result in
the physical invasion of the plaintiff’s land. Damages may be recovered for any
appreciable intrusion. . . . Surface water diversion may effect an intrusion onto
land. [Boylan v Fifty-Eight Limited Liability Company, ___ Mich App ___; ___
NW2d ___; 2010 WL 3488995 (2010) (internal citations and quotations marks
omitted; emphasis in original).]
We find that the trial court did not clearly err in declining to award damages to
defendants for the trespass caused by plaintiff’s construction of his new garage. Marshall
Lasser, PC, 252 Mich App at 110. There was no proof of a “direct or immediate invasion” of
defendants’ land because the evidence did not support that plaintiff “knew or reasonably should
have known” that his construction would result in a physical invasion of defendants’ land.
Boylan, supra; see also Adams v Cleveland Cliffs Iron Co, 237 Mich App 51, 67; 602 NW2d 215
(1999). Evidence at trial showed that, after defendants complained to the zoning administrator
about erosion, plaintiff took numerous precautions to prevent further erosion and runoff onto
defendants’ property. Plaintiff worked with an excavator and considered his advice while
completing the construction. Plaintiff followed the zoning administrator’s requirements. He
obtained all the necessary zoning permits for the project, installed a wooden fence and attached
silt fencing and landscaping fabric in an effort to prevent any runoff or erosion, and installed
commercial eaves on the garage to catch water from the roof and divert it to the back of his
property. He also seeded the area between the garage and defendants’ property. Plaintiff
installed fill dirt because the zoning administer required him to, and he attempted to slope the
land near defendants’ property back toward his own property so that eroded soil and runoff
would remain on his land. The zoning administrator approved plaintiff’s project and the erosioncontrol measures that he put in place.
With respect to the speed bump and resulting water in defendants’ driveway and garage,
we hold that the trial court did not clearly err in finding that there was insufficient evidence to
show that the speed bump was the source of the water runoff. Evidence at trial showed that
defendants had an ongoing problem with water in their driveway and garage long before plaintiff
installed the speed bump. Defendants previously blamed other neighbors’ projects for the runoff
problem. Defendants’ garage was approximately two feet below road level. Further, plaintiff
testified that Marc Colitti supported his plan to build the speed bump, and evidence showed that
there were previous speed bumps installed near the same location. In addition, plaintiff
performed work on a catch basin to try and divert water off the roadway and toward the lake.
We conclude that the evidence does not support that plaintiff knew or reasonably should have
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known that constructing the speed bump would have caused a trespass onto defendants’
property.2
Defendants also argue that they are entitled to treble damages for trespass pursuant to
MCL 600.2919(1)(b) and (c). However, because this argument was not raised, addressed, or
decided in the trial court, it was not preserved for our review and we decline to address it.
Walters v Nadell, 481 Mich 377, 388; 751 NW2d 431 (2008) (“Generally, a party may not
remain silent in the trial court, only to prevail on an issue that was not called to the trial court’s
attention. Trial courts are not the research assistants of the litigants; the parties have a duty to
fully present their legal arguments to the court for its resolution of their dispute.”).
Notwithstanding, even if we were to address this issue, we find the statute is wholly inapplicable
to the present case and defendants’ argument lacks all merit.
Next, defendants contend that the trial court’s order rendered the zoning ordinance
nugatory. After reviewing the record, we disagree. The trial court found that plaintiff regraded
his property in a manner that caused runoff onto defendants’ property in violation of the zoning
ordinance. The trial court ordered plaintiff to regrade his property to the original grade in the
area causing runoff and to take measures to prevent discharge and runoff. To the extent that
defendants argue that plaintiff has failed to comply with the trial court’s order, defendants should
move for a motion to enforce the judgment in the trial court.
Next, defendants argue that the trial court erred in failing to find that plaintiff’s new
garage amounted to a nuisance per se because it exceeded the height restrictions set forth in the
zoning ordinance. “Whether an allegedly injurious condition constitutes a nuisance per se is a
question of law. . . . However, whether an allegedly injurious condition constitutes a nuisance in
fact is a question of fact.” Ypsilanti Charter Twp v Kircher, 281 Mich App 251, 269; 761 NW2d
761 (2008).
A nuisance per se is “an act, occupation, or structure which is a nuisance at all times and
under any circumstances, regardless of location or surroundings.” Id. at 269 n 4 (internal
citations and quotation marks omitted). A party is liable for private nuisance 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 v Phillips Petroleum Co, 213 Mich App 186, 193; 540 NW2d 297 (1995)
(internal citation and quotation marks omitted).]
2
Moreover, defendants’ allegation of approximately $250 in damages to their garage’s
“driveway area” was not supported by sufficient evidence. Nor did defendants provide sufficient
evidence to support their claim that plaintiff interfered with a land survey, and they did not argue
below that they were entitled to recover damages to pay for a second survey.
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We find that defendants failed to prove that plaintiff committed a private nuisance when he
constructed his two-story garage. Defendants did not offer any evidence to prove the elements of
private nuisance. Specifically, defendants did not offer any evidence to show that the height of
the garage interfered with one of their property rights, or to show that the height resulted in
significant harm, or to show that any alleged invasion was intentional, negligent, reckless, or
ultrahazardous. Id. Defendants’ counsel even conceded the nuisance claim during his closing
argument when he stated that he was not going to discuss the “zoning violation issue.”
Defendants did not prove that plaintiff’s conduct in constructing the two-story garage amounted
to a nuisance.
Finally, defendants’ argument that plaintiff’s garage caused damages in that it reduced
the value of their property is improperly before this Court for decision because there was no
evidence offered at trial concerning the diminution of defendants’ property value. See Sherman
v Sea Ray Boats, Inc, 251 Mich App 41, 56; 649 NW2d 783 (2002) (“[t]his Court’s review is
limited to the record established by the trial court, and a party may not expand the record on
appeal”).
Affirmed.
/s/ William B. Murphy
/s/ Patrick M. Meter
/s/ Elizabeth L. Gleicher
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