Governale v. City of Owosso

387 Mich. 626 (1972)

198 N.W.2d 412

GOVERNALE v. CITY OF OWOSSO

No. 10 May Term 1972, Docket No. 53,487.

Supreme Court of Michigan.

Decided June 20, 1972.

Bruce S. King, for plaintiffs.

Louis D. Benson, City Attorney, and Miller, Canfield, Paddock & Stone (by Gilbert E. Gove and George T. Stevenson), for defendant.

PER CURIAM:

Concerned principally if not wholly with view below that stated and accepted question 3 should be answered in the negative, we granted review of Governale v Owosso, 33 Mich App 586 (1971) (385 Mich 773). Question 3:

"By virtue of the fact that the plaintiffs are owners of the fee to the centerline of Hintz road and the fact that construction of the proposed public improvement is within the centerline of Hintz road, are plaintiffs being denied their right to eminent domain proceedings as provided in article X, section 2 of the Michigan Constitution of 1963?"

*628 The response of Division 2 was (p 589):

"Plaintiffs were not entitled to condemnation. Construction of the water main within the highway right-of-way did not increase the burden of servitude upon their abutting land. People v Eaton (1894), 100 Mich 208."

Plaintiffs' action was dismissed in circuit, without a trial or hearing of proof tending to support or overcome paragraph 8 of plaintiffs' complaint, which paragraph the defendant city flatly denied. Paragraph 8 reads:

"That, in addition to taking the private property of plaintiffs by the construction of an underground pipeline across the lands of these plaintiffs, the defendant, city of Owosso, is unlawfully interfering with the rights of plaintiffs with regards to the subterranean water level; that the proposed public improvement of defendant seeks to withdraw the subterranean water from the township of Caledonia in two locations, one being the Osborn Lake well located at the south end of Osborn Lake, 1152 feet north of East Oliver Street, 4090 feet east and 2490 feet north of the southwest corner of section 18, Caledonia township, county of Shiawassee; and the second well being located on Hintz Road, 4419 feet east and 1420 feet north of the southwest corner of section 7, Caledonia township, Shiawassee county; that it is proposed by the defendant City of Owosso, to remove from each well a quantity of water, to-wit: 900 gallons per minute capacity and 500 gallons per minute, minimum, the records of the Michigan Water Resources Commission will indicate that pumping 900 gallons per minute will reduce the water level of said subterranean waters of plaintiffs by 17.7 feet after a period of 5 hours; that the contemplated removal of subterranean water in the quantities contemplated will deplete the water level in Caledonia township resulting in a taking of their private *629 property and in damages to the remaining lands and buildings."

We agree with Division 2 that, so far as concerns plaintiffs' claim of just compensation arising from the fact of installation of the pipeline beneath the roadway, the reasoning of People v Eaton, 100 Mich 208, 210-213 (1894) properly applies.[*] However, with the issue of fact created by quoted paragraph 8 left undetermined, we are constrained to reverse for trial of that issue.

Plaintiffs' properties may or may not have been damaged, as charged by paragraph 8. They are entitled to that long or short day in court which, upon the record as it stands, is requisite to determination of the paragraph 8 issue.

As for the remaining questions presented, we agree with the disposition thereof made by Division 2. Reversed and remanded. Costs of all three courts to plaintiffs.

T.M. KAVANAGH, C.J., and BLACK, ADAMS, T.E. BRENNAN, T.G. KAVANAGH, SWAINSON, and WILLIAMS, JJ., concurred.

[*] For a recent case reasoned upon the same principles and applied to installation of a water main, see Ziegler v Ohio Water Service Co, 18 Ohio St 2d 101; 47 Ohio Op 2d 244; 247 NE2d 728 (1969) (overruling Hofius v Carnegie-Illinois Steel Corp, 146 Ohio St 574; 67 NE2d 429 [1946]).