STEVENS
v.
CREEK
Docket No. 59458.
Michigan Court of Appeals.
Decided November 18, 1982.Michael E. Nye, for plaintiff.
Fry, Barker & Hayne (by James D. Hayne), for defendant.
Before: DANHOF, C.J., and J.H. GILLIS and M.R. KNOBLOCK,[*] JJ.
PER CURIAM.
Plaintiff appeals as of right from the trial court's dismissal of her action under the Michigan Environmental Protection Act (EPA), MCL 691.1201 et seq.; MSA 14.528(201) et seq., and from the court's denial of her claim for treble damages pursuant to MCL 600.2919; MSA 27A.2919.
Plaintiff is the owner of an approximately 30-acre parcel of property which adjoins the southern boundary of defendant's property. The boundary line between plaintiff's and defendant's property is located in a heavily wooded area.
In December, 1978, plaintiff commenced this action alleging that defendant had trespassed upon her property and cut down and removed timber therefrom. Plaintiff sought an injunction against defendant's continued trespass and requested an award of treble damages for defendant's alleged wilful and voluntary removal of timber from her *506 property, MCL 600.2919; MSA 27A.2919. Plaintiff's first amended complaint also sought damages for the diminution of the value of her property due to defendant's entry and removal of timber. Plaintiff's second amended complaint added a third count alleging that defendant's acts constituted a violation of the EPA. Plaintiff requested that her property be restored to its condition prior to the trespass.
Following a bench trial, the court found that a trespass had occurred, granted plaintiff's request for an injunction and awarded plaintiff actual damages in the amount of $120 for defendant's removal of four face cords of wood from plaintiff's property. Plaintiff's claim for treble damages was denied. As to Count III, the court dismissed the claim on the basis that it stated no cause of action, finding that the EPA "does not apply because there was no public trust involved in this matter". Plaintiff appeals.
The first issue is whether the trial court erred in finding that the EPA was not intended to protect natural resources on land in which there is no public trust or public right to user.
Const 1963, art 4, § 52 provides:
"The conservation and development of the natural resources of the state are hereby declared to be of paramount public concern in the interest of the health, safety and general welfare of the people. The legislature shall provide for the protection of the air, water and other natural resources of the state from pollution, impairment and destruction."
In response, the Legislature enacted the EPA, formally known as the Thomas J. Anderson, Gordon Rockwell Environmental Protection Act of 1970, MCL 691.1201 et seq.; MSA 14.528(201) et *507 seq. Section 2 of the act, MCL 691.1202; MSA 14.528(202), provides that a party may bring an action for declaratory and equitable relief against any other party "for the protection of the air, water and other natural resources and the public trust therein from pollution, impairment or destruction". Under § 3, MCL 691.1203; MSA 14.528(203), the plaintiff, in order to obtain relief, must make a prima facie showing that the defendant's conduct "has, or is likely to pollute, impair or destroy the air, water or other natural resources or the public trust therein". (Emphasis supplied.) Ray v Mason County Drain Comm'r, 393 Mich. 294, 309; 224 NW2d 883 (1975); Whittaker & Gooding Co v Scio Twp, 117 Mich. App. 18; 323 NW2d 574 (1982).
The language of § 3 is disjunctive; plaintiff may make a prima facie case by establishing existing or probable future pollution, impairment or destruction of natural resources or of the public trust in those resources. We find nothing in the language which would limit the protections in the act to natural resources affecting land in which there is a public trust or a right to public access.
In Kimberly Hills Neighborhood Ass'n v Dion, 114 Mich. App. 495, 503; 320 NW2d 668 (1982), this Court noted that in determining whether a plaintiff has made a prima facie case under the EPA a dual inquiry must be conducted: (A) whether a natural resource is involved, and (B) whether the impact of the activity on the environment rises to the level of impairment to justify the trial court's injunction. See West Michigan Environmental Action Council v Natural Resources Comm, 405 Mich. 741, 760; 275 NW2d 538 (1979), cert den 444 U.S. 941; 100 S. Ct. 295; 62 L. Ed. 2d 307 (1980).
In the case at bar, the testimony established *508 that defendant destroyed trees on plaintiff's property. The removal of trees constitutes destruction of natural resources under the EPA. Eyde v State of Michigan, 82 Mich. App. 531, 540; 267 NW2d 442 (1978), lv den 403 Mich. 812 (1978).
As to the second element of the inquiry, plaintiff testified that she maintained the property in question as a wildlife preserve and attempted to perpetuate it in its natural state. Plaintiff brought her claim under the EPA in order to obtain reforestation of the damaged area. Restoration of the natural habitat is a proper remedy under the EPA. See Eyde, supra.
The trial court found that EPA was inapplicable and therefore dismissed plaintiff's claim without permitting her to introduce an environmental impact study and the expert testimony of an ecologist, which could possibly have established a prima facie case under the act. This was error. The case is therefore remanded to the trial court to allow plaintiff to introduce evidence bearing on the second element of the inquiry, to wit: whether the impact of defendant's conduct rose to the level of impairment or destruction of a natural resource.
The remaining issue is whether the trial court erred in denying plaintiff's claim for treble damages. MCL 600.2919; MSA 27A.2919 provides in pertinent part:
"(1) Any person who:
"(a) cuts down or carries off any wood, underwood, trees, or timber or despoils or injures any trees on another's lands * * * without the permission of the owner of the lands * * * is liable to the owner of the land * * * for 3 times the amount of actual damages. If upon the trial of an action under this provision or any other action for trespass on lands it appears that the trespass was casual and involuntary, or that the defendant *509 had probable cause to believe that the land on which the trespass was committed was his own, or that the wood, trees, or timber taken were taken for the purpose of making or repairing any public road or bridge judgment shall be given for the amount of single damages only."
The damages provided for by the statute are punitive in nature and are not designed to be imposed in the absence of active misconduct. Long-year v Gregory, 110 Mich. 277; 68 N.W. 116 (1896). The burden is on the plaintiff to prove that the cutting was done without permission of the owner. Weisswasser v Chernick, 399 Mich. 653; 252 NW2d 766 (1977); Padman v Rhodes, 126 Mich. 434; 85 N.W. 1130 (1901). In order to avoid treble damages, the defendant has the burden of proving that the trespass was casual and involuntary rather than wilful. See Hart v Doyle, 128 Mich. 257; 87 N.W. 219 (1901), Padman, supra.
Upon reviewing the record in the instant case, we are unable to conclude the court's ruling was clearly erroneous. The testimony was conflicting, and it was obvious that plaintiff and defendant had an ongoing dispute regarding the location of the boundary line. At the time the timber was taken there was no clear designation of the boundary line. Since it can reasonably be concluded from the record that defendant's trespass and cutting of timber on plaintiff's property was not wilful or voluntary, plaintiff was not entitled to treble damages.
Affirmed in part, reversed in part and remanded.
NOTES
[*] Circuit judge, sitting on the Court of Appeals by assignment.