Hart v. City of Detroit

Levin, J.

(concurring in part and dissenting in part). We agree with the majority that the "time of 'taking’ in an inverse condemnation action is not necessarily coincidental with the time plaintiff’s cause of action accrues”,1 that "the statute of limitations does not begin to run until the consequences of the condemnor’s actions have stabilized”,2 and that it is "for the trier of fact to determine whether a continuous wrong was involved here and, if so, when the consequences of this wrong had stabilized, thus triggering the statute of limitations”.3 We further agree with the majority that such a cause of action is a personal and not a real action and that the applicable statute of limitations is the six-year statute.4

We do not, however, agree that "the latest point *506in time that plaintiffs’ cause of action could have accrued was the last date on which plaintiffs had any interest in the subject property — the day the right of redemption expired”.5

The majority reasons that "if instead of the tax sales, plaintiffs had voluntarily sold their property to third parties, they could not claim damages which had accrued after the sale”. 6 It may be that the plaintiffs would not be entitled to damages which would occur or accrue after such a sale, but it does not follow that the last day on which damages accrued before a sale is the date of accrual of their cause of action.

The statute governing accrual of actions in Michigan,7 states that in a case not specifically provided for by the statute — and this is such a case8 — "the claim accrues at the time the wrong upon which the claim is based was done regardless of the time when damage results”.9 Thus, a cause of action for inverse condemnation may accrue coincidentally with, before, or after the time the damage is suffered.

For purposes of the statute of limitations, the time of accrual of the cause of action for inverse condemnation depends upon when the wrong— what the city did or failed to do — "was done” with respect to the plaintiffs and the owners of all 1400 parcels in Elmwood III being condemned and not on whether the plaintiffs chose or had the where*507withal to pay taxes or suffered loss of their parcels for nonpayment of taxes.

Inverse condemnation is a continuing wrong. The time of accrual is when the situation stabilizes or comes to rest.10 That would be the same for all the parcels in Elmwood III since it appears that the rain of the malaise caused by the city’s actions and inactions which constitute an inverse condemnation fell more or less evenly throughout Elm-wood III. Thus, plaintiffs’ cause of action in inverse condemnation11 accrued at the same time that the cause of action accrued for the owners of the other 1400 lots.12_

*508Under the analysis of the majority opinion, if there are two lots side-by-side and one owner pays taxes and the other does not, the cause of action for inverse condemnation for the owner who pays taxes would accrue at a different time than for the owner who does not. That is inconsistent with the nature of the cause of action which is for the wrongful taking.

It is the conduct of the city, not the nonpayment or foreclosure for nonpayment of taxes, which gives rise to the right to bring an action for inverse condemnation. The expiration of the plaintiffs’ right of redemption was not an aspect of the wrong (the inverse condemnation or taking), but a consequence of it. Foreclosure is not a compensa-ble taking, and to reason as does the majority is to suggest that the plaintiffs may be compensated for tax foreclosure as if it were an aspect of the inverse condemnation.

In sum, the time when the cause of action accrued depends solely upon what the city did or failed to do and not at all upon the plaintiffs’ reaction thereto, such as failing to pay taxes. While the plaintiffs may not be able to recover damages for diminution of the value of the property occurring after the expiration of the right of redemption,13 the time of accrual of their personal *509action for condemnation is the same as the time of accrual for property owners who paid taxes.

Kavanagh, J., concurred with Levin, J. Riley, J., took no part in the decision of this case.

Ante, pp 503, 504.

Id.

Ante, p 504.

Ante, pp 502-503; see Citizens for Pretrial Justice v Goldfarb, 415 Mich 255, 268-270; 327 NW2d 910 (1982).

Ante, p 504.

Id.

See MCL 600.5827-600.5838; MSA 27A.5827-27A.5838.

The only specific accrual provision that arguably applies is MCL 600.5829; MSA 27A.5829, which sets the time of accrual for claims to recover land. We agree with the majority’s rejection of analogizing inverse condemnation claims to adverse possession claims. See ante, pp 497-499. Therefore, MCL 600.5829; MSA 27A.5829 does not apply in this case.

MCL 600.5827; MSA 27A.5827.

United States v Dickinson, 331 US 745, 749; 67 S Ct 1382; 91 L Ed 1789 (1947).

Cf. Klopping v City of Whittier, 8 Cal 3d 39, 58; 104 Cal Rptr 1; 500 P2d 1345 (1972) (loss of land due to tax foreclosure does not abate inverse condemnation suit); Sayre v United States, 282 F Supp 175, 179 (ND Ohio, 1967) (bankruptcy trustee sought inverse condemnation damages for alleged taking of, inter alia, foreclosed properties).

In the instant case, the city’s condemnation action named the owners of all 1400 parcels other than the 42 foreclosed for nonpayment of taxes which it had already obtained.

Although not argued, we are inclined to the view that where the city intends to condemn property and ultimately commences an action, it should be precluded from claiming that a cause of action for inverse condemnation accrues before the city commences an action. It would be intolerable for the city to claim that it can oust persons in possession without commencing condemnation proceedings and without compensation because an inverse condemnation occurred more than six years theretofore with the result that the city already owns the property so inversely condemned.

If the city would be precluded — as clearly it must — from making such a claim as to persons in possession (not foreclosed for nonpayment of taxes), we see no reason why a like preclusion should not bar the city from asserting the statute of limitations as a defense against persons who own adjoining and nearby parcels foreclosed for taxes. It is again pertinent that the cause of action for inverse condemnation accrues or should be deemed to accrue for all parcels similarly affected at the same time.

Just as a government entity may not zone property to avoid the payment of just compensation for a taking, see, e.g., Sneed v Riverside County, 218 Cal App 2d 205; 32 Cal Rptr 318 (1963), and a mortgagor cannot, at a mortgage foreclosure sale, acquire title to land free of the lien of the mortgage, see Osborne, Mortgages (2d ed, 1970), § 177, p 304, equity should bar a city from acquiring as the result of foreclo*508sure for nonpayment of taxes land it plans to condemn, free of the lien of the obligation to pay just compensation.

It could be argued that the parties’ stipulation that a taking occurred before the foreclosure establishes the accrual date for their cause of action. However, while the stipulation that there had been a de facto taking may be determinative that the plaintiffs suffered damages resulting from inverse condemnation prior to the loss of the property for nonpayment of taxes, it does not necessarily determine when the cause of action for inverse condemnation accrued.

Although the parties stipulated that the plaintiffs’ parcels had been inversely condemned before the expiration of the right of redemption, it does not follow that the continuing wrong had ceased. By the stipulation, the parties were apparently seeking to establish that the plaintiffs had suffered a compensable wrong and, thus, had acquired a *509personal right of action for inverse condemnation before they lost their property by foreclosure for nonpayment of taxes. While they may have intended the stipulation to cover the extent of the damages, i.e., whether the entire property had been taken or only part of it, their intent in that regard does not clearly appear.