Disappearing Lakes Ass'n v. Department of Natural Resources

R. B. Martin, J.

Plaintiffs commenced an action against the State of Michigan and the Department of Natural Resources in the Court of Claims. They commenced another action against the township, the county, and other municipal boards and individuals in circuit court in Oakland County. We are here concerned solely with the State of Michigan and the Department of Natural Resources. We will refer to them as the defendant, as the state acted through its department.

In August, 1979, the defendant moved to dismiss or alternatively for a summary judgment on the grounds plaintiffs did not state a claim on which relief could be granted and on the additional grounds that the defendant was protected by governmental immunity. The circuit judge sitting in the Court of Claims denied the motion.

*63On May 14, 1980, plaintiff moved to join the two actions. On June 12, 1980, the defendant moved for accelerated judgment on several grounds. One was that the complaint failed to plead facts establishing negligence, nuisance, or violation of any statute. Another was the defense of governmental immunity from liability in tort, and plaintiffs failure to plead facts showing any recognized exception to governmental immunity.

The same circuit judge heard these motions on October 29, 1980, and on January 6, 1981, he filed an opinion and order granting the motion to join and reserving to the defendant the right to raise and argue the motion for accelerated or summary judgment before the circuit court.

On April 17, 1981, defendant filed a motion for accelerated judgment and a motion for summary judgment. These were heard by an Oakland County circuit judge on July 2 and July 16. The judge denied the motion for accelerated judgment and granted the motion for summary judgment on the basis of governmental immunity. He found the plaintiffs had not pled facts sufficient to establish the nuisance exception to the doctrine of governmental immunity. This appeal followed.

We look at the complaint against the state and its department. Count I is entitled "Nuisance”. It alleges: Plaintiffs own property around Square Lake and Little Square Lake in Oakland County and suffered economic loss because of the defendant’s conduct. From June, 1966, to 1976, the department issued permits for dredging canals south of Lake Orion and immediately north of plaintiffs’ property. By reasons of the issuance of such permits, dredging occurred. The dredging caused a lowering of the water level in plaintiffs’ two lakes. The department did not carry out the *64mandates of the statute in issuing the permits. It further states:

"14. That the defendants’ issuance of the permits to dredge negligently and/or intentionally created a nuisance by causing the waters of Square Lake and Little Square Lake to recede, and that said conditions constitute a nuisance per se or a public nuisance.
"15. That as a direct and proximate result of the aforesaid creation of a nuisance by defendant the ground water flow feeding Square Lake and Little Square Lake was disrupted, causing the water of said lakes to recede.
"16. That as a direct and proximate consequence of the creation of a nuisance by the above-named defendant, plaintiff and the class they represent have suffered and will continue to suffer personal injury, economic loss, property damage and depravation of use and enjoyment of property impairment of physical health and mental distress.”

Count II set forth nine areas where plaintiffs claim the defendant was negligent or grossly negligent in actions leading to the issuance of the permit.

The first question is whether or not defendant is protected by governmental immunity. This doctrine has been buffeted about by the courts and the Legislature, but still stands firm in some areas as far as the Legislature is concerned. MCL 691.1407; MSA 3.996(107):

"Except as in this act otherwise provided, all governmental agencies shall be immune from tort liability in all cases wherein the government agency is engaged in the exercise or discharge of a governmental function, except as otherwise provided herein, this act shall not be construed as modifying or restricting the immunity of the state from tort liability as it existed heretofore, which immunity is affirmed.”

*65The Michigan Supreme Court has divided on what may be defined as exercising or discharging a governmental function. Parker v City of Highland Park, 404 Mich 183; 273 NW2d 413 (1978), and Perry v Kalamazoo State Hospital, 404 Mich 205; 273 NW2d 421 (1978). We hold the issuance of a permit to channel into navigable waters is a governmental function under all the definitions. A look at the purpose of the statute giving the department the authority to grant permits clearly indicates the power is "of essence to governing”. It is the type of activity governments assume when public waters and areas are exposed to dangers and controls must be exercised for the benefit of the whole. Certainly, private individuals or corporations would not have the interest, power, or ability to issue or deny issuance of permits with the public welfare in mind. It is a process only the government can effectively accomplish. If channeling must be controlled for the common good, it must be done by the government and not by private individuals. This activity is protected by the doctrine of governmental immunity.

Do the facts here create an exception to the doctrine? Appellants claim they have alleged sufficient facts to make out an intentional nuisance, thus taking the case out of the protection of governmental immunity.

The nuisance exception to the immunity doctrine is a morass. It is a word chosen by courts to avoid the harshness of some legal principles without really casting those principles out. Recall what attractive nuisances did to the law of negligence in cases involving injured children. Trace the evolution of nuisance as a growing defense to governmental immunity.

The most recent cases dealing with nuisance as *66a defense to governmental immunity are: Rosario v City of Lansing, 403 Mich 124; 268 NW2d 230 (1978); Gerzeski v Dep’t of State Highways, 403 Mich 149; 268 NW2d 525 (1978); Stemen v Coffman, 92 Mich App 595; 285 NW2d 305 (1979); Shunk v Michigan, 97 Mich App 626; 296 NW2d 129 (1980); Davis v Detroit, 98 Mich App 705; 296 NW2d 341 (1980); Hoeppner v Dep’t of Labor, 104 Mich App 334; 304 NW2d 841 (1981).

Rosario and Gerzeski are basic to any understanding of Michigan’s position on nuisance. In those two cases, Justices Fitzgerald, Kavanagh, and Levin held nuisances per se and nuisances in fact were both defenses to governmental immunity. Justices Moody and Williams felt nuisances per se were a defense. However, in their opinion, nuisances in fact could be divided into two categories, negligently created nuisances and intentionally created nuisances. Only the latter were effective to bar the defense of governmental immunity. As Justice Moody said in Rosario v City of Lansing, supra, p 142:

"In order to find an intentional nuisance, the trier of fact must decide based upon the evidence presented that the governmental agency intended to bring about the conditions which are in fact found to be a nuisance.”