(dissenting). I respectfully dissent.
To avoid the barrier of governmental tort immunity, the plaintiff who has suffered injury at the hands of a governmental agency is required to neatly fit his case into one of the few, narrow exceptions to the rule. Unfortunately, the tragic deaths with which we are herein concerned did not occur within a factual framework which clearly fits one of the exceptions. Nevertheless, I believe that the combination of factual circumstances surrounding this case requires affirmance of the trial court.
*101I.
The crucial facts established in the lower court are as follows:
1. The borrow pit was intentionally located in line with an existing drain so that it would fill with water.
2. The drownings occurred at the point where the warmer water from the drain enters the pond causing the existence of thin ice.
3. The borrow pit was located in an area in which many families with minor children lived.
4. The pit was adjacent to and in clear sight of the highway and another road.
5. The policy of the Highway Department relative to borrow pits was stated to be, in part:
"[Generally, deep excavation should be limited to pits located out of sight of the highway.
"At the time the decision is reached to excavate a borrow pit below the drainable elevation, as outlined above, the District Engineer should so advise the Excess Property Section of the Procurement Division in Lansing. Such notice should give the description of the property and also the approximate date that excavation will be completed. This advance notice will permit formulation of plans to sell the property at the earliest possible date after the removal of borrow is completed.
"It is imperative both to the Department and the public at large that the policy and procedure be followed in order that liability for personal injury or possibly death be avoided. Children particularly are inclined to play near these pits and on numerous occasions swim in them, and the fence around these pits, or *102signs, mean little if anything in the way of a deferent [sic].”1
6. After completion of the borrow pit, no fence was put around it and no warning signs maintained.
7. The pit was in fact used for recreational purposes including swimming, fishing, boating and snowmobiling.
The trial judge found that the pond constituted an attractive nuisance; that it was an "irresistible attraction to young children”. School buses passed by the pond within clear view twice a day. There was a floating raft on the pond. There was a pathway leading from the roadway to the pond. In light of these facts, the trial judge found that the Highway Department was grossly negligent in not fencing and posting the pond. The judge also found that in winter, the weakness in the ice caused by the flow of water from the drain constituted a natural trap for the unwary.
II.
As the majority points out, the nuisance created by defendants falls between a nuisance per se, to which governmental immunity is not a defense, and a nuisance based on negligence, to which governmental immunity is a defense. I can find no case law determinative of the issue whether or not governmental immunity is a defense to an action based on intentional nuisance, as we have in this case. It is my contention that the intentional actions taken by the Highway Department in this case and the lack of due care exercised by the *103department were so culpable as to make the imposition of governmental immunity unconscionable.
III.
I must also comment on the majority’s interpretation of Buckeye Union Fire Insurance Co v Michigan, 383 Mich 630; 178 NW2d 476 (1970). I do not read Buckeye as a mere extension of the nuisance-trespass cases. The Court in Buckeye went to great lengths to work around governmental immunity in a simple nuisance-in-fact factual setting. The employment of a constitutional provision to "outrank” the Legislature-created immunity created a sizeable gap in the doctrine. Taking the position that Buckeye represents a "loophole” in the governmental immunity doctrine, I must agree with the plaintiffs’ argument that the constitutional provision that no citizen shall be deprived of life without due process of law should take no lesser rank than the provision relied upon in Buckeye.
"When the Commonwealth or a municipal corporation, whether acting in its governmental or proprietary capacity, seizes or damages the property of a citizen for public good, compensation, under a constitutional mandate (Const §§ 6 and 58), must be made to the owner. Common justice demands that the right to be safe in life and limb should be as sacred to the citizen as his property rights. The rule that results in this unfairness of the community group to the individual citizen has become apparent to many courts, hence the tendency of all recent decisions is not to extend the immunity of municipalities.” Hoggard v City of Richmond, 172 Va 145; 200 SE 610, 615 (1939).
I would affirm.
July 9, 1964, State Highway Department memo from the Director of Procurement Division to Excess Property Section Personnel.