Bronson v. Oscoda Township

Sawyer, J. This matter is again before us for decision on remand from the Supreme Court. This time, however, we affirm the trial court’s grant of summary disposition. *681 Plaintiff was swimming in Lake Huron with a friend. At one point, both made a shallow dive. Plaintiff hit a sand bar and was flipped over on his back. As a result of the diving incident, plaintiff has been rendered a quadriplegic. Defendant maintains a pier near the area of the diving accident. Plaintiffs expert opines that the pier has a significant influence on the shoreline and bottom of the lake. Thus, plaintiff maintains that defendant’s pier is responsible for the formation of the sand bar and, therefore, constitutes a nuisance. In our original opinion, we upheld the trial court’s grant of summary disposition on the ground of governmental immunity with respect to the public building 1 and the highway 2 exceptions to governmental immunity. Bronson v Oscoda Twp, 165 Mich App 431, 434; 419 NW2d 27 (1988). We did, however, reverse the trial court’s grant of summary disposition on the ground that plaintiff had stated a potentially meritorious claim sounding in intentional nuisance. Id. at 435. The Supreme Court thereafter remanded the matter to this Court for reconsideration in light of Hadfield v Oakland Co Drain Comm’r, 430 Mich 139; 422 NW2d 205 (1988). Bronson v Oscoda Twp, 430 Mich 883; 423 NW2d 574 (1988). On remand, we again reversed the grant of summary disposition with regard to the issue of intentional nuisance. Bronson v Oscoda Twp (On Remand), unpublished opinion per curiam of the Court of Appeals, decided October 24, 1988 (Docket No. 109336). Thereafter, the Supreme Court again remanded the matter to us for reconsideration, this time in light of Li v Feldt (After Remand), 434 Mich 584; 456 NW2d 55 (1990). 435 Mich 852 (1990). Plaintiff moved to file a supplemental brief rais *682 ing the issue of trespass nuisance, which motion we granted. We also ordered the parties to address the issues of the existence of public-nuisance and nuisance-per-se exceptions to governmental immunity and, if such exceptions exist, their applicability to the case at bar. In plaintiffs brief filed pursuant to our order, plaintiff concedes that a nuisance per se is not present in this case. Further, we recently decided that public nuisance is an exception to governmental immunity. Li v Feldt (On Second Remand), 187 Mich App 475; 468 NW2d 268 (1991). Accordingly, we need only determine whether plaintiff has a viable claim under either the trespass-nuisance or the public-nuisance exception to governmental immunity. 3 For the reasons expressed below, we conclude that plaintiffs claim is not viable under either of those exceptions and, therefore, we now affirm the grant of summary disposition on the ground of governmental immunity. The Supreme Court recognized the existence of the trespass-nuisance exception to governmental immunity in Hadñeld, supra. The plurality opinion summarized the early trespass-nuisance cases as follows: Generalizing from these early cases, it appears that where an invasion or intrusion onto a plaintiff’s land occurred, the defendants were often found liable, regardless of whether the municipality acted directly, through an order perhaps, or whether its agents acted intentionally or negligently to produce the invasion. [Id. at 161.] The Court did recognize that the plaintiff does not *683 necessarily need to be the property owner, but reemphasized the need for an invasion onto private property: Although Herro [v Chippewa Co Road Comm’rs, 368 Mich 263; 118 NW2d 271 (1962)] emphasized the "taking” rationale and the need for some invasion of a private property interest, the plaintiff in Herró was merely a visitor on the land. Therefore, Herró makes clear that the plaintiff in an action claiming the trespass-nuisance exception need not be the owner of the land on which the invasion occurs. [Id. at 164.] In the case at bar, there was no intrusion onto private land. Rather, any intrusion was onto the bottom lands of Lake Huron. 4 Accordingly, there was no invasion of a private property interest and, therefore, the trespass-nuisance exception to governmental immunity is inapplicable. We now turn to the issue whether the case at bar comes within the public-nuisance exception to governmental immunity as recognized in Li (On Second Remand), supra. 5 Application of the public-nuisance exception to the instant case is more *684 problematic than was the case with the trespass-nuisance exception. Prosser & Keeton, Torts (5th ed), §90, p 643, describes a public nuisance as follows: No better definition of a public nuisance has been suggested than that of an act or omission "which obstructs or causes inconvenience or damage to the public in the exercise of rights common to all Her Majesty’s subjects.” The term comprehends a miscellaneous and diversified group of minor criminal oifenses, based on some interference with the interests of the community, or the comfort or convenience of the general public. Public nuisance includes interference with the public health, the public safety, the public morals, the public peace, the public comfort, and the public convenience in travel. Id. at 643-645; see also Li (On Second Remand), at 488-489. Public nuisance is described in 4 Restatement Torts, 2d, § 821B, p 87, as follows: (1) A public nuisance is an unreasonable interference with a right common to the general public. (2) Circumstances that may sustain a holding that an interference with a public right is unreasonable include the following: (a) Whether the conduct involves a significant interference with the public health, the public safety, the public peace, the public comfort or the public convenience, or (b) whether the conduct is proscribed by a statute, ordinance or administrative regulation, or (c) whether the conduct is of a continuing nature or has produced a permanent or long-lasting effect, *685 and, as the actor knows or has reason to know, has a significant effect upon the public right. Applying these principles to the case at bar, it might be argued that the sand bars interfere with the public’s right to use Lake Huron and, therefore, the pier, if it creates the sand bars, constitutes a public nuisance. However, we cannot say that the creation of sand bars constitutes an unreasonable, significant interference with the public’s right to safely and comfortably use Lake Huron. At most, the sand bars restrict the use of one small portion of the lake, making that area unsuitable for diving. This is hardly unreasonable in light of the vast expanse of Lake Huron, much of which is undoubtedly suitable for diving. Indeed, for that matter, there is naturally going to be areas of the lake unsuitable for diving, such as the shallow areas near the shore. Further, the sand bars do not render the entire lake, or even a significant portion of it, unsafe for recreational use. The only use which appears to be affected with respect to safety is that of diving. However, plaintiff could have, and should have, inspected the area before diving. Had he done so, he could have discovered the sand bar and moved his diving activities to a different location. Certainly the entire lake is not going to be suitable for all recreational uses. It is, therefore, not unreasonable that some small portion of the lake be rendered unsuitable for a particular use. Finally, there is no reason to conclude that the building of the pier itself was inappropriate. Although we do not know the exact reasons behind the building of the pier, it presumably was for the purpose of enhancing the enjoyable and safe recreational or commercial use of the lake. That is not itself activity which constitutes a nuisance. *686 For these reasons, we cannot conclude that the pier, despite the fact that it may have caused or influenced the formation of sand bars, constitutes an unreasonable or significant interference with the public’s right to use Lake Huron. Accordingly, it does not constitute a public nuisance. Therefore, plaintiff’s claim does not come within the public-nuisance exception to governmental immunity. Thus, we are now persuaded that the trial court correctly granted summary disposition. The trial court’s grant of summary disposition is affirmed. Defendant may tax costs on second remand. Maher, J., concurred. Cynar, P.J., concurred in the result only. Footnotes [1] MCL 691.1406; MSA 3.996(106). [2] MCL 691.1402; MSA 3.996(102). [3] We also directed the parties to brief the question whether the issue of nuisance exceptions other than intentional nuisance were properly before this Court. For the reasons expressed in Li (On Second Remand), supra at 478, we conclude that they are. [4] Generally, title to the bottom lands of the Great Lakes vests in the State of Michigan, held in trust for the public benefit, unless the land has been conveyed by the state or unless the United States government had patented the land to a private individual before Michigan’s admission to statehood. See People v Massey, 137 Mich App 480, 485; 358 NW2d 615 (1984), and People ex rel Director of Dep’t of Natural Resources v Murray, 54 Mich App 685, 687-688; 221 NW2d 604 (1974); see also Great Lakes Submerged Lands Act, MCL 322.701 et seq.; MSA 13.700(1) et seq. There is no indication in the case at bar that the bottom lands of Lake Huron in the area in question belong to anyone other than the State of Michigan. [5] In his second supplemental brief on appeal, plaintiff discusses a public-nuisance exception in the context of it being a mirror image, or subset, of the trespass nuisance, stating "there appears strong precedent for including this type of 'public nuisance’ within the trespass nuisance exception.” There are certainly some similarities between the two exceptions because public nuisances encompass what might be loosely characterized as a trespass onto public lands. See Hadfield, supra at 176; Pound v Garden City School Dist, 372 Mich 499; 127 *684 NW2d 390 (1964). However, as Li (On Second Remand) demonstrates, the public-nuisance exception is broader and is not a mirror image of the trespass-nuisance exception. Accordingly, plaintiffs view of the public-nuisance exception is restrictively narrow.