Daily Development for Thursday, April 6, 2000

By: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
randolphp@umkc.edu

TRESPASS; NOISE, VIBRATIONS AND DUST: Michigan court will not recognize a cause of action in trespass for airborne particulate, noise or vibrations.

Adams v. ClevelandCliffs Iron Co., 602 N.W.2d 215 (Mich. App. 1999).

A group of homeowners who lived near iron mine brought suit seeking damages in both trespass and nuisance, complaining of dust, noise and vibrations emanating from mine. The homeowners contended that blasting and other operations sent tremors through their property; deposited gritty and oily dust inside and outside their homes; aggravated the need to clean and repaint homes, replace carpets and drapes, repair cracks in masonry, etc.; had caused a diminution in the property value of their homes; and had also caused owners to suffer shock, nervousness and sleeplessness. Evidence at trial indicated that emissions from mining operations had consistently remained within air quality standards. The jury was unable to agree on a verdict on the nuisance claim, but found in favor of the majority of the homeowners in the trespass claim and awarded damages. The owner of the mine appealed.

Finding that this was a case of first impression in Michigan, the court of appeals declined to follow certain trends in trespass law (noting other jurisdictions' elimination of the requirement of intrusion by a tangible object, requirements of proof of damage, balancing of usefulness of offending activity, etc.) The court noted that the right to exclude others from one's property is distinct from the right to quiet enjoyment of one's property, thus giving rise to the distinct causes of action respectively of trespass and nuisance. Recovery for trespass to land in Michigan is available only upon proof of an unauthorized direct or immediate intrusion of a physical, tangible object onto land over which a plaintiff has right of exclusive possession.

Where a possessor is bothered by noise, vibrations, dust, smoke, etc., the possessory interest implicated in that of use and enjoyment rather than exclusion, and the vehicle through which a plaintiff should seek remedy is the doctrine of nuisance.

Comment: This is why we have the common law to make these tough calls and to adjust them in light of changing circumstances outside of the context of politics. The issue indeed is a tough one. People ought to be able to make reasonable use of their own properties, and their neighbors ought to tolerate the reasonable impacts of those uses. On the other hand, everyone should be absolutely free from outright physical intrusion onto their properties.

If we blur the line between physical intrusion and nonphysical "nuisance impacts," and view smoke as a trespass, we might think we're protecting the individual landowner more. But there will be at least two untoward consequences.

First, the same rule that operates as a "protection" now will serve to hamper that very landowner when later he decides to try to make new uses of his own land.

Second, and even more problematic, is the fact that future courts will find situations in which they identify a trespass because of the broad precedent, but feel uncomfortable enjoining it because, in the view of the individual judge, the trespass is not really "substantive." The result will be denial of injunction or the creation of other moderating legal doctrines that will gradually erode the protection from trespass generally.

A clear line here is the best policy. It gives absolute protection against most real physical intrusions. Those that are on the border are still addressed as nuisances, and the substantive character of the impact can be a factor in determining whether the conduct causing that impact indeed is a nuisance.

Readers are urged to respond, comment, and argue with the daily development or the editor's comments about it.

Items in the Daily Development section generally are extracted from the Quarterly Report on Developments in Real Estate Law, published by the ABA Section on Real Property, Probate & Trust Law. Subscriptions to the Quarterly Report are available to Section members only. The cost is nominal. For the last six years, these Reports have been collated, updated, indexed and bound into an Annual Survey of Developments in Real Estate Law, volumes 1‑6, published by the ABA Press. The Annual Survey volumes are available for sale to the public. For the Report or the Survey, contact Maria Tabor at the ABA. (312) 988 5590 or mtabor@staff.abanet.org

Items reported here and in the ABA publications are for general information purposes only and should not be relied upon in the course of representation or in the forming of decisions in legal matters. The same is true of all commentary provided by contributors to the DIRT list. Accuracy of data and opinions expressed are the sole responsibility of the DIRT editor and are in no sense the publication of the ABA.

Parties posting messages to DIRT are posting to a source that is readily accessible by members of the general public, and should take that fact into account in evaluating confidentiality issues.

ABOUT DIRT:

DIRT is an Internet discussion group for serious real estate professionals. Message volume varies, but commonly runs 5 ‑ 10 messages per workday.

Daily Developments are posted every workday.

To subscribe to Dirt, send an e-mail to:

To:	ListServ@listserv.umkc.edu
Subject:	[Does not matter]
Text in body of message	Subscribe Dirt [your name]

To cancel your subscription to Dirt, send an e-mail to:

To:	ListServ@listserv.umkc.edu
Subject:	[Does not matter]
Text in body of message	Signoff Dirt

For information on other commands, send the message Help to the listserv address.

DIRT has an alternate, more extensive coverage that includes not only commercial and general real estate matters but also focuses specifically upon residential real estate matters. Because real estate brokers generally find this service more valuable, it is named “Brokerdirt.” But residential specialist attorneys, title insurers, lenders and others interested in the residential market will want to subscribe to this alternative list. If you subscribe to Brokerdirt, it is not necessary also to subscribe to DIRT, as Brokerdirt carries all DIRT traffic in addition to the residential discussions.

To subscribe to Brokerdirt, send an e-mail to:

To:	ListServ@listserv.umkc.edu
Subject:	[Does not matter]
Text in body of message	Subscribe Brokerdirt [your name]

To cancel your subscription to Brokerdirt, send an e-mail to:

To:	ListServ@listserv.umkc.edu
Subject:	[Does not matter]
Text in body of message	Signoff Brokerdirt

DIRT is a service of the American Bar Association Section on Real Property, Probate & Trust Law and the University of Missouri, Kansas City, School of Law. Daily Developments are copyrighted by Patrick A. Randolph, Jr., Professor of Law, UMKC School of Law, but Professor Randolph grants permission for copying or distribution of Daily Developments for educational purposes, including professional continuing education, provided that no charge is imposed for such distribution and that appropriate credit is given to Professor Randolph, DIRT, and its sponsors.

DIRT has a WebPage at: http://www.umkc.edu/dirt/