Mary Massaron Ross (P43885) | Plunkett & Cooney | 535 Griswold Suite 2400 | Detroit MI 48226 | 313-983-4801

An unconstitutional taking must rest on more than claimed damage to a seawall that did not amount to a permanent deprivation or invasion of property and did not result from government conduct directly aimed toward the property. To demonstrate a taking, the property owner must show that the government abused its legitimate powers by engaging in conduct directly aimed toward the plaintiff s property, which
had the effect of limiting its use. The Muskegon Conservation Club has not come close to satisfying this demanding test. The Club did not plead, and could not prove, a practical ouster of possession. At best, it alleged a temporary and partial invasion of the land that is “merely an injury” to small portions of the property, not a permanent invasion that deprives the Club of the substantial value of its possession. Thus, no takings rationale can be used to provide support for the judicially created exception to trespass nuisance.

Michigan Court of Appeals:
In this inverse condemnation action, defendant appeals as of right a judgment in favor of plaintiff entered by the trial court following a jury trial. Because we conclude that plaintiff’s proofs failed to establish a de facto taking, we vacate the judgment entered by the trial court and remand this matter for entry of an order dismissing the action.

In 1951 plaintiff granted defendant an easement across its property to install a storm sewer drain. This drain was extended at the request of plaintiff in 1965 because plaintiff was constructing a marina basin that altered the shoreline in the area of the easement. Because of a drop in elevation and the necessity of negotiating the extended drain line over existing utility pipes and under a railroad track, defendant installed a concrete sump at the terminus of the existing line to collect water during heavy rains. The sump was designed with a grated opening at its top to allow for the discharge of storm water into the surrounding area if it filled beyond its capacity. Plaintiff gave its approval to install the sump “in accordance with the plans and specifications prepared by” defendant’s engineer by way of a written agreement executed by the parties in July 1965. Ten years later, plaintiff installed a wooden seawall in which a hole accommodating the storm sewer discharge pipe was cut. Over time the wooden sea wall deteriorated and was replaced in a piecemeal fashion throughout the mid-1980s and early 1990s, with a sheet metal seawall that was placed adjacent to the original wooden seawall. A hole was again cut in the sheet metal wall for the storm water drainage pipe. According to plaintiff the sump performed without incident until 2001, when it began to periodically overflow excessive amounts of water. As designed, the excess storm water drained across plaintiff’s property. At trial, plaintiff maintained that this excess storm water drainage eroded its property along the shoreline and undermined its sheet metal seawall. Plaintiff claimed damages for the attempted repairs to the sheet metal seawall and to permanently replace it with one that would withstand the water overflowing from the sump, which it asserted constituted a de facto taking of its property by defendant. The jury apparently agreed and rendered a verdict in plaintiff’s favor. This appeal ensued.