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REAL ESTATE 2: Property dispute, intent is not required for a trespass.

In this suit, Plaintiffs and defendant own lake-front property on Lake Huron in Sanilac County. The properties are separated by a ravine that runs west to east. The ravine has water flow from the culvert under M25 that drains down into Lake Huron. Plaintiffs purchased their property approximately 30 years ago. Defendant purchased her parcel in 1992. At the time defendant purchased her property in 1992, there was a partial retaining wall on her property, which was used for erosion control.

Defendant hired a company to construct a 55-foot steel retaining wall to prevent further erosion. Defendant was concerned about the embankment on that part of the property and wanted to install a wall to prevent more erosion on the embankment. The wall was to join with the old wall that had already been in place. Plaintiffs alleged that defendant negligently installed the wall, which altered the flow of the creek and caused erosion and partial collapse of plaintiffs’ property adjacent to the ravine. Plaintiffs also alleged that part of defendant’s wall encroached onto plaintiffs’ property, which resulted in a trespass onto plaintiffs’ property.

The trial court held a two-day bench trial, plaintiff testified that before defendant installed the seawall, he never had a problem with erosion.  That the heavy equipment brought in to do the work and the equipment damaged the property and caused erosion.

The trial court found that defendant contacted a contractor to build the retainer wall because she was concerned with erosion. The trial court also found that the contractor was competent and obtained and complied with all of the necessary permits. According to the trial court, the contractor ensured that the wall was built on defendant’s property. As to the issue of protrusion onto plaintiffs’ property, the trial court found that contractor’s testimony showed that the base of the wall was constructed on defendant’s property and, although the top of the wall could have “leaned” onto plaintiffs’ property, there was no evidence to show that plaintiffs suffered damages.

With respect to the erosion on plaintiffs’ property, the trial court reasoned that there was no evidence that the wall caused any erosion. Instead, spring rain following the construction was the cause of the erosion and the rains have continued to cause erosion problems. The trial court found that plaintiffs’ erosion issues were caused naturally and plaintiffs took no remedial measures to stop the erosion. The court found no cause of action with respect to both plaintiffs’ negligence and encroachment/trespass claims.

To establish a cause of action for negligence, a plaintiff must prove the following four elements by a preponderance of the evidence:

(1) that defendant owed a legal duty to plaintiff,

(2) that defendant breached her duty,

(3) that plaintiff suffered damages, and

(4) that defendant’s breach was the actual cause and proximate cause of plaintiff’s damages.

 Plaintiffs did not prove any of these elements at trial.

In instances of trespass where injunctive relief and actual damages are not warranted, a plaintiff nevertheless is entitled to nominal damages.  Because a trespass violates a landholder’s right to exclude others from the premises, the landholder could recover at least nominal damages even in the absence of proof of any other injury.

Here, the evidence showed that defendant’s wall encroached onto plaintiffs’ property. Although plaintiffs were not entitled to the injunctive relief they requested, and although there was no evidence of actual damages, because there was a trespass, plaintiffs were entitled to at least nominal damages, however minor those damages may be. The appeals court remanded for entry of an award of nominal damages in favor of plaintiffs.

If you have a real estate dispute it is important to find a knowledgeable real estate lawyer and skilled trial lawyer.  Aldrich Legal Services represent clients in a wide range of real estate litigation, including:

  • Boundary disputes
  • Neighbor disputes
  • Purchase and sales disputes
  • Residential real estate disputes
  • Easement and access disputes
  • Nuisance and property use disputes

Contact Aldrich Legal Services

PROBATE 2: Can you remove a guardian that holds power of attorney?

Under the EPIC, a “suitable” guardian is one who is qualified and able to provide for the ward’s care, custody, and control. When a preponderance of the evidence weighs against the suitability of the ward’s current choice for guardian, the probate court must remove that person as guardian.

PROBATE 1: Probate court jurisdiction versus business court jurisdiction.

In this case involving a Living Trust, the husband, appeals as of right the probate court’s order granting partial summary disposition to their daughter. The order resolved claims relating to two family businesses, declared the wife disabled, and pursuant to the terms of the trust, removed the husband as successor trustee of the trust.

REAL ESTATE 3: Can you take your neighbor’s land by Adverse Possession?

To prevail on a claim of adverse possession, plaintiffs must show that they possessed the disputed property openly, adversely, exclusively, and continuously for at least 15 years. A party making an adverse possession claim can meet the time requirement by tacking their possessory period to that of their predecessors in interest with whom they are in privity of estate.

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