Trespass and nuisance actions dismissed due to expired statute of limitations

Holding that the statute of limitations began to accrue in 2006, when the act and the injury first occurred with the drainage ditch expansion, the court concluded that the plaintiff’s 2011 trespass and nuisance action was untimely. Thus, it reversed the trial court’s order denying the defendants’ summary disposition motion based on the statute of limitations and remanded for entry of an order in their favor. Plaintiff purchased a parcel of real property in 1995 via land contract from the individual defendants. He alleged that in 2006, they expanded a drainage ditch and installed drain equipment on his property as part of a parking lot expansion. Plaintiff alleged that he did not become aware of defendants’ actions until the summer of 2009. He then notified them of the wrongful trespass and requested that they remove the expanded drain, curb, shed, and debris encroaching his property. When they did not remedy the situation, he filed this action. Defendants argued that plaintiff’s action was time-barred, and the court agreed. It noted that it “explicitly stated in Froling Trust that ‘the common-law continuing wrongs doctrine in the jurisprudence of this state, including in nuisance and trespass cases,’ is ‘completely and retroactively abrogated.'” However, another panel of the court, in Taylor Land Group (which the trial court relied on), held that “the continued presence of a pipeline on the plaintiff’s property was a continuing physical intrusion and did not fall within the definition of a continuing wrong, which only applied to continuing effects of a past trespassory act.” The court held that this conclusion “was based on an erroneous interpretation of the continuing wrongs doctrine.” Because “the continuing wrong doctrine has been abolished, a plaintiff cannot avoid the statute of limitations where the damage consists of continual tortious acts that are characterized as ‘continuing violations,’ in other words, a continuing wrong.” The record showed that the 2006 expansion of the drainage ditch was what caused the increase of storm water runoff to occur. The “wrongs” all related to events that occurred at the time of construction. Whether the presence of the expanded drainage ditch and increased storm water runoff were viewed as harmful effects of a past act or as continual tortious acts, plaintiff’s claim was still time-barred. Further, his reliance on MCL 600.5855 was misplaced as it did not apply here, and while he alleged that he did not discover the expanded drainage ditch until 2009, “the discovery rule has also been abolished and cannot save plaintiff’s claim.”