Opinion
Docket No. 151606.
Submitted May 10, 1995, at Detroit.
Decided August 8, 1995, at 9:20 A.M. Leave to appeal sought.
John J. Giannini, for the plaintiffs.
Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, and Patrick F. Isom and Thomas P. Scallen, Assistant Attorneys General, for the defendant.
Plaintiffs appeal from an order of the Court of Claims granting summary disposition in favor of defendant of plaintiffs' inverse condemnation claim. We reverse.
Plaintiffs are the owners of real property located in the City of Warren near a portion of the I-696 expressway. Plaintiffs allege that the construction of the highway near their home has diminished the value of their property due to increased noise, pollution, dirt, and vibration. Plaintiffs' complaint also alleges that their property is particularly burdened from the expressway by the location of a service drive immediately adjacent to the front of the residence, creating an additional burden on the property. The trial court dismissed plaintiffs' claim for compensation, although it noted that there wasn't "any question that these people have suffered an intrusion," and concluded that the highway was "built for the common good" and that plaintiffs should be denied compensation as a matter of public policy. We disagree with the trial court's analysis.
It has long been recognized that a diminution in the value of property where there is no direct invasion of the property does not result in a taking that requires compensation. See Richards v Washington Terminal Co, 233 U.S. 546, 554-558; 34 S Ct 654; 58 L Ed 1088 (1914). However, that principle is founded upon necessity and is limited accordingly, and compensation will be due where the burden to the property goes beyond the incidental injuries that would normally be attendant and shared generally by the property owners whose lands lie within the range of inconveniences. Id.
In Richards, the Court addressed the construction of a railroad, distinguishing between the inconveniences normally attendant to property located near a railroad track and those located by a railroad tunnel, which posed additional, peculiar burdens. Similarly, this Court concluded that compensation could be due to property owners in the neighborhood of an airport where the air traffic caused unbearable noise and property damage to nearby land. See Standen v Alpena Co, 22 Mich. App. 416; 177 N.W.2d 657 (1970).
In addition to trains and planes, the automobile has been considered by our Supreme Court, which concluded that compensation was due a property owner where his property was burdened by a change in incline on a road passing by his farmland. Thom v State Hwy Comm'r, 376 Mich. 608; 138 N.W.2d 322 (1965). The following observation of the lead opinion in Thom is particularly noteworthy:
While we might well agree that society's interests are paramount to the individual's insofar as the latter may not, for his own convenience, prohibit a grade change, we do not agree with the Grigg Hanna [ Lumber Box Co v State Hwy Comm'r, 294 Mich. 346; 293 N.W. 675 (1940)] Court's ruling that society may justly benefit itself at the expense of an individual by failing to compensate him for damage done to him in order to procure society's benefit. As Mr. Justice POTTER, who wrote for the Court in the first Grigg Hanna Case, said in his earlier concurring opinion in James S Holden Co v Connor [ 257 Mich. 580, 596; 241 N.W. 915 (1932)]:
"It has always been a basic principle of the law that 'If the work is of great public benefit, the public can afford to pay for it.' Eaton v Railroad Co, [ 51 N.H. 504, 518; 12 Am Rep 147 (1872)]." [ Thom, supra at 623.]
In the case at bar, plaintiffs have argued that their property is unduly burdened by the expressway, in particular by the location of the service drive immediately adjacent to the residence. The trial court, however, did not dismiss plaintiffs' claim because it believed there was not sufficient evidence to establish that plaintiffs' property was burdened, indeed it even acknowledged that plaintiffs had suffered an intrusion because of the highway, but rather it dismissed the case because it believed that "there is a certain burden that each of us must bear," that "we all use that highway" and it was "built for the common good." However, as Justice POTTER said in Connor, supra, if the public work is a public benefit, then the public should pay for it.
For the above reasons, we conclude that the trial court erred in dismissing plaintiffs' claim without affording them an opportunity to establish that their use and enjoyment of their property has been detrimentally affected to a degree greater than that of the citizenry at large in conjunction with the normal use of a highway. If they can so establish, then they are entitled to compensation for the reasons and principles set forth in Richards, supra. See also United States v Causby, 328 U.S. 256, 260-262; 66 S Ct 1062; 90 L Ed 1206 (1946).
Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction. Plaintiffs may tax costs.