Summary
holding that "[t]he existence of the Inland Lakes and Streams Act [subsequently recodified as Part 301 of NREPA] does not preclude plaintiff's common law remedies"
Summary of this case from Manos Props. v. BirgbauerOpinion
Docket No. 71217.
Decided March 21, 1984.
Gregory R. Bosma, for plaintiff. Siegel, Hudson, Gee, Shaw Fisher (by James H. Fisher), for defendant.
Plaintiff appeals as of right from an order of summary judgment entered for defendant.
Defendant is a nonprofit corporation consisting of residents of Algonquin Lake. The level of the water of the lake is controlled by a dam operated by defendant. In 1978, 1979, and 1980, defendant obtained permits from the Michigan Department of Natural Resources (DNR) for the purpose of lowering the lake. No permit was issued in 1982, but defendant opened the dam to lower the lake on or about November 30, 1982.
Plaintiff runs a gravel business located approximately one-fourth of a mile from Algonquin Lake. He uses 1,000 gallons of water per minute to wash his gravel. The water comes from the subterranean waters under and around Algonquin Lake through plaintiff's well.
When the 1982 lowering began, plaintiff obtained a restraining order preventing a further lowering. Plaintiff filed an amended complaint for damages, alleging that the 1980 lowering caused him to replace his well at a cost of $5,000 and interrupted his business. Plaintiff sought damages for defendant's alleged unreasonable interference with plaintiff's right to use nearby subterranean water. The trial court dismissed plaintiff's complaint for failure to state a claim for which relief can be granted, GCR 1963, 117.2(1).
In Partrich v Muscat, 84 Mich. App. 724, 729-730; 270 N.W.2d 506 (1978), this Court stated the test employed in reviewing summary judgments under GCR 1963, 117.2(1):
"The standard governing this Court's review of a grant or denial of a motion for summary judgment based on GCR 1963, 117.2(1) is well settled. The motion is to be tested by the pleadings alone. Todd v Biglow, 51 Mich. App. 346; 214 N.W.2d 733 (1974), lv den 391 Mich. 816 (1974). The motion tests the legal basis of the complaint, not whether it can be factually supported. Borman's, Inc v Lake State Development Co, 60 Mich. App. 175; 230 N.W.2d 363 (1975). The factual allegations of the complaint are taken as true, along with any inferences or conclusions which may fairly be drawn from the facts alleged. Unless the claim is so clearly unenforceable as a matter of law that no factual development can possibly justify a right to recover, the motion under this subrule should be denied. Crowther v Ross Chemical Manufacturing Co, 42 Mich. App. 426; 202 N.W.2d 577 (1972)."
The issue before this Court is whether plaintiff has a cause of action against defendant for injury suffered in 1980 when defendant, with the permission of the DNR, opened a dam under defendant's control. Plaintiff claims that defendant breached its duty to use the lake waters in a reasonable manner, consistent with the rights of nearby subterranean water users when, aware that lake lowerings affected the subterranean water level, defendant nonetheless obtained permits in 1978, 1979, and 1980 to lower the lake level.
Defendant's permit was obtained pursuant to the Inland Lakes and Streams Act of 1972, MCL 281.951 et seq.; MSA 11.475(1) et seq. Pursuant to this act, the DNR has authority to issue a permit if it finds that the proposed action will not adversely affect the public trust or riparian rights. The statute directs the DNR to "consider the possible effects of the proposed action upon the inland lake or stream and upon waters from which or into which its waters flow and the uses of all such waters, including uses for recreation, fish and wildlife, aesthetics, local government, agriculture, commerce and industry". MCL 281.957; MSA 11.475(7). A person aggrieved by any action or inaction of the DNR may request a formal hearing on the matter. MCL 281.961; MSA 11.475(11).
Since defendant opened the dam in 1980 only after obtaining a permit from the DNR, we do not address the issue of whether an aggrieved party would have either a statutory or common-law cause of action against a defendant's unauthorized action.
The existence of the Inland Lakes and Streams Act does not preclude plaintiff's common-law remedies. MCL 281.957; MSA 11.475(7) specifically provides that the act "shall not modify the rights and responsibilities of any riparian owner to the use of his riparian water" (emphasis added). Furthermore, the DNR's approval does not ipso facto make defendant's actions reasonable under the circumstances. Pierce v Riley, 81 Mich. App. 39, 46; 264 N.W.2d 110 (1978). Therefore, if plaintiff's complaint sufficiently set forth a common-law cause of action, summary judgment was inappropriate.
Plaintiff correctly asserts that defendant would be liable for injury caused by defendant's unreasonable intentional interference with the subterranean water supply. Maerz v United States Steel Corp, 116 Mich. App. 710, 719-720; 323 N.W.2d 524 (1982). However, plaintiff does not allege that defendant used or withdrew subterranean waters. Instead, defendant, by opening the dam, merely returned Algonquin Lake to its natural level.
In Goodrich v McMillan, 217 Mich. 630; 187 N.W. 368 (1922), certain cottage owners on an impounded lake brought suit against the owner of a dam which had fallen into disrepair, allowing the level of the water to recede. The defendant had acquired his flowage rights by prescription. The Court rejected the plaintiffs' contention that they had a reciprocal right to have the water maintained at an artificial level.
Goodrich established the rule that ownership of a dam does not impose a duty on the dam owner to maintain the water at the artificial level created by operation of the dam. Those injured by the water's returning to its normal level might maintain an action, however, upon showing that they, themselves, had acquired a prescriptive right to maintenance of the artificial level. Id., p 634.
Plaintiff has failed to allege facts showing that he had acquired a prescriptive right to maintenance of the lake at an artificial level, i.e., plaintiff does not allege a continuous and uninterrupted use of a specific lake level pursuant to a claim of right adverse to the riparian owners, known to and acquiesced in by them. Roberts v Wheelock, 237 Mich. 689, 690; 213 N.W. 72 (1927). Plaintiff's general allegation that defendant knew that lowering the lake affects the subterranean water level does not establish a prescriptive right to maintenance of the lake at a particular level.
Goodrich v McMillan, supra, was followed in Drainage Board v Village of Homer, 351 Mich. 73; 87 N.W.2d 72 (1957), where the owner of a dam was allowed to destroy the dam over the complaints of the riparian landowners that lowering the impoundment would diminish their ability to use subsurface water for irrigation. The Court stated that the riparian owners were "continuously charged, by the very fact of the dam and its gates, with notice that the pond is artificial distinguished from natural and that its level may by the owner be lowered or returned to natural state at any time". Id., p 82.
Plaintiff was similarly charged with notice that defendants, acting with permission of the DNR, might periodically open the dam and lower the level of Algonquin Lake. If plaintiff felt aggrieved by the opening of the dam, plaintiff could have requested a hearing with the DNR. Otherwise, on the facts set forth in plaintiff's complaint, defendant did not breach any duty owed to plaintiff when it opened the dam. The trial court properly dismissed plaintiff's complaint.
Affirmed.