Author: LegalEase Solutions
An upstream municipality, in possession of a valid permit from the MDEQ, began discharging treated effluent through a municipal owned wetland, then eventually into a downstream wetland area located on private property. The owners of the downstream wetland now allege that their property has been flooded by the municipality without legal right and demand “a solution that restores the natural flow” to the wetland.
(I) POSSIBLE LEGAL CLAIMS OF A DOWNSTREAM PROPERTY OWNER AGAINST AN UPSTREAM MUNICIPAL CORPORATION ALLEGEDLY FLOODING THE DOWNSTREAM PROPERTY
(A) VALIDITY AND CONDITIONS OF THE PERMIT ISSUED BY MDEQ, TO THE UPSTREAM OWNER, FOR DISCHARGE OF TREATED EFFLUENT.
The defendant’s permit was issued pursuant to the National Pollution Discharge Elimination System (NPDES), established under 33 USC 1342. The NPDES is part of the Federal Water Pollution Control Act, commonly referred to as the Clean Water Act, 33 USC 1251.Under the water Resources Protection provisions of Michigan’s Natural resources and Environmental Protection Act (NREPA), MCL 324.3101; MSA 13A.3101, the DNR (now the Department of Environmental Quality-DEQ) is responsible for issuing NPDES permits in Michigan and ensuring that those permits comply with applicable federal law and regulations. Permits issued by the DEQ are subject to review by the federal Environmental Protection Agency. See 33 USC 1342(b).
The Michigan Department of Environmental Quality is vested with the authority to establish pollution control standards and to issue permits for point source discharges into the waters of the state. The department shall issue permits that will assure compliance with state standards to regulate municipal, industrial, and commercial discharges or storage of any substance that may affect the quality of the waters of the state. The department may set permit restrictions that will assure compliance with applicable federal law and regulations. The department may ascertain and determine for record and in making its order what volume of water actually flows in all streams, and the high and low water marks of lakes and other waters of the state, affected by the waste disposal or pollution of any persons. The department may promulgate rules and issue orders restricting the polluting content of any waste material or polluting substance discharged or sought to be discharged into any lake, river, stream, or other waters of the state. The department shall take all appropriate steps to prevent any pollution the department considers to be unreasonable and against public interest in view of the existing conditions in any lake, river, stream, or other waters of the state [MCL 324.3106].
As the instant matter deals with the discharge of treated effluent to the wetland with a valid permit granted under MCL 324.3106, it is necessary to examine whether the municipal corporation’s permit grants an unrestricted power. The statutory provisions, MCL 324.109 and 3112 and 1701 shed some light on the subject.
MCL 324.3109 provides:
(1) A person shall not directly or indirectly discharge into the waters of the state a substance that is or may become injurious to any of the following:
(a) To the public health, safety, or welfare.
(b) To domestic, commercial, industrial, agricultural, recreational, or other uses that are being made or may be made of such waters.
(c) To the value or utility of riparian lands.
(d) To livestock, wild animals, birds, fish, aquatic life, or plants or to the growth, propagation, or the growth or propagation thereof be prevented or injuriously affected; or whereby the value of fish and game is or may be destroyed or impaired.
(2) The discharge of any raw sewage of human origin, directly or indirectly, into any of the waters of the state shall be considered prima facie evidence of a violation of this part by the municipality in which the discharge originated unless the discharge is permitted by an order or rule of the department. If the discharge is not the subject of a valid permit issued by the department, a municipality responsible for the discharge may be subject to the remedies provided in section 3115. If the discharge is the subject of a valid permit issued by the department pursuant to section 3112, and is in violation of that permit, a municipality responsible for the discharge is subject to the penalties prescribed in section 3115.
Section 3112 reads in relevant part:
(1) A person shall not discharge any waste or waste effluent into the waters of this state unless the person is in possession of a valid permit from the department.
(3) The department shall condition the continued validity of a permit upon the permittee’s meeting the effluent requirements that the department considers necessary to prevent unlawful pollution by the dates that the department considers to be reasonable and necessary and to assure compliance with applicable federal law and regulations. If the department finds that the terms of a permit have been, are being, or may be violated, it may modify, suspend, or revoke the permit or grant the permittee a reasonable period of time in which to comply with the permit. The department may reissue a revoked permit upon a showing satisfactory to the department that the permittee has corrected the violation. A person who has had a permit revoked may apply for a new permit.
(4) If the department determines that a person is causing or is about to cause unlawful pollution of the waters of this state, the department may notify the alleged offender of its determination and enter an order requiring the person to abate the pollution or refer the matter to the attorney general for legal action, or both.
Section 1701 reads:
(1) The attorney general or any person may maintain an action in the circuit court having jurisdiction where the alleged violation occurred or is likely to occur for declaratory and equitable relief against any person for the protection of the air, water, and other natural resources and the public trust in these resources from pollution, impairment, or destruction.
(2) In granting relief provided by subsection (1), if there is a standard for pollution or for an antipollution device or procedure, fixed by rule or otherwise, by the state or an instrumentality, agency, or political subdivision of the state, the court may:
(a) Determine the validity, applicability, and reasonableness of the standard.
(b) If a court finds a standard to be deficient, direct the adoption of a standard approved and specified by the court.
The above-mentioned statutory provisions have been discussed elaborately in City of Brighton and Attorney General and Department Of Environmental Quality v Township Of Hamburg, 260 Mich. App. 345 (2004). In short, the statutory provisions clearly state that the discharge of effluent into the waters (i) can be done only with a valid permit and (ii) up to a reasonable limit. Michigan Courts have considered the issue of reasonableness in a series of decisions.
When the city of Ann Arbor challenged an order of the Washtenaw County Court that enjoined the city from issuing building permits because its sewage treatment facility violated the Michigan Environmental Protection Act of 1970 (Act) and the defendant developer challenged an order enjoining him from constructing anything but single-family homes on certain subdivision lots, it was held that to prove an affirmative defense under Mich. Comp. Laws § 691.1203 (Mich. Stat. Ann. § 14.528(203)), it must be shown that there is no feasible and prudent alternative to the defendant’s conduct and that such conduct is consistent with the promotion of public health, safety and welfare in light of the state’s paramount concern for the protection of its natural resources from pollution, impairment or destruction. The defendant’s evidence must demonstrate both elements of the defense. Establishing violations of discharge permit conditions is sufficient to constitute a prima facie case that the defendant’s conduct has, or is likely to pollute, impair or destroy the air, water or other natural resources or the public trust therein pursuant to Mich. Comp. Laws § 691.1203 (Mich. Stat. Ann. § 14.528(203)). Any pollutant discharged in the waste treatment effluent that exceeds those limitations is expressly made unlawful. 33 U.S.C.S. §1311(a). Once a discharge permit is issued, its conditions of effluent limitation set a point of demarcation above which a permit recipient may not lawfully emit pollutants from its treatment facility, Dwyer v City Of Ann Arbor, 79 Mich. App. 113 (1977).
In another case, the municipality constructed an embankment and dam that prevented a river from flowing in its natural channel, and when the waters broke down the embankment and flooded the railway company’s property, the railway company brought an action to recover for damages. When a municipality and a third person, by their concurrent wrongdoing, cause the water of a natural stream to set back, they are jointly and severally liable, and hence the person injured thereby may at his option bring suit against one or both of them. It was held that if the corporation has acquired a valid right to obstruct the waters of a natural stream, it must exercise due care and skill in constructing, and as well in maintaining the dam, so that no unnecessary damage shall be done to the property of riparian proprietors. This means that it must make provision, with reference to the strength and solidity of the structure, not alone for the ordinary and usual flow of the water, but also for such extraordinary floods as may reasonably be expected occasionally to occur. Grand Rapids & Indiana Railway Co. v Village Of Morley, 166 Mich. 66 (1911).
Flowing water, as well as light and air, are in one sense “publici juris.” They are a boon from providence to all, and differ only in their mode of enjoyment. The right to have a stream to flow in its natural state, without diminution or alteration, is an incident to the property in the land through which it passes. The first occupant may acquire an exclusive right to the flowing water, but that it is public and common in this sense only: that all may reasonably use it who have a right of access to it. A riparian owner must so use and apply the water as to work no material injury or annoyance to his neighbor below him, who has an equal right to the subsequent use of the same water. As all other owners upon the same stream have the same right, the right of no one is absolute, but is qualified by the right of the others to have the stream substantially preserved in its natural size, flow, and purity, and to protection against material diversion or pollution. This is the common right of all, which must not be interfered with by any. The use by each must, therefore, be consistent with the rights of the others, and the maxim of “sic utere tuo” observed by all. The rule of the ancient common law is still in force, “aqua currit et debet currere, ut currere solebat.” The question of reasonable use of water by a riparian owner is generally a question of fact; but whether the undisputed facts, and the necessary inferences therefrom, establish an unreasonable use, is a question of law. ‘The right of a riparian owner to have the water of a stream come to him in its natural purity is as well recognized as the right to have it flow to his land in its usual flow and volume, People v Hulbert,131 Mich. 156 (1902). See also Lewallen v City Of Niles, 86 Mich. App. 332; Bennett v Eaton Co., 340 Mich. 330, 336-337.
In another early case, the attorney general brought an action against the city on behalf of the township, claiming that the city’s practice of emptying sewage into the river contaminated its waters, filling the river with impurities which were carried downstream as it flowed to, into, or through the township. The court found that the city’s practice of depositing sewage into the river interfered with the property and personal rights of the persons affected. Undoubtedly the city has the right to make a reasonable use of the waters of the river as a riparian owner. The city may be treated as a riparian proprietor, and as such riparian proprietor it has no right to destroy the use of the water to other riparian proprietors, and it may not unreasonably increase the burden to lower riparian proprietors by carrying from a distance, by artificial means, refuse substances which would not be naturally deposited therein, thereby causing the pollution which would destroy the use of the water to the lower riparian owner. It was also held that necessity is no defense to unreasonable pollution of a watercourse. Attorney General, ex rel. Township Of Wyoming, v City Of Grand Rapids, 175 Mich. 503 (1913).
The relevance of prudent, safe alternative discharge options has also been discussed by Michigan courts more recently. Since 1944, Genesco had operated a leather tannery in the city of Whitehall that is located along the shores of White Lake in an area known as “Tannery Bay.” Other entities operated a tannery at the same site since 1865. These other entities discharged untreated tannery water into White Lake, but Genesco began a staged lagoon treatment operation and, in 1974, connected to the Muskegon wastewater treatment system. It is undisputed that the bottom of White Lake adjacent to Genesco’s tannerys, including its riparian bottomlands, is contaminated with various toxic chemicals as a result of historic tannery operations. It was held that what is to be considered is if there is no feasible and prudent alternative to defendant’s conduct and that if his or her conduct is consistent with the promotion of the public health, safety, and welfare in light of the state’s paramount concern for the protection of its natural resources from pollution, impairment, or destruction. Genesco v Michigan Department Of Environmental Quality, City Of Whitehall v Genesco, Inc., v State of Michigan and Michigan Department of Environmental Quality, 250 Mich. App. 45 (2002).
The statutory provisions and precedent establish that though the upstream owner can discharge treated effluent into the wetlands, the principle of reasonableness applies. In the instant matter, the outcome may turn on whether the upstream owner has been reasonable in its actions, and has complied with the provisions of the permit.
(B) TORTIOUS LIABILITY OF THE UPSTREAM PROPERTY OWNER FOR THE ACT OF FLOODING THE DOWNSTREAM OWNER’S PROPERTY
Michigan Courts have held that an upstream property owner can be held tortuously liable for the offences of trespass, negligence and nuisance. In Herro v Chippewa County Road Commissioners, 368 Mich. 263 (1962), the Plaintiff brought a suit for wrongful death, allegedly caused by an actionable trespass consisting of the break-through flooding of private property and complete destruction of a summer residence where plaintiff and decedent were visiting at the time of the tragedy. On appeal, the court, citing a prior decision, stated that a municipality was responsible for a direct act which caused water to flow upon the premises of another to his injury. Municipal corporations were not exempt from responsibility where the injury an individual received was a direct injury accomplished by a corporate act which was in the nature of a trespass upon him. The court held that plaintiff had pleaded an actionable cause. A municipality is responsible for a direct act which causes water to flow upon the premises of another to his injury. A city has no more right to invade or cause the invasion of private property than an individual. A municipality is responsible for a direct act which causes water to flow upon the premises of another to his injury. There may be a right of action where an injury results from a sewer, although built with all due care, and in strict conformity to the plan adopted by the council. Such liability is recognized where it is permitted to collect water and discharge it upon the lands of a private person, or where it backs up a drain and floods a cellar.
In Ruehs v Schantz, Dodge, 309 Mich. 245 (1944), The servient landowners were burdened with the natural flow of surface water from the lands of the dominant landowners, but the dominant landowners had no right acquired by prescription or consent. The dominant landowners started to construct a 4-inch tile drain on part of their lands to drain a wet spot on their land which at times was so saturated with water as to be untillable. The drain discharged water onto the lands of the servient landowners. It was held that while one has a right to drain and dispose of the surface water upon his land, yet he cannot lawfully concentrate such water, and pour it through an artificial ditch or drain, in unusual quantities and greater velocity, upon an adjacent proprietor.
In People v Hulbert 131 Mich. 156, the Court held:
A riparian owner must so use and apply the water as to work no material injury or annoyance to his neighbor below him, who has an equal right to the subsequent use of the same water. Nor can he, by dams or any obstruction, cause the water injuriously to overflow the grounds and springs of his neighbor above him. Any diversion or obstruction of the water which substantially diminishes the volume of the stream, so that it does not flow ut currere solebat, or which defiles and corrupts it to such a degree as essentially to impair its purity, and prevent the use of it for any of the reasonable and proper purposes to which running water is usually applied, such as irrigation, the propulsion of machinery, or consumption for domestic use, is an infringement of the right of other owners of land through which a water-course runs, and creates a nuisance for which those thereby injured are entitled to a remedy. An injury to the purity or quality of the water, to the detriment of other riparian owners, constitutes, in legal effect, a wrong and an invasion of private right, in like manner as a permanent obstruction or diversion of the water. It tends directly to impair and destroy the use of the stream by others for reasonable and proper purposes.
In Attorney General, ex rel. Township Of Wyoming, v City Of Grand Rapids 175 Mich. 503, the Court held:
If a city creates, or threatens to create, a public nuisance, particularly outside of its corporate limits, it is subject to the same rules as would be a private individual, particularly when in the creating of such nuisance it acts not in a governmental, but in a private capacity. There can be no prescriptive right to create a public nuisance. Where an unreasonable pollution of the water, amounting to a nuisance, or impairing the rights of the lower riparian proprietor, is created or maintained, an injunction will issue to restrain its continuance.
From the decisions on tortuous liability cited above, it appears that an argument might be mounted by the downstream owner that, by discharging effluent into the wetland, the upstream owner has trespassed into the downstream owner’s wetland property, and thereby caused nuisance to the latter.
(C) OTHER LEGAL CLAIMS THE DOWNSTREAM PROPERTY OWNER MAY ASSERT AGAINST THE UPSTREAM MUNICIPAL OWNER
Challenge to the validity of the permit: The downstream owner can challenge the validity of the permit possessed by the upstream owner and can claim that the same be reviewed by the Environmental Protection Agency for crossing the limits of reasonable use.
Objection under APA: The downstream owner can also raise objections to the grant of permit under Administrative Procedures Act (APA), 1969 PA 306, as amended, MCL 24.201 et seq.
Injunction: The downstream owner can file a motion for injunction to restrain the upstream owner from further discharge of effluents by arguing that his property is being flooded and destroyed; that the ecological balance is being destroyed by flooding the wetlands and his property and that the effluent released is beyond the permissible limits of quality and quantity thereby causing pollution, impairment and destruction of the wetlands and the adjoining property. The general rule is that the court will balance the benefit of an injunction to the plaintiff against the inconvenience and damage to defendant and grant an injunction or award damages as seems most consistent with justice and equity. Plaintiffs have to present evidence that they will suffer specific irreparable harm to their property for an injunction to be granted. See Kernen v Homestead Development Company, 232 Mich. App.503. In the light of the decision in Dwyer v City Of Ann Arbor, supra, and Genesco v Michigan Department of Environmental Quality, supra, the downstream owner can also argue that there is another outlet for the discharged effluent as the municipal owner has diverted the water course previously and had been using that course for quite a long time. This argument might suggest that alternate means exist for discharging the effluent rather than burdening the riparian owner. This would be in the context of the development of the downstream property. The downstream property was developed while the municipality had diverted the watercourse.
Damages for tortious liability: A line of Michigan cases have held that a plaintiff, downstream property owner can claim damages for the acts of trespass and nuisance committed by the upstream owner. In, Kernen, supra, the Court observed that if the downstream owner can show that material harm has resulted from the discharge of effluents, he stands a good chance of being awarded nominal damages.
- DEFENSES THE UPSTREAM OWNER CAN ASSERT AGAINST POSSIBLE CLAIMS.
In this case, treated effluent from a municipal waste water treatment plant flows through a municipality owned wetland and then through a privately owned wetland before finally reaching a downstream drain. This release of effluents is allowed by the Michigan Department of Environmental Quality (MDEQ) through its issuance of a valid permit.
(A) DISCHARGE OF EFFLUENT IS UNDER A VALID PERMIT ISSUED BY THE MDEQ.
The statutory provisions regarding issue of permit has been discussed above in detail.
Mich. Comp. Laws § 324.3106 grants the Michigan Department of Environmental Quality (MDEQ) authority to establish pollution control standards and to issue permits for point source discharges into the waters of the state.
Under § 324.3106, MDEQ is conferred with wide discretionary powers to establish pollution control standards for different water bodies and to regulate municipal, industrial, and commercial discharges or storage of any substance that may affect the quality of the waters of the state. Also the Department is empowered to promulgate rules and issue orders restricting discharge of polluting contents as also to set permit restrictions to ensure strict compliance of federal law and regulations applicable. Prior to granting permit the applicant agency will be subjected to quality standards tests. The department may ascertain and determine for record and in making its order what volume of water actually flows in all streams, and the high and low water marks of lakes and other waters of the state, affected by the waste disposal or pollution of any persons.
The upstream owner was given a permit under MCL § 324.3112. This section clearly says that a person shall not discharge any waste or waste effluent into the waters of this state unless the person is in possession of a valid permit from the department. The department grants permit only after complying with all the federal and state laws. In the case at hand, no question pertaining to pollution of water has been raised by the downstream owner. Rather the downstream owner is solely concerned about the flooding of the wetland located in his property. Wetlands are naturally prone to flooding and the water discharged in to the stream is “treated waste water” of near drinking water standard. It merely increases the volume of the water and doesn’t result in pollution. The increase in volume is according to the permit conditions. Therefore the question of violation of permit doesn’t arise. Moreover, under the new NDPYDES regime, a permit serves to transform generally applicable effluent limitations and other standards — including those based on water quality — into the obligations (including a timetable for compliance) of the individual discharger, EPA v State Water Resources Control Board, 426 U.S. 200,.
Once a permit is issued, its conditions of effluent limitation set a point of demarcation above which a permit recipient may not lawfully emit pollutants from its treatment facility. 33 USC § 1311(a). Thus by virtue of holding a valid permit under § 324.3106 and § 324.3112, without any objection from the authority, the upstream owner is discharging effluent within the reasonable limits and as per the standards stipulated in these sections. Demonstration of compliance with these stringent regulations would preclude any question of permit violations.
(B) THE MUNICIPAL CORPORATION HAS NO OTHER ALTERNATIVE REMEDY FOR DISCHARGE OF THE TREATED EFFLUENT.
Again, in Dwyer v City Of Ann Arbor 79 Mich. App. 113 at 125, the Court stated that:
To prove the affirmative defense, it must be shown “that there is no feasible and prudent alternative to the defendant’s conduct and that such conduct is consistent with the promotion of public health, safety and welfare in light of the state’s paramount concern for the protection of its natural resources from pollution, impairment or destruction”. The defendant’s evidence must demonstrate both elements of the defense. (Emphasis added)
This leads us to a pertinent question in the instant matter: was there any other practicable mode of carrying out the function? Was this in promotion of public health, safety and welfare?
The upstream owner is the city engaged in the discharge of governmental function of promotion of public health as it is operating a waste water treatment plant to eliminate toxins and convert it to near drinking water standard. Moreover, the city is left with no alternative to drain the treated effluents. As it is evident from the facts, the treated effluents first passes through a wetland owned by the city and then through the wetland situated in the plaintiffs property before it eventually reaches the drain.
(B) GOVERNMENTAL IMMUNITY FOR ALLEGED TORTIOUS ACTS
MCL § 691.1401. Reads in part:
Sec. 1. As used in this act:
- “Municipal Corporation” means a city, village, or township or a combination of 2 or more of these when acting jointly.
- Under the governmental immunity act, MCL 691.1401 et seq.; MSA 3.996(101) et seq., governmental agencies are immune from tort liability when engaged in the exercise or discharge of a governmental function. Phinney v Adelman, 222 Mich. App. 513, (1997).
In Hadfield v Oakland Co. Drain Comm’r, 430 Mich. 139; (1988), the Court considered whether there was a nuisance exception to governmental immunity. The Court concluded that a limited trespass-nuisance exception to governmental immunity existed. See Continental Paper & Supply Co, Inc v Detroit 451 Mich. 162, 164; 545 N.W.2d 657 (1996); Hadfield, supra at 145, 205, 209, 213.
Trespass-nuisance is a “trespass or interference with the use or enjoyment of land caused by a physical intrusion that is set in motion by the government or its agents and resulting in personal or property damage.” Continental Paper, supra at 164; Hadfield, supra at 169, 209. To establish trespass-nuisance, a plaintiff must show: (1) condition (nuisance or trespass); (2) cause (physical intrusion); and (3) causation or control (by government). The trespass-nuisance doctrine applies only to state and local governments. See Cloverleaf Car Co v Phillips Petroleum Co, 213 Mich. App. 186, 193; 540 N.W.2d 297 (1995), as quoted in Cs & P, Inc. v City Of Midland, 229 Mich. App. 141.
The owner of the upstream wetland is the Municipality itself and the treatment of waste water is in the interest of the public and the effluents is discharged complying the conditions in the permit issued by the MDEQ and hence the municipality is protected by the governmental immunity as per the decision in Cs & P, Inc., supra.
(C ) DOWN STREAM OWNER CANNOT CLAIM RIGHTS OF RIPARIAN OWNERS SINCE DISCHARGE OF EFFLUENT IS NOT THAT OF SURFACE WATER
Michigan courts have construed different ‘water bodies’ in various cases and determined liability based on the nature of water flow i.e., whether it is a natural water course, so that the rights of riparian owners come in to play or whether it is surface water, governed by the rules related to the flow of surface water. Kernen v Homestead Development Company, 232 Mich. App. 503; Fenmode, Inc v Aetna Casualty & Surety Co., 303 Mich.188, at 192.
The Michigan Supreme Court has defined a “water course” as [a] natural stream of water fed from permanent or periodical natural sources and usually flowing in a particular direction in a defined channel, having a bed and banks or sides, and usually discharging itself into some other stream or body of water.'” Grand Rapids & I R Co v Round, 220 Mich. 475, 478; 190 N.W. 248 (1922), quoting Black’s Law Dictionary (2d ed).
Surface waters are defined as “waters on the surface of the ground, usually created by rain or snow, which are of as casual or vagrant character, following no definite course and having no substantial or permanent existence.’ Fenmode, Inc v Aetna Casualty & Surety Co, 303 Mich.188, at 192.
Using the definitions of natural water by the Michigan Supreme Court, and surface water in Fenmode, Inc., supra , treated effluents fall into neither category. The effluent released from the treatment of wastewater in the present case, also do not belong to the category of water course or surface water in strict sense and falls to a separate class by itself, which is permitted by the MDEQ. And only that land which includes or is bounded by a natural watercourse is defined as riparian. Thies v Howland, 424 Mich. 282, 287-288; 380 N.W.2d 463 (1985). Therefore the rights and liabilities of riparian owners pertaining to reasonable use also are also not applicable.
There is no prima facie case showing that the conduct of the upstream owner has polluted, impaired, or destroyed or is likely to pollute, impair, or destroy the air, water, or other natural resources or the public trust in these resources. There is no impairment actually caused. This is because the water flows from the wetlands into a downstream drain. So there is no question of the property being flooded and causing the destruction of riparian owner’s property as it is eventually flowing into a downstream drain. There is no water logging as alleged by the riparian owner. Hence riparian rules regarding pollution or flooding of downstream land do not apply in this case.
(D) NO GROUNDS FOR AN INJUNCTION
Granting injunctive relief is within the sound discretion of the trial court. The exercise of this discretion may not be arbitrary, but rather must be in accordance with the fixed principles of equity jurisprudence and the evidence in the case. Injunctive relief is an extraordinary remedy that issues only when justice requires, there is no adequate remedy at law, and there exists a real and imminent danger of irreparable injury. Jeffrey v Clinton Township, 195 Mich. App. 260. The burden of proof is on the riparian owner to prove that there exists a real and imminent danger of irreparable injury. Mere averments that the property is being flooded is not sufficient to get a relief of injunction. Rather the onus is on him to prove that his property is being damaged.
In cases where a mandatory injunction is sought, the rule in Michigan, is that the court will balance the benefit of an injunction to plaintiff against the inconvenience and damage to defendant, and grant an injunction or award damages as seems most consistent with justice and equity under all the circumstances of the case. Hasselbring v Koepke, 263 Mich. 466, 480.
The right to the use of the water in a stream by a riparian proprietor is not absolute. It is a natural right, qualified and limited by the existence of a like right on the part of others. It is an incident to the ownership of the land through which the stream passes. The enjoyment of such use by a landowner is prior to those below him, and subsequent to those above him, on the stream. The water may by his use be rendered unfit for many purposes for which pure water is suitable, and yet the lower proprietor may have no just cause for complaint, if its condition results from a reasonable use thereof in accordance with the common right. Monroe Carp Pond Co. v River Raisin Paper Co., 240 Mich. 279. Applying this principle it can be said that that the use of the upstream owner is reasonable and hence a relief of injunction cannot be granted to an upstream owner. The upstream owner is in possession of a valid permit which was issued after due compliance with all federal and state laws.
In Kernen v Homestead Development Company, 232 Mich. App.503, the Court stipulated the factors to be taken into account in determining the propriety of an injunction:
(a) the nature of the interest to be protected,
(b) the relative adequacy to the plaintiff of injunction and of other remedies,
(c) any unreasonable delay by the plaintiff in bringing suit,
(d) any related misconduct on the part of the plaintiff,
(e) the relative hardship likely to result to defendant if an injunction is granted and to plaintiff if it is denied,
(f) the interests of third persons and of the public, and
(g) the practicability of framing and enforcing the order or judgment.
Id at 514-515.
All the above factors play a vital role in determining the propriety of issuing an injunction.
In Peacock v Stinchcomb, 189 Mich. 301, it was the claim of the complainant that he had purchased the subject lot, which was a low land. Nearby drains did not furnish outlets for water accumulating on the low land. The drain owner constructed a new tile drain extending to a culvert in a highway. Two branch tile drains were extended from the new drain. The effect of the new tile drain was to bring water from several parcels of land in larger quantities, and more rapidly than ever before, upon the lowland of landowner, without providing any outlet or drainage for the additional water. He filed an action for injunctive relief, which was granted. It is the claim of the complainant that the effect of this new tile drain was to bring water from the several parcels of land above mentioned in larger quantities, and more rapidly than ever before, upon said low land of complainant, without providing any outlet or drainage for such additional water, to his great damage. This was denied by the defendants, and was the main issue in the case. The questions presented by the record are mainly upon the facts. See also Bruggink v Thomas, 125 Mich. 9.
In the above case injunction was granted because the water had no outlet and it was causing irreparable damage to the plaintiff’s property. Under those facts, it is clear that the injunction was granted because there was no outlet for the excess water. In the instant matter, the upstream owner can mount a valid defense that the water eventually flows into a downstream drain. Therefore there can be no question of any damage or flooding of the downstream owners’ property, as the water discharged by the upstream owner finds an outlet. There is no irreparable harm actually caused.
The issue of irreparable harm is a matter of evidence and the onus is on the Complainant to prove his case Kernen, supra, at 515 “as the trial court noted in its written opinion, the water cases that plaintiffs cite in support of their request for an injunction all involve a showing of harm, ………here other that general claims that the value of their property will be lowered in the eyes of prospective purchasers and that plaintiffs have a basic right to its exclusive use and possession, plaintiffs presented no evidence that they will suffer any specific, let alone irreparable, harm to their property. …….plaintiffs expert never attempted to quantify the harm that plaintiffs perceived……”
In the case at hand the plaintiff would need to establish irreparable harm due to the municipality’s actions before winning a grant of injunction. There is no viable alternative to the conduct of the upstream owner, and its function is in the best interests of the community. The effluent is similar to near drinking quality water and hence no question of pollution will arise. Treatment of waste water is in the interest of public health. No ecological threat can be perceived or apprehended. An independent referee who is technically qualified to make a record may be appointed and report his findings on the action to the Court. This would actually determine the quality and quantity of effluent discharged, whether it is within the permissible limit, whether it is causing any pollution, whether it will impair the ecological balance, whether it will destroy the adjoining property and such other factors necessary to determine the final outcome of the action.
The downstream property owner may attempt to move the court for an injunction restraining the municipal corporation from discharging its effluent on the grounds that the permit is invalid and/or not in keeping with the statutory provisions of the Federal and State Water Acts. He may also assert that the municipal corporation has violated the conditions of the permit by failing the test of reasonableness in the use of the permit, which has resulted in irreparable harm. The downstream property owner may also attempt to seek damages for the municipal corporation’s tortuous acts of trespass, nuisance and negligence.
The municipal corporation, on the other hand, can assert that it is simply fulfilling its obligations and necessary functions as a governmental body, and claim immunity for the alleged tortuous acts. Further, it can also claim that it is discharging the effluent pursuant to a valid permit issued by the MDEQ. It may also assert that the discharged effluent is not in the nature of “surface water” and therefore the downstream owner cannot claim the rights of a riparian owner. Finally, it may argue that the downstream owner has not established/ produced any evidence which will warrant issuance of an injunction. If no substantial evidence as to irreparable harm can be produced, the court will likely find that the balance of convenience is in favor of the municipal corporation.