Trespass & nuisance action; Private nuisance; Cloverleaf Car Co v Phillips Petroleum Co; Public nuisance; MCR 3.601(A); “Unreasonable interference”; A trial court’s authority to try jury-trial & bench-trial claims in the same proceeding; MCR 2.509(C) & (D); MCR 2.517(A); Res judicata; Adair v Michigan

The court held that the trial court erred by finding plaintiffs’ trespass claim was barred by res judicata and that they had not properly followed the procedure for pursuing their public nuisance claim. Plaintiffs sued defendant-Consumers Energy for trespass and nuisance after defendant replaced utility poles on the easement it had over their property (on which they operate a public-use airport and mine gravel). They claimed the higher poles and wires might present a danger to aircraft. They also sought compensation for sand and gravel. While this case was pending, defendant filed a separate condemnation suit against plaintiffs concerning a small area on which some of the newly installed equipment was placed, which was resolved by stipulated dismissal. On appeal in this case, the court held that the trial court erred by neglecting to address plaintiffs’ claim of private nuisance. “Plaintiffs’ complaint pleaded a single nuisance claim. Within that claim, they asserted that the poles constituted both a public and private nuisance. Defendant does not dispute that plaintiffs’ claim included private nuisance.” The trial court “also acknowledged the existence of a private nuisance claim, and questioned whether that claim was subject to MCR 3.601(A)[.]” Defendant acknowledged that “private nuisance claims were not covered by that rule. Yet the trial court relied on MCR 3.601(A) to dismiss plaintiffs’ nuisance claim in its entirety.” The language of MCR 3.601(A) “makes clear that the application of the rule is restricted to actions ‘to abate public nuisances.’” As such, “it had no bearing on plaintiffs’ private nuisance claim, so the trial court erred when it dismissed plaintiffs’ nuisance claim in its entirety based on MCR 3.601. The trial court did not make findings concerning the evidence presented on the elements of either type of nuisance before dismissing the action on the ground that the public nuisance claim was procedurally deficient.” Thus, remand was required as to this claim. As to the public nuisance claim, “the trial court could have asked the jury to resolve any factual issues, and then [it] could have decided whether to award equitable relief. The trial court erred by granting a directed verdict to defendant and dismissing plaintiffs’ public nuisance claim on procedural grounds.” Remand was also required as to this claim. Finally, the court found that “the damages plaintiffs sought for sand and gravel compensation in this case were not the same as those sought in the condemnation” action, and thus, were not barred by res judicata. Reversed.