Negligence; Nuisance; Private nuisance; Cloverleaf Car Co v Phillips Petroleum Co; Trespass; Remand to a different trial judge; MCR 7.216(A)(7)

The court held that the trial court erred by granting defendants’ motion for a directed verdict on the basis that no evidence was presented to establish the boundary line between the parties’ properties. Defendants’ survey established the boundary line. But the court concluded that plaintiffs were not entitled to relief as to their negligence and nuisance claims because the error as to these claims was harmless. On the other hand, the error was not harmless as to their trespass claim. The case concerned two parcels of property that abut Lake Huron. Defendants-Wests hired a company to cut down greenery on their property. “Plaintiffs alleged that in the process of cutting the greenery, trees and bushes were also removed on their property.” They further claimed that “the cutting of the greenery increased the surface-water runoff running from defendants’ property, causing damage to the stairs of the red cottage and damage to the foundation of the white cottage.” As to plaintiffs’ trespass claim, “Mr. West testified that none of the greenery removed was on plaintiffs’ property, while [a witness] testified that approximately 750 square feet of the greenery was cut on plaintiffs’ property. Therefore, there was a factual dispute as to whether a trespass occurred and whether defendants could be liable for that trespass.” Also, there was a factual dispute as to whether the surface water could constitute an actionable trespass. Thus, the trial court’s error in granting defendants’ motion for a directed verdict on the trespass claim was not harmless. But plaintiffs were not entitled to relief as to their negligence claim because they failed to establish this claim as a matter of law given that “with certain exceptions not relevant here, a property owner is not liable for the negligence of an independent contractor.” They also were not entitled to relief as to the trial court’s decision to grant defendants’ motion for a directed verdict on their nuisance claim. “The cutting of the greenery is not actionable in nuisance, which requires a nontrespassory invasion. . . . Excess surface-water runoff is also not actionable in nuisance for this same reason.” Because plaintiffs relied solely on trespassory invasions of their property, their claim of nuisance failed as a matter of law. Affirmed in part, reversed in part, and remanded.