Trespass; Surface-water runoff; Material increase; Intentional intrusion; Wiggins v City of Burton; Boylan v Fifty Eight LLC

The court held that plaintiff failed to create a genuine issue of material fact that defendants’ replacement walkway materially increased water runoff onto his property or that defendants knew or should have known the walkway would cause such an intrusion, defeating his trespass claim. The parties own neighboring lakefront properties. Plaintiff alleged that defendants’ replacement of a walkway with a higher and wider one increased water flowing onto his property and flooded his carriage house. On appeal, the court noted that while “the ‘unauthorized act of causing excess waters to flow onto another person’s property constitutes a trespass,’ the increase in water must be material” and the intrusion must be intentional. Plaintiff relied on his expert’s opinion that the walkway changes “resulted in additional stormwater volume and velocity onto” plaintiff’s property and his own testimony that flooding began after defendants made landscaping changes. But the expert did not quantify the increase, and plaintiff produced no evidence of the baseline amount of runoff before the walkway was replaced. Thus, his testimony about the timing of the flooding created “at best . . . a speculative connection between the walkway improvements and the alleged increase in water runoff,” and absent the missing “evidence, he cannot demonstrate a fact issue as to whether the alleged increase in water runoff was material.” Summary disposition was also proper on an independent ground. Plaintiff presented no evidence that defendants “knew or should have known, at the time of their walkway replacement, that the changes would increase the amount of runoff water onto” his property. His complaints before construction related to other property conditions, while his complaints about increased runoff came only after the walkway was completed. Affirmed.