Adkins v. Thomas Solvent Co.

487 N.W.2d 715, 440 Mich. 293

• Court: Michigan Supreme Court
• Decided: July 28, 1992
• Docket: 88897, (Calendar No. 13)
• Status: Published

Opinions

Boyle, J.

The question before us is whether a claim for relief may be maintained by plaintiffs who claim the right to damages in nuisance for property depreciation caused by environmental contamination of ground water despite testimony by both plaintiffs’ and defendants’ experts that their properties were not and would never be subject to ground water contamination emanating from the defendants’ property.

The trial court dismissed, these plaintiffs’ claims on the basis that it found no support for recovery in Michigan law. The Court of Appeals reversed the decision of the trial court, rejecting its conclusion that the facts presented no cognizable claim for nuisance.

We are persuaded that the boundaries of a traditional nuisance claim should not be relaxed to permit recovery on these facts. Compensation for a decline in property value caused by unfounded perception of underground contamination is inextricably entwined with complex policy questions regarding environmental protection that are more suitably resolved through the legislative process.

We reverse the decision of the Court of Appeals, reinstate the trial court’s judgment in favor of defendants, and remand to the trial court for a continuation of proceedings as to the remaining plaintiffs.

i

In 1984, the plaintiffs sued the Thomas Solvent Company in the Calhoun Circuit Court for damages and injunctive relief from injuries allegedly resulting from the improper handling of chemicals and industrial waste. Claiming that the Thomas Solvent Company’s and other defendants’ improper handling and storage of toxic chemicals and industrial waste had contaminated the ground water, the plaintiffs brought claims sounding in negligence, continuing nuisance, continuing trespass, strict liability, and ultrahazardous activities.

Originally, approximately fifty plaintiffs brought suit against the Thomas Solvent defendants,¹ the Grand Trunk Railroad defendants,² Wesley E. Carter, a private individual doing business as Raymond Road Landfill and O.K. Wrecking Company, and Hannah’s Cement Products, Inc., the lessor of the land used as Raymond Road Landfill. The plaintiffs claimed that toxic chemicals and industrial wastes were released accidentally or intentionally at sites owned by the defendants. The plaintiffs complained of contaminants emanating from two sites owned or operated by the Thomas Solvent defendants. The plaintiffs alleged that contamination issued from a facility on Raymond Road which included an office building, a warehouse, a dock for storing drums, and twenty-one underground bulk storage tanks. In addition, the plaintiffs complained that contamination stemmed from a facility on Emmett Street, which the Thomas Solvent defendants allegedly leased from Grand Trunk Western Railroad. The Emmett Street facility included two underground bulk storage tanks, one aboveground tank, and a loading dock adjacent to a railroad spur. The plaintiffs also complained that contamination originated at the Raymond Road Landfill.

In 1985, the complaint was amended and approximately nineteen plaintiffs were added. Discovery continued, and various motions for summary disposition were brought as the parties and the court sought to sharpen and narrow the issues. As discovery continued, it became clear that contaminants allegedly discharged into the ground water by the defendants never reached these plaintiffs’ property. The plaintiffs’ expert, Yaron Sternberg, concluded that a ground water divide separated the flow of ground water in the area, with water on the north side of the divide flowing generally north or northwesterly and the water on the south side of the divide flowing in a westerly direction. He testified that no contaminants from the Thomas Solvent facilities had any effect on the properties of these plaintiffs, which were located south of the divide.

This appeal involves the claims of twenty-two plaintiffs who live over 2000 feet south and east from the Thomas Solvent facilities and whose claims were eventually dismissed by the trial court. The Grand Trunk Railroad defendants filed a motion for summary disposition, seeking to dismiss the claims of those plaintiffs whose property was not affected by the contaminants allegedly released by Grand Trunk. The Thomas Solvent defendants joined in the motion.³ The plaintiffs filed a responsive brief and stipulated that the claims of these twenty-two litigants be dismissed except to the extent that they claimed damages for property depreciation. On June 16, 1987, the trial court heard oral arguments on the motion. The plaintiffs argued that a tortious event and a range of damages occurred when toxic substances left the defendants’ property. They conceded that no contaminants ever reached these twenty-two plaintiffs’ property, but urged the court to impose liability on the defendants for any loss in property values due to public concern about the contaminants in the general area. Concluding that any damages that these plaintiffs suffered resulted from unfounded public perception that their ground water was contaminated, the trial court dismissed their claims. On June 29, 1987, an order was entered, dismissing the property depreciation claims of these twenty-two plaintiffs against the Thomas Solvent defendants and concluding that no reason existed for delay and that a final judgment should enter in favor of the Thomas Solvent defendants. The plaintiffs moved for reconsideration and to amend their complaint to add claims regarding contamination of municipal well'water. The trial court denied these motions.⁴

The plaintiffs claimed an appeal as of right from the trial court’s summary disposition order. The Court of Appeals reversed the trial court’s order and remanded the case to the trial court for further proceedings. Recognizing that no contamination had reached or would reach the well water of the plaintiffs, the Court of Appeals nevertheless concluded that the trial court had erred in finding that the plaintiffs had not shown some damage "and in summarily dismissing plaintiffs’ claims merely because the ground water beneath their properties had not been contaminated.” 184 Mich App 693, 696; 459 NW2d 22 (1990). Emphasizing that to recover damages for nuisance, a litigant need not show physical intrusion onto the land, and distinguishing nuisance from trespass, the Court of Appeals relied on this Court’s opinions in Whittemore v Baxter Laundry Co, 181 Mich 564; 148 NW 437 (1914), and Hadfield v Oakland Co Drain Comm’r, 430 Mich 139, 151; 422 NW2d 205 (1988), citing Prosser & Keeton, Torts (5th ed), § 87, p 622.

This Court granted the defendants’ application for leave to appeal to consider whether the Court of Appeals erred when it reversed the trial court’s summary disposition order. 437 Mich 929 (1991).

ii

The trial court granted the defendants’ motion for summary disposition pursuant to MCR 2.116(C)(10). The parties had agreed, both in a stipulation filed with the court and during oral argument on the motion, that no ground water contamination from the defendants’ property ever reached the plaintiffs’ property because of a ground water divide which acted as a hydrogeological barrier that precluded the possibility of migration of any contaminants from defendants’ property. The trial court concluded that the defendants would be entitled to judgment as a matter of law. General Motors Corp v Detroit, 372 Mich 234; 126 NW2d 108 (1964), cert den 377 US 977 (1964). For a summary disposition to be upheld on appeal, the Court must review the record to ascertain whether the defendants would have been entitled to the judgment as a matter of law. American Employers’ Ins Co v Christman & Bros Co, 284 Mich 36; 278 NW 750 (1938).

The Court of Appeals held that because a physical intrusion or physical effect is not required to sustain a claim for nuisance, the trial court erred in dismissing the plaintiffs’ claims. For the reasons that follow, we find that the trial court did not err in dismissing the claims.

in

Historically, Michigan has recognized two distinct versions of nuisance, public nuisance and private nuisance. Hadñeld, supra, p 205. A private nuisance is a nontrespassory invasion of another’s interest in the private use and enjoyment of land. 4 Restatement Torts, 2d, § 821D, p 100. It evolved as a doctrine to resolve conflicts between neighboring land uses.⁵ Because nuisance covers so many types of harm, it is difficult to articulate an encompassing definition. Imprecision in defining nuisance leads to confusion regarding the interest it is designed to protect.⁶ Nevertheless, the gist of a private nuisance action is an interference with the occupation or use of land or an interference with servitudes relating to land.⁷ There are countless ways to interfere with the use and enjoyment of land including interference with the physical condition of the land itself, disturbance in the comfort or conveniences of the occupant including his peace of mind, and threat of future injury that is a present menace and interference with enjoyment. The essence of private nuisance is the protection of a property owner’s or occupier’s reasonable comfort in occupation of the land in question. Prosser & Keeton, supra, p 619. It involves "not only a defect, but threatening or impending danger ... to the property rights or health of persons sustaining peculiar relations to the same . . . .” Kilts v Kent Co Supervisors, 162 ; 127 NW 821 (1910).⁸ The pollution of ground water may constitute a public or private nuisance. 4 Restatement Torts, 2d, § 832, p 142.

According to the Restatement, an actor is subject to liability for private nuisance for a nontrespassory invasion of another’s interest in the private use and enjoyment of land if (a) the other has property rights and privileges in respect to the use or enjoyment interfered with, (b) the invasion results in significant harm (c) the actor’s conduct is the legal cause of the invasion, and (d) the invasion is either (i) intentional and unreasonable, or (ii) unintentional and otherwise actionable under the rules governing liability for negligent, reckless, or ultrahazardous conduct. 4 Restatement Torts, 2d, §§ 821D-F, 822, pp 100-115.

Prosser & Keeton’s enumeration of the requirements to recover on a private nuisance theory is similar. They set forth the following requirements:

(1) The defendant acted with the intent of interfering with the use and enjoyment of the land by those entitled to that use;

(2) There was some interference with the use and enjoyment of the land of the kind intended, although the amount and extent of that interference may not have been anticipated or intended;

(3) The interference that resulted and the physical harm, if any, from that interference proved to be substantial. It is this requirement and the next that is most important in distinguishing between trespassory-type invasions from those that are actionable on a nuisance theory. Any intentional and unprivileged entry on land is a trespass without a showing of damage, since those who own land have an exclusive right to its use; but an act that interferes with use but is not in itself a use is not actionable without damage. The substantial interference requirement is to satisfy the need for a showing that the land is reduced in value because of the defendant’s conduct;

(4) The interference that came about under such circumstances was of such a nature, duration or amount as to constitute unreasonable interference with the use and enjoyment of the land. This does not mean that the defendant’s conduct must be unreasonable. It only means that the interference must be unreasonable and this requires elaboration.

[9] [Prosser & Keeton, supra, pp 622-623.]

Once these general definitions have been stated, application to any given set of facts is, nevertheless, problematic. Despite almost a century during which this Court has repeatedly recognized the difficulty in defining the concept of nuisance,¹⁰ Michigan jurisprudence has focused on delineating the contours of various defenses, but has seldom elaborated the elements and proofs necessary to sustain a claim in nuisance, absent special defenses. In this case, the Court considers whether property depreciation based on unfounded fears falls within the boundaries of an action for private nuisance in Michigan.

The plaintiffs alleged that the defendants’ improper handling and storage of toxic chemicals and hazardous waste contaminated underground water in the area, thus supporting their recovery of money damages for nuisance. Although the plaintiffs’ first amended complaint failed to specify whether their claims were founded on public or private nuisance, the parties have argued, and the case was considered in the lower courts pursuant to, a theory of private nuisance.¹¹

The Court of Appeals focused upon the lack of any physical intrusion onto plaintiffs’ land, stressing that an interference with the use and enjoyment of land need not involve a physical or tangible intrusion. We do not disagree with this rule of law.¹² Nevertheless, we conclude that the trial court properly found that the plaintiffs failed to trace any significant interference with the use and enjoyment of land to an action of the defendants.

The crux of the plaintiffs’ complaint is that publicity concerning the contamination of ground water in the area (although concededly not their ground water) caused diminution in the value of the plaintiffs’ property. This theory cannot form the basis for recovery because negative publicity resulting in unfounded fear about dangers in the vicinity of the property does not constitute a significant interference with the use and enjoyment of land.¹³

Examination of the historic development of nuisance law helps to clarify the fallacy underlying plaintiffs’ theory of recovery. Initially, the assize of novel disseisin was available for a complainant whose enjoyment of his free tenement was disturbed by the defendant. The tort of trespass later developed to remedy this situation in which the defendant interfered with the complainant’s interest in land. The source of the injury was always on the complainant’s land.¹⁴ Later, the assize of nuisance arose to redress injury due to an act of the defendant that interfered with the complainant’s interest, although the injury did not involve an entry onto the complainant’s land.¹⁵ Eventually, the action for trespass upon the case for nuisance developed. The appeal of this form of action was its remedy, damages, rather than abatement.¹⁶

The doctrine of nuisance traditionally encompassed geographic, temporal, and proprietary aspects. In geographic terms, nuisance arose when occupants of neighboring land had a dispute, typically over the proper use of the defendant’s land.¹⁷ This Court articulated a geographic component to liability for nuisance in Kilts, supra, p 650. The Kilts Court differentiated between a weak structure on a private person’s land "so far from the street and other’s property” that it would not constitute a nuisance and a structure that "was adjacent to an adjoining proprietor’s land so that it was a menace to his property, or to his person in the use of his land . . . .” Id.

In temporal terms, nuisance normally required some degree of permanence. If the asserted interference was "temporary and evanescent,” there was no actionable nuisance.¹⁸ This requirement is normally subsumed in the question whether the interference with the use and enjoyment of property is substantial. In proprietary terms, nuisance required that the plaintiff have some interest in the land that was interfered with. Unlike the early assize of novel disseisin, nuisance did not limit suit to freeholders, but permitted lessees and then occupants to sue.¹⁹

As the doctrine of trespass was gradually transmuted into the action upon the case for nuisance, the requirement that the injury involve entry onto the complainant’s land was eliminated.²⁰ To limit the broader action on the case for nuisance, courts added the requirement that a litigant seeking to recover for nuisance must show a legally cognizable injury, requiring proof of a significant interference with the use and enjoyment of land.²¹ Although much confusion has arisen because of the failure to discern that injury and damage are different concepts, an interference that is not substantial and unreasonable does not give rise to an action for damages against the person causing it, damnum absque injuria.²² Stated otherwise, while nuisance may be predicated on conduct of a defendant that causes mental annoyance, it will not amount to a substantial injury unless the annoyance is significant and the interference is unreasonable in the sense that it would be unreasonable to pérmit the defendant to cause such an amount of harm without paying for it.²³

Nuisance on the case thus involved the common law’s attempt to ensure accommodation between conflicting uses of adjoining property. An early opinion from this Court explains:

As a rule, the owner may make such use of his premises as his business or taste may dictate, and the only limitation upon his right is that he must so use his property as not to cause injury to the property or rights of those owning property in the vicinity. [McMorran v Fitzgerald, 106 Mich 649, 652; 64 NW 569 (1895).]

Because the doctrine sought to acknowledge the right of both the property owner to carry out a particular use and the neighbor whose property or use and enjoyment of property might be injured by the use, de minimus annoyances were not actionable. Only for a substantial interference with the use and enjoyment of property would an action lie. As a part of this scheme, courts frequently concluded that diminution in property values alone constitutes damnum absque injuria.²⁴

The reasoning in Gunther v E I DuPont de Nemours & Co, 157 F Supp 25 (ND W Va, 1957), app dis 255 F2d 710 (CA 4, 1958), exemplifies this reluctance to find a nuisance for mere diminution of property value on the basis of unfounded beliefs or fear of injury. In Gunther, the plaintiffs unsuccessfully sought damages and injunctive relief for claimed injuries to their property and person from test explosions conducted by the defendant in the vicinity of their property. The court refused to find nuisance, reasoning:

The Court believes it a fair inference from the evidence that the Gunthers’ enjoyment of their property was lessened because they believed that the test blasting had injured them. If such belief is unfounded, what is left other than depreciation in value? Mere diminution of the value of property because of the use to which adjoining or nearby premises is devoted, if unaccompanied with other ill results, is damnum absque injuria — a loss without injury, in the legal sense. [Id., p 33. Emphasis in original.]

That same reasoning applies to this case. Plaintiffs have stipulated the dismissal of all claims except those predicated upon an alleged depreciation in the market value of the property because of the unfounded fears of purchasers. The fact, as the dissent recognizes, that plaintiffs make no claim for "relief arising out of their own 'fears,’ ” post, p 362, illustrates the point that defendants’ activities have not interfered with their use and enjoyment of property.²⁵

This Court has held that property depreciation alone is insufficient to constitute a nuisance. Plassey v S Loewenstein & Son, 330 Mich 525, 530; 48 (1951); Warren Twp School Dist v Detroit, 308 Mich 460, 469-470; 14 NW2d 134 (1944); Garfield Twp v Young, 348 Mich 337; 82 NW2d 876 (1957). Although there is early authority to the contrary involving circumstances largely subsumed in zoning regulations,²⁶ most recently this Court has held that a cause of action for nuisance may not be based on unfounded fears.²⁷ Smith v Western Wayne Co Conservation Ass'n 380 Mich 526, 543; 158 NW2d 463 (1968). In Smith, the plaintiffs sought to have a gun range declared a nuisance, contending that it created fear of injuries, thus decreasing their property values. Adopting the trial court’s opinion that "no real or actual danger” existed from the use of the gun range, the Court further held that, even assuming a decrease in property values, this was not "in itself sufficient to constitute a nuisance.” Id., pp 542-543.²⁸

Just as the development of nuisance on the case responded to the limitations of trespass by recognizing a cause of action when there was damage, but not injury amounting to use, the modern formulation of nuisance in fact, acknowledges changing conditions by declining to recognize a cause of action where damage and injury are both predicated on unfounded fear of third parties that depreciates property values. The rationale may be expressed by observing that reasonable minds cannot differ that diminished property value based on unfounded fear is not a substantial interference in and of itself. Thus, in rejecting a claim that tort liability could be based on the creation of fear that depreciates property values, one federal district court observed that the theory was based on "a public reaction which is conjectural, transitory and ephemeral.” Good Fund, Ltd — 1972 v Church, 540 F Supp 519, 534 (D Colo, 1982), rev’d on other grounds sub nom McKay v United States, 703 F2d 464 (CA 10, 1983).²⁹

This response also corresponds with the historical premise underlying tort liability for nuisance in fact, i.e., that when some significant interference with the use and enjoyment of land causes the property value loss, courts of law accommodate conflicting interests by recognizing claims designed to shift the loss.³⁰ However, on the present state of the record, plaintiffs do not contend that the condition created by the defendant causes them fear or anxiety. Thus, not only have these plaintiffs not alleged significant interference with their use and enjoyment of property, they do not here posit any interference at all.

Plaintiffs correctly observe that property depreciation is a traditional element of damages in a nuisance action. See, e.g., Prosser, supra, § 89, pp 637-640. We are not persuaded, however, and the dissent has not cited authority to the contrary, that an allegation of property depreciation alone sets forth a cognizable claim in private nuisance of significant interference with the use and enjoyment of a person’s property. Diminution in property values caused by negative publicity is, on these facts, damnum absque injuria — a loss without an injury in the legal sense.

Contrary to the dissent’s observation, neither Garfield Twp, Smith, Plassey, nor Warren Twp School Dist stand for the proposition that plaintiffs in this case have a cognizable claim of nuisance. Defendant’s business is a lawful business, and the fact that violations of the law may have occurred on the property does not make the conduct of the business a nuisance in fact. Indeed, Garfield Twp rejects the precise argument upon which the dissent relies.³¹

Nor can we accept the dissent’s suggestion that because some authorities relied on here involve claims for equitable relief, they do not support a damage award in this case. We agree that different considerations apply to the remedies appropriate, and that injunctive relief is sometimes available when a tort is merely threatened or denied on the basis that damage is the more appropriate relief. In both law and equity, however, there must be a cognizable claim of a substantive interest invaded or threatened. Thus the dissent misperceives the use of authority holding that equitable relief is not available to address unfounded fears. Our point is that unfounded fears cannot constitute an allegation of a nuisance in fact with regard to these plaintiffs.³²

We are thus unpersuaded by the dissent’s attempt to avoid the stipulation of the parties by referring throughout the opinion to facts and counts that are not before us. Nor do we find convincing the dissent’s disparagement of the 600-year provenance of the concept of damage without injury, or the assertion that the assumption on which we proceed “presents an abstract, desiccated question of law . . . (Post, p 328.) Unlike the dissent, we proceed on the assumption the parties presented to us. We do not know why counsel chose not to assert claims of personal discomfort or annoyance as he did with regard to other plaintiffs, or to appeal from the trial court’s order denying leave to amend. These were probably strategy decisions based on his clients’ responses in discovery. We are entitled to assume that counsel’s present posture is motivated by legitimate interest in securing an appellate court decision that diminution in value is recoverable without a showing of substantial interference with use or enjoyment of property. In that event, these plaintiffs could become judgment creditors in the bankruptcy action. So viewed, the structuring of this lawsuit involves not a hypertechnical issue, but an issue of considerable significance to these plaintiffs, to litigants similarly situated, and to the jurisprudence.

In short, we do not agree with the dissent’s suggestion that wholly unfounded fears of third parties regarding the conduct of a lawful business satisfy the requirement for a legally cognizable injury as long as property values decline. Indeed, we would think it not only "odd” (Levin, J., post, p 349), but anachronistic that a claim of nuisance in fact could be based on unfounded fears regarding persons with aids moving into a neighborhood, the establishment of otherwise lawful group homes for the disabled, or unrelated persons living together,³³ merely because the fears experienced by third parties would cause a decline in property values.³⁴

When appropriate, we have not hesitated to examine common-law doctrines in view of changes in society’s mores, institutions, and problems, and to alter those doctrines where necessary. Myers v Genesee Co Auditor, 375 Mich 1, 7; 133 NW2d 190 (1965); Gruskin v Fisher, 405 Mich 54, 58; 273 NW2d 893 (1979); Placek v Sterling Heights, 405 Mich 638, 656-657; 275 NW2d 511 (1979); People v Aaron, 409 Mich 672, 722-723; 299 NW2d 304 (1980); Falcon v Memorial Hosp, 436 Mich 443, 472-473; 462 NW2d 44 (1990).³⁵ In a given case, the dangers posed by environmental contamination may not be adequately addressed by statutorily created private actions or by traditional rules adopted prior to the existence of these problems.³⁶ This case does not present that situation. We do not deal with a situation here in which plaintiffs have alleged that "the character of the neighborhood has changed for the worse.” (Post, p 328.) Nor have plaintiffs asserted that "an unusual number of abandoned, neglected, and otherwise depressed properties in the neighborhood” interfered with their use and enjoyment of land. (Post, p 328.) After defendants moved for summary disposition against any claims by plaintiffs who failed to show that their properties or persons were contaminated by exposure to chemicals emanating from the defendants, counsel stipulated to dismiss all claims of this group of plaintiffs except those based upon property depreciation. Thus, we are not presented with plaintiffs who allege an increased risk of illness, threat to safety, or lack of a habitable dwelling caused by contaminants released by the defendants.

The plaintiffs concede that a ground water divide prevented the migration of contaminated water to their property. Nevertheless, the plaintiffs seek to recover for damages because the defendants allegedly contaminated property in the general area. Under such a theory, a cause of action could be stated on behalf of any individual who could demonstrate an effect on property values even if the polluted ground water had neither strayed from defendants’ own property, nor disturbed a plaintiff’s enjoyment by the fear that it would do so.

If any property owner in the vicinity of the numerous hazardous waste sites that have been identified³⁷ can advance a claim seeking damages when unfounded public fears of exposure cause property depreciation, the ultimate effect might be a reordering of a polluter’s resources for the benefit of persons who have suffered no cognizable harm at the expense of those claimants who have been subjected to a substantial and unreasonable interference in the use and enjoyment of property.³⁸ Thus, while we acknowledge that the line drawn today is not necessarily dictated by the spectral permutations of nuisance jurisprudence, if the line is to be drawn elsewhere, the significant interests involved appear to be within the realm of those more appropriate for resolution by the Legislature.³⁹ Crampton & Boyer, Citizen suits in the environmental held: Peril or promise?, 2 Ecol L Q 407, 412 (1972).

IV

For these reasons, we conclude that the Court of Appeals erred when it reversed the trial court’s grant of the defendants’ summary disposition motion. We reverse the decision of the Court of Appeals, reinstate the trial court’s judgment granting summary disposition in favor of the defendants, and remand to the trial court for a continuation of proceedings with regard to the remaining plaintiffs.

Brickley, Griffin, and Mallett, JJ., concurred with Boyle, J.

1 Thomas Solvent Company is a Michigan corporation which owns and controls Thermo-Chem, Inc., TSC Transportation Company, Thomas Development Company/Thomas Transportation Company, Thomas Solvent Company of Detroit, Inc., Thomas Solvent Company of Muskegon, Inc., and Thomas Solvent, Inc. of Indiana. Richard Thomas is an individual who is or was an employee, officer or sole shareholder of Thermo-Chem, Inc., Thomas Solvent Company of Muskegon, Inc., Thomas Solvent Inc. of Indiana, Thomas Solvent Company of Detroit, Inc., Thomas Development Company/Thomas Transportation Company, and TSC Transportation Company.

2 Grand Trunk Western Railroad Corporation allegedly owned and operated a number of sites at which contaminants were improperly handled. Grand Trunk Corporation is the corporation which owns Grand Trunk Western Railroad. Both Grand Trunk Western Railroad and Grand Trunk Corporation are owned and operated by Canadian National Railways Company Limited.

3 The plaintiffs subsequently withdrew their appeal in the Court of Appeals regarding the trial court’s dismissal of their claims against the Grand Trunk Railroad defendants. Only the Thomas Solvent defendants are parties to this appeal.

4 With these motions, the plaintiffs sought relief from the trial court’s conclusion that no claims regarding contamination of municipal well water had been preserved by the stipulation. The trial court also concluded that the first amended complaint did not encompass claims based on purported, contamination of municipal water. The trial court further refused to permit the amendment of the complaint because the plaintiffs had been aware of these potential claims and failed to raise them earlier. To the extent that the plaintiffs seek to rely on contamination of municipal water in support of their nuisance claims, those allegations are not properly before us since the plaintiffs failed to appeal from the trial court’s order denying leave to amend their complaint.

5 Pfennigstorf, Environment, damages, and compensation, 1979 Am B Found Res J 347, 386. See, generally, Calabresi & Melamed, Property rules, liability rules, and inalienability: One view of the cathedral, 85 Harv L R 1089 (1972).

6 One commentator pointed out that Blackstone’s definition was so broad it could encompass not only all nuisances, but all wrongs. McClintock, Principles of Equity (2d ed), p 363 quoting 3 Blackstone, Commentaries, c 11 (Chase’s 3d ed, 1892), p 738. Blackstone’s definition of nuisance was " 'anything that worketh hurt, inconvenience or damage.’ ” Id.

7 Paton, Liability for nuisance, 37 Ill L R 1, 8-9 (1942). See also Newark, The boundaries of nuisance, 65 L Q R 480, 487-488 (1949). Newark explains the early common-law origins of the tort in the assize of nuisance, a remedy available for harm to the plaintiff’s enjoyment of rights over land. Gradually, the action upon the case for nuisance became the sole common-law remedy over the assize of nuisance. Winfield, Nuisance as a tort, 4 Cambridge L J 189, 190-191 (1931). The action upon the case, the forerunner of today’s nuisance action, was available only for damages, not abatement. Id. at 192.

8 A public nuisance involves the unreasonable interference with a right common to all members of the general public. Garfield Twp v Young, 348 Mich 337, 342; 82 NW2d 876 (1957); 4 Restatement Torts, 2d, § 821B, p 87.

9 We are not presented in this case with the occasion to consider the distinctions between the two definitions.

10 See, e.g., Kilts, supra, p 651; Awad v McColgan, 357 Mich 386, 389-390; 98 NW2d 571 (1959); Rosario v Lansing, 403 Mich 124, 131; 268 NW2d 230 (1978); Hadfield, supra, p 150.

11 Even if the plaintiffs had argued the case on a public nuisance theory, recovery would be unavailable. Although the contamination of ground water may give rise to an action for public nuisance, the plaintiffs must show harm of a kind different from that suffered by other members of the general public exercising the right common to the general public that was the subject of interference. 4 Restatement Torts, 2d, § 821C, p 94. See, e.g., Philadelphia Electric Co v Hercules, Inc, 762 F2d 303 (CA 3, 1985). These plaintiffs concedé that no contamination reached the ground water underlying their properties. Thus, there exists no evidence of harm of a different kind than that suffered by members of the general public.

12 Both Prosser and Keeton’s definition of nuisance and the definition provided by the Restatement of Torts specifies that an action for nuisance involves a nontrespassory invasion of property rights. 4 Restatement Torts, 2d, § 821D, p 100. Thus, it is clear that a tangible physical intrusion is not necessary.

13 Contrary to the approach of the dissent (see post, § v, parts d and e, and Appendix, p 365, n 114), we do not deal here with fear that depresses property values as an element of damages where a basis for liability is otherwise established. Nor do we deal with the issue of the hypersensitive individual. The Restatement example referenced (post, pp 355-356), illustrates the defect in the plaintiffs’ theory. The deafness of the plaintiff does not prevent the existence of genuine interference, i.e., the enjoyment of entertaining guests. The Restatement does not suggest that absent an interference with the use and enjoyment of land, the deaf person could recover on the basis that hearing persons would not pay as much for his house. That is the appropriate analogy to the facts of this case. Likewise, according to the Restatement, a cognizable claim of nuisance will lie where conduct is otherwise actionable under the rules governing liability for negligent, reckless, or ultrahazardous conduct, provided there is a nontrespassory invasion of another’s interest in the use and enjoyment of land. (Post, § in, pp 341-343.)

14 McRae, The development of nuisance in the early common law, 1 U Fla L R 27, 29-30 (1948).

15 Winfield, Nuisance as a tort, n 7 supra, pp 190-191. Prosser & Keeton agree that the assize of nuisance originated as a writ designed to "cover invasions of the plaintiff’s land due to conduct wholly on the land of the defendant.” Prosser & Keeton, supra, § 86, p 617.

16 Winfield, n 7 supra, pp 191-192, 201-203.

17 The geographic aspect of nuisance law limits claims in two areas. First, courts have typically refused to allow a successor landowner to seek damages under a nuisance theory because the landowner’s claim does not involve an interference with adjoining land. See, e.g., Am-land Properties Corp v ALCOA, 711 F Supp 784; 29 ERC 1538 (D NJ, 1989). Second, courts have typically rejected liability where a litigant failed to establish proximity between the assertéd interference and the litigant’s property. See, e.g., Renaud v Martin Marietta Corp, 749 F Supp 1545; 32 ERC 1721 (D Colo, 1990).

18 Newark, n 7 supra, p 489.

19 McRae, n 14 supra, pp 40-41. Although recently courts in some jurisdictions have considered whether to expand this proprietary rights aspect to include various successor interests, the rationale employed even under this expanded approach, continues to rely upon the notion that nuisance is intended to protect against interference with the use and enjoyment of land. See, e.g., Amland, n 17 supra, pp 807-808.

20 See McRae, n 14 supra, pp 37-38.

21 Early cases rejecting liability because there was damnum absque injuria were discussed by McRae, n 14 supra. As early as 1332, an English court held that damages alone were not enough. McRae explains that "if a man erected a mill upon his land and so subtracted customers from his neighbor’s mill, his neighbor suffered damnum but there might be no injuria.” Id., p 38, citing YB 7 Edw III, Mich, pl 27 (1332). McRae mentions an additional example in which recovery was denied where the complainants sought to recover for a loss of income because of the defendant’s establishment of a rival school. Id., citing Gloucester Grammar School Case, YB 11 Hy IV, Mich, pl 21 (1409).

22 Smith, Reasonable use of one’s own property as a justiñcation for damage to a neighbor, 17 Colum L R 383, 386-390 (1917). Likewise, McRae explains that the "common factor in all of these cases [actions on the case for nuisance] is that defendant’s act was in each case a misfeasance, a misfeasance of a type which would not sustain trespass, and which was damnum and injuria.” McRae, n 14 supra, p 39. (Emphasis in original.) Early Michigan authorities discussed this concept as well. See Grand Rapids & Indiana R R Co v Heisel, 38 Mich 62; 31 Am Rep 306 (1878). There, the Court concluded that a railroad’s use of a public highway to lay railroad tracks could not be deemed a nuisance with respect to the litigant until the use of the street unreasonably interfered with his property. The Court noted that a lot owner with proprietary rights in the street might sue for the wrongful encumbrance upon his property and recover for diminished market value or decreased rental value. However, because this litigant lacked proprietary rights in the street, the Court concluded that "diminution . . . occasioned by the placing of the track in the street” was damnum absque injuria with regard to him until the railroad’s use of the tracks resulted in unnecessary noise or other legal grievance affecting his property. Id., p 71.

23 Prosser & Keeton, supra, § 88, p 626. The common-law development of trespass, like nuisance, is also illustrative of a need to limit recovery to a proper case. In Bradley v American Smelting & Reñning Co, 104 Wash 2d 677, 690-691; 709 P2d 782 (1985), the court discussed the modern view of trespass, which allowed recovery for indirect invasions of property such as those caused by smoke or air particles. Airborne particles might also give rise to an action in nuisance. To avoid "sanctioning actions in trespass by every landowner within a hundred miles of a manufacturing plant,” the court interposed the actual and substantial damages requirement. Id., p 692. The substantial interference doctrine achieves the same purpose in nuisance law.

24 The Iowa Supreme Court explained that absent a nuisance, a "use cannot be enjoined because of, or damages recovered for, the diminution in value of neighboring properties resulting therefrom.” Bader v Iowa Metropolitan Sewer Co, 178 NW2d 305, 307 (Iowa, 1970).

25 See also Winget v Winn-Dixie Stores, Inc, 242 SC 152; 130 SE2d 363 (1963) (absent proof of a nuisance, no recovery of damages can be allowed for the diminution in value because of the lawful use of property made by a nearby owner).

26 See, e.g., Prosser & Keeton, supra, § 87, p 620, ns 18 and 19.

27 Plaintiffs successfully argued in the Court of Appeals that Smith was distinguishable on the basis that it involved a suit for injunctive relief, not damages. While the observation is correct, it is a non sequitur. The issue here is whether an action in damage for nuisance in fact can be predicated upon unfounded fears of ground water contamination. See Exxon Corp v Yarema, 69 Md App 124, 151, n 5; 516 A2d 990 (1986) (concluding that one standard applies to nuisance actions in law and in equity).

28 See also Henkel v Detroit, 49 Mich 249; 13 NW 611 (1882) (even if the value of property was diminished by the city’s market regulations that increased market wagons and traffic to the detriment of the plaintiff’s property value, the complainant has suffered no compensable injury).

29 See McCaw v Harrison, 259 SW2d 457, 458 (Ky, 1953) (no. actual danger of contamination of ground water from a cemetery and depreciation of property values alone was not enough to support a claim in nuisance); Miller v Cudahy Co, 567 F Supp 892, 897-898 (D Kan, 1983), aff’d in part and rev’d in part on other grounds 858 F2d 1449 (CA 10, 1988) (salt allegedly polluted area ground water but partial summary disposition was appropriate with regard to those sites outside the aquifer and those which the plaintiffs failed to show that the pollution reached); cf. O’Donnell v Oliver Iron Mining Co, 273 Mich 27; 262 NW 728 (1935) (refusing damages for property depreciation caused by fear of damage to property absent actual damage in a negligence action).

30 Although some commentators analyzing the availability of nuisance actions to solve problems arising from environmental contamination have deplored the difficulties of showing that a significant interference exits, it is generally accepted that some interference with a use is required for recovery. See, generally, Reitze, Private remedies for environmental wrongs, 5 Suffolk U L R 779, 800 (1971); comment, A private nuisance approach to hazardous waste disposal sites, 7 Ohio N U L R 86, 100-101 (1980); comment, Groundwater pollution in the western states — Private remedies and federal and state legislation, 8 Land & Water L R 537, 539-544 (1973); comment, The environmental lawsuit: Traditional doctrines and evolving theories to control pollution, 16 Wayne L R 1085, 1109-1114 (1970).

31 In Garfield Twp, the township sought to enjoin a junkyard operating in violation of a licensing ordinance. Rejecting the township’s argument that the operation of the junkyard without a license rendered it a nuisance per se, the Court ruled that factual support was required to prove nuisance; illegal conduct alone was not enough. The Garñeld Court relied on an opinion issued in 1875, which explained:

The erection of a wooden building within the limits of a city or village is not in and of itself a nuisance. Neither does the fact that the erection of such is prohibited by ordinance make it a nuisance. If this were so, then the doing of any act prohibited by law would, upon the same reasoning, be a nuisance. The act, if prohibited, would be illegal; but something more than mere illegality is required to give this court jurisdiction. [Village of St Johns v McFarlan, 33 Mich 72, 74; 20 Am Rep 671 (1875).]

32 For similar reasons, the cases involving fears of the owners of property as constituting nuisance in fact, or prima facie nuisance, such as the slaughterhouse in Conway v Gampel, 235 Mich 511; 209 NW 562 (1926), or businesses moving into otherwise long-established residential neighborhoods, do not establish that property depreciation on the basis of unfounded fear of third parties makes out a compensable allegation of nuisance in fact. Indeed, Kundinger v Bagnasco, 298 Mich 15; 298 NW 386 (1941), upon which the dissent relies, while rejecting the notion that it was necessary to show danger from disease or unpleasantness of odors, itself points to the need to show invasion of a legally cognizable interest, i.e., a nuisance in fact. “Emotions . . . are more acute in their painfulness, in many cases, than suffering perceived through the senses; and mental pain and suffering are elements of damage, in the eyes of the law.” Id., p 17.

33 See, e.g., Nicholson v Connecticut Half-Way House, Inc, 153 Conn 507; 218 A2d 383 (1966).

34 Finally, with respect to Exxon Corp v Yarema, n 27 supra, the case is factually distinguishable. We have no claim of contaminated well water or the preclusion of sale. This case comes to us singularly on the issue whether plaintiffs may proceed with their nuisance in fact claims solely on the basis of property depreciation due to public concern about contaminants in the general area. Exxon confirms that they could not. Id., pp 151-152.

35 The authority to modify the common law is embodied in Const 1963, art 3, § 7:

The common law and the statute laws now in force, not repugnant to this constitution, shall remain in force until they expire by their own limitations, or are changed, amended or repealed.

36 Both state and federal statutes exist which provide for potential remedies including a private cause of action for various forms of pollution. See, e.g., The Comprehensive Environmental Response, Compensation & Liability Act (cercla), 42 USC 9601 et seq.; the Solid Waste Disposal Act, 42 USC 6901 et seq.; the Environmental Response Act, MCL 299.601 et seq.; MSA 13.32(1) et seq.; the Environmental Protection Act, MCL 691.1201 et seq.; MSA 14.528(201) et seq.; the Hazardous Waste Management Act, MCL 299.501 et seq.; MSA 13.30(1) et seq., the Solid Waste Management Act, MCL 299.401 et seq.; MSA 13.29(1) et seq.

37 Seventy-seven Michigan hazardous waste sites are on the National Priorities List. 56 Fed Reg 5606-5627 (February 11, 1991); 40 CFR 300 App B (1992). In addition, the Department of Natural Resources, pursuant to the Environmental Response Act, 1982 PA 307, MCL 299.601 et seq.-, MSA 13.32(1) et seq., has identified approximately 2,837 sites of environmental contamination throughout the state. Department of Natural Resources, Michigan Sites of Environmental Contamination, Act 307 (March, 1991), p 9.

38 It is not uncommon for a corporation engaged in conduct causing environmental contamination to seek protection in bankruptcy court as a result of clean-up costs required under various statutes and private litigation seeking money damages for injuries due to the contamination. In this case, Thomas Solvent Company sought protection in bankruptcy court in 1984. In re Thomas Solvent Co, unpublished opinion of the United States Bankruptcy Court for the Western District of Michigan, decided April 6, 1984 (Docket No. 84-00843).

39 Numerous federal and state statutes exist that provide various remedies for environment damage. See p 317, n 36. One federal district court rejected a tort claim under the Federal Tort Claims Act in the face of the plaintiff’s argument by analogy to cercla, 42 USC 9611. Charles Burton Builders, Inc v United States, 768 F Supp 160 (D Md, 1991). The plaintiff, a property owner, had feared damage to its property from the illegal dumping of hazardous waste in the vicinity. Because tests showed no injury within the meaning of the Federal Tort Claims Act, 28 USC 1346(b), summary judgment was properly granted. The court reasoned that "if reference to cercla is pertinent at all, it tends to support the position that Congress recognized there to be a need for a specific cause of action for 'reaction expenses’ or 'response costs’ due to the absence of a right to recover under the existing law.” 768 F Supp 163.