City of Mason v. Buchman

211 N.W.2d 552, 49 Mich. App. 98, 1973 Mich. App. LEXIS 804

• Court: Michigan Court of Appeals
• Decided: August 29, 1973
• Docket: Docket 14754
• Status: Published

Opinions

J. H. Gillis, J.

On May 7, 1968, in the city of Mason, Lawrence Barton, a contractor, was excavating for a new building on a vacant lot immediately east of defendants’ building. The excavation was almost completed when, at about 11:30 a.m., a portion of the basement foundation of defendants’ building gave way, involving a section of the footing under the southeast corner of the building estimated at from 6 to 8 feet deep and 5 to 16 feet in length. At 11:41 a.m., a section of the southeast brick wall above the footing fell and large cracks developed along the upper front story and laterally along the east side of the building. Between 12 and 12:30 p.m., Mason Police Chief Thomas Stoltz expressed concern to Barton that something should be done that day about the loose bricks on the southeast corner. Both Barton and Mr. Buchman, the owner, agreed that the condition of the southeast wall was potentially dangerous.

It is disputed as to what happened at about 1:45 to 2 p.m. when Barton stationed his backhoe operator before the building. Buchman claims he believed that Barton was just going to reach up with the backhoe to take off some loose bricks. Barton asserts that he received what he assumed was a direct order from Chief Stoltz to tear the building down. In any event, the backhoe operator knocked in the entire front and a portion of one side wall of the building.

On July 3, 1968, the city notified defendants to remove the building because it constituted a public hazard and a nuisance. Defendants responded that they were financially unable to do so and that they were also unable to arrive at a settlement with the parties responsible for the damage.

The City of Mason filed this action to have the partially collapsed building declared a nuisance and a public hazard, for an order for demolition of the building, and for a determination that defendants be assessed the costs of demolition. Circuit Judge Sam Street Hughes found the building to be a public nuisance and ordered it demolished. The findings of Judge Hughes are not contested.

Later, after a nonjury trial before Circuit Judge Marvin J. Salmon regarding assessment of the costs of demolition carried out by the city, Judge Salmon found that the city was at least partly responsible for the collapse of the building. He determined that Chief Stoltz, acting with apparent authority, issued the order which "touched off” events resulting in the building being so damaged as to become a nuisance and a hazard. The judge concluded that defendants were in no way responsible for a situation "that was just pushed on them”. Finding defendants blameless, he concluded that they should not be required to pay to abate the nuisance. This appeal has been taken from the judgment of no cause of action entered in defendants’ favor and presents for our resolution the question of whether defendants must reimburse plaintiff for expenses incurred in fazing defendants’ building.

The Mason city charter specifies that an action will lie for the abatement of a public nuisance and for the recovery of the costs of abatement from the landowner if, as in this case, the city finds it necessary to proceed with the abatement. See also 6 McQuillin, Municipal Corporations (3d ed), § 24.79, p 638-641; 7 McQuillin, Municipal Corporations (3d ed), § 24.561, p 596; 66 CJS, Nuisances, § 138, p 945. No question is raised as to the reasonableness of the costs which were incurred to abate the nuisance.

However, it is well established by ancient precedent that a city may not charge an innocent landowner for the cost of abatement of a nuisance the city has created. City of Hannibal v Richards, 82 Mo 330 (1884); Weeks v Milwaukee, 10 Wis 242 (1860); Patrick v Omaha, 1 Neb (unofficial) 250; 95 NW 477 (1901); Lasbury v McCague, 56 Neb 220; 76 NW 862 (1898); see also 6 McQuillin, Municipal Corporations (3d ed), § 24.62, pp 611-612; 62 CJS, Municipal Corporations, § 281(d)(1), p 635. The finding by the trial judge that the city, through Chief Stoltz, "touched off’ the events resulting in the creation of a nuisance for which the landowners were blameless, precludes recovery by the city.

To deny application of that doctrine would require the innocent landowners to pay a judgment they ought not to and then duplicate their evidence in a separate lawsuit the outcome of which is not certain. We see no reason why the Buchmans cannot assert their innocence in this case.

Affirmed. Costs to appellees.

Fitzgerald, P. J., concurred.