Malesev v. Wayne County Road Commissioners

Michigan Court of Appeals

Malesev v. Wayne County Road Commissioners

215 N.W.2d 598, 51 Mich. App. 511, 1974 Mich. App. LEXIS 938

CourtMichigan Court of Appeals

DecidedMarch 1, 1974

DocketDocket 14287

StatusPublished

Cited by14 cases

This text of 215 N.W.2d 598 (Malesev v. Wayne County Road Commissioners) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Malesev v. Wayne County Road Commissioners, 215 N.W.2d 598, 51 Mich. App. 511, 1974 Mich. App. LEXIS 938 (Mich. Ct. App. 1974).

Pincite

Opinion

McGregor, P. J.

This is an action for' damage to property based on a third-party beneficiary contract theory. The defendants contracted with each other for construction of a water-intake tunnel in and through the City of Lincoln Park. Construction was completed on October 18, 1960. In November, 1963, due to soil instability caused by the construction, cracks and other structural damage to the plaintiffs’ residence first became apparent. Complaint was thereafter filed on December 1, 1965. An order dismissing that complaint, as barred by the statute of limitations, was entered on April 14, 1972, and the plaintiffs appeal as of right.

The statute of limitations is three years in all actions for injury to person or property, whether they sound in contract or tort. State Mutual Cyclone Insurance Co v O & A Electric Cooperative, 381 Mich 318; 161 NW2d 573 (1968). In relevant part, MCLA 600.5827; MSA 27A.5827 provides:

"Except as otherwise expressly provided, the period of limitations runs from the time the claim accrues. The claim accrues * * * at the time the wrong upon which the claim is based was done regardless of the time when damage results.”

Our Supreme Court has construed this to mean that, in the case of tortious injury to persons, *513 "wrong” meant "actionable wrong” and accrued when injuries first became apparent. Connelly v Paul Ruddy’s Equipment Repair & Service Co, 388 Mich 146; 200 NW2d 70 (1972). The same rule should apply to injury to property. To hold otherwise would transmute the statute from one of limitation into one of abolition. Since the damage in this case did not become apparent until over three years after completion of the tunnel, the plaintiffs’ cause of action would then be destroyed before it arose. Such a result is not consonant with the legislative purpose of the statute.

Reversed.

All concurred.

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McGregor, P. J.

This is an action for' damage to property based on a third-party beneficiary contract theory. The defendants contracted with each other for construction of a water-intake tunnel in and through the City of Lincoln Park. Construction was completed on October 18, 1960. In November, 1963, due to soil instability caused by the construction, cracks and other structural damage to the plaintiffs’ residence first became apparent. Complaint was thereafter filed on December 1, 1965. An order dismissing that complaint, as barred by the statute of limitations, was entered on April 14, 1972, and the plaintiffs appeal as of right.

The statute of limitations is three years in all actions for injury to person or property, whether they sound in contract or tort. State Mutual Cyclone Insurance Co v O & A Electric Cooperative, 381 Mich 318; 161 NW2d 573 (1968). In relevant part, MCLA 600.5827; MSA 27A.5827 provides:

"Except as otherwise expressly provided, the period of limitations runs from the time the claim accrues. The claim accrues * * * at the time the wrong upon which the claim is based was done regardless of the time when damage results.”

Our Supreme Court has construed this to mean that, in the case of tortious injury to persons, *513 "wrong” meant "actionable wrong” and accrued when injuries first became apparent. Connelly v Paul Ruddy’s Equipment Repair & Service Co, 388 Mich 146; 200 NW2d 70 (1972). The same rule should apply to injury to property. To hold otherwise would transmute the statute from one of limitation into one of abolition. Since the damage in this case did not become apparent until over three years after completion of the tunnel, the plaintiffs’ cause of action would then be destroyed before it arose. Such a result is not consonant with the legislative purpose of the statute.

Reversed.

All concurred.

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Bluebook (online)

215 N.W.2d 598, 51 Mich. App. 511, 1974 Mich. App. LEXIS 938, Counsel Stack Legal Research, https://law.counselstack.com/opinion/malesev-v-wayne-county-road-commissioners-michctapp-1974.

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