Mulligan v. City of Kalamazoo

158 N.W.2d 59, 9 Mich. App. 713, 1968 Mich. App. LEXIS 1523

• Court: Michigan Court of Appeals
• Decided: March 21, 1968
• Docket: Docket No. 3,016
• Status: Published

Opinion

Burns, J.

Plaintiffs appeal a summary judgment granted in favor of defendant.

This action was commenced to enjoin the construction of a drying lagoon and by-products solids disposal area on 250 acres in Kalamazoo township. The installation is part of a $4,000,000 project to provide secondary sewage treatment for domestic and industrial waste. Plaintiffs alleged the operation of the secondary sewage treatment plant would be a nuisance.

Defendant moved for a summary judgment under GrCR 1963, 117.2(1) on the ground that plaintiffs’ complaint did not state a claim upon which relief could be granted because injunctive relief could not be granted for speculative, conjectural or apprehensive injury or nuisance and defendant had constitutional and statutory authority to construct and operate sewage and waste disposal facilities.

The trial judge held that the installation was not a nuisance per se and that injunctive relief was not proper to enjoin a speculative nuisance. The trial judge relied upon Sommers v. City of Detroit (1938), 284 Mich 67, and Cullum v. Topps-Stillman’s, Inc. (1965), 1 Mich App 92.

Since the hearing in the trial court and the submission of the case to this Court, the project has been completed. Therefore, the question is moot.

The appeal is hereby dismissed. No costs, a public question being involved.

Lesinski, C. J., and Holbrook, J., concurred.