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Court holds couple's trespass claim was brought too late; Michigan Supreme Court has recently rejected common law "continuing trespass" doctrine

Under the common law which has formed the basis of Michigan's jurisdprudence throughout the state's history, the statute of limitations never expired on a claim of continuing trespass.  If a neighboring landowner--or anyone else--continued to interfere with the property owner's legitimate use of his or her property by trespassing upon it, the victim could sue within three years of the most recent trespass.  The Michigan Supreme Court--when it became dominated by Republican, insurance-oriented appointees--overturned this longstanding rule and adopted a more activist holding:  it ruled that the statute of limitations expires, and suit must be brought, within three years of the first trespass, even if the initial "injury" is minimal and the later damages are substantial.

Thus, the Court ruled, in effect, that aggrieved parties must rush to court immediately, even over minimal trespasses, and that if they exercise patience or tolerance, they lose their right to act when a "continuing trespass" becomes substantial or intolerable.  A boon for trespassers and their insurers, but hardly good public policy (or "neighborliness").

This week, the Court of Appeals applied this statute of limitations to uphold the dismissal of a couple's claim arising out of the building of a soil berm disrupted their property rights.  Since the berm was built more than three years before suit was filed, the plaintiffs were not allowed to pursue a trespass claim.  The case is Donald and Evelyn Smith v. Mark York and Brenda York.

Thompson O’Neil, P.C.
309 East Front Street
Traverse City, Michigan 49684
Toll Free: 1-800-678-1307
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