Their martinis were shaken, not stirred: no trespass or "taking" by Township
Brian Faulknor and Doris Kittle owned a tavern in Dalton Township, Muskegon County. They refused to sell the Township an easement to construct and maintain a sewer through their property for $3200.00. The Township then decided to place the sewer under the roadway adjacent to their building, and during construction vibrations from excavation and boring allegedly "substantially" damaged the Plaintiff's structure and fixtures. Faulknor and Kittle sued, alleged a trespass and an illegal "taking" of their property.
The lower court dismissed the Plaintiffs' negligence and trespass claims, but refused to dismiss the "taking" claim. The appellate court reversed and dismissed all claims, ruling that the Plaintiffs had failed to plead in avoidance of governmental immunity for a tort or negligence action, and that no illegal government "taking" had been established. In a classic Henry Saad, "no victim ever wins" opinion, the Court of Appeals just offered the conclusory statement that no "taking" or inverse condemnation had occurred because there "was simply no evidence that defendant in the instant case abused its legitimate powers through affirmative actions directly aimed at plaintiff's property." To us, that seems a debatable conclusion that should properly have been determined by the fact-finder, i.e., the jury.