Opinion of the Court

MARKMAN, J.

The issue in this case is whether title owners of real property may be held liable for a public nuisance that arose from that property, where someone other than the title owners is in possession of the property, is exercising control over the property, and is the one who created the alleged nuisance. We hold that title owners of the real property cannot be held liable for a public nuisance under such circumstances. Therefore, we reverse that portion of the Court of Appeals' judgment that held to the contrary and reinstate the trial court's order granting defendants' motion for summary disposition.

I. FACTS AND HISTORY

In 2010, Terri Sholberg while driving her car hit a horse that was standing in the road and died as a result. Plaintiff, as personal representative of her estate, brought this action against Daniel Truman, the owner of the horse that had escaped from its stall on the farm,1 and his brother and sister-in-law, Robert and Marilyn Truman ("defendants"), the title owners of the farm operated by Daniel Truman.2 Other than being the title owners, defendants have nothing to do with the farm or with any of the animals on the farm, including the horse struck by plaintiff's decedent. Plaintiff has presented evidence of at least 30 instances of animal elopement3 near the farm between 2003 and 2010, each of which allegedly created a hazard on the surrounding public roads.4 Marilyn Truman testified that no later than 2000, she received two or three telephone calls from people looking for Daniel Truman because his animals were loose.

A default judgment was entered against Daniel Truman. However, the trial court granted defendants' motion for summary disposition, concluding that they could not be held liable for public nuisance because they were not in possession of the property. The Court of Appeals reversed with regards to the public nuisance claim,5 holding that "the Trumans owned the Property from which the alleged nuisance arose, which is sufficient to bring a nuisance action against them." Sholberg v. Truman, unpublished opinion per curiam of the Court of Appeals, issued November 15, 2012 (Docket No. 307308), 2012 WL 5855045. This Court then directed that oral argument be heard on defendants' application for leave to appeal and directed the parties to address "whether, and under what circumstances, a property owner who is not in possession of the property and does not participate in the conduct creating an alleged nuisance may be liable for the alleged nuisance," In re Sholberg Estate, 494 Mich. 867, 832 N.W.2d 199 (2013), and argument was heard on December 12, 2013.

II. STANDARD OF REVIEW

A trial court's decision on a motion for summary disposition is reviewed de novo. Malpass v. Dep't of Treasury, 494 Mich. 237, 245, 833 N.W.2d 272 (2013). The interpretation and applicability of a common-law doctrine is also a question that is reviewed de novo. People v. Petty, 469 Mich. 108, 113, 665 N.W.2d 443 (2003).

III. ANALYSIS

As an initial matter, the lower courts and the parties all assumed that incidents of animal elopement can constitute a public nuisance, and thus we too will assume, without deciding, that incidents of animal elopement can constitute a public nuisance.6 "A public nuisance involves the unreasonable interference with a right common to all members of the general public." Adkins v. Thomas Solvent Co., 440 Mich. 293, 304 n. 8, 487 N.W.2d 715 (1992). "No better definition of a public nuisance has been suggested than that of an act or omission which obstructs or causes inconvenience or damage to the public in the exercise of rights common to all Her Majesty's subjects." Garfield Twp. v. Young, 348 Mich. 337, 341-342, 82 N.W.2d 876 (1957) (quotation marks and citation omitted). "There is no doubt that nuisance is a tort...." Pohutski v. City of Allen Park, 465 Mich. 675, 685, 641 N.W.2d 219 (2002). "In general, even though a nuisance may exist, not all actors are liable for the damages stemming from the condition." Cloverleaf Car Co. v. Phillips Petroleum Co., 213 Mich.App. 186, 191, 540 N.W.2d 297 (1995). "A defendant held liable for the nuisance must have possession or control of the land." Wagner v. Regency Inn Corp., 186 Mich.App. 158, 163, 463 N.W.2d 450 (1990); see also Stevens v. Drekich, 178 Mich.App. 273, 278, 443 N.W.2d 401 (1989) ("It requires that the defendant liable for the nuisance have possession or control of the land."); 19 Mich. Civ. Jur., Nuisances, § 1, p 63 ("Liability for nuisance ... requires that the defendant liable for the nuisance have possession or control of the land on which the condition exists or the activity takes place.").

As the Court of Appeals explained in Merritt v. Nickelson, 80 Mich.App. 663, 666-667, 264 N.W.2d 89 (1978):

This Court subsequently affirmed that decision, holding that a co-owner of land cannot be held liable where he or she has not "exercise[d] her right to possession and control over the property" because "[w]hen one co-owner of land cedes possession and control of the premises to her co-owners, the law is satisfied to look to those co-owners actually in control for liability for injuries to third persons." Merritt v. Nickelson, 407 Mich. 544, 554, 287 N.W.2d 178 (1980).

See also Musser v. Loon Lake Shores Ass'n, 384 Mich. 616, 622, 186 N.W.2d 563 (1971) ("It is a general principle of tort law that a person is liable only as he participates in an activity giving rise to a tort. Mere co-ownership of land standing alone will not subject a person to liability for torts committed in the land by the other co-owners.").7

In the landlord/tenant context (which bears considerable resemblance to the context we have here), this Court has made it clear that generally a landlord is not liable for a nuisance created by the tenant. As Justice COOLEY explained in Samuelson v. Cleveland Iron Mining Co., 49 Mich. 164, 171, 13 N.W. 499 (1882):

The question at issue in Samuelson was "whether a personal duty to guard against danger to the [iron] miners was still incumbent upon the defendant as owner of the mine, and was continuous while the mine was being worked by the contractors." Id. at 173, 13 N.W. 499. This Court held:

The general rule is that if "the acts of the tenant unauthorized by the landlord create a nuisance `after he has entered into occupation as a tenant, the landlord is not liable.'" Rosen v. Mann, 219 Mich. 687, 690-691, 189 N.W. 916 (1922) (citation omitted). "[I]n the absence of a contract duty on the part of the owner or landlord, the tenant, as between himself and the landlord, is bound to keep the leased premises in repair [and] the owner is not liable for damages to third persons for injuries arising from the neglect of the tenant to repair." Maclam v. Hallam, 165 Mich. 686, 693, 131 N.W. 81 (1911); see also Harris v. Cohen, 50 Mich. 324, 325, 15 N.W. 493 (1883) ("The case was not allowed to go to the jury, on the ground that the defendant was not personally in possession, and that she was not liable, as the case stood, for the neglect of her tenant."); Fisher v. Thirkell, 21 Mich. 1, 12-13 (1870) ("[T]he owners, being out of possession and not bound to repair, are not liable in this action for injuries received in consequence of the neglect to repair."); Merritt, 80 Mich.App. at 667, 264 N.W.2d 89 ("[O]wners of land ... do not share liability when injury or negligence is attributable to the independent act of a single tenant who has exclusive control of the premises.").

"The underlying reason for the general rule ... is that after leasing and surrendering the premises to the tenant the landlord loses all control over them." Rosen, 219 Mich. at 691, 189 N.W. 916. "It is a general proposition that liability for an injury due to defective premises ordinarily depends upon power to prevent the injury and therefore rests primarily upon him who has control and possession." Dombrowski v. Gorecki, 291 Mich. 678, 681, 289 N.W. 293 (1939).

Although this Court has consistently held that control is required in order to hold a defendant liable for a nuisance, in dicta the Court of Appeals has articulated this rule in such a way that suggests that ownership alone may be sufficient to impose liability even if someone other than the owner exercises control over the property. To wit, in Cloverleaf, 213 Mich.App. at 191, 540 N.W.2d 297, the Court of Appeals stated:

The Court held that because the defendant did not own or control the property, the defendant could not be held liable. Cloverleaf cited Gelman Sciences, Inc. v. Dow Chemical Co., 202 Mich.App. 250, 252, 508 N.W.2d 142 (1993), for its articulation of the rule. Gelman did articulate this same rule, but held that because the defendant did not own or control the property, the defendant could not be held liable.

Gelman in turn cited Radloff v. Michigan, 116 Mich.App. 745, 758, 323 N.W.2d 541 (1982), for its articulation of the rule. While Radloff did articulate this same rule, it also held that "[o]wnership alone is not dispositive." Id. at 755, 323 N.W.2d 541, quoting Merritt, 407 Mich. at 552, 287 N.W.2d 178. Radloff concluded that because "the defendants both owned and, controlled the property," they could be held liable. Radloff, 116 Mich.App. at 759, 323 N.W.2d 541 (emphasis added). Radloff also held that Merritt was distinguishable because the defendants in Merritt were "mere landowners." Id. at 756, 323 N.W.2d 541.

Radloff cited Stemen v. Coffman, 92 Mich.App. 595, 597-598, 285 N.W.2d 305 (1979), for its articulation of the "owned or controlled" rule. Stemen did articulate this rule, but held that because the defendants did not own or control the property, they could not be held liable. In support of this proposition, Stemen, 92 Mich.App. at 598, 285 N.W.2d 305, cited 58 Am. Jur. 2d, Nuisances, § [95],[8] p 616, which provides:

While this language indicates that an absentee owner may be held liable, it does not state that mere land ownership may give rise to liability. That is, even the treatise cited above and referred to by Stemen indicates that something more than mere ownership is required — the absentee landowner must have "knowingly permit[ted] the creation or maintenance of a nuisance on [the] premises." Id.10

None of the Court of Appeals cases cited above involved a situation in which the Court of Appeals imposed liability on a defendant on the basis of his or her mere land ownership. Instead, each of these cases involved situations in which the Court of Appeals held that the defendants either could not be held liable because they did not own or control the property or could be held liable because they did both own and control the property. And even the treatise specifically relied on by the Court of Appeals for its "ownership or control" rule does not stand for the proposition that ownership alone can give rise to liability where someone other than the owner is exercising control over the property.

In the instant case, defendants merely own the property. It is undisputed that they have never possessed or exercised any control over the property. They have not even visited the property in more than a decade. They have no contact with the person who is in actual possession of the property and who is exercising control over that property. Defendants also had nothing to do with the horse that caused the accident in this case or with any other horse on the property. They did not own, possess, or control the horse. Indeed, they did not even know that Daniel Truman owned the horse. Although Marilyn Truman testified that she received two or three telephone calls from people looking for Daniel Truman because his animals were loose, she testified that she received these calls no later than 2000 — at least 10 years before the accident. Not only did none of the neighbors testify that they had ever called defendants about the escaped animals, but most of these neighbors, as well as the animal-control officer, actually testified that they never called defendants about such animals. Thus, there is no evidence of any kind that defendants knew or had reason to know that Daniel Truman's animals were escaping the property when the accident happened in 2010.11 Because defendants did not control or possess the property or the horse, there is no basis on which to impose tort liability on defendants for a public nuisance.

As explained by the trial court:

"[T]he party presumptively responsible for a nuisance upon the leased premises is the tenant," Samuelson, 49 Mich. at 171, 13 N.W. 499, for the obvious reason that "the man in possession is in a position of control, and normally best able to prevent any harm to others," Merritt, 407 Mich. at 552, 287 N.W.2d 178 (quotation marks and citation omitted). In this case, Daniel Truman was the "man in possession" of the property, and thus he was the one "best able to prevent any harm to others." Given that it appears that defendants "resign[ed] all charge and control over [the property]," Samuelson, 49 Mich. at 173, 13 N.W. 499, to Daniel Truman, Daniel Truman, rather than defendants, is the one exclusively responsible for the alleged public nuisance he created on the property.13

IV. CONCLUSION

For these reasons, we hold that title owners of real property cannot be held liable for a public nuisance that arose from that property, when someone other than the title owners is in actual possession of the property, is exercising control over the property, and is the one who created the alleged nuisance. Therefore, we reverse that portion of the Court of Appeals' judgment that held to the contrary and reinstate the trial court's order granting defendants' motion for summary disposition.

YOUNG, C.J., MARY BETH KELLY, ZAHRA, and McCORMACK, JJ., concurred with MARKMAN, J.

MICHAEL F. CAVANAGH, J. (concurring).

I agree with the majority's result for the reasons stated in the conclusion section of the opinion. Defendants are entitled to summary disposition because they were not in possession of the property, did not have control over the property, and did not create the alleged nuisance.

VIVIANO, J. (concurring in part and dissenting in part).

I concur with the majority that defendants Robert and Marilyn Truman are entitled to dismissal because they are not liable for the nuisance at issue. I write separately because I disagree that this case can be decided as a matter of law on the issue of defendants' control over the land from which the nuisance arose. But I would reach the same result because I believe that defendants' lack of knowledge of the nuisance provides an alternative basis for dismissal.

In our order directing oral argument on defendants' application for leave to appeal, this Court directed the parties to address "whether, and under what circumstances, a property owner who is not in possession of the property and does not participate in the conduct creating an alleged nuisance may be liable for the alleged nuisance."1 I believe that the answer to this question is best stated in 58 Am. Jur. 2d, Nuisances, § 95, which recognizes a requirement to show both control and knowledge before imposing liability for absentee owners, like defendants: "A person is liable if he or she knowingly permits the creation or maintenance of a nuisance on premises of which he or she has control ... even though such person is not physically present, such as where he or she is an absentee owner." Applying that rule here, I believe that there is a question of fact whether defendants, even though absentee owners, retained sufficient control over the land to be held liable for the alleged nuisance. But I would hold that summary disposition in their favor was proper because they had no knowledge of the nuisance on the premises.

I. CONTROL

I agree with the majority that "control is required in order to hold a defendant liable for a nuisance...."2 As the majority also appears to recognize, control over the property may be established "either through ownership or otherwise."3 However, because control may be established through proof of ownership, I disagree with the majority that defendants cannot be liable as a matter of law on the ground that they "merely own[ed] the property."4 Instead, I believe that there is a question of fact regarding the extent to which defendants retained control and responsibility over the property.

There is evidence that someone other than defendants was in active control of the subject property. As the majority notes, Daniel Truman paid the property taxes, and defendants have not visited the property in more than a decade or maintained contact with Daniel Truman. Further, defendants have not profited from the farm and have not been involved in any aspect of Daniel Truman's management of the farm. On the other hand, contrary facts were adduced that could support a finding that defendants retained sufficient control over the premises to be liable for nuisance: (1) defendants hold sole title to the property by means of a warranty deed executed by Daniel Truman's ex-wife in 1989: (2) defendants supplied the financing for Daniel Truman to buy out his ex-wife's interest in the land;5 (3) defendants maintained insurance on the property at the time the accident took place; (4) defendants took out a mortgage on the property in March 2010;6 and (5) the terms of that mortgage required defendants to maintain the property and prohibited them from permitting a nuisance on the property, abandoning the property, or leaving it unattended.

Given the foregoing facts, I believe that the fact of title ownership — when coupled with defendants' financial leverage over Daniel Truman, their insurance interest, and the commitments they made in the 2010 mortgage — created a genuine issue of material fact regarding the degree of control that defendants retained over the property.7 In my view, these facts evidence that defendants may have been more than "mere landowners."8 Thus, I do not believe that we can decide as a matter of law that plaintiff has provided sufficient evidence to survive summary disposition on the issue of control.

II. KNOWLEDGE

Despite the foregoing, I agree with the majority that defendants are entitled to summary disposition because even if defendants had control over the land, their lack of knowledge of the alleged nuisance provides an alternate basis for dismissal.

The general rule in nuisance law is that "[a] landowner is subject to liability for a nuisance created by the activity of a third party on the land if the owner knows, or has reason to know, that the activity is causing, or will cause, an unreasonable risk of nuisance, and the landowner consents to the activity or fails to exercise reasonable care to prevent the nuisance."9 And, as noted above, this liability extends to absentee owners, like defendants, if they knowingly permit a nuisance: "A person is liable if he or she knowingly permits the creation or maintenance of a nuisance on premises of which he or she has control... even though such person is not physically present, such as where he or she is an absentee owner."10

Unlike some other jurisdictions, this Court has never explicitly held that knowledge is a required element of a nuisance claim.11 However, requiring knowledge is not a novel concept in our common law. More than a century ago in Wendt v. Village of Richmond,12 the plaintiff brought a nuisance claim against the defendant village, alleging that the defendant had knowingly permitted sewage to collect in water run off ditches in the vicinity of the plaintiff's home. On appeal, although denying any knowledge of the condition, the defendant conceded that "[i]t is a rule of law that one who does not knowingly or wilfully create a nuisance, but passively permits one to exist after knowledge thereof," can be liable after notice and reasonable opportunity to abate the nuisance.13 And this Court approved this rule when it confirmed the sufficiency of the trial court's instruction on knowledge, which provided, "[I]f the defendant caused, or knowingly permitted, these things to be collected by its ditches and conveyed to plaintiff's premises ... it would be liable, after the lapse of a reasonable time within which to remedy the condition...."14 Thus, the unremarkable proposition that knowledge is required to impose nuisance liability does not appear to be inconsistent with, or a modification of, Michigan's common law, but merely the recognition of an established requirement.15

Indeed, knowledge is a crucial element in circumstances in which a third party creates a nuisance. When it is demonstrated that a landowner retains the legal right to resume control over the subject property and has knowledge of a nuisance created by a third party, that owner is bound to use all reasonable means within his or her power to abate the nuisance.16

In this case, however, as even the majority acknowledges, there is no evidence that defendants knew or should have known about the elopements. Contrary to the Court of Appeals' assertion, there is no evidence that defendants were aware of the farm animals' tendency to escape in the 10 years before the accident. Therefore, even if they had the requisite control over the land, defendants cannot be liable because they had no knowledge of the nuisance.17

III. CONCLUSION

In sum, although I agree with the majority that control is the critical inquiry for nuisance liability, I disagree that dismissal is warranted on that ground when defendants' ownership of the property, taken together with other facts in the record, creates a question of fact on the issue of control. I would conclude that summary disposition was nevertheless appropriate on the alternative basis that there is no genuine issue of material fact on the issue of knowledge, which is a necessary element for nuisance liability.