METER, P.J.

Defendant Department of Transportation (DOT) appeals as of right from an order denying its motion for summary disposition on grounds of governmental immunity regarding plaintiffs' trespass-nuisance claim. Plaintiffs cross-appeal to challenge the grant of summary disposition to both defendants on plaintiffs' inverse-condemnation claim. We reverse the trial court's order relating to the trespass-nuisance claim but affirm in all other respects. Of particular note is our holding that there is no trespass-nuisance exception to the doctrine of sovereign immunity.

Plaintiffs are engaged in the commercial production of blueberries in Ottawa and Muskegon counties. Plaintiffs own or lease property that is adjacent to highways or primary county roads. DOT contracts with county road commissions, including defendant Ottawa County Road Commission (Ottawa County), to maintain the highways and county roads during the winter, when salt is used to prevent the formation of ice on the highways and roads. Plaintiffs claim that the amount of salt used in western Michigan has increased during a pertinent 15-year period. They allege that droplets of salt-laden water are thrown into the air by passing vehicles and are then blown by the wind onto plaintiffs' property. They contend that this salt spray causes damage to plaintiffs' blueberry bushes, which results in a loss of blueberry production from those bushes.

Plaintiffs sued DOT and Ottawa County, alleging inverse condemnation. Plaintiffs also raised a claim of trespass-nuisance against DOT. The trial court granted summary disposition under MCR 2.116(C)(10) to DOT and Ottawa County on the inverse-condemnation claim, finding that plaintiffs failed to present evidence to establish that their injury was "of a unique or peculiar character different from the effects experienced by all similarly situated property owners." The trial court concluded that plaintiffs were not permanently deprived of their property and that "the incidental entry of road salt onto Plaintiffs' properties has only rendered the growing of blueberries uneconomical." The trial court further found that there was no "direct and immediate intrusion" onto plaintiffs' property in this case.1

The trial court subsequently denied DOT's motion for summary disposition under MCR 2.116(C)(7) (governmental immunity) on the trespass-nuisance claim and instead determined that plaintiffs were entitled to summary disposition on this claim under MCR 2.116(C)(10). The trial court followed Hadfield v. Oakland Co. Drain Comm'r, 430 Mich. 139, 147-149, 422 N.W.2d 205 (1988), overruled by Pohutski v. City of Allen Park, 465 Mich. 675, 641 N.W.2d 219 (2002). Hadfield held that a limited trespass-nuisance exception to governmental immunity existed, consistent with caselaw predating the enactment of statutory immunity. See Hadfield, 430 Mich. at 147-150, 422 N.W.2d 205 (opinion by BRICKLEY, J.). The trial court concluded that plaintiffs established the elements for their trespass-nuisance claim and that plaintiffs were therefore entitled to summary disposition.

On appeal, DOT argues that the trial court erred by denying its motion for summary disposition on the trespass-nuisance claim because it is entitled to immunity with regard to this claim.

This Court reviews de novo a trial court's grant of summary disposition. Maiden v. Rozwood, 461 Mich. 109, 118, 597 N.W.2d 817 (1999). In determining whether summary disposition under MCR 2.116(C)(7) is appropriate, a court considers all documentary evidence submitted by the parties, accepting as true the contents of the complaint unless affidavits or other appropriate documents specifically contradict them. See Patterson v. Kleiman, 447 Mich. 429, 433-435, 526 N.W.2d 879 (1994). "If the facts are not in dispute and reasonable minds could not differ concerning the legal effect of those facts, whether a claim is barred by immunity is a question for the court to decide as a matter of law." Poppen v. Tovey, 256 Mich.App. 351, 354, 664 N.W.2d 269 (2003); see also Cain v. Lansing Housing Comm., 235 Mich.App. 566, 568, 599 N.W.2d 516 (1999) ("[A]pplicability of governmental immunity is a question of law that is reviewed de novo on appeal").

Disposition of the present issue requires this Court to resolve the question whether the tort of trespass-nuisance is an exception to governmental immunity. Trespass-nuisance is a trespass or interference with the use or enjoyment of land by way of a physical intrusion that the government sets in motion and that results in personal or property damage. McDowell v. Detroit, 264 Mich.App. 337, 352, 690 N.W.2d 513 (2004), rev'd on other grounds 477 Mich. 1079, 729 N.W.2d 227 (2007). Its elements have been stated simply as a condition, a cause, and control by the government. Id.

MCL 691.1407(1) provides:

"Absent a statutory exception, a governmental agency is immune from tort liability when it exercises or discharges a governmental function." Maskery v. Univ. of Mich. Bd. of Regents, 468 Mich. 609, 613, 664 N.W.2d 165 (2003). A "governmental agency" is "the state or a political subdivision." MCL 691.1401(d). "`State' means the state of Michigan and its agencies, departments, commissions, courts, boards, councils, and statutorily created task forces and includes every public university and college of the state, whether established as a constitutional corporation or otherwise." MCL 691.1401(c). "Political subdivision"

The statutory exceptions to governmental immunity are failure to maintain highways, MCL 691.1402(1); the negligent operation of government-owned vehicles, MCL 691.1405; public-building defects, MCL 691.1406; the performance of proprietary functions, MCL 691.1413; and the ownership or operation of certain governmental hospitals, MCL 691.1407(4). MCL 691.1417 et seq. also provides for liability for sewage-disposal-system events. None of these exceptions is relevant to the present case.

Previously, the Supreme Court held that a limited, nonstatutory trespass-nuisance exception existed to governmental immunity. Hadfield, 430 Mich. at 145, 422 N.W.2d 205 (opinion by BRICKLEY, J.). Later, in Pohutski, 465 Mich. at 685, 641 N.W.2d 219, the Supreme Court noted that it had "strayed from the plain language" of MCL 691.1407(1) when it concluded in Hadfield that "the historic trespass-nuisance exception was required by the language of [MCL 691.1407(1)]." The Supreme Court in Pohutski overruled Hadfield to "rectify Hadfield's misconstruction of the statutory text." Pohutski, 465 Mich. at 695, 641 N.W.2d 219.

Significantly, however, the Pohutski Court, in reaching its conclusions, relied on the word "state" from the second sentence of MCL 691.1407(1). Id. at 688-689, 641 N.W.2d 219. Again, this sentence states: "Except as otherwise provided in this act, this act does not modify or restrict the immunity of the state from tort liability as it existed before July 1, 1965, which immunity is affirmed." (Emphasis added.) The Pohutski Court concluded that because cities, and not the state as defined in MCL 691.1401(c), were involved in that case, the second sentence of MCL 691.1407(1) was simply inapplicable. Pohutski, 465 Mich. at 689, 641 N.W.2d 219. The Court then held that, for cities, "the plain language of the governmental tort liability act does not contain a trespass-nuisance exception to governmental immunity." Id. at 689-690, 641 N.W.2d 219.

The Pohutski Court stated:

Here, the "state," as defined in MCL 691.1401(c), is indeed involved. The question, then, is whether the second sentence of MCL 691.1407(1) allows plaintiffs to pursue the instant lawsuit or whether DOT is protected by governmental immunity.

We find no basis to conclude that a trespass-nuisance exception exists for claims against the state. Plaintiffs argue that the second sentence of MCL 691.1407(1) preserves a common-law exception to governmental immunity for trespass-nuisance, but they cite only Hadfield to support this position. Hadfield and the pertinent cases cited therein, however, did not address "sovereign immunity" (i.e., the immunity of the state). See Pohutski, 465 Mich. at 682, 641 N.W.2d 219 (discussing sovereign immunity); see also Myers v. Genesee Co. Auditor, 375 Mich. 1, 6, 133 N.W.2d 190 (1965) ("Sovereign immunity is a specific term limited in its application to the State and to the departments, commissions, boards, institutions, and instrumentalities of the State.").

The Legislature has not seen fit to expand upon this "creature of the legislature" by providing a trespass-nuisance exception to governmental immunity for claims against the state, and there is simply no indication that a common-law trespass-nuisance exception to sovereign immunity was in effect at the time of the enactment of MCL 691.1407(1).

In Ross v. Consumers Power Co. (On Rehearing), 420 Mich. 567, 363 N.W.2d 641 (1984), the Supreme Court examined MCL 691.1407(1). It first discussed the "ancient common-law concept" of sovereign immunity, Ross, 420 Mich. at 597, 363 N.W.2d 641, and later stated:

Ross clearly indicates that exceptions to sovereign immunity must be granted by the Legislature. Again, the Legislature has not provided such an exception for trespass-nuisance claims.2 We thus hold that DOT was entitled to summary disposition with regard to plaintiffs' trespass-nuisance claim.

In their cross-appeal, plaintiffs claim that the trial court should not have granted defendants summary disposition with regard to the inverse-condemnation claim. In reviewing a motion for summary disposition under MCR 2.116(C)(10), this Court considers the pleadings, depositions, admissions, and other documentary evidence in the light most favorable to the nonmovant. Morris & Doherty, PC v. Lockwood, 259 Mich.App. 38, 42 n. 2, 672 N.W.2d 884 (2003). If the evidence fails to demonstrate a genuine issue of material fact, the movant is entitled to judgment as a matter of law. Franchino v. Franchino, 263 Mich.App. 172, 181, 687 N.W.2d 620 (2004). A genuine issue of material fact exists when, after the court reviews the record in the light most favorable to the nonmovant, there remains an issue upon which reasonable minds could differ. West v. Gen. Motors Corp., 469 Mich. 177, 183, 665 N.W.2d 468 (2003).

"`Eminent domain' or `condemnation' is the power of a government to take private property." Silver Creek Drain Dist. v. Extrusions Div., Inc., 468 Mich. 367, 373, 663 N.W.2d 436 (2003). The United States Constitution precludes the federal government from taking private property unless it is taken for a public use and with just compensation. US Const, Am V. Similarly, the Michigan Constitution requires that "[p]rivate property shall not be taken for public use without just compensation." Const. 1963, art. 10, § 2. Additionally, MCL 213.55(1) requires that, in the event the parties fail to agree with regard to the purchase of the property, courts ascertain and determine just compensation to be made for condemned property.

"An inverse or reverse condemnation suit is one instituted by a landowner whose property has been taken for public use without the commencement of condemnation proceedings." Electro-Tech, Inc. v. H F Campbell Co., 433 Mich. 57, 88-89, 445 N.W.2d 61 (1989) (citation and quotation marks omitted). "While there is no exact formula to establish a de facto taking, there must be some action by the government specifically directed toward the plaintiff's property that has the effect of limiting the use of the property." Dorman v. Clinton Twp., 269 Mich.App. 638, 645, 714 N.W.2d 350 (2006) (citation and quotation marks omitted). Generally, a plaintiff alleging a de facto taking or inverse condemnation must establish (1) that the government's actions were a substantial cause of the decline of the property's value and (2) that the government abused its powers in affirmative actions directly aimed at the property. Hinojosa v. Dep't of Natural Resources, 263 Mich.App. 537, 548, 688 N.W.2d 550 (2004). "Further, a plaintiff alleging inverse condemnation must prove a casual connection between the government's action and the alleged damages." Id. Additionally,

In cases involving a "legalized nuisance," e.g., "the persistent passing of trains on a railroad, or planes in the air, or vehicles on the road," a plaintiff must allege that the property is directly affected in a manner that is unique or peculiar relative to the property of other similarly situated persons. Spiek v. Dep't of Transp., 456 Mich. 331, 345, 572 N.W.2d 201 (1998).

In Spiek, 456 Mich. at 334, 572 N.W.2d 201, the plaintiffs' residence abutted the service drive to an interstate highway, and they initiated an inverse-condemnation action against the defendant, "alleging that defendant's actions in locating the service drive adjacent to their property had `so interfered with Plaintiffs' quiet use and enjoyment of the property as to render it worthless, and to constitute a taking of property for public purpose without payment of just compensation....'" The trial court granted the defendant's motion for summary disposition "`as a matter of public policy.'" Id. at 336, 572 N.W.2d 201. This Court reversed, concluding that the plaintiffs should have been afforded an opportunity to establish that their use and enjoyment of the property was affected detrimentally to a degree greater than the public. Id. The Supreme Court granted leave to appeal "to decide whether noise, dust, vibration, and fumes experienced by owners of property along an interstate freeway constitute a taking of a recognized property interest where the effects alleged are not unique or peculiar in character." Id. at 332, 572 N.W.2d 201.

The Supreme Court opined that if "a legalized nuisance affects all in its vicinity in common, damages generally are not recoverable under just-compensation theory" because such common injuries are "incidental effects not amounting to an appropriation." Id. at 345, 572 N.W.2d 201. The Court discussed the common-law doctrine of damnum absque injuria: "`Loss, hurt, or harm without injury in the legal sense; that is, without such breach of duty as is redressible by a legal action. A loss or injury which does not give rise to an action for damages against the person causing it.'" Id. at 346, 572 N.W.2d 201, quoting Black's Law Dictionary (6th ed).

The Spiek Court noted that if

The Court specifically explained:

The Court opined further:

The Supreme Court concluded that the defendant was entitled to summary disposition because the plaintiffs had failed to overcome the doctrine of damnum absque injuria by failing to "alleg[e] harm of a character different from that suffered by all living in similar proximity to a highway." Id. at 350, 572 N.W.2d 201. The Court found that the "plaintiffs' complaint alleges the same type of incidental and consequential harm as is experienced by all persons similarly situated to plaintiffs in that they reside near a public highway." Id. The Court further rejected the plaintiffs' assertion "that recovery was available if the harm suffered merely differed in degree from the inconvenience experienced by the public at large." Id. The Court ultimately held:

In this case, defendants used salt as a means to prevent ice from building up on public highways and roads. Notably, plaintiffs allege that the harm is caused not by the act of administering salt to the highways and roads, but as a result of traffic causing salt spray to ultimately invade plaintiffs' property, thereby harming their blueberry crops. Ottawa County formed the Ottawa County Road Salt Commission to identify strategies to modify Ottawa County's winter road maintenance to prevent further environmental impacts related to the application of road salt. A survey was conducted, which estimated losses to blueberry production for 2003. The survey looked at 16 property owners with 32 farms. Fifteen farms did not provide any information regarding losses. The other 17 farms listed losses ranging from $3,000 to $200,000. Seven farms listed losses of less than $10,000; seven farms listed losses between $10,000 and $50,000; one farm listed losses of $80,000; one farm listed losses of $120,000; and one farm listed losses of $200,000. The road salt commission noted that the environmental impact from road salt received attention after blueberry growers reported damage to blueberry bushes near roadways. The road salt commission also acknowledged:

The road salt commission's report, Recommendations for Salt Management, generally focused on the environmental impact on blueberry crops. Nevertheless, as noted in the report's facts and findings regarding impacts of road salt usage:

The road salt commission also provided measures designed to eliminate the damaging effects of road salt exposure to blueberries by establishing windbreaks using salt resistant tree species, placing the first row of blueberry plantings at least 300 feet from the road, digging irrigation ponds at the back of the field away from roads, and improving drainage around fields.

Certainly, plaintiffs have suffered some kind of loss as a result of the application of the road salt; however, their claims are precluded under the common-law doctrine of damnum absque injuria. See Spiek, 456 Mich. at 346, 572 N.W.2d 201. Ultimately, the harm is akin to that resulting from "the amount of traffic traveling a particular highway at a particular time...." See id. at 349, 572 N.W.2d 201. The by-product pollution is suffered by all people owning land adjacent to the salted roads, and the harm-causing factors are "unrelated to and out of the control of the state." Id. "[A]cts done in the proper exercise of governmental powers, and not directly encroaching upon private property, though their consequences may impair its use, are universally held not to be a taking within the meaning of the constitutional provision." Case v. Saginaw, 291 Mich. 130, 141, 288 N.W. 357 (1939) (citation and quotation marks omitted). Thus, such acts do not entitle the property owner to compensation from the state. Id. at 141-142, 288 N.W. 357.

Plaintiffs maintain that their injury is different from other similarly situated property owners. Plaintiffs emphasize the loss of their cash crop as compared to other property owners' lawns, ornamental plantings, or incidental roadside vegetation. However, plaintiffs' injury clearly is merely of a different degree than that suffered by the public at large and therefore is not actionable. Spiek, 456 Mich. at 350, 572 N.W.2d 201.

Affirmed in part, reversed in part, and remanded for entry of judgment in favor of DOT. We do not retain jurisdiction.

MURRAY, J., concurred.

BECKERING, J. (concurring).

I concur in the result reached by the majority in this matter, but write separately to elaborate on the majority's analysis and why we are compelled to dismiss plaintiffs' claims.

In reaching its conclusion that there is no trespass-nuisance exception to the doctrine of sovereign immunity, the majority relies in part on Ross v. Consumers Power Co. (On Rehearing), 420 Mich. 567, 363 N.W.2d 641 (1984), which predates Pohutski v. City of Allen Park, 465 Mich. 675, 641 N.W.2d 219 (2002). In Pohutski, our Supreme Court held that the first sentence of MCL 691.1407(1) contains no trespass-nuisance exception to governmental immunity for cities. Pohutski, 465 Mich. at 689-690, 641 N.W.2d 219. MCL 691.1407(1) provides:

The Pohutski Court cited Ross, a pre-Hadfield1 case, for the propositions that because the state created the courts, it is not subject to the courts, that the governmental tort liability act "`was intended to provide uniform liability and immunity to both state and local governmental agencies' when involved in a governmental function," and that by enacting the second sentence of MCL 691.1407(1), the Legislature meant to ensure that "`by restoring to municipal corporations immunity for governmental functions and making uniform the immunity of all governmental entities for governmental functions [in the first sentence], it was not thereby waiving the state's common-law absolute sovereign immunity for non-governmental functions....'" Pohutski, 465 Mich. at 681-683, 693, 641 N.W.2d 219, citing and quoting Ross, 420 Mich. at 598, 605, 614, 363 N.W.2d 641, and Ross, 420 Mich. at 669, 363 N.W.2d 641 (LEVIN, J., dissenting in part). The Court specifically refrained, however, from interpreting or applying the second sentence of MCL 691.1407(1), stating that the second sentence did not apply because the state was not a party, and therefore, it would not "explicate fully the meaning of the second sentence" or make any "determinations regarding common-law [trespass-nuisance] exceptions to the state's governmental immunity." Pohutski, 465 Mich. at 688 n. 1, 689, 641 N.W.2d 219. The Court also stated that, "at most, the language of the second sentence requires an historical analysis of the state's sovereign immunity, but we have no occasion to undertake such an analysis here." Id. at 688 n. 1, 641 N.W.2d 219 (emphasis omitted). In concluding that the second sentence contains no trespass-nuisance exception to sovereign immunity, the majority in this case also cites Ross, reiterating and expanding upon the propositions previously cited in Pohutski. Although Ross predated Pohutski and was superseded in part on other grounds by MCL 691.1407(5), the portions of Ross cited in the majority opinion remain good law.

I agree with the majority's outcome primarily, however, because an historical analysis of sovereign immunity before July 1, 1965, reveals no indication that a common-law exception existed with respect to trespass-nuisance claims against the state. As noted by the majority, plaintiffs cite only Hadfield, 430 Mich. 139, 422 N.W.2d 205, in support of their contention that the second sentence of MCL 691.1407(1) preserves the common-law exception for trespass-nuisance claims against the state. The Hadfield Court conducted an extensive historical analysis in its decision; however, the 13 cases referenced in that decision do not shed any light on the concept of sovereign immunity. Significantly, the defendants in those cases, which focus primarily on "nuisance" claims, fall under the "political subdivision" definition of MCL 691.1401(b), not the "state" definition of MCL 691.1401(c). See Pennoyer v. Saginaw, 8 Mich. 534 (1860) (the defendant was a city); Sheldon v. Village of Kalamazoo, 24 Mich. 383 (1872) (the defendant was a village); Ashley v. Port Huron, 35 Mich. 296 (1877) (the defendant was a city); Rice v. City of Flint, 67 Mich. 401, 34 N.W. 719 (1887) (the defendant was a city); Seaman v. City of Marshall, 116 Mich. 327, 74 N.W. 484 (1898) (the defendant was a city); Ferris v. Detroit Bd. of Ed., 122 Mich. 315, 81 N.W. 98 (1899) (the defendant board of education was a political subdivision); Kilts v. Kent Co. Bd. of Supervisors, 162 Mich. 646, 127 N.W. 821 (1910) (the defendant county board of supervisors was a political subdivision); Attorney General, ex rel. Wyoming Twp. v. Grand Rapids, 175 Mich. 503, 141 N.W. 890 (1913) (litigation between municipalities); Donaldson v. City of Marshall, 247 Mich. 357, 225 N.W. 529 (1929) (the defendant was a city); Robinson v. Wyoming Twp., 312 Mich. 14, 19 N.W.2d 469 (1945) (the defendant was a township); Rogers v. Kent Bd. of Co. Rd. Comm'rs, 319 Mich. 661, 30 N.W.2d 358 (1948) (the defendant was a political subdivision); Defnet v. Detroit, 327 Mich. 254, 41 N.W.2d 539 (1950) (the defendant was a city); Herro v. Chippewa Co. Rd. Comm'rs, 368 Mich. 263, 118 N.W.2d 271 (1962) (the defendant was a political subdivision). As such, the defendants in those cases could not be afforded sovereign immunity. See Myers v. Genesee Co. Auditor, 375 Mich. 1, 6, 133 N.W.2d 190 (1965) ("Sovereign immunity is a specific term limited in its application to the State and to the departments, commissions, boards, institutions, and instrumentalities of the State.") (emphasis omitted). Plaintiffs cite no caselaw establishing that any exceptions to governmental immunity with respect to political subdivisions before 1965 are to be imputed to sovereign immunity as well.

Additionally, I note that footnote 2 of the majority opinion briefly addresses plaintiffs' argument that their trespass-nuisance claim rises to the level of an unconstitutional-taking claim and is, therefore, exempt from sovereign immunity. The footnote states: "We need not decide whether such a taking claim would be exempt from sovereign immunity because, as noted later in this opinion, plaintiffs have failed to set forth the necessary allegations to constitute an unconstitutional-taking claim." While I agree with this statement, it is worth noting that while trespass-nuisance and unconstitutional-taking claims are similar, they remain distinct actions.

In Hinojosa v. Dep't of Natural Resources, 263 Mich.App. 537, 688 N.W.2d 550 (2004), this Court discussed the distinction between claims for trespass-nuisance and unconstitutional taking. The Hinojosa Court first discussed the applicability of Buckeye Union Fire Ins. Co. v. Michigan, 383 Mich. 630, 178 N.W.2d 476 (1970),2 noting:

This Court also noted:

This Court underscored that although judicial decisions have closely associated trespass-nuisance with the Taking Clause, the former action remains a tort. Hinojosa, 263 Mich.App. at 546, 688 N.W.2d 550. See also Peterman v. Dep't of Natural Resources, 446 Mich. 177, 206-207, 521 N.W.2d 499 (1994) (a constitutional taking and the tort of trespass-nuisance are distinct actions).

The Hinojosa Court concluded:

The Hinojosa Court held that the plaintiffs failed to state a cause of action for a "`taking'" or "`inverse condemnation.'" Id. at 548, 688 N.W.2d 550.

In sum, courts of this state have held that trespass-nuisance and unconstitutional taking are distinct actions. Our Supreme Court has not yet addressed whether facts that might establish liability for trespass-nuisance could establish an unconstitutional-taking claim. See id. at 547, 688 N.W.2d 550. It is clear, however, that while our Legislature has the constitutional authority to modify or abolish the ability to bring trespass-nuisance claims against the state, an unconstitutional-taking action may not be limited except as provided by the Michigan Constitution. [Id. at 546, 688 N.W.2d 550.] Thus, if plaintiffs alleged a taking, they may have a cause of action. As stated by the majority, however, we need not address that issue because plaintiffs failed to set forth the allegations necessary to establish an unconstitutional taking.

Finally, in regard to plaintiffs' inverse-condemnation claim, I agree with the majority's conclusion that the difference between the injuries suffered by plaintiffs and similarly situated property owners is best categorized as one of degree, and not of kind, and therefore, plaintiffs' claim must fail. I acknowledge, however, that this is a close call requiring careful consideration.

The majority compares this case to Spiek v. Dep't of Transp., 456 Mich. 331, 333-334, 572 N.W.2d 201 (1998), wherein the plaintiffs brought an inverse-condemnation action against the defendant for locating an interstate highway service drive adjacent to their residential property. The plaintiffs' complaint alleged that the service drive produced "an essential change in the neighborhood [that] ... violated restrictive covenants in the subdivision ... [and] caused grave and serious damage to the value of the ... property by increasing dramatically the levels of noise, vibrations, pollution and dirt in the once-residential area ... [thus] destroying the desirability of the ... property as an area for living and ... destroying the acceptability of the property for residential purposes." [Id. at 334, 572 N.W.2d 201.]

As noted in the majority opinion for this case, the Spiek Court held that damages are not recoverable for a "legalized nuisance" such as "the persistent passing of trains on a railroad, or planes in the air, or vehicles on the road" unless "the plaintiff alleges that the property is directly affected in a manner that is unique or peculiar in comparison to the property of other similarly situated persons...." Id. at 345-346, 572 N.W.2d 201. The plaintiff must allege an injury "different in kind, not simply in degree, from the harm suffered by all persons similarly situated." Id. at 348, 572 N.W.2d 201. Significantly, the Spiek Court further stated:

The Spiek Court reversed the decision of the Court of Appeals and reinstated the Court of Claims order granting summary disposition to the defendant, concluding that the plaintiffs had failed to state a claim upon which relief could be granted because they did not allege harm to their property that differed "in kind from the harm suffered by all living in proximity to a public highway in Michigan." Id. at 350, 572 N.W.2d 201. Rather, the plaintiffs' complaint alleged "the same type of incidental and consequential harm as is experienced by all persons similarly situated to plaintiffs in that they reside near a public highway." Id.

In this case, plaintiffs allege that the spreading of salt on public highways and primary county roads adjacent to their blueberry fields ultimately results in reduced blueberry production. According to plaintiffs, after the salt is spread, passing vehicles and the wind throw salt water onto their fields, causing damage to blueberry bushes and reduced production from those bushes. The spreading of salt on the roads may be categorized as a "legalized nuisance" comparable to locating a highway service drive near residential property, resulting in increased levels of noise, vibration, pollution, and dirt from traffic flow. See id. at 345, 572 N.W.2d 201. Therefore, like the plaintiffs in Spiek, plaintiffs in this case must allege an injury "different in kind, not simply in degree, from the harm suffered by all persons similarly situated." Id. at 348, 572 N.W.2d 201. Plaintiffs' injury must be unique or peculiar. See id. at 346, 572 N.W.2d 201.

As our Supreme Court articulated in Spiek, it would be unworkable to apply a degree-of-harm threshold, rather than a difference-in-kind threshold, in the context of traffic flow. Id. at 349, 572 N.W.2d 201. It would also be unworkable under the facts of this case. The road commissions responsible for spreading salt do so to prevent the formation of ice on public highways and primary county roads during the winter months. The amount of salt spread on the roads directly correlates to the severity of the weather. According to plaintiffs, once the salt is spread, salt water is thrown onto their fields by passing vehicles and the wind. Thus, the degree of harm suffered by plaintiffs is largely dependent on the weather over the course of the winter, which is out of defendants' control, and traffic flow, which may also be affected by factors out of defendants' control. Requiring the state and county road commissions to litigate every case in which vegetation is damaged by salt spray would seriously impede their ability to protect Michigan's citizens from the hazards presented by ice-covered roads. I agree with the Spiek Court that under facts such as these, a legislative remedy is more appropriate than a judicial remedy. The legislative branch is the appropriate branch to weigh the safety hazards presented by ice-covered roads roads against the environmental and economic impact of salt usage and, if deemed necessary, order that the spreading of salt be reduced or replaced with an alternative method of deicing the roads.

Plaintiffs claim that the harm they suffer is of a different kind than the harm suffered by those similarly situated. Plaintiffs liken their situation to that experienced by the respondents in United States v. Causby, 328 U.S. 256, 258-259, 66 S.Ct. 1062, 90 L.Ed. 1206 (1946), wherein the persistent intrusion of low-flying army and navy aircraft accessing the glide path of a runway by passing approximately 83 feet over the respondents' property, 67 feet above their house, 63 feet above the barn, and 18 feet above the highest tree forced the respondents to give up using their property as a commercial chicken farm. The United States Supreme Court held that such conduct (which involved traveling below the navigable airspace of the United States)3 amounted to a physical invasion of the property entitling the respondents to compensation for the taking of their property. Id. at 265-267, 66 S.Ct. 1062. Plaintiffs argue that the respondents in Causby prevailed because their harm was distinguishable from others who suffered the mere normal inconveniences of modern air travel over their lands at higher altitudes. Plaintiffs contend that, like the respondents in Causby, they have suffered a unique injury, namely the destruction of their crops hundreds of feet from the roadsides as compared to other property owners who have suffered the incidental burning of some of their lawns. But, unlike the respondents in Causby, plaintiffs do not suggest that their properties have been singled out in some way. Rather, they claim that the harm they suffer — damage to their blueberry bushes — is unique because it is economic in nature. Plaintiffs engage in commercial blueberry production, and when their bushes are damaged and rendered less productive, the damage affects plaintiffs' economic viability. While there is merit to the argument that the harm suffered by plaintiffs is different from that suffered by a property owner who, for example, has lost merely a section of lawn or decorative plantings as a result of salt spray, I must agree with the majority that the difference between the injuries is best categorized as one of degree, and not of kind. First, as noted in the majority opinion, there is evidence that blueberry bushes are not the only type of vegetation affected by the spreading of salt on the roads. The report issued by the road salt commission indicates that salt usage damages roadside trees and ornamental plants. It may also negatively affect our ecosystems by raising the level of chloride in nearby bodies of water. Therefore, it is reasonable to presume that persons who use their roadside properties for the commercial production of trees or ornamental plants, or any other type of commercial enterprise that may be negatively affected by the spreading of salt on the roads, would suffer the same kind of injury as plaintiffs. Moreover, in cases where a property owner loses merely decorative plantings or any other type of vegetation that was not intended to produce a profit, the owner loses not only the value of that particular vegetation, which may be substantial if, for example, the owner has costly ornamental plantings along the roadside, but also the option to use the roadside property to grow any new vegetation that would be damaged by salt spray, including cash crops.

Because the harm suffered by plaintiffs differs only in degree, and not in kind, from the harm suffered by those similarly situated, I agree with the majority that plaintiffs' inverse-condemnation claim must fail.