O'CONNELL, J.
Plaintiffs, Arath II, Inc., and Arath IV, Inc., appeal as of right the final order of the Kent Circuit Court granting summary disposition in favor of defendants, Heukels County Drain District (the drain district) and the Kent County Drain Commissioner, pursuant to MCR 2.116(C)(8) and (10). We affirm.
The drain district, located in Kent County, was established by a final order of
Plaintiffs are related Michigan corporations.
Arath filed its complaint in this case on June 6, 2008, alleging that the design of the drain district caused flooding on its property. According to Arath, the Heukels Drain diverted storm water exceeding natural flow volume and rate from the area north of I-96 through 48-inch-diameter culverts under both westbound and eastbound I-96 to Oak Industrial Court. When the water entered Oak Industrial Court, it apparently traveled south over a portion of Arath's property and through a 24-inch-diameter culvert under the Mid-Michigan Railroad tracks. From there, the water would continue to flow south to 2925 Michigan Street, a parcel of land owned by the city of Grand Rapids, and flow under Michigan Street, where an overflow structure had been installed.
In its complaint, Arath first sought an order for superintending control to compel the drain commissioner to construct a 48-inch-diameter culvert under the Mid-Michigan Railroad tracks and to remove the overflow structure under Michigan Street. Arath also argued that defendants' failure to undertake the maintenance and improvements necessary to prevent excess storm water from being diverted onto and detained on Arath's property constituted a trespass on Arath's property. In its request for relief, Arath asked that the trial court "enter an Order in Plaintiffs' favor enjoining Defendants from continuing their trespass, and further Order Defendants to complete the necessary maintenance, repair and improvements more specifically identified above."
Defendants moved for summary disposition pursuant to MCR 2.116(C)(8) and (10), claiming, in pertinent part, that Arath could not seek an order for superintending control to compel the drain commissioner
In 2007, Arath's president, James Azzar, apparently attempted to install a 48-inch-diameter culvert near the Mid-Michigan Railroad tracks in order to address the flooding on Arath's property. The MDEQ issued a public notice regarding the project on June 26, 2007. When the drain commissioner's office received the notice, it informed Azzar that he was required to receive a permit from the drain commissioner's office in order to continue the project and the drain commissioner's office enclosed a permit application. However, on August 21, 2007, the MDEQ refused to approve the project and denied Azzar's request for a permit to install the 48-inch-diameter culvert. In explaining its decision, the MDEQ noted that "the proposed project will have a greater adverse impact to regulated resources than is required to achieve the project purpose." Azzar petitioned for reversal of the denial, but the record does not indicate whether this petition was successful.
The trial court granted defendants' motion for summary disposition pursuant to MCR 2.116(C)(8) and (10), finding that summary disposition was appropriate because Arath "did not follow the law and did not file a petition with the drain commission[er]."
On appeal, Arath claims that the trial court erred by dismissing its underlying cause of action in this case. According to Arath, it was not required to file a petition with the drain commissioner before commencing this cause of action because it did not seek the repair or maintenance of an existing drain. Instead, Arath appears to argue that because there is no "public drain" on its property, it is somehow exempt from filing a petition and, instead, is entitled to seek injunctive relief requiring defendants to repair and maintain the drain in order to prevent an overflow of storm water onto its property.
However, in its complaint, Arath indicates that it is simply seeking an injunction to force defendants to make repairs and improvements to certain portions of the Heukels Drain that it believes are necessary to prevent the overflow of storm water onto its property.
However, the Drain Code, MCL 280.1 et seq. makes clear that when a landowner whose property is in a particular drain district wants the drain to be cleaned or improved in some manner, that landowner, in conjunction with a certain number of other landowners whose lands would also be liable for assessment to pay for such work, should petition the drain commissioner to perform the requested work. MCL 280.191.
Arath does not dispute that its property is located in the drain district. Further, in its complaint, it notes that "[t]he
In Bosanic, the plaintiffs sought recovery from the county drain commissioner for damages arising from the flooding of their homes. Bosanic, 277 Mich.App. at 278, 745 N.W.2d 513. In particular, the plaintiffs claimed that the drain commissioner was, in part, responsible for the undersized drain system in their subdivision that, they claimed, caused the flooding. Id. The Bosanic Court concluded that recovery was precluded under MCL 691.1417 because before the flooding occurred, no petition had been filed or determination made directing the drain commissioner to "`repair, correct, or remedy'" any problem in the drain system. Bosanic, 277 Mich.App. at 285, 745 N.W.2d 513. "In the absence of those prerequisite actions, defendant had no authority to address the defect in the drain system." Id. at 285-286, 745 N.W.2d 513.
Admittedly, the Bosanic Court addressed whether the plaintiffs could seek damages from the drain commissioner under an exception to governmental immunity set forth in MCL 691.1417. However, the rationale set forth by the Bosanic Court's decision is also applicable to this case: The Drain Code limits the authority of a drain commissioner to remedy defects to a drain by requiring outside actors to undertake prerequisite actions before providing the drain commissioner with authority to act.
In its complaint, Arath also requested that the trial court determine whether the detention and diversion of excess storm water on its property constitutes a trespass. Yet again, it appears that the "trespass" to which Arath refers is the overflow of excess water onto Arath's property caused by poorly designed culverts in the Heukels Drain.
In addition, MCL 280.195 permits the drain commissioner to obtain any right-of-way from Arath that it might need in order to undertake a project to maintain or improve the Heukels Drain. Therefore, if the drain commissioner were to receive the authority to improve and repair the Heukels Drain in the manner sought by Arath, it would have the authority to obtain any necessary right-of-way in the manner set forth in the Drain Code.
Affirmed.