RIGHT TO EXCLUDE – Adams v. Cleveland Cliffs Iron Co. (1999)
Court of Appeals, MI
602 N.W.2d 215
Author: ERL

Procedural Posture: D appeals from a jury verdict awarding damages in trespass for intrusion of dust, noise, and vibrations. (amount of award is approximately $600K)

Facts:  Ps brought suit seeking damages in both trespass and nuisance for dust, noise, and vibrations coming from D’s iron ore plant.  D’s mine is in operation continuously, never ceasing.  Jury instructions in trial court instructed them on both trespass and nuisance, and jury found damages in trespass.  It did not reach a conclusion as to nuisance.

Issues:  Do plaintiffs have a sustainable action under trespass? >No.

            Do plaintiffs have a sustainable action under nuisance? >Possibly.

Holding: Reversed as to trespass finding, remanded for further proceedings regarding nuisance.

Rationale:  The court narrowed the definition of trespass to only include tangible trespasses, so that P could only recover under nuisance theory.  They wanted to avoid further confusion and delineation between the two theories because they are different and apply to different situations.  They want to ‘keep the line between the torts of trespass and nuisance from fading into a wavering and uncertain ambiguity.’  However, they did not decide anything as far as the nuisance claim because the jury had not decided it.  It was remanded on this issue.