Posted by: Patricia Salkin | January 20, 2019

MI Appeals Court Holds Claims Arising from Hog Farm were Barred by the Statute of Limitations

This post was authored by Matthew Loeser, Esq.

 

Plaintiff filed this action claiming that defendants were raising approximately 20 domestic hogs on their property in violation of plaintiff’s zoning laws and that they were creating a nuisance due to the stench and flies drawn by deer and hog waste. Defendant Harvey Haney testified that privately owned deer or elk were no longer on the subject property, but admitted that he began raising hogs on the property in 2006. The record reflected that plaintiff did not offer any evidence that defendants continued to bring new hogs onto the property after 2006 or that defendants had actually began to raise hogs on the property after 2006. Nevertheless, plaintiff sought an injunction precluding defendants from continuing to raise hogs on the subject property. Defendants filed a motion for summary judgement on the basis that plaintiff’s claim was time-barred by the six-year general period of limitations under MCL 600.5813. The trial court denied defendants’ motion, holding that the statute of limitations did not apply against plaintiff because the case constituted an action in rem.

 

The court found that since there was no statutory provision holding otherwise, this claim accrued “at the time the wrong upon which the claim is based was done regardless of the time when damage results.” Here, plaintiff’s suit was for an abatement of a public nuisance that stemmed from the piggery kept on the subject property in violation of a local ordinance. As such, the wrong alleged for purposes of accrual occurred when defendants first began to keep hogs on the subject property. Because defendants presented undisputed evidence that they had kept hogs on the property since 2006, and plaintiff filed this suit in 2016, the court found plaintiff’s case was time-barred.

 

Plaintiff further contended that each day that defendants continued to keep pigs on the property constituted a separate violation for which the accrual period began anew.  The court noted that it had completely and retroactively abrogated the continuing wrongs doctrine in Michigan, including in nuisance cases. Moreover, no new wrongs accrued in this case as no evidence was presented by either party suggesting that defendants were adding new swine to the subject property. Accordingly, the court reversed and remanded the trial court’s denial of defendants’ motion for judgment.

 

Township of Fraser v Harvey, 2019 WL 254523 (MI App. 1/17/2019)


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