Leon Bishop v. Toby Kemp ( 2023 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
LEON BISHOP, UNPUBLISHED
August 24, 2023
Plaintiff-Appellant,
v No. 360685
Saginaw Circuit Court
TOBY KEMP, TERRY KEMP, and LINDA KEMP, LC No. 20-043061-CH
Defendants-Appellees.
Before: GADOLA, P.J., and M. J. KELLY and SWARTZLE, JJ.
PER CURIAM.
Plaintiff, Leon Bishop, appeals as of right the trial court order dismissing with prejudice
his complaint for declaratory judgment following a bench trial. Finding no errors, we affirm.
I. BASIC FACTS
The parties own adjacent properties in Chesaning Township. At trial, they stipulated that
Bishop owned the property to the north, that his property had a lower elevation, and that it naturally
received surface water from the property owned by defendants, Toby Kemp, Terry Kemp, and
Linda Kemp.
When Bishop purchased his property in 2000, he was aware that there was an open ditch
on the adjoining property that naturally drained onto his property. Further, at the border of the two
properties, there is a ravine located entirely on Bishop’s property that goes to the Shiawassee River.
On two occasions, Bishop made improvements to the ravine by adding “field stones” to the bottom.
He testified that the first time he did so, water from the drainage tiles on the adjoining property
caused erosion damage and forced him to redo his improvements.
Sometime in 2003 or 2004, Bishop, concerned about erosion on his property, plugged three
drainage tiles—one 10-inch tile and two 8-inch tiles—on the adjoining property that were
discharging water onto his property. This led to the adjoining property flooding and its then-
owners, David and Dianne Kuchar, suing him for damages. As a result of the lawsuit, Bishop was
ordered to pay damages and to unplug the 10-inch tile, which was permitted by a 1951 easement.
He was not ordered to uncap the 8-inch tiles. Bishop testified that after the 2005 lawsuit, the
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Kuchars did not leave the two 8-inch tiles capped; instead, they installed a crock, tied the 8-inch
tiles to the crock, and then installed a 12-inch tile off of the crock so that the water would drain
onto Bishop’s property. He submitted a photograph purporting to show the 12-inch tile “dumping”
water onto his property, but admitted that the outlet was not on his property.
In October 2016, the Kemps acquired the property from the Kuchars. The Kemps intended
the property to be an investment, and they leased it to a farmer. Because it was inefficient to farm
the property with the open ditch, the Kemps contracted with Pennington Farm Drainage to fill in
the ditch and replace it with one drainage tile. Michael Pennington, the contractor, testified that
in July 2020, he installed a 12-inch drainage tile and filled in the ditch. The drain ended
approximately 175 feet from Bishop’s property. Pennington testified, repeatedly, that the
replacement of the ditch with the 12-inch drain decreased the volume and the velocity of the water
flowing from the Kemps’ property to Bishop’s property. Bishop, in contrast, testified that he knew,
based upon a mathematical formula, that the 12-inch tile installed by Pennington increased the
volume and velocity of the water. He added that he “can’t really say” whether his property was or
was not damaged as a result of the 12-inch tile being installed by Pennington; however, he was
concerned that it would increase erosion.
Following the trial and relevant to the issues raised on appeal, the trial court found that, as
to the 12-inch tile installed by the Kuchars, Bishop had not presented any evidence indicating that
it increased the volume and velocity of the surface water, he had not attributed any specific erosion
to that drain, and he had presented “no information as to, historically, what the water flow was
prior to the installation of that drain, and what the water flow was after.” As a result, the court
found that it had “little evidence or basis to reach a conclusion as to that drain.” With regard to
the 12-inch drain replacing the open ditch, the court credited Pennington’s testimony that the tile
decreased rather than increased the volume or velocity of the water that used to naturally drain
from the ditch onto Bishop’s property. Thus, Bishop had not met his burden to show that the
Kemps changed the conditions of their land to put a greater burden on his property. Nor was there
any evidence of damage to Bishop’s property as a result of that drain being installed. Based on its
findings, the trial court concluded that “there is simply insufficient evidence” to support Bishop’s
claims, so it dismissed Bishop’s complaint with prejudice. This appeal follows.
II. DECLARATORY JUDGMENT
A. STANDARD OF REVIEW
Bishop argues that the trial court erred by denying his complaint for declaratory relief
relating to the two 12-inch drainage tiles on the Kemps’ property. A trial court’s decision to deny
a request for declaratory relief is reviewed for an abuse of discretion. Barrow v Detroit Election
Comm, 305 Mich App 649, 662; 854 NW2d 489 (2014). The court abuses its discretion if its
“decision is outside the range of reasonable and principled outcomes.” Id. (quotation marks and
citation omitted). The trial court’s findings of fact following a bench trial are reviewed for clear
error. Chelsea Inv Group LLC v Chelsea, 288 Mich App 239, 250; 792 NW2d 781 (2010). “A
finding is clearly erroneous if there is no evidentiary support for it or if this Court is left with a
definite and firm conviction that a mistake has been made.” Id. Great deference is given to the
court’s factual findings. Id. The court’s conclusions of law, however, are reviewed de novo. Id.-2-
B. ANALYSIS
It is well-established “that the natural flow of surface waters from the upper, dominant
estate forms a ‘natural servitude’ that encumbers the lower, servient estate.” Wiggins v City of
Burton, 291 Mich App 532, 563; 805 NW2d 517 (2011) (citation omitted). “The owner of the
lower, servient estate must bear this natural servitude, and is bound by law to accept the natural
flow of surface waters from the upper, dominant estate.” Id. “[T]he owner of the upper estate has
no right to increase the amount of water that would otherwise naturally flow onto the lower estate.”
Id. Thus, “the owner of the dominant estate may not, by changing conditions on his land, put a
greater burden on the servient estate by increasing and concentrating the volume and velocity of
the surface water.” Id. at 564.
Bishop complains that the 12-inch tile installed by Pennington altered the natural flow of
the water. The parties stipulated that the water naturally flowed north from the Kemps’ property
to Bishop’s property. Bishop directs this Court to Pennington’s testimony that he installed two
catch basins to collect water and divert it into the 12-inch tile that replaced the natural ditch.
Bishop argues that because at least one of the catch basins is not directly over the 12-inch tile, the
basin necessarily diverts water from the west or east instead of from the south to the north.
Pennington, however, testified that the catch basins were only used as a replacement for the natural
flow of the water. Bishop also points to Pennington’s testimony that he tied a preexisting 6-inch
clay tile with an outlet on the west side of the ditch into the 12-inch tile. With respect to both the
catch basins and the 6-inch tile, Bishop has only pointed to facts that support a finding that the
Kemps—or their predecessors in interest—made a change to the conditions of the land. A change
to the condition of the dominant estate, however, is only impermissible if the change puts a greater
burden on the servient estate by increasing and concentrating the volume and velocity of the
surface water. Wiggins, 291 Mich App at 563-564.
Here, the trial court found that the 12-inch drain installed by Pennington did not increase
the volume and velocity of the surface water. On appeal, Bishop contends that finding was
erroneous. In support, he points to his own testimony that the water from the 12-inch tile was
being discharged at a much higher rate than the natural discharge from the open ditch. However,
the trial court credited Pennington’s testimony that the volume and velocity of the water discharged
onto Bishop’s property was decreased, not increased. Pennington specifically testified that the
replacement of the open ditch with the 12-inch tile was a common-erosion control practice. It
decreased the volume of the discharge because the 12-inch tile was smaller than the open ditch.
Further, by decreasing the grade and “flattening the pipe,” he was able to decrease the velocity.
The trial court did not clearly err by crediting Pennington’s testimony instead of Bishop’s
testimony, and we defer to its credibility determinations. See Patel v Patel, 324 Mich App 631,
633; 922 NW2d 647 (2018).
Bishop next asserts that the 12-inch tile installed by the Kuchars was not permitted by the
1951 easement, amounts to a trespass, and should be removed, plugged, or rendered inoperable.
The diversion of surface water onto the property of another can constitute a trespass. Boylan v
Fifty Eight LLC, 289 Mich App 709, 723; 808 NW2d 277 (2010). However, in order to establish
a trespass claim, the intrusion must be unauthorized. Id. Here, Bishop argues that the tile
“concentrates a large amount of surface water and discharges it directly onto” his property. He
states that the discharge is causing significant erosion of his property. However, the record does
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not support his contention. At trial, he testified that the 12-inch tile installed by the Kuchars
discharges water onto his property. Yet, he did not present any evidence indicating that the tile
increased the volume and velocity of the natural flow of water onto his property. As stated above,
it is well-established that the owner of a servient estate must bear the natural flow of surface waters
from a dominant estate. Wiggins, 291 Mich App at 563-564. Thus, in order to prove that the
diversion of water was a trespass, Bishop had to first show that the 12-inch tile installed by the
Kuchars improperly increased the volume or velocity of the natural flow of water onto his property.
He presented no such evidence. Rather, as found by the trial court, there was no evidence regarding
the flow of the water before and after the 12-inch tile was installed by the Kuchars and thus left
the court with little evidence to reach a conclusion. Consequently, the court found that Bishop had
failed to meet his burden of proof as to the 12-inch tile installed by the Kuchars. Given that there
is, in fact, no evidence showing that the Kuchar tile increased the volume or velocity of the natural
flow of water onto Bishop’s property, the trial court did not clearly err by finding the evidence
insufficient.1
Affirmed. The Kemps may tax costs as the prevailing party. MCR 7.219(A).
/s/ Michael F. Gadola
/s/ Michael J. Kelly
/s/ Brock A. Swartzle
1
On appeal, Bishop suggests that the only artificial drainage permitted is the 10-inch tile permitted
by the 1951 easement. However, as made clear by Wiggins, the owner of a dominant estate may
replace a natural drain with an artificial drain so long as the change does not increase the burden
to the servient estate. See Wiggins, 291 Mich App at 563-564. Therefore, the fact that the 1951
easement only allows for a single 10-inch tile is not dispositive.
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