Recently, in Sholberg v Truman, the Michigan Supreme Court affirmed the notion that the title owner of real property isn’t always the same as one who is in “possession and control” for purposes of a public nuisance claim. Much like in cases of premises liability, if another party is exercising control over the property and created the nuisance, the title holder cannot be held liable.
Terri Sholberg died when her car hit a horse that was standing in the road. The horse had escaped from a farm owned by Robert and Marilyn Truman. Sholberg’s estate representative brought an action against the Trumans, as well as Robert’s brother Daniel, who owned the wayward horse. But other than being the title holders of the farm, Robert and Marilyn had nothing to do with the farm or any of the animals on it. In addition, they didn’t know or have reason to know that Daniel Truman’s animals were escaping the property.
While knowledge isn’t an element of a nuisance claim under Michigan law, the Court found that Robert and Marilyn Truman’s lack of knowledge was evidence of their lack of possession or control of the property. The Court held that mere ownership of land does not give rise to liability for a nuisance created by a third party in possession of the land.
In an opinion that partially dissented from the majority, Justice Viviano took issue with the fact that Robert and Marilyn Truman may in fact have been more than “mere landowners.” Not only did they hold sole title to the land, but they maintained insurance on the property, and took out a mortgage on it in 2010 which included terms requiring them to maintain the property and prohibiting them from permitting a nuisance on or abandoning the property. Justice Viviano ultimately agreed in the result because he noted that knowledge is a crucial element of nuisance in cases where a third party creates the nuisance. In fact, he went so far as to say that knowledge should be adopted as a required element in cases such as this one. Robert and Marilyn Truman had no knowledge that of the alleged nuisance – the errant horse – and could not be held responsible for Sholberg’s death.