                                                                       Michigan Supreme Court
                                                                       Lansing, Michigan 48909
____________________________________________________________________________________________
                                                                C hief Justice                   Justices
                                                                Maura D. Cor rigan	              Michael F. Cavanagh




Opinion
                                                                                                 Elizabeth A. Weaver
                                                                                                 Marilyn Kelly
                                                                                                 Clifford W. Taylor
                                                                                                 Robert P. Young, Jr.
                                                                                                 Stephen J. Markman

____________________________________________________________________________________________________________________________

                                                                                      FILED APRIL 2, 2002





                ROBERT POHUTSKI, AMY POHUTSKI, KIERK

                SANDERLIN, JOELLE SANDERLIN, ALAN

                BULLION, ANTHONY CORBELL, PIETRO FUSCO,

                NORMA FUSCO, KAYE GARDNER, BEVERLY

                GARDNER, SHIRLEY KARAPETOFF, KAREN

                KEREZI, BRIAN LaFUENTE, MICHELLE

                LaFUENTE, RICHARD REFALKO, DOLORES

                RAFALKO, WILLIAM SHAMUS, KATHLEEN

                SHAMUS, and all others similarly

                situated, a certified class,


                        Plaintiffs-Appellees,


                v	                                                                             No.          116949


                CITY OF ALLEN PARK, a Michigan Municipal

                Corporation,


                        Defendant-Appellant,


                and


                JOHN DOE REPRESENTATIVES, EMPLOYEES, OR

                AGENTS OF THE CITY OF ALLEN PARK,

                Jointly and Severally,


                        Defendants.



                JEANNE JONES, JAMES JONES, ROGER TROST,

                CAROL TROST, MIKE ROBERT, MIKE BARTHLOW,

CINDY BARTHLOW, SUSAN BROWN, KENNETH

BROWN, SHIRLEY BRYANT, DAVID BURHANS,

MAGDALENA CHAVEZ, WILLIAM CHUNN, IVAN

GADJEV, FLORENCE GADJEV, REX GLASSON,

BARBARA GLASSON, KEVIN HALL, SONIA HALL,

LON HAMILTON, DIANE HAMILTON, WILLIAM

HATTON, ELIZABETH HATTON, BILL HOFSESS,

JOAN HOFSESS, JAMES HUBBLE, VIRGINIA

HUBBLE, SOUREN MERUCCI, ENERA MERUCCI,

MARY PEGORARO, PHIL PEGORARO, LUIS

PERESSINI, MICHAL ALLEN PETERS, MIGUEL

PRIETO, JILL PRIETO, TODD SNIDER, BETTY

ZAHER, and all other similarly situated,


     Plaintiffs-Appellees,


v                                                        No.   117935


CITY OF FARMINGTON HILLS, a Michigan

Municipal Corporation, and JOHN DOE

REPRESENTATIVES, EMPLOYEES, OR AGENTS OF

THE CITY OF FARMINGTON HILLS, Jointly

and Severally,


     Defendants-Appellants.



BEFORE THE ENTIRE BENCH


CORRIGAN, C.J.


     In these consolidated cases, this Court once again faces


whether the plain language of § 7 of the governmental tort


liability   act,   MCL   691.1407,    permits   a   trespass-nuisance


exception to governmental immunity. Because the Legislature’s


definition of the word “state” is clear and unambiguous, we


hold that it does not.     In so holding, we overrule Hadfield v


Oakland Co Drain Comm’r, 430 Mich 139; 422 NW2d 205 (1988),


and other cases to the contrary.          However, because we are




                                 2

mindful    of   the   effect    our           holding    will    have   on   the


administration of justice, we conclude that limiting our


holding to prospective application is appropriate. 


                                     I 

                FACTUAL BACKGROUND   AND      PROCEDURAL POSTURE


                                         A

                          POHUTSKI   V    ALLEN PARK


     The city of Allen Park experienced a “ten year storm” on


February 17 and 18, 1998.        As a result of the high volume of


rainfall, raw sewage from the city’s sewer system backed up


through plaintiffs’ floor drains and into their basements.


Plaintiffs filed a class action against the city of Allen Park


for trespass, nuisance, trespass-nuisance, negligence, and


unconstitutional taking in April 1998.                  Plaintiffs thereafter


sought summary disposition of their trespass-nuisance claim


under MCR 2.116(C)(10).        Plaintiffs argued that defendant was


liable as a matter of law under the doctrine of trespass­

nuisance and that Hadfield barred governmental immunity as a


defense.    Defendant opposed the motion, arguing that a claim


of trespass-nuisance required a showing of causation, and that


it could not be held strictly liable solely on the basis of


its ownership of the sewer system.


     In a brief opinion rendered from the bench, Wayne Circuit


Judge Edward Thomas granted plaintiffs’ motion for partial


summary    disposition,    holding            that   defendant   was    strictly



                                         3

liable under the “trespass-nuisance” exception to governmental


immunity. The Court of Appeals denied defendant’s application


for interlocutory review.         Unpublished order, entered May 23,


2000 (Docket No. 222238).


                                     B

                      JONES   V   FARMINGTON HILLS


     On August 6, 1998, a “one hundred year storm” dropped


approximately 4.6 inches of rain in less than six hours on the


city of Farmington Hills, causing flooding throughout the


community.   As a result, raw sewage from defendants’ sewer


system traveled up through plaintiffs’ floor drains and into


their basements.    Thirty-seven plaintiffs filed suit against


the city of Farmington Hills, alleging claims of trespass,


nuisance, trespass-nuisance, negligence, and unconstitutional


taking.   Plaintiffs moved for summary disposition of their


trespass-nuisance claim, arguing that defendant was liable as


a matter of law under Hadfield.           Defendant opposed the motion


and filed a counter motion for summary disposition, arguing


that trespass-nuisance is not a strict liability tort and that


plaintiffs had failed to establish causation or improper


construction, engineering, or maintenance of its sewer system.


     Oakland Circuit Judge Jessica Cooper denied defendants’


motion and granted plaintiffs’ motion for summary disposition


of their trespass-nuisance claim.             Judge Cooper held that


trespass-nuisance    was      a     recognized        exception   to   the


                                     4

governmental immunity statute, MCL 691.1407, and that no


genuine   issues    of    material        fact   existed   regarding     the


exception’s three elements: (1) a condition (nuisance or


trespass), (2) cause (physical intrusion), and (3) causation


or control (by government).


      After the trial court denied reconsideration, defendant


applied for leave to appeal in the Court of Appeals.                     The


Court of Appeals granted the application and stayed the


pending trial date. Plaintiffs then filed an emergency motion


for   rehearing.    The   Court    of     Appeals   granted      plaintiffs’


motion, vacated its earlier order, and denied leave to appeal.


Unpublished order, entered September 29, 2000 (Docket No.


227657).


                                  II 

                           STANDARD OF REVIEW


      This Court reviews a trial court’s decision to grant


summary disposition de novo.              Wickens v Oakwood Healthcare


System, 465 Mich 53, 59; 631 NW2d 686 (2001).                 Questions of


statutory interpretation are also reviewed de novo. In re MCI


Telecommunications, 460 Mich 396, 413; 596 NW2d 164 (1999).


                                  III 

                   THE GOVERNMENTAL TORT LIABILITY ACT


      From the time of Michigan’s statehood, this Court’s


jurisprudence has recognized that the state, as sovereign, is


immune    from   suit     unless     it     consents,      and    that   any



                                     5

relinquishment    of   sovereign        immunity   must   be    strictly


interpreted.     Manion v State Hwy Comm’r, 303 Mich 1, 19; 5


NW2d 527 (1942).       Sovereign immunity exists in Michigan


because the state created the courts and so is not subject to


them. Ross v Consumers Power Co (On Rehearing), 420 Mich 567,


598; 363 NW2d 641 (1984). 


     It   is   important   to   distinguish        between     “sovereign


immunity” and “governmental immunity”:


          “[S]overeign” immunity and “governmental”

     immunity are not synonymous. True, they have been

     over the years used interchangeably in decisions,

     but a delineation may be helpful.        Sovereign

     immunity is a specific term limited in its

     application to the State and to the departments,

     commissions,     boards,     institutions,     and

     instrumentalities of the State. The reason is the

     State is the only sovereignty in our system of

     government, except as the States delegated part of

     their   implicit   sovereignty  to   the   Federal

     government.


                                * * *


           .   .   .   Over  the    years,   by   judicial

     construction, this “sovereign” immunity has been

     transmogrified into “governmental” immunity and

     made applicable to the “inferior” divisions of

     government, i.e., townships, school districts,

     villages, cities, and counties, but with an

     important distinction.       These subdivisions of

     government enjoyed the immunity only when engaged

     in     “governmental”    as     distinguished    from

     “proprietary” functions. [Myers v Genesee Auditor,

     375 Mich 1, 6, 8-9; 133 NW2d 190 (1965) (opinion of

     O’HARA , J.) (emphasis in original).]


     In Williams v Detroit, 364 Mich 231, 250; 111 NW2d 1


(1961), Justice EDWARDS , joined by Justices T.M. KAVANAGH , SMITH ,



                                   6

and   SOURIS ,    wrote:    “From   this      date       forward       the   judicial


doctrine of governmental immunity from ordinary torts no


longer      exists   in    Michigan.          In    this    case,      we    overrule


preceding court-made law to the contrary.”                       Justice BLACK , in


his concurring opinion, stated that governmental immunity


would be abolished only for municipalities, not the state and


its subdivisions.          Id. at 278. 


      As we noted in Ross, supra at 605, the Legislature


enacted     the    governmental        tort    liability         act    in   1964   in


reaction to Williams’ abolition of common-law governmental


immunity for municipalities, and in anticipation of a similar


abrogation of immunity for counties, townships, and villages.


The   act    “was    intended     to    provide          uniform    liability       and


immunity to both state and local governmental agencies” when


involved in a governmental function.                       Id. at 614.         While


there is agreement regarding the statute’s intent, there has


been much disagreement regarding its meaning.


      When faced with questions of statutory interpretation,


our   obligation      is     to   discern          and    give     effect     to    the


Legislature’s intent as expressed in the words of the statute.


DiBenedetto v West Shore Hosp, 461 Mich 394, 402; 605 NW2d 300


(2000); Massey v Mandell, 462 Mich 375, 379-380; 614 NW2d


70(2000).        We give the words of a statute their plain and


ordinary meaning, looking outside the statute to ascertain the



                                         7

Legislature’s   intent       only    if    the    statutory    language      is


ambiguous.   Turner v Auto Club Ins Ass’n, 448 Mich 22, 27, 528


NW2d 681 (1995).        Where the language is unambiguous, “we


presume that the Legislature intended the meaning clearly


expressed--no further judicial construction is required or

          -

permitted, and the statute must be enforced as written.”


DiBenedetto,    supra   at    402.         Similarly,     courts    may     not


speculate about an unstated purpose where the unambiguous text


plainly reflects the intent of the Legislature.                 See Lansing


v Lansing Twp, 356 Mich 641, 649-650; 97 NW2d 804 (1959). 


     When parsing a statute, we presume every word is used for


a purpose.   As far as possible, we give effect to every clause


and sentence.   “The Court may not assume that the Legislature


inadvertently made use of one word or phrase instead of


another.” Robinson v Detroit, 462 Mich 439, 459; 613 NW2d 307


(2000).      Similarly,      we     should       take   care   to   avoid     a


construction that renders any part of the statute surplusage


or nugatory.    In re MCI, supra at 414. 


     With these principles of statutory construction in mind,


we turn to the language of MCL 691.1407(1), which provides:


          Except as otherwise provided in this act, a

     governmental agency is immune from tort liability

     if the governmental agency is engaged in the

     exercise or discharge of a governmental function.

     Except as otherwise provided in this act, this act

     does not modify or restrict the immunity of the

     state from tort liability as it existed before



                                      8

     July 1, 1965, which immunity is affirmed. [Emphasis

     added.]


“Governmental agency” and “state” are not synonymous, nor are


they interchangeable.      Rather, each is precisely defined in


the statute:


          (b) “Political subdivision” means a municipal

     corporation, county, county road commission, school

     district,   community   college    district,   port

     district, metropolitan district, or transportation

     authority or a combination of 2 or more of these

     when acting jointly; a district or authority

     authorized by law or formed by 1 or more political

     subdivisions; or an agency, department, court,

     board, or council of a political subdivision.


          (c) “State” means the state of Michigan and

     its agencies, departments, commissions, courts,

     boards, councils, and statutorily created task

     forces and includes every public university and

     college of the state, whether established as a

     constitutional corporation or otherwise.


          (d) “Governmental agency” means the state or a

     political subdivision. [MCL 691.1401.]


Under a plain reading of the statute, then, the first sentence


of § 7 applies to both municipal corporations and the state,


while the second sentence applies only to the state.       Despite


the Legislature’s clear and unambiguous use of the word


“state” in the second sentence, this Court has struggled with


its meaning.


                                     A

                HADFIELD   V   OAKLAND CO DRAIN COMM ’R


     In Hadfield, we considered whether the trespass-nuisance


exception to governmental immunity, as a common-law tort-based



                                    9

exception, survived the governmental tort liability act.                      We


concluded that recognition of the historic trespass-nuisance


exception was required by the language of § 7.                 In so holding,


we strayed from the plain language of the statute, despite our


claim that we “moved carefully to impose judicial construction


only    upon    those     terms   in         the    statute    that     required


interpretation.”        Id. at 173. 


       Hadfield correctly interpreted the first sentence of § 7


because   it    focused    on   the    plain        language   chosen    by   the


Legislature: 


            Taken alone, the first sentence of § 7 does

       support a narrow interpretation of the act, to

       preclude recognition of any nuisance exception.

       The Legislature’s use of the word “tort” to

       describe the liability from which governmental

       agencies are to be held immune exemplifies the

       breadth of the intended immunity.      There is no

       doubt that nuisance is a tort and that liability

       for nuisance would be within the scope of statutory

       governmental immunity as expressed in the first

       sentence of § 7. [Id. at 147.]


Hadfield went astray, however, in interpreting the second


sentence of § 7.          Ignoring the second sentence’s express


application only to the “state,” the Hadfield Court held that


“the second sentence of § 7 retains preexisting governmental


immunity law except where provided otherwise in the act” and


concluded that it required “a continuation of the nuisance


exception      as   formulated    prior        to    the   enactment     of   the


governmental immunity act in 1964, as amended by 1970 PA 155.”



                                       10

Id. at 147, 149 (emphasis added). 


                                       B

                              LI   V    FELDT


     This Court reaffirmed Hadfield’s erroneous interpretation


of the second sentence of § 7 in Li v Feldt (After Remand),


434 Mich 584, 592-594; 456 NW2d 55 (1990).             Justice GRIFFIN , in


his opinion concurring in part and dissenting in part, pointed


out what Hadfield’s plurality and Li’s majority missed: “[t]he


significance     of   the   Legislature’s        use    of   [the   terms]


‘governmental agencies’ in the first sentence of § 7 and


‘state’ in the second . . . .”           Li, supra at 598-599.      Justice


GRIFFIN reasoned:


          A literal reading of the second sentence of §

     7 seems, at most, to require an historical analysis

     of   the   state’s   common-law   immunity.     The

     significance    of   the   Legislature’s    use  of

     “governmental agencies” in the first sentence and

     the “state” in the second sentence is underscored

     by the definitions expressly given those terms in

     the act. “Governmental agency” is defined as “the

     state,   political   subdivisions,   and  municipal

     corporations.” The “state,” on the other hand, is

     defined as “the state of Michigan and its agencies,

     departments, [and] commissions . . . .” The terms

     are not interchangeable. The statutory provision

     prohibiting modification or restriction of immunity

     is specifically applied to the “state,” a term

     which does not embrace municipalities and other

     forms of lower government. Definitions supplied by

     the Legislature in the statute are binding on the

     judiciary. Thus, assuming arguendo that the second

     sentence of § 7 requires an historical analysis, it

     should be applied to the “state” and not other

     “governmental agencies.” [Id. at 598-600.]


He continued:



                                       11

         The     underlying     premise    of     the

    Hadfield plurality opinion appears to be that the

    Legislature’s intent to make uniform the immunity

    of all levels of government requires that the

    historical analysis purportedly required by § 7

    applies to all levels of government, despite the

    express limitation of the purported historical

    analysis to “the state.” 


          Although the act’s title declares its purpose

     is “to make uniform the liability of municipal

     corporations, political subdivisions, and the

     state,   its   agencies   and   departments,”   the

     uniformity of immunity intended by the Legislature

     does not necessarily include both governmental and

     nongovernmental functions.       The act’s title

     qualifies the uniformity purpose by providing that

     the Legislature sought to make uniform the

     liability of all government “when engaged in the

     exercise or discharge of a governmental function .

     . . .”    Simply because the Legislature claimed

     immunity on behalf of all levels of government

     “when engaged in the exercise or discharge of a

     governmental function” does not necessarily compel

     the conclusion that the state has no immunity when

     not engaged in the exercise or discharge of a

     governmental function.    Indeed, the governmental

     tort liability act was “‘[d]rafted under the

     apparent assumption that the state and its agencies

     enjoyed a total sovereign immunity from tort

     liability . . . .’” Thus, the legislative intent

     underlying the second sentence of § 7 could merely

     have been to “affirm” the state’s preexisting

     absolute sovereign immunity, rather than to codify

     common-law exceptions to governmental immunity.

     Strict uniformity of immunity among all levels of

     government is not clearly mandated by § 7. [Id. at

     600-601 (citation omitted; emphasis in original).]


     Justice   GRIFFIN   worried    that   the   historical   approach


adopted by the Hadfield plurality and reaffirmed by Li would


“leave[] ajar the door to additional immunity exceptions that


cannot be fairly culled from the language of § 7.”             Id. at




                                   12

602.       He noted that nothing in the plain language of § 7


indicated a legislative intent to create a nuisance exception


to governmental immunity, and concluded:


            In my opinion, the fundamental purposes of the

       act were to restore immunity to municipalities,

       grant immunity to all levels of government when

       engaged in the exercise or discharge of a

       governmental   function,   and   prevent   judicial

       abrogation of governmental and sovereign immunity.

       The second sentence of § 7 was merely intended to

       prevent further erosion of the state’s common-law

       immunity, rather than preserve any common-law

       exceptions to governmental immunity.     Under this

       analysis, unless the activity of a municipality

       falls within one of the five narrowly drawn

       statutory exceptions, the only question remaining

       in these cases is whether the activity is a

       “governmental   function,”   as   defined   by  the

       Legislature. [Id. at 605 (emphasis in original).]


       We agree with Justice GRIFFIN ’s analysis and adopt it


today. We hold that while the first sentence of § 7 applies to


both municipalities and the state, the clear and unambiguous


language of the second sentence of § 7 applies only to the


state, as defined in the statute.1


                                   C

                    THE TRESPASS -NUISANCE EXCEPTION


       Because these cases involve cities, the second sentence



       1
      Because the state is not involved as a party in these

cases, we need not explicate fully the meaning of the second

sentence of § 7. We agree with Justice GRIFFIN that, at most,

the language of the second sentence requires an historical

analysis of the state’s sovereign immunity, but we have no

occasion to undertake such an analysis here.        Therefore,

contrary to the dissent’s assertion, we make no determinations

regarding common-law exceptions to the state’s governmental

immunity.


                                  13

of § 7 does not apply; any trespass-nuisance exception must


therefore come from the first section of § 7.                        The first


sentence provides: 


           Except as otherwise provided in this act, a

      governmental agency is immune from tort liability

      if the governmental agency is engaged in the

      exercise or discharge of a governmental function.

      [MCL 691.1407(1).]


The parties agree that the operation of a sewage system is a


governmental function.         Thus, under the terms of the statute,


municipal corporations are immune from tort liability except


as otherwise provided in the act. 


      The     act    sets    forth   five     statutory       exceptions    to


governmental immunity: the highway exception, MCL 691.1402;


the   motor    vehicle      exception,      MCL    691.    1405;   the   public


building exception, MCL 691.1406; the proprietary function


exception,     MCL    691.1413;      and     the    governmental      hospital


exception, MCL 691.1407(4).          In determining if the statutory


exceptions permit a trespass-nuisance exception, we are guided


by the principle expressed in Nawrocki v Macomb Co Rd Comm,


463 Mich 143, 158; 615 NW2d 702 (2000): “There is one basic


principle that must guide our decision today: the immunity


conferred     upon    governmental       agencies     is    broad,    and   the


statutory exceptions thereto are to be narrowly construed.”


(Emphasis in original.)


      With this principle in mind, we hold that the plain



                                      14

language of the governmental tort liability act does not


contain     a    trespass-nuisance           exception     to    governmental


immunity. Trespass-nuisance simply is not one of the five


exceptions to immunity set forth in the governmental tort


liability act.      As stated above, we are bound by the clear and


unambiguous statutory text; we lack constitutional authority


to impose on the people of this state our individual policy


preferences regarding the availability of lawsuits arising


from the operation of a sewage system.                     We must “seek to


faithfully construe and apply those stated public policy


choices made by the Legislature” in drafting the governmental


tort liability act.       Nawrocki, supra at 151.               We are mindful


that, because immunity necessarily implies that a “wrong” has


occurred, some harm caused by a governmental agency may lack


a remedy.       Id. at 157.      Although governmental agencies have


many duties regarding the services they provide to the public,


a breach of those duties is compensable under the statute only


if it falls within one of the statutorily created exceptions.


                                       IV

                              TITLE -OBJECT CLAUSE


     Plaintiffs argue that if the second sentence of § 7


applies    only    to   the    state    and    not    to   all    governmental


agencies, it violates the Title-Object Clause, Const 1963, art


4, § 24.    We reject this argument.


     We note at the outset that “all possible presumptions


                                       15

should be afforded to find constitutionality.”                      Advisory


Opinion re Constitutionality of 1972 PA 294, 389 Mich 441,


464; 208 NW2d 469 (1973).        Const 1963, art 4, § 24 provides in


pertinent part: 


            No law shall embrace more than one object,

       which shall be expressed in its title.


This constitutional provision requires that 1) a law must not


embrace more than one object, and (2) the object of the law


must be expressed in its title.                 Livonia v Dep’t of Social


Services, 423 Mich 466, 496; 378 NW2d 402 (1985).                        This


constitutional limitation ensures that legislators and the


public    receive     proper   notice      of    legislative   content   and


prevents deceit and subterfuge.             Advisory Opinion, supra at


465. The goal of the clause is notice, not restriction of


legislation. 


       The “object” of a law is defined as its general purpose


or aim.    Local No 1644 v Oakwood Hosp Corp, 367 Mich 79, 91;


116 NW2d 314 (1962).           The “one object” provision must be


construed reasonably, not in so narrow or technical a manner


that the legislative intent is frustrated.                Kuhn v Dep’t of


Treasury, 384 Mich 378, 387-388; 183 NW2d 796 (1971).                      We


should not invalidate legislation simply because it contains


more     than   one   means    of   attaining       its   primary    object;


“[h]owever, if the act contains ‘subjects diverse in their




                                     16

nature, and having no necessary connection,’” it violates the


Title-Object Clause.        Livonia, supra at 499.         The act may


include all matters germane to its object, as well as all


provisions that directly relate to, carry out, and implement


the principal object.        Advisory Opinion, supra at 465.        The


statute “may authorize the doing of all things which are in


furtherance     of   the   general    purpose   of   the   Act   without


violating the ‘one object’ limitation of art 4, § 24.”            Kuhn,


supra at 388.    Finally, the constitutional requirement is not


that the title refer to every detail of the act; rather, “[i]t


is sufficient that ‘the act centers to one main general object


or purpose which the title comprehensively declares, though in


general terms, and if provisions in the body of the act not


directly mentioned in the title are germane, auxiliary, or


incidental to that general purpose . . . .”          Livonia, supra at


501 (citations omitted). 


     The     title   of    the   governmental   tort   liability     act


provides:


          An act to make uniform the liability of

     municipal corporations, political subdivisions, and

     the state, its agencies and departments, officers,

     employees, and volunteers thereof, and members of

     certain boards, councils, and task forces when

     engaged in the exercise or discharge of a

     governmental function, for injuries to property and

     persons; to define and limit this liability; to

     define and limit the liability of the state when

     engaged in a proprietary function; to authorize the

     purchase of liability insurance to protect against



                                     17

         loss arising out of this liability; to provide for

         defending certain claims made against public

         officers and paying damages sought or awarded

         against them; to provide for the legal defense of

         public officers and employees; to provide for

         reimbursement of public officers and employees for

         certain legal expenses; and to repeal certain acts

         and parts of acts. [Emphasis added.]


         Plaintiffs contend that the act would exceed the scope of


its title were the second sentence of § 7 construed to allow


differentiation between the immunity of the state and the


immunity of inferior governmental agencies.                 We reject this


argument.        The title of the act only provides that the


immunity of all governmental agencies will be made uniform for


circumstances        involving   “the   exercise   or   discharge    of   a


governmental function.”            This is accomplished by the first


sentence of § 7, which confers uniform statutory immunity on


all governmental entities engaged in the exercise or discharge


of a governmental function.           In enacting the second sentence


of   §    7,   the   Legislature    ensured   that,   “by    restoring    to


municipal corporations immunity for governmental functions and


making uniform the immunity of all governmental entities for


governmental functions, it was not thereby waiving the state’s


common-law absolute sovereign immunity for non-governmental


functions . . . .”        Ross, supra at 669 (LEVIN , J., dissenting


in part). 


         In essence, the Legislature defined the scope of the


first sentence of § 7 through the second sentence.                  Such a


                                      18

limitation cannot be considered a subject diverse in nature


that has no necessary connection to the primary object of the


act.      The   limitation   in   the    second   sentence    is   clearly


germane, auxiliary, and incidental to the general purpose of


the act.    Therefore, the act as interpreted does not violate


art 4, § 24.


                                   V

                             STARE DECISIS


       We do not lightly overrule precedent.             Stare decisis is


generally “‘the preferred course because it promotes the


evenhanded, predictable, and consistent development of legal


principles,     fosters   reliance       on   judicial    decisions,   and


contributes to the actual and perceived integrity of the


judicial process.’” Robinson, supra at 463, quoting Hohn v


United States, 524 US 236, 251; 118 S Ct 1969; 141 L Ed 2d 242


(1998).     Before we overrule a prior decision, we must be


convinced “not merely that the case was wrongly decided, but


also that less injury will result from overruling than from


following it.”      McEvoy v Sault Ste Marie, 136 Mich 172, 178;


98 NW 1006 (1904). 


       At the same time, we must also remember that stare


decisis is a principle of policy, not an inexorable command.


Robinson, supra at 464.       Stare decisis should not be applied


mechanically to prevent this Court from overruling erroneous




                                   19

decisions regarding the meaning of a statute.        Id. at 463.   In


Robinson, supra at 464, we set forth four factors that we


consider before overruling a prior decision: 1) whether the


earlier case was wrongly decided, 2) whether the decision


defies “practical workability,” 3) whether reliance interests


would work an undue hardship, and 4) whether changes in the


law or facts no longer justify the questioned decision.            In


considering the reliance interest, we consider “whether the


previous decision has become so embedded, so accepted, so


fundamental, to everyone’s expectations that to change it


would produce not just readjustments, but practical real-world


dislocations.”   Id.   at   466.     Further,   we   must   consider


reliance in the context of erroneous statutory interpretation:


          [I]t is well to recall in discussing reliance,

     when dealing with an area of the law that is

     statutory, . . . that it is to the words of the

     statute itself that a citizen first looks for

     guidance in directing his actions.     This is the

     essence of the rule of law: to know in advance what

     the rules of society are. Thus, if the words of

     the statute are clear, the actor should be able to

     expect, that is, rely, that they will be carried

     out by all in society, including the courts. In

     fact, should a court confound those legitimate

     citizen expectations by misreading or misconstruing

     a statute, it is that court itself that has

     disrupted the reliance interest.         When that

     happens, a subsequent court, rather than holding to

     the distorted reading because of the doctrine of

     stare decisis, should overrule the earlier court’s

     misconstruction. The reason for this is that the

     court in distorting the statute was engaged in a

     form of judicial usurpation that runs counter to

     the     bed r o c k principle      of     American

     constitutionalism, i.e., that the lawmaking power


                               20

     is reposed in the people as reflected in the work

     of the Legislature, and, absent a constitutional

     violation, the courts have no legitimacy in

     overruling    or     nullifying    the     people’s

     representatives.   Moreover, not only does such a

     compromising by a court of the citizen’s ability to

     rely on a statute have no constitutional warrant,

     it can gain no higher pedigree as later courts

     repeat the error. [Id. at 467-468.]


Thus, while too rapid a change in the law threatens judicial


legitimacy, correcting past rulings that usurp legislative


power restores legitimacy.       Id. at 472-473 (CORRIGAN , J.,


concurring). 


     Accordingly, we must shoulder our constitutional duty to


act within our grant of authority and honor the intent of the


Legislature as reflected in the plain and unambiguous language


of   the   statute.   In   so   doing,   we   rectify   Hadfield’s


misconstruction of the statutory text.


     We are mindful, however, of the effect our decision may


have in overruling Hadfield’s interpretation of § 7.       As this


Court noted in Placek v Sterling Heights, 405 Mich 638, 665;


275 NW2d 511 (1979), quoting Williams v Detroit, 364 Mich 231,


265-266; 111 NW2d 1 (1961): 


          “This Court has overruled prior precedent many

     times in the past. In each such instance the Court

     must take into account the total situation

     confronting it and seek a just and realistic

     solution of the problems occasioned by the change.”


After taking into account the entire situation confronting the





                                21

Court, we hold that our decision shall have only prospective


application. 


      Although the general rule is that judicial decisions are


given full retroactive effect, Hyde v Univ of Michigan Bd of


Regents, 426 Mich 223, 240; 393 NW2d 847 (1986), a more


flexible approach is warranted where injustice might result


from full retroactivity.          Lindsey v Harper Hosp, 455 Mich 56,


68;   564   NW2d     861    (1997).      For     example,    a    holding     that


overrules        settled    precedent     may    properly    be    limited         to


prospective        application.          Id.      Moreover,       the    federal


constitution does not preclude state courts from determining


whether     their     own     law-changing        decisions       are    applied


prospectively       or     retroactively.         Great    Northern      R    Co    v


Sunburst Oil & Refining Co, 287 US 358, 364-365; 53 S Ct 145;


77 L Ed 360 (1932). 


      This Court adopted from Linkletter v Walker, 381 US 618;


85 S Ct 1731, 14 L Ed 2d 601 (1965), three factors to be


weighed     in    determining     when    a     decision    should      not   have


retroactive application.          Those factors are:         (1) the purpose


to be served by the new rule, (2) the extent of reliance on


the old rule, and (3) the effect of retroactivity on the


administration of justice.             People v Hampton, 384 Mich 669,


674; 187 NW2d 404 (1971).             In the civil context, a plurality


of this Court noted that Chevron Oil v Huson, 404 US 97, 106­


                                        22

107; 92 S Ct 349; 30 L Ed 2d 296 (1971), recognized an


additional threshold question whether the decision clearly


established      a   new   principle         of       law.       Riley    v     Northland


Geriatric Center (After Remand), 431 Mich 632, 645-646; 433


NW2d 787 (1988) (GRIFFIN , J.).


         We turn first to the threshold question noted in Riley.


Although this opinion gives effect to the intent of the


Legislature that may be reasonably be inferred from the text


of the governing statutory provisions, practically speaking


our holding is akin to the announcement of a new rule of law,


given the erroneous interpretations set forth in Hadfield and


Li. See Riley, supra; Gusler v Fairview Tubular Products, 412


Mich 270, 298; 315 NW2d 388 (1981). 


         Application    of    the     three-part             test       leads    to   the


conclusion that prospective application is appropriate here.


First, we consider the purpose of the new rule set forth in


this opinion:        to correct an error in the interpretation of §


7   of    the   governmental        tort     liability           act.      Prospective


application would further this purpose.                          See Riley, supra at


646.     Second, there has been extensive reliance on Hadfield’s


interpretation of § 7 of the governmental tort liability act.


In addition to reliance by the courts, insurance decisions


have      undoubtedly        been     predicated             upon       this      Court’s


longstanding         interpretation              of    §     7     under        Hadfield:



                                           23

municipalities have been encouraged to purchase insurance,


while homeowners have been discouraged from doing the same. 


Prospective application acknowledges that reliance.           Third,


prospective application minimizes the effect of this decision


on the administration of justice.       Consideration of recently


enacted 2001 PA 2222 strengthens our determination to limit


our holding to prospective application.           2001 PA 222 amends


the governmental tort liability act to provide a remedy for


damages or physical injuries caused by a sewage disposal


system     event.3   Section   17(2)   of   the   act   provides,   in


pertinent part:


          Sections 16 to 19 abrogate common law

     exceptions, if any, to immunity for the overflow or

     backup of a sewage disposal system and provide the



     2
         2001 PA 222 took effect January 2, 2002.

     3
         Section 16(k) defines a sewage disposal system event:


          “Sewage disposal system event” or “event”

     means the overflow or backup of a sewage disposal

     system onto real property. An overflow or backup

     is not a sewage disposal system event if any of the

     following was a substantial proximate cause of the

     overflow or backup:


          (i) An obstruction in a service lead that was

     not caused by a governmental agency.


          (ii) A connection to the sewage disposal

     system on the affected property, including, but not

     limited to, a sump system, building drain, surface

     drain, gutter, or downspout.


          (iii) An act of war, whether the war is

     declared or undeclared, or an act of terrorism.


                                 24
     sole remedy for obtaining any form of relief for

     damages or physical injuries caused by a sewage

     disposal system event regardless of the legal

     theory.


     2001 PA 222 does not contain any language indicating it


is meant to apply retroactively, but provides only that it is


to take immediate effect.         Section 19(1) provides that a


claimant is not entitled to compensation under the statute


unless the claimant notifies the governmental agency of a


claim of damage or physical injury, in writing, within forty­

five days after the date the damage or physical injury was or


should have been discovered.            Only two exceptions to the


forty-five-day limit are available: if the claimant notified


the contacting agency during the forty-five-day period or if


the failure to comply resulted from the contacting agency’s


failure to comply with notice requirements. Given the absence


of any language indicating retroactive effect, the forty-five­

day notice limit, and the presumption that statutes operate


prospectively,4 we conclude that 2001 PA 222 does not apply


retroactively. 


     Thus,   if    we   applied    our     holding   in   this   case


retroactively, the plaintiffs in cases currently pending would


not be afforded relief under Hadfield or 2001 PA 222. Rather,



     4
      See Frank W Lynch & Co v Flex Technologies, Inc, 463

Mich 578, 583; 624 NW2d 180 (2001); Franks v White Pine Copper

Div, 422 Mich 636, 671; 375 NW2d 715 (1985); Hughes v Judges’

Retirement Bd, 407 Mich 75, 85; 282 NW2d 160 (1979).


                                  25

they would become a distinct class of litigants denied relief


because of an unfortunate circumstance of timing. 


      Accordingly, this decision will be applied only to cases


brought on or after April 2, 2002.          In all cases currently


pending, the interpretation set forth in Hadfield will apply.


                              VI

                         TAKING CLAUSE


      The parties have addressed whether trespass nuisance is


not a tort within the meaning of the governmental immunity


statute, but rather an unconstitutional taking of property


that violates Const 1963, art 10, § 2.         The trial courts in


these cases have yet to address the taking claims. Therefore,


we decline to discuss those claims at this time.


                              VII

                           CONCLUSION


      We hold that the first sentence of § 7, by its plain


language, applies to both the state and its municipalities,


but that the second sentence of § 7 applies only to the state,


as defined in the statute.    We overrule precedent holding to


the   contrary.    Further,   we     hold   that   the   statute   as


interpreted in this opinion does not violate Const 1963, art


4, § 24.   After consideration of the effect of this decision


on the administration of justice, we hold that this decision


is limited to prospective application.


      Finally, we observe that it appears from the record that



                               26

the circuit courts may not have addressed all the elements


required under Hadfield for a claim of trespass-nuisance,


including causation, when deciding the motions for summary


disposition.       Therefore, we remand these cases to the circuit


courts   to    reconsider     plaintiffs’      motions     for   summary


disposition under Hadfield, including the issue of causation.


See Hadfield, supra at 169;             Peterman v Dep’t of Natural


Resources, 446 Mich 177, 205, n 42; 521 NW2d 499 (1994).


     WEAVER , TAYLOR , YOUNG , and      MARKMAN , JJ.,   concurred   with


CORRIGAN , C.J.





                                  27

                S T A T E    O F   M I C H I G A N


                            SUPREME COURT





ROBERT POHUTSKI, AMY POHUTSKI,

KIERK SANDERLIN, JOELLE SANDERLIN,

ALAN BULLION, ANTHONY CORBELL,

PIETRO FUSCO, NORMA FUSCO,

KAYE GARDNER, BEVERLY GARDNER,

SHIRLEY KARAPETOFF, KAREN KEREZI,

BRIAN LaFUENTE, MICHELLE LaFUENTE,

RICHARD REFALKO, DOLORES RAFALKO,

WILLIAM SHAMUS, KATHLEEN SHAMUS,

and all others similarly situated,

a certified class,


       Plaintiffs-Appellees,


v                                                     No. 116949


THE CITY OF ALLEN PARK, a Michigan

municipal corporation,


       Defendant-Appellant,


and


JOHN DOE REPRESENTATIVE, EMPLOYEES,

OR AGENTS OF THE CITY OF ALLEN PARK,

jointly and severally.

________________________________________

JEANNE JONES, JAMES JONES, ROGER TROST,

CAROL TROST, MIKE ROBERT, MIKE BARTHLOW,

CINDY BARTHLOW, SUSAN BROWN,

KENNETH BROWN, SHIRLEY BRYANT,

DAVID BURHANS, MAGDALENA CHAVEZ,

WILLIAM CHUNN, IVAN GADJEV,

FLORENCE GADJEV, REX GLASSON,

BARBARA GLASSON, KEVIN HALL,

SONIA HALL, LON HAMILTON, 

DIANE HAMILTON, WILLIAM HATTON,

ELIZABETH HATTON, BILL HOFSESS,

JOAN HOFSESS, JAMES HUBBLE,

VIRGINIA HUBBLE, SOUREN MERUCCI,

ENERA MERUCCI, MARY PEGORARO,

PHIL PEGORARO, LUIS PERESSINI,

MICHAL ALLEN PETERS, MIGUEL PRIETO,

JILL PRIETO, TODD SNIDER, BETTY ZAHER,

and all other similarly situated,


        Plaintiffs-Appellees,


v                                                                   No. 117935


CITY OF FARMINGTON HILLS,

a Michigan municipal

corporation, and JOHN DOE

REPRESENTATIVES, EMPLOYEES,

OR AGENTS OF THE CITY OF 

FARMINGTON HILLS, jointly and severally,


     Defendants-Appellants.

________________________________________

KELLY, J. (dissenting).


        The majority's decision today overrules many years of


Michigan        jurisprudence      interpreting        the   government      tort


liability act (GTLA ).           Its rationale for upsetting the well­

reasoned        precedent   of    this   Court    is    that   it   brings    the


statute's construction closer to the Legislature's intent.                      I


find this patently inaccurate. 


        Repeatedly,     beginning        with   the    decision     in   Ross   v


Consumers Power (On Rehearing),1 this Court has construed the


GTLA   each time by scrutinizing the language and the purpose the


Legislature articulated for it.               Using a consistent approach,


I conclude that the trespass-nuisance exception still exists




        1
            420 Mich 567; 363 NW2d 641 (1984).


                                         2

and that it applies to municipal units of government. I would


hold, as well, that the trespass-nuisance cause of action is


constitutionally derived and unaffected by legislative action.


          I.   INTERPRETATION   OF THE   GOVERNMENT TORT LIABILITY ACT


     Whenever a court interprets a statute, it attempts to


ascertain and fulfill the Legislature's intent in passing it.


Reardon v Dep't of Mental Health, 430 Mich 398, 407; 424 NW2d


248 (1998).         It seeks to identify the object of the statute


and the harm it was designed to remedy.                  It endeavors to make


a construction that is at once reasonable and analyzed so as


best to accomplish the purposes of the statute.                       Marquis v


Hartford Accident & Indemnity Co, 444 Mich 638; 513 NW2d 799


(1994).        It    construes     the     statute's         provisions   not   in


isolation, but in context.               Sun Valley Foods Co v Ward, 460


Mich 230; 596 NW2d 119 (1999). 


     Having applied these principles, I conclude, as did the


Court in Hadfield v Oakland Co Drain Comm'rs,2 that if the


Legislature         had   meant   to     abolish       the    trespass-nuisance


exception, it would have stated so unequivocally. 


     The Legislature enacted the               GTLA   in 1965 as a response to


Williams v Detroit,3 a decision in which this Court abrogated


governmental immunity for municipalities.                        The Court was


evenly divided concerning whether common-law governmental



     2
         430 Mich 139, 148; 422 NW2d 205 (1988).

     3
         364 Mich 231; 111 NW2d 1 (1961).


                                          3

immunity existed.      However, a majority agreed that municipal


units of government are not immune from liability.               Id. at


270.    As a consequence of Williams, governmental entities in


general     retained      their     common-law      immunity,     while


municipalities did not.


       The title of the   GTLA   reads as follows:


            An act to make uniform the liability of

       municipal corporations, political subdivisions, and

       the state, its agencies and departments, officers,

       employees, and volunteers thereof, and members of

       certain boards, councils, and task forces when

       engaged in the exercise or discharge of a

       governmental function, for injuries to property and

       persons . . . . [MCL 691.1401 et seq., cited in

       Ross, supra at 593.]


The language is unequivocal.             It expresses an intent to


reestablish and codify a consistent and uniform form of


governmental   immunity,     restoring     the   shield   to   municipal


governments while in the exercise of a governmental function.


After detailing some statutory exceptions to immunity, § 7 of


the statute states:


            Except as otherwise provided in this act, all

       governmental agencies shall be immune from tort

       liability in all cases wherein the governmental

       agency is engaged in the exercise or discharge of a

       governmental function.       Except as otherwise

       provided in this act, this act shall not be

       construed as modifying or restricting the immunity

       of the state from tort liability as it existed

       before July 1, 1965, which immunity is affirmed.

       [MCL 691.1407(1).]


       In the cases before us today, the defendants argue that


the word "state" in the second sentence of § 7 bars common-law


exceptions to immunity for "all governmental agencies."              The



                                    4

majority goes further, holding that there were no common-law


exceptions to even the state's governmental immunity.4


       I disagree with the former and dissent from the latter.


With respect to the former, Ross shows that the word "state"


must be read consistently with the creation of a uniform


system       of   immunity    between        municipal,      local,    and   state


governments.         With respect to the latter, Hadfield confirmed


that       common-law   exceptions         existed    that     did    survive   the


enactment of the        GTLA .


                         A.   ROSS   V   CONSUMERS POWER CO


       The Ross decision dealt with the use of the word "state"


in the      GTLA .   It held that its placement there presented a


clear conflict with the purpose and title of the act.                            We


faced the same dilemma over § 135 of the act.                        That section


also used the word "state" to describe immunity:


            The immunity of the state shall not apply to

       actions to recover for bodily injury or property

       damage arising out of the performance of a

       proprietary function . . . [Former MCL 691.1413, as

       enacted by 1964 PA 170.]




       4
      The majority states that it makes no ruling with regard

to the state's immunity. However, when it tries to resolve a

conflict between its interpretation of § 7 and the Title-

Object Clause, Const 1963, art 4, § 24, it interprets § 7 as

reserving exceptions only to the state's sovereign immunity.

Under that interpretation, no sentence in the GTLA reserves

common-law exceptions to the governmental function immunity of

the state. Therefore, while the state is not a party to this

action,   the   majority   opinion   still   carries   serious

implications for the state's sovereign immunity.

       5
           MCL 691.1413.


                                           5

     The Court took the exception for "the state" and applied


it to all governmental entities.                It rejected the plain


meaning of § 13 because, so read, it would have limited the


proprietary function exception to the state and its agencies,


departments, and commissions. The Court declined to find that


restriction in the act because it was clearly not what the


Legislature intended.     It observed:


          The governmental immunity act was intended to

     provide uniform liability and immunity to both

     state and local governmental agencies.    A strict

     "expressio unius est exclusio alterius" reading of

     § 13 would destroy this uniformity. [Ross, supra

     at 614.]


The Court concluded that restricting § 13 to state government


would run contrary to the goal and intent of the act, namely,


a uniform system of liability and immunity.                    Moreover, it


would abolish a longstanding exception to common-law immunity


without the presence of any clear indications of legislative


intent to do so.        The Legislature codified this Court's


reading of § 13 of the act two years later by substituting the


words "governmental agency" for the word "state." 


               B.   HADFIELD   V   OAKLAND CO DRAIN COMM 'R


     Two years after the Legislature effectively ratified


Ross's interpretation of § 13, the Court decided Hadfield,


supra.   It found that the Legislature had used "state" in § 7,


as it had in § 13, to mean "governmental agency."                       The


defendant in Hadfield argued that there were no common-law


exceptions to governmental immunity under the statute. 



                                      6

     Once again, the Court saw a conflict between the language


of the statute, legislative intent, and an historic immunity


exception.    It concluded:


          While the defendant's arguments, advocating

     recognition of only statutory exceptions [to

     governmental immunity], are temptingly simple and

     straightforward, they negate or ignore the second

     half of the legislative mandate of § 7.       That

     section requires a continuation of the nuisance

     exception as formulated prior to the enactment of

     the governmental immunity act in 1964 . . . . [Id.

     at 149.]


     The Court rejected the defendant's argument using this


reasoning:     The second sentence of § 7 requires that the


state's governmental immunity remain as it existed before


July 1, 1965.        The trespass-nuisance exception is strongly


rooted in Michigan's history.             Nothing in the expressions of


the Legislature indicated an intention to change it. 


     Today's holding discards the conclusion in Hadfield by


reinterpreting the second sentence of § 7 as an expansion of


sovereign immunity. I strenuously disagree with this newfound


purpose for the statute.            Both the first sentence and the


second    sentence    of   §   7   use    the   words   "tort   liability."


Therefore, the type of liability and immunity the Legislature


intended in the first sentence, it also intended in the


second.    According to the second sentence, the immunity from


liability was not to be modified or expanded from what existed


under the common law. 


     That reasoning, coupled with the intention to create a


uniform system that we found in Ross, leads to one conclusion


                                         7

only:        the Legislature meant to keep the state's sovereign


immunity       where    it   was    before    July      1965,    preventing   its


expansion or erosion, and to extend it uniformly to all other


governmental entities.             The common-law exception of trespass­

nuisance thus would have survived. 


                 C.    LEGISLATIVE CONFIRMATION   OF THE   EXCEPTION


         This year the Legislature enacted 2001 PA 222,6 which


added §§ 16 through 19 to the           GTLA .    MCL 691.1416 to 691.1419.


The new act creates a mechanism for local governmental units


to make compensation when a defect in a sewer system causes


the type of damage complained of here.                   Section 17 states: 


              Sections 16 to 19 abrogate common law

         exceptions, if any, to immunity for the overflow or

         backup of a sewage disposal system and provide the

         sole remedy for obtaining any form of relief for

         damages or physical injuries caused by a sewage

         disposal system event regardless of the legal

         theory. [MCL 691.1417(2).]


This language acknowledges that there are or, at least, may be


common-law exceptions to governmental immunity.                         Given the


intent and the timing of the act, it is apparent that the


Legislature       sought      to    prevent      this    Court    from    barring


homeowner suits for damages. 


         2001 PA 222 is not alone in acknowledging the likely


existence of common-law exceptions to governmental immunity.


The Legislature also suggests their existence in § 7a of the


GTLA ,   which it passed in anticipation of Year 2000 computer



         6
      The act was signed by the Governor after oral arguments

were made in this case. 


                                        8

failures. 


             Except as . . . provided in . . . Section 13,

        a political subdivision other than a municipal

        corporation engaged in the exercise or discharge of

        a governmental function is immune from liability in

        an action to recover damages resulting directly or

        indirectly from a computer failure, including, but

        not limited to . . . an action based on section 2,

        3, 5, 6, or 7. [MCL 691.1407a(1).]


This language indicates that an action to recover damages


could be founded on § 7, a section that the majority believes


is merely an assertion of state immunity.              Section 7a of the


GTLA   and 2001 PA 222, in conjunction with the legislative


intent described in Ross and Hadfield, are convincing evidence


that the Legislature did not abrogate common-law exceptions to


immunity with § 7. 


                            D.   SCOPE   OF   TITLE


        The majority's treatment of the Title-Object Clause7 in


the state constitution omits the significance of the title of


the    GTLA   as a key indicator of the Legislature's intent. 


        Since Justice COOLEY 's time, the clause has been applied


to insure that adequate notice of new legislation be given to


the general public and to those affected by it.              Maki v East


Tawas, 385 Mich 151, 156-158; 188 NW2d 593 (1971).                    To


accomplish that end and to avoid deception and subterfuge, the


clause requires that the scope of all legislation must fall


within the scope of its title.            Id., Kurtz v People, 33 Mich


279, 281 (1876). In addition, the clause requires that no law


        7
            Const 1963, art 4, § 24.


                                     9

embrace more than one object, which must be expressed in the


title. 


     The title of the   GTLA   indicates a desire for a "uniform"


system of liability.    However, the majority's construction of


§ 7 of the act accomplishes the opposite.              The majority


examines the differences between sovereign and governmental


function immunity.   It then concludes that, under its reading


of the act, the system will be uniform as regards governmental


function immunity.     It finds that reaffirmation of sovereign


immunity was incidental to the purpose of the act. 


     I disagree.     If the first sentence of § 7 codifies a


consistent   governmental      function   immunity   and   the   second


reaffirms the state's sovereign immunity, the second sentence


falls outside the requirements of the Title-Object Clause. It


is beyond the scope of the act's title to "affirm" and codify


the state's common-law sovereign immunity, because the title


refers only to an immunity enjoyed "when engaged in the


discharge of governmental function." MCL 691.1401 et seq. It


is also beyond the act's scope to allow different governmental


immunity at different levels of government, as the majority


finds it does.


     The Ross and Hadfield decisions construed the act in a


way that does not violate the Title-Object Clause.           The Ross


Court held that § 7 uses the expression "sovereign immunity"


to include governmental functions.          The expression was the


tool by which the Legislature made all immunity uniform when


                                  10

a unit of government was performing a governmental function.


Under        this    interpretation,           the   affirmation       of   sovereign


immunity is germane to the creation of a uniform system of


liability and immunity.


                         II .       THE CONSTITUTIONAL BASIS   FOR 


                             THE    TRESPASS -NUISANCE EXCEPTION


        Overlooked           in       the     majority's       analysis       of     the


Legislature's           intent           is   whether    the     trespass-nuisance


exception           enjoys      a    constitutional      basis      that    defeats      a


statutory grant of governmental immunity. The majority treats


the question as part of the plaintiffs' taking claim that has


yet to be adjudicated below. 


        I believe that it is preferable to address the question


here, than wait for the matter to return to us.                             I believe


that the common-law cause of action of trespass-nuisance is


based on the Taking Clause of the Michigan Constitution8 and,


as a consequence, statutory governmental immunity is not a


defense.        Li v Feldt (After Remand), 434 Mich 584, 594, n 10;


456 NW2d 55 (1990).


        This Court in Buckeye Union Fire Ins Co v Michigan9


acknowledged          that         the   trespass-nuisance        exception        has   a


constitutional basis.                 Governmental immunity is not a defense


to a constitutional tort claim, hence not to a claim based on




     8
            Const 1963, art 10, § 2.

        9
            383 Mich 630; 178 NW2d 476 (1970).


                                              11

trespass-nuisance.   Thom v State Hwy Comm'r, 376 Mich 608,


628; 138 NW2d 322 (1965). The claim survives despite the fact


that a statutory exception is not present because the law


views the trespass or nuisance as an appropriation of property


rights.   Taylor, Googasian & Falk, Torts, § 7:252, p 7-86. 


     Not even the state can intrude on a citizen's lawful


possession of his property. Ashley v Port Huron, 35 Mich 296,


300 (1877); Herro v Chippewa Co Rd Comm'rs, 368 Mich 263, 272;


118 NW2d 271 (1962).    And the protection of one's property


rights is not accomplished solely through actions for eminent


domain.   One may sue under the Taking Clause. 


     Also, actions under the clause are not limited to claims


alleging an absolute conversion of property.       Pearsall v


Supervisors, 74 Mich 558; 42 NW 77 (1889).    The action of a


governmental agency may constitute a taking when it interferes


with, damages, or destroys the property of an individual.


Buckeye, supra at 642. 


     Since 1860, this Court has relied on the Taking Clause to


support actions for trespass-nuisance.   This Court has held


many times that an invasion by government-controlled waters or


sewage creates a cause of action against which governmental


immunity is not a bar.10



     10
      See Pennoyer v Saginaw, 8 Mich 534 (1860); Sheldon v

Kalamazoo, 24 Mich 383 (1872); Ashley, supra at 296; Defer v

Detroit, 67 Mich 346, 349; 34 NW 680 (1887); Rice v Flint, 67

Mich 401, 403; 34 NW 719 (1887); Vanderlip v Grand Rapids, 73

                                               (continued...)


                             12

       On the basis of that long-established precedent, I would


hold        that     a      trespass-nuisance          cause     of    action      is


constitutionally            based    and      cannot    be     abrogated     by   the


Legislature.         The actions of the defendants here in flooding


the plaintiffs' basements constitute a "taking," and damages,


if proven, should be available.                     The basis for recovery is


that     the       government       deprived       plaintiffs     of   the    useful


possession of property that they own.                        Gerzeski v Dep't of


State Hwys, 403 Mich 149, 170; 268 NW2d 525 (1978). 


             III .   APPLICATION    OF THE   TRESPASS -NUISANCE EXCEPTION


       Trespass-nuisance refers to a "trespass or interference


with the use or enjoyment of land caused by a physical


intrusion that is set in motion by the government or its


agents       and     result[s]       in    personal     or     property    damage."


Continental Paper & Supply Co v Detroit, 451 Mich 162, 164;


545 NW2d 657 (1996).            Its elements are (1) the existence of a


condition, such as a nuisance or a trespass, (2) a cause, such


as a physical intrusion, and (3) causation or control, as by


government.          Id.




       10
      (...continued)

Mich 522, 535; 41 NW 677 (1889); Seaman v Marshall, 116 Mich

327, 329-330; 74 NW 484 (1898); Ferris v Detroit Bd of Ed, 122

Mich 315, 318; 81 NW 98 (1899); McAskill v Hancock Twp, 129

Mich 74, 78-79; 88 NW 78 (1901); Onen v Herkimer, 172 Mich

593, 598; 138 NW 198 (1912); Attorney General v Grand Rapids,

175 Mich 503, 534; 141 NW 890 (1913); Donaldson v City of

Marshall, 247 Mich 357, 359; 225 NW 529 (1929); Robinson v

Wyoming Twp, 312 Mich 14, 23; 19 NW2d 469 (1945); Defnet v

Detroit, 327 Mich 254, 258; 41 NW2d 539 (1950). 


                                             13

         In both cases before us, plaintiffs' basements have been


flooded by discarded water11 that entered through drains hooked


up   to       the   municipal   sewer     system.       The    nature   of   this


intrusion is similar to that found in CS&P, Inc v Midland, 229


Mich App 141, 145; 580 NW2d 468 (1998).                       There, water and


sewage flowed into the plaintiff's commercial suite from its


floor drains and toilets.               The Court of Appeals found that a


trespass-nuisance cause of action existed.                    A cause should be


found to exist in the cases before us, given the similarity of


facts. 


                                 IV .    CONCLUSION


         The majority finds that the trespass-nuisance exception


to governmental immunity ended in 1965 with passage of the


GTLA .        I disagree with its conclusion because of subsequent


judicial precedent upholding the exception and the lack of


clear         legislative   intent       to     alter   it.     Moreover,     any


legislative attempt to remove the trespass-nuisance exception


must be found invalid because a cause of action under the


exception is constitutionally based in the Taking Clause. 


         In making its ruling, the majority discards longstanding


and well-reasoned precedent of this Court in order to make its


own interpretation of a Michigan statute.12                       It does so,


         11
      Defendant disputes whether all the homes in question

were flooded by debris-carrying sewage. 

         12
      See Nawrocki v Macomb Co Rd Comm, 463 Mich 143; 615 NW2d

702 (2000) (KELLY , J., concurring in part and dissenting in

                                               (continued...)


                                          14

stating an obligation to "shoulder [its] constitutional duty


to act within [its] grant of authority and honor the intent of


the   Legislature        .     .    ."   and    to    "rectify      .    .   .   [past]


misconstruction of the statutory text."                       Slip op at 22-23.


        But what must be apparent to all, when the rhetoric is


stripped of its gloss, is that this Court is again ignoring


its   own    past    rulings.            And,    if    each    successive        Court,


believing its reading is correct and past readings wrong,


rejects precedent, then the law will fluctuate from year to


year,      rendering     our       jurisprudence       dangerously        unstable.      


        The majority's decision to limit its interpretation of


the   statute       to   prospective           use    is   little       more     than   a


furnishing of salve to stem a hemorrhage. For all the above


reasons, I respectfully dissent.


        CAVANAGH , J., concurred with KELLY , J.





      12
      (...continued)

part).


                                           15

