                                                                                       Michigan Supreme Court
                                                                                             Lansing, Michigan




Syllabus
                                                                Chief Justice:         Justices:
                                                                Robert P. Young, Jr.   Michael F. Cavanagh
                                                                                       Stephen J. Markman
                                                                                       Mary Beth Kelly
                                                                                       Brian K. Zahra
                                                                                       Bridget M. McCormack
                                                                                       David F. Viviano
This syllabus constitutes no part of the opinion of the Court but has been             Reporter of Decisions:
prepared by the Reporter of Decisions for the convenience of the reader.               Corbin R. Davis

                                            SHOLBERG v TRUMAN

       Docket No. 146725. Argued on application for leave to appeal December 12, 2013. Decided
       June 10, 2014.

               Terri A. Sholberg died when the car she was driving hit a horse standing in the road.
       Diane K. Sholberg, as personal representative of her estate, brought an action in the Emmet
       Circuit Court against Daniel Truman (the owner of the horse, which had escaped from its stall)
       and Robert and Marilyn Truman (the title owners of the farm that Daniel Truman operated).
       Other than being the title owners, Robert and Marilyn Truman (hereafter “defendants”) had
       nothing to do with the farm or the animals on it. Plaintiff presented evidence of at least 30
       instances of animal elopement near the farm between 2003 and 2010, each allegedly creating a
       hazard on surrounding public roads. The court, Charles W. Johnson, J., entered a default
       judgment against Daniel Truman, but granted summary disposition in defendants’ favor,
       concluding that they could not be held liable for a public nuisance because they were not in
       possession of the property. The Court of Appeals, TALBOT, P.J., and BECKERING and M. J.
       KELLY, JJ., affirmed in part and reversed with regard to the public nuisance claim in an
       unpublished opinion per curiam, entered November 15, 2012 (Docket No. 307308), holding that
       defendants’ ownership of the property from which the alleged nuisance arose was sufficient to
       allow a nuisance action against them. Plaintiff applied for leave to appeal with respect to an
       issue concerning violations of the Equine Activity Liability Act, MCL 691.1661 et seq., and
       defendants filed a separate application for leave to appeal on the nuisance claim. The Supreme
       Court denied plaintiff’s application, 493 Mich 974 (2013), but ordered and heard oral argument
       on whether to grant defendants’ application for leave to appeal or take other action, 494 Mich
       867 (2013).

             In an opinion by Justice MARKMAN, joined by Chief Justice YOUNG and Justices KELLY,
       ZAHRA, and MCCORMACK, the Supreme Court held:

              The title owner of real property cannot be held liable for a public nuisance that arose
       from that property when someone other than the title owner was in actual possession of the
       property, exercised control over the property, and created the alleged nuisance.

              1. A public nuisance is a tort that involves the unreasonable interference with a right
       common to all members of the general public. To be held liable for the nuisance, a defendant
       must have possession or control of the land. Ownership alone is not dispositive. The person in
possession is normally in a position of control and thus normally best able to prevent any harm to
others.

         2. In this case, defendants merely owned the property. They never possessed or
exercised any control over the property and had not even visited it in more than a decade. They
had no contact with Daniel Truman, the person who was in actual possession and exercised
control over the property. Defendants also did not own, possess, or control the horse that caused
the accident or any other horse on the property, and did not even know that Daniel Truman
owned the horse. There was no evidence that defendants knew or had reason to know that
Daniel Truman’s animals had been escaping the property when the accident happened. Because
defendants did not control or possess the property or the horse, there was no basis for imposing
tort liability on them for a public nuisance. Daniel Truman was the person best able to prevent
any harm to others, and given that defendants had resigned all charge and control over the
property to him, he was the person exclusively responsible for the alleged public nuisance he
created on the property.

        Court of Appeals’ judgment reversed in part with respect to public nuisance claim; trial
court order granting defendants summary disposition reinstated.

        Justice CAVANAGH, concurring, agreed with the majority’s result for the reasons stated in
the conclusion of its opinion. Defendants were entitled to summary disposition because they
were not in possession of the property, did not have control over the property, and did not create
the alleged nuisance.

        Justice VIVIANO, concurring in part and dissenting in part, agreed that defendants were
entitled to dismissal because they were not liable for the nuisance, but wrote separately because
he disagreed that the case could be decided as a matter of law on the issue of defendants’ control
over the land from which the nuisance arose. Justice VIVIANO believed that both control and
knowledge must be shown before imposing liability on absentee owners like defendants. Control
over property may be established through ownership or otherwise. Because control can be
established through proof of ownership, he disagreed with the proposition that defendants could
not be liable as a matter of law merely because they owned the property. There was evidence
that someone other than defendants was in active control of the property. However, Justice
VIVIANO concluded that there was a question of fact whether defendants, even though absentee
owners, retained sufficient control over the land to be held liable for the alleged nuisance. He
pointed to several facts that could support such a finding: defendants held sole title to the
property; defendants supplied the financing to purchase the property; defendants maintained
insurance on the property; and defendants took out a mortgage on the property, the terms of
which required defendants to maintain the property and prohibited them from permitting a
nuisance on the property, abandoning the property, or leaving it unattended. He nonetheless
would have held that summary disposition in defendants’ favor was proper because, as the
majority recognized, defendants had no knowledge of the nuisance on the premises.



                                    ©2014 State of Michigan
                                                                              Michigan Supreme Court
                                                                                    Lansing, Michigan




Opinion
                                                        Chief Justice:          Justices:
                                                        Robert P. Young, Jr. Michael F. Cavanagh
                                                                             Stephen J. Markman
                                                                             Mary Beth Kelly
                                                                             Brian K. Zahra
                                                                             Bridget M. McCormack
                                                                             David F. Viviano

                                                                         FILED June 10, 2014

                             STATE OF MICHIGAN

                                     SUPREME COURT


 DIANE K. SHOLBERG, as Personal
 Representative for the Estate of Terri A.
 Sholberg,

               Plaintiff-Appellee,

 v                                                               No. 146725

 ROBERT TRUMAN and MARILYN
 TRUMAN,

               Defendants-Appellants,

 and

 DANIEL TRUMAN,

               Defendant.


 BEFORE THE ENTIRE BENCH

 MARKMAN, J.

        The issue in this case is whether title owners of real property may be held liable

 for a public nuisance that arose from that property, where someone other than the title

 owners is in possession of the property, is exercising control over the property, and is the
one who created the alleged nuisance. We hold that title owners of the real property

cannot be held liable for a public nuisance under such circumstances. Therefore, we

reverse that portion of the Court of Appeals’ judgment that held to the contrary and

reinstate the trial court’s order granting defendants’ motion for summary disposition.

                               I. FACTS AND HISTORY

        In 2010, Terri Sholberg while driving her car hit a horse that was standing in the

road and died as a result. Plaintiff, as personal representative of her estate, brought this

action against Daniel Truman, the owner of the horse that had escaped from its stall on

the farm,1 and his brother and sister-in-law, Robert and Marilyn Truman (“defendants”),

the title owners of the farm operated by Daniel Truman.2 Other than being the title

owners, defendants have nothing to do with the farm or with any of the animals on the

farm, including the horse struck by plaintiff’s decedent. Plaintiff has presented evidence

of at least 30 instances of animal elopement3 near the farm between 2003 and 2010, each

1
 The horse had been stored in a three-walled enclosure with a heavy gate, but the gate
had been secured with baling twine that had failed.
2
  Robert and Daniel Truman’s mother sold the property to Daniel Truman and his now
ex-wife, Linda Truman. When Daniel and Linda divorced in 1989, the divorce decree
required Daniel to pay off his wife’s interest in the property. In order to have the cash to
do so, Daniel borrowed money from his brother, Robert. Presumably because of the
financial assistance that defendants provided Daniel, Linda signed the deed to the
property over to defendants. Daniel repaid about $6,000 of the $15,000 that he owes
defendants, but has not made a payment to defendants in several years, although Daniel
does pay the property taxes. Defendants had a land contract drawn up but never obtained
Daniel’s signature on it. Defendants and Daniel do not speak with one another and have
not done so for the past 10 years. Defendants have also not been on the property in the
past 10 years.
3
    “Elope” in this legal context means “to flee; escape.”      Random House Webster’s


                                             2
of which allegedly created a hazard on the surrounding public roads.4 Marilyn Truman

testified that no later than 2000, she received two or three telephone calls from people

looking for Daniel Truman because his animals were loose.

       A default judgment was entered against Daniel Truman. However, the trial court

granted defendants’ motion for summary disposition, concluding that they could not be

held liable for public nuisance because they were not in possession of the property. The

Court of Appeals reversed with regards to the public nuisance claim,5 holding that “the

Trumans owned the Property from which the alleged nuisance arose, which is sufficient

to bring a nuisance action against them.” Sholberg v Truman, unpublished opinion per

curiam of the Court of Appeals, issued November 15, 2012 (Docket No. 307308). This

Court then directed that oral argument be heard on defendants’ application for leave to

appeal and directed the parties to address “whether, and under what circumstances, a

property owner who is not in possession of the property and does not participate in the

conduct creating an alleged nuisance may be liable for the alleged nuisance,” In re

Sholberg Estate, 494 Mich 867 (2013), and argument was heard on December 12, 2013.




College Dictionary (1992).
4
  It is unknown whether all of these elopements involved animals from the property at
issue here.
5
  Plaintiff also claimed negligence and violations of the Equine Activity Liability Act, but
the trial court subsequently dismissed those claims and the Court of Appeals affirmed.
Plaintiff filed an application for leave to appeal which this Court denied, and thus those
claims are not before this Court.




                                             3
                              II. STANDARD OF REVIEW

       A trial court’s decision on a motion for summary disposition is reviewed de novo.

Malpass v Dep’t of Treasury, 494 Mich 237, 245; 833 NW2d 272 (2013).                     The

interpretation and applicability of a common-law doctrine is also a question that is

reviewed de novo. People v Petty, 469 Mich 108, 113; 665 NW2d 443 (2003).

                                      III. ANALYSIS

       As an initial matter, the lower courts and the parties all assumed that incidents of

animal elopement can constitute a public nuisance, and thus we too will assume, without

deciding, that incidents of animal elopement can constitute a public nuisance.6 “A public

nuisance involves the unreasonable interference with a right common to all members of

the general public.” Adkins v Thomas Solvent Co, 440 Mich 293, 304 n 8; 487 NW2d

715 (1992). “No better definition of a public nuisance has been suggested than that of an

act or omission which obstructs or causes inconvenience or damage to the public in the

exercise of rights common to all Her Majesty’s subjects.” Garfield Twp v Young, 348

Mich 337, 341-342; 82 NW2d 876 (1957) (quotation marks and citation omitted). “There

is no doubt that nuisance is a tort . . . .” Pohutski v City of Allen Park, 465 Mich 675,

685; 641 NW2d 219 (2002). “In general, even though a nuisance may exist, not all actors

are liable for the damages stemming from the condition.” Cloverleaf Car Co v Phillips

Petroleum Co, 213 Mich App 186, 191; 540 NW2d 297 (1995). “A defendant held liable


6
  Because defendants failed to raise this issue at the trial court, this issue is not properly
before this Court. See Walters v Nadell, 481 Mich 377, 387; 751 NW2d 431 (2008)
(“[A] litigant must preserve an issue for appellate review by raising it in the trial
court. . . . [G]enerally ‘a failure to timely raise an issue waives review of that issue on
appeal.’ ”) (citation omitted).


                                              4
for the nuisance must have possession or control of the land.” Wagner v Regency Inn

Corp, 186 Mich App 158, 163; 463 NW2d 450 (1990); see also Stevens v Drekich, 178

Mich App 273, 278; 443 NW2d 401 (1989) (“It requires that the defendant liable for the

nuisance have possession or control of the land.”); 19 Mich Civ Jur, Nuisances, § 1, p 63

(“Liability for nuisance . . . requires that the defendant liable for the nuisance have

possession or control of the land on which the condition exists or the activity takes

place.”).

       As the Court of Appeals explained in Merritt v Nickelson, 80 Mich App 663, 666-

667; 264 NW2d 89 (1978):

              To argue, as plaintiff does, that a co-owner’s right to possession of
       the premises is sufficient to hold that co-owner liable for all injuries on the
       premises is to be simplistic. The issue of control is preeminent.

                     “[The] rights and liabilities arising out of the condition
              of land, and activities conducted upon it, have been concerned
              chiefly with the possession of the land * * * for the obvious
              reason that the man in possession is in a position of control,
              and normally best able to prevent any harm to others.”
              Prosser, Law of Torts (3d ed), § 57, at 358. (Footnote
              omitted.)

             “Possession” differs from the “right to possession” and “ownership”
       because of the concept of control. Possession is the detention and control
       of anything which may be the subject of property, for one’s use and
       enjoyment. Blacks Law Dictionary (4th ed), at 1325. The mere “right to
       possession” does not necessarily entail the control inherent in the nature of
       “possession.”

              It has been recognized in this state that control and possession are
       the determinative factors in the imposition of liability.

                    “It is a general proposition that liability for an injury
              due to defective premises ordinarily depends upon power to



                                             5
              prevent the injury and therefore rests primarily upon him who
              has control and possession.” [Citations omitted.]
This Court subsequently affirmed that decision, holding that a co-owner of land cannot be

held liable where he or she has not “exercise[d] her right to possession and control over

the property” because “[w]hen one co-owner of land cedes possession and control of the

premises to her co-owners, the law is satisfied to look to those co-owners actually in

control for liability for injuries to third persons.” Merritt v Nickelson, 407 Mich 544,

554; 287 NW2d 178 (1980).

              Ownership alone is not dispositive. Possession and control are
       certainly incidents of title ownership, but these possessory rights can be
       “loaned” to another, thereby conferring the duty to make the premises safe
       while simultaneously absolving oneself of responsibility. [Id. at 552-553.]
See also Musser v Loon Lake Shores Ass’n, 384 Mich 616, 622; 186 NW2d 563 (1971)

(“It is a general principle of tort law that a person is liable only as he participates in an

activity giving rise to a tort. Mere co-ownership of land standing alone will not subject a

person to liability for torts committed in the land by the other co-owners.”).7

       In the landlord/tenant context (which bears considerable resemblance to the

context we have here), this Court has made it clear that generally a landlord is not liable

for a nuisance created by the tenant. As Justice COOLEY explained in Samuelson v

Cleveland Iron Mining Co, 49 Mich 164, 171; 13 NW 499 (1882):

              It is not pretended that the mere ownership of real estate upon which
       there are dangers will render the owner liable to those who may receive

7
  Although Merritt and Musser involved premises liability causes of action, the general
principles of tort liability articulated in those opinions are just as relevant in the context
of a nuisance cause of action. Tort law generally does not favor shifting liability from a
party directly responsible for giving rise to the tort to a mere title holder who lacked
actual possession and control of the land.


                                              6
      injury in consequence. Some personal fault must be involved, or neglect of
      duty, before there can be a personal liability. As between landlord and
      tenant the party presumptively responsible for a nuisance upon the leased
      premises is the tenant. But this might be otherwise if the lease itself
      contemplated the continuance of the nuisance, for in that case the personal
      fault of the landlord would be plain[.] [Citations omitted.]
The question at issue in Samuelson was “whether a personal duty to guard against danger

to the [iron] miners was still incumbent upon the defendant as owner of the mine, and

was continuous while the mine was being worked by the contractors.” Id. at 173. This

Court held:

              Mere ownership of the mine can certainly impose no such duty. The
      owner may rent a mine, resigning all charge and control over it, and at the
      same time put off all responsibility for what may occur in it afterwards. If
      he transfers no nuisance with it, and provides for nothing by his lease which
      will expose others to danger, he will from that time have no more concern
      with the consequences to others than any third person. If instead of leasing
      he puts contractors in possession the result must be the same if there is
      nothing in the contract which is calculated to bring about danger. But if, on
      the other hand, he retains charge and control, and gives workmen a right to
      understand that he is caring for their safety and that they may rely upon him
      to guard against negligent conduct in the contractors and others, his moral
      accountability for their safety is as broad as it would be if he were working
      the mine in person; and his legal accountability ought to be commensurate
      with it.

              But we do not find that in this case there was any such retention of
      charge and control, or that the arrangement between the contractors and the
      mining company gave to workmen any assurance that the company would
      protect them against the negligence of the contractors and their servants.
      [Id. at 173-174.]
      The general rule is that if “the acts of the tenant unauthorized by the landlord

create a nuisance ‘after he has entered into occupation as a tenant, the landlord is not

liable.’ ” Rosen v Mann, 219 Mich 687, 690-691; 189 NW 916 (1922) (citation omitted).

“[I]n the absence of a contract duty on the part of the owner or landlord, the tenant, as



                                           7
between himself and the landlord, is bound to keep the leased premises in repair [and] the

owner is not liable for damages to third persons for injuries arising from the neglect of

the tenant to repair.” Maclam v Hallam, 165 Mich 686, 693; 131 NW 81 (1911); see also

Harris v Cohen, 50 Mich 324, 325; 15 NW 493 (1883) (“The case was not allowed to go

to the jury, on the ground that the defendant was not personally in possession, and that

she was not liable, as the case stood, for the neglect of her tenant.”); Fisher v Thirkell, 21

Mich 1, 12-13 (1870) (“[T]he owners, being out of possession and not bound to repair,

are not liable in this action for injuries received in consequence of the neglect to repair.”);

Merritt, 80 Mich App at 667 (“[O]wners of land . . . do not share liability when injury or

negligence is attributable to the independent act of a single tenant who has exclusive

control of the premises.”).

       “The underlying reason for the general rule . . . is that after leasing and

surrendering the premises to the tenant the landlord loses all control over them.” Rosen,

219 Mich at 691. “It is a general proposition that liability for an injury due to defective

premises ordinarily depends upon power to prevent the injury and therefore rests

primarily upon him who has control and possession.” Dombrowski v Gorecki, 291 Mich

678, 681; 289 NW 293 (1939).

              A tenant or occupant of premises having the entire control thereof is,
       so far as third persons are concerned, the owner. He is, therefore, as
       already stated, usually deemed to be prima facie liable for all injuries to
       third persons occasioned by the condition of the demised premises. [Rosen,
       219 Mich at 692 (quotation marks and citations omitted).]
       Although this Court has consistently held that control is required in order to hold a

defendant liable for a nuisance, in dicta the Court of Appeals has articulated this rule in




                                              8
such a way that suggests that ownership alone may be sufficient to impose liability even

if someone other than the owner exercises control over the property.              To wit, in

Cloverleaf, 213 Mich App at 191, the Court of Appeals stated:

       A defendant is liable for a nuisance where (1) the defendant created the
       nuisance, (2) the defendant owned or controlled the land from which the
       nuisance arose, or (3) the defendant employed another person to do work
       from which the defendant knew a nuisance would likely arise. [Emphasis
       added.]
The Court held that because the defendant did not own or control the property, the

defendant could not be held liable.       Cloverleaf cited Gelman Sciences, Inc v Dow

Chemical Co, 202 Mich App 250, 252; 508 NW2d 142 (1993), for its articulation of the

rule. Gelman did articulate this same rule, but held that because the defendant did not

own or control the property, the defendant could not be held liable.

       Gelman in turn cited Radloff v Michigan, 116 Mich App 745, 758; 323 NW2d 541

(1982), for its articulation of the rule. While Radloff did articulate this same rule, it also

held that “[o]wnership alone is not dispositive.” Id. at 755, quoting Merritt, 407 Mich at

552. Radloff concluded that because “the defendants both owned and controlled the

property,” they could be held liable. Radloff, 116 Mich App at 759 (emphasis added).

Radloff also held that Merritt was distinguishable because the defendants in Merritt were

“mere landowners.” Id. at 756.

       Radloff cited Stemen v Coffman, 92 Mich App 595, 597-598; 285 NW2d 305

(1979), for its articulation of the “owned or controlled” rule. Stemen did articulate this

rule, but held that because the defendants did not own or control the property, they could




                                              9
not be held liable. In support of this proposition, Stemen, 92 Mich App at 598, cited 58

Am Jur 2d, Nuisances, § [95],[8] p 616, which provides:

                 To be liable for nuisance, it is not necessary for an individual to own
         the property on which the objectionable condition is maintained, but rather,
         liability for damages turns on whether the defendant controls the property,
         either through ownership or otherwise.[9] A person is liable if he or she
         knowingly permits the creation or maintenance of a nuisance on premises
         of which he or she has control even though such person does not own the
         property or even though such person is not physically present, such as
         where he or she is an absentee owner. A party who has no control over the
         property at the time of the alleged nuisance cannot be held liable therefor.
While this language indicates that an absentee owner may be held liable, it does not state

that mere land ownership may give rise to liability. That is, even the treatise cited above

and referred to by Stemen indicates that something more than mere ownership is

required-- the absentee landowner must have “knowingly permit[ted] the creation or

maintenance of a nuisance on [the] premises.” Id.10

8
    Stemen actually cited § 49, but this language can only be found in § 95, pp 642-643.
9
  See also Beard v Michigan, 106 Mich App 121, 126; 308 NW2d 185 (1981), citing
Stemen, 92 Mich App at 598 (“We have previously held that liability for damage caused
by a nuisance turns upon when the defendant was in control, either through ownership or
otherwise.”); Detroit Bd of Ed v Celotex Corp, 196 Mich App 694, 709-710; 493 NW2d
513 (1992), citing Radloff, 116 Mich App at 758 (“[N]uisance liability may be imposed
where . . . the defendant owned or controlled the property from which the nuisance
arose . . . .”); Mitchell v Dep’t of Corrections, 113 Mich App 739, 742; 318 NW2d 507
(1982), citing Stemen, 92 Mich App at 598 (“Unless the defendant has created the
nuisance, owned or controlled the property from which it arose or employed another to
do work knowing it would likely create a nuisance, liability may not be imposed under a
nuisance theory.”); Coburn v Pub Serv Comm, 104 Mich App 322, 327; 304 NW2d 570
(1981), quoting Stemen, 92 Mich App at 598 (“We have found no authority imposing
liability for damage caused by a nuisance where the defendant has not either created the
nuisance, owned or controlled the property from which the nuisance arose, or employed
another to do work which he knows is likely to create a nuisance.”).



                                               10
       None of the Court of Appeals cases cited above involved a situation in which the

Court of Appeals imposed liability on a defendant on the basis of his or her mere land

ownership.    Instead, each of these cases involved situations in which the Court of

Appeals held that the defendants either could not be held liable because they did not own

or control the property or could be held liable because they did both own and control the


10
   As recognized by the partial dissent, “this Court has never explicitly held that
knowledge is a required element of a nuisance claim,” post at 7, and we do not hold so in
the instant case. See note 11 of this opinion. Such a holding would require us to modify
our existing common law, and “[w]hile this Court unquestionably has the authority to
modify the common law, such modifications should be made with the utmost caution
because it is difficult for the judiciary to assess the competing interests that may be at
stake and the societal trade-offs relevant to one modification of the common law versus
another in relation to the existing rule.” Woodman v Kera LLC, 486 Mich 228, 231; 785
NW2d 1 (2010). Contrary to the partial dissent’s contention, just because the parties and
the Court assumed, without deciding, that knowledge is an element of a nuisance claim in
Wendt v Village of Richmond, 164 Mich 173; 129 NW 38 (1910), does not mean that if
this Court today expressly held that knowledge is an element of a nuisance claim this
would not constitute a modification of our existing common law. Moreover, given that
the parties themselves have not even asked that the common law be modified by adding
the element of knowledge (indeed, defendants have actually argued that “knowledge of a
nuisance is irrelevant for purposes of liability”), we are not prepared to “assess the
competing interests that may be at stake and the societal trade-offs relevant” to such a
modification of the common law. Woodman, 486 Mich at 231. We recognize that
plaintiff and defendants (at least until they filed their application for leave to appeal with
this Court) assumed that knowledge is an element of a nuisance claim. However, this
does not change the fact that neither party has argued that we should modify the common
law to add a knowledge requirement or has “assess[ed] the competing interests that may
be at stake and the societal trade-offs relevant to [such a] modification of the common
law.” Woodman, 486 Mich at 231. One would think that if it were so important for this
Court to add knowledge as an element, defendants, who have the most to gain by the
addition of this element, would have argued in support of this addition. But, instead,
defendants argued that “knowledge of a nuisance is irrelevant for purposes of liability.”
In light of these circumstances, we exercise “the utmost caution” in recognition of the
fact that we are in no position to “assess the competing interests that may be at stake and
the societal trade-offs relevant to [the partial dissent’s proposed] modification of the
common law.” Id.


                                             11
property. And even the treatise specifically relied on by the Court of Appeals for its

“ownership or control” rule does not stand for the proposition that ownership alone can

give rise to liability where someone other than the owner is exercising control over the

property.

       In the instant case, defendants merely own the property. It is undisputed that they

have never possessed or exercised any control over the property. They have not even

visited the property in more than a decade. They have no contact with the person who is

in actual possession of the property and who is exercising control over that property.

Defendants also had nothing to do with the horse that caused the accident in this case or

with any other horse on the property. They did not own, possess, or control the horse.

Indeed, they did not even know that Daniel Truman owned the horse. Although Marilyn

Truman testified that she received two or three telephone calls from people looking for

Daniel Truman because his animals were loose, she testified that she received these calls

no later than 2000-- at least 10 years before the accident. Not only did none of the

neighbors testify that they had ever called defendants about the escaped animals, but most

of these neighbors, as well as the animal-control officer, actually testified that they never

called defendants about such animals. Thus, there is no evidence of any kind that

defendants knew or had reason to know that Daniel Truman’s animals were escaping the

property when the accident happened in 2010.11 Because defendants did not control or

11
  We speak of knowledge not because it is an element of a nuisance action in this state,
because it is not, see note 10 of this opinion, but only because defendants’ lack of
knowledge is relevant evidence in this case of defendants’ lack of control or possession
of the property, which is an element of a nuisance action. See Wagner, 186 Mich App at
163 (“A defendant held liable for the nuisance must have possession or control of the


                                             12
possess the property or the horse, there is no basis on which to impose tort liability on

defendants for a public nuisance.

       As explained by the trial court:

               The facts in this case are that the property in question was under the
       possession and control of Daniel Truman. That while Robert and Marilyn
       Truman held fee title to that property, it was something more in the nature
       of a security interest than active ownership. There’s no evidence to show
       that they actively managed, supervised, maintained, possessed or controlled
       the subject property. To the contrary, all the evidence shows that
       possession and control of the premises was vested in Daniel Truman. The
       Plaintiff points to language in a mortgage on the subject premises that’s
       clearly regulating the relations as between the bank and Robert and Marilyn
       Truman. It doesn’t constitute any sort of admission by them that they were
       actually controlling the property as opposed to having the right to control it
       in relation to the bank, that right being something that they had passed
       along to Daniel Truman from the get go in this transaction it appears.

                                          * * *

       Robert and Marilyn were not in possession of the subject property. They
       didn’t control the subject property. Therefore, there’s no nuisance liability
       that can be attached to them with respect to this land, and the Court
       likewise must grant summary disposition . . . .[12]

land.”). That is, the fact that defendants did not even know that Daniel Truman owned a
horse, or that animals were still getting loose from the farm operated by Daniel Truman,
suggests strongly that they were also not in possession of, or exercising control, over the
farm because had they been, they likely would have known about the horse and they
likely would have known that animals were still escaping from the farm. See MRE 401
(“ ‘Relevant evidence’ means evidence having any tendency to make the existence of any
fact that is of consequence to the determination of the action more probable or less
probable than it would be without the evidence.”). It should not be viewed as remarkable
that a lack of knowledge of some occurrence may be relevant evidence of a lack of
control with regard to the conditions that underlie that occurrence. This, of course, is not
to say that evidence of knowledge or the lack thereof is dispositive evidence of control or
the lack thereof.
12
   Unlike the partial dissent, we do not believe that there is a genuine issue of material
fact in this case concerning the issue of control. Although the facts cited by the partial


                                            13
       “[T]he party presumptively responsible for a nuisance upon the leased premises is

the tenant,” Samuelson, 49 Mich at 171, for the obvious reason that “the man in

possession is in a position of control, and normally best able to prevent any harm to

others,” Merritt, 407 Mich at 552 (quotation marks and citation omitted). In this case,

Daniel Truman was the “man in possession” of the property, and thus he was the one

“best able to prevent any harm to others.”         Given that it appears that defendants

“resign[ed] all charge and control over [the property],” Samuelson, 49 Mich at 173, to

Daniel Truman, Daniel Truman, rather than defendants, is the one exclusively responsible

for the alleged public nuisance he created on the property.13




dissent-- that defendants are the title owners of the property, that they loaned money to
Daniel Truman so that he could buy out his ex-wife’s interest in the property, that they
maintained insurance on the property, and that they took out a mortgage on the property
that included a duty to maintain the property-- suggest strongly that defendants may have
had a right to exercise control of the property, they do not suggest that defendants
actually exercised control over the property, which remains the dispositive issue. See
Merritt, 407 Mich at 554 (stating that a co-owner of land cannot be held liable when he or
she has not “exercise[d] her right to possession and control over the property” because
“when one co-owner of land cedes possession and control of the premises to her co-
owners, the law is satisfied to look to those co-owners actually in control for liability for
injuries to third persons”).
13
   Because in this case someone other than defendant title owners was in possession of
and exercising control over the property, it is unnecessary to address whether an absentee
landowner could be held liable for a nuisance where no one is in possession of or
exercising control over property. We simply hold that when someone other than the
landowner is in possession of property, is exercising control over the property, and is the
one who created the nuisance, that person, rather than the landowner, is the one liable for
the public nuisance.


                                             14
                                   IV. CONCLUSION

       For these reasons, we hold that title owners of real property cannot be held liable

for a public nuisance that arose from that property, when someone other than the title

owners is in actual possession of the property, is exercising control over the property, and

is the one who created the alleged nuisance. Therefore, we reverse that portion of the

Court of Appeals’ judgment that held to the contrary and reinstate the trial court’s order

granting defendants’ motion for summary disposition.



                                                        Stephen J. Markman
                                                        Robert P. Young, Jr.
                                                        Mary Beth Kelly
                                                        Brian K. Zahra
                                                        Bridget M. McCormack




                                            15
                            STATE OF MICHIGAN

                                    SUPREME COURT


DIANE K. SHOLBERG, as Personal
Representative for the Estate of Terri A.
Sholberg,

              Plaintiff-Appellee,

v                                                             No. 146725

ROBERT TRUMAN and MARILYN
TRUMAN,

              Defendants-Appellants,

and

DANIEL TRUMAN,

              Defendant.


CAVANAGH, J. (concurring).

       I agree with the majority’s result for the reasons stated in the conclusion section of

the opinion. Defendants are entitled to summary disposition because they were not in

possession of the property, did not have control over the property, and did not create the

alleged nuisance.


                                                         Michael F. Cavanagh
                             STATE OF MICHIGAN

                                      SUPREME COURT


DIANE K. SHOLBERG, as Personal
Representative for the Estate of Terri A.
Sholberg,

              Plaintiff-Appellee,

v                                                           No. 146725

ROBERT TRUMAN and MARILYN
TRUMAN,

              Defendants-Appellants,
and

DANIEL TRUMAN,

              Defendant.


VIVIANO, J. (concurring in part and dissenting in part).
       I concur with the majority that defendants Robert and Marilyn Truman are entitled

to dismissal because they are not liable for the nuisance at issue. I write separately

because I disagree that this case can be decided as a matter of law on the issue of

defendants’ control over the land from which the nuisance arose. But I would reach the

same result because I believe that defendants’ lack of knowledge of the nuisance provides

an alternative basis for dismissal.

       In our order directing oral argument on defendants’ application for leave to appeal,

this Court directed the parties to address “whether, and under what circumstances, a

property owner who is not in possession of the property and does not participate in the
conduct creating an alleged nuisance may be liable for the alleged nuisance.”1 I believe

that the answer to this question is best stated in 58 Am Jur 2d, Nuisances, § 95, which

recognizes a requirement to show both control and knowledge before imposing liability

for absentee owners, like defendants: “A person is liable if he or she knowingly permits

the creation or maintenance of a nuisance on premises of which he or she has

control . . . even though such person is not physically present, such as where he or she is

an absentee owner.” Applying that rule here, I believe that there is a question of fact

whether defendants, even though absentee owners, retained sufficient control over the

land to be held liable for the alleged nuisance.       But I would hold that summary

disposition in their favor was proper because they had no knowledge of the nuisance on

the premises.

                                       I. CONTROL

         I agree with the majority that “control is required in order to hold a defendant

liable for a nuisance . . . .”2 As the majority also appears to recognize, control over the

property may be established “either through ownership or otherwise.”3            However,

because control may be established through proof of ownership, I disagree with the



1
    In re Sholberg Estate, 494 Mich 867 (2013).
2
  Ante at 8. See 58 Am Jur 2d, Nuisances, § 91, p 640 (stating the general rule that
“dominion and control over the property causing the harm is sufficient to establish
nuisance liability”); see also 58 Am Jur 2d, Nuisances, § 95, p 643(“A party who has no
control over the property at the time of the alleged nuisance cannot be held liable
therefor.”).
3
    58 Am Jur 2d, Nuisances, § 95. See ante at 9-10.



                                             2
majority that defendants cannot be liable as a matter of law on the ground that they

“merely own[ed] the property.”4       Instead, I believe that there is a question of fact

regarding the extent to which defendants retained control and responsibility over the

property.

       There is evidence that someone other than defendants was in active control of the

subject property. As the majority notes, Daniel Truman paid the property taxes, and

defendants have not visited the property in more than a decade or maintained contact with

Daniel Truman. Further, defendants have not profited from the farm and have not been

involved in any aspect of Daniel Truman’s management of the farm. On the other hand,

contrary facts were adduced that could support a finding that defendants retained

sufficient control over the premises to be liable for nuisance: (1) defendants hold sole title

to the property by means of a warranty deed executed by Daniel Truman’s ex-wife in

1989; (2) defendants supplied the financing for Daniel Truman to buy out his ex-wife’s

interest in the land;5 (3) defendants maintained insurance on the property at the time the

4
  Ante at 12. Although I agree that ownership may not be dispositive of control in some
cases (for example, when control is ceded by means of a lease or land contract), I cannot
agree with the more general assertion that proof of ownership will never be sufficient to
establish control. Rather, I believe that in many cases proof of ownership will be
sufficient to establish control because the title owner typically has the right to control and
dispose of the property. See Taylor et al, Michigan Practice Guide: Torts, § 1:816 (2004)
(“A landowner will usually have sufficient control to be liable for a nuisance[.]”);
Eastbrook Homes, Inc v Dep’t of Treasury, 296 Mich App 336, 348; 820 NW2d 242
(2012) (stating that “ ‘title,’ is defined . . . as ‘[t]he union of all elements (as ownership,
possession, and custody) constituting the legal right to control and dispose of
property’ ”).
5
  Although Robert Truman allegedly had a land contract drafted, there is no evidence of
that document in the record, and Robert Truman and Daniel Truman testified that the
document was never executed.



                                              3
accident took place; (4) defendants took out a mortgage on the property in March 2010;6

and (5) the terms of that mortgage required defendants to maintain the property and

prohibited them from permitting a nuisance on the property, abandoning the property, or

leaving it unattended.

       Given the foregoing facts, I believe that the fact of title ownership—when coupled

with defendants’ financial leverage over Daniel Truman, their insurance interest, and the

commitments they made in the 2010 mortgage—created a genuine issue of material fact

regarding the degree of control that defendants retained over the property.7 In my view,

6
  In his deposition, Robert Truman claimed that he actually intended to take a mortgage
on a different parcel of land that he owned on Stutsmanville Road. He asserted that the
fact the mortgage was taken on the 5151 Stutsmanville Road property was an error at the
bank. While this alleged error could refute that defendants had control over the property
by means of the mortgage agreement, I believe that the import of the written agreement
and credibility of Robert Truman’s statements should be resolved by the trier of fact.
7
  It is the primary obligation of a landowner to keep his premises from becoming a public
nuisance. See Kern v Myll, 80 Mich 525, 530-531; 45 NW 587 (1890); see also Alabama
ex rel Bailes v Guardian Realty Co, 237 Ala 201, 205-206; 186 So 168 (1939). In this
regard, “[a]n owner of property on which a nuisance is being conducted may be made a
party defendant, along with the one conducting the nuisance.” 58 Am Jur 2d, Nuisances,
§ 326, p 822; see 58 Am Jur 2d, Nuisances, § 94, p 642. Therefore, the current question
in this case is not, as the majority suggests, whether Daniel Truman was responsible for
the nuisance, but whether defendants may also be liable as landowners who retained a
sufficient right to control the land to abate the nuisance.

        The majority relies on Musser v Loon Lake Shores Ass’n, 384 Mich 616, 622; 186
NW2d 563 (1971), for the proposition that “a person is liable only as he participates in an
activity giving rise to a tort.” However, that case, like many of the cases the majority
cites, is distinguishable because it involved a premises liability claim, which is legally
distinct from a nuisance claim. Under nuisance law, a party may be liable when it owned
and controlled the property, even if that party did not actually create the nuisance. See
Radloff v Michigan, 116 Mich App 745, 756-759; 323 NW2d 541 (1982). Further, the
majority relies on Merritt v Nickelson, 407 Mich 544, 554; 287 NW2d 178 (1980),
another premises liability case, for the proposition that the actual exercise of control over


                                             4
these facts evidence that defendants may have been more than “mere landowners.”8

Thus, I do not believe that we can decide as a matter of law that plaintiff has provided

sufficient evidence to survive summary disposition on the issue of control.

                                    II. KNOWLEDGE

       Despite the foregoing, I agree with the majority that defendants are entitled to

summary disposition because even if defendants had control over the land, their lack of

knowledge of the alleged nuisance provides an alternate basis for dismissal.



the property is required to impose nuisance liability. In that case, unlike his co-owner,
the invitor was liable because he alone exercised control over the land, and by doing so
assumed a duty of care to those he invited to the land. See Merritt, 407 Mich at 551, 553-
554. But under nuisance law, a plaintiff need only show that the landowner had the right
to control the property. See Randall v Delta Charter Twp, 121 Mich App 26, 34-35; 328
NW2d 562 (1982) (holding that the plaintiff failed to state a nuisance claim because he
“failed to allege that [the defendant] . . . had any interest in or right of control over the
property”) (emphasis added).

       The majority opinion holds that absentee owners who, by virtue of their absence,
have not actually exercised control over the property during the relevant time period are
not liable for nuisance. I disagree with that holding because I do not believe that
nuisance liability for absentee landowners turns on the actual exercise of control. Rather,
even if an absent landowner does not actually exercise control over the property, the
landowner may still be liable for nuisance when he or she retains a right to control the
property sufficient to abate the nuisance. See e.g., Maynard v Carey Constr Co, 302
Mass 530, 533; 19 NE2d 304 (1939).
8
  If defendants could show that, despite their status as title owners, they ceded control
through a properly executed lease or land contract, then summary disposition may well
have been in order. No party alleges that a landlord-tenant relationship existed in this
case; however, defendants do assert that they sold the property to Daniel Truman on a
land contract. Even so, absent a written agreement, and in light of the contrary evidence,
I cannot conclude that a land contract existed as a matter of law. See Cowles v Bank
West, 476 Mich 1, 5, 37; 719 NW2d 94 (2006) (stating that summary disposition under
MCR 2.116(C)(10) is improper where material questions of fact exist).



                                             5
       The general rule in nuisance law is that “[a] landowner is subject to liability for a

nuisance created by the activity of a third party on the land if the owner knows, or has

reason to know, that the activity is causing, or will cause, an unreasonable risk of

nuisance, and the landowner consents to the activity or fails to exercise reasonable care to

prevent the nuisance.”9 And, as noted above, this liability extends to absentee owners,

like defendants, if they knowingly permit a nuisance: “A person is liable if he or she

knowingly permits the creation or maintenance of a nuisance on premises of which he or

she has control . . . even though such person is not physically present, such as where he or

she is an absentee owner.”10

       Unlike some other jurisdictions, this Court has never explicitly held that

knowledge is a required element of a nuisance claim.11 However, requiring knowledge is

9
  58 Am Jur 2d, Nuisances, § 96, p 643 (emphasis added). See also 66 CJS, Nuisances,
§ 121, pp 702-703 (“[T]he bare fact of ownership of real property imposes no
responsibility for the nuisance unless the owner . . . has knowledge of the nuisance on his
or her property.”)
10
   58 Am Jur 2d, Nuisances, § 95, p 643 (emphasis added). The knowledge requirement
also applies to possessors and lessors. See Wagner v Regency Inn Corp, 186 Mich App
158, 163-164; 463 NW2d 450 (1990), citing 4 Restatement Torts, § 838, p 157 (“A
possessor of land upon which a third person carries on an activity that causes a nuisance
is subject to liability for the nuisance if . . . the possessor knows or has reason to know
that the activity is being carried on . . . .”) (emphasis added); 4 Restatement Torts, 2d
§ 837, p 152 (“A lessor of land is subject to liability for a nuisance caused by an activity
carried on upon the land . . . if . . . at the time of the lease the lessor . . . knows or has
reason to know that it will be carried on, and (b) he then knows or should know that it will
necessarily involve or is already causing the nuisance.”) (emphasis added). See also
58 Am Jur 2d, Nuisances, § 97, p 644.
11
  See, e.g., Tennessee Coal, Iron & R Co v Hartline, 244 Ala 116, 124; 11 So 2d 833
(1943) (“[Land]owner may be liable for the continuance of a nuisance when he has
knowledge thereof although it was created by the act of an unauthorized person.”)
(emphasis in original); Louisville & N R Co v Laswell, 299 Ky 799, 805; 187 SW2d 732


                                              6
not a novel concept in our common law. More than a century ago in Wendt v Village of

Richmond,12 the plaintiff brought a nuisance claim against the defendant village, alleging

that the defendant had knowingly permitted sewage to collect in water run off ditches in

the vicinity of the plaintiff’s home. On appeal, although denying any knowledge of the

condition, the defendant conceded that “[i]t is a rule of law that one who does not

knowingly or wilfully create a nuisance, but passively permits one to exist after

knowledge thereof,” can be liable after notice and reasonable opportunity to abate the

nuisance.13 And this Court approved this rule when it confirmed the sufficiency of the

trial court’s instruction on knowledge, which provided, “[I]f the defendant caused, or

knowingly permitted, these things to be collected by its ditches and conveyed to

plaintiff’s premises . . . it would be liable, after the lapse of a reasonable time within

which to remedy the condition . . . .”14          Thus, the unremarkable proposition that

knowledge is required to impose nuisance liability does not appear to be inconsistent




(1945) (“A person is liable if he knowingly permits the creation or maintenance of a
nuisance on his premises.”); Rockport v Rockport Granite Co, 177 Mass 246, 255; 58 NE
1017 (1901) (“[A]n owner is bound to see to it that his land is so managed by persons
brought on to it by him, as not to cause injury to others” and if “he suffers [a nuisance] to
remain there, he is liable to any one injured thereby, at any rate when he knows of the
existence of the thing which constitutes the nuisance.”); Grant v Louisville & N R Co,
129 Tenn 398, 404; 165 SW 963 (1914) (“The owner cannot be liable in respect to . . . a
nuisance [on his land] unless he has some knowledge of it . . . .”).
12
     Wendt v Village of Richmond, 164 Mich 173; 129 NW 38 (1910).
13
     Id. at 177. See also Tennessee Coal, 244 Ala at 121.
14
     Wendt, 164 Mich at 175, 182.



                                              7
with, or a modification of, Michigan’s common law, but merely the recognition of an

established requirement.15

       Indeed, knowledge is a crucial element in circumstances in which a third party

creates a nuisance. When it is demonstrated that a landowner retains the legal right to

resume control over the subject property and has knowledge of a nuisance created by a

third party, that owner is bound to use all reasonable means within his or her power to

abate the nuisance.16

       In this case, however, as even the majority acknowledges, there is no evidence that

defendants knew or should have known about the elopements. Contrary to the Court of

Appeals’ assertion, there is no evidence that defendants were aware of the farm animals’

tendency to escape in the 10 years before the accident. Therefore, even if they had the

15
   Suffice it to say, I disagree with the majority’s assertion that recognizing a knowledge
requirement would require a modification of our common law. The rule that knowledge
is required to impose liability on landowners for a nuisance created by a third party
appears to be the unanimous position of the courts and commentators that have addressed
the issue, including our Court in Wendt and the Court of Appeals in Wagner. The
majority also asserts that “the parties themselves have not even asked that the common
law be modified by adding the element of knowledge . . . .” Ante at 11 n 10. However,
plaintiff has never explicitly asked that the common law be modified to add a knowledge
element because her position since the inception of this case has been that knowledge is
already a recognized element of nuisance liability. Defendants did not disagree with this
position until their briefing before this Court. Before reaching this Court, defendants
consistently accepted that knowledge was required. For example, in their Court of
Appeals brief, defendants conceded that “a title holder can only be held liable for a
nuisance if he knows about it and fails to exercise reasonable care,” citing Wagner, 186
Mich App at 163-164.
16
   See Maynard, 302 Mass at 533 (stating that when the defendant landowner allowed a
third-party to use the land, “after . . . notice [of the nuisance] it became the duty of the
defendant, as . . . [the] owner who could resume control at will, to use all reasonable
means within its power to abate the nuisance”).



                                             8
requisite control over the land, defendants cannot be liable because they had no

knowledge of the nuisance.17

                                   III. CONCLUSION

       In sum, although I agree with the majority that control is the critical inquiry for

nuisance liability, I disagree that dismissal is warranted on that ground when defendants’

ownership of the property, taken together with other facts in the record, creates a question

of fact on the issue of control.      I would conclude that summary disposition was

nevertheless appropriate on the alternative basis that there is no genuine issue of material

fact on the issue of knowledge, which is a necessary element for nuisance liability.


                                                        David F. Viviano




17
   I disagree with the majority’s assertion that knowledge is relevant evidence of control.
A defendant who creates a nuisance will most likely have both knowledge and control of
the nuisance. However, when, as in this case, a third party creates a nuisance, whether a
defendant landowner has knowledge has no bearing on whether the landowner has
sufficient control to abate the nuisance.



                                             9
