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Taylor Land Group, LLC v. BP Products North America, Inc.

ELR Citation: 41 ELR 20199
Nos. No.94764, (Mich. Ct. App., 05/26/2011)

A Michigan appellate court reversed the dismissal of a property owner's trespass claim against a prior owner of the site, but upheld the dismissal of the remaining tort and state-law claims stemming from the discovery of USTs on the site. The owner filed suit against two prior owners, arguing that both defendants were liable under Michigan's Natural Resources and Environmental Protection Act (NREPA) for the cost of removing the USTs. But any liability by defendants for the owner's cleanup costs extends only to remediation activities that were "necessary costs of response activity." The owner alleged that it incurred costs and expenses to remove the USTs and other equipment from the property, but it did not allege that its response activities were necessary to protect human health and the environment. Accordingly, the lower court did not err in dismissing the owner's NREPA claims. Nor did the lower court err in dismissing the owner's breach of contract and negligence claims. But the court erred in dismissing the owner's trespass claim on statute-of-limitations grounds. The continued presence of a pipeline on the owner's property is not merely the continuing effect of a past intrusive act. Rather, it is a continuing physical intrusion that remains on the property, allegedly interfering with the owner's use and enjoyment of the property.