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### STATE OF MICHIGAN

COURT OF APPEALS

THOMAS JAMES. KOWALCHUK and All Others Similarly Situated,

Plaintiffs-Appellants, UNPUBLISHED May 23, 2017

v No. 330463 Jackson Circuit Court CITY OF JACKSON, LC No. 14-001126-CZ

Defendant-Appellee.

Before: G ADOLA P.J., and J ANSEN and S AAD , JJ.

P ER C URIAM

. Plaintiffs appeal as of right the trial court’s order denying their motions for class certification and for a writ of mandamus, as well as the trial court’s order granting defendant’s motions for reconsideration and for summary disposition. We af firm.

This case involves four water-utility wells that defendant ope rates in Sharp Park. These wells were the subject of separ ate litigation filed in 2010 by Doris Gaskin and Coretta Sisson, who owned property near the wells. The plaintiffs in that case alleged that the defendant’s groundwater withdrawals from these wells had caused structural damage to their homes and surrounding land from subsidence. Gaskin v City of Jackson , unpublished opinion per curiam of the Court of Appeals, issued Ju ly 12, 2012 (Docket No. 303245), pp 1-2. The trial court denied the defendant’s motion for summary disposition, and this Court affirmed in part and reversed in part, and remanded the matter for further proceedings. Id . at 10. Upon remand, a jury ultimately rejected the claim that defendant had caused the damages allege d in the Gaskin lawsuit, and the trial court thereafter granted defendant summary disposition of the plaintiffs’ claim for mandamus.

Plaintiff Thomas Kowalchuk owns land within the area determine d to be potentially affected by the operation of the wells. In 2014, he initiated this case by filing a complaint for mandamus on behalf of himself, s everal named others, and all others similarly situated. Plaintiffs contend that defenda nt’s pumping of groundwater from the four wells in Sharp Park is depriving plaintiffs, without j ust compensation, of their own r ight to reasonably use the groundwater beneath and surr ounding their properties.

In the complaint, plaintiffs sought a writ of mandamus “to res olve the condemnation claim in accordance with the administrative procedures in the U niform Condemnation-2- Procedures Act (“UCPA”), MCL 213.51 et seq .” The complaint further alleges that the UCPA requires defendant to “submit a written good-faith offer for th e value of the groundwater taken in excess of [defendant’s] fair participation.” Along with the co mplaint for mandamus, plaintiffs filed a motion to certify the class and a motion for summary di sposition pursuant to MCR 2.116(C)(10). Defendant also moved for summary disposition, ar guing that because the jury in Gaskin ultimately rejected the claim that defendant had caused the da mages alleged, plaintiffs’ claims in this case similarly w ere without factual support.

Initially, the trial court in this case denied defendant’s mot ion for summary disposition, but also held that plaintiffs were not entitled to a writ of mandamus to compel defendant to initiate condemnation proceedings under the UCPA. The trial co urt reasoned that the UCPA applies only if a government age ncy actually acquires private p roperty; because groundwater is not subject to exclusive ownership, defendant had not acquired plaintiffs’ private property. The trial court also denied plainti ffs’ motion for class certificat ion, ruling that they had not established the elements of numerosity, commonality, or typical ity required under MCR 3.501. On defendant’s motion for recons ideration, the trial court gran ted defendant summary disposition in light of its ruling that pla intiffs were not entitled to a w rit of mandamus.

On appeal, plaintiffs contend that the trial court erred by de termining that (1) groundwater is not subject to excl usive ownership rights, (2) d efendant has no duty to proceed under the UCPA, (3) absent a proceeding under the UCPA, the tri al court lacked subject matter jurisdiction of plaintiffs’ claim, and that (4) plaintiffs have not demonstrated the elements necessary for class certification.

I. GROUNDWATER OWNERSHIP

Plaintiffs first argue that the trial court erred when it dete rmined that groundwater 1 is not subject to exclusive ownership rights. We disagree. Questions relating to the nature of ownership rights in groundwater involve the proper scope and ap plication of the common law, which we review de novo. See Mich Citizens for Water Conservation v Nestlé Waters North America Inc , 269 Mich App 25, 53-54; 709 NW2d 174 (2005)(opinion by S MOLENSKI , J.), aff’d in part, rev’d in part 479 Mich 280 (2007).

In Michigan, the use of “percolating” water is governed by the underlying concept known as “reasonable use” adopted in Schenk v Ann Arbor , 196 Mich 75; 163 NW 109 (1917). See US Aviex Co v Travelers Ins Co , 125 Mich App 579, 590; 336 NW2d 838 (1983). In adopting the reasonable use rule, the Schenck Court permitted use of percolating water by the landowner as long as that use does not interfere with the reasonable use by another person of water beneath that person’s land. Id . at 591. The reasonable use rule as adopted in Schenck clearly rejects the right of absolute ownership of percolating groundwater. See Mich Citizens , 269 Mich App at 60-

1 Interestingly, defendant argues on appeal that evidence indica tes that the wells are not pumping groundwater but are instead pumping water from a contained bedr ock aquifer, known as the Marshall Sandstone aquifer, loca ted hundreds of feet beneath pl aintiffs’ properties. The trial court resolved this case without reaching this question, howeve r, and we need not r each it here.-3- 61. Contrary to plaintiffs’ argument, Schenk does not stand for the proposition that ownership of groundwater is exclusive in Michi gan, nor that any municipal wi thdrawal of groundwater entitles a landowner to compensation for its fair value. Id. Similarly, although this Court in Jones v East Lansing-Meridian Water & Sewer Auth , 98 Mich App 104; 296 NW2d 202 (1980), recognized that a municipality’s withdrawals of groundwater could give ris e to a takings claim, id . at 110, the holding in that case was based on the fact that the withdrawals had unreasonably interfered with the plaintiffs’ subterranean water rights, causing those p laintffs to experience loss of the ability to pump water. Id . at 110.

More recently, in Mich Citizens , this Court reaffirmed that Michigan does not follow the rule of “absolute ownership” developed under English common law , nor does it strictly follow a traditional reasonable use rule. Rather, Michigan law on groun dwater use applies a “reasonable use balancing test” that seeks to “ensure the greatest possible access to water resources for all users while protecting certain traditional water uses.” Id . at 58, 67-68. The reasonable use balancing test seeks to (1) ensure “fair participation” in the use of water for the greatest number of users, (2) protect only reasonable uses, and (3) redress onl y unreasonable harms. Id . at 69. This Court in Mich Citizens noted that the factors applicab le should be ascertained case b y case, but also set forth factors releva nt to every application of the reasonable-use balancing test. Mich Citizens , 269 Mich App at 71. These factors are:

(1) the purpose of the use, (2) the suitability of the use to the location, (3) the extent and amount of the harm, (4) the benefits of the use, (5) the necessity of the amount and manner of the water use , and (6) any ot her factor th at may bear on the reasonableness of the use. [ Id .]

In this case, plaintiffs allege that defendant committed a tak ing by using the four Sharp Park wells to pump groundwater fro m underneath their properties . But, as the circuit court held in this case, plaintiffs do not own the water under their prope rties; instead plaintiffs are entitled to reasonable use of the water, as determined by the reasonable use balancing test. Defendant, too, is entitled to the reasonabl e use of the groundwater as lo ng as its use does not interfere with plaintiffs’ reasonable use. Thus , the groundwater itself is no t plaintiffs’ private property, and defendant does not acquire private property by reasonable use o f the water. Accordingly, plaintiffs’ argument that the tr ial court erred by concluding that groundwater is not subject to exclusive ownership rig hts is without merit.

II. MANDAMUS CLAIM

Plaintiffs next contend that the trial court erred by denying their motion to compel defendant to bring a condemnation action under the UCPA for the ir groundwater withdrawals. We disagree. To establish entitl ement to the extraordinary rem edy of a writ of mandamus, a plaintiff has the burden of establishing that “(1) the plaintif f has a clear legal right to the performance of the duty sought to be compelled, (2) the defenda nt has a clear legal duty to perform such act, (3) the act is ministerial in nature such tha t it involves no discretion or judgment, and (4) the plaintiff has no other adequate legal or equitable remedy.” Barrow v Detroit Election Comm , 301 Mich App 404, 411-412; 836 NW2d 498 (2013). We review th e trial court’s decision regarding whether to issue a writ of man damus for an abuse of discretion,-4- while reviewing underlying questions of law de novo. Younkin v Zimmer , 497 Mich 7, 9; 857 NW2d 244 (2014).

The UCPA was enacted in 1980 to replace the state’s multiple c ondemnation statutes with a single statute governing the acquisition of property by eminent domain. State Hwy Comm v Biltmore Investment Co, Inc , 156 Mich App 768, 775; 401 NW2d 922 (1987), citing House Legislative Analysis, HB 4652, June 19, 1980. A governmental a gency is required to tender a good-faith offer to acquire private property before initiating litigation. MCL 213.55(1); In re Acquisition of Land for the Central Indus Park Project , 177 Mich App 11, 17; 441 NW2d 27 (1989). MCL 213.52(2) provides inpart that “[i]f property is to be acquired by an agency through the exercise of its power of eminent domain, the agency shall commence a condemnation action for that purpose.” The term “property” is defined to include “property rights whether real, personal, or m ixed, including fluid minera l and gas rights.” MCL 213.51(i).

Here, plaintiffs argue that they have a clear legal right to c ompel defendant to bring a condemnation action under the UC PA for its use of groundwater, and that defendant has a clear legal duty to bring such an action. Plaintiffs rely on Miller Bros v Dep’t of Natural Resources

, 203 Mich App 674, 689-690; 513 NW2d 217 (1994). In Miller Bros , the director of the Department of Natural Resources designated 4,500 acres as the N ordhouse Dunes Area, determined that any oil and gas development in the area would c onstitute waste prohibited by law, MCL 319.4, and further determined that no oil or gas explo ration or development would be permitted in the area. The plaintiffs, owners and lessees of o il and gas rights in the protected area, filed an inverse condemnation action against the DNR, cla iming that the director’s decision effectively took their property from them. Id . at 678-679. The trial court granted the plaintiffs summary disposition, finding that a taking had occurred. This Court affirmed, stating “[w]hen the state converts private property for its own use without fir st paying for it, it is not only acting unconstitutionally, it is also violating the UCPA by acquiring property without complying with that statute’s exclusive procedures.” Id . at 689-690. In a footnote, thi s Court stated: “In such a situation, property owners not only have a right to ‘just compe nsation,’ they also have a right to force the state to pro ceed under the UCPA.” Id . at 690 n 8. Plaintiffs rely on these two statements from Miller Bros in support of their argument that they have a right to compel defendant to proceed under the UCPA.

But in Miller Bros , the plaintiffs were owners and lessees of oil and gas rights who had purchased those rights and a monetary value could be assigned t o those rights. By contrast, plaintiffs in this case do not exc lusively own the groundwater beneath their properties. Moreover, plaintiffs in this cas e have offered no evidence that they have been deprived of their groundwater. For example, plaint iffs do not contend that they have wells being adversely affected by defendant’s use, and in fact, plaintiffs in this ca se rely upon the municipal water system for their water. In sum, plaintiffs have not establishe d a property right that would entitle them to just compensation, nor have they established a taking b y defendant. Therefore, plaintiffs do not have the right to force defendant to proceed under the U CPA and defendant does not have a clear legal duty to initiate proceedings under the UCPA. Acc ordingly, the trial court properly denied plaintiffs’ claim for mandamus. Younkin , 497 Mich at 9.-5- III. SUBJECT-MATTER JURISDICTION

Plaintiffs next argue that the trial court did not have subjec t-matter jurisdiction in this matter unless proceeding under th e UCPA, which required defenda nt to first submit a written good-faith offer to plaintiffs before filing a complaint. Whet her a court has subject-matter jurisdiction is a question of l aw that we review de novo. Clohset v No Name Corp (On Remand)

, 302 Mich App 550, 559; 840 NW2d 375 (2013).

Subject-matter jurisdiction is a court’s “abstract power to tr y a case of the kind or character of the one pending.” Travelers Ins Co v Detroit Edison Co , 465 Mich 185, 204; 631 NW2d 733 (2001), quoting Campbell v St John Hosp , 434 Mich 608, 613-614; 455 NW2d 695 (1990). Plaintiffs maintain that the character of the case the y brought involves condemnation, and therefore can only be decided under the UCPA. However, pla intiffs complaint sought only a writ of mandamus; it did not include a claim for condemnation. The circuit court had subjectmatter jurisdiction to hear plaintiff’s mandamus claim under th e Michigan Constitution, which gives circuit courts “original j urisdiction in all matters not prohibited by law” and the “power to issue, hear and determine prerogative and remedial writs[.]” C onst 1963, art 6, § 13; see also LeRoux v Secretary of State , 465 Mich 594, 606; 640 NW2d 849 (2002) (explaining that “prerogative and remedial writs” include writs of mandamus). A ccordingly, plaintiffs’ argument that the trial court lacked s ubject matter is without merit.

IV. CLASS CERTIFICATION

Finally, plaintiffs argue that the trial court erred by ruling that they had failed to meet the requirements for class certification. We disagree. The trial court’s discretionary rulings regarding whether to certify a class are reviewed for an abuse of discretion, and its findings of fact are reviewed for clear error. Doe v Henry Ford Health Sys , 308 Mich 592, 597; 865 NW2d 915 (2014). A finding is clearly erroneous if a review of the entire record leaves the reviewing court with a definite and firm conviction that the trial court made a mistake. Duskin v Dep’t of Human Servs , 304 Mich App 645, 651; 848 NW2d 455 (2014).

MCR 3.501(A)(1) provides that a member of a class may only sue as a representative party of that class if the fo llowing circumstances exist:

(a) the class is so numerous that joinder of all members is imp racticable;

(b) there are questions of law or fact common to the members of the class that predominate over questions aff ecting only individual members;

(c) the claims or defenses of the representative parties are ty pical of the claims or defenses of the class;

(d) the representative parties will fairly and adequately assert and protect the interests of the class; and

(e) the maintenance of the action as a class action will be sup erior to other available methods of adjudication in promoting the convenient a dministration of justice.-6- These conditions are often referred to as “numerosity, commonal ity, typicality, adequacy, and superiority.” Henry v Dow Chem Co , 484 Mich 483, 488; 772 NW2d 301 (2009). “[A] party seeking class certification is r equired to provide the certifyi ng court with information sufficient to establish that each prerequisite for class certification in MCR 3.501(A)(1) is in fact satisfied.” Id . at 502. “[T]he action must meet all the requirements in MCR 3.501(A)(1); a case cannot proceed as a class action when it satisfies only some, or even most, of these factors.” A & M Supply Co v Microsoft Corp , 252 Mich App 580, 597, 654 NW2d 572 (2002).

Plaintiffs argue that the trial court abused its discretion by concluding that it had failed to meet the numerosity requirement of MCR 3.501(A)(1)(a). Althoug h there is no particular minimum number of members necessary to meet the numerosity requ irement, and the exact number of members need not be known, “the plaintiff must adequa tely define the class so potential members can be identified and must present some evide nce of the number of class members or otherwise establish by reasonable estimate the numbe r of class members.” Z ine v Chrysler Corp , 236 Mich App 261, 288; 600 NW2d 384 (1999). The plaintiff mu st also establish “that a sizeable number of class members have suffere d an actual injury.” Duskin , 304 Mich App at 653.

In this case, plaintiffs’ argument appears to be premised on t he notion that defendant’s taking of any groundwater sufficed to show an actual injury tha t required compensation for the value of the groundwater taken. However, as discussed, to supp ort a claim that defendant’s use of groundwater constituted a taki ng that required it to provide just compensation through the procedures set forth in the UCPA , plaintiffs were required to s how not just that defendant had used the groundwater, but that its use was unreasonable, i.e., exceeded its fair participation.

Accordingly, although plaintiffs insist that they are not seek ing just compensation for damages but rather for the value of the groundwater, the determ ination whether defendant’s use was unreasonable nevertheless re quires an inquiry into whether the individual plaintiffs incurred damage as a result of defendant’s use. See Mich Citizens , 269 Mich App at 71. Because plaintiffs did not show that “a sizeable number of class member s . . . suffered an actual injury” from defendant’s use of groundwat er, the trial court did not ab use its discretion by determining that plaintiffs had not met the numerosity requirement of MCR 3 .501(A)(1)(a). Duskin , 304 Mich App at 653. Because plaintiffs were required to establishall five of the prerequisites for class certification, we need not reach plaintiffs’ arguments re garding the remaining factors. A & M Supply Co , 252 Mich App at 597.

Affirmed.

/s/ Michael F. Gadola /s/ Henry William Saad