December 21, 2014

Appeals Court gives hope to Alger couple in lawsuit against road commission

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MOFFATT TOWNSHIP — A suit filed against the Arenac County Road Commission by an Alger couple, who say the commission’s actions were liable for flooding that damaged their home, has been dragged through the courts since 2004, but is one step closer to a favorable resolution for the couple after a court decision Sept. 23.

David and Marilyn Linton live on Roseburgh Road in Alger, and allege that when the road commission removed limbs from a tree on the road in the spring of 2004, the large limbs plugged up a culvert and backed up other debris in a ditch on the road, causing the water to rise out of the ditch.

“It dammed up all that debris,” Marilyn said, adding the rising water soon reached her home. “It was actually halfway up my back door. It was above our outlets. It covered the motors of everything we had. The wood objects are actually crumbling.

“We had to buy rubber boots to move around.”

Marilyn says she approached the road commission in ’04 regarding the flooding, but when a suit was filed, the 23rd Circuit Court in Arenac County sided the road commission, filing a “summary judgment” based on governmental immunity, without even holding a trial. However, the Michigan State Court of Appeals overturned the decision later and the case returned to circuit court, where in June 2008, the court said it would hear the Lintons out and allow them to prove their case.

The county appealed the lower court’s decision, but the appellate court sided with the court and the Lintons, meaning a trial will be held eventually.

Road Commission Manager/Superintendent Blair Dyer says the insurance company for the county is fighting the case aggressively, because the suit would open up county road commissions throughout the state for litigation, since the road commission isn’t responsible for draining.

“Our ditches do not drain all the water in an area; they’re not supposed to,” Dyer said. “We are not the drain commission. Our road ditches do not drain; we know that.”

According to Dyer, when cutting ditches, if wetlands are drained, all the acreage of wetland drained has to be replaced with an equal amount of watershed acres.

Marilyn says that while the fight has been difficult in getting retribution for damages to her and David’s house, which they still live in, and although they have not received any compensation yet, she will continue to fight.

“A little person shouldn’t back down from Goliath,” she said.

County attorneys have said they plan on appealing with the Michigan Supreme Court.

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