Michigan Citizens for Water Conservation v. Nestlé Waters North America Inc
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MICHIGAN CITIZENS FOR WATER CONSERVATION, a Michigan nonprofit corporation; R.J. Doyle and Barbara Doyle, husband and wife; and Jeffrey R. Sapp and Shelly M. Sapp, husband and wife, Plaintiffs-Appellees/Cross-Appellants,
v.
NESTLÉ WATERS NORTH AMERICA INC., a Delaware corporation, Defendant-Appellant/Cross-Appellee, and
Donald Patrick Bollman and Nancy Gale Bollman, d/b/a Pat Bollman Enterprises, Defendants.
Michigan Citizens for Water Conservation, a Michigan nonprofit corporation; R.J. Doyle and Barbara Doyle, husband and wife; and Jeffrey R. Sapp and Shelly M. Sapp, husband and wife, Plaintiffs-Appellees,
v.
NestlÉ Waters North America Inc., a Delaware corporation, Defendant-Appellant, and
Donald Patrick Bollman and Nancy Gale Bollman, d/b/a Pat Bollman Enterprises, Defendants.
Court of Appeals of Michigan.
*183 Olson, Bzdok & Howard, P.C. (by James M. Olson and Scott W. Howard), Chris A. Shafer, and Samuels Law Office (by James R. Samuels), Traverse City, Lansing, Big Rapids, for Michigan Citizens for Water Conservation, R.J. and Barbara Doyle, and Jeffrey R. and Shelly M. Sapp.
Mika Meyers Beckett & Jones PLC (by John M. DeVries, Fredric N. Goldberg, and Douglas A. Donnell), Warner Norcross & Judd LLP (by Eugene E. Smary and Robert J. Jonker), Kilpatrick Stockton LLP (by David M. Zacks and Adam H. Charnes), and Porteous Law Office, P.C. (by David L. Porteous), Grand Rapids; Grand Rapids; Atlanta, GA; Reed City, for Nestlé Waters North America Inc.
McClelland & Anderson, L.L.P. (by Gregory L. McClelland and Melissa A. Hagen), Lansing, for the Michigan Association of Realtors.
Smith, Martin, Powers & Knier, P.C. (by David L. Powers), and Bancroft Associates PLLC (by Viet D. Dinh and Christopher D. Thuma), Bay City; Washington, DC, for Save Our Shoreline.
Noah D. Hall, Ann Arbor, for the National Wildlife Foundation, the Michigan United Conservation Clubs, and the Michigan Council of Trout Unlimited.
Eric D. Williams, Big Rapids, for the Mecosta County Development Corporation, Michigan Works! West Central, and the Mecosta County Area Chamber of Commerce.
Koernke & Crampton, P.C. (by Thomas F. Koernke), Grand Rapids, for the Michigan Water Environment Association.
Law, Weathers & Richardson, P.C. (by Clifford H. Bloom and Michael J. Roth), Grand Rapids, for the Michigan Lake & Stream Associations, Inc.
Honigman Miller Schwartz and Cohn LLP (by John D. Pirich, Timothy Sawyer Knowlton, Grant R. Trigger, and S. Lee Johnson), Lansing, for the Michigan Chamber of Commerce, the Michigan Chemistry Council, and the Michigan Agri-Business Association.
Clark Hill PLC (by F.R. Damm, David D. Grande-Cassell, and Aaron O. Matthews), Lansing, for the Michigan Manufacturers Association.
McKay & McKay (by Lawrence I. McKay III), Frankfort, for the Anglers of the AuSauble, Inc.; and the Great Lakes Council, Inc. of the Federation of Fly Fishers.
Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, and S. Peter Manning and Sara R. Gosman, Assistant Attorneys General, for the Department of Environmental Quality.
*184 Michael A. Cox, Attorney General, for the Attorney General.
Before: MURPHY, P.J., and WHITE and SMOLENSKI, JJ.
SMOLENSKI, J.
In Docket No. 254202, defendant Nestlé Waters North America Inc. (Nestlé) appeals as of right the trial court's imposition of an injunction barring it from withdrawing any groundwater from property owned by Donald Patrick Bollman and Nancy Gale Bollman, doing business as Pat Bollman Enterprises (the Bollmans).[1] Plaintiffs cross-appeal the trial court's earlier decision to grant defendants partial summary disposition on plaintiffs' public trust claim. In Docket No. 256153, Nestlé appeals as of right the trial court's grant of costs to plaintiffs.[2] We affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.
I. Facts and Procedural History
The events leading to this appeal began when Nestlé's predecessor in interest, Great Spring Waters of America, Inc., a subsidiary of Perrier Group of America, Inc.,[3] began taking steps to construct a spring water bottling plant in Mecosta County. In December 2000, defendant purchased the groundwater rights to the Bollmans' property located north of the Osprey Lake impoundment and referred to as Sanctuary Springs.[4] The Osprey Lake impoundment is a man-made body of water created by the damming of the Dead Stream.[5] The Dead Stream originates from springs that are now obscured by the Osprey Lake impoundment and flows generally east and then south until it meets the channel between Blue Lake and Lake Mecosta. Shortly after defendant announced its plans to build its spring water bottling plant, the nonprofit corporation Michigan Citizens for Water Conservation (MCWC) was formed to represent the interests of riparian property owners[6] in the vicinity of the proposed wells, as well, as other interested persons.
In January and February 2001, defendant installed two wells on the Sanctuary Springs site. Two more wells were installed in July and August 2001. Permits to use the wells were issued by the Michigan Department of Environmental Quality (DEQ) in August 2001 and February 2002. The combined maximum pumping rate permitted for the four wells is 400 gallons per minute (gpm).
*185 In the summer of 2001, defendant began to construct its bottling plant approximately 12 miles from Sanctuary Springs.[7] In June 2001, the MCWC[8] filed a complaint, which in part sought an injunction against the construction of the bottling plant. The trial court denied the MCWC's request for an injunction because the construction of the plant did not itself constitute the harm sought to be enjoined by the MCWC.[9]
In September 2001, the MCWC filed its first amended complaint.[10] In count I, the MCWC requested an injunction against defendant's construction of wells, wellhouses, and the pipeline for water extraction from Sanctuary Springs. Count II alleged that defendant's withdrawal of water would not be lawful under the common law applicable to riparian water rights. Count III alleged that defendant's withdrawal of water was unreasonable under the common law applicable to groundwater. Count IV alleged that the waters of Sanctuary Springs are subject to the public trust and, consequently, defendant is without the power to withdraw, divert, diminish, or use the water in a way that alienates or destroys the public's title. Count V alleged that defendant's use of the waters would constitute an unlawful taking of public resources. Finally, count VI alleged that defendant's withdrawals would violate the Michigan environmental protection act (MEPA).[11] Later the Bollmans were added as defendants, and in November 2001, plaintiffs filed a second amended complaint, which restated the counts of the first amended complaint, but added the Doyles and the Sapps as plaintiffs.
In May 2002, plaintiffs filed a motion for summary disposition on counts II to IV.[12] In opposition to plaintiffs' motion for summary disposition, defendant argued that the riparian and public trust doctrines did not apply to defendant's withdrawal of groundwater. In its ruling, the trial court stated, as a matter of law, that the Dead Stream was not navigable and, therefore, the public trust doctrine did not apply to it. The court also determined that plaintiffs' common-law claims were not governed by riparian law, but by the law applicable to groundwater withdrawals. However, the trial court ruled that diminishment of riparian flow could constitute an actionable injury under groundwater law.[13] For these reasons, the trial court *186 granted summary disposition in favor of defendants with respect to count II (riparian rights) and count IV (public trust). At a later summary disposition hearing, the trial court concluded that count V failed to state a claim and dismissed it as well.[14] As a result of these pretrial proceedings, the only counts remaining to be tried were plaintiffs' common-law groundwater claim (count III) and MEPA claim (count VI).[15]
The bench trial commenced on May 5, 2003, and ended on September 10, 2003. On November 25, 2003, the trial court issued its opinion and order. With regard to count III, the trial court found that defendant's pumping had harmed and will continue to harm plaintiffs' riparian interests. The trial court also determined that defendant's water withdrawals violated MEPA by unlawfully diminishing an inland lake or stream and draining water from a wetland. The trial court concluded that these violations warranted a full injunction and ordered defendant to terminate all water withdrawals from Sanctuary Springs within 21 days of the date of the filing of its opinion and order.[16]
On December 16, 2003, defendant moved for a new trial and amendment of the judgment under MCR 2.611 and 2.612. Defendant asked the trial court to set aside its opinion and order of November 25, 2003, take additional testimony and receive additional exhibits, make new findings, direct entry of a new judgment, and refer the matter to the DEQ. On February 13, 2004, the trial court issued an opinion and order on defendant's motions for a new trial and other relief. The trial court acknowledged some minor factual errors in its previous opinion and amended it to correct them, but in all other respects rejected defendant's arguments and denied the requested relief.
On December 8, 2003, plaintiffs moved for costs under MCL 600.2164 and MCL 324.1703(3). At a May 7, 2004, hearing, the trial court awarded costs to plaintiffs, as prevailing parties, in the amount of $122,212.47. On May 27, 2004, plaintiffs moved for clarification or amendment of the trial court's order.[17] Plaintiffs noted that the trial court's earlier order granted plaintiffs' request as prevailing parties, but did not grant costs as an apportionment in the interests of justice under MEPA. Plaintiffs asked the trial court to amend its opinion and order to reflect that the grant had two independent bases: as prevailing parties and as an apportionment in the interests of justice. Defendant also moved *187 for a stay of the order granting plaintiffs costs on the basis that defendant might prevail on appeal. On May 27, 2004, the trial court held a hearing on the parties' motions, granted plaintiffs' request to amend the grant of costs to include apportionment under MEPA, and denied defendant's request for a stay.[18]
On March 4, 2004, under Docket No. 254202, defendant appealed as of right the trial court's November 25, 2003, opinion and order as amended and supplemented on February 13, 2004. On March 22, 2004, plaintiffs filed a claim of cross-appeal challenging the trial court's dismissal of plaintiffs' public trust claim. On June 17, 2004, under Docket No. 256153, defendant appealed as of right the trial court's grant of costs to plaintiffs.[19]
II. Factual Findings
We shall first address defendant's argument that the trial court's findings were clearly erroneous and that the trial court abused its discretion by refusing to grant defendant's request to reopen the proofs or supplement the record.
A. Standards of Review
This Court reviews the findings of fact in a bench trial for clear error. Alan Custom Homes, Inc. v. Krol, 256 Mich.App. 505, 512, 667 N.W.2d 379 (2003). A finding is clearly erroneous when, after reviewing the entire record, this Court is left with a definite and firm conviction that a mistake has been made. Id. The clear error standard is highly deferential to the trial court and requires that regard be given to the trial court's special opportunity to judge credibility. MCR 2.613(C); People v. McSwain, 259 Mich.App. 654, 683, 676 N.W.2d 236 (2003). This Court may not reverse the findings of the trier of fact simply because it is convinced that it would have decided the case differently. Beason v. Beason, 435 Mich. 791, 803, 460 N.W.2d 207 (1990), citing Anderson v. Bessemer City, 470 U.S. 564, 573-574, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985). On the contrary, if, on the record as a whole, the trial court's account of the evidence is plausible, this Court may not reverse. Beason, supra at 803, 460 N.W.2d 207. However, this Court will give less deference to the factual findings of trial judges than to the factual findings of juries and will not tacitly endorse obvious errors under the guise of deference. McSwain, supra at 682-683, 676 N.W.2d 236.
A motion to reopen the proofs is a matter within the discretion of the trial court. Bonner v. Ames, 356 Mich. 537, 541, 97 N.W.2d 87 (1959). An abuse of discretion is found when an unprejudiced person, considering the facts on which the trial court relied, would find no justification or excuse for the ruling made. McSwain, supra at 685, 676 N.W.2d 236.
B. Findings of Fact
Defendant argues that the trial court's findings are speculative and not supported by the record.[20] We disagree.
*188 1. Wetlands
Defendant first questions how the trial court could find that the predicted drop in the water level of wetlands 112, 115, 301 and the Dead Stream wetlands would exceed the predictions of both defendant's and plaintiffs' experts.
For wetland 112, the trial court adopted the opinion of plaintiffs' groundwater expert, Dr. David Hyndman, as well as "the other corroborating evidence referred to," and found that "wetland 112 will drop from three inches to one foot at a pump rate of 400 gpm...." At trial, Hyndman testified that, "in wetland 112, my expectation is that there will be a significant measurable drop that will be greater than three inches. That's based on, again, observations of data and the models that have been run by both myself and Dr. Andrews."[21] In Hyndman's May 2003 report, his model predicts a 0.7-foot drop in wetland 112, but Hyndman clarified that the predicted reductions in the wetlands "are expected to be larger than predicted by the present model because no model ... can adequately describe the complex interactions between surface water and groundwater...." Furthermore, after Hyndman was recalled, he noted that direct observation had already indicated that wetland 112 had dropped up to six inches as the result of pumping at rates significantly lower than 400 gpm, and so "the declines would be much more significant than shown here. So my opinion, based on everything I've seen with respect to 112, is 3 inches to even potentially greater than a foot in Wetland 112." Therefore, the trial court's finding that wetland 112 will drop from 3 to 12 inches is clearly supported by the record.
For wetland 115, the trial court stated, "Dr. Hyndman's opinion is that wetland 115 will suffer, hydrologically, a drop in water level of one and one half feet beyond natural cyclical effects at a pump rate of 400 gpm, and has already suffered losses at lower pump rates. I accept his opinion and adopt it." Hyndman testified at trial that wetland 115 would drop by more than one foot. Furthermore, his model predicted a drop of 1.9 to 2.2 feet. Given that Hyndman predicted a drop greater than one foot and that his model predicted a drop of up to 2.2 feet, the record adequately supports the trial court's findings for wetland 115.
For wetland 301, the trial court surveyed the evidence of a connection between wetland 301 and the groundwater and stated:
Dr. Madsen[[22]] testified regarding her observation of 301 and estimated that it was down at the time of trial some three to six inches from last fall, a time frame in which she'd expect to see a rise in level, not a drop. She opined that two inches of drop had occurred within approximately two weeks of her observation from the nature of the exposed soils.
* * *
Wetland 301 is, thus, certain to have a drop at 400 gpm and appears to be having such at lower rates. Quantification of the drop on 301 is difficult. Dr. Madsen's observations noting a drop at pumping rates in the area of 160-200 gpm seem high, but do verify a drop at rates much below 400 gpm. Regarding the Defendants' motion to strike Dr. Madsen's opinions based on drawdowns in wetland 301 in the range of three to *189 six inches (made during her testimony of June 6), that motion is denied as there is record evidence, including Dr. Madsen's observations, that, if accepted, would indicate it may experience losses in that range.[[23]] The issue is left to be one of credibility and weight.
Based on the above information I find that wetland 301 was experiencing drops in water level at the time of the trial in the range of two to four inches and that it will suffer a drop of twice that at the state permitted pump rate of 400 gpm.
From this it can be seen that the trial court took Madsen's direct observation of a drop in wetland 301 at approximately half the permitted pump rate, adjusted it downward on the basis of credibility assessments of her testimony, and then doubled it to reflect the permitted rate. Thus, the prediction for wetland 301 was based on a logical and reasonable analysis of the evidence presented at trial.
With regard to the Dead Stream wetlands, the trial court found:
Frankly, little hydrologic evidence was received at trial regarding specific measurements regarding then existing or predicted drops in the water levels in the Dead Stream wetlands. Apparently everyone was relying on their predictions regarding the Dead Stream to carry over to the immediately adjacent wetlands. This is a reasonable assumption that I accept. Defendant argued that the absence of proofs directly relating to the Dead Stream wetlands means there are no proofs of such. To the contrary, Christopher Grobbel, one of Plaintiffs' experts in hydrology testified that a drop in the stream will result in a corresponding drop in the adjacent wetlands.[[24]] Further, Mark Luttenton[[25]] testified to his observation that the Dead Stream wetlands' water level dropped around three inches in the time between his visit on 1/6/2003 and 4/23/2003, a time frame he'd expect to see an increase instead. Also[,] Dr. Madsen testified that she observed a drop in water level in these wetlands in the neighborhood of 4-6 inches from 10/02 and 5/03. Therefore, I find that the Dead Stream wetlands will lose at least two inches of water level, and maybe more, at a pump rate of 400 gpm, with lesser losses at lower pump rates on a straight-[line] calculation.
Hence, the trial court's finding is based on a minimum drop equal to that of the Dead Stream and possibly more based on the direct observations of expert witnesses. Therefore, the record also supports this finding.
2. Dead Stream
Defendant next contends that the trial court clearly erred by finding that the Dead Stream would lose 345 gpm in flow and 2 inches in stage despite the fact that Hyndman only predicted a drop in flow of 260 to 345 gpm and a drop in stage of 1 to 2 inches. In its opinion, the trial court explained that the
Dead Stream will lose flow of 345 gpm at a pump rate of 400 gpm, a figure first calculated by Dr. Andrews and then accepted by Dr. Hyndman. The defense made much over the fact that this figure is different from, and greater than, any loss calculated by Dr. Hyndman's models, *190 a point effectively replied to by Dr. Hyndman as he repeated that his models were not designed to balance all elements of this extremely complex ecosystem. His models were designed to analyze components of the system with as few variables as possible, which he satisfactorily explained as the best use of models in situations such as this one, particularly when much data is available. Dr. Hyndman accepted Dr. Andrews' model's calculated loss of 345 gpm as such seemed reasonable, a conclusion I agree with.
Although the trial court stated that it came "to the generalized opinion that Dr. Hyndman's testimony and opinions are more credible and supportable than those of Dr. Andrews," it also remarked that this general conclusion did not mean Hyndman was always correct or Andrews was always wrong. The trial court never excluded the possibility that it might rely on Andrews's testimony and models in making its findings.
At trial, Andrews testified that, at a steady-state pumping of 400 gpm, the Dead Stream would lose 345 gpm in flow. Furthermore, Hyndman testified that he and Andrews "agree that the majority of the flow that's being diverted as a result of the well would have gone to the Dead Stream system, and somewhere in the range of, we've talked about, 260 to 345 gallons a minute." Hyndman also explained that his models did not attempt to calculate the amount of flow diverted from the Dead Stream because he agreed with Andrews's determination that 345 gpm would be diverted. Hyndman clarified that "if 345 gallons per minute is diverted from Dead Stream as a result of pumping, then there will be roughly a two-inch drop based on its relationship, which is similar to what I've shown earlier." Therefore, the record supports the trial court's finding that the Dead Stream will lose 345 gpm in flow and that this loss will correspond to a drop of approximately 2 inches in stage.
Defendant also contends that the trial court's findings must be speculation because the trial court admitted that it was virtually impossible to analyze the effect on the Dead Stream of defendant's pumping. This statement was taken out of context. The trial court actually wrote, "[I]t is virtually impossible to get a reliable reading on the effects of Nestlé's operations on Dead Stream on any given day." (Emphasis added.) The trial court's statement does not stand for the proposition that no findings regarding the effect on the Dead Stream of defendant's pumping could be made. On the contrary, both parties presented experts who were willing and able to offer expert opinions on the effects of defendant's pumping, and the trial court properly relied on those experts.
Defendant points to the trial court's finding that the Dead Stream's channel would narrow by more than four feet as the result of its pumping as an example of a failure in the trial court's reasoning that reveals its findings to be speculation. In making this finding, the trial court stated:
Defendants' expert, David Cozad,[[26]] opined that the channel of Dead Stream will narrow one to two feet on each side of the channel (2'-4' total) over approximately ten years, if Dr. Andrews' opinions regarding decreases in Dead Stream flow and stage are accurate. I have found that Dr. Andrews' opinions on such are substantially below what has and will occur, so Cozad's opinion must be that even more channel-narrowing will occur. Plaintiffs' relevant expert, *191 Mark Luttenton, opined that the channel narrowing will be to a greater degree than Cozad predicted and would occur over a longer period of time. He was not able to quantify how much more would occur than Cozad predicts, but is certain it will happen.
I find that Nestlé's pumping operation will result in a narrowing of the channel of the Dead Stream over time in an amount greater than four feet.
Defendant's argument centers on the apparent inconsistency of accepting Andrews's determination that 345 gpm in flow will be lost and then rejecting Cozad's opinion, which was based on a loss of 345 gpm in flow, regarding the amount by which the channel of the Dead Stream would narrow. However, this argument ignores the fact that the trial court relied in part on Luttenton's opinion that Cozad understated the amount of channel narrowing without articulating an amount by which he believed the channel would narrow. The trial court accepted Luttenton's opinion that Cozad understated the amount, and so it was logical for the court to utilize Cozad's opinion as the base amount beyond which the channel would narrow. Furthermore, on cross-examination, Cozad admitted that keeping the 345-gpm flow reduction the same, but altering the average annual flow amount downward, would increase the amount of channel narrowing. The mere fact that the trial court adopted Andrews's diversion amount of 345 gpm does not mean that it also had to accept Andrews's assumptions about the average flow on the Dead Stream, which Cozad did when he rendered his original estimation of the amount the channel would narrow. Consequently, the record supported the trial court's finding that the channel would narrow by more than four feet.
3. Hydrologic Connection to Wetland 115
Defendant next finds fault with the trial court's finding that wetland 115 was affected by defendant's pumping. Defendant argues that it disproved plaintiffs' theory that wetland 115 had a hydrologic connection to the well field. Despite this, defendant contends, the trial court improperly developed its own unsupported theory that there was a hydrologic connection and used this theory in making its findings.
The trial court acknowledged that whether wetland 115 was affected by defendant's pumping was highly contested. Hyndman testified that there was a substantial connection between wetland 115 and the well field and opined that the water levels in wetland 115 correlated well with defendant's pumping activities. The trial court accepted Hyndman's opinion that wetland 115 would suffer a drop in water level as a result of defendant's pumping. The trial court also noted that Andrews admitted that wetland 115 would be affected by pumping to some small degree.[27] Finally, although the trial court did speculate about the possible explanations for the connection between wetland 115 and the well field, it also stated that "the mechanism for the effects to reach to these areas is not as important as the reality of it." Therefore, defendant's contention that the trial court impermissibly relied on its own unsupported theory is simply not an accurate reflection of the record or the trial court's opinion.
4. Inconsistent Facts
Finally, defendant argues that the trial court illogically adopted inconsistent facts and accepted Hyndman's self-contradictory *192 opinions over defendant's experts' opinions. In its opinion, the trial court unequivocally stated that it accepted Hyndman's opinion on the use and validity of groundwater models, while rejecting Andrews's opinion on the same thing. The court explained, "Dr. Hyndman's approach was not to try to model the entire system to get it to balance, but rather to take a more `microanalysis' approach to examining components of the system to understand them. If there is sufficient `hard' evidence, even Dr. Andrews agrees that is the best approach." At trial Hyndman explained his approach to models:
I believe the most powerful approach, most reliable approach, is to use the data that we have and evaluate what's occurring on the site.
The models that I used were to evaluate hypotheses and see what types of effects are likely to be occurring in the groundwater system. And, I mean, models can be used for a variety of reasons. One can be there's insufficient data. Another can be you are trying to do a projection and you feel you don't have enough data to do so.
In this case, my view is that there's enough data to evaluate what's occurring in this system mainly using data.
The inconsistencies of which defendant complains are all based on differences in the variables used by Hyndman in his models. Yet Hyndman clarified several times that he used his models to check his hypotheses, but his opinions were based primarily on the data available. Taken in this context, defendant's argument is really an argument that the trial court should have disregarded Hyndman's testimony because the variables he used from one model to the next were inconsistent and, therefore, the conclusions he drew from those models must be unreliable. However, whether this use of models renders Hyndman's opinions suspect is a matter of weight and credibility properly left to the trial court, McSwain, supra at 683, 676 N.W.2d 236, and this Court will not second-guess the trial court's credibility determination in favor of Hyndman. MCR 2.613(C).
There were no factual errors warranting a new trial.
C. Motion to Reopen the Proofs
Defendant also argues the trial court erred by not permitting the reopening of proofs.[28] We disagree. When evaluating whether the trial court abused its discretion on a motion to reopen proofs, this Court will consider (1) the timing of the motion, (2) whether the adverse party would be surprised, deceived, or disadvantaged by reopening the proofs, and (3) whether there would be inconvenience to the court, parties, or counsel. See Bonner, supra at 541, 97 N.W.2d 87.
In denying defendant's motion to reopen the proofs,[29] the trial court stated two *193 main reasons: the need for finality in the presentation of evidence and the limited value of the data collected. The trial court recognized that, in a complicated environmental case, the reopening of the proofs to admit data would also necessitate testimony from the various experts regarding the proper interpretation of the data. Furthermore, because the data were continuously collected, by the time any new data were properly presented and interpreted, still more data would be available to the parties. Consequently, under defendant's theory, there was the potential for a never-ending cycle of data collection, presentation, and interpretation.
The trial court also recognized the limited probative value of the data from this isolated period, especially in the context of the data accumulated over the previous 2 1/2 years. The trial court explained:
The problem with this argument is that it places much weight on the information since trial, without putting it in the context of the data accumulations before and even during trial. Plaintiffs' reply, in part, that the heavy precipitation in November skews the presentation of data since trial, an argument that has merit.... The question is not merely what has happened since the proofs closed, but, rather, how does that new data "move" the existing data analysis in its totality one way or the other. The trial evidence clearly showed that it is important to look at as long a range of information as is available to "flatten the curve" of short-term anomalies, such as unusually high precipitation periods. Since Nestle has not shown how the overall analysis would be changed if the newly-accumulated data were incorporated into it, balancing it against the long-term assessment of the trial evidence, it has not proven that merely having new information would forward the controlling inquiries.
Because the trial court made its ruling on the basis of valid considerations of finality and the limited probative value of the data, we cannot conclude that the trial court was without justification or excuse in refusing to reopen the proofs. McSwain, supra at 685, 676 N.W.2d 236. Therefore, the trial court did not abuse its discretion.
D. Conclusions
While one might disagree with the specific findings made by the trial court, they are adequately and plausibly supported by the testimony and documentary evidence in the record. Beason, supra at 803, 460 N.W.2d 207. Because the factual findings are supported in the record, we cannot say that we are left with the definite and firm conviction that the trial court made a mistake. Alan Custom Homes, supra at 512, 667 N.W.2d 379. Likewise, given the limited value of the additional data and the inconvenience that further presentations of data would entail, the trial court did not abuse its discretion by refusing to reopen the proofs. Because the trial court did not clearly err in making its findings and did not abuse its discretion in denying defendant's motion to reopen the proofs, a new trial is not warranted on these grounds.
III. Groundwater Claim
Defendant argues the trial court erred when it determined that defendant's pumping unlawfully interfered with plaintiffs' riparian rights to the Dead Stream[30]*194 on the basis of a hybrid rule of its own making rather than the balancing test stated in 4 Restatement Torts, 2d, § 858, p 258 which, defendant contends, was adopted in Maerz v. United States Steel Corp., 116 Mich.App. 710, 323 N.W.2d 524 (1982). While we disagree with defendant's contention that Maerz made a wholesale adoption of the Restatement's rule, we also reject the trial court's hybrid rule as contrary to the principles established by Michigan authorities dealing with competing water uses. Instead, we find that these authorities establish a reasonable use balancing test similar to the Restatement's rule.
A. Standard of Review
This Court reviews de novo, as a question of law, the proper scope and application of the common law. People v. Petty, 469 Mich. 108, 113, 665 N.W.2d 443 (2003).
B. Michigan Water Law
In order to provide some much-needed perspective on the applicable law, we shall engage in a discussion of the doctrines historically applied to water disputes and trace the origin and development of water law in Michigan. Traditionally, water law has developed along two distinct lines: (1) the law applicable to water use by riparian owners and (2) the law applicable to groundwater uses.
1. Riparian Water Rights
Under the common law, three main doctrines have developed for dealing with riparian water rights: the English common-law rule, also known as the natural flow doctrine, the reasonable use doctrine, and the appropriation or prior use doctrine. Stoebuck & Whitman, The Law of Property (3d ed), § 7.4, pp. 422-425. Of these doctrines, the natural flow doctrine and the reasonable use doctrine are relevant to the development of water law in Michigan.[31]
Under the natural flow doctrine, each riparian proprietor of a water-course has a right "to have the body of water flow as it was wont to flow in nature," qualified only by the right of other riparian proprietors to make limited use of the water. Restatement, introductory note to §§ 850 to 857, p 210.
The doctrine permits every owner to consume as much water as needed for "domestic" purposes, which generally means for personal human consumption, drinking, bathing, etc., and for watering domestic animals. Beyond this, the owner may use the water for "reasonable" artificial or commercial purposes, subject to the very large proviso that he may not substantially or materially diminish the quantity or quality of water. Certainly no water may be transported to land beyond the riparian land. [Stoebuck & Whitman, p 422.]
Under the reasonable use doctrine, "a riparian owner may make any and all reasonable uses of the water, as long [as] they do not unreasonably interfere with the other riparian owners' opportunity for reasonable use." Id. at 423, 665 N.W.2d 443. "Whether and to what extent a given use shall be allowed under the reasonable use doctrine depends upon the *195 weighing of factors on the would-be user's side and balancing them against similar factors on the side of other riparian owners. No list of factors is exhaustive, because the court will consider all the circumstances that are relevant in a given case." Id. While in theory no single factor is conclusive, "[d]omestic uses are so favored that they will generally prevail over other uses." Id. Furthermore, while the reasonable use doctrine generally allows water to be transported and used on nonriparian lands, such uses may be disfavored over uses on riparian land. Id. at 424, 665 N.W.2d 443; see also Restatement, introductory note to §§ 850 to 857, pp. 211-212.
In Dumont v. Kellogg, 29 Mich. 420 (1874), our Supreme Court adopted the reasonable use doctrine for competing riparian owners. The plaintiff in Dumont, a mill proprietor downstream from the defendant's mill, had filed suit complaining that the defendant had unlawfully interfered with his riparian rights by diminishing the flow of water to the stream below. Id. at 420. The plaintiff prevailed in the lower court and the defendant appealed, assigning error to the jury instructions.[32]Id. at 421. In reviewing the instructions presented to the jury, the Court rejected the notion that prior appropriation gave the plaintiff any superior rights to the stream. Id. at 422. The Court also stated:
And in considering the case it may be remarked at the outset that it differs essentially from a case in which a stream has been diverted from its natural course and turned away from a proprietor below. No person has a right to cause such a diversion, and it is wholly a wrongful act, for which an action will lie without proof of special damage. It differs, also, from the case of an interference by a stranger, who, by any means, or for any cause, diminishes the flow of the waters; for this also is wholly wrongful, and no question of the reasonableness of his action in causing the diminution can possibly arise. And had the instructions which are excepted to been given with reference to a case of diversion, or of obstruction by a stranger, the broad terms in which the responsibility of defendant was laid down to the jury might have found abundant justification in the authorities. [Id. at 422.]
Thus, the Court determined that the jury instructions, which followed the natural flow rule, would have been applicable had the interference been caused by a stranger.[33]
After discussing the exceptions in which the natural flow rule might still apply, the Court went on to hold that, as between two riparian owners, the natural flow rule did not strictly apply because "it is manifest it *196 would give to the lower proprietor superior advantages over the upper, and in many cases give him in effect a monopoly of the stream." Id. at 422. The Court concluded:
It is therefore not a diminution in the quantity of the water alone, or an alteration in its flow, or either or both of these circumstances combined with injury, that will give a right of action, if in view of all the circumstances, and having regard to equality of right in others, that which has been done and which causes injury is not unreasonable. In other words, the injury that is incidental to a reasonable enjoyment of the common right can demand no redress. [Id. at 425.]
Because the instructions did not properly state the reasonable use rule applicable to competing riparian owners, the Court reversed the judgment and ordered a new trial. Id. at 425-426.
What constitutes a reasonable use must be determined on a case-by-case basis. People v. Hulbert, 131 Mich. 156, 170, 91 N.W. 211 (1902). However, diversions of water from a lake or stream that do not benefit riparian lands were generally considered unreasonable per se.[34] In addition, natural water uses are preferred over artificial uses. Thompson v. Enz, 379 Mich. 667, 686, 154 N.W.2d 473 (1967) (plurality opinion of Kavanagh, J.). Hence, under Michigan's riparian authorities, water disputes between riparian proprietors are resolved by a reasonable use test that balances competing water uses to determine whether one riparian proprietor's water use, which interferes with another's use, is unreasonable under the circumstances.
2. Groundwater Water Law
As with riparian water law, there are three main common-law doctrines applicable to groundwater disputes. Stoebuck & Whitman, § 7.5, p 427.[35] The first doctrine is referred to as the English rule or the absolute ownership rule, which was first stated in Acton v. Blundell, 12 Mees & W 324; 152 Eng Rep 1223 (Exch, 1843). Stoebuck & Whitman, pp 427-428. Under this rule, "a possessor of land may withdraw as much underground water as he wishes, for whatever purposes he wishes, and let hi