## Facts

- Theodore Rogers granted the county road commission a license to place a snow fence on his field near a roadway, conditioned on removal of the fence and posts at the end of each winter season.
- The commission installed the snow fence using posts and steel anchor hardware on Rogers’s property.
- After winter, commission employees removed the fence but left a steel anchor post protruding roughly 6–8 inches above the ground.
- During the growing season, grass concealed the post.
- In July, while mowing the meadow, Rogers drove a mower/tractor over the area; the mower struck the concealed post, throwing him from the machine and causing fatal injuries.
- The administratrix sued for wrongful death, alleging negligence and trespass based on leaving the anchor post after the agreed removal time.

## Issues

1. Whether leaving the anchor post in the ground after the license expired constituted a continuing trespass.
2. Whether governmental immunity barred suit against a county road commission for negligence and/or continuing trespass under the governing statutes.
3. Whether the commission’s liability insurance (and any third-party-beneficiary theory) prevented the commission from asserting governmental immunity.

## Decision

- The Michigan Supreme Court reversed the trial court’s dismissal and remanded for further proceedings.
- The court held the declaration stated a valid trespass claim because the failure to remove the anchor post after the license ended constituted a continuing trespass.
- The court held governmental immunity did not bar the action, relying on statutory waiver applicable to such claims and also stating immunity is not a defense to an action based on continuing trespass.
- The court rejected the argument that the existence of liability insurance, by itself, eliminated immunity defenses where the policy permitted the insured to assert them, though the immunity defense failed on other grounds.

## Legal Principles

- Consent or license to place objects on another’s land is limited by time, purpose, or scope; once the privilege ends, failure to remove the object can constitute trespass.
- A continuing trespass may arise from the continued presence on land of a structure or chattel initially placed there with permission when the actor fails to remove it after consent is effectively terminated.
- Governmental immunity may be limited or waived by statute, and a county may not rely on governmental immunity to defeat liability for a continuing trespass.
- A governmental entity’s liability insurance does not automatically bar assertion of defenses if the policy allows those defenses.

## Conclusion

Because the road commission’s license to place the snow fence ended when winter ended, leaving the steel anchor post on the land stated a continuing trespass claim; governmental immunity did not defeat the action, so dismissal was improper and the case was remanded.


Rogers v. Bd. of Rd. Comm’rs for Kent Cnty., 319 Mich. 661, 30 N.W.2d 358 (Mich. 1948)