The opinion
J. P. Swallow, J.
(concurring in result with Allen, P.J.). I write separately to point out that, in my view, the governmental tort liability act, MCL 691.1401 et seq.; MSA 3.996(101) et seq., may be a bar to a tort claim sounding in nuisance that is made against a governmental agency. Ross v Consumers Power Co (On Rehearing), 420 Mich 567 ; 363 NW2d 641 (1984).
The specific governmental activity complained of by plaintiffs in this action is the State of Michigan’s ownership of a hazardous waste site in conjunction with the abatement of the same by the Department of Natural Resources.
The Legislature is constitutionally mandated to provide for the protection of the air, water, and other natural resources of the state from pollution, impairment, and destruction. Const 1963, art 4, §52.
For the Department of Natural Resources, a creature of the Legislature, MCL 16.350; MSA 3.29(250), to accept title to the waste site in the name of the state for the purposes of cleaning up and removing hazardous substances and expediting litigation concerning the site is impliedly, if not expressly, mandated by the constitutional proviso, and thus under Ross , may be considered a governmental function. Ross, supra, p 620 .
Section 7 of the governmental tort liability act provides that, except for certain limitations all governmental agencies shall be immune from tort liability in all cases where they are engaged in the exercise and discharge of a governmental function. MCL 691.1407; MSA 3.996(107).
*768 Plaintiffs, in bringing a tort action against a governmental agency, must plead facts in their complaint in avoidance of a governmental immunity, i.e., they must allege facts that would justify a finding that the alleged tort does not fall within the concept of sovereign or governmental immunity. Galli v Kirkeby, 398 Mich 527, 532, 540-541 ; 248 NW2d 149 (1976). This may be accomplished by stating a claim which fits into one of the statutory exceptions, or by pleading facts which demonstrate that the tort occurred during the exercise or discharge of a nongovernmental or proprietary function. Ross, supra, p 621, n 34 .
The governmental activity complained of in this action does not fit into one of the statutory exceptions, nor is it proprietary. Thus, plaintiffs presumably seek to avoid governmental immunity by pleading in their first amended complaint that the conditions on the state land constitute a continuing nuisance. Nuisance is a species of tort, Prosser & Keeton, Torts (5th ed), § 87, p 622, and thus a basis for tort liability and within the express scope of §7.
Historically, the factual pleading of claims which would constitute a nuisance have survived assertions of governmental immunity, not because the claim was characterized as a nuisance, but because the state activity complained of was construed to be a constitutionally unpermitted taking of private property. See Pennoyer v Saginaw, 8 Mich 534 (1860), and Ashley v Port Huron, 35 Mich 295 (1877), relying upon Pumpelly v Green Bay & Mississippi Canal Co, 80 US (13 Wall) 166; 20 L Ed 557 (1872), wherein the Court reasoned that the constitutional provision of the United States, and of the several states which declare that private property shall not be taken for public use *769 without just compensation, were intended to establish this principle beyond legislative control.
In addressing the application of the statute to this case, a confrontation between the constitution and the statute may be avoided as a definition of the term "governmental function” is not contained within the statute and the term, being one of art, is thus subject to judicial interpretation. Ross, supra, pp 608-610 .
While Ross judicially defined a governmental function as an activity authorized by the constitution, it may also be reasonable to presume that when another section of the constitution is read to require payment of compensation as a result of the same activity the Legislature intended to except that activity from their statutory assertion of immunity.
That precise issue, however, is not presented to this panel, as the instant case may be disposed of by only noting that plaintiffs’ first amended complaint does not adhere to the pleading requirements of Ross , nor does the record reveal any proposed pleading filed in support of plaintiffs’ motion for leave to amend which articulates an actionable claim against a governmental agency.
For the reasons expressed, I find that the trial judge was correct in holding that plaintiffs’ pleadings do not state a claim upon which relief can be granted, MCR 2.116(C)(8), and that he did not abuse his discretion by denying plaintiffs’ motion seeking leave to file an amended complaint. Ben P Fyke & Sons v Gunter Co, 390 Mich 649 ; 213 NW2d 134 (1973), and Welke v Kuzilla, 140 Mich App 658, 665 ; 365 NW2d 205 (1985).