McCutcheon v. Common Council of Homer
| Decision Date | 30 April 1880 |
| Citation | 5 N.W. 668,43 Mich. 483 |
| Court | Michigan Supreme Court |
| Parties | McCUTCHEON v. COMMON COUNCIL OF HOMER. |
A municipal corporation is not liable as for misfeasance for extending the bounds of a street so as to bring an existing nuisance within the limits of such street. Such corporations are not liable for injuries to an individual in consequence of neglect to put and keep one of the public ways in repair.
Error to Calhoun.
John C. Patterson and Wm. H. Brown, for plaintiff in error.
Byron Smith and James H. Campbell, for defendant in error.
The record in this case presents two questions of law. The first of these is whether a municipal corporation is liable as for misfeasance in extending the bounds of one of its streets by widening it, thereby bringing an existing nuisance within the street limits. This question is answered by repeated decisions of this court. The action which widened the street was legislative, and no charge of misfeasance can be predicated thereon. Larkin v. Saginaw County, 11 Mich. 88; Pontiac v. Carter, 32 Mich. 164; Detroit v. Beekman, 34 Mich. 125; Lansing v Toolan, 37 Mich. 152.
The second question is whether such a corporation is liable for the injury sustained by an individual in consequence of the neglect to put and keep one of the public ways in repair. This, it is conceded, was decided in the negative in Detroit v. Blackeby, 21 Mich. 84. It is said however, that the decision in that case was by a divided court, and it is urged that it should be reviewed in the light of more recent decisions.
The case of Blackeby was very fully and carefully considered, and there can be no ground for supposing that either of the judges participating therein has since changed the opinion then deliberately formed and expressed. The case was decided on the concurring opinion of a majority of the court, and the decision is authoritative.
There has been a change in the court since that time, but it would be mischievous in a high degree to permit the re-opening of controversies every time a new judge takes his place in the court, thereby encouraging speculation as to the probable effect of such changes upon principles previously declared and enforced in decided cases. Nothing is more important than that the law should be settled, and when a principle has once been authoritatively laid down by the court of last resort it should be regarded as finally settled. If the...
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