Northrup v. City of Jackson

• Decision Date: 11 October 1935
• Docket Number: No. 67.,67.
• Citation: 273 Mich. 20,262 N.W. 641
• Parties: NORTHRUP et al. v. CITY OF JACKSON.
• Court: Michigan Supreme Court

273 Mich. 20

262 N.W. 641

NORTHRUP et al.

v.CITY OF JACKSON.

No. 67.

Supreme Court of Michigan.

Oct. 11, 1935.

Suit for an injunction and damages by Edwin E. Northrup and another against City of Jackson, wherein judgment was entered for plaintiffs. From an adverse decree, defendant appeals.

Decree amended by striking award of damages, and, as so amended, affirmed.Appeal from Circuit Court, Jackson County, in Chancery;James S. Parker, Judge.

Argued before the Entire Bench.

Burney E. Brower, of Jackson, for appellant.

Maxwell F. Badgley and Robert L. Drake, both of Jackson, for appellees.

Bert V. Nunneley and John H. Nunneley, both of Mount Clemens, amici curiae.

FEAD, Justice.

Under its former charter, Act No. 353, Local Acts 1895, and its present charter adopted under the Home Rule Act, 1 Comp. Laws 1929, § 2228 et seq., the city of Jackson had and has authority to establish sewers and improve Grand river, a natural water course, for a certain distance beyond the city limits. For many years the city has emptied its raw sewage into Grand river.

Plaintiffs live on their farm some twelve miles north of the city. Grand river bounds the farm on the north. They claim that increasingly for ten years, and particularly since 1930, city sewage has polluted the stream at their farm and constituted a nuisance. Plaintiffs filed this bill to enjoin the city from maintaining the nuisance and also prayed money damages. Plaintiffs had decree for abatement. Defendant does not complain of that part of the decree, because it is contructing a sewage disposal plant. The court, however, awarded plaintiffs money damages of $750, confined to the three-year period of limitation, and defendant attacks such award.

The court had some misgivings as to the propriety of an award of money damages for the reason that plaintiffs had not filed a claim therefor with the city commission before commencing this suit. The city charter provides: ‘The City Commission shall audit, pass upon, and allow or reject all accounts and claims against the City; * * * Every claim for tort shall so far as possible state in detail the time, place and cause of alleged injury and shall be made under oath. All claims, whether arising out of contract or tort, shall be presented to the City Commission for consideration within six months after the cause of action in every case has arisen. It shall be a sufficient defense to any action for the collection of and demand or claim against the City, that it has not been presented to the City Commission for allowance as hereinbefore provided. * * *’

Counsel agree that no claim needed to be filed in connection with the abatement phase of the case. As to the necessity of presenting claim for money damages before suit, plaintiffs attack the charter provision from several angles:

1. That it does not apply to damages allowed in equity as incidental to abatement, nor to a claim for continuing damages.

The courts are in conflict upon this point. 52 A. L. R. 639, note. They divide upon the construction of statute or charter, sometimes along the line of the policy of the state. A charter provision for presentment of a claim to a municipality as a prerequisite to action against it is in harmony with the long-established policy of our state, as is indicated by similar provisions in old time special statutory charters, in the general Village Act, 1 Comp. Laws 1929, § 1534, the Fourth Class Cities Act, § 1921, and the Highway Law, § 4230. Its purpose is to give notice to the whole of the governing body of the municipality and afford all the members an opportunity to investigate and determine to allow, settle, or prepare defense to claims. It seems particularly applicable to claims of the character at bar, because the nuisance developed gradually and only plaintiffs knew when the condition had become so obnoxious to them as to suggest the question of money damages. The charter provision is ganeral, covering claims arising out of both contract and tort, and thus avoids the rule that enumeration of specific items impliedly excludes others not enumerated. We see no reason for emasculating the charter by construction in order to exempt a claim peculiarly within its purpose because plaintiffs made an election to ask damages in equity instead of suing at law. Had damages been awarded in lieu of abatement, or had there been no prayer for damages, but the court had allowed them in the exercise of its plenary equitable powers, a different question would be presented. We think the charter should be given force according to its language and purpose and exceptions permitted only upon sound distinctions. See Detroit v. Michigan Paving Co., 38 Mich. 358;Mead v. City of Lansing, 56 Mich. 601, 23 N.W. 444;Springer v. City of Detroit, 102 Mich. 300, 60 N.W. 688.

2. That no notice of claim was required because the sewage system is not a governmental function but is a private or proprietory function, citing Borski v. City of Wakefield, 239 Mich. 656, 215 N. W. 19.

In the Borski Case the city was not performing a public function,...