CHARTER TOWNSHIP OF WARREN v. Blunt

81 N.W.2d 360, 348 Mich. 43, 1957 Mich. LEXIS 387

• Court: Michigan Supreme Court
• Decided: February 28, 1957
• Docket: Docket 12, Calendar 46,952
• Status: Published

Opinion

Black, J.

(after stating the facts). The plaintiff township has not favored us with a brief. We will assume contention on its part that the court below was empowered to “close the dump” in addition to enforcement of its decree for abatement of an adjudged smoke nuisance. To such contention, and to defendants’ present insistence on right of appeal “from both the decree and enforcing order,” we must say for the benefit of all contending parties that this Court cannot now review the decree or dilute its judgment. Integrity of such decree is finally established for want of due review thereof, and present consideration of the case must proceed on that premise (Marsh v. Wayne Circuit Judge, 246 Mich 511; Hack v. Norris, 46 Mich 587; Benedict v. Thompson, 2 Doug [Mich] 299). *

As foregoing quotation shows, the decree determines that the plaintiff township is entitled to relief against nuisance created by “smoke from the burning of rubbish.” The decretal corollary is that the township is not entitled under its hill to additional relief against the defendants, such as “closing the dump.” Defendants are entitled to rely on such adjudicatory corollary just as plaintiff may rely upon its adjudged right to abatement of the nuisance and annoyance ■of smoke emanating from the premises.

That there be no misunderstanding, we add what is probably manifest. Our holding is confined to •determination that plaintiff is entitled on present record to abatement of the adjudged smoke nuisance only. It is not entitled on such record to stop dumping operations by the defendants since the latter 'obviously may be conducted without causing nuisance by smoke. If plaintiff is entitled to additional relief against the defendants, over and above that which it obtained by the unappealed decree, it must seek such relief by new and original proceedings. Bills of review were abolished in the peninsular State many years ago. Compare chancery rule 101 (Court Rules Michigan [5th ed], 1892) with Court Rule No 56 (1916) and Court Rule No 48, § 4 (1945).

The order of July 26, 1955, is set aside and the ■cause will be remanded for appropriate enforcement of the mentioned decree. Costs to defendants.

Dethmers, C. J., and Sharpe, Smith, Edwards, Yoelker, Kelly, and Carr, JJ., concurred.

* In Benedict v. Thompson, the appeal period then being 90 days, we find the carefully considered opinion ending this way:

“This decision will admonish parties litigant, that where a decree is made upon the merits of a cause, with which they are aggrieved, an appeal must be taken within 90 days; and that this Court will not, after that period has elapsed, review the merits of sueh decree upon an appeal taken from a final order made in the further progress of the cause.”