McCutcheon v. Common Council

Michigan Supreme Court

McCutcheon v. Common Council

5 N.W. 668, 43 Mich. 483, 1880 Mich. LEXIS 851

CourtMichigan Supreme Court

DecidedApril 30, 1880

StatusPublished

Cited by20 cases

This text of 5 N.W. 668 (McCutcheon v. Common Council) is published on Counsel Stack Legal Research, covering Michigan Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

McCutcheon v. Common Council, 5 N.W. 668, 43 Mich. 483, 1880 Mich. LEXIS 851 (Mich. 1880).

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Opinion

Cooley, J.

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 [486]*486bounds 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. Beckman, 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 opinions 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 court itself desires a reargument, it is to be presumed it will be ordered when, the occasion presents itself; but unless that is done, a deliberate decision should not be regarded as open to controversy.

The judgment must be affirmed with costs.

The other Justices concurred.

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Cooley, J.

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 [486]*486bounds 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. Beckman, 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 opinions 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 court itself desires a reargument, it is to be presumed it will be ordered when, the occasion presents itself; but unless that is done, a deliberate decision should not be regarded as open to controversy.

The judgment must be affirmed with costs.

The other Justices concurred.

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5 N.W. 668, 43 Mich. 483, 1880 Mich. LEXIS 851, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mccutcheon-v-common-council-mich-1880.

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