53 Mich. 98 | Mich. | 1884
In this case the defendant had judgment on demurrer to the plaintiff’s declaration, and the plaintiff appeals.
The action is trespass' on the case, and the grievance complained of is that the defendant city, having by its charter full and complete authority to keep the public streets therein in repair, to remove nuisances therefrom, to regulate amusements therein,'and to prevent any unlawful, improper and dangerous use thereof, did, in the attempted exercise of its powers, at a meeting of its common council, held December 11, 1882,"designate and set aside Fountain street as one of a number of public streets and highways in said city in which the unlawful and dangerous sport and amusement of coasting and commonly called sliding down" hill, could be engaged in by all persons desiring to participate in the same; that on
The wrong attributed to the city is that, through its common council, it gave permission for the use of Fountain street for the amusement of coasting’. This permission was given in assumed exercise of the legislative power conferred upon the city to control the use of the streets, and the action raises the question whether a municipal corporation can be liable as for a tort, for injurious consequences resulting from an exercise of its legislative authority. Legislative power, whether held by the law-making authority of the State, or by municipal bodies, is in its nature governmental and discretionary, and it is conceded by counsel for the plaintiff that, as a general rule, a right of action as for a tort will not arise from any exercise of discretion in respect to it. This general rule has been several times acted upon, in this State: Gale v. Kalamazoo 23 Mich. 344: s. c. 9 Am. Rep. 80; Pontiac v. Carter 32 Mich. 164; Detroit v. Beckman 34 Mich. 125 : s. c. 22 Am. Rep. 507; Lansing v. Toolam, 37 Mich. 152; Toolan, v. Lansing 38 Mich. 315. It has also' been very generally applied elsewhere, under circumstances almost innumerable in variety, as the following cases, among many others, will show: Governor &c. v. Meredith 4 Term 796; Smith v. Washington 20 How. 135; Transportation Co. v. Chicago 99 U. S. 635; Wilson v. New York 1
But, on the other hand, if the act which is done by a municipal corporation would be tortious if done by a natural person, the corporation is held liable for it to the same extent, and for the same reasons that the natural person would have been. The legal protections of property are the same against artificial persons as against others, and the state itself, or any one of its municipalities, has no more power to deprive the owner of his possessions than has the private citizen. It has therefore been held that though a city is not responsible because of any failure to provide proper sewerage, yet, if the effect of the construction of one of its public works shall be to collect water and cast it upon the land of an individual where it would not otherwise flow, the city is liable: Ashley v. Port Huron 35 Mich. 296: s. c. 24 Am. Rep. 552, and cases cited; Rhodes v. Cincinnati 10 Ohio 159; Turner v. Dartmouth 13 Allen 291; Wilson v. New Bedford 108 Mass. 261: s. c. 11 Am. Rep. 352; Byrnes v. Cohoes 67 N. Y. 204; Inman v. Tripp 11 R. I. 520: s. c. 23 Am. Rep. 520; Thurston v. St. Joseph 51 Mo. 510 : s. c. 11 Am. Rep. 463; Gillison v. Charleston 16 W. Va. 282: s. c. 37 Am. Rep. 763; Templin v. Iowa City 14 Iowa 59; Ellis v. Iowa City 29 Iowa 229; Ross v. Clinton 46 Iowa 606: s. c. 26 Am. Rep. 169; Van Pelt v. Davenport 42 Iowa 308 : s. c. 20 Am. Rep. 622; O'Brien v. St. Paul 25 Minn. 333: s. c. 33 Am. Rep. 470; Dixon v. Baker 65 Ill. 518: s. c. 16 Am. Rep. 591; Indianapolis v. Lawyer 38 Ind. 348; Indianapolis v. Tate 39 Ind. 282; Weis v. Madison 75 Ind. 241: s. c. 39 Am. Rep. 135. So, though a city is not liable for a consequent diminution of the value of adjacent property resulting from the grading of a street, Pontiac v. Carter 32 Mich. 164, yet if, in the grading, earth
Counsel for the plaintiff contends'that these cases should rule the one at bar ; that the common council, by the permission it gave for the use of Fountain 'street for coasting, licensed a nuisance in a public highway, and that the city is responsible precisely,as it would be if the nuisance had been caused under its command and by its agents. Schultz v. Milwaukee 49 Wis. 254: s. c. 35 Am. Rep. 779, is supposed 'to support this view; as does also, very strongly, Mayor c&c. v. Marriott 9 Md. 160. If it were unquestionable that coasting upon a public highway was always a nuisance, there would be much plausibility in this contention, and perhaps it should be accepted as sound. But in Hutchinson v. Concord 41 Vt. 271, and again in Faulkner v. Aurora 85 Ind. 130: s. c. 44 Am. Rep. 1, it was taken for granted that
If coasting upon a public highway is not necessarily a nuisance, it would seem plain that the public authorities having the care and superintendence of highways, and whose duty it is to prevent nuisances or to abate them, must have some discretion to determine when and where the sport should be allowed in the public roads, and when and where forbidden. The common council of a city has frequent occasion to exercise a like authority; the streets must of necessity be used, even in the most compactly built parts of a city- — -perhaps most often there — for many purposes besides travel and business traffic, and it has never been supposed that licensing such use would render the city liable on any common-law principle. In some cases there may be a statutory liability; but it is not claimed that there is any statute in this State which will render the .city liable for the action of its legislature in licensing the use of a street for coasting, or that this plaintiff has any remedy unless it is given by the common law. The case presented then, would seem to be this: The common council, having full control of the streets, has licensed the use of a particular street in a particular way differing from the ordinary use. In doing so it must be supposed to have determined that the irse in that way will not interrupt or interfere with such customary use of it for passage or travel as the public may have occasion for. The decision to this effect is made in the exercise of its discretionary and governmental authority over a subject ■ confided by the state to its judgment, and is presumptively correct. But, whether correct or not, no appeal from the judgment to court and jury has been provided for, and therefore none can be had. An indirect appeal by suit against the city to establish a liability against it for an erroneous legislative determination is not only not provided for, but it would be opposed to a principle as well settled and as familiar as any in government.
It would not follow that parties acting under the permis
The judgment must be affirmed.