Adams v. Fletcher

• Citation: 20 A. 263,17 R.I. 137
• Parties: ADAMS v. FLETCHER.
• Decision Date: 26 July 1890
• Court: United States State Supreme Court of Rhode Island

20 A. 263

17 R.I. 137

ADAMS

v. FLETCHER.

Supreme Court of Rhode Island.

July 26, 1890.

Petition for new trial.

Charles Bradley and Walter F. Angell, for plaintiff. Nicholas Van Slyck and Cyrus At. Van Slyck, for defendant.

MATTESON, J. This is an action of trespass on the case to recover for injuries received by the plaintiff on May 27, 1889, from falling into a coal-hole in the sidewalk adjoining the defendant's premises on Dorrance street, in Providence. It appeared in evidence that Dorrance street was a public highway, and that the defendant was, and had been for several years prior to the accident, the owner of a building known as the "Narragansett Hotel Building," adjoining said street. The cellar of the building extended under the sidewalk on Dorrance street, and opened into the street through the hole into which the plaintiff fell. The hole was constructed and used for putting coal into the cellar. No license or other authority was shown by the defendant for maintaining the hole, or the cellar under the highway. At the time of the accident that part of the building adjacent to the sidewalk in question was leased to one Lewis H. Humphrey, who was in occupation. The lease contained a covenant by the defendant to keep the exterior of the building in repair. At the time of the demise, the coal-hole was provided with a suitable cover, which fitted down into the sidewalk so that it could not be raised without considerable effort. At the time of the accident the cover had been removed, and the hole left open and unguarded by the agents of the lessee, while they were putting coal into the cellar for his use. At the trial the court ruled—First, that the hole in the sidewalk and the cellar under it did not constitute a nuisance as long as they were properly covered; and, second, that the defendant was not liable for an injury to the plaintiff resulting from the removal of the cover by the lessee, or his agents, for the purpose, and in the manner, shown by the testimony, as above stated; and, accordingly, instructed the jury to return a verdict for the defendant. To these rulings and this instruction the plaintiff duly excepted, and now petitions for a new trial, alleging that said rulings and instructions were erroneous.

It was agreed upon the hearing that the coal-hole in question was constructed prior to any legislation, state or municipal, relating to vaults under sidewalks and coal-holes. To entitle the plaintiff to recover against the defendant as the owner of the property, it must appear that the coal-hole was a nuisance at the time the property was leased to the tenant. Joyce v. Martin, 15 R. I. 558, 10 Atl. Rep. 620; Owings v. Jones, 9 Md. 108; Rich v. Basterfield, 4 C. B. 783, 801. The case does not show that the coal-hole was faulty in its construction, or that it had become defective or out of repair so as to be dangerous to persons passing over it at the time of the demise. The plaintiff, however, claims that it was a nuisance because no license or authority from the public was obtained for its construction and maintenance He cites several cases which apparently support this claim. Congreve v. Smith, 18 N, Y.79; Congreve v. Morgan, Id. 84; Wendell v. Mayor, etc., 39 Barb. 329; Clifford v. Dam, 81 N. Y. 52. The doctrine of these cases is that the public are entitled to the street in the condition in which they have placed it; and whoever, without special authority, materially obstructs it, or renders its use hazardous, by doing anything upon, above, or below the surface, is guilty of a nuisance; and, as in all other cases of public nuisance, individuals sustaining special damage from it, without any want of due care to avoid injury, have a remedy by action...