Aldrich v. Board of Aldermen of City of Providence

• Decision Date: 26 December 1878
• Citation: 12 R.I. 241
• Parties: ANSON W. ALDRICH v. THE BOARD OF ALDERMEN OF PROVIDENCE.
• Court: Rhode Island Supreme Court

12 R.I. 241

ANSON W. ALDRICH v. THE BOARD OF ALDERMEN OF PROVIDENCE.

Supreme Court of Rhode Island.

December 26, 1878

Prior to 1859 surveyors of highways had authority to make and change street grades at pleasure, and an abutting owner had no redress if the surveyors acted carefully and honestly.

Public Laws R.I., cap. 310 of 1859, made the town liable for damages suffered by an abutting owner from a change of grade.

Public Laws R.I., cap, 634, March 9, 1866, vested in the town councils the power to establish and change street grades.

Gen Stat. R.I. cap. 60 is substantially a digest of Public Laws R.I., caps. 310 and 634.

Hence a town is liable to an abutting owner for damages caused by the change of a grade which was established by the surveyor of highways before March 9, 1866, just as for damages caused by the change of a grade which was established by the town council after that date.

An abutting owner is not entitled to compensation for the establishment or working of a grade when none previously existed

Grading a highway involves something more than merely fitting it for travel.

PETITION for a writ of mandamus .

Charles H. Parkhurst, for petitioner.

Nicholas Van Slyck, City Solicitor of the city of Providence, for board of aldermen.

DURFEE, C. J.

This is a petition for a writ of mandamus to the board of aldermen of the city of Providence, commanding them to appoint three suitable and indifferent men under Gen. Stat. R.I. cap. 60, § 38, to endeavor to agree with the petitioner as to the damages which he has suffered by a change of grade in Washington Street.

The petition shows that the petitioner is the owner of an estate measuring about ninety feet on Washington Street with a large hotel on it, and the lessee of a lot measuring forty-five feet on Washington Street with a building on it belonging to him; that in 1847 the street commissioners of the city of Providence, so-called, acting under an ordinance of the city, established a grade on Washington Street, and that this grade was subsequently, and down to 1874, recognized and adopted as the grade of the street by highway surveyors and commissioners, the street being worked to it by them; that in 1860 he erected his hotel, adapting it to the grade, the same having been given to him as the grade of the street by a city surveyor, after notice of his intention to build; that in 1873 he built an addition to the hotel, conforming to the same grade which was defined for him by the city engineer; that in October, 1874, the board of aldermen gave notice to abutters on Washington Street to appear before them December 3, 1874, and be heard " on the question of changing the grade" of the street; that on December 3 the matter was deferred to December 10, and on December 10 a change of the grade was directed in conformity with a map or profile prepared by the city engineer; that the change so directed was not completed until November last; that within forty days after its completion the petitioner applied to the board of aldermen to appoint three suitable and indifferent persons under Gen. Stat. R.I. cap. 60, § 38, and the board refused to comply with the application. Hence this petition.

The board of aldermen do not deny the allegations of the petition, but resist the granting of the writ on the ground that the petitioner is not entitled to damages except for a change of grade, and that there has been no change but merely the establishment of a grade where none previously existed, the grade created in 1847 being, as they contend, no grade in...