Bishop v. Tripp

• Court: Rhode Island Supreme Court
• Writing for the Court: PER CURIAM
• Citation: Bishop v. Tripp, 15 R.I. 466, 8 A. 692 (R.I. 1887)
• Decision Date: 19 February 1887
• Parties: BISHOP v. TRIPP, City Treasurer.

8 A. 692

15 R.I. 466

BISHOP

v. TRIPP, City Treasurer.

Supreme Court of Rhode Island.

February 19, 1887.

Amasa M. Eaton, for plaintiff.

N. Van Slyck, City Sol., for defendant.

PER CURIAM. This is an action to recover divers sums of money paid by the plaintiff, under protest, for certain sewer assessments which she claims to have been illegal. The action is tried to the court upon an agreed statement of facts, supplemented by oral testimony and a view.

The first claim is for the sum of $529.46, assessed for a sewer constructed in Blackstone street, so called. At the time the sewer was ordered to be constructed, the part of Blackstone street, so called, where it was made, existed only by delineation on a plat. It had never been opened or used as a public street. After the completion of the sewer, that part was laid out as a public street, but has never been opened to public travel, and is, in fact, unfit to be used for travel. The assessment was made after the lay-out. It was made under Pub. Laws B. I. c. 313, § 4, passed March 28, 1873, which authorizes assessments for sewers constructed under the provisions of Pub. Laws R. I. c. 807, passed March 24, 1869. Chapter 807 authorizes the construction of sewers only in streets, which we think must be considered to mean public streets, which have become such either by lay-out, or by dedication and acceptance. The assessment under chapter 313, § 4, was therefore illegal and void, inasmuch as it was for a sewer not constructed in a public street, unless it can be held to have been validated by the subsequent lay-out. We know of no principle upon which such lay-out can be held to have operated as a validation. The sewer might legally have been constructed in private lands at the time this sewer was constructed, under Pub. Laws R. I. c. 993, passed April 26, 1872, but the procedure is different, and not, to any extent, within chapter 313. The plaintiff is therefore entitled to recover on this claim.

The second claim is for $2,400.48, assessed for a sewer laid in Pearl street. The ground upon which this assessment is claimed to be illegal is that the lots assessed were not city but suburban lots. In Cleveland v. Tripp, 13 R. I. 50-61, it was stated that according to authority an assessment by front feet for a street improvement, extended to rural or farm lands, was so plainly unfair or extortionate that it could not be sustained. If the lands so assessed were rural lots or farm lands, the assessment cannot be sustained. The lots are within the city limits, near the compact part of the city, with houses around them, though immediately around them there is a vacant area. The lots are laid out as city lots, for building purposes, and are evidently held for sale as city lots, and not for agricultural purposes. "We think that they must be regarded rather as city lots than as rural lots or farm lands, and that the assessment was therefore valid.

The third claim is for $356.18, assessed for a sewer in Mumford street. The ground of the claim is that the sewer was ordered, begun, and finished nine years before this street was laid out as a public street. "We think, however, that Mumford street may have been a public street when the sewer was constructed, though it was not laid out as such until nine years afterwards, inasmuch as it may have been a public street by dedication and acceptance when the sewer was laid. There is nothing in the statute authorizing the construction of sewers in streets which confines the construction to streets which have...