Gardiner v. Town of Johnston

• Decision Date: 28 January 1888
• Citation: 12 A. 888,16 R.I. 94
• Parties: GARDINER v. TOWN OF JOHNSTON.
• Court: Rhode Island Supreme Court

12 A. 888

16 R.I. 94

GARDINER

v. TOWN OF JOHNSTON.

Supreme Court of Rhode Island.

January 28, 1888.

Alternative writ of mandamus. On the respondent's return to the writ. The writ was issued in this case to require the town council to pass an order of notice in accordance with Pub. St. R. I. c. 65, § 38, which is as follows: "Sec. 38. Whenever an abutting owner shall deem himself to be injured by any change in the grade of a highway, and such owner shall make claim for compensation for such injury to the town council within forty days after such change of grade shall have been completed, the town council shall appoint three suitable and indifferent men, not interested in the lands bordering on the highway, the grade of which has been changed, who shall be engaged to the faithful discharge of their duties, and who shall go upon the highway when the grade thereof has been changed, and examine the same, and the estate alleged to have been injured by changing the grade of said highway, and endeavor to agree with the owner of such estate as to the amount of damage by him sustained by means of such change of grade, and, if they agree with the owner, they shall reduce such agreement to writing and report the same to the town council, which report shall be binding upon such owner and upon the town; but if they fail to agree with the owner as to such damage, they shall report such failure to the town council, whereupon the council, after notice to such owner, and offering him an opportunity to be heard, shall proceed to appraise the damage done to such owner by means of such change of grade," or to show cause why a peremptory writ should not issue.

James C. Collins, for relator. Nicholas Van Slyck, for respondent.

STINESS, J. Plainfield street, in the town of Johnston, was formerly a turnpike road, maintained by the Providence & Warwick Turnpike Society. August 1, 1865, at a special town meeting, it was voted that the town council be requested to receive the part of said turnpike in the town of Johnston, and to arrange with the corporation for its conveyance. A deed to the town was drawn, dated August 30, 1865, and on the 9th of September following the town council voted to receive the portions of said road referred to in the deed; notice having been given to abutting owners to appear and be heard for or against the reception of the same. The deed was acknowledged October 7, 1865, but no subsequent action was taken by the town council. In June, 1867, the town council appointed a committee to survey and report a grade for Plainfield street. In July, 1867, the committee made a report, which the council voted to receive, and also voted that the grade be placed as stated in said report. The petitioner claimed that this established the first grade of the street, and that subsequent proceedings made a change of grade, entitling him to damages. The first question, then, is whether this amounted to an establishment of grade under the statute. The town contends that the notice to parties and the action of the town council upon accepting a turnpike under Pub. Laws E. I. c. 521, of March 23, 1864, must follow the conveyance, and therefore, as there were no notices nor proceedings after the execution of the deed, October 7, 1865, the road did not thereby become a public highway, in which a grade could be established. Chapter 521 provided for the transfer of a turnpike road "upon such terms as may be agreed upon." From the date of the deed and the cancellation of the revenue stamp thereon by the treasurer who signed the deed, it appears that the conveyance by the corporation, in all but the acknowledgment, was made August...