Gill v. Town Council of Jamestown

• Decision Date: 25 June 1926
• Docket Number: No. 6233.,6233.
• Citation: 133 A. 806
• Parties: GILL et al. v. TOWN COUNCIL OF JAMESTOWN.
• Court: Rhode Island Supreme Court

133 A. 806

GILL et al.

v. TOWN COUNCIL OF JAMESTOWN.

No. 6233.

Supreme Court of Rhode Island.

June 25, 1926.

Exceptions from Superior Court, Newport County; Edward W. Blodgett, Judge.

Proceedings by Town Council of Jamestown to survey and mark out portion of highway. On appeal of William H. Gill and others, the superior court found highway had not been properly marked out and quashed the proceedings, and the Town Council excepts. Exception overruled.

Burdick & MacLeod, Clark Burdick, and Edward J. Corcoran, all of Newport, for appellants.

Max Levy, of Newport, for appellee.

BARROWS, J. On August 27, 1923, three commissioners were appointed by the town council of Jamestown "to survey, bound and mark out that portion of Narragansett avenue extending westerly from the westerly side of Ocean avenue to the sea." These commissioners reported to the council with a plat and that no one had suffered damages. After the giving of due notice, the council approved the report by its decree of November 14, 1923. From this decree Gill and other abutting owners appealed to the superior court, and after hearing without a jury that court in a carefully considered rescript found that the highway had not been properly marked out and quashed the proceedings of the town council. To the action of the superior court granting the motion to quash, the town council took exception, and the case is now before us on said exception.

The exception is that the court acted contrary to law in quashing the proceedings of the town council. The proceedings relate to the westerly portion of the highway involved in Horgan v. Jamestown, 32 R. I. 528, 80 A. 271. The directed procedure was phrased in this case as in the Horgan Case. The town council claimed to be acting pursuant to General Laws 1909, chapter 82, § 28, but no pretense is made that the authority given to the commissioners was any more than to "survey, bound and mark out" an existing highway. This might have been done by the council without reference to chapter 82 as pointed out in Horgan v. Jamestown, at page 532 (80 A. 271). Because the court found for the town council in that case, the town council claims that the commissioners' action now in question must be approved. The cases are controlled by different legal principles. The width of the way laid out, or whether it followed ancient landmarks, was not considered in the Horgan Case. The question there involved related to accretions at the shore end of a highway running to the sea.

Narragansett avenue is what was formerly known as the Ferry road, the main highway running almost due east and west across the Island of Conanicut.' The first appearance of the road was in 1709 (Appellants' Exhibit A), at which time the proprietors carved out a road "fore rod wide." Subsequent confirmation by the Legislature and the road's use at the easterly end are set forth in detail in the Horgan Case. For present purposes it is sufficient to say that Narragansett avenue was an ancient highway four rods wide running from sea to sea. On the portion of it here involved there were well-defined marks of its southerly boundary, consisting at divers points of the remnants of a stone wall. This wall had extended westerly at least from opposite the southerly end of Ocean avenue to the top of a bank washed at its foot by the sea on the westerly side of the island. By the evidence the wall was definitely and conclusively fixed as the south boundary of the original Ferry road.

In the Horgan Case, as before stated, the question involved only the ownership of an accretion to the road at its east end. The vital points in the present case are whether the commission properly carried out its orders, and, second, whether these abutters have any standing to object even if it did not do so.

Did the commissioners mark out an existing way westerly from the westerly side of Ocean avenue to the sea? Ocean avenue runs northerly from Narragansett avenue. It does not extend to the south of Narragansett avenue. The commissioners, therefore, in fulfillment of their task necessarily had to and did fix point A where the northerly line of Narragansett avenue intersected the westerly line of Ocean avenue. Their manner of fixing this point was as follows: At that corner is a hedge but no fence, and the commissioners selected a point at the hedge which they considered as the intersection of the two streets and directed the engineer to drive a stake into the ground. From this stake westerly a line straight except for slight deviations was drawn following the occupational line, as shown by the fences of abutting owners on the north side of the road. The departure from a straight line was occasioned by the erection of the fences at different times and not always in exact line with each other. These fences had in some instances existed for 40 years, but the owners of the property within them, of course, acquired no title to any portion of the highway which had been inclosed within the fence. See Rhode Island cases cited in the Horgan Case, at page 538 (80 A. 271). The commissioners fixed the southerly line of Narragansett avenue by running a line to the sea through monuments placed upon the land in 1914, for the owner of land on the southerly...