Godena v. Gobeille
| Decision Date | 11 July 1958 |
| Docket Number | No. 1236,1236 |
| Citation | 88 R.I. 121,143 A.2d 290 |
| Parties | Manuel J. GODENA et al. v. Alfred B. GOBEILLE et al. M. P. |
| Court | Rhode Island Supreme Court |
Cornelius C. Moore, Newport, Charles H. Drummey, Providence, Salvatore L. Virgadamo, Francis J. Boyle, Jeremiah C. Lynch, Jr., Newport, for petitioners.
Daniel J. Murray, Town Sol. of Jamestown, Providence, for respondents.
This is a petition for certiorari to review the action of the respondents as members of the town council of the town of Jamestown, hereafter called the town council, whereby they abandoned a portion of Eldred avenue, a public highway in that town. Pursuant to the writ the pertinent records in the case have been certified to this court. When we issued the writ the petitioners were ordered to show cause why their petition should be granted.
It appears from the record that Eldred avenue crosses the island of Conanicut from the Jamestown Bridge on the west shore to the waters of the East Passage of Narragansett Bay on the east shore. It is not disputed that Eldred avenue was laid out as a public highway by the town council on March 27, 1939. The subject matter of the abandonment procedure in dispute was that portion of Eldred avenue which extends easterly from the easterly line of East Shore Road to Narragansett Bay.
In this state the authority to vacate or abandon a highway is conferred upon the town councils of the several towns under the provisions of general laws 1956, chapter 24-6. Section 24-6-1 provides for the abandonment of such a highway by order of a town council and for the giving of notice of its action to the owners of land abutting upon that part of the highway which has been abandoned. Said § 24-6-1 reads as follows:
'Whenever, by the judgment of the town council of any town, a highway or driftway in said town, or any part of either, has ceased to be useful to the public, the town council of said town is authorized so to declare it by an order or decree which shall be final and conclusive; and thereupon the title of the land upon which such highway or driftway or part thereof existed shall revert to its owner, and the town shall be no longer liable to repair the same; provided, however, that the said town council shall cause a sign to be placed at each end of such highway or driftway, having thereon the words 'Not a public highway,' and after the entry of the said order or decree shall also cause a notice thereof to be published in a newspaper published in the county in which the said land lies at least once each week for three (3) successive weeks, and a further and personal notice shall be served upon every owner of land abutting upon that part of the highway or driftway which has been abandoned who is known to reside within this state; but nothing herein contained shall in any manner affect any private right-of-way over the land so adjudged to be useless as a highway or driftway, if such right had been acquired before the taking of such land for a highway or driftway.'
In § 24-6-2 the statute directs that notice concerning any proposed abandonment be given 'to the owners of the lands abutting upon any part of such highway or driftway within the town to appear, if they see fit, and be heard for or against such abandonment, and as to the damage, if any, which they will sustain thereby.' Said section then prescribes the time and manner in which such notice shall be given.
In § 24-6-3 of the statute it is provided that the town council shall upon abandonment of a highway ascertain the damages sustained by the owners of land abutting on any part of the highway by reason of the abandonment and that the council shall 'appraise and award such damages.' Section 24-6-4 provides that any person aggrieved by an order or decree awarding damages for such an abandonment is entitled to have a jury trial upon that question upon petition therefor to the superior court.
It appears from the record that at a meeting of the town council on November 14, 1957, councilman Francis R. Costa, one of the respondents herein, reported to the council on the condition of that portion of Eldred avenue lying between East Shore Road and Narragansett Bay and recommended that it be abandoned as a public highway. The council thereupon voted to hold a meeting on December 9, 1957 'to consider a proposal that the Town of Jamestown abandon as a public highway that part of Eldred Avenue which lies between the easterly line of East Shore Road and Narragansett Bay * * *.' In the resolution the council also directed that notice be given to all owners of land abutting on said Eldred avenue by personal service and that their vote so taken be published in the press as is provided for by statute.
On December 9, 1957 the proposed meeting was held and a report of the council committee on highways was presented which contained a recommendation that the above-described portion of Eldred avenue be abandoned. Several persons in attendance at the meeting were permitted by the council to make statements on the proposed abandonment as were legal counsel who represented several objectors to such abandonment. Thereafter the meeting was recessed until December 12, 1957.
At the recessed meeting the town council adopted a decree wherein it set out its findings that all the provisions of the statute concerning the giving of notice had been complied with; that the portion of Eldred avenue which they had proposed to abandon 'has ceased to be useful to the public'; and that the owners of land abutting on that portion of Eldred avenue to be abandoned as well as the owners of land abutting on the remaining portion thereof would sustain no damage as a result of the abandonment. It is thereafter stated in the decree that the designated portion of Eldred avenue is abandoned as a public highway with such orders as were necessary to comply with the pertinent provisions of the statute concerning notice of the abandonment, including an order that notice be given by personal service on abutting owners.
The petitioners seek a review of the action of the town council in abandoning said portion of the highway. The respondents on oral argument, as well as raising objections on the merits of the case, contended that the writ should not have issued because certiorari will not lie to review a purely...
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...Council's Abandonment Order A petition for certiorari will not lie to review an act of legislative discretion. Godena v. Gobeille, 88 R.I. 121, 126-27, 143 A.2d 290, 293 (1958). See also The Newport National Bank v. Hawksley, 92 R.I. 433, 436, 169 A.2d 616, 618 (1961); Lumb v. Zoning Board ......
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Nugent ex rel. Collins v. Vallone
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