Greene v. O'Connor

• Decision Date: 19 November 1892
• Citation: 25 A. 692,18 R.I. 56
• Parties: GREENE v. O'CONNOR.
• Court: Rhode Island Supreme Court

25 A. 692

18 R.I. 56

GREENE

v. O'CONNOR.

Supreme Court of Rhode Island.

Nov. 19, 1892.

Trespass by Lewis A. Greene against Timothy O'Connor. There was a judgment in defendant's favor, and plaintiff petitions for a new trial. Denied.

Joseph C. Ely and Herbert Almy, for plaintiff.

Simon S. Lapham, fordefendant.

MATTESON, C. J. This is an action of trespass for breaking the plaintiff's close and throwing down a fence. The close on which the alleged trespass was committed is part of a strip of land in Providence, lying between Barnes and Keene streets, and extending westerly from Thayer street, parallel with Barnes street, 518 feet, morn or less, to the middle line of a lot numbered 19 on a "Plat of House Lots in Providence belonging to Josiah Keene, surveyed and platted by Cushing and Walling, 1849, "and recorded in the land records in Providence in Plat Book 4, page 8. The northerly line of this strip is distant 95 feet southerly from Barnes street, and its southerly line, from the middle line of lot 19 above mentioned, is parallel with and 20 feet distant southerly from its northerly line, until it reaches the easterly line of the lot numbered 28 on said plat, and from that point is parallel with and 18 feet distant from its northerly line, until it reaches Thayer street. This strip was conveyed by Edward H. Clarke and Allen Greene to the city of Providence by deed dated November 15, 1876, duly acknowledged, and recorded in the laud records in Providence, in Deed Book 290, page 257. Between the description of the land and the habendum in this deed is inserted a clause as follows: "This conveyance is made upon the condition that the said strip of land shall be forever kept open and used as a public highway, and for no other purpose." After this conveyance the strip of land remained open until inclosed by the plaintiff shortly before the bringing of this suit, and was used, to a greater or less extent, by Allen Greene and his tenants and others, and, after his decease, by his heirs, for the usual purposes of a way. Subsequently to the conveyance to the defendant's wife of the land bounding thereon, as stated below, the defendant has also used the strip, both for the usual purposes of a way and also for dumping manure, etc. On January 7 and March 8, 1888, the trustees under the will of Edward H. Clarke, by deeds bearing those respective dates, conveyed to Catherine O'Connor, the defendant's wife, the lots of land situated on the corner of Barnes and Thayer street, and bounded southerly on said strip. On December 2, 1888, said trustees petitioned the board of aldermen of Providence to declare useless as a public highway the strip of land so conveyed to the city of Providence, but the board of aldermen gave the petitioners leave to withdraw. Afterwards, the heirs of Allen Greene entered on that part of the strip lying easterly of the east line of said lot 28, being that part of it which, previously to the conveyance to the city of Providence, had belonged to said Greene, claiming that the clause in the deed quoted above created a condition subsequent, and that they were entitled to enter on the land for breach of that condition. After this entry the other heirs of Allen Greene conveyed their interests in the land to the plaintiff, who thereupon inclosed it with a fence. This fence was thrown down by the defendant, who claimed a right of way for his wife over the land in question. Hence this suit.

The plaintiff's claim of title rests on the theory that the clause in the deed which we have quoted created a condition that the city of Providence should open and use the land conveyed as a public highway; that it never has opened and used the land as a highway, though a reasonable time prior to the entry, to wit, 14 years and more, had elapsed for it to do so; and, therefore, that there was a breach of the condition which entitled the heirs of Allen Greene to enter on the land and resume possession of it, and that such entry and conveyance to the plaintiff vested in him title to the land as though the deed to the city of Providence had not been made. We do not think this theory can be sustained. Gen. St. R. I. c. 59, § 25, in force at the date of the deed from Clarke and Greene to the city of Providence, re-enacted by Pub. St. R. I. c. 64, $ 25, is as follows: "Whenever the owner of any land shall make a deed thereof to the town wherein such land lies, for the especial purpose of being used and improved as a public high way, and the deed shall have been duly acknowledged and recorded, the land shall be thenceforward a public highway to all intents and purposes, and be liable to be opened by the town council of the town wherein the same shall lie, in the same manner as highways which are laid out by the town council; but no town shall be liable to repair such highway until the town council thereof shall decree and order that the same shall be repaired at the expense of such town." It will be observed that this statute does not require any formal acceptance by the board of aldermen, which, in the city of Providence, exercises the same power and control over highways as town councils in the several towns, nor any order by that board opening the land conveyed as a public highway, to make it such; but provides that from the recording of the deed, duly acknowledged, the land conveyed shall thenceforward become a highway to all intents and purposes. The conveyance being for the benefit of the public, acceptance of it by the proper authority representing the public is presumed. Having once become a highway, it must continue to be a highway until abandoned or declared useless as such by the board of aldermen, under another provision of the statute. No such action by the board of aldermen lias been taken, but, on the contrary, when such...