Pierce v. Tripp

• Decision Date: 18 January 1881
• Parties: JOSHUA PIERCE v. BENJAMIN TRIPP, City Treasurer of the City of Providence.
• Court: Rhode Island Supreme Court

13 R.I. 181

JOSHUA PIERCE v. BENJAMIN TRIPP, City Treasurer of the City of Providence.

Supreme Court of Rhode Island.

January 18, 1881

The highway commissioners of the city of Providence, without the direction of the city council, made excavations on a private way. The cost of the work was paid by the city in the usual routine of payment for work done by the commissioners.

In an action by the owner of the way against the city:

Held, that under the ordinances of the city, the acts of the commissioners in excavating and of the financial officers of the city in paying for the work were all ultra vires .

Held, further, that the city, not having ratified these acts, was not liable.

TRESPASS ON THE CASE. Heard by the court, jury trial being waived.

Charles H. Parkhurst, for plaintiff.

Nicholas Van Slyck, City Solicitor, for defendant.

MATTESON J.

This is an action on the case to recover damages from the city of Providence for injury to the plaintiff's estate resulting from the excavation of a private way. The case is submitted upon the following facts. The plaintiff is the owner of an estate at the corner of Thurbers Avenue, a highway, and Plane Street, so called, a private way, in Provi dence. The highway department of that city caused Plane Street to be excavated, in 1876, opposite the plaintiff's estate, to the depth of about ten feet, without his consent. The city council never directed the work to be done, but the cost of it was paid by the city through the regular channels and departments. If upon these facts the action can be maintained, the case is to stand for trial; otherwise the plaintiff is to become nonsuit.

The excavation of Plane Street, a private way, was beyond the authority of the highway commissioners, which is limited to " streets and highways," meaning thereby public ways. Ordinances of the City of Providence, cap. 36, § 17.

The statement of facts does not set forth definitely how the cost of the work was paid. As, however, the city council did not direct the work to be done, we infer that no special appropriation was made for it, but that the payment was made out of the appropriation for highways; the expenditure having been vouched for by the chairman of the board of highway commissioners, examined by the city auditor, approved by the committee on accounts, and drawn for by the mayor in the manner prescribed by the Ordinances of the City of Providence, cap. 19, § 4....