O'Reilly v. Town of Glocester, 91-238-A

Citation621 A.2d 697
Decision Date02 March 1993
Docket NumberNo. 91-238-A,91-238-A
PartiesDennis F. O'REILLY et al. v. TOWN OF GLOCESTER. ppeal.
CourtUnited States State Supreme Court of Rhode Island
OPINION

MURRAY, Justice.

The plaintiffs in this case are several landowners in the town of Glocester whose properties abut a right-of-way. The plaintiffs brought suit in Superior Court, seeking to have the court order the defendant, town of Glocester (Glocester), to locate, mark, and repair this right-of-way so that it would be safe for travel. The trial justice denied the plaintiffs' complaint, and the plaintiffs' appealed to this court.

We begin with a review of the background and history of this case. The right-of-way that is the subject of plaintiffs' lawsuit is a trail or path known as a driftway. Driftways were common forms of rights-ofway created by Rhode Island towns in the early part of this state's history and established in areas where the placement of roads would be expensive for the town and inconvenient for the abutting landowners. A 1772 enactment of the colonial General Assembly empowered towns to create driftways. It states:

"AN ACT empowering the several Town-Councils, in this Colony, to lay out Drift-Ways in their respective Towns.

"WHEREAS it frequently happens that Ways for the passing of People and Carriages are necessary to be made through Places where the laying out Highways will be very inconvenient, and burthensome to the Proprietors of the Land, and expensive to the Towns; and the laying out Drift-Ways will answer the End:

"BE it therefore Enacted by this General Assembly, and, by the Authority thereof, It is Enacted, That the several Town-Councils in this Colony be, and they are hereby, empowered to lay out Drift-Ways in their respective Towns, in such Places, and of such Width, as they shall think necessary, as fully as by Law they are empowered to lay out Highways: That such Drift-Ways be laid out in the same Manner, and be under the same Regulations, in every Respect, as Highways are: That the Damages shall be ascertained by the Town-Council, in the same Manner as in laying out Highways: That it shall be in the Power of the Town-Council to order and direct who shall be at the Charge of maintaining Gates and Bars, where any such Drift-Way or Drift-Ways shall be laid out: And that, for the future, when a Committee shall be appointed to lay out any Highway or Drift-Way, such Committee may be sworn by the Town-Council, or the Justice of the Peace appointed to attend upon them." 1772 R.I. Acts & Resolves 47-48.

This statutory provision also appears in the Public Laws of 1822 entitled "An act for laying out Highways." This 1822 enactment substituted for the words "in this Colony" the words "in this State" and thereby empowered town councils to create driftways in the newly formed State of Rhode Island. P.L. 1822, § 3 at 287.

In 1829 the Glocester Town Council created the driftway at issue in this case. The trial justice found as follows:

"On April 11, 1829 the Town Council of Glocester appointed a committee 'to lay out a drift or bridleway from the Turnpike road, west of Benjamin Dexter's by Oliver Cornwell's and William Cook[e]'s to the road that leads from the Foster line to Cyprus Burlingame's in the best place, and where it will due [sic ] the least damage, they keeping up good gates and bars.' The committee thereupon, according to their report, 'proceeded to the southwesterly part of said Town of Glocester and therein surveyed[,] bounded[,] and marked out a drift or bridle way.' On May 8, 1829, the committee submitted its report to the council, including a description of the course of the way it marked out, and annexing an 'exact draft or plan of said driftway.' The return of their report was accepted, approved and ordered to be recorded at a council meeting on May 9, 1829."

The trial justice also found that there was a right-of-way located in the approximate location set out in this 1829 report to the town council. The course of this driftway appears in both a tax assessor's map of this area (see Appendix) as well as in the committee report published in the Glocester town records. There was also testimony before the trial justice concerning actual use of the driftway in the early part of this century. Mildred Lucy Doar, a plaintiff in this case, stated that she drove over the driftway in a 1936 Chevrolet automobile.

The evidence demonstrated that by 1965 the driftway had fallen into disrepair, having become overgrown by trees and brush. The bridges and culverts along the driftway are and were partially broken. The trial justice noted that many decades have passed since any automobile drove over the right-of-way. Moreover the general public had ceased to use the right-of-way. The only users of the driftway were the abutting landowners who walked and occasionally searched for blueberries along its path.

Notwithstanding this prolonged period of nonuse and government failure to maintain, this driftway is ascertainable. The trial justice wrote, "[A] modern surveyor should have no great difficulty in reconstructing the location of the original driftway. * * * The Court finds as a fact that there is a public driftway presently in existence in the Town of Glocester as laid out and surveyed in the Committee report of May 8, 1829."

Glocester does not contest the trial justice's finding that the town legally created this driftway in 1829. Glocester nevertheless refused plaintiffs' request to locate, mark, and repair the driftway. Glocester argues (1) that the town council successfully "abandoned" the driftway in 1968, (2) that even if the town council never abandoned the driftway, under current law the town has no obligation to repair the driftway, (3) that the doctrine of laches precludes plaintiffs from suing the town, and (4) that the General Assembly's enactment of G.L.1956 (1989 Reenactment) § 24-6-5, as enacted by P.L.1990, ch. 511, § 1, eliminates any remedy otherwise available to plaintiffs. We address each of these issues on this appeal.

I THE ABANDONMENT PROCEDURES

The first issue we address is whether Glocester ever officially abandoned the driftway at issue in this case. The law is clear in Rhode Island that a town cannot abandon its obligation to maintain a right-of-way by simply failing to fulfill its maintenance obligations. Wall v. Eisenstadt, 51 R.I. 339, 345, 154 A. 651, 653 (1931); Knowles v. Knowles, 25 R.I. 325, 330-31, 55 A. 755, 757 (1903). General Laws 1956 (1989 Reenactment) chapter 6 of title 24 contains a number of requirements that a town must fulfill before successfully abandoning a right-of-way.

We start with § 24-6-2, which requires any town attempting to abandon a right-of-way to provide notice to landowners whose land abuts the right-of-way of the pendency of the abandonment proceedings. Pursuant to § 24-6-2 a town must hold a hearing so that these landowners may argue against the abandonment and present evidence concerning the damage the landowners will incur if the abandonment proceedings go forward.

In addition to preabandonment notice, § 24-6-1, as amended by P.L.1992, ch. 55, § 1, and P.L.1992, ch. 298, § 1, requires a town to provide the public with postabandonment notice. This notice must come in two forms. First, the town must post a sign stating, "Not a public highway," on the right-of-way in question. Second, the town must publish notice of the abandonment for three successive weeks in a newspaper circulated in the city or town. These notice provisions help ensure that the general public will be aware that the town has terminated its obligation to maintain the right-of-way. Section 24-6-1 also provides that successful abandonment of a right-of-way causes title to the land on which the right-of-way sits to revert to the owners of the property adjacent to the right-of-way.

Finally, §§ 24-6-3 and 24-6-4 are damage provisions that entitle an abutting property owner to an assessment of damages once a town officially abandons its obligation to maintain a right-of-way.

On March 14, 1968, Samuel Cate, a plaintiff, and Hazel Aubin, a predecessor in title to some of the abutting landowners, petitioned Glocester to abandon the driftway officially pursuant to these statutory provisions. A hearing was held and the town council took the position that it would not abandon the driftway unless Samuel Cate, one of the petitioners, granted Glocester an easement to use the driftway. The minutes to a town council meeting held on July 12, 1968, state:

"It was VOTED that the petition to abandon the driftway running through the Amos W. Cooke farm and the Hazel Aubin Property be granted on the condition that Samuel Cate grant to the Town of Glocester an easement to the said Dexter Farm from Mt. Hygeia Road satisfactory to the Town Council."

The trial justice noted in his decision that there were two possible reasons why Glocester chose to attach this condition to the abandonment of the driftway. First, Glocester may have been attempting to preserve the rights of the general public to use the driftway. Second, Glocester held tax title to one of the properties that abuts the driftway. Glocester may have been attempting to maintain the value of this property by ensuring that some right-of-way would exist so that future owners of the land would have access to the property.

Regardless of Glocester's motivations, Samuel Cate never granted Glocester an easement to use the driftway. The abandonment proceeding did not go forward. Glocester never posted notice on the driftway concerning its abandonment, nor did Glocester publish notice in a newspaper. The petitioners never collected damages as a result of this conditional abandonment.

In the lower court proceeding,...

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