Rousseau v. Fortin, s. 532, 533.

• Decision Date: 27 April 1934
• Docket Number: Nos. 532, 533.,s. 532, 533.
• Citation: 172 A. 321
• Court: Rhode Island Supreme Court
• Parties: ROUSSEAU et al. v. FORTIN et al., Board of Aldermen. HARRIS & MOWRY CO. v. SAME.

172 A. 321

ROUSSEAU et al.

v. FORTIN et al., Board of Aldermen.

HARRIS & MOWRY CO.

v. SAME.

Nos. 532, 533.

Supreme Court of Rhode Island.

April 27, 1934.

Appeal from Superior Court, Providence and Bristol Counties; J. Jerome Hahn, Judge.

Mandamus proceedings by Clara B. Rousseau and others, and by the Harris & Mowry Company, against Fred C. Fortin and others, as the Board of Aldermen of the City of Woonsocket. From a judgment dismissing the petitions, the petitioners appeal.

Appeal dismissed, and judgment affirmed.

James H. Rickard, of Woonsocket, for ap pellants.

Eugene L. Jalbert, City Sol., of Woonsocket, for appellees.

MURDOCK, Justice.

These are petitions for writs of mandamus to the board of aldermen of the city of Woonsocket demanding that they appoint three suitable and indifferent men under section 31, c. 96, of General Laws 1923, to endeavor to agree with the petitioners as to the damages they have suffered by an alleged change of grade in High street in said city. From a judgment of the superior court dismissing the petition, the petitioners have appealed to this court.

In 1874, the grade of said street was established as a matter of record by the proper authority, and has never been changed, by formal action by either the town or the city of Woonsocket. In 1922, the city brought High street to the grade established in 1874. At various times between 1874 and 1922 at first the town and then the city made improvements in said street by laying sidewalks, surfacing, and making repairs and building sewers and drains therein, all of which was done while the street was at its natural grade.

It is the contention of the petitioners that these undisputed facts constituted an abandonment of the grade of 1874 and the adoption of the natural grade by user as the actual and legal grade of the street, and that, as a consequence, when the street was worked to the grade established in 1874, there was a change of grade for which the petitioners are entitled to compensation for damages occasioned thereby.

Prior to 1859, grades of highways were established and changed by the surveyors of highways. There appears to have been no restriction of their power to make and change grades, and the abutting owners could not recover damages for a change of grade, provided the work was done with due care and in good faith. Rounds v. Mumford, 2 R. I. 154. In 1859, the power to establish grades was specifically given to surveyors, and provision was made for damages resulting from a change of grade. In 1866, the power to change grades in a highway was vested in the town councils; in cities this power is exercised by the boards of aldermen.

The substance of these enactments, clarified in the revision of 1872, are now contained in chapter 90 of Gen. Laws 1923. Section 27 of said chapter is as follows: "Town councils may order highways or parts of highways to be graded within their respective towns, and whenever a grade for any highway shall be established the same shall not be changed but with the consent of the town council of the town in which it is located, nor without notice to the proprietors of lands abutting on said highway, which notice, if the proprietor resides within this state, shall be served five days before the passing of an order for such grade or change of grade, and if any of the proprietors reside without the state, notice shall be served upon them as provided by section six of chapter ninety-five. At the time and place named in said notice, the town council shall proceed to hear the parties, and to pass such order in reference to such grade, or change of grade, as they may think proper."

The matter of streets and highways, their...