Sprague v. Tripp

• Decision Date: 29 May 1880
• Citation: 13 R.I. 38
• Parties: RUFUS SPRAGUE v. BENJAMIN TRIPP, City Treasurer of the City of Providence.
• Court: Rhode Island Supreme Court

13 R.I. 38

RUFUS SPRAGUE v. BENJAMIN TRIPP, City Treasurer of the City of Providence.

Supreme Court of Rhode Island.

May 29, 1880

The city of Providence owning by purchase certain lots on both sides of a private way, the highway commissioners of the city excavated gravel from the lots and the way until the latter became impassable. The gravel was used for highway repairs at various and remote points. All the expenses were paid from the city treasury and from regular appropriations.

In an action against the city, brought by another owner of land on the private way:

Held, that the highway commissioners were the agents of the city.

Held, further, that the city was liable for their tort in making the way impassable.

Donnelly v. Tripp, 12 R.I. 97 distinguished.

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

Charles H. Parkhurst, for plaintiff.

Nicholas Van Slyck, City Solicitor, for defendant.

DURFEE C. J.

This is an action on the case to recover damages of the city of Providence for an injury to the plaintiff's easement or right of way in Richardson Street, so called. The land on both sides of the street and within the limits of the street formerly belonged to one Thomas B. Cole, by whom, in 1847, it was platted into house lots, with the street intersecting them, and the plat recorded. The plaintiff is owner of one of the lots on the south side of the street. The city of Providence is the owner of ten lots, three on one side of the street and seven on the other, having purchased them in 1873 and 1874. Since then the highway commissioners have, from time to time, excavated the land in the city lots and in the street to the depth of thirty or forty feet, for the purpose of obtaining the gravel there, and using it in making and repairing the highways of the city. The expenses of purchasing the lots and making the excavations have been paid out of the city treasury in the ordinary course, and from the regular appropriations. The street, which has never been received as, nor declared to have become, a public highway, has been rendered impassable for nearly its entire length. The excavations, though not confined in the street to city land, have not extended to the land in front of the plaintiff's lot. It is admitted that the material taken from the excavations was not used on contiguous streets so as to be within the provisions of chapter 60 of the General Statutes. It is agreed that if upon these facts the court find the city liable, the case is to stand for an assessment of damages, but, if otherwise, the plaintiff is to become nonsuit.

We infer from the statement that the street has never become a highway by dedication, but is still only a private way, in which the plaintiff is entitled to an easement as one of the abutting owners. As such, he can...