Sweet v. Conley

• Decision Date: 02 February 1898
• Citation: 39 A. 326,20 R.I. 381
• Parties: SWEET v. CONLEY.
• Court: Rhode Island Supreme Court

39 A. 326

20 R.I. 381

SWEET

v. CONLEY.

Supreme Court of Rhode Island.

Feb. 2, 1898.

Mandamus by Whitford H. Sweet against Phineas A Conley, surveyor of highways. Proceeding quashed.

Bassett & Mitchell, for petitioner.

John Palmer, for respondent.

TILLINGHAST, J. The relator sets out, in substance, that he is the owner of certain real estate situate on Cranston street, in the town of Cranston; that on the 27th of November, 1886, the town council of said town, in accordance with the provisions of the statute in such case made and provided, established a grade for said street from the Pocassett bridge northerly for a considerable portion of said street; that said grade was uniform, the lowest point in which was at said bridge, and, rising therefrom, passed the real estate of the relator at a uniform rise, so that the surface water flowed down said street past his estate. He further sets out that after the establishment of said grade said street was altered and widened, and a new bridge built across Pocassett brook, and that the respondent, Phineas Conley, surveyor of highways of said town, acting under the orders of the town council, proceeded to make said street, so altered and widened as aforesaid, safe and passable as a highway; that, in so doing, said surveyor was in duty bound either to work said street to the established grade, or, at least, to do nothing inconsistent with such grade; but that said surveyor, unmindful of his duty, has not only not brought said street to the established grade, but has raised the surface thereof, at and near said bridge, above the grade, by reason whereof the surface water, which formerly passed freely beyond and southerly from relator's premises into said brook, is obstructed and ponded in said street in front of his estate, whereby he suffers damage. He therefore prays that a writ of mandamus may issue to said Conley, surveyor of highways, to compel him to remove the obstruction so placed by him southerly from relator's premises, and either bring the surface of the street to the established grade, or else restore the street to the condition it was in at the time of the establishing of the grade as aforesaid. The respondent demurs to the alternative writ which has been issued on the grounds: (1) That there is no allegation that, for any damage sustained, the relator has not his ordinary remedy at law; (2) that there is no allegation in what his damage consists; (3) that there is no allegation of what the grade should be, or how much above, if any, it has been raised; (4) that there is no allegation of demand and refusal; and (5) that the respondent is under and subject to the direction of the town council, or a committee of it, and has no authority to expend money on any highway, without the approval of said council or committee, except on occasions as required by the statutes, and there is no allegation of such occasion, and that he has no authority to make, alter, or change a grade.

We think the demurrer should be sustained. In order to grant the extraordinary relief prayed for, it must clearly appear, not only that the relator is entitled to have said street restored to its original condition so far as the grade is concerned, but also that it is the duty of the respondent to thus restore it by undoing what he has done under the direction of his superior, the town council of said town. In other words, he must show a clear legal right to have the thing done which he asks for, and, if the right be doubtful, the writ will be refused. It is certainly very doubtful, to say the least, whether the relator, in any event, is entitled to have said street restored to its former condition; for, even admitting that a change has been made in...