Willoughby v. Allen

• Decision Date: 01 January 1904
• Citation: 25 R.I. 531,56 A. 1109
• Parties: WILLOUGHBY et al. v. ALLEN, Town Treasurer.
• Court: Rhode Island Supreme Court

56 A. 1109

25 R.I. 531

WILLOUGHBY et al.

v. ALLEN, Town Treasurer.

Supreme Court of Rhode Island.

Jan. 1, 1904.

Trespass on the case by Robert K. Willoughby and others against John B. Allen, town treasurer. Judgment of nonsuit, and case heard on petition for new trial. Petition granted.

Argued before STINESS, C. J., and TILLINGHAST and DOUGLAS, JJ.

Comstock & Gardner, for plaintiffs. Job.

S. Carpenter, for defendant.

TILLINGHAST, J. The substance of the allegations contained in the plaintiffs' declaration is that the defendant town, by its officers and agents, so negligently caused certain streets and lots to be graded and certain ponds to be drained that large quantities of surface water were collected from a wide area and turned into a brook which ran across the plaintiffs' land, whereby said brook was made to overflow upon their land, causing serious damage thereto. The declaration sets out that prior to the grading and draining referred to said surface water had accumulated in ponds or pools and had run off in various directions, but not onto the plaintiffs' land. Early in the trial of the case the presiding justice raised the point of law that, in order to show any liability on the part of the town for the acts complained of, it must be made to appear by record evidence that such acts were duly authorized by the town council of said town. Thereupon counsel for the plaintiffs replied that they were prepared to show that the work in question was done by Prank W. Lockwood, the surveyor of highways of the town of Warwick for the Fourth District, this being the district in which the plaintiffs' land is situated and the streets in question are located; that said Lockwood was a duly elected and qualified surveyor of highways for said district; that in doing the work the negligent manner of doing which was complained of he was acting in good faith in his official capacity, and acting under instructions given him by members of the town council, or by the committee of the town council having the oversight of the highways in said district; and that after doing said work he had brought in against the town bills for the expenses thereof, and that these bills had been approved by the town council, and subsequently paid by the town, as shown by its records. Counsel admitted, however, that they were unable to introduce any record of a formal vote of the town council directing or authorizing said surveyor of highways to do the work in question. The court thereupon ruled that the evidence offered would not be sufficient to show any liability on the part of the town, and granted the defendant's motion for a nonsuit.

The plaintiffs' counsel duly excepted to the action of the trial court in the premises, and the case is now before us on a petition for new trial on the ground of error on the part of the court in refusing to admit the testimony offered by the plaintiffs in support of their claim that the town was liable for the damages caused in manner aforesaid. The controlling question which is thus presented for our decision, as we understand the case, is whether it was competent for the plaintiffs to prove by parol, as they offered to do, that the surveyor of highways was duly authorized to do the work on the highways in his district which resulted in the turning of surface water upon the plaintiffs' land as alleged in their declaration, or whether they were limited in their proof to record evidence of such authority, as ruled by the court. That is, the court ruled that, in order to make out a case against the town, the plaintiffs must show that the town council of said town had had the matter of the grading or working of the streets referred to in the declaration before them in a formal way, and had passed a formal vote directing the surveyor to do the work which resulted in turning the surface water aforesaid upon the plaintiffs' land; and that the plaintiffs must produce the record of such action in order to make out a prima facie case against the town.

Under Gen. Laws R. I. 1896, p. 245, c. 72, § 2, it is made the duty of a town council to divide the town into highway districts, and to elect a surveyor of highways for each district, and fix his compensation, and they may remove from office any such surveyor of highways at their pleasure. Under section 4 of said chapter their duty is to determine what proportion of the annual appropriation for the maintenance and repair of highways and bridges shall be expended in each highway district, and it is provided that the same shall then be expended under their care and direction, or under the care and direction of a committee of the council appointed for that purpose. Under section 7 it is made the duty of the surveyor of highways to execute the directions given him by the town council, or the committee thereof. In view of these provisions of the statute, and in the absence of any requirement in said chapter that directions to a surveyor of highways must be given by a formal vote of the town council, we are of the opinion that it was competent for the plaintiffs to prove by parol that he was duly authorized to do the work in question. It is doubtless true that, in order to legally and effectively transact most of the business which comes before a town council, it is necessary to consider it in open meeting and act upon it by a formal vote or resolution, so that a proper record thereof may be made and preserved. But, while this is so, we cannot say, as matter of law, that mere verbal or informal instructions may not be given by a town council to its ministerial officer and agent, the surveyor of highways, without such formality. That it may be so given, see Munk v. Watertown, 67 Hun, 261, 22 N. Y. Supp. 227; Town Council of Akron v. McComb, 18 Ohio, 229, 51 Am. Dec. 453....