Wolfe v. City of Providence

• Decision Date: 30 June 1950
• Docket Number: No. 1832,1832
• Citation: 74 A.2d 843,77 R.I. 192
• Parties: WOLFE et al. v. CITY OF PROVIDENCE et al. Eq.
• Court: Rhode Island Supreme Court

Page 843

74 A.2d 843

77 R.I. 192

WOLFE et al. v. CITY OF PROVIDENCE et al.

Eq. No. 1832.

Supreme Court of Rhode Island.

June 30, 1950.

Fergus J. McOsker, Providence, for complainants.

William E. McCabe, City Solicitor, Harry Goldstein, Assistant City Solicitor, Providence, for respondents.

CONDON, Justice.

This is a bill for an injunction and for incidental damages brought against the city of Providence and its traffic engineer, Philip S. Mancini, for unlawfully closing a portion of Promenade street, a public highway in that city. The complainants are Gertrude M. Wolfe, lessee of a certain lot of land with improvements thereon situate at the southeast corner of Promenade and Gaspee streets, and Leo W. Wolfe, who rented the lessee's premises and conducted thereon the business of a gasoline filling station. After a hearing in the superior court on bill, answer and proof a decree was entered denying and dismissing the bill. The cause is here on complainants' appeal from that decree.

The trial justice found that the closing of Promenade street by the respondents was a reasonable and valid exercise of the police power by the bureau of police and fire of the city of Providence by virtue of General Laws 1938, chapter 333, §§ 45 and 46; that such closing did not deprive complainants of ingress to and egress from their premises on Promenade street; and that even though such closing of that street had resulted in some damage to complainants there was no credible evidence by means of which such damage could be reasonably measured.

It appears from the evidence that the bureau of police and fire had enacted a rule or regulation providing for a plan of rotary traffic whereby portions of Promenade street and certain other streets were closed to all traffic. Photographs of the rotary traffic plan which were admitted in evidence as exhibits show certain barriers or 'horses' barricading Promenade street at the entrance to complainants' gasoline station. It seems to be clear from one of these photographs introduced by complainants that ingress to and egress from their premises, without at least great inconvenience by physical obstructions, were prevented by the erection of such barriers. Another photograph taken at a later time, apparently after a hearing had been held in the superior court on respondents' demurrer to complainants' bill of complaint, was introduced by respondents and shows that the barriers had been placed in Promenade street at or beyond the easterly lot line of complainants' premises, thus allowing access thereto from Promenade street.

Complainants conceded that the bureau of police and fire duly enacted a regulation providing for the 'plan of rotary traffic' pursuant to which respondent Philip S. Mancini in his capacity as traffic engineer closed Promenade street. And they admit that if the bureau had the authority to so close that street respondent Mancini's action was not illegal, but they contend that the bureau was wholly without such power notwithstanding the enactment of G. L. 1938, chap. 333, §§ 45 and 46. Since in our view of the questions raised by the appeal the new position of the barriers, after the hearing in the superior court on the demurrer to the bill, is not decisive of the cause, we shall consider the appeal as though the facts and circumstances with reference to the placing of the barriers were as claimed by respondents and that there were some means of access, although somewhat inconvenient, to complainants' premises.

The 'plan of rotary traffic' introduced in evidence by the respondents shows that a portion of Promenade street between Gaspee street on the west and Stillman street on the east is closed as a highway for through vehicular traffic in either direction. Promenade street, which is near the business center of Providence, is a public highway running generally east and west. Complainants' gasoline station is situated on the southeasterly corner of the intersection of that street with Gaspee street which at that point runs generally north and south. The entrance to this gasoline station is on Promenade street.

The next intersecting street to the east of the gasoline station is Francis street, and still further east is Stillman street. Both streets run generally north and south. Somewhat easterly of the easterly lot line of the gasoline station premises is the above-mentioned fence or barrier about half way across Promenade street so as to prevent through vehicular traffic from proceeding easterly on that street to Francis street. There is another fence at the intersection of the westerly line of Francis street with Promenade street to prevent such traffic from proceeding westerly across Francis street along Promenade street.

In the area of Promenade street thus blocked off to through highway traffic between Gaspee and Francis streets the 'plan' shows 'angle parking 35 spaces' on the north side of Promenade street, and 'angle parking 39 spaces' on the south side. Arrows are shown on the plan in this area pointing easterly to the corner of Francis street, then turning southerly to the corner of Kinsley avenue and then turning westerly to an opening at a fence at a point where that avenue intersects Gaspee street. The apparent purpose of this part of the plan is to prevent that portion of Promenade street from being traversed by through vehicular traffic in an easterly or westerly direction and incidentally to provide a means of ingress to and egress from the blocked-off portion of Promenade street for vehicles which are allowed to be parked therein. That is to say, this portion of Promenade street which has been closed to traffic is apparently devoted exclusively to the parking of vehicles.

Respondents contend that this plan safeguards all of complainants' special rights, as abutters, in the highway, because ingress to and egress from their property has been provided on Promenade street. They further contend that if complainants have suffered any impairment of other rights which they may have in the highway, their loss is not different from the general public's loss and therefore it is damnum absque injuria. The plan, they argue, is a reasonable exercise of the power expressly conferred on the city by G.L.1938, chap. 333, §§ 45 and 46, to enable it to regulate traffic on certain public highways. And they argue further that, if the complainants have been damaged by the closing of Promenade street notwithstanding the safeguarding of their right of ingress and egress to and from their premises to said street, they have an adequate remedy at law.

Complainants contend that this plan, in so far as it provides for the closing of Promenade street, is not a legitimate regulation of traffic but is an unlawful invasion of their special property rights in that street as abutters thereon. They further contend that at the time they brought their bill of complaint such invasion constituted a continuing trespass for which only equity was competent to give adequate relief. An action at law would not at that time, they submit, have been able to fully compensate them and would have entailed a multiplicity of suits. At the time of the hearing on the merits their lease of the premises had expired and they no longer had a property right to protect by injunction. However, they claimed the right to an adjudication in equity of their claim for damages for the alleged unlawful destruction of their business.

They argue that the plan provided, in effect, for a partial abandonment of Promenade street and constituted a taking of their property in the then subsisting lease of the premises on said street without just compensation and without due process of law. They further argue that G.L.1938, chap. 333, §§ 45 and 46, are valid only if they are construed to authorize a city to prohibit traffic on a public highway solely to an extent that will not deprive abutters of their special rights in such highway. They submit that if the statute is construed to authorize the city to prohibit all traffic on Promenade street without regard to such rights of abutters therein, it fails as to them to provide for due process of law in the taking of their property and is, therefore, unconstitutional. Predicated on the correctness of that contention complainants further say that respondents have thus committed an unlawful act to the detriment of complainants' special property rights in Promenade street resulting in the destruction of the business which complainant Leo W. Wolfe conducted on the leased premises on that street.

The need of vesting municipalities with broad powers to regulate traffic on public highways has long been recognized by the legislature of this state and this court has upheld such grants of power. On at least two occasions it has been called upon to pass judgment on the reasonableness of the exercise of such power by the city of Providence. Fritz v. Presbrey, 44 R.I. 207, 116 A. 419; Allen & Reed, Inc. v. Presbrey, 50 R.I. 53, 144 A. 888. In the latter case it was required to weigh the relative rights of abutting owners in the highway and the rights of the general public therein to park their vehicles for brief periods of time as an incident to traveling on the highway. But this court has not, as far as we are aware, ever had occasion to pass upon a regulatory act similar in scope and purpose to the one involved in the case at bar nor does it appear that G.L.1938, chap. 333, § 45, has ever been construed or heretofore applied in any case by this court.

That section was first enacted in 1932. P.L.1932, chap. 1925, sec. 9. In the revision of 1938 it appears as G.L.1938, chap. 333, § 45, in the form in which it was originally enacted. That portion of it which is involved in the instant cause reads as follows: ' § 45. The town councils of the several towns may by ordinance or regulation prohibit the use of all vehicles or any of them on such public highways in their respective towns...