Dexter v. Sprague

47 A. 889, 22 R.I. 324, 1900 R.I. LEXIS 120

• Court: Supreme Court of Rhode Island
• Decided: December 31, 1900
• Status: Published

Opinion

Stiness, C. J.

The petitioners allege error by the license commissioners of the city of Providence in granting a license for a brewery on Elmwood avenue, adjoining Roger Williams park, notwithstanding the objections filed with the board.

(1) Gen. Laws, cap. 102, § 2, as amended by Pub. Laws, cap. 513, January, 1898, provide that no license shall be granted where objections are filed by the owners or occupants of the greater part of the land within two hundred feet of the place for which the license is asked.

The error claimed is that the license commissioners included in their computation land of Eoger Williams park owned by the city of Providence, and that such land should have been excluded ; in which case the petitioners represent the greater part of the remaining land. The alleged error is based upon the construction given to the law by this court, that the computation of land should not include public highways. R. I. Society v. Cranston, 21 R. I. 577. In that case the petition Avas dismissed because the petitioners were not the owners of the greater part of the land exclusive of streets. Although it was not so stated in the opinion, the reason for the decision was this : A town or city is not the owner or occupant of a highway ; it simply has the statutory control of an easement therein for the benefit of the public. The abutting owner, having in most cases been paid in full for the land taken for a street, and retaining only a nominal fee, which is practically valueless until the easement is abandoned, cannot be held to be an owner or occupant within the meaning of the statute.

The petitioners argue that since the city holds the park for public purposes, that land also should fall within the same construction. Thei'e is, however, an evident distinction between the two cases. The city has control of the park in a different way and to a greater extent than it has control of a highway. Its control of the park for the purposes of this act is as complete as that of any owner of land. As a public resort the city has a peculiar interest in the surroundings of the park, and clearly should have the right to object to the locating of liquor saloons in its vicinity.

We are, therefore, of opinion that it has the rights of an owner and occupant under this statute. In this case the city did not file objections to the license in question, and hence the owners or occupants of the greater part of the. land within two hundred feet did not object.

Franklin P. Owen and Terence M. O’Reilly; for petitioners. Francis Colivell, City Solicitor, and Albert A. Baker, Assistant City Solicitor, for respondents.

No error is shown by the petitioners, and the petition is dismissed.