Hunter v. the Mayor and Aldermen of Newport

5 R.I. 325

Opinion

BRayton, J.

The first exception of the appellant is, that the judgment of the mayor and aldermen, as to the necessity of the way, is not in compliance with the statute, which empowers them to lay out highways ; that there must be a judgment, expressly, that the way is necessary, in the words of the act; and that the judgment here, “ that the public convenience requires that the highway should be laid out,” is not equivalent to a judgment that it was necessary; and so, (the appellant says,) “ there is no such judgment in the case as the statute requires.”

Were we to give the same force to the word “ require ” that the appellant has given to it, in the statement of his exception, we might well say, that here was a judgment, that the public convenience rendered it necessary that the way should be laid out. He says that the statute requires a certain judgment, in form. This certainly implies a necessity, and is tantamount to saying, that the statute renders such a judgment necessary. The same word, “ requires,” is used by the mayor and aldermen, in the same sense, in relation to what the public convenience demands.

The statute (Digest of 1844, p. 319, § 2,) provides, that “ if it be found necessary that other highways be laid out in any town, besides such as have been or shall be laid out by the proprietors, in every such case, it shall be lawful for the town council of such town to order a highway to be laid out, so far, and through such parts of the same town, as they may deem necessary.” Under this act, it has been held requisite, before the land of private owners could be condemned to the public use, that there should be a judgment, that the way proposed to be laid out was necessary for the public accommodation ; since the town council or mayor and aldermen, who have the same powers, are only authorized to lay out highways, in case they shall be deemed necessary. The simple convenience of the public is not sufficient to warrant the lay-out. It is not every mere inconvenience of the public that is to be regarded. Something more than this must exist, to warrant the taking of private property for such use. The purpose of laying out a new highway is, and must be, to remedy some existing evil. That evil can be no other than the great inconvenience of the public in being confined to the accustomed existing ways. This inconvenience must undoubtedly rise so high, as to be deemed by the town council or mayor and aldermen an evil, an unreasonable burden upon the community. It was never, howéver, understood that the term necessary, in this act, implied, or was intended to imply, an absolute necessity; for in that sense, no new way, in modern days at least, could ever become necessary. There are always ways which may be used, though at great inconvenience ; so great, that it would be unreasonable that the public should be subjected to it, but yet such as may be endured. • If, therefore, the town council, or the mayor and aider-men, are of opinion, that the inconvenience is so great that it is unreasonable that the public should be subjected to it, and that it requires a remedy, and so all judge, this, we think, is all the necessity which the act contemplates. To require more, would be to render the act practically inoperative, and take from it all its remedial power. The mayor and aldermen of Newport have adjudged, that the public convenience requires this way; and, in effect, have said, that public convenience demands, and rightfully demands, relief; and that the way has become a necessity to the reasonable relief of the community; and this, we think, is sufficient.

The next exception insisted upon in the argument, is, that the description of the highway, in the report of the committee to locate the same, is ambiguous; and the ambiguity is stated to consist in this, that the westerly terminus is described as at Long Lane, and Long Lane, upon the proof, is not a public way, but is a private way; the fee thereof being in the appellant. ’ It is difficult to perceive the ambiguity which seems to labor in the mind of the appellant. If, as matter of law, a lane could not be private property, — if that term were a legal term applicable to public ways only, and it were proved, that though described as a public way, it was a mere private way, this objection might be worth considering. But it is admitted here, that at the terminus of this way as laid out, there was a lane, called Long Lane; and this precisely answers the description, in the report, of the point at which this highway terminates. The term “ lane ” is not a legal term. It signifies simply a narrow way, which may be either public or private; and is oftener perhaps private than public. It equally answers the description here, whether it be a public or a private way. We see no ambiguity, therefore, whatever; and this exception must be overruled.

Another ground of exception, is, that a certain paper, bearing date December 22, 1856, and signed by J. Prescott Hall and others, by which they stipulated, in writing, to indemnify the city against all the expenses of laying out the way in question, was not allowed to be put in evidence, except for the single purpose of affecting the credit of the parties who signed it, as they were witnesses to the necessity of the way.

The appellant offered the paper, as the exception states, for the purpose of showing, 1st, that there was no judgment of the board of aldermen, that the way was necessary, — that, in substance and effect, the record brought up, showing such a judgment, is not true, — and that, really, that judgment was based upon the stipulation ; 2dly, for the purpose of showing, that the board of aldermen did not perceive any necessity for the way, until the stipulation was made; and 3dly, to show, that the judgment was fraudulent in law, and void, as against public policy.

It would be a sufficient reason for excluding the paper from passing for any of the purposes stated, were it otherwise admissible, if as the exception states, it never was presented to the board of aldermen, or, in any way, used to affect their determination. So far as it was offered to contradict the record of the board of aldermen, and to show that no such judgment was rendered by them, its exclusion is warranted and required by the rules of evidence; since the record imports absolute verity, and cannot be contradicted. But in order to dispose of all these points, it is only necessary to consider for a moment what was the purpose of this appeal, and what questions were presented to the jury, for their consideration. The board of aider-men had adjudged that the way was necessary to the public convenience, had ordered it to be marked out and bounded by their committee, and as thus bounded and marked out, had declared it to be a highway; having first assessed the damages of the appellant, the only landholder who claimed damages. The appellant appealed from these proceedings of the board of aldermen to the court of common pleas, and the questions before that court were simply, whether the way, as laid out, was necessary, reasonably necessary, for the public use ; and if so, whether the award of damages to the plaintiff was sufficient in amount. These were the issues to the jury, and were to be tried, not upon the evidence submitted to the board of aider-men, but upon evidence to be submitted to the jury. Whether the determination of these questions below was upon insufficient evidence, or upon evidence improperly admitted, or in consequence of evidence improperly rejected, could not be material. It was quite sufficient, that the parties had the benefit of all the evidence before the jury, properly applicable to the issues made, without regard to the fact, that it had been offered, or rejected, elsewhere. The conduct of the tribunal below,— the weight which it gave to the evidence before them, — whether too great, or too small, was, in no way, relevant to the issues before the jury. The evidence was properly rejected, for any of the purposes for which it was offered; and this exception must be overruled.

In thus disposing of the points raised by the exception, we do not mean to intimate that the board of aldermen might not properly have taken into consideration the expenses necessarily to be incurred in malting and establishing the way asked for. In coming to their determination as to the necessity of the way, and whether the demands of the public were reasonable, they might well consider, whether the expenses of opening the way were not altogether disproportionate to the advantages to be derived from it. A much smaller degree of convenience, where the cost would be merely nominal, as where the landowners are free to release all damages, might well be deemed reasonably to demand their action, than in a case where the land damages were to be assessed at extravagant prices. And this, in fact, is a consideration usual in determining the question of necessity. Will the increased convenience to the public warrant the expenditure necessary to furnish that convenience ? The board of aldermen in this case, had the paper offered before the jury been presented to them, as it was not, might, we think, properly have given some consideration to it in coming to their conclusion.

Judgment must be upon the verdict.