Ross v. Town Council of North Providence

10 R.I. 461

• Court: Supreme Court of Rhode Island
• Decided: March 6, 1873
• Status: Published

Opinions

The following opinion was delivered upon the exceptions taken by the appellants. These are appeals from the doings of the town council of North Providence, in the laying out of a highway in that town. The two appeals were by agreement tried together in the Court of Common Pleas, and they came before us upon exceptions to certain rulings of that court. On the trial it appeared that the highway in question was laid out in part upon land which, at the time of the layout, belonged to Susan A. Ross, and that she having died, the appeal was taken by her children and heirs at law, two of the reasons assigned for the appeal being that "due notice was not given in accordance with the statute," and that the committee "made no attempt, nor gave any opportunity to these appellants nor to their mother, from whom they derive their title, to agree for the damages sustained." It also appeared that in the proceeding by the town council there was not any notice issued to the said Susan A. Ross, or served upon her, and that there was nothing of record to show that she had appeared either in person or by attorney to take any part in the proceeding, or had been in any way recognized as a party interested, her husband, John L. Ross, being named in the plat returned by the committee as the owner of her land. There was evidence, however, which the appellees claim would warrant the jury in finding that the said Susan had notice in fact of the proceeding, and that her husband acted in her behalf. The counsel for the appellants requested the court to charge the jury that unless it appeared by the citation or notice issued by the town council and the return of the officer thereon that said Susan was notified, the proceedings of the town council would be void as to her, and their verdict must be for the appellants. The court refused so to charge, and did charge the jury that if they were satisfied that Mr. Ross appeared before the town council and assumed to act for her, or that in any other way she had actual notice of the proceeding, they should take it to be true that she had had sufficient notice under the statute. To this charge exception was taken by the appellants.

The question which has been argued to us as the question which is raised by the exception is, whether in such a proceeding, when no formal notice has been given and the record does not show any appearance, proof of actual notice is sufficient. The counsel for the appellees contends that such notice was sufficient, and that if it was insufficient the insufficiency has been waived by the party, and cites several cases which he claims support this view. The cases most in point among these are certain Massachusetts cases in which the court hold that a petition for a writ of certiorari, being a petition which is addressed to the discretion of the court, will not be granted for the purpose of quashing a proceeding to lay out a highway, on account of the want of formal or official notice, in favor of a party who has had actual notice, where he has received substantial justice or where great injustice would result to the respondent from the granting of the writ. The case before us is not a petition for a writ of certiorari, but an appeal taken directly from the doings of the town council, the want of due notice being assigned as one of the reasons of appeal; and in such a case we are not prepared to hold, upon the authority of the Massachusetts cases, that proof of actual notice, or of knowledge casually obtained, is sufficient. We cannot suppose that a notice or knowledge thus casually received by a party to whom no notice is issued, is the kind of notice which is contemplated by the statute. To hold that a party can be bound by such a notice, the existence of which may be inferred by the jury from proof of circumstances, would be very dangerous. Besides, notice to the parties in interest is a necessary step in the proceeding, without which the town council has no jurisdiction; and it is the rule, in relation to a court or tribunal of limited jurisdiction, that the record shall show affirmatively that every such step has been duly taken, or that the party in whose favor the step is required has either expressly or impliedly waived it. But in this case the record not only does not show affirmatively that the notice was either given or waived; it does not even name the party entitled to the notice; but condemns her land as being the land of another. It would be inconsistent with the first principles of judicial proceeding to sustain the validity of such a judgment.

We think the charge to the jury was erroneous and that the exceptions should be sustained.

Exceptions sustained.

Upon the exceptions taken by the appellees, the following opinion, in which the exceptions are stated, was delivered.