The Providence news. (Providence [R.I.]) 1891-1906, 1895-07-24
Opinion on the Rights Of
Property Owners.
Defined by Chief Justice Matteson
Today.
Question Arose From Dispute Between
Sherburne Street Residents.

In the suit OF Osborne Swan vs.. Jarffes
Covelle the following opinion was filed
today by Matteson, q. j.:
This Is bill filed for an injunction.
The complainant and respondent are
owners OF estates situated on the same
plat and fronting on a private way or
street laid out on the plat as Burgess
street, but now called Sherburne street.
The street as plated extends easterly from
Eddy street, a public highway, to the
the easterly line of the complainant's
land II has been graded by the abutting
owners, but at that point il descends
abruptly about 80 feet so that II is impas-
sable for vehicles, or even on foot, except
by climbing. From the base of this de-
clivity IL extends as plated over the fats
along the shore To the river. The re-
spondent's lot, of which he became the
owner May 10, 1885, is part OF the flats
and fronts on that part oil the street ex-
tending from the base OF the declivity to
the river The soil OF the street at the
point of its abrupt descent is sandy and
liable to be quilted and washed away by
rains. To prevent this and to maintain
the street as a. means of access TO their
estates, the complainant and his immedi-
ate neighbors have been compelled re-
peatedly TO fill In the edge of the bank,
have since kept in position, a wooden
bulkhead level with the surface and grade
of the street, and with concrete gutter
and wooden spouts to discharge the water
flowing on the street.
The respondent applied to the owners of
the estates on the top of the bank, in
cluding the complainant, TO join with
him in grading down the declivity, so as
TO make way for him through Sher-
burne street to Eddy street. This they
declined TO do.
Thereupon respondent went on Sher-
Id. fu
estate, tore up the concrete in the gutter,
destroyed a portion OF the bulkhead and
dug down the face OF the bank for a space
from six to eight feet wide, so that the
water flowing on Sherburne street will be
likely TO cut away the bank and TO impair
and destroy the complainant's access to
his estate.
The bill alleges that the respondent
threatens TO proceed to dig down the
bank still further to the westward and
beyond the complainant's property, which
will result in irreparable damage and in
jury TO him by destroying his means of
access to his land and prays for an in
junction.
The cause was heard by the court on
the prayer for a preliminary injunction,
under an agreement OF the parties that
the decision should have the same effect
as decision on the prayer for a perma-
nent Injunction.
Conceding the respondents right to the
use OF the streets shown on the plat that
night, prior to the acceptance of such
streets as public highways, is limited to
the use OF them as they existed on the
ground when he acquired the ownership
of his estate, or to the use of them in
such condition. as he may be able TO put
them, without interference with the
rights OF other owners on the plat
authorities cited. In the case OF Cum
ningham VS.. Fitzgerald, 1873 n. Y, 165,
page III, II Is said a private individual
engaged in vimproving streets, for the
benefit or convenience of his own prop
erty, cannot cut down the grade of an
existing street to the detriment of an
abutting owner. III the cutting of the
grade impairs an abutting owners right
of access TO his property, his consent is
necessary under such circumstances, as
he may resist a projected improvement
by his neighbor, which he could not
resist, IL undertaken by the public
authorities. AS against any mere
pivate interest a property owner can
resist an attempt to change the grade of
a street whenever he can show that such
change will injure him.
We are of the opinion that the respon-
dent had no right to tear up the concrete
in the gutter, destroy a portion of the
bulkhead, and dig up the soil in Sher-
burne street in front of the'complainant's
estate, since the necessary result of such
acts will be to impair or destroy the COM
plainant's access to his land. An injunc-
tion, therefore, will be granted.
Roswell o. Whitney ct al. vs.. Mary
Harrington ct. al. Order entered for
receiver to pay sewer assessment.