The Providence news. (Providence [R.I.]) 1891-1906, 1898-02-02
SWEET LOST
HIS CASE.
Surveyor COnley'S De-
murrer Sustained.
GRADE OF CRANSTON ST.
SO Changed as to Damage Complain
ants Eef,ta her Uatar
GRADE OF CRANSTON ST.
SO Changed as to Damage Complain
ants Estate by Water.
OPINION OF APPELLATE COURT.

The Appellate Court today denied the
arpliaction OF Whitford III. Sweet for Q
writ Of mandamus against Phineas A.
Conley, surveyor of highways of the town
OF Cranston.. The petitioner alleged thar
t'e Town Council OF Cranston in accord
ance with the provisions OF the statute had
on Nov. "a. 1886. established a grade for
Cranston street from Pocasset bridge
northerly for considerable portion OF
tho street; that the lowest point was at
the bridge and rising therefrom passed
the real. estats OF the petitioner at uni
form rise SO that surfac, water flowed
down the street and passed his estate. 10
was further charged that Town SUI veyor
Conley contrary To his bounded duty to do
nothing inconsistent with such grade,
has not only not brought the street to sne
established grade. but has raised the sur
face at and near the bridge, causing the
ponding Of the surface water In front of
the relator's estate this great damage.
The mandamus was asked for to compel
CoDlsy to remove the obstruction so placed
by him and eitt or bring the surface of the
street 10 the established grade or else re.
store the street to the condition IL was in
at.the time OF the establishing of the
grace.
Ihs respondent demurred to the alter
native writ which had besn issued, on
the grounds: That there is no allegation
that. for any damage sustained, the re-
lator hos not his ordinary remedy at
law; that there Is no allegation In what
the damage consists; that tsere Is NO al
legation OF what the grade should be, or
how much above. IL any. ii has been
raised: that there is no allegation of de-
"A md rofs md hat n a.
ent Is under and subject TO the direction
Of the. Town Council or committees OF
it, and has no authority To expepu any
money OH any highway without the APP
proval of said Council or committee,
except on occasions as REQUIRED by the
statutes. anu there is no allegation OF
such occasion, and that he has no au-
thority to make, alter or change q grade.
The court. I'm the opinion In the case.
written by Judge TillinRhast, says: I'VE
think the demurrer should be sustained.
In order TO grant the extraordinary re-
lief prayed for. IL must clearly appear
not ONLY that the relator 10 entitled to
have said street restored TO It's original
condition as far as the grade Is con-
cerned, but also that 10 Is the duty of the
respondent to thus restore IL by undoing
what he has zone under the direction nf
his superior. the Town Council of said
town. In other words. ne must show q
clear legal right To have the thing done
whion be asks for and II the right bs
doubtful the writ will be refused. IL 10
certainly very doubtful to say the least,
whether the relator I'm any event Is en-
titled to have said street restored to It's
former condition.
For even admitting that change has
been made thereof without pursuing the
FOR ypt
sarily follow that the rslator In entitled
TO have the former grace restored; and
we have not been referred to any case,
nor are we aware of any, where it has
been decided that such right exists.
Rut even concedinR that it does is it
clearly the duty OF the respondent, who
In the surveyor OF highways OF said town,
TO restore said street to its actual grade
as IL existed before said change. or else to
work to grade esestabilshed by record. We
think not; surveyor OF highways In
merely a ministerial officer OF the Town
Council subject to their direction and
oontrcl, with no authority To incur any
indebtedness against the town, except
perhaps in case OF emergency such as the
removal Of snow or other obstruction from
the highways, and IL clothed with very
limited and well defined powers and
duties.
Tne court further asks II the court can
properly command the respon dent to take
up the bridge and dig down the ap-
breaches thereto. so as either TO reduce
the surface OF the street In question TO its
original grade or else 10 reconstruct IL in
accordance with the record grade there.
"a praved.in the petition, and negative
rswer is given To the question. Th7
work should not he done nt the expense
of the town and 10 might prove too costly
for the defendant TO 90 IL out OF his in
dividusl proItrty. The opinion also
states that the mere fact that the Town
Council had no authority to order the re.
I spondsnt to raise said grade and also
! that the respondentihad no right to COM
ply with said oroer does not give the re-
| lator the right 10 redress In this form OF
action, 10 having frequently been held
! that this form OF action will rot lie To
undo what ought not TO have been done