20 A. 263 | R.I. | 1890
This is an action of trespass on the case to recover for injuries received by the plaintiff on May 27, 1889, from falling into a coal hole in the sidewalk adjoining the defendant's premises on Dorrance Street, in Providence. It appeared in evidence that Dorrance Street was a public highway, and that the defendant was, and had been for several years prior to the accident, the owner of a building known as the Narragansett Hotel *138 building, adjoining said street. The cellar of the building extended under the sidewalk on Dorrance Street, and opened into the street through the hole, into which the plaintiff fell. The hole was constructed and used for putting coal into the cellar. No license or other authority was shown by the defendant for maintaining the hole, or the cellar under the highway. At the time of the accident, that part of the building adjacent to the sidewalk in question was leased to one Lewis H. Humphrey, who was in occupation. The lease contained a covenant by the defendant to keep the exterior of the building in repair. At the time of the demise, the coal hole was provided with a suitable cover, which fitted down into the sidewalk, so that it could not be raised without considerable effort. At the time of the accident, the cover had been removed and the hole left open and unguarded by the agents of the lessee, while they were putting coal into the cellar for his use. At the trial the court ruled, first, that the hole in the sidewalk, and the cellar under it, did not constitute a nuisance as long as they were properly covered, andsecond, that the defendant was not liable for an injury to the plaintiff resulting from the removal of the cover by the lessee or his agents, for the purpose and in the manner shown by the testimony as above stated; and accordingly instructed the jury to return a verdict for the defendant. To these rulings and this instruction the plaintiff duly excepted, and now petitions for a new trial, alleging that said rulings and instructions were erroneous.
It was agreed at the hearing that the coal hole in question was constructed prior to any legislation, state or municipal, relating to vaults under sidewalks and coal holes. To entitle the plaintiff to recover against the defendant, as the owner of the property, it must appear that the coal hole was a nuisance at the time the property was leased to the tenant. Joyce v. Martin,
In 2 Dillon on Municipal Corporations, § 656 b., the rights of the abutting owner and of the public in streets are thus defined: "The abuttor is entitled as of right, subject to municipal and public regulation, to make any beneficial use of the soil of the street which is consistent with the prior and paramount rights of the public therein for street purposes proper. The right of the public to use the streets, not only for travel and passage, but for sewer, gas, water, and steam pipes and the like purposes is of course paramount to any proprietary rights of the abuttor. The abuttor may as a logical and necessary result, it is believed, whether the fee is in him or in the public, build, as of right, underground house vaults in the streets, subject of course to the paramount right of the public for street uses proper where the two rights come in competition, and subject also to reasonable legislative, municipal, or police regulations as to location, mode of construction, and use of such vaults." And in a recent New Jersey case, Weller v.McCormick, 19 Atlantic Reporter, 1102, it is said: "The public right is paramount, and includes the right to have the street safe for travel. That of the abutting owner is subordinate to this public right. He may use the highway in front of his premises, when not restricted by positive enactment, for loading and unloading goods, for vaults and shutes, for awnings, for shade trees, etc., but only on condition that he does not unreasonably interfere with the safety of *141
the highway for public travel." And see, also, 3 Kent Comment. *443; McCarthy v. City of Syracuse,
We are of the opinion that the want of a special license or authority to construct and maintain the coal hole in question did not constitute it a nuisance; and we are also of the opinion that the rulings and instruction of the court to the jury at the trial were correct, and that a new trial should be denied and the petition dismissed.