15 A. 763 | R.I. | 1888
This is a suit in equity for an injunction to restrain the defendant, the city of Providence, from filling in part the cove basin in said city and from alienating or diverting the land surrounding said basin, now used as a public park or promenade, to other uses. The place where the park is was formerly flowed by tide-water. It was reclaimed by filling, and in A.D. 1870 was conveyed by the State, then claiming title to it, to the city. It had been previously, and has been ever since used as a park, and it is admitted by the city to have been dedicated to the public as such. The cove basin is subject to the ebb and flow of the tide. By an act of the General Assembly, passed at the last May session, Pub. Laws R.I. cap. 722, of May 31, 1888,1 the city was authorized to fill the basin in part and to discontinue *339 the park, and to sell, convey, or exchange the land for railroad or other purposes. The object of the complainants is to prevent this.
The bill sets forth three grounds on which the injunction is asked.
First. The bill alleges that Timothy Newell, one of the complainants, is and long has been seized of certain lots numbered 20, 21, and 22, on the plat of the Governor Francis land, surveyed and platted August 18, 1855, by N.B. Schubarth, which lots are adjacent to the cove lands; that said Newell has made lasting and valuable improvements on the lots, and that they will be rendered of less value by a conversion of the park land to other uses; that by being an adjoining proprietor he has a vested interest in said park land, and that the same is threatened with destruction by the act of the General Assembly. The statements of the bill carry the impression that the lots border on the cove lands, or bordered on the cove before the lands were made by filling. The evidence shows that they are simply near, without bordering on said lands, and that the advantages which accrue to them from having said lands remain a park are merely advantages of proximity. The complainant, Newell, claims on account of them a vested interest in the park, but adduces no authority in support of the claim. We do not see how he thereby acquires a vested interest any more than he would acquire such an interest in a neighboring private garden or grove, which might add value to the lots by making them pleasanter as a place of residence. It was long ago decided that a land owner has no vested right in a mere prospect, though it may greatly add to his enjoyment. Aldred's case, 9 Rep. 57 b,
58 b. In The Brooklyn Park Commissioners v. Armstrong, 45 N.Y. 234, it was expressly decided that the owners of land around a public park have no such right or interest therein as will entitle them to compensation, when a city, being the owner of the fee of the park, discontinues it under the *340
sanction of the legislature. The case is directly in point. See, also, State v. Dexter,
The complainants also contend, though the point was not presented in the bill, that the General Assembly has no power as against the public to authorize the discontinuance of the park and the sale of the park lands, and cite City of Jacksonville v.Jacksonville Railway Co.
Second. The complainants ask an injunction, because they are citizens and residents of the city of Providence, and as such entitled to enjoy and freely exercise all the rights of fishery and privileges of the shore to which the people of the State have been heretofore entitled under the charter and usages of the State, and because the cove basin being covered by tide water, an act of the General Assembly authorizing the filling, or partial filling of it, is in derogation of these rights and privileges and in conflict with the Constitution, article 1, section 17. This section reads as follows: "The people shall continue to enjoy and freely exercise all the rights of fishery, and the privileges of the shore to which they have been heretofore entitled under the charter and usages of this State. But no new right is intended to be granted, nor any existing right impaired, by this declaration." It is clear that this section leaves the, rights of the people as they existed previously to the Constitution. It neither diminishes nor adds to them as was *341
decided by this court in State v. Medbury,
The act must be taken to be constitutional unless the contrary appears: for in our opinion the General Assembly has in this matter the authority, not simply of the English crown, but of both crown and parliament, except so far as it has been limited by the Constitution of the State, or by the Constitution and laws of the United States. Gould v. Hudson River R.R. Co.
Third. It appears that Charles Sabin, one of the complainants, is owner of a lot of land on the north side of Westminster Street, which, when conveyed to his predecessors in title, in 1756, bounded northerly on the cove, and that the easterly and westerly lines of the lot extended northward would enter the cove basin. The said Sabin claims that, by reason thereof, he is entitled to the rights of a riparian proprietor in the cove basin, and that, inasmuch as the act for filling the basin does not provide compensation for taking those rights, he is entitled to have the filling enjoined. The lot, however, as now used by Sabin does not extend *343 to the cove basin, but between it and the basin there is a wide space, used partly as a public square or street, partly as a railway depot, and partly also as a portion of the park or promenade surrounding the basin. The portion of this land nearest to said basin, including said park, was filled out by the Providence Worcester Railroad Company, under the authority of a special act of the General Assembly, which reserved to the State all its rights in the land so filled, which should not be appropriated to the railroad company. Under this reservation the title to at least the rim of land around the cove basin remained in the State after it was filled, said land never having been appropriated to the railroad company, and the owner of the Sabin lot ceased to be a riparian proprietor. The riparian rights appurtenant to the lot, if they had not previously been extinguished, were then taken away, and the owner, if entitled to compensation for them, should have claimed it then. We do not think that at this late day they afford any ground, if ever they did afford any ground, for the equitable interference of the court.
The counsel for the complainants contends that the title to the land in the cove basin never passed to the city, but still remains in the State. We do not appreciate the significance of this point; for admitting that the title remains in the State, the General Assembly has authorized the filling, and we have no right to forbid what the General Assembly has authorized, if the act conferring the authority be valid.
Petition denied.
"SECT. 1. The city of Providence is authorized to fill or cause to be filled the cove basin in the city of Providence, constructing through the present site of said basin a passage for the Woonasquatucket River, at least one hundred feet wide; and also a passage for the Moshassuck River, connecting the same with the channel of the Woonasquatucket River, at least forty five feet wide.
"SECT. 2. The city of Providence may abandon and discontinue as a public park any and all lands known as the cove or cove promenade, and being land surrounding or in part surrounding the cove basin, in said city, and said city of Providence may sell, convey, or exchange any such lands for railroad or other purposes.
"SECT. 3. To carry into effect the authority and power hereinbefore granted and defray the expense thereof, the city of Providence is authorized to borrow money to an amount not exceeding four hundred and fifty thousand dollars, and to issue its bonds therefor at such times, and on such conditions, and in such amounts, not exceeding said sum, as the city may determine, and to establish a sinking fund therefor.
"SECT. 4. This act shall go into effect from and after its passage, and all acts inconsistent herewith are hereby repealed."