31 A. 831 | R.I. | 1895
The declaration charges that the city of Providence negligently caused a sewer to be built in South Main Street, as a part of the sewerage system of the city, which cut off a drain leading from the premises of the plaintiffs and others, through Harding's Alley, an accepted street, to the river, said drain having been laid by permission of the town of Providence; whereby the said drain was obstructed and water and sewage from estates above flowed back on to the plaintiffs' premises. Upon demurrer to the declaration the question is whether there is any legal liability on the part of the city for cutting off the drain.
While the primary purposes of streets are for public travel, requiring only a use of the surface, yet, by immemorial custom, they have been put to other uses of a public nature quite distinct from but not incompatible with their use as *106
highways. Thus, gas and water pipes, drains and electric wires, as well as other things of general convenience, by common consent find a place in our public streets. In Clark v. Peckham,
But while the plaintiffs do not deny the right of the city to remove the private drain and to build a sewer in its place, they claim that the city was bound in so doing to provide for the drainage which had flowed through the private drain and was negligent because it did not do so. Such a claim must rest upon a vested right to maintain the drain or else it has no foundation in an action for damages. We think that neither the town nor the city had the power to convey such a right to private parties. The most it could do would be to grant a license to use the street in a way which should not interfere with the public interest. If the plaintiffs had no vested right in the street, then they cannot legally complain because the city did not protect them in the use of it. In Baxter v. Tripp,
Suggestion was made at the hearing that there was no notice to the plaintiffs of the cutting off of the drain and that as licensees they were entitled to notice, but as no such allegation is made in the declaration, we do not pass upon *108 the question whether there would be any liability on the part of the city, if such were the fact.
The demurrer to the declaration is sustained.