| R.I. | Jan 29, 1948
This cause is before us on complainants' appeal from a decree of the superior court sustaining a demurrer to their bill of complaint and dismissing the bill. The prayer of the bill asks for an injunction and damages against the city of Providence and its traffic engineer, Philip S. Mancini, for unlawfully closing a portion of Promenade street, a public highway in that city. For convenience, we will hereinafter treat the respondents as if the city were the sole respondent. The complainants are husband and wife. Complainant Gertrude M. Wolfe is the lessee of certain premises at the corner of Promenade and Gaspee streets. Leo W. Wolfe, the other complainant, rents the lessee's premises and conducts thereon the business of a gasoline filling station.
The allegations in the bill with reference to the wrong done to the complainants, as distinguished from the allegations referring to the damages resulting therefrom, are not set out with such directness and clarity as one would expect to find in a bill of this nature, especially where the prayer asks for injunctive relief against a municipality and its officers in the exercise of administrative functions. However, construing the allegations respecting the wrong complained of most favorably to the complainants, the bill in paragraph fourth in substance alleges that the respondent arbitrarily, illegally and permanently deprived the complainants of all ingress to and egress from their land on Promenade street; and, as a corollary of this allegation, paragraph fifth alleges that the respondent has completely and permanently deprived the complainants of the easement, appurtenant to their land, in and to Promenade street for its entire length.
The respondent demurred to this bill on the grounds of want of equity, adequate remedy at law, and action by the city by warrant of law. We note here that the respondent did not demur on the ground that the allegations of the bill were too vague, indefinite and uncertain, or that they failed to inform it of the wrong that the complainants relied upon. *419
[1, 2] The field of inquiry on demurrer to a bill in equity is a narrow one and it should not be extended to meet an unusual or appealing situation. On this point we can do no better than to quote the language of this court in Dike v. Greene,
[3] The bill in the instant cause is based on the theory of a continuing trespass to complainants' right of property resulting in irreparable injury. It clearly appears from the transcript of the argument on the demurrer that the respondent did not challenge, either as to form or substance, the allegations of the wrong, but that it did contend chiefly that it had acted under warrant of law, and that in any event the complainants had an adequate remedy at law. On the latter point, the transcript reads as follows: "Now we bring our demurrer because, in our opinion, under Setchell Auto Parts, Inc. vs. Artamian Sutcliffe, Inc.,
Confusion thereafter arose because of respondent's argument on its contention that it acted under warrant of law. It relied for such authority on the asserted provisions of a certain regulation of its bureau of police and fire for the control of traffic, which regulation, it argued, had been adopted under an enabling act of the legislature that it cited. The bill made no reference to such regulation. In the course of this argument the respondent further resorted to various assumptions, inferences and evidence which were not within the allegations of the bill, and some of which were inconsistent with or adverse thereto.
The matter then properly before the court concerned only the narrow issue raised by the demurrer, that is, whether the allegations of the bill were sufficient to state a cause in equity. The gratuitous injection, into the hearing, of evidence and matters that were not within the allegations of the bill was not only irrelevant but tended to divert the court's attention from determining, according to well-established equity rules, the sole issue raised by the demurrer.
[4] In the absence of specific objection to the allegations of the bill, it is our judgment that the statement of the wrong as summarized earlier in this opinion may be dealt with as sufficient to confer jurisdiction in equity. According to those allegations the respondent has completely and permanently deprived the complainants, who are treated as owners of land on a public highway, of all access to their land from Promenade street, and, in like manner, has also deprived them of their special right of property in that highway over and above the mere easement *421 of passage which they have in common with the general public. These allegations, which were admitted by the demurrer, are sufficient to state a cause for relief in equity. Upon this view of the alleged wrong, respondent's ground of demurrer that the complainants have a complete and adequate remedy at law is untenable.
The allegations in the instant bill, as above interpreted by us, which the demurrer admitted, present substantially the same basic questions of law that we considered and decided in the recent case of Newman v. Mayor of Newport,
It is our opinion that there was error in sustaining respondents' demurrer and dismissing the bill. Complainants' appeal is sustained, the decree appealed from is reversed, and the cause is remanded to the superior court for further proceedings.