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determining the streets and alleys, and which had although incidentally they hold some trusts in the exbeen referred to in conveyancing. All the deeds in a ercise of which any citizen of the State may come to pretty long chain of title, under which appellee held, be interested. It may well be doubted whether the described the property by lots, running back 140 feet reason of the maxim may not be strained too far in into an alley. None of them expressly gave prop. applying it to these bodies. That "the time and aterty in the alley itself. So far as these facts consti- tention of the sovereigu must be supposed to be octuted a dedication to the public, the alley had been cupied by the cares of government," migh: well have dedicated and had passed under the control of the city excused a king from asserting his rights, but affords authorities.
Do reason why the officers of a corporation should not The inclosures had been there for a long time beyond be reasonably diligent in the discharge of the very the period of limitations, and were there when ap- duties they were selected to execute. Nor does it af. pellee purchased. The premises had been used con- ford a reason why citizens, daily sensible of an entinuously as a home, with the assent of all co-owners croachment on their common rights, should be alin the block, who themselves desired that the alley lowed to lie dormant for many years and then assert should not be opened.
them to the detriment of others. The maxim should It appears affirmatively indeed that the municipal not become the instrument of wrong. The more authorities did not consider it necessary to the public, wholesome rule for the citizen individually and colfor they had offered to permit the appellee to main- lectively as well is that the laws favor the vigilant only tain her inclosures for an indefinite time, if she would and not the careless and slothful. acknowledge the city's right and agree to open the It has been said speciously that municipal authorialley at a future time when requested. She refused, ties cannot grant away these public easements, and and the city was about to order their removal by the that no one can therefore claim, "by prescription," to marshal when she invoked the aid of the chancellor. impede them, because a prescription implies an origi. The city indeed desired only to settle & right, by an nal grant. This may be and is the true nature of a effort to exercise it. Perhaps that was proper enough, claim by prescription, but the argument seems to rest in view of the official trust reposed in the officers, but on a confusion of ideas. One who sets up the defense nothing would have been lost by leaving the appellee of the statute of limitations does not claim technically in the enjoyment of her home until the alley should by prescription and cannot be met with that technical have been needed, if ever. The city's rights were as argument. He defends by statute entirely, regardless eflectually barred as they could be by time.
of any cousideratiou of grant or even lawful entry. She claims tbat the action of the city was oppres- He is allowed to go further as a consequence aud say sive as well as unauthorized. That the alley was never that as no suit can be brought against him, his posses. dedicated to the public, and that if it were, the right sion shall not be disturbed in pais, and that he and his of the municipality to control it had been lost by limi- assignees shall stand upon the effect of the statute and tation.
be respected as owners. It is convenient to consider the last question first. The authorities upon the vexed question here preIt is one of great importance, which has been fre- sented have been collected, and the principles disquently considered in other States, and with regard cussed by Mr. Dillon in his work on Muvicipal Cor. to which there is much conflict of authority. It may porations. It is conceived that nothing important can be presented thus: Is a city or town corporation, with be added to his text, votes and citations, for a full respect to property or powers which it holds in trust showing of the authorities upon each side and the for the public, bound by the statute of limitations, 80 reasons by which they are supported. See Dill. Mun. as to be precluded by lapse of time and adverse hold- Corp., 58 667-675 (3d ed.). Whilst he himself comes to ing, from claiming to control the property or exercise the couclusion that no laches on the part of the officers the power? With regard to property, or contract of a corporation can defeat the right of the public to rights which the municipality claims for its own con- its public streets and places, he yet qualifies it by say. venience as a corporation, there is little difficulty. ing that private rights may grow up in consequence of Almost if not quite all the authorities concur in hold- such laches of “more persuasive force in the particular ing in such cases that it is amenable to the statute; case than those of the public.” It seems to be a comand we think it obvious that it should be ou prin- | promise between the doctrine of a statutory bar and ciple. Quoad hoc, it does not represent the sover- that of nullum tempus, etc., by adopting the equitable eignty of the people but only itself and the local inter- doctriue of staleness and estoppels in pais. ests of citizens.
The authorities are reviewed at length in the case of The trouble arises where the powers are held in City of Wheeling v. Campbell, 12 W. Va. 36. It is a trust, not for the members of the body corporate very interesting and instructive case in support of the alone, but for the whole people who may come to the doctrine that municipal authorities are bound as in city. The most common cases are those arising with dividuals are by the statute of limitations. There the regard to the use of streets, squares, parks, and com- parties were reversed. The city sought to enjoin the mons which have been dedicated to the public. Ap. defendants from building a house upon a portion of a pellees contend that in this respect alleys do not stand street, concerning the original dedication of which upon the same ground with streets and squares; but there was no question. The defendants set up long waiving that for the present, we will consider the ques- and adverse possession, and were met by the doctrine tion with regard to all.
of nullum tempus. The authorities on both sides are If municipalities are not bound by statutes of limita- well arrayed, and the court held upon their decided tious with regard to these public trusts, that is, with weight that the city was subject to the statute and was regard to their powers to keep open streets, etc., it barred. The court amongst other things quoted the must be upon the maxim, that “nullum tempus occur. remarks of Chief Justice Dillon in City of Pella v. rit regi," and that municipalities are the adjuncts of Scholte, 24 Iowa, 283, which was a contest of the right government, and have the franchise of sleeping upon of the city to a certain garden square claimed by adtheir rights; or rather that the public must not suffer verse possession. from their neglect.
Assuming the dedication the learned judge said: But municipal corporations are not really the State, “To actions of this character, though brought in nor are their functions and powers conferred princi- equity, the ten years' limitation applies directly or by pally for the benefit of the wbole people of the State, analogy.” Further on he says, speaking of the doo
bed to a private individual or citizen bas been permit- ERROR from Shawnee county.
trine of nullum tempus, etc. : " The principle has not tionary or judicial, or quasi-judicial or legislative, and is so far as we know been extended to municipal or pub- not divided or shared with any other corporation or board lic corporations. On the contrary, it has been ex- or tribunal, but is absolute and exclusive in the city itself, pressly held tbat those corporations are within the
and it is not conferred upon the city merely as a benefit, statute of limitations, the same as natural persous,
which it may exercise or not at its option or discretion, citing cases in Ohio, Kentucky, and New York.
but it is imposed upon the city also as an absolute and We canuot but admire and commend the independ- mandatory duty, which it has no right to evade or avoid. ence and integrity of character of the distinguished
Generally cities must keep their streets in safe and proper jurist, which prompted him afterward in his text
condition at their peril. book, upon what seemed to him a more enligbtened 4. Where a street, as planned or ordered by the governing view, to announce a different conclusion. Still we
board of a city, is so manifestly dangerous that a court, must accord to his utterances, as judge, of the concur
upon the facts, could say, as a matter of law, that it was rent opinion of himself and his associates, a greater
dangerous and unsafe, the city should generally be held weight than to his individual views as a text-writer. liable for any resulting injuries to individuals; but where, Another one of the numerous authorities cited in the
upon the facts, it would be so doubtful whether the street, City of Wheeling case, supra, is that of Dudley v. Trus
as planned or ordered by the governing board of the city, tres of Frankfort, 12 B. Mon. 610, a case directly in
was dangerous or unsafe or not, that different minds point with this. It was an injunction to restrain the
might entertain different opinions with respect thereto, marshal from removing an inclosure of Dudley off the
the benefit of the doubt might properly be given to the street as an obstruction. Dudley claimed by statute
city, or to the governing board that planned it, and the of limitations. The court adopted a reasoning which
city held not liable. this court approves. Hise, J., delivering the opinion, 5. Where it is claimed that the city should be protected from said: “If the private citizen at any time encroach
liability for the reason that the condition of the street was with his buildings aud inclosures upon the public
so brought about in accordance with a plan previously streets, the municipal authorities should, in the exer
adopted or subsequently ratified by the city or its governcise of proper vigilance, and of their undoubted au
ing board in the exercise of a judicial, quasi-judicial, legthority, interfere by the legal means provided in their
islative or discretionary power, it must be shown that the charter, to prevent such encroachment, in due time,
exact matter was under consideration by the governing and thus preserve for public use the squares, streets,
board, and that after due deliberation such plan was exand alleys of the town, in their original dimensions;
pressly adopted or expressly ratified.
"RROR ted to remain in the continued adverse actual possessiou of public ground, or of a public street, as em- G. N. Elliott and W. P. Douthitt, attorneys for braced within his inclosure, or covered by his dwelling plaintiff. or other buildings, for a period of twenty years or more without interruption, such citizen will be vested
A. B. Quinton and J. D. McFarland, attorneys for
VALENTINE, J. This was an action brought by LuThe court in the West Virginia case conceded that ella L. Gould against the city of Topeka to recover the doctrine which exempted municipal corporations damages for personal injuries alleged to have been from the operation of the statute of limitatious ob- caused on the night of August 21, 1879, by reason of tained in, and was supported by the decisions of Penn- the unsafe and dangerous condition of a public street sylvania, New York, Rhode Island and Louisiana, In the city of Topeka, named Kansas avenue." At whilst a contrary doctrine was announced by the high- that time the plaintiff was riding in a carriage on said est courts of Vermont, Massachusetts, New York, Con- street up an embankment, which leads to the south end necticut, Maryland, Virginia, North Carolina, South of the bridge which spans the Kansas river, and the Carolina, Mississippi, Texas, Missouri, Kentucky, Ohio, carriage was overturned and the plaintiff thrown thereIllinois and Iowa, all of which, says the court, "have from and down the embankment, on the east side restricted the application of the maxim to sovereignty
thereof, and the injuries of which she now complains alone; and most of said courts have, in express terms,
were thereby produced. The only wrong alleged in cases requiring the decision, held that muuicipal against the city is the construction and permitted excorporations, like natural persons, are subject to limi
istence of the said embankment, which is alleged to be tation statutes."
high and narrow, and the negligence of the city in perThese views commend themselves as reasonable and mitting it to remain unprotected and not guarded by best adapted to the circumstances of our country,
any railings or other barriers,and without street lamps and we adopt the line of decisions in accordance with or other lights during the night. them.
The case was tried by the court and a jury, and the Affirm the decree. court gave the following among other instructions:
"13th. It can make no difference in this case whether the made and travelled portion of the street was wide
enough to accommodate the ordinary traffic and travel MUNICIPAL CORPORATION.
over the same, unless its narrowness was the cause of
the plaintiff's being driven over the narrow track, and KANSAS SUPREME COURT, OCTOBER 9, 1884.
that such narrowness was caused by the negligent GOULD V. CITY OF TOPEKA.*
grading and filling of Kansas avenue at the place where
the accident occurred. A city is liable for any injury to private individuals caused
“14th. I further instruct you, gentlemen, that such by the negligence of its officers in not keeping its streets
negligence camot be predicated upon the plan of a in a safe and proper condition.
public work, but it may be predicated upon the con2. And a city has no more right to plan or create an unsafe
struction and subsequent management of such a work ; and dangerous condition of one of its streets than it has
if therefore you find from the evidence that the deto plan or create a public or common nuisance.
fects complained of in the plaintiff's petition did in 3. The control of the public streets of a city is vested in the
fact exist in Kansas avenue at the place where it is alcity, and its exercise by the city is not wholly discre.
leged the accident happened to the plaintiff (and),
were defects existing in the plan of grading and fill*To appear in 32 Kansas Reports.
ing Kansas avenue, as adopted and executed, by the street, and the work is done accordingly, even if the proper authorities of the city, then the plaintiff can- exercise of such powers or failure to exercise the same not recover in this action. But if you find from the should be ever so wrongful. It is claimed that cities evidence that such defects (arose) from a negligent and may adopt a plan for public improvements or ratify careless construction of the grading and filling, after such plan after the improvements have been made, the plan of construction had been fixed upon, then and that the adoptiou or ratification of such plan will the plaintiff may recover, provided the injuries com- come within the first class of powers above mentioned, plained of were caused directly by such last-named and that no negligence can be predicated upon the negligence, and the plaintiff and the driver of the team adoption or ratification of such plan, por upon the in which she was riding were themselves, without improvements themselves if made in accordance with fault, contributing to such injuries.
the plan; nor can the city be held liable for any in“15th. If you find from the evidence that at the juries to individuals resulting from the plan, or from time of the alleged accident Kansas avenue, at the the improvements made, if made in accordance with place where such accident is alleged to bave occurred, the plan, even if the same were ever so defective and was in a defective condition, and that such defective | dangerous; and it is further claimed that the city can condition was caused by said arenue having got out of be held liable only for the negligent construction of the repair, either by reason of travel upon it, or otherwise, public works, or the negligent management and conafter the completion of the work of grading and filling trol thereof after the same bave been made; and this, and not by reason of negligence in the grading and for the reason that these matters, and these only, can filling thereof as originally done; then the plaintiff possibly come within the second class of powers above cannot recover in this action.
mentioned. "16th. If the work of grading and filling Kansas We agree with counsel in the division of the powers arenue at the place of the accident was done by the of municipal corporations, and generally that cities are direction of the defendant, and after its completion not liable for the exercise or non-exercise of the first the defendant, with knowledge of the plan on which class of powers above mentioned; but we do not agree said work had been done, accepted it by permitting it to with counsel in their application of the rule with restand and to be used as a public street, this would be spect to injuries to private individuals resulting from a ratification of the plan of said work, and would in the defective and dangerous condition of the public effect be the same as though the plan of said work had streets of cities. In our opinion, a city has no more first been adopted, and the work executed in accord- / right to plan or create an unsafe and dangerous condiance with said plan so adopted."
tion of one of its public streets than it has to plan or Several other instructions were given, but these are create a public or common nuisauce; and it is admitthe only ones of which the plaintiff now complains. ted that it has no right to do this. 2 Dill. Mun. Corp. The plaintiff also asked the court to give several other (3d ed.), $ 660. instructions, which the court refused; and of this re- The rule contended for by counsel for the defendant fusal the plaintiff now complains; but we do not un- has been applied to various cases, as follows: It bas derstand that any question is now raised upon the in- been applied to city improvements, and the cities beld structions refused different from or in addition to the
not liable in cases where the property of individuals questions raised upon the instructions given. The outside of the streets has been flooded and injured ou jury found a general verdict in favor of the defendant,
account of the insufficiency of sewers or drains. City and the plaintiff moved the court for a new trial upon of Atchison v. Challiss, 9 Kans. 603; Steinmeyer v. City various grounds, which motion was overruled, and of St. Louis, 3 Mo. App. 250 ; Mills v. City of Brooklyn. the court rendered judgment in favor of the defend- 32 N. Y. 489; Darling v. Bangor, 68 Me. 108; Child v. ant, and against the plaintiff for costs; and this judg- City of Boston, 86 Mass. (4 Allen) 41; Van Pelt v. Cily ment the plaintiff now seeks to have reversed.
of Davenport, 42 Iowa, 308. That a city is liable for any injury to private indi- The rule has also been applied and a city held not viduals caused by the negligence of its officers in jot liable in a case where water on adjoining property was keeping its streets in a safe and proper condition bas polluted by means of a sewer or drain. Merrifield v. been maintained and promulgated by the Supreme Worcester, 110 Mass. 216. Court of Kansas nearly ever since its first organiza- The rule has also been applied and a city held not linble tion; and such is now the unquestioned doctrine of in a case where, by the digging of a ditch, the rent of this State; and nearly all the courts of last resort in
a person's house was diminished. Lambar v. Cily of all this country also recognize, sanction, approve and St. Louis, 15 Mo. 610. promulgate this very same doctrine. It is believed
And also to the same effect where by the digging of that the decisions of the Supreme Courts of New Jer- a ditch and the construction of a culvert on the sidesey, Michigan and Texas furnish the only exceptions walk the plaintiff's abutting property was damaged. to this almost universal agreement among the courts. While v. Corporation of Yazoo City, 27 Miss. 357. Pray v. Hayor, etc., 32 N. J. L. (3 Vroom) 394; Detroit
The rule has also been applied aud a city held not v. Blackeby, 21 Mich. 84; McCutcheon v. Homer, 43 id.
liable in a case where a school child was injured by an 481; City of Naivasota v. Pearce, 46 Tex. 5:25.
unsafe staircase. Hill v. Boston, 122 Mass. 344. But it is claimed by counsel for defendant that
And the rule has also been applied and cities held vot municipal corporations are endowed with various
liable in New York and Michigan where injuries ocpowers, among which are, first, those which are dis
curred to individuals on account of the unsafe and cretionary and judicial, quasi-judicial or legislative in dangerous condition of the streets. Urquhart v. City their character; and second, those which are manda.
of Ogrlensburg, 91 N. Y. 67; City of Detroit v. Becktory and ministerial in their character; and that while
man, 34 Mich. 125; City of Lansing v. Toolan, 37 id. municipal corporations may be held lia
for the 152. wrongful exercise or the wrongful failure to exercise
The Michigan cases however are not entitled to much those powers which are mandatory and ministerial in weight as authority, for the reason that in that State, their character, such as negligently failing to keep
as before stated, the Supreme Court has gone to the their streets in safe and proper condition; yet that no
extent of holding that cities are not liable in any case liability can be incurred by the exercise or failure to
to private individuals for any injury resulting from exercise those other powers belonging to the first class defective streets, whether the defect arises from the above mentioned; as where the city orders or plans a
neglect of the city and its officer to keep the streets street improvenient, or a change or alteration of such
in safe and proper condition or is the result of a defect
in the original plan adopted by the city council for the should plan or arrange that a street should be made construction of the improvements. Detroit
unsafe and dangerous, we should be inclined to think Blackeby, 21 Mich. 84; McCutcheon v. Homer, 43 id. that it would so transcend its powers as given to it by 483.
the Legislature, and so violate its duties as imposed This leaves only the New York case as being entitled upon it by the Legislature, that it would be liable for to consideration in holding that the rule of the non- any injury which might occur to any individual by liability of cities should be applied where injuries bave reason of such unwise action. Such action would be resulted to individuals on account of the unsafe and substantially the same as planning and creating a pubdangerous condition of the public streets, so made dan- lio nuisance. Can a city, by planning that a cistern gerous in accordance with a plan previously adopted should be left uncovered in the middle of a public by the governing board of the city. But even iu New street, avoid all liability for injuries that might occur York it was doubted as late as in 1876 whether the rule by reason of some persons falling into it in the nightshould be so applied. Clemence v. City of Auburn, 66 time without fault on his part, when on the other N. Y. 334.
hand it would be liable if the cistern were left unIn that case it was doubted whether the city would covered by the person who constructed it or was afterbe liable or not, even if the work had been done in ex- ward uncovered by some other person, and notice of act accordance with the directions of the common its condition had been given to the city officers? Is council of the city. And we have the authority of the such a distinction founded in reason? 2 Thomp. highest courts of two States-Illinois and Wisconsin- | Neg. 734, 735, 736, &$ 2, 3, and notes; id. 766, 767, 768, holding that the rule should not be applied in any such
and notes. cases. City of Chicago v. Gallagher, 44 Ill. 295; City of After a careful consideration of this entire question, Chicago v. Langlass, 66 id. 361; Prideaux v. City of we have come to the conclusion that where a street, as Mineral Point, 43 Wis. 513.
planned or ordered by the governing board of a city, These cases seem to wholly ignore all distinction is 80 manifestly dangerous that a court, upon the facts, made by some courts between injuries resulting from could say, as a matter of law, that it was dangerous a defective plan of the work and injuries resulting and unsafe, the rule contended for by the defendant from negligence in the execution of such plan, or in should not have any application, and the city should the control and management of the work after its com- be held liable; but where upon the facts it would be pletion; and they hold that in all cases where injuries so doubtful whether the street, as planned or ordered occur to private individuals from the unsafe and dan- by the governing board of the city, was dangerous or gerous condition of the public streets of a city, the unsafe or not that different minds might entertain difcity should be held liable; and this seems to be more ferent opinions with respect thereto, the benefit of the in harmony with reason and justice thau the other rule. doubt might properly be given to the city, or rather to 2 Thomp. on Neg. 734, 735, 736, S$ 2, 3, and notes. its governing board that planned or ordered that the
In Kansas we have no special reason for following street should be placed in such a condition, and the this rule of the Wisconsin and Illinois courts. In Kan- rule should be held to apply and the city should not 8a8, as well as elsewhere, cities do not own the public
be held to be liable. Before leaving this question, we streets. In Kansas the fee-simple title to the streets think we should call attention to the fact that the is vested in the counties in which the cities are situa- | principal part of the reasoning in those cases above ted, and is so vested not for the benefit of the coun- cited, which hold that a city is not liable for conseties or the cities merely, but also for the benefit of the quential damages to property situated outside of the entire travelling public, and the cities are invested streets by reasou of sewers, drains, ditches, etc., is only with the control and management of the streets; not applicable to cases where the injuries are to inand this control of the streets is not merely for the dividuals travelling upon the public streets, and where benefit of the cities themselves, but is also for the the injuries are caused by some manifestly dangerous benefit of the entire travelling public. This control of
thing in or formiug a part of the public streets; nor is the streets however is not wholly discretionary or ju
the principal part of the reasoning in one of this class dicial or quasi-judicial or legislative, and is not di- of cases like the principal part of the reasoning in the vided or shared with other corporations, boards or other; for in the one class of cases the city has a legal tribunals, but it is absolute and exclusive in the cities, right to do just what it has done, while in the other it and as we think, it is not conferred upon them merely
has no such right; and a cause of action can seldom if as a benefit which they may exercise or not at their ever be based upon the lawful exercise of an unquesoption or discretion, but is imposed upon them also as
tioned legal right, while it may generally be based an absolute and mandatory duty, which they have no
upon a wrong. See the oase of the City of Atchison v. right to evade or avoid. Generally they must keep
Challiss, 9 Kans. 603, heretofore cited, for the reasontheir streets in a safe and proper condition at their
ing where the city is held not to be liable. We shall peril. And while we recognize the rule contended for now pass to another question. by the defendant's counsel, and think that it may have
We would further think, that in order that the city application in some cases, yet we do not think that it
should be protected from liability on account of the has very much room for application where injuries 00
work being executed in accordance with a plan precur to private individuals on account of defective and viously adopted by the city, the plan should be shown manifestly dangerous public streets. The control of to have been expressly adopted, and adopted by the the streets of cities was not put into their hands for
city council or other board having the control of the pothe purpose that they might plan or order that the litical, the legislative, and the goverumental affairs of streets should be made dangerous or unsafe for the
the city. To say that it has been adopted because the public to travel thereon; nor was such control put into
board has given no expression to the contrary would their hands for the purpose that they might plan or
pot do. order that the streets should remain in an unsafe or
In order that the city should be protected from liadangerous condition if previously dangerous; but such
bility, it is necessary that its board should have the control was given to them for the sole purpose that
exact matter under consideration, and after due dethey should make and keep the streets safe and con
liberation should expressly order that the thing be venient for the traveling public; and we think it was
done; or if the thing has already been done, then that put into their hands as a mandatory duty, which they
it should be ratified. Suppose that the city council have no right or discretion to evade or avoid. If a city should order that a cisteru be constructed in some
public street, and say nothing about the cover, we
RHODE ISLAND SUPREME COURT ABSTRACT. would think that it should not be held that the want of a cover should be included as a part of the plan in GIFT-BANK PASS-BOOK-DELIVERY.-In Tillinghast constructing the cistern, or in other words, that the v. Wheaton, 8 R. I. 536, this court decided that the city council had planned that there should be no gift of a savings bank pass-book was in effect a gift of cover; and if the cistern were built in accordance with
the deposit evidenced by it. It is not contended that the order of the board, but with no cover, and injuries the case at bar is distinguishable from Tillingbast v. should result because thereof, we would think that it Wheatop except in the matter of delivery. There are should not be held that the city was not liable for the cases which hold that a delivery is 80 essential to a gitt injuries; or if the city should order that a high and that it cannot be dispensed with even when the donee narrow embankment with precipitous sides should be
is already in possession. Shower y. Pilck, 4 Exch. made in a public street for the purpose that the travel 478; Cutting v. Gilman, 41 N. H. 147; French should pass over the embankment, and should say v. Raymoud, 39 Vt. 623. There are other cases hownothing concerning railings, guards, or other barriers,
ever more numerous and in our opinion more auand nothing concerning street-lamps or other lights to thoritative, which hold that a delivery is not necessary prevent persons in the night time from falling or driv- when the intended donee is already in possession, but ing off the embankment and thereby being injured, we that in such a case the gift, if completed and unambig. would think that it should not be held that the city uous, may be effected by a simple oral declaration. Tenhad planned or ordered that no such railings, guards, brook v. Brown, 17 Ind. 410; Wing v. Merchant, 57 barriers, lamps or lights should be used; but we would Me. 383; Carradine v. Carradine, 58 Miss. 286; Souththink that it should be held that the city had made no erland v. Southerland, 5 Bush, 591; Waring's Admr. order with reference thereto; and then we would v. Edmonds, 11 Md. 424; Stevens y, Stevens, 2 Hun, further think that if no such railings, guards, barriers, 470; Penfield v. Thayer, 2 E. D. Smith, 305 lamps or lights were used, and thereby injury should And see Winter v. Winter, 9 W. R. 747; 101 Eng. result, the city should be held to be liable. Before the
Com, Law, 997; Roberts v. Roberts, 15 W. R. 117. court should hold that a street manifestly unsafe and We decide on the authority of these latter cases that dangerous was so planned and so ordered by the gov- Mrs. Hayden is entitled to the money as a gift inter erning authorities of the city, the courts should be vivos from her son. Let the decree be accordingly. able to say from the city records that it was so planned Providence Institution for Savings v. Taft. May 16, and so ordered by the city authorities. There should
1884. Opinion by Durfee, C. J. [See 22 Eng. R. 436, be no presumption that the city authorities ordered or
690; 27 Alb. L. J. 367; 18 Am. Rep, .] planned that a public street should be dangerous. If a cistern or an area within the sidewalk should be un
BY HIGHWAY-WHEN GRANTEE covered and remain so for a long time, it should not be TAKES-DISCONTINUANCE OF HIGHWAY.- A highway presumed or held that such authorities adopted the was laid out wholly on the land of M., the north line plan that it should remain uncovered, although it of the highway coinciding with the north line of M.'s might be proved that all the city authorities had land. M. afterward sold the land south of the highknowledge of the same. Or if a part of a bridge over a way, in his deed bounding the land on the highway. deep stream with precipitous banks should be partly Subsequently the highway was declared useless and washed away, still leaving it possible in the day discontinued. Held, that M.'s grantee was entitled time for teams to cross with great care, but dangerous to the whole of the land of the former highway. In and hazardous in the night-time, and no precaution Hughes v. Providence & Worcester R. Co., 2 R. I. 493, should be taken by the city authorities to guard against 512, this court laid down the rule governing the con. danger, it should not be presumed or held that the struction of deeds in cases of lands bounded on bighcity authorities, in their legislative or judicial capac- ways in the following language, viz. : “This court have ity, or even as an exercise of their discretionary powers, repeatedly ruled, and it may
now be construed had planned or ordered that the bridge or stream the settled policy of the State that where a deed should so remain in its hazardous and dangerous con
bounds the grantee to, by, or on a highway dition. Courts should not allow any but the most the presumption of law is that the grantee takes the formal evidence to be introduced to prove that the fee of the soil to the center of the highway * city authorities had planned or ordered or ratified any if the grantor at the time owned the fee to the cen. such dangerous place within their streets. Courts ter, subject to the right of the public in the easement; should not presume without formal proof that the unless there be established monuments or other clear governing board of & city had deliberately done description in the deed, to rebut this presumption, and wrong, and especially not for the purpose of relieving
show that the intention was to limit the graut to the the city from the consequences of a wrong for the do
line of the highway.
And see also Tiogley ing of which it would be held to be not liable if it had v. City of Providence, 8 R. I. 493, 506. That done the wrong deliberately, but liable if it had done such is the general rule of law see the discussion and it merely heedlessly or carelessly.
cases collected in the note to Dovaston v. Payne, 2 We think the court below erred in giving the fore. Smith Lead. Cas. *216; Tyler Bound., eto., 103-114; going instructions. There was no evidence showing Cox v. Louisville, etc., R. Co., 48 Ind. 178-185, 188; that the city, by its council or otherwise, had ever ex- Jarstadt v. Morgan, 48 Wie. 245, 249; Tousley r. Galena pressly planned or ordered that the street where the Mining & Smelting Co., 24 Kaus. 328, 331-333. This plaintiff's injuries occurred should be made or left in presumption however that the grantee takes the leo the condition in which it then existed; and the evi- of the soil to the center of the highway is not absodence does not show that the city, by its council or lute and conclusive. It is created or rather allowed, otherwise, ever expressly ratified any such condition in the absence of proof, and is based upon the idea of the street. The only evidence upon this subject that when the street or highway was laid out, the prowas that the street had remained in that condition for prietors upon each side coutributed their land for the some years, and that the mayor and two mem- purpose in equal portions. When it appears that such bers of the city council had knowledge of its condi- was not the fact the presumption does not arise. As tion.
was stated by Hosmer, C. J., in Watrous v. SouthThe judgment of the court below will be reversed worth, 5 Cong. 305, 310: “It is a general rule of the and cause remanded for a new trial.
common law that the fee of the land over which a All the justices concurring.
highway passes is owned equally by the owners of the