Whalen v. Bates

Matteson, C. J. Pub. Stat. E. I. cap. 31. § 12, requires every person who shall have any claim against a town to present to the.town council, or if it be a claim against a city, to the city council of the city, a particular account of his claim, and provides that, in case just and due satisfaction is not made within forty days after the presentment of the claim, he may commence his action for its recovery. The presentation of the claim to the city council, *276 in case of a claim against a city, is thus made a condition precedent to the maintenance of an action against a city. In the case at bar, the plaintiff’s claim was never presented to the city council of Pawtucket, but a statement of it addressed, not to the city council, but to the mayor and board of aldermen, who' constitute only one branch of the city council, was presented to the board of aldermen. We do not think that the presentation of the statement of the plaintiff’s claim restricted, by the terms in which it was addressed, to the consideration of the mayor and the board of aldermen, • or one branch of the city council, can be regarded as a compliance with the statute. We think that the Common Pleas Division erred in its instruction to the jury that the plaintiff was not required to make known any claim that he had to the commissioners, nor to make known to them his relation to the property taken for the improvement, till he had received a notice specifically directed to him, and personally served on him by some proper officer, and that if he was not so notified and served with notice of the proceedings he was entitled to recover. The proceedings for the widening of the street in question were taken under Pub. Stat. E. I. cap. 64, §§ 32 to 46. The only section of the statute which provides for personal notice is § 35. This requires that the town council or board of aldermen, as the case may be, shall, within fourteen days after the making of their report by the commissioners, cause personal notice to be served on all persons named in the report, residing in the State. As the plaintiff did not appear before the commissioners or make known to them his in-' terest in the land, damages for the taking of which he sues, his name is not included in the report, and hence there was no occasion for the service of personal notice on him of the filing of the report of the commissioners directed by § 35. Sections 32, 33. and 34, which regulate the proceedings preliminary to the report of the commissioners, provide merely for notice to parties interested in the land. Section 43 directs that notice under these sections shall be .given by publication each week for two succeeding weeks in at least *277 two newspapers, such as the town council or board of aider-men may order, and by posting three or more copies of the notice in conspicuous public places on or near the place of the proposed improvement. As the interest of a tenant from month to month or from year to year in the land is created usually by an oral letting, and consequently does not appear in the land records, it would scarcely be practicable for a town council or board of aldermen, as the case may be, or for the commissioners of estimate and assessment, to ascertain the holder of such an interest, and to give him personal notice of the proceedings. The statute, therefore, wisely provides merely for notice of the proceedings by publication and the posting of copies of the notice. Having given the notice prescribed by § 43, the commissioners were authorized to hear and determine the claims of all persons interested in the land sought to be appropriated, and opportunity was afforded for all such persons to appear and be heard. By the publication of the notice in the newspapers and the posting of copies of it, as directed by the statute, the plaintiff had constructive, if not actual, notice of the meeting of the commissioners. It was his duty to have attended that meeting, and to have presented his claim. If he had done this, and the commissioners had disallowed his claim and had reported its disallowance, he would have been entitled to personal notice of the filing of their report, provided for in § 35, and could have filed his notice of intention to claim a jury trial and his claim for such trial, and thus had his claim for damages passed on by a jury : Or, if the commissioners had ignored his claim and omitted it from their report, he would have been in a position, having first presented his claim to the city council, as required by the statute, to maintain an action of trespass on the taking of the land. Pettis v. City of Providence, 11 R. I. 372. But having failed to appear before the commissioners in response to the notice, he cannot now be permitted to urge that the proceedings were unauthorized and to assert a claim for damages for the taking of the land. Brown v. County Commissioners of Essex, 12 Met. 208. *278 Charles E. Gorman & Peter J. Quinn, for plaintiff. Thomas P. Barnefield, for defendant. Defendant’s petition for a new trial' granted and case remitted to the Common Pleas Division with direction to render judgment for the defendant for costs.