Berry v. Town of Mendenhall

Cook, J., delivered the opinion of the court. The town of Mendenhall, by an order entered upon the minutes of the town board, vacated and closed certain streets of the town, “same to remain closed until the public interest might demand reopening.” Subsequent to ■this order one of the original petitioners for the closing ■of the streets circulated a petition to the board of mayor :and aldermen, asking that its former order be rescinded. The board granted this petition also, and passed an order rescinding its former action in closing the streets, and ordered the marshal to proceed to reopen the closed streets. Appellant, an owner of lots abutting upon the closed streets, in the meantime had inclosed the streets with a fence, erected building's, and made other improvements thereon. When the marshal undertook to enforce the orders of the board, appellant filed his bill in the chancery court praying for a writ of injunction restraining the town from attempting to reopen the streets. A temporary injunction was granted, but upon final hearing the injunction was dissolved and the bill dismissed. [103] Numerous questions are raised by the briefs on both sides, but all of them will be passed over without discussion, save the one which we think is the determinate point in the litigation. By section 3336 of the Code of 1906 boards of mayor and aldermen of towns are given the power to close and vacate streets, and it was by the authority of this section that the streets were closed. There is no doubt about the power of the boards of towns to reopen closed streets, but can they do so, except by eminent domain proceedings? The attempt here was to reopen the streets by rescinding the order closing' them, and it is contended for the town that this right was expressly reserved in its former order. It will be observed that the statute authorizing town authorities to close and vacate streets does: not give such boards authority to close streets conditionally. The weight of authority is upon the side that towns, without express authority in the statute, cannot close streets and reserve the right to reopen them without compensation to abutting property owners. Cheshire Turnpike v. Stevens, 10 N. H. 133; Hammer v. Elizabeth, 67 N. J. Law, 129, 50 Atl. 451. The rule as announced by these authorities appears to us to be the wise rule. If boards: of aider-men were permitted to close and reopen streets at their will and pleasure, the status of affairs would be uncertain, and the ownership of the fee in the soil embraced within the closed streets would remain forever in abeyance, and we think this would be intolerable. jReversed and remanded.