City of Burlington v. Cent. Vermont Ry. Co.

• Decision Date: 16 January 1909
• Citation: 82 Vt. 5,71 A. 826
• Court: Vermont Supreme Court
• Parties: CITY OF BURLINGTON v. CENTRAL VERMONT RY. CO. et al.

71 A. 826

82 Vt. 5

CITY OF BURLINGTON

v. CENTRAL VERMONT RY. CO. et al.

Supreme Court of Vermont. General Term.

Jan. 16, 1909.

Exceptions from Chittenden County Court; Seneca Haseltine, Judge.

Condemnation proceedings by the City of Burlington against the Central Vermont Railway Company and others. From a judgment refusing to dismiss the proceedings, defendants bring exceptions. Affirmed and remanded.

Argued before ROWELL, C. J., and TYLER, MUNSON, and WATSON, JJ.

J. H. Macomber, City Atty., and R. E. Brown, for plaintiff.

C. W. Witters and H. H. Powers, for defendants.

ROWELL, C. J. This is an appeal from proceedings by the city of Burlington to acquire by the right of eminent domain certain lands and premises on the shore of Lake Champlain belonging to the defendants, for the purpose of a public wharf. The proceedings are under No. 262, p. 350, Acts of 1906, which purports to authorize the city, as the convenience of the inhabitants and the public good may require, to construct and maintain upon the shores of said lake within the limits of said city, or in the waters of said lake adjacent thereto, a public wharf, and to keep the approaches thereof at all times in a proper and safe condition for the landing, loading, and unloading of boats and vessels, subject to the Constitution of the United States and the laws made in pursuance thereof regulating commerce, and to the admiralty jurisdiction of the federal courts.

For the purpose aforesaid, the act further purports to authorize the city by its council, among other ways, to acquire and take by the right of eminent domain any lands necessary for such purpose, and provides that, when the council has occasion to exercise that right, it shall appoint a time for examining the premises and hearing the parties interested, and give them reasonable notice of the time when and the place where it will consider the question of public convenience and necessity of its proposed action, and the claims of the respective parties for damages; and that, if after such examination and hearing the council adjudges that the convenience of the inhabitants and the public good require a public wharf and the taking of land therefor, it shall so award, and shall also award each party owning or interested in property so taken and used the amount of damages to which it adjudges him entitled, and cause its award to be filed in the office of the city clerk, and recorded in the land records thereof.

The act further provides that any person dissatisfied with the award of the council may appeal therefrom to the county court of the county for a rehearing as to the necessity and convenience of the proposed action of the council, and the taking of land or other property therefor, and the damages awarded, and that such proceedings shall be had in said court as are provided by law for the assessment of damages for land taken for highways; but that nothing in the proceedings shall prevent the council from entering upon such lands and constructing and maintaining such wharf after its award is made, and the amount thereof tendered as provided, when the appeal is upon the question of damages only.

Before any action is taken by the council under the act, a meeting of the voters is to be called, to see if the city will vote to procure, by construction or otherwise, and maintain, a public wharf in accordance with the act; and if it does so vote, then the council is to carry the vote into effect, and may borrow money therefor on the credit of the city.

The defendants moved to dismiss the proceedings, for that, among other things not now insisted upon, the city has no lawful right to build, maintain, and operate a public wharf, and become a public wharfinger; and for that said act is invalid and void because it purports to confer upon the city the primary right to determine the necessity for such wharf, the extent of the taking, and the damages to the landowners, and consequently is not due process of law.

First, as to the right of the city. The defendants concede that a municipality may be authorized by law to construct and operate a private wharf; that it may provide any proper facilities for loading and unloading goods, like coal for its schools, public buildings, etc., as an individual might do; but say that to enter upon any public business is...