City of Winooski v. State Highway Bd.

• Citation: 124 Vt. 496,207 A.2d 255
• Decision Date: 02 February 1965
• Docket Number: No. 329,329
• Parties: CITY OF WINOOSKI v. STATE HIGHWAY BOARD.
• Court: United States State Supreme Court of Vermont

Page 255

207 A.2d 255

124 Vt. 496

CITY OF WINOOSKI v. STATE HIGHWAY BOARD.

No. 329.

Supreme Court of Vermont.

Feb. 2, 1965.

Rehearing Denied Feb. 17, 1965.

Harry L. Goetz, Winooski, for plaintiff.

Joseph E. Frank, Burlington, for defendant.

Before HOLDEN, C. J., SHANGRAW, BARNEY and SMITH, JJ., and BROOKS, Superior Judge.

HOLDEN, Chief Justice.

This appeal presents four questions of law certified by the Chittenden County Court in a highway condemnation proceeding. The questions for review were framed from facts established in a pretrial order prior to the hearing on the issue of damages.

Prior to August 17, 1961, the plaintiff, City of Winooski, owned forty-nine acres of land which it used in connection with the operation of its municipal water system. The defendant condemned 3.4 acres of this land for highway construction.

The land was taken in fee simple and included 2.3 acres from the plaintiff's water shed. The remaining 1.1 acres were taken from land outside the water shed area. It was agreed that the plaintiff was entitled to be compensated for land taken from its water shed according to a specific formula to establish the replacement cost of water per thousand cubic feet to the acre of water shed.

The plaintiff did not own the fee to all of the water shed which served its water system. Included in its water shed was 3.9 acres of land in the town of Colchester which the defendant acquired by eminent domain from Frank and Maria Bernardini. Compensation for taking the Bernardini lands was awarded the owners by order of the highway board on May 13, 1961. Similarly, compensation for 1.9 acres taken from the plaintiff's water shed was awarded to the Winooski Graded School District as the owner of that particular parcel, on May 15, 1961.

By pre-trial stipulation the plaintiff conceded that it had never acquired any interest in either of these parcels prior to the time they were taken by the defendant. It was further conceded that there are no defined streams flowing from these lands. However, the plaintiff claims compensation for the loss of surface water which heretofore flowed from the combined 5.8 acres to supply its reservoir.

The plaintiff also maintains that its charter conferred upon it the authority to condemn these lands for the purpose of acquiring additional water supply. Although this power has never been exercised, the city claims the seizure of these lands deprived the water department of its inchoate right to later condemn these lands thereby imposing a compensable loss within the highway condemnation law.

The court below dismissed both aspects of the city's claim and passed the question for review before final judgment pursuant to 12 V.S.A. § 2386.

A condemnation proceeding to appropriate property for a public use is essentially an action in rem. The power of eminent domain acts upon the land itself. 'Ordinarily an unqualified taking in fee by eminent domain takes all interests and as it takes the res is not called upon to specify the interests that happen to exist. Whether or not for some purposes the new takers may be given the benefit of privity with the former holders, the accurate view would seem to be that such an exercise of eminent domain founds a new title and extinguishes all previous rights.' Holmes, J. in A. W. Duckett & Co. v. United States, 266 U.S. 149, 45 S.Ct. 38, 69 L.Ed. 216, 218; Emery v. Boston Terminal Co., 178 Mass. 172, 184, 59 N.E. 763; See, also, 18 Am.Jur. Eminent Domain, § 112, p. 738; 29A C.J.S. Eminent Domain § 209, p. 935.

The instant case is concerned exclusively with the 3.4 acres of land owned by the plaintiff at the time of the present taking and the lessening in value of the 45.6 acres which remained in the city. Damages which may have been visited upon the plaintiff in depriving it of the flow of surface water from lands owned by outsiders which have been the subject of separate and independent actions, are entirely beyond the jurisdictional reach of the instant case. The court below correctly dismissed the city's claim for damages resulting from the prior taking of the lands owned by Bernardini and the Winooski Graded School District.

The second aspect of the city's claim is to the effect that it has been deprived of the possibility of taking the same lands in some future condemnation proceedings for water shed purposes. Of course, it does not involve a property right. The plaintiff can have no vested interest in the power conferred upon it in its charter to take lands for water supply purposes.

The next question presented relates to the cost of reinforcing a dam which retains the waters in the city's upper reservoir. It appears from the records that the dam was located outside of the 3.4 acres condemned by the defendant.

It further appears that the city and the state entered into a separate 'utility' agreement wherein the highway board agreed to excavate an area in the upper reservoir which would be the equivalent to the storage area which would be lost as a result of the taking of the 3.4 acre parcel. To perform this undertaking required the plaintiff to lower the water level in the upper reservoir. The reduced water level caused damage to the earthen wall of the reservoir. The plaintiff seeks compensation for expenses incurred in repairing this damage. In its pre-trial order, the court below ruled that this claim for reimbursement was not compensable under the highway condemnation statutes, albeit that it might be recoverable in some other form of action.

19 V.S.A. § 221(2) is the statute which controls the plaintiff's compensation in this proceeding. It provides: 'Damages resulting from the taking or use of property under the provisions of this chapter shall be the value for the most reasonable use of the property or right therein, and of the business thereon, and the direct and proximate lessening in the value of the remaining property or right therein and the business thereon.'

This section requires the owner shall be compensated (1) for the value of the land taken, (2) for the value of the loss of business thereon, and (3) for damages resulting to the balance of the land remaining. Penna v. State Highway Board, 122 Vt. 290, 292, 170 A.2d 630.

It is at once apparent that the expense incurred in repairing the dam did not directly accrue from the taking. The upper reservoir was not disturbed. Neither is the loss reflected in the value of the land remaining after the removal of the 3.4 acre parcel.

Such loss as the city may have sustained is assignable to an agreement that is separate and apart from the defendant's power to...