Demers v. City of Montpelier

• Decision Date: 06 May 1958
• Docket Number: No. 1854,1854
• Citation: 120 Vt. 380,141 A.2d 676
• Court: Vermont Supreme Court
• Parties: Perley R. DEMERS, Corinne Demers v. CITY OF MONTPELIER.

Page 676

141 A.2d 676

120 Vt. 380

Perley R. DEMERS, Corinne Demers v. CITY OF MONTPELIER.

No. 1854.

Supreme Court of Vermont.

May 6, 1958.

Joseph W. Foti, Montpelier, (Charles J. Adams, Waterbury, of counsel) for plaintiff.

John D. Paterson, Montpelier, for defendant.

Before CLEARY, C. J., and HULBURD, HOLDEN and SHANGRAW, JJ. and BARNEY, Superior Judge.

HOLDEN, Justice.

This appeal is brought by the City of Montpelier. It concerns the issue of just compensation for taking an improved road together with water and sewer systems installed below the surface of the roadway.

From facts unchallenged by either side it appears the plaintiffs Demers are the owners of a tract of land in Montpelier, located west of Mountain View Street in that city. In 1951 the plaintiffs caused the area to be surveyed. The survey divided the tract into a plan of lots located along a strip of land, forty feet in width. The strip was designated as 'Mountain View Street Extension' on the plan. The plan was filed in the office of the city clerk November 4, 1952. The lots in the tract were sold to different purchasers. Each of the parcels sold was described by reference to the plan. A right of way was granted to the several grantees to afford access to the land conveyed across the area shown on the plan as Mountain View Street Extension. Although the easements are differently stated in the various grants, in general, it is provided that the right of way over the proposed street shall continue until such time as the City accepts the way as a public street.

In a deed of September 1952, the plaintiffs agreed to comply with the requirements of the City, necessary to obtain acceptance of the proposed street by the City. By this conveyance, the plaintiffs agreed to lay a water pipe line to supply water to the lot purchased. A later grant in 1954 provided that the grantors would lay a pipe line to supply water to the conveyed premises 'so that the same may be accepted by the City of Montpelier.' In one instance the plaintiffs entered into a separate undertaking with the purchasers of one lot to install water and sewer lines to enable connection with the Montpelier water and sewer systems.

Mountain View Street Extension was surveyed, constructed, and the water and sewer lines installed in the ground entirely at the expense of the plaintiffs. Although employees of the City performed some labor and services in the project, the City was fully reimbursed by the plaintiffs.

On January 26, 1955, the City Council, by action expressed in formal resolution determined that 'the convenience of the inhabitants and the public good required the construction of a public street or highway in the City of Montpelier, which highway would be an extension of an established street in the City of Montpelier known as Mountain View Street.' The resolution further states the construction proposed requires the taking of land and rights. February 9, 1955, was appointed as the 'time for examining the land and rights to be acquired--and for hearing all parties interested.' The city clerk was directed to issue citation and notice to persons interested according to the provisions of the city charter.

By subsequent resolution dated February 25, 1955, it is reported that the plaintiffs appeared after service of the citation previously ordered, and evidence was taken. The resolution further states that 'from the evidence presented that the land proposed to be taken including sewer and water lines under said land, which sewer and water lines are connected with the sewer and water systems of the City of Montpelier are subject to the right of passage and use by the owners of several different parcels of land adjoining the proposed street.' The resolution recites: 'it appears that the said Perley Demers and Corinne Demers have in effect dedicated the land and sewer and water lines for public use, at least until such time as the City of Montpelier should accept same as a City Street and as a part of their sewer and water systems.'

A concluding paragraph of the resolution sets forth: 'That in consideration of the facts that the land and rights here taken are subject to the right of use by several adjoining land owners, and that such land has been set apart by the said Perley Demers and Corinne Demers as a street or highway, the City Council finds that the said Perley Demers and Corinne Demers will not be damaged by the taking and acceptance by the City of the land and rights so taken and accepted.'

The plaintiffs appealed the result of the action taken by the City Council by petition to the Washington County Court as provided by § 5039 V.S. 47, Chapter 236. A commission was appointed, the parties heard, and a report filed. The commissioners concluded that the plaintiffs were not entitled to any compensation or damages. At the hearing before the court on the report, the City urged its acceptance on the ground that the plaintiffs had dedicated the road, water and sewer lines to the public use. The plaintiffs denied this claim and sought the costs they had incurred for surveying the road, putting in gravel, and their cost of laying the sewer and water mains under the highway.

The court rejected the report of the commissioners as to compensation, made findings and entered judgment for an amount that represented the construction costs of the highway, sewer and water lines.

The City, appealing the action by the county court, stakes its claim of error on the undisputed facts reported above. It claims the survey of the tract and its record together with the conveyances and agreements by the plaintiffs with their several grantees constitute an intention to dedicate the property to the public use, as a matter of law. It relies on the resolution of the City Council of February 25, 1955 as an acceptance of the dedication by the City. It contends the legal consequence of the dedication and acceptance relieve the City of any liability to pay compensation to the plaintiffs for the property taken.

By authority conferred by the Legislature in the defendant's charter, the City Council of Montpelier has been vested with the power of eminent domain to lay out and establish highways, sewer and water systems. The defendant's charter provides that this power shall be exercised in the same manner prescribed for selectmen of towns in laying out and establishing highways. Persons aggrieved by the action of the City Council, in the performance of these functions, are afforded the same redress by appeal to county courts as in the case of persons adversely affected by action of selectmen in taking lands for town highways. Acts of 1912, § 63, subsections 37, 70, 75 and 77.

The establishment of town highways by the selectmen and appeals from their decision by petition to the county courts is governed by V.S. 47, Chapter 236. In re Petition of Jacobs, 116 Vt. 11, 12, 68 A.2d 710.

The resolution of the City Council of February 25 sets forth that 'the City Clerk was directed to issue a citation and notice, in accordance with the provisions of the Charter of the City of Montpelier and the law, containing the names of all persons interested and properties to be affected by the proposed construction;----'. The course of conduct followed by the City Council, including the formal adjudication of 'public good and convenience', the examination of the premises, the hearing of interested parties, the taking of evidence and the survey by the City Engineer, bear unmistakable identification and conformity to §§ 5021-5023 of Chapter 236. The appeal that resulted from the decision of the Council followed the statutory course provided in §§ 5039-5041, of the same chapter.

The record in its entirety establishes, without room for equivocation, that the action commenced by the Council against the land in question is founded in the exercise of the power of eminent domain for purposes entrusted to the Council by statute. It was so treated by all the parties and the court as well.

A public way is established by statutory condemnation or by dedication and acceptance. Town of Springfield by Newton, 115 Vt. 39, 43, 50 A.2d 605; Hyde v. Town of Jamaica, 27 Vt. 443, 454. Dedication is the setting apart of private lands for public use. But neither the dedication of the property nor the use by members of the public generally, will transfer private property rights and liabilities into the public domain. There must be an affirmative acceptance and adoption of the land previously dedicated by the private owner by the duly constituted public officers. Town of Springfield v. Newton, supra, 115 Vt. at pages 45-45, 47, 50 A.2d at pages 608-609, 610; Way v. Fellows, 91 Vt. 326, 329, 100 A. 682.

Admittedly, in the case before us there has been no acceptance by public authority prior to the commencement of these condemnation proceedings. The City's claim to acceptance is founded on the resolution of the Council of February 25, 1955. The resolution was made a month after the condemnation proceedings were started by vote of the Council on January 26, 1955.

The position thus assumed by the defendant seeks to convert a judicial proceeding, in invitum, into mere voluntary acceptance of an alleged voluntary dedication. Having resorted to statutory condemnation to acquire title to the plaintiffs' land, the City relies on dedication and acceptance to establish title in the municipal corporation. The plaintiffs' right to compensation cannot be extinguished by this method.

The City Council was not at liberty to proceed to condemn the plaintiffs' land, and within the framework of the condemnation proceeding itself, set up a paramount title in the City by dedication and acceptance. Village of Olean v. Steyner, 135 N.Y. 341, 32 N.E. 9, 17 L.R.A. 640; Colorado M. Ry. Co. v. Croman, 16 Colo. 381, 384, 27 P. 256; 2 Lewis, Em.Dom., 3d Ed. § 660 p. 1137; See also, 29 C.J.S. Eminent Domain § 266, p. 1239; 18 Am.Jur., Em.Dom., § 342, p....