George D. Nelson Et Ux. v. State Highway Board
| Decision Date | 04 October 1938 |
| Citation | 1 A.2d 689,110 Vt. 44 |
| Parties | GEORGE D. NELSON ET UX. v. STATE HIGHWAY BOARD |
| Court | Vermont Supreme Court |
May Term, 1938.
Appeal from State Highway Board in Condemnation Proceedings---1. Question Whether Certain Damages Compensable Held Properly Raised---2. Scope of Exception to Judgment---3. Damages for Re-Laying Pipe Properly Allowed---4. Effect of Waiver in Argument of Claim Briefed---5. Scope of Review as to Fact Found by Lower Court---6. Question Whether Damages from Diversion of Traffic Compensable Held Reviewable---7. Applicability of Market Value Rule Where Land Taken for Highway---8. Landowners Not Entitled to Compensation for Damages from Diversion of Traffic---9. Trunk Line Highways Not Built for Enhancement of Property Values---10. No Individual Has Vested Interest in Benefits from Public Travel Along Highway.
1. On appeal to county court from proceedings before state highway board seeking to take land for highway purposes, where items making up total damages awarded by court on basis of commissioners' report were found as facts by court and set out in its order, and where highway board saved exceptions to such order and to judgment entered thereon question whether certain items included in damages awarded were compensable as matter of law was properly raised below and was for consideration in Supreme Court.
2. On such appeal, while exception to judgment did not reach questions as to evidence upon which findings were based, it did raise question as to whether findings themselves were sufficient in law to sustain judgment rendered thereon.
3. On such appeal, item of damages for re-laying pipe to spring was properly allowed.
4. On such appeal, item of damages which highway board claimed in its brief was not properly compensable was not for consideration in Supreme Court where board in argument waived any claim of error in respect thereto.
5. Where question under consideration is fact to be determined in discretion of lower court, Supreme Court will not exercise its revisory power, but where error claimed is one that affects substantial justice of case or legal right of party so as to become question of law upon facts reported Court has authority to and will consider matter.
6. On appeal to county court from proceedings before state highway board seeking to take land for highway purposes, question whether item of damages awarded by court for diversion of traffic from in front of landowner's buildings was compensable as matter of law affected substantial justice of case and was question of law, so as to be reviewable by Supreme Court, as against contention that Court had no authority to review such item because right to compensation for other items of damages awarded was conceded.
7. Care must be exercised in applying market value rule in ascertaining damages for taking of land for highway purposes because there are many injuries resulting from opening of streets and roads for which landowners cannot receive compensation, so that allowance for such injuries in determining market value of land remaining after part of parcel has been taken for road would not be correct in law.
8. Diversion of traffic from in front of buildings to new route some distance in the rear thereof did not constitute invasion of landowners' rights nor result in legal injury to that part of their land remaining after portion thereof was taken for such route, so as to entitle them to compensation for damages suffered by reason of such diversion.
9. Trunk line highways are built and maintained to meet public necessity and convenience in travel and not for enhancement of property of occasional landowners along the route.
10. Benefits which come and go with changing currents of public travel are not matters in which any individual has vested right against judgment of public officials charged with duty of building and maintaining highways.
APPEAL to county court from decision of state highway board in proceedings under P. L. Ch. 200 to take land for highway purposes. The highway board found that such taking was necessary and awarded damages therefor. The owners of the land involved appealed both on the question as to the necessity of the taking and on the damages awarded. Pursuant to P. L. 4712 the county court appointed three commissioners to hear the case, who duly returned their report. Heard on the commissioners' report in vacation after the June Term, 1937, Windsor County, Shields, J., presiding. The court rejected the finding of the commissioners that the proposed relocation of the road was not necessary, found that the taking was necessary and found damages in accordance with the finding made by the commissioners with respect thereto in case the land were to be taken. Thereupon the court issued its order condemning the land in question for highway purposes and awarding damages as found, and entered judgment on the order. The state highway board excepted. The opinion states the case.
The judgment of the county court as to the taking of the lands described is affirmed. Judgment of said court as to damages awarded and as to time of payment of same is reversed. The case is remanded to the court below with direction that judgment be entered in accordance with the result herein obtained and that said court fix a time for the payment of the $ 2,500 allowed as damages. Let the state highway board recover its costs in this Court.
Lawrence C. Jones, Attorney General, and Alban J Parker, Deputy Attorney General, for the state highway board.
Louis G. Whitcomb and Neil D. Clawson (Edward C. Barry on the brief) for the appellant landowners.
Present: MOULTON, SHERBURNE, BUTTLES and STURTEVANT, JJ., and JEFFORDS, Supr. J.
The State brings exceptions to certain rulings of the Windsor county court and claims error in the amount of damages awarded in proceedings seeking to take certain lands for highway purposes.
In April, 1937, the state highway board held a hearing at Springfield, Windsor County. The matter considered was the necessity for taking certain lands and compensation to be paid therefor in connection with the construction of a highway in the town of Springfield, viz., for changing the course or location of a portion of the highway known as U.S Highway No. 5 in said town of Springfield. This report shows that said board found that the taking of certain lands was necessary for said purpose and fixed the compensation to be paid to the several owners for same. The report contains a survey of the lands to be taken. This survey shows that the proposed project requires the taking of 3.451 acres of land belonging to plaintiffs George D. Nelson and Lula P. Nelson.
The Nelsons own a farm located on the westerly side of the Connecticut River in said town of Springfield. U.S. Route No. 5 now follows along the westerly bank of the river past the the buildings on said Nelson farm, said road passing between the buildings and the river. The general direction of said highway past the Nelson house is from southwest to northeast. The location of the proposed new road is approximately as follows: Beginning at a point in U.S. No. 5 about 5,550 feet southwesterly of the said Nelson house, which point is about 4,000 feet southwesterly from the southerly boundary of said Nelsons' land, thence westerly of said U.S. Route No. 5 as now located in a general northerly direction and gradually leading away from said present road to a point on said Nelsons' land about 1,600 feet westerly of said Nelson house where said route begins to approach nearer to said present highway and comes into it at a point about 3,500 feet northeasterly of said Nelson house, which point is about 3,000 feet northeasterly from the northerly boundary of said Nelsons' land. The approximate length of the new road is two miles and when completed this new route will become a part of U.S. Route No. 5. The present highway leading past the Nelson place is to be turned back to the town. The road from where the proposed new route leaves the present route U.S. No. 5 to where it again joins same as above stated will not be on U.S. No. 5 but will be a town road after this proposed project is completed.
The Nelsons took an appeal from the decision of the highway board to the Windsor county court on both the question as to the necessity for taking their land and the damages awarded. The court appointed commissioners to hear the case and these commissioners duly returned their report to the county court. This report shows that the commission found:
"That the proposed relocation is not necessary for the convenience of individuals or of the State."
That if the land of said Nelsons were to be taken as proposed in said petition damages should be awarded to them as follows:
1,600.00
Consequential damages due to the use of
appellant's land in question as a new route for the
main stream of public travel, 1,600 feet in the
rear of the appellant's buildings instead of
directly in front of them as at present
4,500.00
The state highway board, the appellee in the original appeal to the county court, brings the case to this Court and has briefed two points of claimed error, viz.:
1. "The Court erred in its refusal to consider the question of admissability of various items of evidence taken by the commission and having to do with the damages...
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