Gloss v. Delaware & H. R. Co.
| Citation | 378 A.2d 507,135 Vt. 419 |
| Decision Date | 12 September 1977 |
| Docket Number | No. 95-76,95-76 |
| Court | United States State Supreme Court of Vermont |
| Parties | Joseph GLOSS, Lou Gloss, Edward Hawthorne and Jeannette Hawthorne v. The DELAWARE AND HUDSON RAILROAD COMPANY. |
DeBonis & Wright, P. C., Poultney, for plaintiffs.
Sullivan & McCaffrey, Rutland, for defendant.
Before BARNEY, C. J., and DALEY, LARROW, BILLINGS and HILL, JJ.
Plaintiffs own land in Poultney, bordering on the railroad right of way of the defendant. Sometime prior to May, 1973, plaintiffs brought a written complaint to the Public Service Board about the ditch and fence between their properties and their maintenance, under 30 V.S.A. § 1474. Hearing was set by the Board for May 3, 1973, at which time the attorneys for the parties informed the hearing examiner that they had resolved their differences and the petition would be withdrawn. They agreed to, and later did, furnish the Board with written copies of their "Stipulation for Discontinuance," which agreed to a discontinuance and set forth verbatim their settlement agreement. In general, the agreement called for the making of stated repairs by the railroad, with ditch drainage and disposition of ditched material. It also called for a monetary payment to the plaintiffs, which has been made. No formal order of discontinuance was made by the Public Service Board. In December, 1973, plaintiffs brought suit in Rutland Superior Court. Count I of their complaint alleged a violation of 30 V.S.A. § 1474 by failure to maintain an adequate, properly located fence; Count II alleged a breach of the outlined settlement agreement.
The trial court found the foregoing facts, and dismissed the cause for lack of jurisdiction, concluding that the Public Service Board had original jurisdiction under 30 V.S.A. § 1481 to make an order about the matters complained of, and under 30 V.S.A. § 1482 to impose fines for non-compliance and award damages to the parties aggrieved. It held that, absent a final order or determination by the Board, the court was without jurisdiction.
The duty of the defendant to maintain a good and sufficient fence between the properties of the parties, under 30 V.S.A. § 1474, is unquestioned. The statute so provides in unequivocal language. 30 V.S.A. §§ 1480, 1481, also clearly outline the procedures followed by the plaintiffs before the Board, and its right to make a written order requiring fence construction and maintenance. The Board was properly resorted to in the first instance for these purposes, and were the matter still pending, in the legal sense, before that Board the exercise of jurisdiction by the superior court would be reversible error, even with concurrent jurisdiction conferred upon it by statute. City of South Burlington v. Vermont Electric Power Co., 133 Vt. 438, 448, 344 A.2d 19 (1975). But we cannot agree with the contention of the defendant that the matter still is pending before the Public Service Board, absent a formal entry of discontinuance. The general law seems to be the other way, that when all parties who are concerned and competent stipulate to a discontinuance, the discontinuance thereby becomes effective. See 24 Am.Jur.2d Dismissal, Discontinuance, and Nonsuit § 7. Our own civil rules make a similar provision, even though not binding upon proceedings before administrative bodies. V.R.C.P. 41(a)(1)(ii). And, more particularly, we so construe 3 V.S.A. § 809(d), relating to contested cases before administrative bodies and providing for "informal disposition" in precisely the manner here followed:
(d) Unless precluded by law, informal disposition may be made of any contested case by stipulation, agreed settlement, consent order, or default.
This provision seems clear on its face. Both the stipulation and the agreed settlement were entered into by the parties, and placed upon record. Whatever the prior legal requirements, this provision seems to countenance the procedure followed before the Board. As a result, there was a "disposition," however "informal," and the matter was no longer pending before the Public Service Board when the superior court action was brought. The trial court's refusal to entertain jurisdiction upon this ground was error and requires reversal for new trial, at least so far as Count II, seeking...
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...177 Vt. 115, 858 A.2d 249. Jurisdiction is accordingly not "presumed in favor" of an agency's jurisdiction. Gloss v. Del. & Hudson R.R., 135 Vt. 419, 422, 378 A.2d 507, 509 (1977). Nothing indicates that the Legislature conferred the PUC with jurisdiction to adjudicate Open Meeting Law viol......
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In re Acorn Energy Solar 2, LLC
...Farm, 2004 VT 72, ¶ 10. Jurisdiction is accordingly not "presumed in favor" of an agency's jurisdiction. Gloss v. Del. & Hudson R.R. Co., 135 Vt. 419, 422, 378 A.2d 507, 509 (1977). Nothing indicates that the Legislature conferred the PUC with jurisdiction to adjudicate Open Meeting Law vio......
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...jurisdiction as is conferred on them by statute, with nothing presumed in favor of their jurisdiction." Gloss v. Delaware & Hudson R.R., 135 Vt. 419, 422, 378 A.2d 507, 509 (1977) (citing In re Lake Sadawga Dam, 121 Vt. 367, 370, 159 A.2d 337, 339 In the Suitor case we dealt with the validi......
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