Herbert W. Lorenz Et Ux. v. M. E. Campbell, Selectmen of Pownal

• Decision Date: 03 January 1939
• Citation: 3 A.2d 548,110 Vt. 200
• Parties: HERBERT W. LORENZ ET UX. v. M. E. CAMPBELL ET AL., SELECTMEN OF POWNAL
• Court: Vermont Supreme Court

3 A.2d 548

110 Vt. 200

HERBERT W. LORENZ ET UX. v. M. E. CAMPBELL ET AL., SELECTMEN OF POWNAL

Supreme Court of Vermont

January 3, 1939

Special Term at Rutland, November, 1938.

1.Eminent Domain Statutes Strictly Construed---2.Common Law Rules Not Changed by Doubtful Implication---3.Construction of Words of General Import---4. P. L. 3562 Held Not to Authorize Taking of Considerable Tract for Park.

1.Statutes authorizing taking of land by power of eminent domain are strictly derogatory of common right and no cases can be brought within them except such as come within their terms with imperative necessity.

2.Rules of common law are not to be changed by doubtful implication nor overturned except by clear and unambiguous language in a statute.

3.It is a rule of construction that when words of a particular description are followed by words of general import the latter can be held to include only things similar in character to those specifically named.

4. P L. 3562, authorizing selectmen of town to lay out "a public park or a public square * * * * for the erection of a soldier's monument or other public purpose" and to take land therefor by right of eminent domain, authorizes taking only of plot of land suitable for erection of soldiers' monument or like or similar purpose, so that attempted taking by selectmen for park purposes of pond more than twenty acres in area and of about ten acres of land adjacent thereto was not within authority granted by the statute.

PETITION to county court seeking to have quashed proceedings by selectmen purporting to lay out public park in accordance with provisions of P. L. 3562.Heard on the petition at the June Term, 1938, Bennington County, Shields, J., presiding.Judgment that the proceedings be quashed and held null and void for lack of jurisdiction.The petitionees excepted.The opinion states the case.

Judgment affirmed.Let plaintiffs recover their costs in this Court.

Victor A. Agostini and Neil D. Clawson for the petitionees.

Edward H. Holden for the petitioners.

Present MOULTON, C. J., SHERBURNE, BUTTLES, STURTEVANT and JEFFORDS, JJ.

OPINION

STURTEVANT

In January, 1938, a fifth and more than fifty of the freeholders of the town of Pownal, Vermont, submitted to the selectmen of said Pownal a petition.This petition sets forth that the persons whose names are appended thereto "* * * * desire to have a public park laid out in said Town for public purposes, and for the public good and convenience or necessity of individuals, or of the public, and for the use of the public; we therefore, request the Selectmen of the Town of Pownal, pursuant to Section 3562 of Chapter 146 and Chapter 202 of the Public Laws of the State of Vermont, to lay out a public park in said town of Pownal, consisting of 'Lake Potter,' sometimes called 'Barber's Lake' or 'Perch Pond,' being situated on the easterly side of said Town of Pownal, with such land along the brook flowing into said pond, being the inlet thereof, and such land on the northerly and easterly sides of said pond as may be necessary for the purposes of said public park."

Section 3562 of the Public Laws, by authority of which the petitioners seek to have lands set out for the purposes of a park, is as follows: "LAYING OUT PARKS.Sec. 3562.Application; procedure.A fifth or fifty or more of the freeholders of a town, desiring to have a public park or a public square laid in such town for the erection of a soldiers' monument or for other public purpose, may apply by petition in writing to the selectmen of the town requesting them to lay out such park or square."This section also contains provisions as to procedure, etc.

The selectmen of said town of Pownal, claiming to act by authority of said statute, proceeded to set out all of that body of water located in said town of Pownal known as "Lake Potter," and containing an area of more than twenty acres, also about ten acres of land adjacent to said lake, said thirty acres so set out to be used as a public park.

The plaintiffs, Herbert W. Lorenz and Gertrude H. Lorenz, brought their petition to the June term of Bennington countycourt, seeking to have the proceedings of said selectmen in setting out said lands for the above mentioned purposes quashed and held null and void for the reasons: (1) Lack of statutory authority to take private property for the purposes specified; (2) failure to give adequate notice of the condemnation proceedings.

The plaintiffs are owners in fee of certain real estate in said town of Pownal subject to certain mortgages as appear of record in the land records of said town of Pownal and they also have a leasehold estate in the body of water in said town of Pownal sought to be taken for the purposes of a park in the proceedings hereinbefore mentioned.

After full hearing on plaintiff's petition, the court quashed the proceedings of the selectmen in laying out said lands for park purposes and held said proceedings null and void for lack of jurisdiction, first, because there was no statutory authority authorizing said acts of said board of selectmen; second, that interested parties were not given proper notice.To this judgment the defendants excepted and the case is here for our consideration.

We first take up the question of statutory authority of the selectmen to set out said lands for the purposes of a public park.

In the case of Farnsworth v. Goodhue, 48 Vt. 209, 211, in speaking of statutes authorizing the taking of land by the power of eminent domain, this Court stated: "But such statutes are strongly derogatory to common right and no cases can be brought within them except such as come within their terms with imperative necessity."

The rules of common law are not to be changed by doubtful implication nor overturned except by clear and unambiguous language.Coral Gables, Inc. v. Christopher, 108 Vt. 414, 418, 189 A. 147, 109 A.L.R. 474;State v. Shaw, 73 Vt. 149, 171, 50 A. 863;State v. Central Vermont Railway Company, 81 Vt. 459, 462, 71 A. 193, 21 L.R.A. (N.S.) 949;State v. Hildreth, 82 Vt. 382, 384, 74 A. 71, 24 L.R.A. (N.S.) 551, 137 Am. St. Rep. 1022, 18 Ann. Cas. 661;In re Dexter, 93 Vt. 304, 312, 107 A. 134.

In P. L. section 3562, the statute which we are considering, the words "for the erection of a soldiers' monument" are followed by words of a more general meaning, namely, "or for other public purpose."

It is a rule of construction that when words of a particular description are followed by words of general import the latter can be held to include only things similar in character to those specially named.Allen v Berkshire Mut. Fire Ins. Co., 105 Vt. 471, 477, 168 A. 698, 89 A.L.R. 460;Cross v....