Hooker v. Montpelier & W.R.R. Co.

• Citation: 19 A. 775,62 Vt. 47
• Parties: W. D. HOOKER v. MONTPELIER & WHITE RIVER RAILROAD CO
• Decision Date: 12 April 1890
• Court: United States State Supreme Court of Vermont

19 A. 775

62 Vt. 47

W. D. HOOKER v. MONTPELIER & WHITE RIVER RAILROAD CO

Supreme Court of Vermont

April 12, 1890

GENERAL TERM, OCTOBER, 1889.

This was a proceeding for the assessment of damages occasioned by the taking of the plaintiff's land for railroad purposes by the defendant. The case was heard on the report of commissioners at the September Term, Washington County, 1888 ROWELL, J., presiding. Judgment for the larger sum mentioned in the report. Exceptions by the defendant.

Judgment is affirmed.

S C. Shurtleff, for the defendant.

OPINION

Ross J.

This is a statutory proceeding for the ascertainment and recovery of damages occasioned by the taking of a part of the plaintiff's premises for the railroad of the defendant in the nature of a session proceeding, brought to this court on exceptions under the provisions of Act No. 90 of the laws of 1882, to be determined as though heard upon a petition for certiorari. Upon such a petition only questions affecting the essential rights of the parties will be considered. On these principles the only contention is whether the commissioners, in appraising the damages sustained by the plaintiff for the land taken should be confined to their value for farming purposes, the only use to which the plaintiff has actually put them, or whether they might legitimately consider, in determining the damages sustained, the present availability of the tract, a part of which was taken, for building purposes. The rule is well established that when a railroad corporation takes a portion of a parcel of land, under the right of eminent domain, for the construction of its railroad, it must pay the owner such a sum in money as will fairly compensate him for the damage he sustains. This sum is not to be determined by whether the owner, at the time of the taking, is using the parcel of land profitably or unprofitably, or not using it all. His present use may not be the best use to which the parcel can be put, nor is he bound to continue such use, or part with a part thereof, valuing the whole by such use alone. He is entitled t receive such a sum as will fully compensate him for the lessened market value of the premises occasioned by such taking. Its market value depends not wholly upon the use to which the owner is putting it, but upon the use or uses for which it is available at the time it was taken. If it is available for a marble or granite quarry, a coal or a gold...