Horton E. Doty v. Village of Johnson

• Decision Date: 11 October 1910
• Citation: 77 A. 866,84 Vt. 15
• Parties: HORTON E. DOTY v. VILLAGE OF JOHNSON
• Court: Vermont Supreme Court

77 A. 866

84 Vt. 15

HORTON E. DOTY v. VILLAGE OF JOHNSON

Supreme Court of Vermont

October 11, 1910

May Term, 1910.

APPEAL IN CHANCERY. Heard on the pleadings and finding of facts made by the Chancellor, at the December Term, 1909, Lamoille County, Hall, Chancellor. Decree dissolving the temporary injunction and dismissing the bill. The orator appealed. The opinion states the case.

Decree reversed and cause remanded with mandate.

F G. Bicknell, T. C. Cheney and M. P. Maurice for the orator.

Present ROWELL, C. J., MUNSON, WATSON, HASELTON, and POWERS, JJ.

OPINION

WATSON

By No. 271 of the Laws of 1906, the defendant village was empowered to construct and maintain a new electric light plant for the purpose of lighting the streets, walks, and public grounds of the village, and any buildings therein. For this purpose the village was given the right to take or purchase, acquire and hold, any water power, land, rights of flowage, and rights of way in the town of Johnson needed for the construction, maintenance and operation of such plant, on payment of suitable damages or compensation as therein provided. Sec. 1.

On a vote being duly taken for that purpose, it was made the duty of the trustees of the village to construct and maintain such plant (Sec. 2, 4.), and in so doing they were given the power to take any water power, land, rights of flowage and rights of way of any person or corporation which might be necessary, and if the price thereof or the damage occasioned could not be agreed upon, or if the owner or owners should dispute the necessity for the taking, the trustees were authorized to exercise the power of eminent domain. Sec. 5. By No. 273, Laws of 1908, the defendant was authorized to extend its electric lines beyond its territorial limits for a distance not exceeding two miles in any direction, and to supply persons in the village and also within such two miles' limit with electric power and lights.

After the act of 1906 became effective, and on the 30th day of September, 1907, the village, through its trustees, entered into a contract with Parker & Stearns whereby the latter leased to the village for the term of ninety-nine years the first right to take water from the water privilege owned by the lessors and known as the Leland Starch Factory water power, the village "to use said water power for municipal lighting purposes and said village is to have the further right to use for commercial purposes one hundred fifty horse power." It was conceded that under this contract the village owns the right formerly owned by Parker & Stearns.

The defendant and its predecessors have owned and occupied this water privilege and have there maintained a dam across the Gihon river for more than forty years. No question is made but that the defendant has the right to erect and maintain a dam, where the one in question is, to the height of "two feet and eight inches above the highest point of a ledge upon which the dam now" (September 11, 1883) "stands, which point is about twenty feet from the southeasterly bank of said Gihon river." This point is marked by a pin, called in this case a "bench mark". The dam has been maintained at varying heights, but never more than two feet and eight inches above the "bench mark", until Parker & Stearns purchased it in 1900, when they made it three or four inches higher. Subsequently they put on flash boards, raising it from twelve to sixteen inches more. When the temporary injunction, issued September 28, 1909, was served the defendant was at work upon the wing, with the purpose of making it a part of, and as high as, the dam, which has been done; and the dam including the wing is from sixteen to twenty-two inches higher than two feet and eight inches above the "bench mark", it being higher at the southerly end than at the northerly.

The orator owns the land described in the bill, lying northerly and easterly of the dam, a part of which is pasture and the rest meadow. As against the orator, the defendant has a right to maintain the dam at what may be termed its normal height of two feet and eight inches above the "bench mark", but not higher; and the orator has the correlative right to insist that the stream shall flow in its natural channel and at its usual height or level, without obstruction or diversion other than as affected by the dam in question so maintained.

No easement by way of right of flowage is claimed by the defendant in the orator's land. Yet it fairly appears that raising the dam to its present height raises the level of the water in the stream and on the bank or shore of his land, and in times of high water causes it to set back upon or to flow a portion of the pasture and of the meadow. It follows that if the purpose of the taking, as shown by the legislative enactments under which the defendant installed and is operating such new plant, constitutes a public use, within the meaning of Art. 2, Chap. 1, of the State Constitution (a question not here decided), then the facts found show a taking of the orator's property for the use of the public without compensation and in violation of his constitutional rights. Winn v. Rutland, 52 Vt. 481; Foster v. Stafford National Bank, 57 Vt. 128. The Supreme Court of the United States has said that "where real estate is actually invaded by superinduced additions of water, earth, sand, or other material, or by having any artificial structure placed on it, so as to effectually destroy or impair its usefulness, it is a taking, within the meaning of the Constitution, and that this proposition is not in conflict with the weight of judicial authority in this country, and certainly not with sound principle." Pumpelly v. Green Bay Co., 13 Wall. 166, 20 L.Ed. 557; United States v. Lynah, 188 U.S. 445, 47 L.Ed. 539; 1 Lewis Em. Dom. 3rd Ed. Sec. 280.

It is urged that the chancellor has found that while there may be some slight damage to the orator in high water by reason of raising the dam, it is not irreparable, and is very slight as compared with the damage to the defendant if it is required to lower its dam to a point two feet and eight inches above the "bench mark". The force of this finding is materially lessened, however, when we consider that what damages are irreparable is a question to be decided, not as a fact, but by the court from the facts presented. McKinzie v. Mathews, 59 Mo. 99; Schuster v. Myers, 148 Mo. 422, 50 S.W 103. And the finding that the damages to the orator, consequent on the dam remaining at its increased height, are comparatively slight, measured by those to the defendant if required to lower it to normality, although a cogent fact for consideration in shaping the mandate to be sent down, has but little if any force upon the substantive equities involved, and none as against constitutional guaranties. The authority given to the village (Sect. 1) to "take or purchase, acquire and hold"...