Kelbro Inc. v. Myrick

• Decision Date: 05 January 1943
• Docket Number: No. 1714.,1714.
• Citation: 30 A.2d 527
• Parties: KELBRO, Inc., v. MYRICK, Secretary of State, et al.
• Court: Vermont Supreme Court

30 A.2d 527

KELBRO, Inc.,

v.MYRICK, Secretary of State, et al.

No. 1714.

Supreme Court of Vermont.

Jan. 5, 1943.

Exceptions from Washington County Court of Chancery; Charles B. Adams, Chancellor.

Suit in chancery by Kelbro, Inc., against Rawson C. Myrick, Secretary of State, and others for injunction against removing billboards. On defendants' exceptions to decree for plaintiff.

Decree reversed and judgment rendered in accordance with opinion.

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

Sylvester & Ready, of St. Albans, for plaintiff.

Clifton G. Parker, Deputy Atty. Gen., of Vermont, for defendant.

John J. Bennett Jr., Atty. Gen., of New York, William C. Chanler, Corp. Counsel of New York City, and Raymond P. McNulty, of Babylon, L. I., N.Y. (Henry Epstein, Sol. Gen. of New York, and Jeremiah M. Evarts, both of New York City, of counsel), for amici curiae.

BUTTLES, Justice.

The plaintiff corporation is engaged in the business of outdoor advertising for direct profit through rentals or compensation received for the erection, maintenance and display of painted bulletins, poster panels and other outdoor advertising devices, commonly called bill-boards, located upon real property at various places in the State of Vermont. In this suit in chancery the plaintiff prays for an injunction restraining the defendants, their agents, employes and representatives from removing certain bill-board structures erected and maintained by the plaintiff, because of alleged violations of certain provisions of the statutes regarding such structures, authority for such removal being claimed by the defendants under P.L. §§ 8352, 8353 and 8354, as amended Pub. Acts 1939, No. 221, § 7. The defendants demurred to the complaint and upon hearing the demurrer was overruled pro forma, the complaint adjudged sufficient and the defendants were enjoined until further order of the court, in accordance with the prayer of the complaint. The case comes to this Court upon the defendants' exceptions.

By their demurrer the defendants have admitted the following allegations of the plaintiff's complaint. The plaintiff has paid the fee required by P.L. § 8340 and has obtained from the Secretary of State the license required in order to engage in such business. It has erected and for a number of years has maintained bill-board structures designated as Numbers 304 and 308 on private property of one Seymour in the town of St. Albans on the easterly side of the highway known as Route 7; also a bill-board structure designated as Number 307 on private property of one Wood located on the westerly side of said highway. Each of these structures has been erected and maintained pursuant to written agreements between the plaintiff and the respective land owners. These bill-boards are not located in a city or incorporated village or in the thickly settled part of a town or in the business part thereof as defined by P.L. § 8338, as amended, Pub.Acts 1941, No. 187, § 1. They are each 24 feet long by ten feet high, having an area of 240 square feet each.

On April 18, 1942, the Secretary of State refused to issue a renewal of the permits previously issued to the plaintiff to maintain or display advertising matter on said bill-board structures, such refusal being based upon the ground that such structures were located within 300 feet of a highway intersection and within 240 feet from the center of the travelled part of the highway, in violation of provisions of P.L. § 8350, as amended, Pub.Acts 1939, No. 221, § 6. It is conceded that all three of the bill-boards are within the forbidden distance from the center of the highway and that Numbers 308 and 304 are less than 300 feet from a highway intersection. It is the plaintiff's contention, however, that the section of the statutes referred to together with other provisions of Chapter 332, hereinafter referred to by which greater privileges are accorded, under certain circumstances, to an advertiser who is not engaged in the business of outdoor advertising for direct profit than to one who is so engaged, deny to the plaintiff the rights guaranteed to it by the constitutions of the United States and of Vermont in that they deny equal protection of the laws to it, deny due process of law, and fail to provide compensation for the taking of its private property for public use.

The established rule is that every presumption is to be made in favor of the constitutionality of an act of the legislature and it will not be declared unconstitutional without clear and irrefragable proof that it infringes the paramount law. State v. Auclair, 110 Vt. 147, 156, 4 A.2d 107; Village of Waterbury v. Melendy et al., 109 Vt. 441, 447, 199 A. 236; Nebbia v. New York, 291 U.S. 502, 54 S.Ct. 505, 516, 78 L.Ed. 940, 89 A.L.R. 1469.

It is necessary to consider the exact nature of the plaintiff's alleged property rights which it claims have been invaded. It is obvious that something more is claimed than the mere right to erect and maintain bill-board structures upon lands adjacent to the highway. In its essence the right that is claimed is to use the public highway for the purpose of displaying advertising matter. This fact has been well stated by the Philippine Supreme Court which has said that “the success of bill-board advertising depends not so much upon the use of private property as it does upon the use of the channels of travel used by the general public. Suppose that the owner of private property *** should require the advertiser to paste his posters upon the bill-boards so that they would face the interior of the property instead of the exterior. Bill-board advertising would die a natural death if this were done, and its real dependency not upon the unrestricted use of private property but upon the unrestricted use of the public highways is at once apparent. Ostensibly located on private property, the real and sole value of the billboard is its proximity to the public thoroughfares. Hence, we conceive that the regulation of billboards and their restriction is not so much a regulation of private property as it is a regulation of the use of the streets and other public thoroughfares.” Churchill and Tait v. Rafferty, 32 P.I. 580, 609, appeal dismissed 248 U.S. 591, 39 S.Ct. 20. In General Outdoor Adv. Co. v. Department of Pub. Works, 289 Mass. 149, 168, 169, 193 N.E. 799, 808, it is said: “The only real value of a sign or billboard lies in its proximity to the public thoroughfare within public view. *** The object of outdoor advertising in the nature of things is to proclaim to those who travel on highways and who resort to public reservations that which is on the advertising device, and to constrain such persons to see and comprehend the advertisement. *** In this respect the plaintiffs are not exercising a natural right, *** they are seizing for private benefit an opportunity created for a quite different purpose by the expenditure of public money in the construction of public ways. *** The right asserted is not to own and use land or property, to live, to work, or to trade. While it may comprehend some of these fundamental liberties, its main feature is the superadded claim to use private land as a vantage ground from which to obtrude upon all the public traveling upon highways, whether indifferent, reluctant, hostile or interested, an unescapable propaganda concerning private business with the ultimate design of promoting patronage of those advertising. Without this superadded claim, the other rights would have no utility in this connection.” See, also, Perlmutter v. Greene, 259 N.Y. 327, 182 N. E. 5, 81 A.L.R. 1543; Fifth Ave. Coach Co. v. City of New York, 194 N.Y. 19, 86 N.E. 824, 21 A.L.R.,N.S., 744, 16 Ann. Cas. 695, and an exhaustive article by Ruth I. Wilson entitled “Billboards and the Right to be Seen from the Highway”, 30 Georgetown Law Journal, 743 et seq.

The plaintiff avers that its property rights, for which it claims the protection of the national and state constitutions are derived by contract from the abutting land owners, Wood and Seymour. We will consider the rights that these abutters had which they could convey, omitting, for the present, consideration of any preferential treatment that the statute may give to Wood because of his being also the owner and operator of a business located less than 500 feet from two of the billboards upon which certain goods are advertised which happen to be offered for sale in connection with that business.

The rights of an abutting owner in an adjacent street or highway are of two kinds, public rights which he enjoys in common with all other citizens, and certain private rights which arise from the ownership of property contiguous to the highway which are not common to the public in general, and this irrespective of whether the fee to the highway is in him or in the public. Certain of the latter rights constitute property, or property rights of which an abutter cannot be unlawfully deprived. While the cases involving such rights relate, mainly, to questions of ingress and egress, light and air, and lateral support, neither logic nor sound legal principle exclude the recognition of other rights equally valuable to an abutting owner. Skinner v. Buchanan, 101 Vt. 159, 165, 142 A. 72; Barnett v. Johnson, 15 N. J.Eq. 481, 487.

These private property rights are usually termed easements. Even if it can be questioned whether they are true easements in the strictest sense they are at least rights in the nature of appurtenant easements, the abutting property being the dominant and the highway the servient tenement, and they are governed by the law of easements. An important right of this nature is the abutter's right of view to and from the property, from and to the highway; that is, his right to see and to be seen. This right of reasonable view has been generally recognized by the weight of authority and has been protected in numerous c...