Kelbro, Inc. v. Rawson C. Myrick, Secretary of State, Et Als

• Decision Date: 05 January 1943
• Parties: KELBRO, INC. v. RAWSON C. MYRICK, SECRETARY OF STATE, ET ALS
• Court: Vermont Supreme Court

30 A.2d 527

113 Vt. 64

KELBRO, INC. v. RAWSON C. MYRICK, SECRETARY OF STATE, ET ALS

Supreme Court of Vermont

January 5, 1943

November Term, 1942.

Regulation of Billboard Advertising.

1. 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 proof that it infringes the paramount law.

2. The regulation of billboards is not so much the regulation of private property as it is the regulation of the use of streets and highways.

3. The owner of land abutting on the highway has two classes of rights: those which he has in common with the general public and those which he has because of such ownership which are not common to the public.

4. Certain private rights enjoyed by the owner of property abutting on the highway are to be considered as property rights; while usually termed easements, they are more accurately to be called rights in the nature of appurtenant easements.

5. The right of reasonable view between private property and an abutting highway is a property right which will be protected against encroachments in the highways.

6. The owner of an easement may not materially increase the burden of it upon the servient estate.

7. The right of view enjoyed by the owner of land abutting on the highway is limited to such right as is appurtenant to that property and includes the right to display only goods or advertising matter pertaining to business conducted thereon.

8. The privileges accorded to advertisers not engaged in the advertising business for direct profit by Chapter 332 of the Public Laws are a matter of sufferance rather than of right and do not render invalid the general provisions of the Chapter.

BILL IN CHANCERY praying for a restraining injunction. Court 5 of Chancery, Washington County. Demurrer to the complaint heard by Adams, Chancellor, and overruled pro forma.

Reversed. The plaintiff's motion for reargument is denied. Let full entry go down.

Clifton G. Parker, Deputy Attorney General, for the defendants.

Sylvester & Ready, for the plaintiff.

Appearances for Amici Curiae:

John J. Bennett, Jr., Attorney-General of the State of New York, for State Council of Parks and Department of Public Works of the State of New York, and

Henry Epstein, Solicitor General, of Counsel.

William C. Chanler, Corporation Counsel of the City of New York Attorney for the Commissioner of Parks of the City of New York and Triborough Bridge Authority, and

Jeremiah M. Evarts, Assistant Corporation Counsel, of Counsel.

Raymond P. McNulty, Attorney for Long Island State Park Commission.

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

OPINION

BUTTLES

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. Secs. 8352, 8353 and 8354. 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 billboards 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. sec. 8338 as amended. They are each 24 feet long by 10 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. Sec. 8350 as amended. 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. Dept. of Pub. Works, 289 Mass. 149, 168-169, 193 N.E. 799, 808, it is said: "The only real value of a sign or bill-board 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. 1583; Fifth Avenue 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 "Bill-boards 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...