Latchis v. State Highway Bd.

• Decision Date: 07 July 1957
• Docket Number: No. 1133,1133
• Citation: 134 A.2d 191,120 Vt. 120
• Court: Vermont Supreme Court
• Parties: John D. LATCHIS, Sporo D. Latchis and John D. Latchis, d/b/a Latchis Hotel, v. STATE HIGHWAY BOARD.

Page 191

134 A.2d 191

120 Vt. 120

John D. LATCHIS, Sporo D. Latchis and John D. Latchis, d/b/a Latchis Hotel, v. STATE HIGHWAY BOARD.

No. 1133.

Supreme Court of Vermont.

July 7, 1957.

Fitts & Olson, Brattleboro, for plaintiffs.

John S. Burgess, Brattleboro, and John D. Paterson, Montepelier, for defendant.

Before CLEARY, ADAMS, HULBURD and HOLDEN, JJ., and SYLVESTER, Superior judge.

HULBURD, Justice.

The State Highway Board is seeking, under V.S.1947, § 4971 et seq., the condemnation of the appellant's land. The matter comes before this Court upon the appellant-landowner's exceptions to the county court's order accepting the report of the commissioners as amended. The appellant asserts that the order for the taking of his lands is unsupported by the evidence, both as to the necessity for the taking and as to compensation awarded therefor. The report shows that the proposed taking is for the purpose of a limited-access, divided, four-lane highway or throughway (with connected interchanges, etc.) which will ultimately run from Hartford, Connecticut to White River Junction, Vermont, from which point it will proceed in two forks, to the Canadian border, one by way of Burlington, and the other by way of northeastern Vermont.

A survey of the proposed highway shows it reaching the land of the appellant at Brattleboro, Vermont. The proposed taking consists of approximately 24.62 acres, cutting diagnonally across the northeast portion of the appellant's premises which consist, in all, of approximately 135 acres of land in Brattleboro lying westerly of the present U. S. Route 5 (called Canal Street at that point) and southerly of Fairview Avenue. Of this total acreage only about 8 acres is flat land, so-called; the remainder is hilly and wooded terrain which has been partially cleared for skiing purposes, although not used in that connection for the past two or three years. No portion of the appellant's flat land is included in the proposed taking.

We turn first to the matter of necessity; for the statute provides that condemnation of land for highway purposes may be had only when 'the interest of the state shall so require' and there is a 'necessity' for taking 'for such purposes'. V.S.1947, §§ 4971-4975. Before dealing with any specific exception of the appellant's relating to this subject, it is essential that we have a proper understanding of the terms employed by the statute. The appellant has seized upon the words 'imperative necessity' found in the case of Lorenz v. Campbell, 110 Vt. 200, 202, 3 A.2d 548, which quotes them from Farnsworth v. Goodhue, 48 Vt. 209, 211, wherein the expression first appears. Farnsworth v. Goodhue, supra, was not a condemnation case involving a highway but was an action of trespass against a defendant who was constructing an aqueduct and in doing so went onto the plaintiff's land, not for the purpose of laying the aqueduct, but to escape the miry condition of the road adjacent to the construction. This Court properly held that the aqueduct company, although enjoying by statute rights of eminent domain, could not justify its entry on the land of the plaintiff on this ground, especially as it had not proceeded to go through condemnation proceedings and duly ascertained the damage before using the plaintiff's land. The court in its opinion said in the nature of a dictum, at page 211: 'No doubt there might have been land that the aqueduct would not itself actually touch, and still have been so situated that it would have been necessary to enter upon it, and if so probably the statute would cover such a case of actual necessity. But such statutes are strongly derogatory to common right, and no case can be brought within them except such as come duly within their terms with imperative necessity.'

It is against this background that we must view the words 'imperative necessity'. When this is done, the expression, although appropriate enough to the case in which it was used, is seen as one not to be adopted as a general test, nor has it ever been applied in condemnations for highways. To do so would be to adopt a strict and rigid necessity never intended by the statute. As Mr. Justice Holmes reminds us, 'A word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used.' Towne v. Eisner, 245 U.S. 418, 425, 38 S.Ct. 158, 159, 62 L.Ed. 372. The necessity specified by the statute for the condemnation of land for highways does not mean an imperative or indispensable or absolute necessity but only that the taking provided for be reasonably necessary for the accomplishment of the end in view under the particular circumstances. Cases to this effect include: Wilton v. St. Johns County, 98 Fla. 26, 123 So. 527, 65 A.L.R. 488; Solether v. Ohio Turnpike Comm., 99 Ohio App. 228, 133 N.E.2d 148, 151; Town of West Hartford v. Talcott, 138 Conn. 82, 91, 82 A.2d 351; Komposh v. Powers, 75 Mont. 493, 244 P. 298, 303; State ex rel. Department of Highways v. Pinson, 66 Nev. 227, 207 P.2d 1105.

Now the end in view has been determined by the legislature itself by No. 270 of the Acts of 1955. Its very first section reads: 'The General Assembly of the State of Vermont hereby finds, determines, and declares that this act is necessary for the immediate preservation of the public peace, health, and safety, and for the promotion of the general welfare.' This is a declaration of policy under the very act which was enacted that highways like the one in question might be constructed. By its section 6 the state highway board is authorized to acquire land by condemnation for the purposes of the act under existing statutes or any that may be hereafter enacted. We are not confronted, therefore, with the situation which existed in Lorenz v. Campbell, 110 Vt. 200, 3 A.2d 548, supra, where the legislature's purpose was held not to be clear enough to support the taking for the project in question.

Although a declaration by the legislature that a use is public might not make it so; (see Tyler v. Beecher, 44 Vt. 648, 651) primarily, the right to declare what shall be deemed a public use is vested in the legislature and if the use is one that the legislature might reasonably have considered to be public, the determination by the legislature will be upheld in the courts. Public highways were the earliest objects of the exercise of eminent domain, and it has never been doubted that land taken for a public highway, necessary and convenient to the public, is taken for a public use. 18 Am.Jur., p. 684; Williams v. School District, 33 Vt. 271, 276. In the present case the end in view is clear and the authority has been delegated to the State Highway board to take such land as may be necessary to reach that end. In granting this power, however, the legislature has set up certain requirements to be met and a procedure for appeal from the decision of the State Highway Board. As this matter comes to us, the over-all necessity has been recognized and established by legislative enactment and there remains only the question of whether the taking of the particular land in question is reasonably necessary for the accomplishment of the ends envisioned by the legislature.

The argument that 'the state doesn't need to make my land' merely because some one else's land might be taken has no validity. After all, if there is to be a road, it of necessity has to go somewhere, some one's property has to be taken. If imperative or absolute necessity were the test, there would be no practical way in which the crooked road could be made straight. It could always be said 'The state already has a road.' To justify a taking, the interests of the State must require it, and it must be so shown, but only to the extent that it is reasonably necessary to accomplish the end in view after weighing all the circumstances which bear on any given situation. In determining whether a reasonable necessity exists with respect to highways, public safety has become the critical element. Where the volume and nature of traffic is such that public safety requires under the circumstances that the road be constructed; or reconstructed at a given location, a reasonable necessity exists, and a taking of land is justified, if reasonable in the light of all the concurring circumstances. Under our statute a broad discretion has been vested in the state highway board in determining what land it deems necessary for the particular location and route to be followed, and, as a safeguard, the appeal to county court with a provision for a hearing before an independent board of commissioners is provided. A determination made agreeably to the statute will not be interfered with by the courts if it is made in good faith and is not capricious or wantonly injurious. See 29 C.J.S. Eminent Domain § 91, p. 886; Williams v. School District, 33 Vt. 271, 279. The function of this Court on appeal is not to weigh the evidence nor to review its sufficiency further than to determine whether the findings below are supported by any competent or substantial evidence. Petition of Citizens Utilities Co., 117 Vt. 285, 287, 91 A.2d 687; 30 C.J.S. Eminent Domain § 364, p. 52.

We now turn to the appellant's specific exceptions, dealing first with those which relate to necessity. Appellant moved to strike the findings of the commissioners numbered 10 through 15, in their report. These findings related to the conditions existing with respect to a two-mile section of the present U. S. Route 5--and its need for replacement--as it approaches the appellant's premises from the south. They bring out its inadequacy for traffic capacity, stopping-sight distances, roadbed width, and passing-sight distances. Due to all these factors and its overly-steep grades this particular section is found to be third from the lowest in rating of the 179 highway sections in the State of Vermont...