Menut & Parks Co. v. Cray

• Decision Date: 03 October 1944
• Docket Number: No. 296.,296.
• Citation: 39 A.2d 342
• Court: Vermont Supreme Court
• Parties: MENUT & PARKS CO. v. CRAY et al.

39 A.2d 342

MENUT & PARKS CO.

v.CRAY et al.

No. 296.

Supreme Court of Vermont.

Oct. 3, 1944.

Original mandamus proceeding by the Menut & Parks Company against Charles S. Cray and others, trustees of the Village of St. Johnsbury, to obtain a compliance with the provisions of P.L. §§ 4808-4812 with reference to raising the roadbed in front of a building.

Judgment for petitioner.

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

Witters & Longmoore, of St. Johnsbury, for plaintiff.

Arthur L. Graves, of St. Johnsbury, for defendants.

STURTEVANT, Justice.

This is a petition for a writ of mandamus. Among the allegations of the petition, it is stated that the trustees of the village of St. Johnsbury raised the roadbed in front of a building owned by the petitioner and standing upon the line of Portland street in that village, more than three feet, without giving notice to the petitioner and in violation of their duties as fixed by P.L. §§ 4808 to 4812, inc. This proceeding is brought to obtain a compliance with the provisions of those statutes by the village trustees. The case is submitted on the petition and answer and an agreed statement. From these, among others, the following facts appear:

The petitioner is a Vermont corporation and at all times here material has been engaged in the business of selling and delivering various kinds of fuel in the village of St. Johnsbury. Railroad street extends through the village in a north to south direction. Portland street, which is a public highway, begins at Railroad street and extends from there easterly through the village and on, to and through New Hampshire to Portland, Maine. The petitioner owns a parcel of land in the village which has a frontage on Portland street of about fifty feet. On this lot is a wooden building the first floor of which was formerly occupied by the petitioner as an office in conection with its fuel business. This building has been in its present location and owned by the petitioner at all times here material, and is now rented as a tenement. Its southerly end faces Portland street for about twenty-five feet and is two or three feet northerly from the northerly boundary of that street. The premises are bounded on the west by St. Mary street which leads northerly from Portland street for about one fourth mile and has no other outlet or street connection. There are two Portland street railroad crossings in this vicinity, that of the Canadian Pacific railroad a short distance westerly and that of the Maine Central railroad a few feet easterly from the petitioner's premises. In October, 1940, the selectmen of the town of St. Johnsbury and the trustees of the village entered into an agreement with the State of Vermont, the purpose of which was to bring about the elimination of the two Portland street railroad crossings. Pursuant to this agreement, the state highway department, with the consent, approval and co-operation of the trustees of the village, has erected above and along Portland street a concrete and steel viaduct. This is approximately forty feet wide and consists of a concrete roadway with sidewalks and railings on each side and is supported by concrete piers except for a short distance at each end, where it is supported by a solid concrete abutment. The abutement at the westerly end is about thirty-four feet westerly from the aforementioned Canadian Pacific crossing. From that end the viaduct extends easterly about eight hundred ninety feet, passing over the two Portland street railroad crossings and the Passumpsic River. The viaduct is within the Portland street boundaries and the abutment at the easterly end is about twenty feet easterly of the point where River street comes into Portland street from the south. The old roadbed where Portland street abuts on the petitioner's lot has not been obstructed except by the erection of the aforementioned piers and except for such partial obstruction traffic may now pass over the old roadbed between the abutements, but this will not be true when the Main Central crossing is closed as the plan contemplates. The roadbed of the viaduct in front of the petitioner's premises is about twenty-five feet above the roadbed of Portland street as it existed for many years prior to this construction and at another point it reaches a maximum of about thirty-five feet above the former level of the street. The abutment at the westerly end closes the Canadian Pacific crossing. As a result traffic can no longer pass from the petitioner's premises or St. Mary street westerly over Portland street to Railroad street. There is no direct access from St. Mary street or the petitioner's premises to the viaduct roadbed except that pedestrians may so pass by way of a long flight of stairs. Until the Main Central crossing is closed, traffic from either of these places may reach the roadbed of the viaduct by travelling easterly over the old roadway, thence over a new road known as the Portland street by-pass, to the easterly end of the viaduct, a distance of about fourteen hundred feet from the petitioner's premises. This route is now used only as a way of ingress and egress to and from the petitioner's premises, premises of the Peck Co. which adjoins petitioner's lot on the east, and St. Mary street. All other Portland street traffic past the premises of the petitioner passes over the viaduct. While that structure has been in use since October, 1943, the project is not yet completed as the Maine Central crossing has not yet been closed. This is to be done as soon as a new way of access to St. Mary street can be provided. In July, 1941, the selectmen of the town of St. Johnsbury brought a petition to the public service commission, setting forth that the State was about to erect the viaduct here in question and other facts material to that project and, among other things, asking for an order closing the two Portland street railroad crossings and also for the extension of St. Mary street so as to connect it with another public street in the village. That petition named the petitioner in the case at bar as one owning lands abutting on Portland street and one who might be interested in the subject matter of the petition. No order has been made on the petition and it is still pending before the commission. The village charter, in section 14a referring to the authority of the village trustees, states as follows: “*** and may have the same power to lay out, alter, maintain and discontinue, any street, lane or walk within the village limits, and appraise and settle the damages therefor, as is given by law to the selectmen of towns, ***.” For purposes of this case only, it is admitted that the erection of the viaduct has caused substantial damage to the petitioner's premises. The village trustees have given the petitioner no notice under the provisions of P. L. 4808 and have refused to give it notice of a time when they will meet and consider the matter as to the petitioner's damages because they contend that the statute has no application to the facts in the case at bar.

The petitioner makes no claim that in erecting the viaduct any of its land has been “taken” within the meaning of our constitution, or that it would be entitled to relief under the common law. As to this matter it agrees that the law is as stated in Hoyt v. Village of North Troy, 93 Vt. 8, 9, 105 A. 33, and Fairbanks v. Rockingham, 75 Vt. 221, 223, 224, 54 A. 186. It bases its claim upon the provisions of P.L. 48058 which statute is as follows:

“Change of grade; notice. The selectmen or road commissioner shall not alter a highway, by cutting down or raising the roadbed in front of a dwelling house or other building standing upon the line of such highway, more than three feet, without first giving notice to the owner thereof, of a time when they will examine the premises, and hear such owner upon the question of making such alteration and the damages by reason thereof.”

That statute is remedial because it was enacted for the purpose of curing a defect existing in the law at the time of its passage. City of Montpelier v. Senter, 72 Vt. 112, 114, 47 A. 392. That it modifies the common law is not disputed. Being a remedial statute passed for the purpose of changing the common law rule, it must receive a liberal construction. In re Dexter, 93 Vt. 304, 312, 107 A. 134. It is to be reasonably interpreted with reference to the evil it is intended to remedy.

Bacon et al. v. Boston & M. R. R., 83 Vt. 421, 430, 76 A. 128. A presumption obtains against a construction that would render a statute ineffective and a construction that would lead to absurd consequences is to be avoided if possible. State Highway Board v. Gates, 110 Vt. 67, 72, 1 A.2d 825. The intention of the legislature constitutes the law. State Highway Board v. Gates, 110 Vt. at page 73, 1 A.2d at page 827.

The petitioner insists that it was entitled to notice and an award of damages under the provisions of the statute. The petitionees dispute this and contend that the statute has no application to the facts in the case at bar, because the grade of Portland street has not been changed nor the roadbed raised or lowered as a result of the street improvement.

The question whether the construction of a viaduct in a highway, similar to the one we are considering here, constitutes a change of grade in such highway has several times been considered by other courts, both state and federal. In Willis v. City of Winona, 59 Minn. 27, 29, 60 N.W. 814, 26 L.R.A. 142, the court holds that the erection of a viaduct similar to the one in the case at bar is a change of grade. Speaking of the raising of the street grade in front of the plaintiff's lot in that opinion the court states: “It can make no difference in principle whether this was done by filling up the street solidly, or, as in this case, by supporting the way on stone or iron columns. Neither is it important that the...