Nelson v. State Highway Bd.

Decision Date04 October 1938
Docket NumberNo. 1269.,1269.
Citation1 A.2d 689
CourtVermont Supreme Court

Exceptions from Windsor County Court; Charles A. Shields, Judge.

Proceeding by the State Highway Board to take certain lands for highway purposes, wherein George D. Nelson and wife took an appeal to the county court on question as to the necessity for taking and the damages awarded. From the judgment of the county court, the State Highway Board brings exceptions.

Affirmed in part and in part reversed and remanded, with directions.

Argued before MOULTON, SHERBURNE, BUTTLES, and STURTEVANT, JJ., and JEFFORDS, Superior Judge.

Louis G. Whitcomb, of Springfield, and Neil D. Clawson, of Brattleboro, for Nelsons, landowners.

Lawrence C. Jones, Atty. Gen., and Alban J. Parker, Deputy Atty. Gen., for State Highway Board.


The State brings exceptions to certain rulings of the Windsor county court and claims error in the amount of damages awarded in proceedings seeking to take certain lands for highway purposes.

In April, 1937, the state highway board held a hearing at Springfield, Windsor County. The matter considered was the necessity for taking certain lands and compensation to be paid therefor in connection with the construction of a highway in the town of Springfield, viz, for changing the course or location of a portion of the highway known as U. S. Highway No. 5 in said town of Springfield. This report shows that said board found that the taking of certain lands was necessary for said purpose and fixed the compensation to be paid to the several owners for same. The report contains a survey of the lands to be taken. This survey shows that the proposed project requires the taking of 3.451 acres of land belonging to plaintiffs George D. Nelson and Lula P. Nelson.

The Nelsons own a farm located on the westerly side of the Connecticut River in said town of Springfield. U. S. Route No. 5 now follows along the westerly bank of the river past the buildings on said Nelson farm, said road passing between the buildings and the river. The general direction of said highway past the Nelson house is from southwest to northeast. The location of the proposed new road is approximately as follows: Beginning at a point in U. S. No. 5 about 5,550 feet southwesterly of the said Nelson house, which point is about 4,000 feet southwesterly from the southerly boundary of said Nelsons' land, thence westerly of said U. S. Route No. 5 as now located in a general northerly direction and gradually leading away from said present road to a point on said Nelsons' land about 1,600 feet westerly of said Nelson house where said route begins to approach nearer to said present highway and comes into it at a point about 3,500 feet northeasterly of said Nelson house, which point is about 3,000 feet northeasterly from the northerly boundary of said Nelsons' land. The approximate length of the new road is 2 miles and when completed this new route will become a part of U. S. Route No. 5. The present highway leading past the Nelson place is to be turned back to the town. The road from where the proposed new route leaves the present route U. S. No. 5 to where it again joins same as above stated will not be on U. S. No. 5 but will be a town road after this proposed project is completed.

The Nelsons took an appeal from the decision of the highway board to the Windsor county court on both the question as to the necessity for taking their land and the damages awarded. The court appointed commissioners to hear the case and these commissioners duly returned their report to the county court. This report shows that the commission found:

"That the proposed relocation is not necessary for the convenience of individuals or of the State."

That if the land of said Nelsons were to be taken as proposed in said petition damages should be awarded to them as follows :

"Tillage land

$ 200.00

Pasture land


Fencing and gates, including their maintenance


Relaying pipe leading to spring


Damages resulting from the dividing of the property into two parts, the concentration of the flow of surface waters on the tillage land east of the relocation and the right of the State in the future to enter at will on said tillage land in undefined manner and places.


Consequential damages due to the use of appellant's land in question as a new route for the main stream of public travel, 1,600 feet in the rear of the appellant's buildings instead of directly in front of them as at present



The state highway board, the appellee in the original appeal to the county court,

brings the, case to this Court and has briefed two points of claimed error, viz.:

1. "The Court erred in its refusal to consider the question of admissability of various items of evidence taken by the commission and having to do with the damages and the elements thereof."

2. "The Court erred in including as compensable items of damages certain elements of damage found by the commission which appear on the face of the report and in the final order, and which, as matter of law, are not compensable."

Concerning the first objection, it appears that the state highway board filed with the county court no exceptions to the commissioners' report. The court held that county court rule 18, paragraph 6, required this to be done in order for the court to review the highway board's exceptions saved to the admission of certain evidence before the commissioners. However, the case as briefed and argued can be disposed of by a consideration of the highway board's second exception, therefore we do not pass upon or give further consideration to the first question above stated.

The county court rejected the finding of the commission that "The proposed relocation is not necessary for the convenience of individuals or of the State" and by its order condemned the property in question for use by the State of Vermont for highway purposes and gave the State of Vermont a right of easement for the purpose of a highway on, beneath and above said described land. As to damages said court order further provides:

"It is further ordered that the State of Vermont shall pay to the said George D. Nelson and Lula P. Nelson, their heirs, administrators and assigns, as compensation therefor, the sum of Seven Thousand Dollars ($7000) for damages made up as follows * * *."

The court then sets out the items of damage exactly as set forth in the report of the commissioners and as hereinbefore stated. After so finding the damage to be $7,000 the order continues :

"And further, that judgment in accordance with the portions of said reports and findings hereby approved shall be entered on the 13th day of November, A. D. 1937, and the damages awarded in case No. 9625 shall be paid to the appellants within thirty (30) days thereafter." Judgment was entered accordingly and to this order and also to the judgment thereon the highway board had exceptions. The Nelsons claim that the point raised by the highway board's second exception was not raised below and it being raised here for the first time we are without jurisdiction to consider it. There is no merit in this contention. The various items or elements found by the Court below and which go to make up the total damages of $7,000 are found as facts by the Court and are fully set out in its order. Judgment for $7,000 damages was rendered thereon. While the highway board's exception to the judgment does not reach questions as to the evidence upon which the findings are based, it does raise the question as to whether the findings themselves are sufficient in law to sustain the judgment rendered thereon. Greenwood v. Lamson et al, 106 Vt. 37, 41, 168 A. 915; Crosby's Adm'rs v. Naatz, 98 Vt. 226, 229, 126 A. 547; Royal Bank of Canada v. Girard and Trustees, 100 Vt. 117, 119, 135 A. 497; Morgan v. Gould, 96 Vt. 275, 280, 119 A. 517.

Hence the question presented is, Are any of the elements found by the commission and adopted by the Court items for which the law will not compensate? The highway board in its brief claims two such items, viz.:

"Relaying pipe leading to spring $100.00"

This appears to be a proper item and as the highway board in argument waived any claim of error as to the same we give this matter no further consideration.

The only item included in the elements of damage which go to make up the $7,000 judgment to which the highway board now objects is the last one, viz.:

"Consequential damage due to the use of appellants' land in question as a new route for the main stream of public travel, 1,600 feet in the rear of appellants' buildings instead of directly in front of them as at present $4500.00."

To get the full and fair meaning of the words in this item we must read it in connection with the other elements of damage set forth, all of which are hereinbefore set out in full. When so read it clearly appears that the other items include the damage for the land taken, damage to the land remaining caused by such taking, including fencing, relaying water pipe, interference with drainage, right of the State to enter on said land in the future, etc. In short, it plainly appears from these findings that this item of $4,500 is allowed because the public will probably follow the new route and so will not pass in front of the Nelson buildings along the old route, although this old route is to be left as it is at present as to location, etc. The only change as to this road is that the same is to be turned back to the town as a town road. This item of $4,500 is allowed to the Nelsons as damages because the public in using the new route will pass 1,600 feet to the westerly of their buildings instead of in front of them as at present. In short, this sum...

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