Petition of Bolduc, 1859

• Decision Date: 05 November 1958
• Docket Number: No. 1859,1859
• Citation: 121 Vt. 20,146 A.2d 240
• Parties: Petition of Lucy BOLDUC.
• Court: Vermont Supreme Court

Page 240

146 A.2d 240

121 Vt. 20

Petition of Lucy BOLDUC.

No. 1859.

Supreme Court of Vermont.

Nov. 5, 1958.

Finn & Davis, Barre, for plaintiff.

John D. Paterson, Montpelier, for defendant.

Before CLEARY, C. J., and ADAMS, HULBURD, HOLDEN and SHANGRAW, JJ.

ADAMS, Justice.

This case involves a proceeding by the City of Montpelier taking land with buildings thereon of the petitioner for highway purposes. The City Council by resolution adjudged that the taking of the premises was required for highway purposes and awarded the petitioner $10,000 as compensation and damages. She filed a petition in the Washington County Court setting forth therein that she considered the sum awarded insufficient and inadequate and that she was dissatisfied with it.

The prayer of the petition is that the court appoint commissioners with further proceedings pursuant to V.S. 47, § 5039 et seq., and that the proceedings of the City Council be amended, reversed and set aside or that the petitioner be awarded reasonable compensation for her damages.

The court appointed commissioner who heard the parties and then filed a report. The court entered a judgment order accepting the report and awarding the petitioner $11,000 and her costs. The case comes here upon the petitioner-appellant's exceptions to the report and judgment order.

[121 Vt. 22] Paragraph 1 of the report of the commissioners shows that the petitioner owned a parcel of land on the westerly side of Winooski Avenue with a frontage of approximately 175 feet and a depth of 140 feet and that the buildings on the land consisted of a four-room frame cottage, a two-room brick building and a building used as a garage and storage shed.

The petitioner excepted to paragraph 5 of the report which is as follows: 'The fair value of the land and buildings to be taken by the City of Montpelier as described in paragraph No. 1 is $11,000.00.' The grounds of the exceptions are that the finding is not supported by the evidence, is contrary to the evidence, is against the weight of the evidence, is wholly unsupported by any evidence and the uncontradicted testimony is that the land and buildings have a fair market value substantially in excess of the value determined by finding number 5 and that the commissioners by making said finding have entirely ignored and/or failed to consider uncontradicted evidence.

In considering these exceptions, we use the following standards that apply for the consideration of them in this Court. On an appeal to this Court for a review of findings on exceptions thereto on the foregoing grounds, we do not weigh the evidence as its persuasive effect and the credibility of the witnesses are for the trier of the facts to determine. A finding must stand if supported by any substantial evidence, although there may be inconsistencies, or even substantial evidence to the contrary. Petition of Citizens Utilities Co., 117 Vt. 285, 287, 91 A.2d 687; Petition of Stowell, 119 Vt. 298, 302, 305, 125 A.2d 807. We must read the evidence in support of the findings, if reasonably possible, when considered as a whole. City of Montpelier v. Bennett, 119 Vt. 228, 231, 125 A.2d 779, and cases cited.

The evidence in regard to the value of the property was sharply conflicting. A real estate agent, who was a witness for the petitioner, placed its value for commercial purposes at $17,500. However, his testimony was tempered by his qualification that the property would have to be taken for the new highway that was to go through that location and he reduced his figure by $3,000 if there was to be no new highway leading past the property. His testimony was vague as to the cost of excavating the land and the removal of the buildings in order to make the site available for commercial purposes. Another witness...