Petition of Stowell, 1839

• Citation: 119 Vt. 298,125 A.2d 807
• Decision Date: 02 October 1956
• Docket Number: No. 1839,1839
• Court: United States State Supreme Court of Vermont
• Parties: , 16 P.U.R.3d 39 Petition of Cynthia S. STOWELL and Narcissa S. Gale.

Page 807

125 A.2d 807

119 Vt. 298, 16 P.U.R.3d 39

Petition of Cynthia S. STOWELL and

Narcissa S. Gale.

No. 1839.

Supreme Court of Vermont.

Oct. 2, 1956.

Thomas M. Reeves, Burlington, for petitioners.

Fayette & Deschenes, Burlington, for protestants.

Before JEFFORDS, C. J., CLEARY, ADAMS and HULBURD, JJ., and BARNEY, Superior Judge.

CLEARY, Justice.

This is an appeal from the Report and Findings of the Public Service Commission on the petition of Cynthia S. Stowell and Narcissa S. Gale, requesting authority to operate a ferry. Lake Champlain Transportation, Inc. entered its appearance as a protestant. Hearings were held, a 'Report' and 'Findings' were made, and a certificate of public good granted. The case is here on the protestant's exceptions.

The protestant's objections to the grant of the certificate are that it would not promote the general good of the people of Vermont and it would be a serious invasion of the franchise right already granted to the protestant.

The commission found the following facts that are material to the issues raised. The petitioners seek to operate a ferry from Isle LaMoote, Vermont, across Lake Champlain, a distance of approximately 1 1/4 miles to Chazy, New York. Such a ferry was operated at one time but was discontinued about 1938.

4. There is a religious shrine on Isle LaMotte to which pilgrimages are made each year between June and September; prior to the discontinuance of the ferry in 1938, pilgrimages were organized on the New York side of Lake Champlain and large numbers of people used the ferry for this purpose; the discontinuance of the ferry resulted in a drastic reduction in the number of visitors to the shrine.

There are five ferries and two bridges across Lake Champlain along its approximate 100-mile length. The protestant received a certificate of public good to operate ferries on Lake Champlain in 1948. It owns and operates a ferry between Grand Isle, Vermont and Cumberland Head, New York. Its Vermont terminal is about 23 miles by road and about 15 miles by water from the petitioners' proposed operation. It also owns and operates a ferry between Charlotte, Vermont and Essex, New York, and another ferry between Burlington, Vermont and Port Kent, New York.

11. The estimated cost for the vessel, tug and cable, and for other expenses, and for providing working capital for the proposed project will amount to about $35,000.

12. The proposed ferry operation would be beneficial to the people in the Island communities in Grand Isle County, although some traffic might be diverted from the Grand Isle-Cumberland Head ferry to the proposed ferry.

14. On the basis of her signed financial statement, petitioner Narcissa S. Gale owns, jointly with her husband, a house and lot in Richmond, Vermont, valued at $13,700, a camp valued at $5,000 and has cash on hand of $650; said house is mortgaged for $8,500; said financial statement was signed by both Mr. and Mrs. Gale, although the former is not a party to these proceedings and did not appear at the hearings; while not a party to these proceedings, he, having signed said financial statement with his wife, indicates to the Commission his willingness to pledge, so far as possible, their jointly-owned properties and assets in support of the proposed ferry operations.

15. Based on the financial statement furnished by her, petitioner Cynthia S. Stowell owns a house and lot in Barre, Vermont, worth $14,000 and a camp at Colchester, Vermont, worth $5,000, has life insurance equity worth $2,500, and has cash and securities on hand of $12,000, or total assets of $22,700; said house is mortgaged for $7,000; petitioner's assets, therefore, have a total net worth of $15,700; and most of said property is jointly owned by her husband.

16. On the basis of the financial statement furnished by him, Mr. E. N. Goodsell, father of said petitioners, has, with his wife, net assets of $47,600; the property listed in said statement is mostly in both his and his wife's names; and, on the basis of his testimony, said E. N. Goodsell is willing to loan, lend and furnish to his daughters, the petitioners, financial backing amounting to $45,000 in connection with their proposed ferry operations.

17. Petitioners intend to borrow on their respective properties and to combine their borrowings with the funds promised by their father in order to finance the proposed ferry operations and will rely on such credit and their father's financial help and knowledge in their proposed ferry operations.

18. Said Petitioners, with their own resources and what they can borrow in addition to those furnished by their father, will be able to finance the proposed ferry operations.

19. The Commission takes judicial notice of an Act of the 1955 Session of the Vermont Legislature which reads as follows:

'No. 231--An Act Granting Ferry Rights In Lake Champlain.

'(H.259)

'It is hereby enacted by the General Assembly of the State of Vermont:

'Section 1. Grantees, conditions. The right and privilege of maintaining and operating a ferry across Lake Champlain, from the highway leading from Isle LaMotte village, in the town of Isle LaMotte, to said lake, and such other places within two miles each way, north and south, from said road, is hereby granted to Cynthia S. Stowell and Narcissa S. Gale, their heirs and assigns, provided however, that said right and privilege shall become effective only after full compliance with the provisions of Chapter 399, of the Vermont Statutes, Revision of 1947.

'Sec. 2. This act shall take effect from its passage.'

20. The proposed ferry operations of the petitioners will promote the general good of the State of Vermont and the public, and a certificate of public good is hereby granted for the proposed ferry operations in accordance with the Act of the Legislature pertaining thereto.

The protestant's first exception is to the commission's finding No. 4. In substance the exception is that the finding is without proper supporting testimony. Some of the testimony was based on records which the witness claimed he could and would furnish. The record does not show these records were furnished. But the testimony was received without objection or exception and no motion was ever made to strike it out, so the exception to the finding is without merit. Scott v. Leonard, 119 Vt. 86, 100, 119 A.2d 691; Loeb v. Loeb, 118 Vt. 472, 474, 488, 114 A.2d 518.

The protestant argues various claims which are beyond the scope of the exception, so these claims are not for consideration here. Laplante v. Eastman, 118 Vt. 220, 225, 105 A.2d 265; Strout Realty Agency v. Wooster, 118 Vt. 66, 72, 99 A.2d 689; Parker v. Hoefer, 118 Vt. 1, 14, 100 A.2d 434, 38 A.L.R.2d 1216. A claim, made here for the first time, is not for consideration. Vermont Salvage Corp. v. Northern Oil Co., 118 Vt. 337, 339, 109 A.2d 267; Lunnie v. Gadapee, 116 Vt. 261, 265, 73 A.2d 312; State v. Searles, 108 Vt. 236, 239, 184 A. 701.

Protestant's next exception is to finding No. 11 that the estimated cost for the proposed project will amount to about $35,000, on the grounds that it indicates no account is taken of land cost in New York, and the only figure given by the petitioners is $15,000 for land, that the items of cost total $45,000 with no provision for working capital and that the finding is not supported by the evidence. The protestant claims that the installation of cable costs, transportation costs of equipment to the operating site and the amount required as working capital do not appear but these claims are beyond the scope of the exception and so are not for consideration here. Cases cited supra.

In stating other claims the protestant considers the evidence in the light most favorable to the protestant. Our consideration of the evidence must be in the light most favorable to the finding and read so as to support it if that can reasonably be done. A finding must stand if the record discloses evidence, which, upon any rational view, supports it. Bagalio v. Hoar, 118 Vt. 384, 388, 110 A.2d 719. On review we do not weigh the evidence since its persuasive effect and the credibility of the witnesses are for the triers of fact to determine. Petition of Citizens Utilities Co. 117 Vt. 285, 287, 91 A.2d 687.

The evidence disclosed that the petitioners were considering two types of ferry, one a scow to be operated on a cable and that they would have to pay $8,000 for the scow; the other type would operate on its own power. They had received a figure of $21,000 from one...