Pilgrim Plywood Corp. v. Emery A. Melendy
| Decision Date | 04 October 1938 |
| Citation | 1 A.2d 700,110 Vt. 12 |
| Parties | PILGRIM PLYWOOD CORP. v. EMERY A. MELENDY ET AL |
| Court | Vermont Supreme Court |
May Term, 1938.
Bill in Equity to Enjoin Closing of Little River Dam---1. Illegality of Discontinuance of Roads Sufficiently Alleged---2. Rights of One Suffering Special Damage from Public Nuisance---3. Application to Obstruction of Highway---4. Relief by Injunction---5. Petition under P. L Ch. 202 to Lay out New Highway Not Adequate Remedy---6. Right of One Whose Means of Ingress and Egress Is Completely Cut Off---7. Injunctive Relief Suspended Because Dam Erected for Flood Control.
1. In suit in equity against members of board of public works and others to restrain closing of outlets to dam, which would result in flooding roads leading to plaintiff's timber lands, allegations that no proceedings had been commenced for discontinuance of such roads of which plaintiff had notice or knowledge and that negotiations looking to adjustment with plaintiff had been started and then broken off with denial of liability on part of defendants, were sufficient to raise question as to whether defendants proceeded without regard to rights of plaintiff, as against objection that discontinuance of roads was not alleged to have been illegal.
2. A person who suffers special damage from erection and maintenance of public nuisance is entitled to relief in his own right, but it must appear that injury is distinct from that suffered by general public.
3. Rule that person who suffers special damage from erection or maintenance of public nuisance is entitled to relief, applies in proper cases to obstruction or destruction of public highway.
4. Where person suffers special damage from erection and maintenance of public nuisance, relief by injunction may be had because of lack of adequate remedy at law and in order to prevent multiplicity of suits.
5. Corporation seeking to enjoin closing of outlets of dam which would result in flooding roads leading to its timber lands, did not have adequate remedy at law by petitioning town under P. L. Ch. 202 to lay out highway giving access to its property, since under P. L. 4777 and 4782 it probably would be required ultimately to pay at least considerable portion of expense of such highway.
6. One whose means of ingress to and egress from his property is completely cut off by an obstruction suffers special injury different from that suffered by public at large and is entitled to relief by injunction whether or not his property is contiguous to highway at place where obstruction occurs.
7. In suit in equity to restrain closing of outlets of dam, which would result in flooding of highway leading to plaintiff's timber lands, injunctive relief to which plaintiff was entitled was suspended to give defendants opportunity to acquire, by negotiation or otherwise, right to flood such highways, because dam involved was to be used mainly for public purpose of flood control.
APPEAL IN CHANCERY. Bill seeking to enjoin members of board of public works, army officers in charge of construction and Green Mountain Power Corporation from closing the outlets of the Little River dam, alleging that such closing will result in flooding the only roads giving access to timber lands owned by the plaintiff. The defendants demurred. Hearing upon the bill and demurrer at the September Term, 1937, Washington County, Sturtevant, Chancellor. Demurrer sustained and bill dismissed, by pro forma decree. The plaintiff appealed. The opinion states the case.
Decree reversed. Demurrer overruled.
Wilson Carver, Davis & Keyser for the plaintiff.
Lawrence C. Jones, Attorney General, for the defendants, Melendy, Rixford, Kilbourn, Ellman and Brown.
Fred E. Gleason (David F. Hoxie, of counsel) for the defendant Green Mountain Power Corporation.
Present: MOULTON, SHERBURNE and BUTTLES, JJ., and JEFFORDS, Supr. J.
The plaintiff in this suit in chancery is a Vermont corporation which is engaged in manufacturing logs into veneer and other wood products at a mill owned by it in Waterbury, Vermont. Plaintiff also owns, for use in connection with its business, a large tract of timber land in the towns of Waterbury and Bolton, situated in the valley of the Little River, also called the Waterbury River, and more particularly in that part of said valley which is drained by two tributary brooks known respectively as Cotton Brook and Ricker Mountain or Bryant Brook. Said timber lands of the plaintiff consist of about 2300 acres in the Cotton Brook area and about 2000 acres in the Ricker Mountain Brook area. A portion of said timber-land is heavily wooded with growing trees suitable to be cut at the present time and manufactured into veneer or other products, while other portions are wooded with trees not yet mature enough for cutting. The plaintiff estimates the stumpage value of the timber now suitable for cutting at $ 50,000.
The defendants Melendy, Rixford and Kilbourn constitute the board of public works of the State of Vermont, which board was created by No. 5 of the Acts of the Special Session of the Legislature of 1933, now chapter 207 of the Public Laws. The defendants Ellman and Brown are officers of the United States Army who have been in charge of the work and of the men engaged in the construction of the dam hereinafter referred to. The defendant Green Mountain Power Corporation has or claims to have some interest, present or potential, in the water power that may be produced through the use of said dam.
The defendants have constructed or caused to be constructed a dam built of rolled earth and other materials across the valley of said Little River at a point a short distance down stream from the confluence of Cotton Brook and Ricker Mountain Brook with said Little River, and down stream from said timber lands of the plaintiff. It is alleged that said dam is approximately 2000 feet long and 190 feet high, with a maximum thickness of 900 feet at the base and 35 feet at the top. The only means of access which the plaintiff has had to its said lands by which timber could be removed there from has been a highway leading up the Little River valley near the river, and branch highways leading therefrom up the valleys of Cotton Brook and Ricker Mountain Brook respectively. Both of these branch highways end before reaching the height of land which is above the plaintiff's lands. There are no other roads leading to the plaintiff's lands and it is alleged that the only practicable location for highways by which said lands can be reached is up the valleys of said Little River and its said tributaries.
Water cannot be raised by said dam to a height sufficient to flood the lands of the plaintiff, but closing even of the lower gates with which the dam is provided will result in flooding the highway above the dam to such an extent as to make it impassable. A portion of said highway, it is alleged, is already under water. The dam is equipped with other gates at higher levels and if these are all closed and the water raised to the highest level possible the flooding of the highway will be much more extensive and the branch highways in the valleys of the brooks referred to will also be flooded to some extent. The topography of the valley is such that the highway could not be relocated therein above the section likely to be flooded except at very great expense, and the plaintiff alleges on information and belief that title to the land over which it would be necessary to build such relocated highway has been taken by the defendants for the State of Vermont. The plaintiff further alleges that defendants assured plaintiff that it would be furnished a highway or indemnified by the state board of public works, by reason of which assurance plaintiff was lulled into a belief in its own security and delayed starting proceedings to protect its rights. No steps have been taken by the defendants to comply with their said assurance and they have since denied any liability to the plaintiff.
Said dam is being built under an arrangement between the State of Vermont, the United States Government and the Green Mountain Power Corporation. The board of public works, acting for the State of Vermont, is required to provide for the project the land, rights and rights of way, and to pay all land damages necessary to or occasioned by the construction of said dam. In the present suit in chancery the plaintiff prays that the defendants be enjoined and restrained from closing the outlets from said dam and from permitting them to remain closed in case they shall have been closed prior to the adjudication of the matter. To the bill of complaint all of the defendants demurred and upon hearing by the chancellor the demurrer was sustained by pro forma decree, from which decree the plaintiff has appealed to this Court.
Defendants contend that discontinuance of the highways in question is not alleged by the plaintiff in its bill of complaint to have been an illegal discontinuance and therefore can afford no basis for this action. The plaintiff does allege, however, that no proceedings have been commenced of which plaintiff had notice or knowledge, and as above stated after negotiations had been started looking to some kind of an adjustment such negotiations were broken off by the defendants who then denied any liability to the plaintiffs. This we think is a sufficient allegation that the defendants have proceeded without regard to any rights which the plaintiff may have, and it would follow that if the plaintiff has any individual rights in the matter which the law recognizes and protects, then the obstruction and destruction of highways would be illegal as to the plaintiff. We proceed to inquire whether the plaintiff has such rights.
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