Powers v. State Highway Bd., 1920

Citation178 A.2d 390, 123 Vt. 1
Case DateFebruary 23, 1962
CourtUnited States State Supreme Court of Vermont

Monti & Free, Barre, for plaintiff.

Louis P. Peck, Legal Asst. to Atty. Gen., for defendant.


HULBURD, Chief Justice.

This appeal comes to us before final judgment pursuant to 12 V.S.A. § 2386. The fact that such appeals may be taken only in the discretion of the court below serves to indicate that it is not every question of law which ought to pass to us in this manner. This case illustrates how important it is that the court below exercise its discretion before permitting an accelerated appeal of this nature. It is not in football alone that eagerness to move ahead can result in fruitless offside play.

The trial below never got beyond the pretrial stage. The rulings presented to us for review were made at the pre-trial conference. They were based, the court's order tells us, on 'the pleadings and the representations of counsel during conference.' In effect, the court ruled on certain agreed facts, incorporating its rulings in what it denominated as 'Findings and Order.' From this order both parties were allowed to appeal as to certain questions, as to the rulings which were adverse to each.

The 'findings', or agreed facts, as set forth by the court below are as follows:

'That Plaintiffs occupied land owned by another, which land, insofar as Plaintiffs were concerned, was severed by Defendant in connection with construction of the so-called Interstate Highway project so as to make access thereto impossible, and thereby made it necessary for Plaintiffs to move its operation to another locality.

'That Plaintiffs conducted a mill business on said land and in connection therewith had placed certain buildings, machinary and equipment thereon.

'That Plaintiff originally entered said land by virtue of a lease which provided for a definite two year term, and also provided in effect that at the expiration of said term Plaintiffs might continue to occupy said land as long as they desired upon payment of rent in the amount of ten dollars each month and that Plaintiffs could terminate said lease by giving to lessor one month's notice of their intention to do so, at the expiration of which time said lease would terminate.

'At the time Defendant initiated proceedings to acquire the land the two-year term of said lease had expired and Plaintiffs were in occupancy by virtue of the latter provisions of the lease described above.

'Prior to the date of taking of the land by Defendant, Plaintiffs terminated their lease and moved their mill business to another location, detaching and removing certain machinery and equipment.

'The buildings of the Plaintiffs on the land severed by Defendant's highway project were not removed by said Plaintiffs.

'It was agreed between the parties that Plaintiffs' termination of its lease and removal of its mill business to another location prior to the date of taking by the Defendant would not impair or prejudice Plaintiffs' right to compensation or damages, if under the law, Plaintiffs were otherwise entitled to such compensation or damages, in any manner whatsoever.

'In connection with the operation of their mill business at the new location Plaintiffs constructed certain buildings and installed therein the machinery and equipment moved from the former location.

'The detaching, removal and reinstallation of Plaintiffs' machinery and equipment from the former to a new location, and the construction of buildings at the new location necessarily caused Plaintiffs to incur certain expenditures.'

It might be added that the plaintiffs' petition to the county court is a part of the printed case and contains a full recitation of what purports to be the lease in question, but the provisions of the lease have not been found as a fact except to the extent stated.

On the basis of the facts above set forth the trial court ruled as follows:

'Plaintiffs' occupancy of the land under its lease, severed by Defendant's highway project, was a periodic tenancy and not a tenancy at will.

'Plaintiffs' lease was property, or a right in property, and if there is any damage accruing to the Plaintiffs which was caused by the taking they are entitled to compensation therefor.

'As an item proper for compensation, Plaintiffs may show the cost of detaching their fixtures from the former location, and the removal thereof to, and the attaching thereof at the new location.

'Plaintiff may further show the value of the mill buildings at the former location before and after the taking, the difference therein being a proper item of damages which is compensable.

'Evidence as to the cost of logs being greater at Plaintiffs' new location than at the former location due to increased transportation and other factors is not proper as bearing on compensable damages. Such evidence is considered as being offered and excluded.'

Having in mind that this case never got beyond the pre-trial stage below, we have had from the time of its argument before us, the uncomfortable feeling that it has been introduced to us by a court which has had a necessarily limited opportunity to become acquainted with it. The introduction, therefore, has been correspondingly scanty. A further indication that we had not been furnished the complete situation surrounding the parties developed when it was acknowledged in the course of argument before us, that the State purchased the land on which the mill is located and has a deed of it. To the extent that the plaintiffs are tenants, the State has become the landlord.

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26 cases
  • Grievance of Gorruso, 86-179
    • United States
    • United States State Supreme Court of Vermont
    • May 27, 1988
    ...object sought to be attained by it. Stratton v. Cartmell, 114 Vt. 191, 194, 42 A.2d 419, 420 (1945); see also Powers v. State Highway Bd., 123 Vt. 1, 4, 178 A.2d 390, 392 (1962) (in getting at the intent of the parties to a contract, the situation of the parties and their objectives and pur......
  • Pyramid Co. of Burlington, In re, 125-81
    • United States
    • United States State Supreme Court of Vermont
    • June 8, 1982
    ...has also had ample opportunity to deal with the scope of interlocutory appeals under 12 V.S.A. § 2386. See Powers v. State Highway Board, 123 Vt. 1, 5, 178 A.2d 390, 393 (1962). Both the federal and Vermont precedents are important for this While disagreeing over some details, the federal c......
  • Isabelle v. Proctor Hospital, 145-70
    • United States
    • United States State Supreme Court of Vermont
    • October 5, 1971
    ...judgment will materially advance the course of the litigation. See, State v. Blondin (Vt. 1970), 270 A.2d 165, 166; Powers v. State Highway Board, 123 Vt. 1, 5, 178 A.2d 390; V.R.A.P., Rule In the questions certified, there are two of serious dimension which, in our judgment, deserve attent......
  • State v. Blondin, 62-70
    • United States
    • United States State Supreme Court of Vermont
    • October 6, 1970
    ...the termination of the litigation. Miller Automobile Co. v. State Highway Board, 126 Vt. 389, 391, 233 A.2d 48; Powers v. State Highway Board, 123 Vt. 1, 6, 178 A.2d 390. The rule has particular application with salutary force and effect in the conduct of criminal cases. This is especially ......
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