President and Fellows of Middlebury Coll. v. Cent. Power Corp. of Vt.

• Decision Date: 03 October 1928
• Citation: 143 A. 384
• Parties: PRESIDENT and FELLOWS of MIDDLEBURY COLLEGE et al. v. CENTRAL POWER CORPORATION of VERMONT.
• Court: Vermont Supreme Court

143 A. 384

PRESIDENT and FELLOWS of MIDDLEBURY COLLEGE et al.

v. CENTRAL POWER CORPORATION of VERMONT.

Supreme Court of Vermont. Addison.

Oct. 3, 1928.

[Copyrighted material omitted.]

Appeal in Chancery, Addison County; Alfred L. Sherman, Chancellor.

Suit by the President and Fellows of Middlebury College and the State of Vermont against the Central Power Corporation of Vermont. From a decree overruling a demurrer to the complaint, and perpetually enjoining defendant from further prosecuting condemnation proceedings, defendant appeals. Decree overruling the demurrer affirmed, and decree in other respects reversed pro forma, and cause remanded, with leave to apply for permission to file an answer.

Argued before WATSON, C. J., POWERS, MOULTON, and CHASE, JJ., and THOMPSON, Superior Judge.

E. W. Lawrence, of Rutland, for appellant.

Allen R. Sturtevant, of Middlebury, and Homer L. Skeels, of Ludlow, for trustee.

J. Ward Carver, Atty. Gen., and Walter S. Fenton, of Rutland, for the State.

MOULTON, J. By his last will and testament Joseph Battell devised to the president and fellows of Middlebury College certain parcels of wild land. The terms of the devise are found in the third paragraph of the will and are as follows:

"Being impressed with the evils attending the extensive destruction of the original mountain forests of our country, and being mindful of the benefits that will accrue to, and the pleasures that will be enjoyed by the citizens of the state of Vermont and the visitors within her borders, from the preservation of a considerable tract of mountain forest in its virgin and primeval state, and believing that the popularity of Middlebury College will thereby be greatly enhanced, I therefore further give and devise to the president and fellows of Middlebury College in trust forever * * * my lot in the town of Ripton, known as the 'gate lot' containing five hundred (500) acres, more or less, that I purchased of the late Albert Whitcomb, also all those portions of the land I purchased of the Whitcomb estate (including the wooded lot of the Miller farm) and of the land I purchased of Uriah Beech, and of the land I purchased of the Ladd estate, and of the land I purchased of Sylvester Fisher, and of one Boyce, and of the Murray lot, so called, and of my Taylor lot, so called, and of the land I purchased of S. G. Tisdale, being situated in said towns of Middlebury and Ripton, as form the wooded banks on both sides of Middlebury river north of the turnpike leading from East Middlebury to Ripton Village. To have and to hold said lands, with all their appurtenances, to said president and fellows of Middlebury College and their successors forever, in trust as a park for the benefit of said Middlebury College and the students thereof, subject to such reasonable rules and regulations as the trustees for the time being of said Middlebury College may make. It is a condition of this devise that said trustees shall, at reasonable and under reasonable regulations to be fixed by said trustees, allow the citizens of Vermont and visitors within her limits, access to said park and enjoyment of the privileges thereof. And it shall be the duty of said trustees to preserve as far as reasonably may be the forests on said park, and neither to cut nor permit to be cut thereon any trees whatsoever except such as are dead or down and such as it may be necessary to cut in making and repairing needful roads; it being a principal object of this devise to preserve intact said wild lands, especially the Hancock part thereof, as a specimen of the original Vermont forest."

After the decease of Joseph Battell, his will was admitted to probate, his estate duly administered, and by two decrees of the court of probate, the lands described in section 3 of the will were decreed to the president and fellows of Middlebury College in trust forever, as a park for the benefit of Middlebury College and students thereof, subject to such reasonable rules and regulations as the trustees for the time being of Middlebury College might make, and subject to the condition that said trustees should at all reasonable times and under reasonable regulations to be fixed by said trustees, allow the citizens of Vermont and visitors within her limits access to said park and enjoyment of the privileges thereof. The decree also defined the duties of the trustees as to the preservation of the forests of the park and the cutting of trees therein, as specified by the will.

Upon the making and entry of the decrees, the president and fellows of Middlebury College accepted the trust and, entered into possession of the premises, and are now, and since the decree have been actually engaged in the exercise of the provisions, powers, and duties of the trust, and the park has been opened for the use and benefit of the public in accordance with the provisions of the will, and the citizens of Vermont and visitors within the borders of the state are now, and since the opening of the park have been, using and enjoying the premises as and for a public park and deriving the benefit and enjoying the pleasures consequent thereon.

The Central Power Corporation of Vermont seeks to condemn a certain part of the gate lot, hereinbefore mentioned, and of the parcels of land along the wooded banks of the Middlebury river, and the river itself, for purposes of development of its storage and electrical power project, and to this end has filed its petition to the Public Service Commission of Vermont, which has set a day for hearing upon the same.

All of the foregoing is alleged in the bill of complaint in this case, in which the plaintiffs, the president and fellows of Middlebury College and the state of Vermont, pray that the defendant, the Central Power Corporation of Vermont, may be enjoined from conducting and prosecuting the condemnation proceedings, or any similar proceedings, with respect to the property described, and from taking the property by the exercise of the right of eminent domain. The plaintiffs claim that the premises sought to be condemned are a public park, which has been, by the will of Mr. Bartell, dedicated to a public use.

The Act of the Legislature of November 1, 1800 (Acts 1800, p. 36), incorporating the president and fellows of Middlebury College, and the entire will of Mr. Battell, are made a part of the bill of complaint and are set out in full. Certain provisions in each will be later considered because of their bearing upon the questions before us.

The bill of complaint has been met by a demurrer, the grounds of which are as follows:

(1) That the defendant is authorized by law to take the property in question for the purposes alleged in the bill.

(2) That the property is not devoted to a public use.

(3) That the property is held for the benefit of Middlebury College and the students thereof, subject to such reasonable rules and regulations as the trustees of the college may make, conditioned that said trustees shall at reasonable times and under reasonable regulations allow the citizens of Vermont and visitors within the limits of the state access thereto and enjoyment of the privileges thereof.

(4) That there is no dedication of the property to the use of the public exclusively.

(5) That there is no allegation of any special or legal damage resulting or to result to the plaintiffs or either of them, entitling them to the relief prayed for.

(6) That if the plaintiffs are entitled to any relief respecting the matters and things set forth in the bill of complaint, they have a plain, adequate, and complete remedy at law.

After hearing, the chancellor signed a decree overruling the demurrer, taking the bill as confessed, and perpetually enjoining the defendant from further prosecuting the condemnation proceedings. The defendant thereupon appealed.

A question is raised as to the power of the plaintiff to hold the lands in trust. The president and fellows of Middlebury College is, by its charter (section 1, Act of November 1, 1800), given the power "to have, take, possess, acquire, purchase or otherwise receive lands, tenements [sic], hered it aments, goods, chattels or estate," and it is said in Perin v. Carey, 24 How. 465, 505, 16 L. Ed. 701, 711:

"The law is that, where the corporation has a legal capacity to take real or personal estate, then it may take and hold it upon trust in the same manner and to the same extent as private persons may do. It is true that, if the trust be repugnant or inconsistent with the proper purposes for which it was created, that may furnish a good reason why it may not be compelled to execute it. in such a case, the trust itself, being good, will be executed under the authority of a court of equity."

To the same effect is Vidal v. Mayor, etc., of Philadelphia (the Girard Will Case) 2 How. 127, 11 L. Ed. 205, 230, 231.

And there is no objection, in point of law, to a corporation taking property upon a trust not strictly within the scope of the expressed purposes of its institution, but collateral to them. Vidal v. Mayor, etc., of Philadelphia, supra; Stearns v. Newport Hospital, 27 R. I. 309, 62 A. 132, 135, 8 Ann. Cas. 1176. We fail to perceive, in the trust as established by the will of Mr. Battell, any repugnancy or inconsistency with the provisions of the charter of the plaintiff corporation.

The principal, if not the only, remaining question in this case is whether the lands sought to be condemned are, by virtue of the trust created by the will of Mr. Battell, and accepted by the president and fellows of Middlebury College, dedicated to a public use, and actually so employed. If they are, they cannot be taken by condemnation proceedings; for it is the well-settled law of this state that property already appropriated to a public use cannot be taken for another public use without legislative authority, either express or implied. Vermont Hydro-Electric Co. v. Dunn et al., 95 Vt. 144, 149, 112 A. 223, 12 A....