President And Fellows of Middlebury College v. Central Power Corporation of Vermont

• Decision Date: 03 October 1928
• Parties: PRESIDENT AND FELLOWS OF MIDDLEBURY COLLEGE ET AL. v. CENTRAL POWER CORPORATION OF VERMONT
• Court: Vermont Supreme Court

143 A. 384

101 Vt. 325

PRESIDENT AND FELLOWS OF MIDDLEBURY COLLEGE ET AL. v. CENTRAL POWER CORPORATION OF VERMONT

Supreme Court of Vermont

October 3, 1928

May Term, 1928. [Copyrighted Material Omitted]

Capacity of College To Hold Property in Trust---Corporations---Property in Trust for Purpose Collateral to Express Purposes of Institution---Eminent Domain---Requisites To Take Property Already Devoted to Public Purpose---Distinction Between Public and Private Uses---Requisites of "Public Use"---Status of Lands Used for Public Park---"Park"---Charities---Gifts for Parks as Charitable Gifts---Validity of Grant to Individual in Trust for Public---Dedication Applicable to Land for Parks---Manner in Which Dedication of Land for Public Park May Be Established---Meaning of Term "Dedication"---Express or Implied Dedication---Intention of Owner---Elements of Dedication---Sufficiency of Dedication of Land to College for Park---Effect of Power of Trustees of College To Prescribe Reasonable Rules and Regulations as to Use and Enjoyment of Park---Construction of Will---Conditions Subsequent Not Favored---Language in Will Held To Constitute Expression of Terms upon Which Declaration of Trust Made---Pleading---Demurrer as Admitting Facts Properly Alleged---Necessity in Taking Land by Eminent Domain That Primary Use Be Public---Provision in Trust Requiring Admission of Public to Park, as Characterizing Devise---Parties---State as Proper Party To Enjoin Condemnation Proceedings by Power Corporation To Acquire Part of Public Park---Courts---Court of Equity as Proper Tribunal To Enjoin Condemnation Proceedings by Power Corporation To Acquire Part of Public Park.

1. President and Fellows of Middlebury College, having been given power by its charter (Act of November, 1800, section 1) "to have, take, possess, acquire, purchase or otherwise receive lands," etc., held to have legal capacity to take lands devised to it in trust as a park for benefit of college, its students, citizens of State, and visitors therein, subject to reasonable rules and regulations to be prescribed by trustees of such college, there being nothing in trust repugnant to, or inconsistent with provisions of charter of college.

2. A corporation may take property upon a trust not strictly within scope of expressed purposes of its institution, but collateral to them.

3. Property already appropriated to a public use cannot be taken for another public use without legislative authority, either express or implied.

4. The distinction between public and private uses lies in the character of the use, and determination thereof cannot be made upon consideration of legal principles alone, but economic conditions and needs of people must have attention.

5. To constitute a "public use," the use must be in common, and not for a particular individual, but enterprise does not lose character of public use because such use may be limited by circumstances to a comparatively small part of the public.

6. It is essential to a "public use," as term is used in proceedings involving law of condemnation or eminent domain that public must, to some extent, be entitled to use or enjoy property not by favor, but as a matter of right.

7. Lands granted or taken for a public park are devoted to a "public use," as being advantageous to public for recreation, health, or enjoyment, since air, exercise, and recreation are important to general health and welfare.

8. A "park" is a piece of ground set apart and maintained for public use, in such a way as to afford pleasure to the eye as well as opportunity for open air recreation, its object being to promote public health and enjoyment.

9. Gifts in trust for laying out and improvement of public parks are valid charitable gifts.

10. To constitute a valid charitable gift, it is not essential that State, or any political subdivision thereof, should be holder of legal title to property so given, but State, or public, may be cestui que trust, hence a grant to an individual in trust for State, or public, is valid, in absence of statutory prohibition.

11. Appropriation of land for a public park may be by dedication on part of owner, doctrine of dedication being applicable to public parks and squares.

12. Fact of dedication of land for a public park may be established in same manner as in case of streets and highways.

13. A "dedication" is the setting apart of public land for public use.

14. A "dedication" may be either express or implied.

15. While no particular form of words, oral or written, is necessary to make a dedication, intention of owner to devote property to public use must clearly appear.

16. A "dedication" consists of an offer and an acceptance, and is an application of the doctrine of estoppel in pais; the offer by owner being the representation, and use by public making estoppel complete.

17. Devise of certain parcels of wild land to corporation President and Fellows of Middlebury College, to preserve intact as a specimen of original Vermont forest, in trust as a park for benefit of college, its students, citizens of State, and visitors therein, subject to reasonable rules and regulations to be prescribed by trustees of such college, held dedication of land to a public use.

18. Power of trustees to fix reasonable times and regulations as to access to and enjoyment of park by public, held not to detract from public character of devise, since one who gives land to public may prescribe terms and limitations upon which he gives it.

19. A will is not to be construed with an over-regard for technical niceties, but testator's intention is first consideration.

20. Testator's intention is to be ascertained by taking whole context of will.

21. Conditions subsequent are not favored in law, and if language of an instrument can be otherwise construed without violating plain intent of maker thereof, it will be done.

22. A will is not to be construed as creating a condition, although technical words are used, when intention of testator, as gathered from entire document, is otherwise.

23. In will devising land to President and Fellows of Middlebury College, in trust as a park, for benefit of college and its students, subject to reasonable rules and regulations to be made by trustees of such college, further provision that, "It is a condition of this devise that said trustees shall, at 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," held not to indicate an intention by testator to affix a condition to the devise, but to constitute an expression of terms upon which declaration of trust was made.

24. Where acceptance by trustees of dedication of land in trust to a public use, and consequent use and enjoyment by public are amply alleged in bill seeking to enjoin condemnation of part of land by an electric power corporation for purpose of development of its storage and electrical power project, demurrer to bill admits facts so alleged.

25. Land can not be taken by eminent domain when public use for which power is exercised is contingent and prospective and private use or benefit is actual and present, but where primary use is public and private advantage merely incidental, primary public use is deemed to be controlling and to characterize purpose for which property is to be required.

26. In devise of land to President and Fellows of Middlebury College in trust for benefit of college, its students, citizens of State, and visitors therein, subject to reasonable rules and regulations by trustees of college, held that obligation to admit citizens and visitors being as direct and binding as that in regard to students, and latter class being included in former, public use was primary and characterized devise.

27. Where devise of land for a park was a gift in trust for a public use, the State, through its Attorney General, is a proper party to maintain and defend rights of public therein, in suit to enjoin condemnation of part of land by electric power corporation.

28. A court of equity is proper tribunal in which to proceed to protect rights of beneficiaries in devise of land in trust for park purposes, as well as legal rights of trustee, from threatened continuing trespass, by condemnation of part of land by electric power company.

APPEAL IN CHANCERY. Heard on pleadings in vacation after the December Term, 1928, Addison County, by Sherman, Chancellor. From a decree overruling demurrer to complaint of President and Fellows of Middlebury College and State of Vermont against Central Power Corporation, and perpetually enjoining defendant from further prosecution of condemnation proceedings, wherein such power company was seeking to acquire a part of land, for storage and power purposes, devised to President and Fellows of Middlebury College in trust as a park for benefit of itself, its students, citizens of the State, and visitors therein, the defendant appealed. The opinion states the case.

Decree overruling demurrer affirmed, and in other respects decree reversed pro forma, and cause remanded to permit answer to be filed.

E. W. Lawrence for the defendant.

Land in question was devised primarily to Middlebury College, and access to park by citizens of Vermont and visitors is only incidental; and college being private corporation, with powers limited by its charter, fact that it has no power to hold property as trustee or otherwise for a public use shows that testator did not intend to, and did not, create a public use within legal meaning of term. Vermont Hydro-Electric Corporation v. Dunn, 95 Vt. 144, 12 A. L. R. 1499.

A public benefit does not constitute a public use. Tyler v....