Savers v. Montpelier & W. R. R. R.

• Decision Date: 15 May 1916
• Court: Vermont Supreme Court
• Parties: SAVERS v. MONTPELIER & W. R. R. R.

97 A. 660

90 Vt. 201

SAVERS

v. MONTPELIER & W. R. R. R.

Supreme Court of Vermont Orange.

May 15, 1916.

Appeal in Chancery, Orange County; Leighton P. Slack, Chancellor.

Action by J. M. Sayers against the Montpelier & Wells River Railroad. From a pro forma decree on the pleadings and master's report, dismissing the bill, the plaintiff appeals. Affirmed and remanded.

Argued before MUNSON, C. J., and WATSON, HASELTON, POWERS, and TAYLOR, JJ.

E. W. Smith, of Wells River, for appellant. H. C. Shurtleff, of Montpelier, for appellee.

TAYLOR, J. This proceeding grows out of the elimination of two grade crossings on the line of the Montpelier & Wells River Railroad in the town of Newbury. Pursuant to the statute, defendant preferred its petition to the Public Service Commission praying that the crossings be eliminated, and such proceedings were had thereon that, on October 7, 1912, the commission, having found that said crossings were among the most dangerous on the line of defendant's road and that public safety required that they be eliminated by the construction of a connecting section of public highway in the manner and locality indicated, made an order requiring the defendant to lay out and construct the connecting section of highway over the course and according to specifications detailed in the order. The commission also ordered the defendant to construct and, until further order, maintain a farm crossing at a point to be agreed upon with the plaintiff for the exclusive use of his land on the north side of the connecting section of highway; that all the work ordered be completed on or before May 1, 1913, and done to the satisfaction of the commission; that, upon the completion of the work ordered, the two highway crossings "shall forever thereafter be discontinued and abandoned as such, and the Montpelier & Wells River Railroad and its successors in the operation of said railroad shall forever thereafter fence and bar the same against public travel." The crossings to be eliminated were about 50 rods apart. The new road contemplated in the order was on the opposite side of the railroad from the old highway, but in the same general locality. After the work under this order was completed as it now is, and before plaintiff brought this bill, the commission made an order approving and accepting the work, opening the new highway for public travel, and closing said highway crossings. Plaintiff was made a party to the proceedings before the commission and appeared therein, but took no appeal from their orders.

In his bill of complaint, after reciting in detail the proceedings before and order of the Public Service Commission, plaintiff alleges that he is the owner of five dwelling houses and a water power located on the northerly side of defendant's railroad; that before the change effected by the order of the commission he had access to his premises by a public highway; that there is quite a large amount of travel to and from said premises; that to enjoy his premises it is necessary to have access to a highway; that the effect of said order and the action of the defendant has been to cut him off entirely from access to any public highway; that defendant has not complied with so much of said order as required it to construct and maintain a farm crossing for the exclusive use of his land, but neglects and refuses so to do; that defendant has never agreed with him as to the location of said farm crossing nor furnished an adequate crossing for his benefit; that there is a ledge cut across which defendant could construct an overhead bridge, which would accommodate him and obviate the necessity of his crossing the railroad at grade to reach his premises from the public highway. In an amendment to the bill plaintiff alleges that it has been of great damage to him not to have suitable access to a highway, which damage, he says, defendant ought to pay.

The prayer of the bill is that defendant may be compelled to build and maintain an overhead bridge in lieu of a crossing at grade, or to furnish other sufficient and adequate means of access to plaintiff's premises from the highway. There is also a prayer for general relief.

For answer the defendant admits that plaintiff is the owner of land situated as alleged in the bill, that it petitioned the Public Service Commission for the abolition of the grade crossings mentioned in the bill, that the commission ordered said crossings abolished, and that the effect of their abolition was to cut off the plaintiff's land from the public highway; but alleges that the commission ordered a farm crossing constructed so as to connect plaintiff's land with the public highway, that it agreed with plaintiff as to the location of said farm crossing, that it constructed said crossing agreeably to the order of the commission, that plaintiff took no appeal from said order, assisted in the construction of the crossing, and made no complaint in that regard until after the order of the commission had been fully complied with.

The cause was first heard before the chancellor on demurrer to the bill, which defendant incorporated in its answer. The demurrer having been overruled, the answer was ordered brought forward and issue thereon joined, and the cause was referred to a special master. In addition to the facts conceded in the pleadings the master finds that plaintiff agreed with defendant that a farm crossing should be constructed at the point where the original highway crossed the railroad near the easterly end of plaintiff's property; that it was mutually understood that defendant should provide a crossing at grade at that point and should also provide a way to reach the highway, a distance of about 10 rods, but that the location of the connecting way was not agreed upon; that defendant constructed the crossing over the tracks in a satisfactory manner; that the connecting way was constructed northerly of the old highway, turning nearly at right angles after crossing the track and extending for a distance of about 10 rods alongside the railroad track and very close to it, in part at least upon defendant's right of way; that the way was so constructed and railed that it was very narrow, not exceeding 12 feet in width; that the way from the crossing was never accepted by the plaintiff nor by the selectmen of the town of Newbury, but that both plaintiff and the selectmen refuse to accept it as carrying out the order of the commission; that plaintiff has no other way to reach his premises; that the action of defendant in so constructing the connecting way has decreased the annual rental value of plaintiff's property $125; that the value of plaintiff's premises will be greatly decreased and his water privilege rendered valueless, if plaintiff is confined to the present way and crossing, on account of the difficult approach thereto. In this connection the master finds that the crossing itself is sufficient and adequate, but that the crossing in connection with the connecting way is entirely inadequate for the purposes of plaintiff and the occupants of his land; that the most direct route from the crossing to the highway is along the line of the old highway; that, if that is not practicable under the circumstances, a way farther from the railroad track could have been constructed at about the same expense. He also finds that plaintiff was allowed and paid $200 for land used in constructing the new highway, but that this land damage had nothing to do with the farm crossing and the connecting way.

The cause was heard on the pleadings and master's report, the chancellor dismissed the bill strictly pro forma, and the plaintiff comes here on appeal.

In his bill plaintiff does not attack the jurisdiction of the Public Service Commission to make the order respecting a farm crossing, but bases his claim for equitable relief upon the failure of the defendant to comply with the order in that regard. He attempts now to raise the question of the jurisdiction of the commission to close the old highway and deprive him of the privileges thereof, as well as the constitutionality of the statute creating the commission. We pass without deciding whether these questions are properly here, not having been raised in the bill. As to the question of the constitutionality of the statute, it is enough to say that it was considered and the statute upheld in Sabre et al. v. Rutland R, R. Co., 86 Vt. 347, 85 Atl. 693, Ann. Cas. 1915C, 1269. It will be necessary to discuss the question of jurisdiction in connection with other matters presented in the bill.

Plaintiff states the real case made in his bill in the concluding paragraph of his brief, wherein he contends that defendant cannot shut up the old highway without affording him suitable means of getting from the new highway to his property, and that chancery has jurisdiction to compel defendant to do what in law it ought to do, and to pay the damages occasioned by its misconduct.

In considering plaintiff's standing in equity we must take into account that he was a party to the proceedings before the Public Service Commission. It nowhere appears that he appealed to the commission for the relief sought in this bill, nor for any relief that was not granted. Neither does it appear that he objected to the plan adopted by the commission for the elimination of the crossings, nor to their approval of the manner in which their order was carried out by the defendant. He did not see fit to avail himself of the appeal from the action of the commission which the statute secures to him, but stood by and saw the work being done under their orders carried to completion. In these circumstances will a court of equity interfere?

It should be observed that the order of the Public Service Commission is called in question collaterally in this proceeding. Within certain limitations, plaintiff is at liberty to attack the order collaterally, notwithstanding he was a party and could have...