State Highway Bd. v. Loomis

• Decision Date: 01 November 1960
• Docket Number: Nos. 1147,1149,s. 1147
• Citation: 165 A.2d 572,122 Vt. 125
• Court: Vermont Supreme Court
• Parties: STATE HIGHWAY BOARD v. Carroll K. and Doris M. LOOMIS et al.

Page 572

165 A.2d 572

122 Vt. 125

STATE HIGHWAY BOARD v. Carroll K. and Doris M. LOOMIS et al.

Nos. 1147, 1149.

Supreme Court of Vermont.

Nov. 1, 1960.

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

Gannett & Oakes, Brattleboro, for defendant.

Before HULBURD, C. J., and HOLDEN, SHANGRAW, BARNEY and SMITH, JJ.

BARNEY, Justice.

To advance the construction of U. S. Route 91 north from Brattleboro through Putney and Westminister to the Rockingham town line the State Highway Board filed a petition with the appropriate court in Windham County. The board sought determination of the necessity for the taking of certain lands and rights lying along the proposed line of this highway, which is to be a limited-access road forming part of the so-called interstate highway system. Hearings were held, findings made and two judgment orders issued. The first order held that the board had established necessity for takings along the projected line of the interstate itself, but had failed to establish the necessity for the takings proposed in connection with the interchange set out in its petition. The court ruled that the appropriateness of an interchange in the area was established, and ordered a further hearing on the subject, which was duly held. Thereafter the court issued a second order holding that necessity had been established for a taking in connection with an access road and interchange located on different properties and along a line nearly two miles north of the access road and interchange location proposed in the board's petition.

Certain interested property owners took exception to the first judgment order and the highway board took exception to the second. Although the proceedings originated under a single petition, with the division in the court below into separate 'main line' and 'access road' determinations, the two issues were separately docketed. Before this Court the questions relating to the two judgment orders were separately argued, but on the same day and with recognition of their interrelated nature on the part of all counsel concerned. Issues raised by certain of the exceptions have relevance with respect to both judgment orders. For that reason, this opinion will treat all of the appealed questions raised in connection with the petition.

At the hearing interested persons were allowed and invited to express opinions and make statements in connection with the proposed highway routing. No witness oath was administered in connection with these statements. When it was proposed to cross-examine one of these persons, the trial judge ruled that such examination would be permitted only if the witness oath were administered and the testimony taken as direct rather than cross-examination. Exception was taken to this ruling by counsel for the property owners and the reception of unsworn testimony objected to. This is claimed to be error so prejudicial as to require a new hearing.

Undoubtedly with this exception in mind the court in its findings referred to its allowance of the making of statements by certain parties who declared themselves as having special or particular interests in the proceedings. The court then said, 'Such statements represented personal opinions, not under oath, and were excluded from consideration in the preparation of these Findings.'

Where the tribunal itself declares that statements given before it were not used in preparing findings, this Court will presume no use was made, unless the contrary is demonstrated. Bloomstrand v. Stevans, 104 Vt. 1, 4, 156 A. 414; Raithel v. Hall, 99 Vt. 65, 74, 130 A. 749; Lynch's Adm'r v. Murray, 86 Vt. 1, 13, 83 A. 746. No showing of improper use of unsworn testimony has been made before us, and the burden rests upon the complaining party to show that the actions of the trier were prejudicial. In re Estate of Moody, 115 Vt. 1, 10, 49 A.2d 562; [Perry v. Wheeler], 331 U.S. 814, 67 S.Ct. 1201, 91 L.Ed. 1833; In re Taft's Estate, 114 Vt. 505, 512, 49 A.2d 102.

Highway engineer Gordon Lane testified on behalf of the board with respect to the expenses involved in building the interstate highway along the route proposed in the board's petition. On cross- examination questions were directed to him concerning the comparable expenses if the highway were built along a certain alternate line urged by the property owners, which was at one time studied by the highway department. He gave cost figures for construction, preliminary engineering and right of way for both the proposed route and the alternate route. His figures showed a differential of $600,000 in favor of the proposed line, with a total cost estimate of $3,126,000 for the proposed route. He was then asked if he had a breakdown of these cost figures and he replied that he did not. The cross-examiner thereupon inquired if the department had them and the witness replied he was sure they did. Demand was then made for the production of the figures. It subsequently developed that the information had been mislaid and was no longer in the possession of the department. However, counsel for the board, although he stated that he felt that such evidence was part of the property owner's case, agreed to have the figures recalculated and furnished before the end of the hearing.

During the course of extended cross-examination a complete breakdown of the construction, preliminary engineering and right of way cost estimates for the proposed line came into evidence by way of testimony or exhibits. The projected possible land taking on the alternate route, a property use breakdown for that route and aerial photographs showing its location, all as worked up by the department, were also furnished during the examination of this witness. The detailing or breakdown of the construction cost figures for the alternate route were not provided until after the close of the hearing, and admittedly were the product of a recomputation by the department. The exception of the property owners asserts that the failure to provide these figures accompanied by an opportunity to further cross-examine the witness Lane was such an abridgment of their right of cross-examination as to be a denial of due process.

The right of cross-examination is so basic to our system of trial process that a showing that it was totally denied as to material testimony amounts to a demonstration of error. State v. Teitle, 117 Vt. 190, 196, 90 A.2d 562. Provided the right itself is not infringed, however, control of the extent of cross-examination is within the discretion of the trial court. Gero v. John Hancock Life Ins. Co., 111 Vt. 462, 473, 18 A.2d 154. In the absence of an abuse of the exercise of discretion in limiting the scope and extent of cross-examination, the ruling of the trial court is not revisable here. State v. Aronson, 111 Vt. 129, 130, 11 A.2d 214; Parker v. Hoefer, 118 Vt. 1, 7, 100 A.2d 434, 38 A.L.R.2d 1216.

The course of the examination of the witness Lane has some significance. He was the first witness for the board when the hearing opened on the morning of April 10, 1959. During that morning his direct examination was completed and cross-examination begun which lasted the rest of the day. The hearing adjourned until April 13 when this witness continued his testimony under redirect examination and recross-examination, questioning on both sides ending during the morning session. The hearing continued on April 15 and at noon on April 16 the board rested. The evidence presented by the property owners then went in and the evidence closed that same afternoon.

At the close of the board's case the request for the cost figures was renewed and it was then indicated that recomputation might require a week or more. The court stated it was taking the motion under advisement and made no ruling. At the close of all of the evidence the property owners rested subject to production of the cost figures and further examination of witness Lane in connection with them. The court then gave the board two weeks to produce the figures. It further ruled that insofar as the motion by implication or direct request represented a continuance of the hearing for the purpose of direct and cross-examination on those figures, the motion was denied. It is with the exception to this ruling, described above, with which we are now concerned.

Quite properly, the trial judge viewed the motion as having two aspects, the first being a request that the highway board furnish certain information. Since the board had consistently indicated its willingness to provide the requested data, there was no occasion for the court to rule, other than to establish the time within which the information was to be supplied.

The second aspect of the motion related to further cross-examination of the witness Lane. As has been shown, extended opportunity to cross-examine had already been provided and had been put to use. What was sought here went beyond an examination of the witness on the basis of the state of his knowledge, observation, recollection, veracity and other testimonial qualifications as of the time he was presented as a witness. Having stated that he did not himself have and could not then and there reproduce the details of the alternate line cost computations, he apparently was to school himself in the figures as recomputed by the department so as to then be eligible for cross-examination on them. This the trial judge refused to permit, in the interests of expedition. It is in precisely this area of pursuit of details relating...