State v. Thomas, s. 439-80
| Decision Date | 03 November 1981 |
| Docket Number | Nos. 439-80,440-80 and 441-80,s. 439-80 |
| Citation | 140 Vt. 403,438 A.2d 400 |
| Parties | STATE of Vermont v. Robert Gene THOMAS. STATE of Vermont v. Rudolph Kent OUIMETTE. STATE of Vermont v. William John THOMAS. |
| Court | Vermont Supreme Court |
David G. Miller, Franklin County State's Atty., and Marianne Lipscombe, Deputy State's Atty., St. Albans, for plaintiff.
John J. Easton, Jr., Atty. Gen., and John H. Chase, Sp. Asst. Atty. Gen., Montpelier, for amicus curiae Water Resources Bd.
Law Offices of George E. Spear, II, Swanton, for amici curiae landowners Cabot and Clark.
Sheehey & Brue, Burlington, for Thomas.
Farrar & Counos, St. Albans, for Ouimette.
Before BARNEY, C. J., BILLINGS, HILL and UNDERWOOD, JJ., and DALEY, J. (Ret.), Specially Assigned.
This is an interlocutory appeal granted pursuant to V.R.A.P. 5(b) to determine controlling questions of law embodied in the defendants' request to charge. The request concerned the limits of ownership of lake shore land as it meets the water's edge on Lake Champlain. Such littoral boundaries require recognition of the fluctuations in water level of Lake Champlain, and the public's right to use the waters overlying the land between the ordinary low and high water levels, for recreational purposes.
This dispute grows out of a duck hunting expedition which took place October 3, 1979, in which the three defendants went by airboat upon the waters of Lake Champlain and in particular an arm of the lake called Charcoal Creek. After proceeding into a marsh area beyond "no hunting" signs which had been posted by the littoral proprietors, the three men were arrested and subsequently charged by information with violations of 13 V.S.A. § 3705(a)(1) (unlawful trespass) and 10 V.S.A. § 5204(a) (poaching).
Trial commenced on December 3, 1980, with the three cases consolidated. Each of the defendants had pled not guilty to both of the charges against him. The thrust of their argument was that the littoral owners on Lake Champlain own only to the waters' edge, but even if they owned to a point beyond the water's edge, the public has the right to use the overlying waters for recreational purposes.
Prior to the close of defendants' case, and prior to completion of the State's cross-examination of defense witnesses or presentation of its own case in rebuttal, the defendants sought permission to take this interlocutory appeal from the lower court's denial of their requested jury charge. In order to...
To continue reading
Request your trial
- State v. Stewart
-
Malletts Bay v. Mongeon Bay Properties, LLC
... ... Further, plaintiff argues that the superior court was required to state its own reasons for balancing the equities and that it failed to do so ... ¶ 6 ... ...
-
Cabot v. Thomas, 84-236
...in the criminal case growing out of this same incident involved an improper vehicle for presenting their claims. State v. Thomas, 140 Vt. 403, 405, 438 A.2d 400, 401-02 (1981). The questions raised in this case and in prior Charcoal Creek controversies lie at the crosscurrents of two import......
-
Lindquist v. Adams, 01-178.
... ... or unwillingness to produce evidence, findings were not clearly erroneous given "the state of the proof") ... The court's conclusion that it was Adams' burden to ... ...