Stearns v. City of Barre

• Decision Date: 14 August 1901
• Citation: 73 Vt. 281,50 A. 1086
• Court: Vermont Supreme Court
• Parties: STEARNS et al. v. CITY OF BARRE.

50 A. 1086

73 Vt. 281

STEARNS et al.

v. CITY OF BARRE.

Supreme Court of Vermont. Washington.

Aug. 14, 1901.

Exceptions from Washington county court; Tyler, Judge.

Petition by Annie Stearns and others against the city of Barre for the appointment of commissioners to inquire into the convenience and necessity of the taking and condemnation of certain property under-Acts 1894, No. 165, § 55, subd. 14, as amended by Acts 1896, No. 145, § 3, and to inquire as to the damages sustained by petitioners. From a judgment overruling a motion to dismiss the petition so far as it related to the taking and condemnation, defendant excepted. Appeal dismissed.

Argued before TAFT, C. J., and ROWELL, TYLER. MUNSON, START, WATSON, and STAFFORD, JJ.

R. M. Harvey and Frank J. Martin, for petitioners.

J. W. Gordon, S. H. Jackson, W. E. Barney, and George W. Wing, for defendant.

MUNSON, J. The petition states that the petitioners are dissatisfied with the condemnation and appropriation of their property by the petitionee and with the amount of compensation allowed, and prays for the appointment of commissioners to inquire as to the necessity, manner, and right of such taking, and the damages caused thereby. The petitionee moves to dismiss so much of the petition as relates to the taking, on the ground that the determination of that matter by the city council is final. The petitioners insist that the provision authorizing the condemnation entitles them to the same appeal that is allowed from the decisions of selectmen in highway proceedings, and that, unless the provision can be construed to authorize an appeal, it must be held to be unconstitutional. Subdivision 14, § 55, Acts 1894, No. 165, as amended by section 3, Acts 1896, No. 145, authorizes the city council to provide a supply of water for protection against fire and for sanitary, domestic, and other purposes, and provides that upon making compensation therefor it may take and condemn the lands, water, water privileges, rights, and property of any person, company, or corporation within the counties of Washington and Orange, except such as may have been acquired by other municipal corporations before the passage of the act, and contains the following provisions regarding procedure and appeal: "In taking such lands, water, water privileges, rights and property, for such purposes, said city council shall proceed in the same manner as selectmen of towns are authorized by law to proceed in taking lands for highways; and the same right to appeal to the county court from the decision of the city council in the awarding of damages for the taking of such lands, water, water privileges, rights and property shall be allowed; and such appeal shall be taken in the same manner as is provided by law for appeals from the decision of selectmen in matters of highways; except that such appeal shall not prevent the said city from proceeding with its works as though no such appeal had been taken." The clause which provides for proceedings like those had in highway cases applies only to the taking. The clause granting an appeal restricts it to the decision awarding damages. The intention to do this is indicated by the further provision that the work shall proceed as though no appeal had been taken. So it becomes necessary to pass upon the petitioners' claim that the provision leaving the question of necessity to the determination of the officials of the municipality taking the property without allowing an appeal renders the act unconstitutional.

The petitionee insists that it was clearly within the power of the legislature to leave this matter to the final determination of its city council. It is said that the action of the legislature in exercising the right of eminent domain is conclusive upon the courts as regards the question of necessity; that, instead of exercising this right directly, the legislature may grant authority to exercise it to any corporation or individual, and that the grantee of this authority may determine whether it shall be exercised, and when, and to what extent; that inasmuch as the property is taken for the public use, and the owner assured of a just compensation, the interest the grantee may have in the takingis of no consequence; that the owner has no constitutional right to be heard upon the question of necessity, and that its reference to a judicial tribunal is a matter of favor, and not of right. Various text-books on the law of eminent domain and the decisions of many states are cited in support of these propositions. It will be well, however, to make some examination of the cases before conceding the entire soundness of these views, at least in their application to the question as presented by this act The subject has not been extensively treated in our own cases, but in a matter of this nature and importance the slightest references should receive careful attention. In Hatch v. Railroad Co., 25 Vt 49, 61, the defendant's charter gave it the right to determine the location of its road, subject only to very general restrictions; and in discussing the questions directly in issue Judge Redfield remarked that, if the plaintiff desired to question the propriety of the location, it "should have been done by mandamus or injunction or some proper process to arrest and correct the evil at the time of its being built." In Hill v. Railroad Co., 32 Vt. 68, the charter of the company authorized it to take such lands as were necessary for the construction of its road and requisite accommodations, and the company surveyed certain land for depot grounds at Manchester. The referee found that a part of the land so surveyed was never necessary to the company for railroad purposes, and would not become so prospectively. The court held that under its charter the company could not acquire any more land, nor any greater estate therein, for the purpose of a roadbed or stations, than was really requisite for such uses; but that the directors could lay out their road and stations as they saw fit and that as long as they acted in good faith, and not recklessly, their decision as to the quantity of land required for depot accommodations would be regarded as conclusive. In the opinion Judge Redfield says that the right to exercise the power of eminent domain is made dependent upon rendering an equivalent in money "and the implied compact not to acquire more land than they need"; and, again: "Unless they act rashly, or in bad faith, it is not very obvious how they are to be controlled in the matter. No doubt if they act recklessly or extravagantly, so as to indicate either utter-incompetence, or corruption, or undue influence, or bad faith, a court of equity, at the suit of the landowner or the stockholders, would set the matter right." In Eldridge v. Smith, 34 Vt 484, it was said that when land is taken for legitimate railroad use, the judgment of the locating officers is conclusive as to the quantity required for that purpose, unless the quantity taken is "clearly beyond any just necessity." In Williams v. School Dlst, 33 Vt 271, Judge Poland says that it rests wholly with the legislature to say whether sufficient necessity exists to Justify the granting of the power, and that courts will not interfere with its discretion, "at least not unless the entire absence of any necessity be shown." In Foster v. Bank, 57 Vt. 128, where the statute in question was held unconstitutional because of the failure to make adequate provision for compensation, the court treated the want of necessity and the failure to provide for compensation as of the same effect, saying that the constitution limits the right to take private property to cases where necessity requires it for a public use, and where just compensation is made, and that any legislative act authorizing such an appropriation when such a necessity does not exist, or which does not provide far compensation, is plainly in conflict with the constitution. The treatment of this subject by the courts of other states will sufficiently appear from a brief review of some of their cases. In Ex parte Manhattan Co., 22 Wend. 653, upon an application for the appointment of commissioners to value certain land taken by the company, it was alleged that the land was not needed for any purpose contemplated by the charter; but the court said the legislature seemed to have invested the company with a discretion nearly, if not quite, absolute; at any rate, to have made them so far the judges of the matter that the court could not arrest them on the pending application; perhaps in no way except by a direct proceeding for an abuse of their powers. In Cotton v. Boom Co., 22 Minn. 372. the court found it unnecessary to decide whether the legislature could have authorized the defendant to determine the question of necessity conclusively, but held that it could authorize the defendant to make a determination of it that would be prima facie good and binding, and that it had done this, at least, by authorizing the defendant to designate the lands necessary to be' taken. In Re Albany St., 11 Wend. 149, 25 Am. Dec. 618, which was a proceeding in connection with the opening of a street, it was objected that the extension through the church-yard was not a public necessity, and the court said that question was not before It; that, if it had the power to review the decision of the corporation in that particular, it could not do so upon the pending motion. In Railroad Co. v. Gott, 25 Mo. 540, the charter gave the company a right to hold a strip of land the whole length of the road, not exceeding 100 feet in width, and provided that in passing hills or valleys it might extend said width in order to effect said object. The petition alleged that the survey at the place in question passed hills and valleys, and that a strip 150 feet in width was necessary for the construction of the road. The court held that this allegation was not traversable, saying that it was doubtless...