the Menut & Parks Co. v. Village of St. Johnsbury

• Decision Date: 03 October 1944
• Parties: THE MENUT & PARKS CO. v. VILLAGE OF ST. JOHNSBURY
• Court: Vermont Supreme Court

39 A.2d 342

114 Vt. 41

THE MENUT & PARKS CO. v. VILLAGE OF ST. JOHNSBURY

Supreme Court of Vermont

October 3, 1944

May Term, 1944.

Remedy for Raising of Roadbed of Highway.

1. P L. 4808, having been enacted for the purpose of curing a defect existing in the law at the time of its passage, is a remedial statute.

2. A remedial statute, passed for the purpose of changing a common law rule, must receive a liberal construction; it is to be reasonably interpreted with reference to the evil it is intended to remedy.

3. In interpreting a statute, a presumption obtains against a construction that would render it ineffective, and a construction that would lead to absurd consequences is to be avoided if possible.

4. The erection over a street of an elevated viaduct, intended for general public travel, constitutes a change of grade.

5. The raising of a street grade by erection over the street of an elevated viaduct constitutes a raising of the roadbed.

6. Where a roadbed is raised at the instance of the officials of a village and is for the benefit of the village, the village assumes all of the liabilities incident to such raising, it being immaterial that the actual work and costs may be borne by an outside agency.

7. Where the roadbed of a highway is raised more than three feet an adjoining landowner is entitled to his remedy under P. L 4808--4812, inc., it being immaterial that the circumstances may be such as to confer jurisdiction over the change upon the Public Service Commission.

8. In construing P. L. 4808 it is to be held that a building standing two or three feet back from the property line is upon the line in the meaning of the statute.

9. When public officers refuse to perform the duties required of them by law, a person having a legal interest therein and injured by such refusal is entitled to the issuance of a writ of mandamus.

PETITION FOR A. WRIT OF MANDAMUS, submitted on the petition answer and an agreed statement. Washington County.

Judgment that the prayer of the petition asking for a determination and award of damages is granted with costs to the petitioner. Let a mandate issue, directing the trustees of the village of St. Johnsbury to forthwith give notice to the petitioner of a time when they will examine the petitioner's premises with buildings thereon, located at the northeasterly corner of Portland and St. Mary streets in the village of St. Johnsbury, and hear it upon the question of damages, if any, resulting from the raising of the roadbed of Portland street in front of petitioner's premises, more than three feet, the time of such examination and hearing to be not more than ten days after the giving of such notice. If of the opinion that the petitioner has suffered or will sustain damage by reason of such alteration, the trustees shall determine and award the amount thereof to the petitioner, taking into account by way of set-off thereto, such special benefit, if any, as has accrued or shall accrue to the petitioner by reason of such alteration. The trustees shall make their order and award for damages or refusal to award damages to the petitioner in writing, and shall cause the same to be recorded in the office of the clerk of the village of St. Johnsbury, within ten days from the time of making the same, all in accordance with the provisions of P. L. 4808, 4809 and 4810.

Witters & Longmoore for the petitioner.

Arthur L. Graves for the petitionees.

Present: MOULTON, C. J., SHERBURNE, BUTTLES, STURTEVANT and JEFFORDS, JJ.

OPINION

STURTEVANT

This is a petition for a writ of mandamus. Among the allegations of the petition, it is stated that the trustees of the village of St. Johnsbury raised the roadbed in front of a building owned by the petitioner and standing upon the line of Portland street in that village, more than three feet, without giving notice to the petitioner and in violation of their duties as fixed by P. L. secs. 4808 to 4812, inc. This proceeding is brought to obtain a compliance with the provisions of those statutes by the village trustees. The case is submitted on the petition and answer and an agreed statement. From these, among others, the following facts appear.

The petitioner is a Vermont corporation and at all times here material has been engaged in the business of selling and delivering various kinds of fuel in the village of St. Johnsbury. Railroad street extends through the village in a north to south direction. Portland Street, which is a public highway, begins at Railroad street and extends from there easterly through the village and on, to and through New Hampshire to Portland, Maine. The petitioner owns a parcel of land in the village which has a frontage on Portland street of about fifty feet. On this lot is a wooden building the first floor of which was formerly occupied by the petitioner as an office in connection with its fuel business. This building has been in its present location and owned by the petitioner at all times here material, and is now rented as a tenement. Its southerly end faces Portland street for about twenty-five feet and is two or three feet northerly from the northerly boundary of that street. The premises are bounded on the west by St. Mary street which leads northerly from Portland street for about one fourth mile and has no other outlet or street connection. There are two Portland street railroad crossings in this vicinity, that of the Canadian Pacific railroad a short distance westerly and that of the Maine Central railroad a few feet easterly from the petitioner's premises. In October, 1940, the selectmen of the town of St. Johnsbury and the trustees of the village entered into an agreement with the State of Vermont, the purpose of which was to bring about the elimination of the two Portland street railroad crossings. Pursuant to this agreement, the state highway department, with the consent, approval and co-operation of the trustees of the village, has erected above and along Portland street a concrete and steel viaduct. This is approximately forty feet wide and consists of a concrete roadway with sidewalks and railings on each side and is supported by concrete piers except for a short distance at each end, where it is supported by a solid concrete abutment. The abutment at the westerly end is about thirty-four feet westerly from the aforementioned Canadian Pacific crossing. From that end the viaduct extends easterly about eight hundred ninety feet, passing over the two Portland street railroad crossings and the Passumpsic River. The viaduct is within the Portland street boundaries and the abutment at the easterly end is about twenty feet easterly of the point where River street comes into Portland street from the south. The old roadbed where Portland street abuts on the petitioner's lot has not been obstructed except by the erection of the aforementioned piers and except for such partial obstruction traffic may now pass over the old roadbed between the abutments, but this will not be true when the Main Central crossing is closed as the plan contemplates. The roadbed of the viaduct in front of the petitioner's premises is about twenty-five feet above the roadbed of Portland street as it existed for many years prior to this construction and at another point it reaches a maximum of about thirty-five feet above the former level of the street. The abutment at the westerly end closes the Canadian Pacific crossing. As a result traffic can no longer pass from the petitioner's premises or St. Mary street westerly over Portland street to Railroad street.

There is no direct access from St. Mary street or the petitioner's premises to the viaduct roadbed except that pedestrians may so pass by way of a long flight of stairs. Until the Main Central crossing is closed, traffic from either of these places may reach the roadbed of the viaduct by travelling easterly over the old roadway, thence over a new road known as the Portland street by-pass, to the easterly end of the viaduct, a distance of about fourteen hundred feet from the petitioner's premises. This route is now used only as a way of ingress and egress to and from the petitioner's premises, premises of the Peck Co. which adjoins petitioner's lot on the east, and St. Mary street. All other Portland street traffic past the premises of the petitioner passes over the viaduct. While that structure has been in use since October, 1943, the project is not yet completed as the Maine Central crossing has not yet been closed. This is to be done as soon as a new way of access to St. Mary street can be provided. In July, 1941, the selectmen of the town of St. Johnsbury brought a petition to the public service commission, setting forth that the State was about to erect the viaduct here in question and other facts material to that project and, among other things asking for an order closing the two Portland street railroad crossings and also for the extension of St. Mary street so as to connect it with another public street in the village. That petition named the petitioner in the case at bar as one owning lands abutting on Portland street and one who might be interested in the subject matter of the petition. No order has been made on the petition and it is still pending before the commission. The village charter, in section 14a, referring to the authority of the village trustees, states as follows. "... and may have the same power to lay out, alter, maintain and discontinue, any street, lane or walk within the village limits, and appraise and settle the damages therefor, as is given by law to the selectmen of towns,..." For purposes of this case only, it is admitted that the erection of the viaduct has caused substantial damage to the petitioner's premises. The village trustees have...