Vermont Elec. Power Co. v. Anderson

• Decision Date: 06 January 1959
• Docket Number: No. 1864,1864
• Citation: 121 Vt. 72,147 A.2d 875
• Parties: , 27 P.U.R.3d 478 VERMONT ELECTRIC POWER CO., INC. v. John S. ANDERSON, Mary L. Anderson.
• Court: Vermont Supreme Court

Page 875

147 A.2d 875

121 Vt. 72, 27 P.U.R.3d 478

VERMONT ELECTRIC POWER CO., INC. v. John S. ANDERSON, Mary L. Anderson.

No. 1864.

Supreme Court of Vermont.

Jan. 6, 1959.

Fayette & Deschenes, Burlington, Bloomer & Bloomer, Rutland, for appellant.

John D. Carbine, Edwin W. Lawrence, Rutland, for appellee.

Before CLEARY, C. J., and ADAMS, HULBURD, HOLDEN, and SHANGRAW, JJ.

HOLDEN, Justice.

This is an appeal from an order of the Public Service Commission in condemnation proceedings. The plaintiff Vermont Electric Power Company, Inc. seeks to acquire a right of way across lands of the defendants John S. and Mary L. Anderson for the purpose of constructing an electric power line to transmit electric energy generated at the St. Lawrence Power Project at Massena, New York. On May 15, 1958, the Public Service Commission issued its order authorizing the plaintiff to take the right of way by eminent domain. The defendants, husband and wife, own the property sought to be condemned. They bring separate appeals.

Appeal of John S. Anderson

The assignment of error made by the defendant John S. Anderson, attacks the order on three procedural points. First, he complains that the stenographic transcript of the proceedings before the Commission were not furnished him pursuant to the provisions of paragraph 5 County Court Rule 31. Paragraph 5 details the procedure to be followed in ordering and procuring the transcript by the excepting party in causes heard in the County Courts. It provides that the reporter shall file the completed transcript with the County Clerk who shall deliver the transcript to the party ordering the same upon the payment of the balance due the reporter. In the instant case it appears that the transcript was filed by the reporter with the clerk of the Public Service Commission. The clerk transmitted the stenographic record to the clerk of the general term of the Supreme Court.

The question whether County Court Rule 31 has application to appeals from the Public Service Commission is not before us. It does not appear that this defendant, as the excepting party ever called upon the Commission to rule on the point. Nor is the question raised by the bill of exceptions of this defendant. Although the appellant was given leave to amend his exceptions, no amendment was offered to cover the error, if any there was. Appellate review does not extend to questions that were not raised in the proceedings below and not brought to the appellate court by a bill of exceptions. Collins v. Fogg, 109 Vt. 433, 436, 199 A. 251; Abel's, Inc. v. Newton, 116 Vt. 272, 275, 74 A.2d 481.

Beyond that, however, it appears that the original transcript of these proceedings was filed with the Clerk of this Court on June 4, 1958. It has been readily available for delivery to either defendant if required in the preparation of this appeal. This fact was specifically called to the attention of the parties by interlocutory order of this Court, entered more than thirty days in advance of the date especially appointed for the filing of briefs by the appealing parties. No intrusion upon any right of this defendant is established by this claim of error.

The bill of exceptions of the defendant John Anderson, as originally drafted and prepared, contained a provision to stay the order of condemnation and its execution. In signing the bill of exceptions passing the cause to the Supreme Court, the chairman of the Public Service Commission struck this provision. This appellant contends that this action by the Commission chairman was 'Contrary to the law and in violation of equal protection of the law and due process.'

V.S. 47, § 9345 of Chapter 397 provides: The judgment and findings of the commission shall be final, except that a party who feels himself aggrieved thereby may appeal to the supreme court pursuant to the provisions of section 9296. Such appeal shall suspend execution of the judgment of such commission, but the supreme court, or a single justice in vacation, may vacate the suspension as justice and equity require.

The legislative origin of § 9345 is found in No. 163 of the Acts of 1915. § 7 of this enactment conferred the power of eminent domain on public service corporations other than railroads. In granting this power, it is expressly provided that an appeal from the judgment of the Public Service Commission in condemnation proceedings 'shall suspend execution of the judgment, order or decree of said commission, but the supreme court, or when not in session, a justice thereof may vacate the suspension as justice and equity require.' As originally enacted, this section had direct application to condemnation proceedings. Although its sequence has been changed in subsequent statutory revisions, its substance and application remain unchanged. See In re Blake, 107 Vt. 18, 26, 175 A. 252; Cuthbertson v. Ritchie, 99 Vt. 50, 54, 130 A. 756.

The appeal in these proceedings vacated the order of condemnation by operation of § 9345. And any act of the Commission chairman could not override the application of the statute. The provision for suspension of the order in appellant's bill of exceptions was surplusage. It concerned a matter in which the chairman had no authority. The power to suspend the operations of the order in condemnation causes is reserved to the Supreme Court or a single justice in the event the Court is not in session.

On June 3, 1958, a date when the Supreme Court was not in session, the Chief Justice ordered that the pending appeals do not suspend the execution of the judgment of the Public Service Commission and provided that plaintiff might take immediate possession of the condemned property. It was further provided, however, that the order should not become effective until the plaintiff filed an adequate bond, conditioned that the plaintiff 'pay all damages of every kind and nature whatsoever arising out of its possession and use of the premises if it is ultimately determined that the Petitioner is not entitled thereto.' A corporate surety bond in the penal sum of $25,000, approved by the Chief Justice, was furnished to protect the defendants from any damage that might occur from the operation of the Commission order pending its review by this Court.

In so doing, jurisdiction was expressly reserved to modify, amend, annul or revoke this order after hearing, on application of any party in interest. No application for modification has been presented.

The defendant has failed to indicate, in any particular, wherein he has been denied equal protection or due process of the law in the appellate procedure that has been followed in this aspect of his appeal. Safeguards beyond the requirement of the statute have been imposed to protect his property rights in the event his appeal should be sustained. His claim of shortgage of constitutional guaranties is without merit.

The final point presented by the appeal of this defendant relates to the plaintiff's petition. This exception stands on paragraph 14 of the defendants' motion to dismiss the petition wherein the defendant stated: 'There is nothing more obviously essential to the petitioner's case than a sufficient description of that which it proposes to acquire. It cannot put on the landowner the burden of determining what or how much it requires to accomplish its purpose. The sought-for rights should be specified with certainty.'

The petition specifies the right of way sought to be condemned by exact courses and distances. It refers to specific monuments on the ground. The boundaries are fixed and certain.

The petition seeks the acquisition of this particular right of way 'together also with the right to enter upon and cross other property owned by the petitionees for the purpose of gaining access to said one hundred fifty foot strip and right of way in order to thereon exercise any of the rights hereby conveyed, provided that said right must be exercised in a careful manner and any damage to the property of the Petitionees caused by the Petitioner shall be borne by the Petitioner. Reserving to the petitionees, their heirs, executors, administrators and assigns the right to cross and recross said strip at such places as may be necessary in using the land adjacent to said strip provided such crossing and recrossing shall not interfere with the rights herein granted.'

The interest in land sought to be taken in condemnation proceedings must be described with certainty and accuracy. This is the general requirement of the law. Otter Tail Power Co. v. Von Bank, 72 N.D. 497, 8 N.W.2d 599, 145 A.L.R. 1343, 1347; City of Winchester v. Ring, 312 Ill. 544, 144 N.E. 333, 36 A.L.R. 520, 526. See also 18 Am.Jur. Eminent Domain, § 325, pp. 969-970; 29 C.J.S. Eminent Domain § 259, pp. 1228-1231.

The requirement of the law is fulfilled if the description is such that the landowner is not misled and its defect may be cured upon demand. Illyes v. White River Light & Power Co., 175 Ind. 118, 93 N.E. 670, 671-672; State ex rel. Chelan Electric Co. v. Superior Court, 142 Wash. 270, 253 P. 115, 58 A.L.R. 779, 787. Here the defendant makes no claim he was misled. And he did not request that the description of the property be amplified or more particularly stated.

That the principal right of way is described with sufficient certainty is manifest from a reading of the petition. The secondary right of access, although set forth in less precise terms, purports to acquire nothing more than the law implies from the primary easement. Where the right of access is not expressly defined or limited, the grantees are entitled to a convenient and reasonable approach with proper regard to the interest and convenience of the dominant and servient owners. Lafleur v. Zelenko, 101 Vt. 64, 70, 141 A. 603; Stevens v. MacRae, 97 Vt. 76, 81, 122 A. 892; Kinney v. Hooker, 65 Vt. 333, 337, 26 A. 690.

To draw a precise line of demarcation between the reciprocal rights and obligations that obtain...