Vermont Hydro-Electric Corporation v. James C. Dunn

Decision Date08 January 1921
Citation112 A. 223,95 Vt. 144
CourtVermont Supreme Court

May Term, 1920.

APPEAL IN CHANCERY. Bill to enjoin the defendants, who are the mayor and aldermen of the city of Rutland, from further prosecuting proceedings to condemn certain water rights owned by the plaintiff for the purpose of increasing the city's water supply. Heard on the defendants' demurrer to the plaintiff's bill after the September Term, 1919, Rutland County, Fish, Chancellor. Decree overruling the demurrer taking the bill as confessed, and perpetually enjoining the defendants from further conducting or prosecuting said condemnation proceedings. The defendants appealed.

Decree overruling the demurrer is affirmed. In other respects the decree is reversed pro forma, and the cause remanded, with leave to apply. Let the plaintiff recover its costs.

Leonard F. Wing and Walter S. Fenton for the defendants.

Lawrence Lawrence & Stafford for the plaintiff.



This bill is brought to restrain the defendants, who are the mayor and aldermen of the city of Rutland, from further prosecuting proceedings by which the city is seeking to condemn certain water rights owned by the plaintiff for the purpose of increasing its water supply. The cause was heard below on demurrer to the bill, and resulted in a decree for the plaintiff from which the defendants appeal.

Briefly, the case stated is in substance this: The plaintiff is a public service corporation organized under the general laws of the State with the power of eminent domain, and authorized, among other things, to build hydro-electric plants, to generate, distribute, and supply electricity to the public and to acquire necessary water rights for that purpose. It owns and operates several hydro-electric plants by means of which it is supplying electricity to municipalities, corporations, and individuals for power, lighting, and heating purposes in some twenty towns in this State. Demands are made upon the plaintiff for electric current throughout the territory served by it greatly in excess of the amount it can generate with present facilities; and in order to supply the demands so far as possible the plaintiff is now purchasing large quantities of electricity from others, which it intends to and should, in the proper conduct of the business, replace as soon as possible with electricity generated at its own hydro-electric plants. To meet these demands it is necessary as soon as possible for the plaintiff to construct hydro-electric plants to use for generating electricity all the water power it now owns, which it has already been authorized to do by the Public Service Commission. The plaintiff owns water and flowage rights and other interests in land of great value along the north branch of Cold River in the towns of Mendon and Shrewsbury, recently acquired pursuant to the orders of the Public Service Commission, which it intends to use in the construction of a hydro-electric plant generating large quantities of electricity and of especial value to the plaintiff because of its location with reference to transmission lines and other plants which it owns or controls. The electricity generated at such plant when constructed is to be used for public purposes within the State. The proceedings sought to be restrained were commenced on December 16, 1919, about two months after the plaintiff acquired the rights in the north branch of Cold River. The defendants propose thereby to take the water rights of the plaintiff in Cold River by power of eminent domain and to divert the waters thereof for the purpose of an additional water supply for the city of Rutland. The right to condemn the water is denied on the ground that the property sought to be so taken is owned and held by the plaintiff for a public use; and it is asserted that the proceedings to take the same are contrary to law and an invasion of the plaintiff's rights, which if persisted in will cast a cloud upon its title and cause it great and irreparable damage without any adequate remedy at law.

Three grounds of demurrer are assigned which are briefly as follows: (1) For that the defendants are authorized by statute to take the water rights described in the bill for the purpose contemplated; (2) for that the property in question is not now devoted to a public use, mere intent to do so in the future being insufficient in law to exempt the property from condemnation for the purposes of the municipality; (3) for that the use to which the city of Rutland proposes to devote the property is of so much greater comparative importance and more general public benefit than that to which it is alleged the plaintiff intends to devote it that the city has the superior right.

The charter of the city of Rutland vests the administration of all municipal affairs in the city council consisting of the mayor and board of aldermen. The powers of the city council with respect to the taking of land, etc., for purposes of a water supply, are found in No. 277, Acts of 1915, amending the charter of the city. Therein the council is authorized among other things to provide a supply of water for the protection of the city against fire and for the use of its inhabitants, and from time to time to increase such supply. It is provided that in the exercise of the powers enumerated the city "may purchase and take, within or without its corporate limits, lands, springs, streams and water rights of individuals and corporations, and divert waters from natural channels into its water supply, on making compensation therefor." It is recognized by the defendants that the power of eminent domain thus granted to the city is general in character. No question is made by the plaintiff but that ordinarily such a general delegation of power would be sufficient to enable the city council to take lands, etc., for the purposes of the city's water supply. As already appears, the proceedings are resisted by the plaintiff solely on the ground that the property which the defendants are undertaking to condemn is already devoted to a public use, placing it beyond the reach of the city in the proper exercise of the power conferred by its charter. In logical order the second ground of the demurrer, which challenges this position, is first for consideration.

It is the settled law of this State that property already legally appropriated to a public use cannot be taken for another public use without legislative authority expressly given or necessarily implied. Rutland-Canadian R. Co. v Central Vt. Ry. Co., 72 Vt. 128, 133, 47 A. 399; Rutland Ry., etc., Co. v. Clarendon Power Co., 86 Vt. 45, 50, 83 A. 332, 44 L.R.A. (N.S.) 1204. To bring property within the immunity from condemnation under general legislative authority it is not necessary that it be acquired by eminent domain. If its owner has devoted it to a public use which he is under a legal obligation to maintain, it comes within the protection of the rule. 2 Nichols on Em. Dom., § 364; 2 Lewis on Em. Dom. (3d ed.) § 443; Rutland Ry., etc., Co. v. Clarendon Power Co., supra; Barre R. Co. v. Montpelier & W. R. R. Co., 61 Vt. 1, 17 A. 923, 4 L.R.A. 785, 15 Am. St. Rep. 877; In re Saratoga Ave., 226 N.Y. 128, 123 N.E. 197. And it is not necessary that the property be actually in use for the public purpose to exempt it from the proceeding. In other words, it may be appropriated or devoted to a public use within the law of eminent domain without being actually put to such use. Rutland Ry., etc., Co. v. Clarendon Power Co., supra; In re Newport Ave., 218 N.Y. 274, 112 N.E. 911; New Haven Water Co. v. Wallingford, 72 Conn. 293, 44 A. 235. But a mere voluntary assumption of public service which may be abandoned at any time does not carry with it the privilege of exemption. The test whether land is held for a public use such as will exempt it from condemnation is said not to be what the owner does or may choose to do but what under the law he must do, and whether a public trust is impressed upon it. A corporation does not so hold its property impressed with a trust for the public use unless its charter or the general law puts that character upon it so that it cannot be shaken off. In re New York., etc., Ry. Co., 99 N.Y. 12, 1 N.E. 27. While land kept by a corporation bound by law to serve the public in reasonable anticipation of future needs cannot be seized for a different public use under general authority, land held for purposes other than those pertaining to its franchise may be taken as freely as from a private individual. 2 Nichols on Em. Dom., § 364, and cases there cited. The element of necessity plays an important part in the determination of the question. While liberal consideration should be given to the future as well as the existing needs of the corporation, the exemption will not extend to property held for future use upon the mere possibility that it may at some future time become necessary to the exercise of its corporate franchise. Reasonable expectation of future needs is required to protect the property from condemnation. Scranton Gas & Water Co. v. Delaware, etc., R. Co., 225 Pa. 152, 73 A. 1097; Goldfield, etc., Pr. Co. v. Old Sanstorm, etc., Mining Co., 38 Nev. 426, 150 P. 313; Cincinnati, etc., R. Co. v. Village of Belle Centre, 48 Ohio St. 273, 27 N.E. 464; 20 C. J. 601. The court must deal with conditions that exist at the time condemnation is asked. Kansas, etc., R. Co. v. Northwestern, etc., Coal Co., 161 Mo. 288, 61 S.W. 684, 51 L.R.A. 936, 84 Am. St. Rep. 717. Nor is the exemption indefinite in point of time, but the property must be subjected to the use for which it is held within a reasonable time. ...

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  • President And Fellows of Middlebury College v. Central Power Corporation of Vermont
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    • October 3, 1928 imposed upon the property, whether public has a legal right to the use which cannot be denied or withdrawn at pleasure of the owner. Vermont Hydro-Electric Corp. v. Dunn, supra; Street Market Co. v. Philadelphia & R. Terminal R. Co., 142 Pa. 580, 21 A. 989; Fountain Park Co. Appt. v. Hen......
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    ...or devoted to a public use within the law of eminent domain without being actually put to such use." Vermont Hydro-Electric Corporation v. Dunn, 95 Vt. 144, 149, 112 A. 223, 226. 17 "The prior use doctrine applies to land held . . . to accommodate reasonably foreseeable future demands . . .......
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1 books & journal articles
    • United States
    • FNREL - Special Institute Rights-of-Way How Right is Your Right-of-Way (FNREL)
    • Invalid date
    ...Id. [110] E.g., Township of Weehawken v. Erie R.R. Co., 120 A.2d 593, 598 (N.J. 1956). [111] Vermont Hydro-Electric Corp. v. Dunn, 112 A. 223, 226 (Vt. 1921). See also City of Norton v. Lowden, 84 F.2d 663, 666 (10th Cir. 1936) (applying Kansas law, court required that there be "reasonably ......

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