Vermont Valley Railroad v. Connecticut River Power Company of New Hampshire

• Decision Date: 05 May 1926
• Citation: 133 A. 367,99 Vt. 397
• Parties: VERMONT VALLEY RAILROAD v. CONNECTICUT RIVER POWER COMPANY OF NEW HAMPSHIRE
• Court: Vermont Supreme Court

133 A. 367

99 Vt. 397

VERMONT VALLEY RAILROAD v. CONNECTICUT RIVER POWER COMPANY OF NEW HAMPSHIRE

Supreme Court of Vermont

May 5, 1926

May Term, 1924.

ACTION OF TORT for recovery of damage from maintenance of dam by consolidated corporation on river between states of its constituent corporations. Plea, general issue. Trial by jury at the September Term, 1922, Windham County, Chase, J presiding. Verdict directed for defendant, and judgment thereon. The plaintiff excepted. The opinion states the case.

Judgment reversed and cause remanded.

Stickney Sargent & Skeels, and Arthur P. Carpenter, William B. C. Stickney and Walter S. Fenton of counsel for the plaintiff.

McLellan, Carney & Brickley, and Curtis & Curtis (of Boston, Mass.), for the defendant.

Present: WATSON, C. J., POWERS, TAYLOR, SLACK, and BUTLER, JJ. ^[1]

OPINION

SLACK

The plaintiff is a corporation organized and doing business under the laws of this State. It owns a line of railroad which runs southerly from the village of Bellows Falls to the village of Brattleboro, and is built much of the way near the west bank of the Connecticut River. Some time prior to 1920 the defendant built a dam across this river south of the village of Brattleboro, which it has maintained to the present time. The west end of such dam is in the town of Vernon, Vermont, and the east end is in the town of Hinsdale, New Hampshire. In maintaining and operating such dam the water of the river has been raised to a considerable height above the natural channel, and set back upon and against the embankment of plaintiff's roadbed. The plaintiff claims, and alleges in its complaint, in substance, that in the spring of 1920, by reason of defendant's maintenance and operation of its dam as aforesaid the plaintiff's embankments, fills, roadbed, and its construction of earth, rubble, and masonry were washed out, carried away, and otherwise injured and damaged, and its roadbed made defective and rendered unsafe for travel, etc. This suit is brought to recover compensation for such injuries and consequential damages. The complaint contains two counts: One based on the charter liability hereinafter referred to, and the other based on the common law liability.

The defendant accepted service of the writ, entered a general appearance in the case, and took a trial by jury on the merits. At the close of plaintiff's evidence, the court, on motion of defendant, directed a verdict for defendant, and rendered judgment thereon. The case is here on plaintiff's exceptions to the exclusion of certain evidence offered by it, and to the granting of defendant's motion for a verdict.

The defendant is a corporate entity resulting from the consolidation of the Connecticut River Power Company, a corporation chartered and organized under the laws of this State (See Act 201, Laws of 1902, as amended by Act 209, Laws of 1904, and Act 340, Laws of 1906), and the Connecticut River Power Company of New Hampshire, a corporation chartered and organized under the laws of New Hampshire (See Laws of New Hampshire, Chapter 306, Laws of 1903, as amended by Chapter 244, Laws of 1907, and Chapter 326, Laws of 1909). The object of the constituent corporations was identical, namely, the development of the water power of the Connecticut River for commercial purposes. Each of the constituent corporations was authorized to construct a dam or dams across the Connecticut River at any point opposite the towns of Brattleboro and Vernon in this State, south of the suspension bridge from Brattleboro to Chesterfield, New Hampshire; and in most respects here material the powers conferred and the limitations imposed by the charters of the respective constituent corporations were, in effect, the same. The same persons, some of whom resided in this State and others in New Hampshire, constituted a majority of the incorporators of each of the constituent corporations. The charter of each constituent corporation contained the following provision:

"This corporation may merge and consolidate its capital stock, franchise and property with, and may acquire the capital stock, franchise and property of any other corporation or corporations formed under the laws of any other state, for the same purpose that this corporation is organized. Any other such corporation which shall take and acquire the capital stock, franchise and property of this corporation shall have all the rights of and be subject to all the duties and obligations of this corporation in every particular, as provided in this act."

The charter of the New Hampshire corporation contained the following provision:

"It shall be the duty of the Connecticut River Power Company, at all times, to fully, properly, and efficiently protect the railroads, highways, and highway bridges mentioned in this section, and to compensate said railroad corporations and towns respectively, for all injury or damage sustained by them, or either of them, in consequence of the construction or operation of any dam, dams, or any other work done or structure erected by this corporation."

The railroads there mentioned, one of which is the plaintiff, are located in this State; the highways are in the towns of Hinsdale and Chesterfield, New Hampshire, and the highway bridges are those in the latter towns and three across the Connecticut River, namely, one between Walpole, New Hampshire, and Westminster, Vermont, one between Hinsdale, New Hampshire, and Brattleboro, Vermont, and the other between Chesterfield, New Hampshire, and Brattleboro, Vermont.

No similar provision appears in the charter of the Vermont corporation.

The agreement under and by which the consolidation was effected, after reciting the fact of incorporation of each of the constituent corporations, and the fact that each was given authority under the terms of its charter to merge and consolidate with any other corporation as above set forth, and the fact that both were incorporated for the same purpose, proceeds as follows:

" Whereas, both companies deem it advisable to merge and consolidate their capital stock, franchises and property with the object of creating a union of name, stock, business, property, rights, powers and privileges, and hereafter carrying on business as a single corporation so far as consistent with law, but so far as legally may be done without disturbing the legal identity of existence of each corporation so that it may be subject in the respective jurisdictions of Vermont and New Hampshire to the laws of each said states;

Now, Therefore, in consideration of the premises and of the mutual covenants and provisions herein contained, it is hereby agreed by and between the parties hereto as follows:

I. The capital stock, franchises and property of the New Hampshire Company and the Vermont Company are hereby merged and consolidated under the corporate name of 'The Connecticut River Power Company of New Hampshire,' as provided in section II of the amended charter of the Vermont Company and section 10 of the amended charter of the New Hampshire Company and as there provided the consolidated companies shall have all the rights of the New Hampshire Company and of the Vermont Company and be subject to all their duties and obligations and all the rights, franchises, privileges, exemptions, powers, and authorities, and all property, real, personal or mixed of every name and nature heretofore possessed, enjoyed or held by or granted to the New Hampshire Company and the Vermont Company shall be enjoyed and held by the consolidated companies. It being understood and agreed that the object of this merger and consolidation is to create a union of name, stock, business, officers, property, rights, franchises, powers and privileges, and to hereafter carry on business as a single corporation so far as may be consistent with law, but so far as may be legally done without disturbing the identity of existence of each corporation so that it may be subject in the respective jurisdictions of Vermont and New Hampshire to the laws of each of said states. Whatever may be the legal consequence of the consolidation herein provided for this agreement is to stand and be effective. This merger and consolidation shall be deemed to be effective upon the execution of this agreement by the officers of said companies and the ratification thereof by the present stockholders."

Section 2 of the consolidation agreement after providing for the amount and kind of capital stock of the consolidated companies, further provides:

"All shareholders and subscribers to stock in the New Hampshire Company and the Vermont Company shall, upon execution hereof, be deemed to be and shall become common shareholders in the consolidated companies to the same extent and with the same liability as now attaches to them as shareholders in the New Hampshire Company and the Vermont Company, and shall be entitled upon payment in full of any unpaid subscription to one share of common stock in the consolidated companies for each share of stock in the New Hampshire Company or in the Vermont Company. Subscribers for shares in the New Hampshire Company or in the Vermont Company shall be liable to pay to the consolidated companies any and all amounts subscribed for and unpaid for stock of the New Hampshire Company or the Vermont Company."

Section 3 provides that the office of the consolidated companies shall be at Hinsdale, New Hampshire, where all meetings of the stockholders shall be held, but that "it" may also maintain an office and hold meetings at Brattleboro, Vermont, and that the office may be changed from time to time in accordance with the law and the by-laws of the "company."

Section 6 provides:

"All obligations of the New Hampshire Company and of the Vermont...