NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal 

revision before publication in the Vermont Reports. Readers are requested to notify the Reporter 

of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court, 109 

State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made 

before this opinion goes to press.

2017 VT 83

No. 2016-396

In re Vermont Gas Systems, Inc. 

(William Marks, Nancy Baker, Linda Gage, 

Rachael Smolker, Melanie Pulley, Stephanie Spencer,

and Lawrence Shelton, Appellants)

Supreme Court

On Appeal from

Public Service Board

April Term, 2017

James Volz, Chair

Robert E. Woolmington and John D. Stasny of Woolmington, Campbell, Bernal & Bent, P.C.,

 Manchester Center, and James A. Dumont of Law Office of James A. Dumont, P.C., Bristol,

 for Appellants.

R. Jeffrey Behm and Justin A. Brown of Sheehey Furlong & Behm P.C., and William J. Dodge

of Downs Rachlin Martin PLLC, Burlington, for Appellee Vermont Gas Systems, Inc.

Louise C. Porter, Montpelier, for Appellee Department of Public Service.

PRESENT: Skoglund, Robinson, Eaton and Carroll, JJ., and Burgess, J. (Ret.), 

Specially Assigned

¶ 1. ROBINSON, J. This appeal requires us to decide whether land dedicated to a 

public use may be condemned for another public use when the new use does not materially 

interfere with the prior use. Intervenors, a group of Hinesburg residents who use Geprags Park, 

appeal the Public Service Board’s order authorizing Vermont Gas Systems, Inc. (VGS) to condemn 

an easement through the park for the purpose of installing a natural gas pipeline. They argue that 

the Board erred in authorizing the condemnation in light of the fact that the park was already 

dedicated to a public use, and in concluding that the condemnation was necessary under 30 V.S.A. 
2

§ 112(a)(2). We affirm the Board’s decision on the issues raised in this appeal, but remand for a 

minor correction to the order relating to the terms of the easement.

¶ 2. The following background facts provide context to this appeal. VGS had 

previously constructed a pipeline from the Canadian border to Burlington, was providing natural 

gas services to customers in Chittenden and Franklin counties, and sought to expand its services 

to customers in Addison County. In December 2012, VGS filed a petition with the Board for 

approval of a forty-one mile pipeline expansion that would run from Colchester to Middlebury.

Under 30 V.S.A. § 248(a)(3), VGS could not commence construction unless the Board concluded 

that the pipeline would promote the general good of the state and issued a certificate of public 

good (CPG) authorizing the project. Throughout the CPG proceedings, VGS’s proposed route for 

the expansion included a segment that went through Geprags Park in Hinesburg. The Board 

concluded that the project satisfied the eleven criteria established in § 248(b). It determined that 

the project would not impose undue negative consequences on any of the affected regions and 

identified several benefits that would flow from the project, including lower energy costs and a 

decrease in greenhouse gas emissions. The Board ultimately concluded that the pipeline would 

promote the general good of the state and issued a CPG in December 2013. VGS began 

constructing the pipeline expansion in the summer of 2014. 

¶ 3. The undisputed facts concerning the immediate appeal are as follows. Dora 

Geprags devised the park at issue to the Town of Hinesburg in 1991. A covenant in the decree of 

distribution provides that, “the property decreed hereby shall be used only as a public park or 

school or for public recreational or educational purposes.” The park covers approximately eightyfive and a half acres and contains a barn, a sledding hill, and walking trails. VGS sought an 

easement through this park in order to complete its pipeline expansion, but the Town would not 

voluntarily convey the easement to VGS because it determined that the decree’s covenant 
3

restricted its ability to do so. Subsequently, VGS and the Town stipulated to condemnation of an 

easement through the park for the pipeline. 

¶ 4. In October 2015, VGS filed a petition of condemnation with the Board, seeking to 

condemn a 1987-foot-long and fifty-foot-wide easement that runs north to south on the western 

side of the park. By that time, VGS had acquired easement rights from all other property owners 

along the pipeline route, prepared the pipeline corridor up to the northern and southern boundaries 

of the park, and begun construction of the pipeline on other parts of the route; the easement through 

the park was the last segment of the pipeline route that VGS needed to acquire to complete 

construction of the expansion. 

¶ 5. In March 2016, several residents of the Town and the Hinesburg Conservation 

Commission filed motionsto intervene in the proceeding. The Board initially denied these motions 

but after the intervenors filed a motion to reconsider, it allowed some, but not all, of the movants 

to intervene because they had a substantial interest in the use and enjoyment of the park which was 

different than that of the Town, and this interest could be impacted by the proceeding. These 

intervenors are the appellants in this appeal. 

¶ 6. In March 2016, the Town’s selectboard held a public meeting and voted against 

ratification of the stipulation with VGS. Soon thereafter, VGS filed an amended petition of 

condemnation with the Board, acknowledging that the Town no longer stipulated to the 

condemnation. VGS and the Town engaged in further discussions, and on August 1, 2016, they 

signed a revised stipulation for condemnation of an easement to the west of, and roughly parallel 

to, the Vermont Electric Power Company (VELCO) electricity transmission easement that ran 

through the park. The stipulation included the agreed-upon compensation for the easement, terms 

of VGS’s distribution of natural gas to customers in Hinesburg, and conditions that would restrict 

VGS’s use of the easement. It provided that VGS would use horizontal directional drilling (HDD),

meaning it would drill bores in the properties to the north and south of the park to install the 
4

pipeline thirty to fifty feet underground throughout the length of the easement without disrupting 

the land within the park.1 The stipulation provided that VGS would comply with plans to protect 

the golden-winged warbler habitat in the vicinity of the pipeline and to conserve the recreational 

uses and ecology of the park. The stipulation also included a proposed deed of easement that 

provided more details about VGS’s rights and restrictions. 

¶ 7. The Board conducted a site visit of the park on August 2, 2016, and held an 

evidentiary hearing two days later on August 4. VGS witnesses testified about the alternative 

routes VGS had analyzed and the impact of the easement on the park.2 Intervenors did not present 

testimony or other evidence. In their post-hearing briefing, intervenors contended that: (1) the 

prior public use doctrine as articulated by this Court barred the condemnation because the park 

was already dedicated to a public use; (2) if the Board were to recognize an exception to the public 

use doctrine that allowed condemnation when the new use would not materially interfere with the 

prior use, the easement would materially interfere with the use of the park; and (3) the 

condemnation was not necessary as required by 30 V.S.A. § 112(a)(2) because VGS did not show 

that the alternative routes were infeasible, more costly, or would result in greater impacts to natural

resources.

 

1

 A witness provided more details about HDD at the hearing. HDD allows the pipeline to 

be installed below ground without disturbing the surface of the park. It requires first drilling a 

bore below the surface of the property where the pipeline will lay, and then increasing the size of 

the bore until it is large enough for the pipeline. VGS planned for the entry and exit points of the 

bore to be to the north and south of the park, so it would not cause any drilling to occur within the 

park itself. Once the bore is large enough, the length of the pipeline is pulled through. The drilling 

process involves the use of drilling fluid that may escape into the ground or rise to the surface, 

which is called an inadvertent return and can be harmful to the environment. Although HDD does 

not require disrupting the surface of the park, VGS does need the rights to use a substantial area 

aboveground and adjacent to the route when installing it, because it needs a place to lay the pipe 

before pulling it into the bore.

2

 Intervenors made other arguments that the Board rejected and intervenors have not raised 

on appeal. We do not address these other arguments. 
5

¶ 8. On September 13, 2016, the Board issued a written order authorizing VGS to 

condemn the easement in the park. First, the Board determined that VGS had satisfied the 

requirements of 30 V.S.A. § 112. It concluded that the condemnation was reasonably necessary

pursuant to § 112(a)(2) so that VGS could provide adequate natural gas service in Addison and 

Chittenden counties.

¶ 9. With respect to the applicability of the prior public use doctrine, the Board 

recognized that this Court has not squarely addressed whether land dedicated to a public use may 

be condemned for another public use when the new use does not materially interfere with the prior 

use. It explained that other jurisdictions have recognized an exception to the doctrine which allows 

the condemnation of land when the new public use does not destroy or materially impair the prior 

public use. The Board concluded that the public use doctrine “is to be tempered in cases where 

the public good will best be served by requiring the joint use of a property that is already subject 

to a prior public use, provided the additional public use will not destroy or materially interfere with 

the prior public use.” It went on to conclude that VGS’s pipeline was a public use that would not 

interfere with the prior recreational use of the park. 

¶ 10. In its necessity analysis, the Board considered the alternative routes that VGS 

analyzed, including a route that went through the VELCO transmission corridor within the park 

and three routes that went around the park. The routes that went around the park were labeled the 

eastern route, western route, and far western route. The Board determined that all four alternatives 

were inferior to the proposed route. None of the routes around the park followed a straight line as 

called for by industry best practices, and all would be significantly longer and would require more 

pipe. They would all encounter terrain challenges because of soil instability, elevation changes, 

tree clearing, rocky ledges, highways, or houses. The alternative route through the VELCO 

transmission corridor also presented problems due to wetlands in the area and a house to the south 
6

of the park. The Board also noted that requiring VGS to pursue an alternative route would 

introduce the risk of further delay in completing construction of the pipeline.

¶ 11. The Board also determined that the condemnation would not unduly interfere with 

the orderly development of the area under § 112(a)(3). It concluded that the easement would not 

violate any community standards intended to promote the scenic preservation of the park because 

the pipeline itself would be completely underground and not visible to the public, and the pipeline 

markers and cathodic protection test access points the easement allowed VGS to install would not 

be intrusive to the park’s aesthetics. The Board further concluded that, because VGS would not 

disturb the surface of land within the park, installation of the pipeline would not affect park uses.

¶ 12. The easement approved by the Board included the following terms. VGS must use 

HDD to install the pipeline under the surface of the park. During and after construction, VGS may 

not exclude members of the public from the easement area except when necessary on a temporary 

basis for public safety. VGS may not construct “above-ground appurtenances” in the easement, 

except for “mandatory and lawfully required safety and operational appurtenances,” including 

pipeline markers and cathodic test leads, to be installed and maintained in consultation with the 

town. VGS may conduct regular route inspections on foot, and has the right within the easement 

area to inspect, maintain, repair, replace, reconstruct, and remove the pipeline. After installation 

it must use HDD “to the extent feasible” to repair, maintain, replace, reconstruct, or remove the 

pipeline. Except in exigent circumstances that pose a risk to public health or safety, VGS must 

provide reasonable notice to the Town when accessing the easement for maintenance and repair, 

and may only access the area where it meets the property boundaries on the north and south sides. 

VGS may cross other parts of the park to access the easement only in exigent circumstances. It 

must keep the easement area clear of debris during periods of construction, and it must remediate 

any damage it causes on park land in the event that the company disturbs the surface of the property 

during an emergency. The Town must consult with VGS and obtain written consent before
7

constructing any trails, unpaved roadways, or utilities structures, or constructing or storing any 

other objects within the easement area, and must construct such improvements as perpendicular to 

the easement area as is reasonably practicable.3 

¶ 13. After the Board denied their motions for a new trial and to alter or amend the 

judgment, intervenors appealed.4 On appeal, intervenors make three primary arguments. First, 

they argue that the prior public use doctrine prohibits the Board from authorizing condemnations 

of land already devoted to a public use. Second, they argue that, if we accept the Board’s adoption 

of an exception to the public use doctrine that allows condemnation of land devoted to a public 

use if the new use does not materially impair the prior use, the easement in this case does materially 

impair the use of the park. Third, they contend that the Board erred in concluding that the 

condemnation was necessary because VGS did not adequately evaluate alternate routes for the 

pipeline. For the reasons set forth below, we reject intervenors’ arguments and affirm the Board’s 

 

3

 The Board’s order recognized the town’s purported right “to continue to use and enjoy 

the Easement Area in a manner that is consistent with educational, recreational, and municipal 

uses,” and stated that the town’s uses “may include, but shall not be limited to, using the Easement 

Area for educational, recreational, agricultural, open space, setback, density, trails, unpaved 

roadways, and utility purposes” subject to the limitations articulated by the Board. This 

description of the town’s uses of the park appears to be more expansive than the covenant requiring 

that the land be used “only as a public park or school or for public recreational or educational 

purposes.” On remand, the Board’s order, and the accompanying easement of record, should be 

amended to reflect that the town shall have the right to continue to use and enjoy the Easement 

Area for all purposes authorized pursuant to the restrictive covenant attached to the land, subject 

to the specified limitations in the Board’s order and deed.

4

 The notice of appeal triggered an automatic stay under 30 V.S.A. § 124. In considering 

VGS’s request to vacate the stay, we concluded that intervenors had not demonstrated a strong 

likelihood of success, although we emphasized that “this conclusion does not have any impact on 

our later consideration of the merits of the underlying appeal.” In re Vt. Gas Systems, Inc. 2016 

VT 132, ¶ 4, __ Vt. __, 161 A.3d 522. We concluded that VGS, but not appellants, demonstrated 

a threat of irreparable injury. VGS had secured a $1,000,000 bond to indemnify the town for any 

harm to the park, and we were persuaded by VGS’s assertion that if intervenors prevailed, VGS 

could return the park to its pre-drill condition. Id. ¶ 5. Considering these factors, and noting the 

significant economic benefits of the pipeline to the state, we granted VGS’s motion to vacate the 

stay. Id. 
8

decision to authorize the condemnation. We remand for resolution of minor issues relating to the 

terms of the easement.

¶ 14. We typically apply a deferential standard of review to appeals from the Board and 

“[o]rders issued by the Board enjoy a strong presumption of validity.” In re Green Mountain 

Power Corp., 162 Vt. 379, 380, 648 A.2d 374, 376 (1994). We will uphold a Board decision when 

its findings are supported by the record and its conclusion is supported by its findings. In re UPC 

Vt. Wind, LLC, 2009 VT 19, ¶ 35, 185 Vt. 296, 969 A.2d 144. However, we do not defer to Board 

decisions on questions that are not within its particular areas of expertise, such as legal questions 

that do not turn on considerations specific to the Board’s sphere of regulation. See In re Tariff 

Finding of Cent. Vt. Pub. Serv. Corp., 172 Vt. 14, 19-20, 769 A.2d 668, 673 (2001) (reviewing 

questions of claim and issue preclusion without deference because they are outside Board’s special 

expertise). Accordingly, our review of the legal question concerning the scope of the prior public 

use doctrine is plenary and nondeferential, and our review of the Board’s findings related to 

material impairment and necessity is deferential. 

I. Prior Public Use

¶ 15. In a decision of first impression, we conclude that the prior public use doctrine does 

not prohibit condemnation of land devoted to a public use when the new use does not materially 

impair the prior use. Applying this legal framework to this case, we conclude that the Board’s 

conclusion that the easement will not materially impair use of the park is supported by the record. 

We consider each step of the analysis in turn. 

A. “Material Impairment” of Prior Public Use 

¶ 16. The prior public use doctrine provides that property already appropriated for a 

public use may not be condemned for another public use in the absence of express or implied

legislative authority. See Vt. Hydro-Elec. Corp. v. Dunn, 95 Vt. 144, 149, 112 A. 223, 225 (1921); 

Rutland-Canadian R.R. v. Cent. Vt. Ry. Co., 72 Vt. 128, 133, 47 A. 399, 400 (1900). Our case 
9

law does not address whether this doctrine precludes any condemnation of property subject to a 

prior public use, or only a condemnation that materially impairs the existing use. But a bright line 

rule that would prohibit condemnation for a public use that does not materially impair an existing 

public use would not advance the purpose of the prior public use doctrine and would undermine 

the goals of the condemnation statute. The weight of persuasive authority from other states 

reinforces this conclusion, and we are not persuaded by intervenors’ arguments that only the 

Legislature can adopt this refinement of the prior public use doctrine and that our holding will 

confer on the Board authority to make determinations that it is not qualified to make. For these 

reasons, we conclude that VGS is not barred from condemning the easement at issue in this case 

if the easement will not materially impair the existing public use.

¶ 17. This is an issue of first impression in Vermont. We have never actually considered 

whether condemnation for a use that does not materially impair a prior public use is permissible 

because our cases have all involved second uses that would destroy or materially impair the prior

uses. For example, in Vermont Hydro-Electric Corporation v. Dunn, a town sought to condemn 

water rights in a river for the purpose of diverting the river and creating a new water source for the 

town. 95 Vt. at 144, 112 A. at 223. A public service corporation owned the water rights and 

intended to construct a hydroelectric plant on the river. This Court determined that “the proposed 

taking would wholly destroy” the prior public use, that the Legislature had not granted the town 

authority to condemn the water rights in that particular river, and that the prior public use doctrine 

applied to prohibit the condemnation. Id. at 149, 112 A. at 226-27; see also President & Fellows 

of Middlebury Coll. v. Cent. Power Corp. of Vt., 101 Vt. 325, 336, 143 A. 384, 389 (1928)

(concluding power company could not condemn park land consisting of “virgin and primeval 

forest” to develop electrical power project); Rutland-Canadian R.R., 72 Vt. 128 at 133, 47 A. at 

401 (concluding railroad company could not condemn part of another railroad company’s land 

when condemnation would “cut said [land] in two by an independent line, of which the petitioner 
10

would be seised and have the exclusive possession and control”); Rutland Ry., Light & Power Co. 

v. Clarendon Power Co., 86 Vt. 45, 56-57, 83 A. 332, 337 (1912) (concluding that electric power 

company could not condemn another utility’s hydroelectric site, thereby taking over all uses of the 

site).

¶ 18. Our past articulation of the doctrine likewise offers no consistent guidance. More 

often than not, we have described the prior public use doctrine using broad language, without any 

qualification that the condemnation is only prohibited if it would materially impair the existing 

use. See, e.g., President & Fellows of Middlebury Coll., 101 Vt. at 336, 143 A. at 388 (“[I]t is the 

well-settled law of this state that property already appropriated to a public use cannot be taken for 

another public use without legislative authority, either express or implied.”). But we have 

occasionally referenced the interference caused by a proposed second use in describing the 

doctrine. For example, in Rutland-Canadian Railroad, we stated that general eminent domain 

authority “is not sufficient to authorize the taking for an inconsistent purpose of property already 

devoted to a public use.” 72 at 133, 47 A. at 400 (emphasis added); see also Vt. Cent. R.R. v. 

Royalton, 58 Vt. 234, 238, 4 A. 868, 871 (1886) (“It is settled law that property already taken and 

held for public use by a corporation cannot be interfered with by another corporation, for other 

public use, without legislative authority to that end.” (emphasis added)). For these reasons, our 

case law does not resolve the question. 

¶ 19. Applying the public use doctrine to situations in which the proposed use does not 

materially impair the prior use does not further the purpose of the doctrine. The purpose of the 

doctrine is to protect public uses and to prevent land from being condemned back and forth 

between competing condemners, which would result in a lack of consistent public use of the land. 

Cemetery Co. v. Warren Sch. Twp. of Marion Cty., 139 N.E.2d 538, 544-45 (Ind. 1957); Ga. Dep’t 

of Transp. v. Jasper Cty., 586 S.E.2d 853, 855 (S.C. 2003). Furthermore, the doctrine ensures that 

a legislature, and not a court or administrative agency, is making policy decisions about the relative 
11

importance of competing public uses. Cemetery Co., 139 N.E.2d at 545. Applying the doctrine 

when the proposed use of the land does not materially interfere with the prior use does not further 

these purposes. When the prior and new public uses may coexist without material impairment to 

the former, the risk of back-and-forth condemnation proceedings is diminished, and there is no 

need for policy judgments about which use is more valuable. 

¶ 20. In addition, limiting the scope of the doctrine to cases in which the proposed second 

public use materially impairs the first furthers the goals underlying the condemnation statute. The 

prior public use doctrine is not itself a product of legislation; it reflects a long-established judicial 

gloss on condemnation statutes. To some extent, its application operates in derogation of the goals 

of the condemnation statute. For example, in this case the Legislature has provided that upon 

finding that condemnation of property is necessary to enable a utility to render adequate service to 

the public, and upon finding that the condemnation will not unduly interfere with the orderly 

development of the region, “the Board shall adjudge the petitioner entitled to condemn such 

property or right.” 30 V.S.A. § 112 (a)(4) (emphasis added). By definition, the condemnation 

power here is limited to cases in which the condemnation is necessary to enable Vermont Gas to 

provide adequate service to the public. A limit on the exercise of that authority in recognition of 

a preexisting public use undermines this legislative goal; applying the limitation where the second 

use does not materially impair the first use would constrain the condemnation authority granted by 

the Legislature with no supporting rationale. Burlington Elec. Dep’t v. Vt. Dep’t of Taxes, 154 

Vt. 332, 335, 576 A.2d 450, 452 (1990) (“When construing a statute, our primary objective is to 

effectuate the intent of the Legislature.”).

¶ 21. For similar reasons, the majority of other jurisdictions that have considered this

question have concluded that the prior public use doctrine does not bar condemnation for a use 

that does not materially impair the prior public use. See, e.g., Ga. S. & F. Ry. Co. v. State Rd.

Dep’t, 176 So. 2d 111, 112 (Fla. Dist. Ct. App. 1965); Greater Clark Cty. Sch. Corp. v. Pub. Serv. 
12

Co., Ind., Inc., 385 N.E.2d 952, 954 (Ind. Ct. App. 1979); Mahajan v. Dep’t of Envtl. Prot., 984 

N.E.2d 821, 831 (Mass. 2013); Town of Fayal v. City of Eveleth, 587 N.W.2d 524, 529 (Minn. Ct. 

App. 1999); City of Las Cruces v. El Paso Elec. Co., 1998-NMSC-006, ¶ 6, 954 P.2d 72; Bergen 

Swamp Pres. Soc’y v. Vill. of Bergen, 741 N.Y.S.2d 363, 365 (App. Div. 2002); City of 

Worthington v. City of Columbus, 2003-Ohio-5099, ¶ 22, 796 N.E.2d 920; Pub. Util. Dist. No. 1 

of Okanogan Cty. v. State, 342 P.3d 308, 317 (Wash. 2015) (en banc).

¶ 22. For several reasons, we are not persuaded that our analysis takes us beyond the 

scope of our judicial role. Intervenors contend that the Legislature passed 30 V.S.A. § 110, the 

statute granting public service companies the power to condemn property, after this Court 

established the public use doctrine. Therefore, because we must consider the common law that 

was in effect when the Legislature passed the statute, State v. Oliver, 151 Vt. 626, 627, 563 A.2d 

1002, 1003 (1989), intervenors argue that § 110 effectively codified this Court’s early articulation 

of the doctrine, which did not contain the material-impairment limitation that the Board applied. 

Intervenors contend that only the Legislature may now limit the scope of the doctrine to cases in 

which the second use materially impairs the first. 

¶ 23. We disagree. First, nothing in § 110 indicates an intent to codify or limit the prior 

public use doctrine; that statute simply grants public utilities a general condemnation power. 

Second, as noted above, this is a case of first impression. Prior to this decision, our cases did not 

purport to resolve the scope of the prior public use doctrine in relation to the materiality of the 

impairment caused by the second proposed use. To the extent that we are to consider the law in 

effect when the Legislature enacted § 110, that law does not resolve this question. Third, the prior 

public use doctrine itself reflects a judicial gloss on condemnation statutes. Intervenors’ reliance 

on the court’s authority to adopt such a principle in the first place, while they simultaneously argue 

that this Court is powerless to refine the doctrine as new questions concerning its application arise, 

is incongruous. 
13

¶ 24. We also disagree with intervenors’ argument that adopting this limitation grants the 

Board power that it is not qualified to exercise. When considering a condemnation request with 

respect to property already dedicated to public use, the Board is not, as intervenors suggest, faced 

with making a value judgment between two public uses; its analysis is restricted to the impact of

the proposed use on the prior use. If the Board determines that the proposed use materially impairs

the prior public use, it must disallow the condemnation and is not called upon to make a policy

judgment about the value of competing public uses. See Cemetery Co., 139 N.E.2d at 545 (“To 

us the determination of the relative values and importance of different public uses, one of which 

will be inconsistent with or destroy another, is purely a legislative matter . . . . ”). This kind of 

determination about “impairment” falls squarely within the Board’s area of expertise. Before 

issuing a CPG for a natural gas pipeline or authorizing condemnation for the same purpose, the 

Board must determine that the project “will not unduly interfere with the orderly development of 

the region and scenic preservation.” See 30 V.S.A. § 112(a)(3); see also 30 V.S.A. § 248(b). 

Considering whether a prior public use is materially impaired is similar to, if not exactly the same 

as, what the Board does already, and we have no concerns about its qualifications to do so. Plus, 

as with all other Board decisions, its determination regarding material impairment may be appealed 

and is therefore subject to this Court’s review. 30 V.S.A. § 124. 

¶ 25. For these reasons, we hold that the prior public use doctrine does not preclude 

condemnation of land already dedicated to a public use when the proposed use will not materially 

impair the prior use.

B. Application of Material Impairment Standard to this Case

¶ 26. We conclude that the Board’s determination that the easement will not materially 

impair the prior use of the park was supported by the record. In reaching this conclusion, we 

acknowledge that the property’s status as a park is relevant to the analysis, but reject intervenors’ 

suggestion that the fact that the property is a public park is dispositive in this case. Considering 
14

the applicable standards and the impact of the installation of the pipeline, the ongoing maintenance, 

and the restrictions on the town’s use of the easement area, we conclude that the Board’s

conclusion that the easement will not materially impair the existing recreational use of the property 

was supported by substantial evidence. 

¶ 27. We reject intervenors’ arguments that VGS cannot condemn the park because the 

land must be awarded special protection as a public park. In making the “material impairment” 

determination, the condemning authority must necessarily consider the use and character of the

land prior to condemnation; the fact that the property is used as a park factors into that assessment. 

But the cases intervenors cite to support the argument that public parks may not be condemned for 

easements absent express legislative authority are not persuasive. Intervenors cite Minnesota 

Power & Light Co. v. State, 225 N.W. 164 (Minn. 1929), for the proposition that parks may not 

be condemned without express legislative approval. The court in that case did state that it would 

not imply the authority to condemn public parks, but went on to explain that the public use doctrine 

does not apply when the proposed use does not materially interfere with the prior use. Id. at 166. 

The court ultimately concluded that the new use would materially interfere with the use of the 

park. Id. That case supports the proposition that even if the prior use is a park, the condemning 

authority must assess whether the proposed condemnation materially impairs that use. The 

Massachusetts Supreme Judicial Court’s decision in Town of Brookline v. Metropolitan District

Commission, 258 N.E.2d 284 (Mass. 1970), is also distinguishable because it relies in part on a 

Massachusetts statute expressly stating that park land could not be taken to be used as a road.

5

 

5

 We are not swayed by intervenors’ argument that, when land is held in trust, violation of 

the trust terms amounts to a material impairment. They cite one case in support of this argument, 

City of Wilmington v. Lord, 332 A.2d 407 (Del. Super. Ct. 1975). The court in that case assumed, 

without explaining, that a violation of the trust terms was the equivalent to a material impairment 

of the prior public use, and, because a prior court had determined that the proposed use violated 

the trust terms, the public use doctrine prohibited the condemnation. Id. at 409. Significantly, the 

court expressly distinguished the scenario in which the City held a property pursuant to the terms 

of a trust from that in which it acquired the property pursuant to a deed with restrictive covenants, 

and limited its holding to the former. In this case, the town acquired Geprags Park pursuant to a 
15

¶ 28. Two precepts guide our review of the Board’s assessment that the easement will 

not materially impair the existing use of the park. First, in considering the impact of an easement, 

condemning authorities “must look to the entire use of the affected property, and not a portion of 

its use.” Canyon Reg’l Water Auth. v. Guadalupe-Blanco River Auth., 258 S.W.3d 613, 617 (Tex. 

2008). Second, they consider whether the prior use is “materially” impaired, meaning that the land 

may be condemned if the easement results only in immaterial impairment. See, e.g., Ga. S. & Fla. 

Ry. Co., 176 So. 2d at 113 (authorizing condemnation of property used for public purpose even 

when proposed use would interfere with railway’s ability to maintain railroad tracks); Lake Cty. 

Parks & Recreation Bd. v. Ind.-Am. Water Co., 812 N.E.2d 1118, 1124 (Ind. Ct. App. 2004) 

(authorizing condemnation when easement would result in temporary impairment of prior public 

use). 

¶ 29. In this case, the installation of the pipeline and its ongoing presence will have a 

negligible effect on the existing use of the park. The park covers eighty-five and a half acres and 

is home to a barn, sledding hill, and a series of walking trails. It already contains an easement used 

for power lines that is one hundred and fifty feet wide and runs from north to south in the western 

part of the park. The park primarily consists of a forested area to the east of the powerlines, which 

is where most of the walking trails are located. One trail crosses over to the west side of the park. 

The pipeline easement is fifty feet wide, covers a surface area of under two and a half acres, is 

located to the west of the VELCO easement, and only intersects the one trail that lays on the 

western side of the park. VGS will use HDD to install the pipeline from points beyond the northern 

and southern boundaries of Geprags park, meaning that it does not have to disturb the surface of 

land within the park. The pipeline itself will be entirely underground. Based on this evidence, the 

 

deed with covenants. Even if we were inclined to consider adopting a per se rule that violation of 

the terms of a trust amounts to a material impairment, the rule would not change the outcome in 

this case. 
16

Board could conclude that the initial installation and the actual pipeline will have no material 

impact on park uses. 

¶ 30. Likewise, VGS’s ongoing rights of access to the park will have minimal impact on 

the park’s recreational uses. The easement requires that VGS use HDD to the extent feasible to 

repair, maintain, replace, reconstruct, or remove the pipeline, but contemplates that in the event of 

an emergency or infeasibility, VGS may use more intrusive methods. VGS presented evidence 

that the likelihood that it would take advantage of this right is low and that it may inspect the 

pipeline without disturbing the surface by running a tool through the pipe that can detect problems. 

VGS may temporarily exclude members of the public from the easement area when necessary, and 

it may construct pipeline markers and cathodic test leads aboveground within the easement area. 

It may also conduct inspections of the pipeline route by foot. It typically must access the easement 

only from where the easement meets the property boundaries on the north and south sides, but may 

cross other parts of the park to access the easement in exigent circumstances. 

¶ 31. These rights and restrictions do not materially impair the prior park uses. The 

possibility (but not likelihood) that VGS might temporarily impair park uses by using methods 

other than HDD to maintain the pipeline, and its ability to access the easement area for inspections

and temporarily exclude the public from the easement area, do not undermine the Board’s

conclusion. The fleeting nature of most of these intrusions, and the remoteness of the likelihood 

of the more substantial intrusion of digging or trenching to reach the pipe from within the 

easement, limit their materiality. See Lake Cty. Parks & Recreation Bd., 812 N.E.2d at 1124 

(concluding that condemnation was allowed because any disruption of walking path to install and 

maintain underground water main by trenching would only be temporary). The placement of 

pipeline markers and test leads similarly does not constitute material impairment, considering that 

these installations are inconspicuous, as they are approximately three to four feet tall and have a 
17

diameter of three inches, and would only be placed within the easement area. The rights granted 

to VGS therefore do not materially impair the park’s uses or purposes.

¶ 32. Assuming that the easement restrictions on the town’s use of the easement area are 

necessary pursuant to 30 V.S.A. § 112(a)(2), these restrictions also do not materially impair park 

uses. The town may not construct trails, unpaved roadways, utilities, or any other structures, or 

store objects within the easement area without VGS’s prior written consent. The park does not 

contain many manmade structures and there was no evidence suggesting that the town had plans 

to erect such structures anywhere within the park, much less within the easement area, nor that the 

town planned to construct new trails or roads that would intersect with the easement. Cf. City of 

New Haven v. Town of East Haven, 402 A.2d 345, 351 (Conn. Super. Ct. 1977) (enjoining town 

from condemning three parcels of land because proposed public use would destroy existing public 

use, which was reserving the parcels for future airport expansion). The restriction is not a total 

ban on what the town may build on the easement; it only requires the town to obtain VGS’s 

consent, which it may withhold only “in its reasonable discretion.” See Lake Cty. Parks &

Recreation Bd., 812 N.E.2d at 1124 (affirming authorization of condemnation when easement 

required owner of property to obtain condemner’s consent before using the land in any way 

“inconsistent with” the condemner’s use of easement). Furthermore, this restriction again impacts 

only a small portion of the park—less than two and a half acres out of eighty-five—which means 

that the vast majority of the park is not impacted by it. See, e.g., Canyon Reg’l Water Auth., 258 

S.W.3d at 617 (allowing condemnation when proposed use would completely destroy prior use of 

only a small portion of property). Lastly, the restrictions on the town’s use of the easement area 

do not impair the uses provided for in the deed to the town, as the property may still be used “as a 

public park or school or for recreational or educational purposes.”6

 

6

 We reject the dissent’s suggestion that the easement materially impairs the public use 

due to the deed language restricting use of the park to only recreational or educational purposes. 

The restrictive convenant in the deed constrains the town in its use of the property, but is not itself 
18

¶ 33. The record evidence concerning the nature and use of the whole park and the 

conditions and location of the easement support the Board’s conclusion that any adverse impacts 

upon the park that may result from the easement do not amount to material impairment.

II. The Board’s Determination of Necessity

¶ 34. We affirm the Board’s findings and conclusions regarding necessity. Intervenors 

argue that VGS did not conduct a sufficiently rigorous analysis of alternate routes, and that the 

Board erred in determining that a condemnation of the particular route in question is necessary. In 

upholding the trial court’s analysis, we conclude that the applicable standard is not as stringent as 

intervenors urge, reject intervenor’s contention that VGS presented insufficient evidence that the 

chosen route was superior to alternatives, and conclude that the Board did not improperly rely on 

an artificial deadline or desire to avoid the costs of delay in making its necessity determination. 

¶ 35. In this case, our focus in the necessity analysis is on the necessity of the particular 

easement route chosen by VGS and approved by the Board. Pursuant to 30 V.S.A. § 112(a)(2), 

the Board must, before authorizing the condemnation of property, determine that the condemnation 

“is necessary in order that the petitioner may render adequate service to the public.” Although the 

CPG process occurs prior to condemnation, we have explained that the CPG proceeding involves 

“no predetermination of the issue of necessity of condemnation for any particular route.” Auclair 

v. Vt. Elec. Power Co., 133 Vt. 22, 27, 329 A.2d 641, 645 (1974). At issue in this proceeding is 

whether the project must involve “this particular piece of property.” Vt. Elec. Power Co. v. Bandel, 

135 Vt. 141, 148, 375 A.2d 975, 980 (1977) (explaining that necessity analysis requires 

considering why project must “involve this particular property”). The fact that VGS obtained a 

CPG that authorized a route through the park does not, therefore, control the question of necessity 

 

a barrier to exercise of the State’s condemnation authority. The potential constraint on the State’s 

condemnation power in this case arises from the public use to which the property is dedicated—

educational and recreational use. Insofar as the proposed use at issue in this case is compatible 

with that use, Dora Geprags’ desire as devisor to exclude other uses is not a bar to exercise of the 

State’s condemnation authority. 
19

in the condemnation proceeding. The question in the condemnation proceeding is whether this

easement is reasonably necessary. 

¶ 36. To satisfy this necessity requirement, the petitioner must show that the 

condemnation “is reasonably necessary to accomplish the end in view after weighing all the 

circumstances which bear on any given situation.” Vt. Elec. Power Co,, 135 Vt. at 149-50, 375 

A.2d at 981. Appellants advocate a more stringent standard of necessity than is supported by the 

law; the standard is not whether another route is feasible, but whether the proposed route is 

reasonably necessary in light of all relevant circumstances, including any alternatives. See In re 

Cent. Vt. Pub. Serv. Corp., 2010 VT 7, ¶ 3, 187 Vt. 598, 992 A.2d 308 (mem.) (affirming Board’s 

determination of necessity when Board considered alternatives and determined that proposed route 

was superior based on multiple factors). As a practical matter, the absence of feasible alternatives 

could not be a requirement, because that would mean that if there is more than one feasible route, 

then condemnation of any one of them would never be necessary.

¶ 37. In this case, VGS presented sufficient evidence that the chosen route for the 

pipeline through the park was the best option. VGS proposed four alternative routes, and its 

testimony established that all four were inferior to the proposed easement for multiple reasons. 

The three routes around the park would all be longer than the easement through the park, would 

be less linear and thus less compliant with industry best practices because they would require VGS 

to construct sharp turns in the pipeline, and would implicate additional parcels of land that VGS 

would have to acquire the rights to use. Using an alternative route would also result in significant 

cost increases and delays in construction because of the need to acquire more easements. The 

eastern route would necessitate blasting through rocky ledge, implicate a highway and cause traffic 

management problems, and involve hilly terrain. The western route would require VGS to cut 

mature forest on a steep rocky slope, causing adverse effects on natural resources and aesthetics, 

and would require blasting of rocky ledge. The far western route presented problems due to 
20

changes in elevation. Additionally, the route through the VELCO corridor presented problems 

with wetlands within and to the north of the park; could impact the surface of the park during 

installation because VGS would have to excavate at the points where the pipeline turned; and faced 

obstacles because a house located to the south of the park would create difficulties when installing 

the pipeline using HDD due to the large amount of space needed to stage the equipment. This 

testimony supports the Board’s findings concerning the disadvantages of each of the alternative 

routes explored by VGS and its conclusion that VGS had established that condemnation of the 

easement through Geprags Park was reasonably necessary.

¶ 38. VGS’s failure to provide cost estimates for the alternate routes does not undermine 

our conclusion on this point. Appellants argue that VGS failed to prove necessity because it did 

not prove that installation of the pipeline through the easement would cost less than the 

alternatives. Given the Board’s findings about the practical disadvantages of each of the 

alternative routes explored, the absence of comparative cost data does not undermine the Board’s 

conclusions. Cost is one of many factors that may be considered in the necessity analysis. See In 

re Cent. Vt. Pub. Serv. Corp., 2010 VT 7, ¶ 3 (“Furthermore, cost is not an unreasonable factor in 

selecting among alternative approaches where it is one of several elements of the analysis.”). In 

this case, the Board received testimony about numerous practical and environmental problems 

with each of the alternative routes. Intervenors did not present any evidence that an alternative 

route would be superior to the easement ordered by the Board. On this record, the Board concluded 

that the four alternative routes were inferior options, and that the easement through the park was 

the shortest and most direct way to connect the northern and southern ends of the pipeline route. 

Its conclusion is supported by the evidence and its findings, and the absence of comparative cost 

data does not undermine the Board’s determination in this case.

¶ 39. The Board’s consideration of the risk of further delay in the project was not error 

on this record. Intervenors suggest that the Board improperly relied on VGS’s self-imposed 
21

deadline for placing the project into service, or its desire to avoid the costs of delay. Intervenors 

argue that VGS was itself responsible for any potential delay because it failed to timely and 

sufficiently explore alternative routes. Intervenors overread the Board’s decision on that issue. 

The Board did acknowledge that its judgment was “informed by recognizing that requiring VGS 

to pursue an alternative to the easement would introduce the risk of further delay in completing 

construction of the pipeline” to the detriment of Vermonters waiting for natural gas service. But,

independent of that factor, the Board had already concluded that the four alternatives were inferior

based on terrain challenges due to soil instability and elevation changes, required tree clearing that 

would be visible from the park, the need for ledge blasting near a state highway and residences, 

the need to use more pipe, and the desirability of straight pipe without multiple bends. Although 

the Board may have been mindful of the costs of delay, we do not read its analysis as relying to 

any great degree on that factor. 

The Board’s order is affirmed except that the matter is remanded for the Board to revise 

its order as set forth in footnote 3.

FOR THE COURT:

Associate Justice

¶ 40. EATON, J., dissenting. I agree with the majority that the prior public use doctrine 

should not be applied to preclude condemnation of lands pursuant to a general condemnation 

statute in situations where the proposed use would not materially impair the prior use. As the 

majority reasons, doing so would undermine the goals of the condemnation statutes while doing 

nothing to further the purpose of the doctrine. I believe, however, that our adoption of a 

“compatible use” exception to the doctrine is contrary to our prior caselaw and that we should 

overrule that caselaw to the extent it is inconsistent with our holding today.
22

¶ 41. I also agree with the majority that the nature of the prior use—in this case a park 

dedicated for recreational or educational purposes—is not necessarily controlling but is a factor in 

determining whether the proposed use would materially impair the prior use. I would conclude, 

however, that granting an easement for a pressurized gas pipeline through a park dedicated to 

recreational or educational uses only, and giving the condemnor the discretion to restrict the 

Town’s use of the land over which the easement runs, materially impairs the prior use such as to 

require specific legislative authorization for the condemnation.

¶ 42. In short, in my view, the terms of the easement as set forth by the Public Service 

Board would materially impair park land dedicated exclusively for recreational or educational 

purposes. Accordingly, I respectfully dissent.

¶ 43. My first departure from the majority opinion is on a relatively minor point. In my 

view, our prior caselaw concerning the prior public use doctrine adopted a general rule, without 

recognizing any exception, “that property already taken for a public use cannot be taken for another 

public use without legislative authority expressly given or necessarily implied.” Rutland-Canadian 

R.R. v. Cent. Vt. Ry. Co., 72 Vt. 128, 133, 47 A. 399, 400 (1900); see Vt. Gas Sys., Inc. v. City of 

Burlington, 130 Vt. 75, 77, 286 A.2d 275, 276 (1971) (stating that plaintiff utility “could not, by 

its [general] powers of eminent domain, acquire a property interest” that had “already [been] 

dedicated to a public use” absent specific “legislative authorization”); President & Fellows of 

Middlebury Coll. v. Cent. Power Corp. of Vt., 101 Vt. 325, 336, 143 A. 384, 388 (1928) (“[I]t is 

well-settled law of this state that property already appropriated to a public use cannot be taken for 

another public use without legislative authority, either express or implied.”); Vt. Hydro-Elec. Corp. 

v. Dunn, 95 Vt. 144, 149, 112 A. 223, 225 (1921) (“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.”).
23

¶ 44. To be sure, as the majority points out, on a couple of occasions our decisions have 

contained language suggesting that some incompatibility between the prior and proposed public 

uses might be an element of the doctrine. See Rutland-Canadian R.R., 72 Vt. at 133, 47 A. at 400 

(“Authority given in general terms . . . is not sufficient to authorize the taking for an inconsistent

purpose of property already devoted to a public use, and necessary for the purpose to which it is 

devoted.” (emphasis added)); Vt. Cent. R.R. v. Royalton, 58 Vt. 234, 238, 2 A. 868, 871 (1886) 

(“It is settled law that property already taken and held for public use by a corporation cannot be 

interfered with by another corporation, for other public use, without legislative authority to that 

end.” (emphasis added)). But our vague and unexplained insertion of such language in those two 

cases is not the equivalent of adopting a compatible use exception to the doctrine in situations 

where the proposed use does not materially impair the prior use. See Minn. Power & Light Co. v. 

State, 225 N.W. 164, 166 (Minn. 1929) (stating that prior public use doctrine generally does not 

apply “where the second use does not materially or seriously interfere with the first use, or, where 

the second use is not inconsistent and the two uses may be enjoyed together without serious injury 

to or interference with the first use” (emphasis added)). Our mostly ancient caselaw on this subject 

essentially laid out a broad rule without exception. Rather than call this a case of first impression, 

we should overrule that caselaw to the extent it is inconsistent with our adoption today of a 

compatible use exception that precludes application of the doctrine when the proposed use will not 

materially impair the prior use.

¶ 45. Applying the exception to this case, I would rule that the proposed use materially 

impairs the prior use. Consider the nature of the use. A private citizen, Dora Geprags, devised 

her property to the Town of Hinesburg subject to a restrictive covenant running with the land in 

perpetuity stating “that the property decreed hereby shall be used only as a public park or school 

for recreational or educational purposes, and the Town of Hinesburg shall properly maintain and 

care for the property decreed hereby.” (Emphasis added.) Cf. City of Wilmington v. Lord, 332 
24

A.2d 407, 409 (Del. Super. Ct. 1975) (distinguishing case relied upon by condemnor by noting 

that, in determining that proposed use would not destroy or injure prior use of property held in 

trust, court relied upon fact that covenant in deed required property to be used “ ‘for the purpose 

of a park’ rather than ‘for the purpose of a park only’ ”). Recognizing that it lacked the authority 

to grant Vermont Gas Systems, Inc. (VGS) easement rights that would violate the devise’s 

restrictive covenant, the Town initially agreed not to oppose VGS’s condemnation of a pipeline 

easement through the park, and eventually agreed in a revised stipulation to VGS’s condemnation 

of the easement based in part on VGS paying the Town $250,000. In short, after accepting Ms. 

Geprags’s gift subject to its restrictive covenant, the Town then accepted a quarter of a million 

dollars in return for agreeing to VGS’s condemnation of part of the property in a manner that 

violated the restrictive covenant.

¶ 46. Considering the prior public use of the subject property, there is little doubt that the 

proposed use will materially impair that prior use. See Material, Black’s Law Dictionary (10th ed. 

2014) (having “such a nature that knowledge of the item would affect a person’s decisionmaking”); id. Impair (“diminish[ing] the value of”). As evidenced by the exclusionary language 

of the Board-approved easement, the installation and maintenance of a gas pipeline is entirely 

dissimilar to and inconsistent with the current use of the property as a park, and most particularly 

to its dedicated use for recreational or educational purposes only. Were the two uses not so 

incompatible, the language in the VGS easement restricting the Town’s use of the park would not 

have been necessary. Importantly, the impact of the proposed use must be considered based on 

the terms of the easement established by the Board. See Farrell v. Vt. Elec. Power Co., 2012 VT 

96, ¶ 11, 193 Vt. 307, 68 A.3d 1111 (“[T]he terms of a condemnation easement described in the 

order granting the easement define the easement holder’s authority to use the condemned 

property.”).
25

¶ 47. Under the terms set forth by the Board, VGS has significant discretion in using the 

fifty-foot wide, 2000-foot long easement dissecting the park and overlaying the pressurized gas 

pipeline. Among other things, pursuant to the Board’s order, the Town “shall not prevent, or 

interfere with, [VGS’s] use of the Easement Area” unless otherwise allowed by the order, and 

specifically “shall not unreasonably interfere with [VGS’s] pipeline within the Easement area” 

through the “installation and use of trails, unpaved roadways, and utilities.” Additionally, the 

Town “shall consult with [VGS] and obtain written consent before beginning any construction on 

any trails, unpaved roadways, and utilities within the Easement Area, which consent [VGS] shall 

not unreasonably withhold, condition, or delay.” Furthermore,

The Town shall not construct, install, or permit the construction or 

installation of any structures or objects of any kind upon or under 

the surface of the Easement Area, shall not store or place any objects 

within the Easement area, and shall not change the elevation of the 

Easement Area without [VGS’s] prior written agreement or 

approval, which [VGS] may withhold or condition in its reasonable 

discretion.

Regarding VGS’s installation and maintenance of the pipeline, VGS is required to use the 

nonintrusive Horizontal Directional Drilling (HDD) method to repair, replace, reconstruct, or 

remove the pipeline, but only “to the extent feasible.”

¶ 48. Given the scope of the easement as set forth by the Board, the proposed use will 

most certainly impair the prior use. Cf. Town of Brookline v. Metro. Dist. Comm’n, 258 N.E.2d 

284, 286 (Mass. 1970) (in denying general condemnation of parkland, noting common-law 

inviolability of parks and legislature’s declared policy “to preserve parks free from intrusion of 

every kind which would interfere in any degree with their complete use for this public end”); Minn.

Power & Light Co., 225 N.W. at 167 (“It seems reasonably clear that the [power] line [involving 

removal of foliage and erection of four or five towers] is inconsistent with the purpose of 

maintaining the land as a park, and that it will materially interfere with the use of the park, 

especially so in view of the careful provisions made by the Legislature for preserving the park land 
26

from injury or interference.”). The impact of the proposed use on the prior use is material due in 

part to VGS’s discretionary authority over use of the land within the easement, particularly its 

discretion to preclude the Town from using the land as intended. It is also material in the sense 

that, had it been anticipated, it may well have precluded creation of the prior use in the first place, 

given the donor’s express condition that the property be used exclusively for recreational or 

educational purposes. Indeed, I fear that our decision today could potentially cause testators to 

think twice about donating lands for public use knowing that their desires regarding restrictions on 

the use can be so easily ignored through general condemnation proceedings. Cf. President &

Fellows of Middlebury Coll., 101 Vt. at 332, 336, 143 A. at 387, 389 (stating that devise of 

mountain forest land to be preserved “in its virgin and primeval state” for benefit of public cannot 

be taken in general condemnation proceedings).

¶ 49. The terms of the easement foreclose use of the subject property exclusively for 

recreational and educational purposes, including any future construction of typical recreational and 

educational uses such as bleachers, rinks, restrooms, or school buildings within the easement area. 

The majority notes the relatively small size of the easement area compared to the overall size of 

the subject property and the fact that the Town has no existing plans to erect structures within the 

park or to construct new trails or roads that would intersect with the easement. The majority 

supports the latter point by citing a case that stands for an entirely different point: in situations 

where land is held with an expectation of future public use, that future public use must be 

“reasonably foreseeable” and not “a mere naked possibility.” City of New Haven v. Town of E.

Haven, 402 A.2d 345, 351 (Conn. Super. Ct. 1977).

¶ 50. This is the same issue addressed in Dunn, where this Court held that “it is not 

necessary that the property be actually in use for the public purpose to exempt it from the 

[condemnation] proceeding.” 95 Vt. at 149, 112 A. at 226. We emphasized in Dunn that, 

notwithstanding a “liberal consideration” of future and existing needs, “property held for future 
27

use” will not be exempt from condemnation based upon “the mere possibility” of future public use 

but rather a “[r]easonable expectation of future needs is required to protect the property from 

condemnation.” Id.; see 1A J. Sackman, Nichols on Eminent Domain § 2.17[5], at 98-99 (3rd ed. 

2007) (citing Dunn, among other cases, for principle that “bare possibility of future use is 

insufficient to remove property from the operation of the power to condemn”). Thus, the general 

rule is that property devoted to a public use is exempt from condemnation for a different public 

use absent specific legislative authorization with respect to land “in immediate and necessary” 

public use “or” land acquired for a public purpose but “held in reasonable anticipation of its future 

needs, with a bona fide intention of using it for such purpose within a reasonable time.” Dunn, 95 

Vt. at 149-50, 112 A. at 226.

¶ 51. In this case, the subject property is not being held in anticipation of future public 

use; rather, it is currently in public use as a park pursuant to a devise restricting its use in perpetuity 

solely for recreational or educational purposes. VGS’s fifty-foot wide, 2000-foot long easement 

for a gas pipeline through the property not only immediately impacts the property’s current use as 

a park but also materially interferes with its potential future use within the easement corridor for 

recreational or educational purposes, for which the property was exclusively dedicated. 

¶ 52. The majority also reasons that the subject property already has an easement for 

power lines on it in a different location and that the likelihood of using intrusive methods for 

maintaining or repairing the underground pipeline are remote. Regarding the first point, the other 

easement was already on the property when it was devised to the Town for a public purpose; thus, 

to the extent the existence of the prior easement is relevant to the question presented here, it 

indicates even a greater likelihood that placing another easement in a different location on the 

property would materially impair the public use. Cf. Minn. Power & Light Co., 225 N.W. at 351 

(reasoning that allowing easement for power line through park would materially interfere with 

existing public use because park already had other utility and transportation lines running through 
28

it and adding further servitudes “might well lead to its final extinction as a public park”). The 

preexisting power line easement is a factor supporting a material interference being created by 

virtue of the VGS easement, not a factor supporting its absence as the majority contends.

¶ 53. The majority’s second point does not respond to the fact that the pipeline easement 

will forever materially restrict use of a portion of the park dedicated exclusively for recreational 

or educational purposes. The cases that the majority relies upon are wholly distinguishable on the 

facts and law and thus do not support its resolution of this case. See Ga. S. & Fla. Ry. Co. v. State 

Rd. Dep’t, 176 So. 2d 111, 113 (Fla. Dist. Ct. App. 1965) (noting evidence demonstrating that 

proposed widening of highway would not interfere with railway’s drainage ditches and in fact 

would be beneficial to railway in certain places); Lake Cty. Parks & Recreation Bd. v. Ind.-Am.

Water Co., 812 N.E.2d 1118, 1122-24 (Ind. Ct. App. 2004) (holding that installation of easement 

for water main would only temporarily disrupt use of land for recreational hiking and bike path 

and thus would not interfere with public use of property “to such an extent as is tantamount to [its] 

destruction” (quotation omitted)).

¶ 54. As VGS conceded during oral argument, it had the burden to demonstrate that its 

proposed condemnation of the subject property would not materially impair the prior public use of 

that property. See City of Las Cruces v. El Paso Elec. Co., 1998-NMSC-006, ¶ 11, 954 P.2d 72 

(noting trial court’s conclusion that condemnor “had the burden of proof” as to whether its 

“proposed condemnation would not materially impair the public use of property sought to be 

condemned” (quotation omitted)); see also City of New Haven, 402 A.2d at 350 (stating 

longstanding rule in state “that the authority to take property by eminent domain will be strictly 

construed in favor of the owner and against the condemnor”). The material facts in this case are 

essentially undisputed. Whether, considering those facts, the proposed public use will materially 

impair the prior public use is a question of law. Canyon Reg. Water Auth. v. Guadalupe-Blanco 

River Auth., 258 S.W.3d 613, 618 (Tex. 2008). In my view, the reasonable inferences and 
29

conclusions to be drawn from the undisputed facts demonstrate that the installation and 

maintenance of a permanent gas pipeline, coupled with the attendant use restrictions on the park 

imposed by the Board in the VGS easement, will materially impair the public’s use of Geprags 

Park for recreational and educational purposes.

¶ 55. Accordingly, I would deny VGS’s petition to condemn an easement through the 

park for a gas pipeline without addressing the question of its necessity. 

Associate Justice