Burlington weekly free press. [volume] (Burlington, Vt.) 1866-1928, 1876-03-17
Important Street Decision

Judge ShipDdn Dec1Sion an fdUoT V az
Commissioner.
JOIN H. CHrKyrR Circui. Court
" United States
JAMES A. sHEDD ct al, for the
Street Commissioners. District Of Vernon
OPINION BY JUDGE sHIPMAN.
In the year 1872, new highway of fit.
feet in width was duly laid out and estab
lished in the City Of Burlington, BY th'
proper court having jurisdiction over thu
subject, which highway said court directed
should be completed on or before October
18th, 1873. The highway is LIS feet IL
length, extending from College street tt
Pearl street, ara is an extension OF pre-
vic usly existing street, called Union street
so as to form continuous street with
Maiden Lane, which last two named stree [;
are also of fifty feet IN width. The new
street is within about fifty rods of tie bust
ness centre OF Burlington, city of Is DOC
inhabitants, and intersects two important
streets, and will be considerably used for
public travel. Several hundred feet IN length
and fifty feet in width of the land Of John
Ii. Cheever, the complainant, being por-
ton of tract Of several acres belonging
to him, are taken for the street. The court
!
ant appearing, and being heard therein,
adjudged that he was entitled to no land
damages in cOnse4 uence OF laying out and
establishing said highway, the benefit to
said Cheever's premises. through which
said highway Is laid out, being full COM
pensati0n for the land taken for said high
way"
1t is necessary that said street should
| have the usual sidewalks. curbs and gut
tiers which are customary in city streets.
and it is tit and proper for the full accom-
| mediation of the public travel, that the
whole street, including roadway and side
walks, should be OF fifty feet in width.
The natural surface Of the plaintiffs land,
and of the other land over which this street
passes, is uneven, being trsyersed by ra-
vines or hollows, and by knobs or bluff.
and it was necessary in order properly TO
construct the street, and to make proper
grade that the knobs should be cut through
and that the hollows should be filed The
City Street Commissioners who had BY
statute the care and superintendent of
the highways in the city and whose duty
II was to make and repair all high
ways, in order to put the street in pro-
per condition for public use and travel. es-
tabllsh ed grade, which grade required
three cuts on the land taken from the
plaintiff ,one of l65 feet in length and 10 ? 10
feet in depth at the centre, one of 90
feet in length and 3 10 feet in depth at
the centre. the third of 81 feet in length,
and centre depth OF 35-l00 feet The
form OF all the cuts was that of knoll,
slOping evenly each way This grade is a
proper one for the purposes OF the street
All the earth which was taken from these
cuts was used to I'LL the hollows in the street,
but other earth could have been hauled for
the same purpose from greater distance
The Street Commissioners, in making their
cuttings, cut down Intentionally the soil
and turf upon said street perpendcularly.
OF very nearly so, up TO the extreme bound
aries or lines OF said street, and claimed
and exercised the right to cut said high
way perpendicularly up to the limits there
Of The soil is clay and auckland, and
the effect Of the perpendicular excavation.
unless the bank is protected, Is that the ad
joining soil will slip, and 50 gradually
slough on by the action OF the rain and
frost, until slope has been formed sufh-
GENTLY inclined IL prevent further slipping.
An unprotected perpendicular embank-
ment OF ten ieet in height would be en-
cr0ached upon in two or three years TO an
extent Of i've feet before a proper slope
was formed. MS result has already com
meneed upon the land Of the complainant
II the City authorities have no right to
cause this incidental injury to the adioiu-
ing land their proper course is 10 use only
such a width as will leave sufficient slope.
OF to use the entire width and build re
taining wall. Ii the complainant is re
NEEDLESS, he must grade his land IN con
foTmity with the street line, OF build a re-
tanning wall himself \ suitable retaining
4
would probably be less expensive, and
would be more advantageous TO the owner
of the land in the event Of any future dis
position or sale OF the property.
The land of the complainant which has
been taken Tor the street, Is part Of a large
tract belonging to the complainant, used
heretofore, with the buildings upon II. as a
gentleDsn's mansion Where the deep
cut i made the land IL not ornamented
with shrubbery and shade trees, as is the
case with the portion adjacent to the house.
The present suit is bill for an injunc-
ton 10 restrain the defendants, who are the
street commissioners and the superintend-
ent Of streets, from excsvating in such a
manner as to cause the injury TO the ada
cent land which has been mentioned. Inc
Superintendent has. by the City charter,
the immediate care and supervision of the
streets, and his duty Is to see that they are
properly constructed and kept in repair
Alter the bill was fled, provisional in
junction was granted, which IL still in
force. The bill proceeds upon the idea that
the defendants are acting IN the premises
without reasonable care.
From the preceding statement, it will be
seen that the proper authority has directed
the construction Of a street OF fifty feet in
width, and has assessed the damages which |
will arise 10 the complainant from the tax /
ing OF his land, which damages include all |
those which are Immediately incident 10 |
and consequent upon the construction OF |
the highway An assessment Of damages |
is for the direct and immediate damage re-
sulting from the laying out OF the high |
way. The owner l. 10 be remunersted for |
the land taken, for the deprivation of " any |
right or privilege attached to it, and for |
the damage done by the lay out to the |
land connected with that which is covered |
by the highway and OF which it was part /
Ozark = SIybrOok. 81 Conn. 3l3) When /
part only of the land Of the over is taken |
tor public work, the damage which will |
necessarily result. from the use Of the part |
which is taken, to the land which Is not /
occupied by the public, is to be estimated. |
When the remaining land Is separated by |
the new highway from outbuilcings, OF /
from supply of water, or Is left in IN
salable condition or unfit tor occupancy, /
Is divided by high embankments which |
cause inconvenience, the effect OF these /
and similar circumstances, and the effect |
which the appropriation will have in bene- |
fitting the remaining land are to be taken I
into consideration in the estimate of dam
ages In the case OF a new highway, the .
general grade which must be adopted 50 as
to conform 10 the existing grade OF con-
Meeting streets. and 50 as to make conye
nient highway are obvious to the apprais-
ers of damages who inspect the premises I
and can see the in uTy and the special bene
fit which the opening Of highway must /
necessarily cause TO the whole land The (
presumption Is that the appraisal is Tor the |
value Of the property taken, and the dam
age which will specially result to the resi- /
due by such taking But it is truly said |
that the Appraisal" assumes and presupposes
that the highway IS TO be constructed with .
reasonable care, and If for want OF reason
able care and skill in the construction OF .
such work unnecessary damage Is caused,
it is not warranted by the right Of eminent
domain" (Sprague =. Worcester, - Gray |
1887 Conseq uential damages which result
to the remaining land from want OF reason
able care in the construction Of the high
way. are not included in the estimate of
damages. 1t Is contended that this high
way was net constructed with reasonable
care by reason of the fact that it was ex
csssted upon the extreme limits of the
land taken. so as 10 cause the adjoining
land to be deprived Of its lateral support
and 50 as to inhict an actionable injury.
In order to determine whether reasonable
care has been taken. it becomes necessary |
to consider the powers which municipal
corporations possess in regard to the con-
struction of highways, and in regard to the
grade and the alteration in the grade
OF streets, whereby a consequential i'll
jury is caused to adjoining lard.
The defendants are public officers and the
duty has been imposed upon them by the
Legislature of making and constructing
highways in the City OF Burlington The