Vermont phÅ“nix. [volume] (Brattleboro, Vt.) 1834-1955, 1912-05-31
AN EPOCH MARKING DECISION.

The supreme court of Vermont has
recently handed down decision in tne
case of the Rutland Railway, Light e.
ROVER company VS.. Clarendon Power
company, which marks almost a revo-
| iution of the law of eminent domain and
OF the rights of the public in the water
| powers of the state.
Ihe case arose on proceedings started
| by the Clarendon Power COMPANY to
| take an undeveloped water nower of
the Rutland company, which the Rut-
land company claimed it needed for its
own purposes to develop and sell cleo
tricity for power purposes. The auestlu,,
| to be determined was whether the gem
| GRAFTON and distribution of electricity
| for power purposes purely was a public
| use
Way back. as long ago as 1866, Ver
mont, in common with what most Of
the states were doing at that time
passed a flowage act providing that a
person building a dam and desiring 10
flow the lands of another, could do SO
on demanding the right in court and
paying damage, etc. In the celebrated
case of Tyler VS.. Beecher in the 44th
Vermont, Judge Wheeler wrote the
opinion of the court, holding tnat IL
was unconstitutional to flow land of
ahother person for developing power for
manufacturing purposes, and distinguish
ed the Vermont constitutional provis-
ions from that Of other states which
had held such laws to be constitutions,
Practically every other state in the
country has
of the fiowage acts, and the result has
oeen much larger development of
power for manufacturing purposes in
ADJOINING states than in Vermont
Inc trst charter granted by the leG-
lsiature which authorized the taking or
howing of lands or the erection of trans
mission lines and the taking of lands
therefor by an electrical power companv
was that granted the Connecticut River
Power company. Since then several
charters have been granted including
this provision, notably that for the
Deerfield development and for the Fifteen
Mile falls. The supreme court has held
In recent cases that the generation and
distribution of electricity for street
lighting purposes is a public use. bur
mas never, until the Rutland case, de-
cioed the question as to electricity for
power purposes. The court, in the opin-
ION In the Rutland case, exhaustively
reviews the previous decisions bearing
upon the question, and says:
1t is matter of common know
iedge that the granite industry, both
IN Caledonia and Washington counties.
mas been entirely built over since the
ADVENT of electric
localities there is at present demano
Tor additional power The small ,ieai-,
can now engage in the business with a
chance to succeed in competition w,tn
the large operator The industrial ac
tivity in Windham county is made pos
sible by recent electrical developments
and installations. The DeerfieId vah.v
Is in process of development; the Fif
teen Mile falls on the Connecticut is
protective. Our holding then. is that
In the absence of charter limita lions a
corporation which engages in the bus.
ness OF genera ting and distributing cleo
trlc energy for general sale for power
purposes devotes it's property to a pub
lie service as much as If it limited its
business to the sale of current for light
ing purposes. Such business is affected
with public interest, both as regards
the law of regulation and the law of
eminent domain.
II is apparent that this holding goes
quite beyond that in the Deerfeld River
company VS.. Wilmington Power & Paper
company, S3 VT. 54S 1t puts all cor
porations engaged in generating elev-
trlcity for general sale into one and the
same class. without regard to the pre-
sence or absence of special provisions
IN their charters regulating the conduct
of their business"
This establishes beyond question tne
right of any party developing electrical
power to flow lands. to take lands by
eminent domain, and to take by emil
hent domain a right of way for trans
mission lines for power purposes. II
makes 1t feasible to utilize the unde-
veloped powers in the state and pre-
vents hodups
But far more important, It iedicates
TO the use of the people the electricity
generated in these water powers Ac-
eording to this decision the people have
the right to take the power. and if the
power companies do not fix satisfactory
rates, the courts will fix them. 1t Is a
long step In the evolution of the indus
trial development of the state. Brattle-
boro and Windham county have already
tasted the benefits which may come
from the proper development of the
water powers. Before this decade has
ended communities all over the state
will be feeling the impetus which the
court has given to the development OF
the natural resources of Vermont