The Bennington evening banner. (Bennington, Vt.) 19??-1961, 1912-06-04
BENNINGTON, VT, JUNE l, 1911
A WATER POWER DECISION


water powers was handed down the
other day by the supreme court OF
this state. The Brattleboro Phoenix
gives the following concise explanac
ton of the case:
The supreme court of Vermont has
recently handed down decision inl
the case of the Rutland Railway
Light & Power company vs. Claren
don Power company, which marks al
most a revolution OF the law OF emf
nent domain and of the rights OF the
public in the water powers OF the
state.
The case arose on proceedings
started by the Clarendon Power com
pany to take an undeveloped water
power of the Rutland company, which
the Rutland company claimed II
needed for its own purposes to de-
velop and sell electricity for power
purposes. The question to be deter
mined was whether the generation
and distribution OF electricity for
power purposes purely was a public
use.
Way back, as long ago as 1866, Yer
mont, in common with what most OF
the states were doing at that time,
passed a fiowage act providing that
a person building a dam and desiring
to 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 that it was unconstitu-
tional to flow land OF another person
for developing power for manufacture
ing purposes, and distinguished the
Vermont constitutional provisions
from that OF other states which had
held such laws to be constitutional.
Practically every other state in the
country has upheld the constitutions
atty of the flowage acts, and the re-
suit has been much larger develop
ment of power for manufacturing
purposes in adjoining states than In
Vermont.
The first charter granted by the
Legislature which authorized the tax
ing or flowing of lands or the ereo-
ton of transmission lines and the
taking of lands therefore by an cleo
trical power company was that grant
ed the Connecticut River Power
company. Since then several chart
ers have been granted including this
provision, notably that for the Deer
field development and for the Fifteen
Mile falls. The supreme court has
held in recent cases that the genera
ton and distribution OF electricity
for street lighting purposes is pub
lie use, but has never, until the Rut.
land case, decided the question as to
electricity for power purposes The
court, in the opinion in the Rutland
case, exhaustiyely reviews the prev
ious decisions bearing upon the ques.
ton. and says:
ut is a matter OF common know
ledge that the granite industry, both
in Caledonia and Washington count
les. has been entirely built over since
the advent OF electric power, and In
both localities there is at present q
demand for additional power. The
small dealer can now engage In the
business with a chance to succeed
in competition with the large opera
tor. The industrial activity in Wind
ham county is made possible by TO
cent electrical developments and in
stallations. The Deerneld valley 1,
In process of development. the Fiji
teen Mile falls on the Connecticut II
| protective. ''' Our holding, ther
Is that in the absence OF charter
limitations, a corporation which en-
cages In the business OF generating
and distributing electric energy 70
general sale for power purposes de
votes its property to a public service
as much as II IL limited its bushes
to the sale OF current for lightin
purposes. Such business is affecte
with a public interest, both as n
CARDS the law of regulation and tn
law OF eminent domain.
1T is apparent that this holdin
goes quite beyond that in the Dee
field River company VS.. Wilmingto
Power q Paper company. SO VT. 50,
IL puts all corporations engaged |
generating electricity for geners
sale into one and the same elias,
without regard to the presence or al
sence of special provisions in thei
charters regulating the conduct O
their business"
This establishes beyond Questlo
The right OF any party developn
electrical power to flow lands. {
AXE lands by eminent domain, an
to take by eminent domain a right {
way for transmission lines for powe
purposes. II makes Il feasible
utilize the undeveloped powers in III
state, and prevents holdups.
But far more important, Il ded
Gates to the use Of the people III
electricity generated In these wat,
powers. According to this decIsio
he people have the right to take tn
power, and II the power companIe
do not fix satisfactory rates, n
courts will fix them. Il is long ate
in the evolution OF the Industrial d
velopment OF the state. Brattlebor
and Windham county have alread
tasted the benefits which may CON
from the proper development OF IN
water powers. Before this decad
has ended communities all over IN
state will be feeling the impetu
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