PICHE v. CITY OF WINOOSKI, 102 Vt. 381 (1930)

PICHE v. CITY OF WINOOSKI, 102 Vt. 381 (1930)
148 A. 411

ROSAIRE PICHE v. CITY OF WINOOSKI.

Supreme Court of Vermont.October Term, 1929.
Opinion filed January 18, 1930.

Eminent Domain — Review of Decision Taking Land for School Purposes — G.L. 2257, 4164 — County Court Rule 18, § 6 — Presumption as to Case Having Been Taken out of Rules by County Court — Nature of Exceptions to Supreme Court — Review Where Transcript Not Part of Bill of Exceptions — Insufficiency of Record To Permit Review of Exceptions.

1. Proceeding by landowner in county court, under G.L. 4164, to review action of selectmen or trustees in taking land by right of eminent domain for school purposes, is a session proceeding, and, when brought to Supreme Court on exceptions under G.L. 2257, is to be determined as though heard on petition for certiorari.

2. Although exceptions to commissioners’ report, on petition of landowner under G.L. 4164 to review condemnation proceedings taking land for school purposes, were not taken within fifteen days prescribed by county court rule 18, § 6, in view of fact that rule expressly provides that time limit may be extended by special leave of court, and county court rule 46 empowers such court to take case out of rules entirely, when exceptions have been filed and passed upon by court below and case is before Supreme Court, latter will assume without inquiry that case has properly been taken out of rules by county court.

3. Exceptions to Supreme Court lie only to rulings upon questions of law arising upon trial of a cause.

4. It is not necessary that transcript of proceedings before commissioners, on petition of landowner under G.L. 4164 to review condemnation proceedings taking land for school purposes, be made part of bill of exceptions to be availed of in Supreme Court, on exceptions taken under G.L. 2257, because, if considered necessary, where matter sought to be reviewed arosePage 382
before a body not having records which present legal errors of character of those complained of, evidence, some statement of it, or transcript of proceedings, when supported by affidavits, may be resorted to.

5. Where exceptions, taken under G.L. 2257 to commissioners’ report on petition of landowner under G.L. 4164 to review condemnation proceedings taking land for school purposes, cannot be passed on by Supreme Court without transcript of proceedings before commissioners, and excepting party fails to bring such transcript before Supreme Court in some proper way, no question is presented to it for review.

PETITION to review award of damages for taking petitioner’s land by eminent domain for school purposes. Trial by court on report of commissioners at the March Term, 1929, Chittenden County, Thompson, J., presiding. Report of commissioners was accepted by court, and judgment rendered thereon. The petitioner excepted. The opinion states the case. Affirmed.

Chas. F. Black and Robert W. Ready for the petitioner.

H.A. Bailey for the petitionee.

Present: WATSON, C.J., POWERS, SLACK, MOULTON, and WILLCOX, JJ.

WILLCOX, J.

This is a proceeding under G.L. 4164, instituted by the petitioner, whose land had been taken by the right of eminent domain for public school purposes. In its nature it is a session proceeding, brought to this Court on exceptions under G.L. 2257; and is to be determined as though heard upon a petition forcertiorari. Hooker v. Montpelier and Wells River R.R. Co., 62 Vt. 47, 19 A. 775.

The commissioners appointed under the statute filed a report, February 16, 1929; the court ordered the same recommitted with direction to amend; and amended report was filed April 27, 1929. The original report set forth, and correctly so, that three questions were before the commissioners, namely: (1) How much land should be taken; (2) what damages should be allowed; and (3) whether it was necessary to acquire the land for school purposes. It sets forth further that the issue of necessity was waived by the petitioner, and that the parties agreed as to the extent of the land to be taken, leaving only onePage 383
issue — the amount of damages sustained. This was found, but the extent and description of the land was omitted. For this omission the court, on its own motion, recommitted the report with directions that the same be amended so as to show the boundaries as agreed upon.

Exceptions to the report as originally filed were not taken within the fifteen days prescribed by section 6 of county court rule 18, and the petitionee now contends that the exceptions filed by the petitioner within fifteen days of the coming in of the amended report are not seasonable.

The rule relied upon by the petitionee is a rule of the county court. It expressly provides that the times therein limited may be extended by special leave of court, and rule 46 thereof empowers such court to take a case out of the rules, entirely. So when exceptions in fact have been filed and passed upon by the court below, and the case comes to this Court, we will assume, without inquiry, that the case has properly been taken out of the rules by the court below. Boyce v. Bolster, 79 Vt. 40, 64 A. 79.

The questions presented by these exceptions are of such a nature that the merit thereof cannot be passed upon without resort to a transcript of the proceedings before the commissioners. The petitioner claims that he sought a bill of exceptions making such transcript a part thereof, and that it was error for the presiding judge to refuse such request. There is nothing in the record showing what the fact is about this. Nor is it important, for exceptions to this Court lie only to rulings upon questions of law arising upon the trial of a cause, and the question of the power of a presiding judge to make or to refuse to make such an order is not before us. Ide v. Boston MaineRailroad, 83 Vt. 66, 103, 74 A. 401. Nor was it necessary that the transcript be made a part of the bill of exceptions to be availed of in this Court. If considered necessary, where the matter sought to be reviewed arose before a body not having records that will present legal errors of the character of those complained of, the evidence, some statement of it, or a transcript of the proceedings, when supported by affidavits, may be resorted to. Rutter et al. v. Burke et al., 89 Vt. 14, 31, 93 A. 842.Page 384

Not having brought the transcript before us in this or some other proper way there is no question before us. Judgmentaffirmed.

NOTE. — WATSON, C.J., was present when this cause was argued, but, having died, took no part in this decision.