Edgecumbe v. City of Burlington, 46 Vt. 218

Edgecumbe v. City of Burlington

46 Vt. 218 | Vt. | 1873

The opinion of the court was delivered by

Barrett, J.

The case has been argued mainly, 1st, on the question whether, in order to render the proceeding valid and *225effectual for sequestering the land^itwas indispensable that the land damage should have been paid or tendered within ten days after the recording of the return. The statute makes provision that before the land is taken, the owner shall have the damage' that has been awarded, and that, unless, it be paid within ten days after the recording of the proceedings, the land-owner may sue for and recover the same of the town. Whether the damage is or is not paid within said ten days, the owner is sure of having it paid before his land is taken; and if not paid within the ten days, he is sure of getting his pay for it by his suit, whether the land should or should not be actually taken and. used by force of the proceeding to sequester. So in any event, the constitutional provision as to compensation for property taken for public use, is rendered effectual for the behoof of the landowner. Indeed, this is not controverted in the argument — the only ground of objection to the validity of the proceeding in this respect being, that by the terms of the statute, the damages should be paid within the ten days, in order to render the proceeding valid and effectual.

The provision in the statute for suit and i ecovery if not paid within said ten days, would seem to indicate that it was contemplated that the proceeding might be valid, or, at any rate, not void, even if the damage awarded should not be paid within that time. If it had been supposed that the proceeding would become null in case of failure to pay within that time, it is hard to believe that provision would have been made for recovery of pay for the land which, by the assumption, was to be entirely unaffected by the proceeding — which was to continue to be the absolute property of the owner — with no diminution of right in himself, and no accession of right in it, or in respect to it, to the town. The argument, ah ineonvenienti, raised from the fact that there is no provision in the law for notice to be given of the time of filing the proceedings for record, to the intent that the landowner may be certain of his time for taking appeal, seems to have very little force as bearing on the construction and meaning of the statute as to time for making payment of the damages awarded.

*226There is a similar lack of provision in this respect in the matter of appeals from the allowance of commissioners on claims under the probate law. But it is sufficient to say that there is practically very little inconvenience to arise in this behalf. The town clerk’s office is always easily accessible, and ordinarily it would be entirely feasible to arrange with the clei’k himself to apprise the party of the fact of the proceedings being filed for record. And moreover, this matter in this instance is so much within the scope and reason of the law and rule as to such a record operating notice as to all matters required by law to. be recorded, that the omission of the legislature to make special provision for notice of the record to be made in this case, is not entitled to have weight as against the plain terms and legitimate implications of the express provisions of the statute in question. We hold, then, that the payment within ten days as claimed, is not a condition precedent and indispensable to the validity of the proceeding, and so, that the omission to pay or tender the damage within that time, does not render the proceeding null.

2d. It is claimed that the proceeding should be held to be invalid and ineffectual, for the reason that it was taken and prosecuted with the view of transferring the cemetery to the association formed under the act of incorporation in 1868. That act authorized the transfer in trust of the public cemetery in Burlington known as the Green Mountain Cemetery, to that association. There is no limitation of time for the making, of such transfer. There is no other designation of the subject-matter of such transfer than that above given. The general statute authorizing the enlargement of public burial-grounds, was then, and has continued to be, in force. Such enlargement of Green Mountain Cemetery would not destroy the identity, but only increase the size, of that cemetery ; and if such enlargement was legitimately made, the authority conferred by the act of 1868 would be as effectual for the conveyance of said cemetery enlarged, as for the conveyance of it without enlargement. The proceeding for such enlargement, as shown by the record, is conceded to be conformable to the provisions of the statute in that behalf.

Did the existence of the purpose of making such transfer to *227said association, render the proceeding null ? Certainly not, unless sucb transfer was to and would result in withholding the land so taken from its legitimate use as a public burial-ground. The same purpose is to bo served by the transfer of the enlarged cemetery as by the cemetery if not enlarged — and the same reason exists for conferring, and for exercising the authority to transfer the cemetery enlarged, as to transfer it not enlarged. This being so, it is seen by the deed of transfer, that the conveyance is made upon the express trust and confidence, that the association shall, at their own expense, support and manage said cemetery for the purposes of a public burial-ground only, conformably to all the laws of the state applicable thereto, and to the provisions of the act of 1868, — with a provision for surrender and reverter to the city upon breach of the trust in any respect. It is thus seen that the city has not parted with its title, but only farmed out the management of the cemetery to the same uses and to the same intents and purposes as it might be devoted to by the city if it had not made such transfer. If it would not be unlawful and improper for the city authorities to do. what is contemplated to be done and may .lawfully be done by the association, then it would be difficult to assign a reasonable objection to the needful enlargement of the cemetery, with a view to the transfer of it, under the act of 1868, to the association, after thus enlarged. It could be no fraud on the law, on the public, or on the land-owners.

Decree dismissing the bill is affirmed.