3 A.2d 548 | Vt. | 1939
In January, 1938, a fifth and more than fifty of the freeholders of the town of Pownal, Vermont, submitted to the selectmen of said Pownal a petition. This petition sets forth that the persons whose names are appended thereto "* * * * desire to have a public park laid out in said Town for public purposes, and for the public good and convenience or necessity of individuals, or of the public, and for the use of the public; we therefore, request the Selectmen of the Town of Pownal, pursuant to Section 3562 of Chapter 146 and Chapter 202 of the Public Laws of the State of Vermont, to lay out a public park in said town of Pownal, consisting of "Lake Potter," sometimes called "Barber's Lake" or "Perch Pond," being situated on the easterly side of said Town of Pownal, with such land along the brook flowing into said pond, being the inlet thereof, and such land on the northerly and easterly sides of said pond as may be necessary for the purposes of said public park."
Section 3562 of the Public Laws, by authority of which the petitioners seek to have lands set out for the purposes of a park, is as follows: "LAYING OUT PARKS. Sec. 3562. Application;procedure. A fifth or fifty or more of the freeholders of a town, desiring to have a public park or a public square laid in such town for the erection of a soldiers' monument or for other public purpose, may apply by petition in writing to the selectmen of the town requesting them to lay out such park or square." This section also contains provisions as to procedure, etc.
The selectmen of said town of Pownal, claiming to act by authority of said statute, proceeded to set out all of that body of water located in said town of Pownal known as "Lake Potter," and containing an area of more than twenty acres, also *202 about ten acres of land adjacent to said lake, said thirty acres so set out to be used as a public park.
The plaintiffs, Herbert W. Lorenz and Gertrude H. Lorenz, brought their petition to the June term of Bennington county court, seeking to have the proceedings of said selectmen in setting out said lands for the above mentioned purposes quashed and held null and void for the reasons: (1) Lack of statutory authority to take private property for the purposes specified; (2) failure to give adequate notice of the condemnation proceedings.
The plaintiffs are owners in fee of certain real estate in said town of Pownal subject to certain mortgages as appear of record in the land records of said town of Pownal and they also have a leasehold estate in the body of water in said town of Pownal sought to be taken for the purposes of a park in the proceedings hereinbefore mentioned.
After full hearing on plaintiff's petition, the court quashed the proceedings of the selectmen in laying out said lands for park purposes and held said proceedings null and void for lack of jurisdiction, first, because there was no statutory authority authorizing said acts of said board of selectmen; second, that interested parties were not given proper notice. To this judgment the defendants excepted and the case is here for our consideration.
We first take up the question of statutory authority of the selectmen to set out said lands for the purposes of a public park.
In the case of Farnsworth v. Goodhue,
The rules of common law are not to be changed by doubtful implication nor overturned except by clear and unambiguous language. Coral Gables, Inc. v. Christopher,
In P.L. section 3562, the statute which we are considering, the words "for the erection of a soldiers' monument" are followed by words of a more general meaning, namely, "or for other public purpose."
It is a rule of construction that when words of a particular description are followed by words of general import the latter can be held to include only things similar in character to those specially named. Allen v. Berkshire Mut. Fire Ins. Co.,
This Court has applied the above stated rule in many cases and we note a few of them. In Peaslee v. Fletcher's Estate,
In the case In re Barre Water Co., supra,
In Cross v. Frost,
In Allen v. Berkshire Mut. Fire Ins. Co.,
The defendants have cited but one case in support of their contention, namely, Willard v. Pike,
Applying the above quoted rule of construction to the case before us, the term "for other public purposes" refers to a purpore ejusdem generis with the purpose specifically mentioned and includes only a plot of land suitable in size and other respects for the erection of a soldiers' monument or a like or similar purpose.
From the foregoing it follows that P.L. section 3562 furnishes no authority to the selectmen of the town of Pownal to take by the right of eminent domain Lake Potter, a body of water of more than twenty acres, and about ten acres of land adjacent to said lake for the general purposes of a park. Our holding as to this question makes it unnecessary to consider the question raised as to notice.
Judgment affirmed. Let plaintiffs recover their costs in thisCourt.