Ross v. Sparks (N. J. Ch.). Roth v. East Connellsville Coke Co. (Pa.) 1 Smith, Donovan v. (N. J. Ch.).. 384 Smith, Delaware, L. & W. R. Co. v. (Pa.) 299 167 Roudebush v. Meadville (Pa.). 446 Smith v. Exeter (Me.). 542 Rounds v. Ham (Me.).) 892 Royal Pub. Co., J. S. Ogilvie Pub. Co. v. (Pa.) Sonman Shaft Coal Co. v. Pennsylvania 746 Rubber-Bound Brush Co., Rubber & Celluloid Harness Trimming Co. v. (N. J.). Rubber & Celluloid Harness Trimming Co. Southern Mut. Ins. Co., Montgomery v. (Pa.) 924 210 Sparks, Ross v. (N. J.). 385 v. Rubber-Bound Brush Co. (N. J.). 210 Sparks v. Ross (N. J. Ch.). 214 Russell v. Zimmerman (Md.). 337 Sparks, Ross v. (N. J. Ch.). 384 Spear, Perry v. (Me.). 895 Ryan, Haywood v. (N. J. Sup.). Spencer v. Town School Dist. of Hartford 820 Ryan v. Morris (N. J.)... .1026 (Vt.) 510 Spink v. Schuylkill Nav. Co. (Pa.). 10 Safe Deposit & Trust Co. of Baltimore v. Sproul v. Sloan (Pa.). 501 267 Safe Deposit & Trust Co. of Baltimore, S. R. Moss Cigar Co., John T. Dyer Quarry Co. v. (Pa.)... 878 Trustees of Samuel Ready School for Female Orphans v. (Md.), Stagway v. Riker (N. J.). ..1067 261 Sage v. Lehigh Val. R. Co. (Pa.). 77 Stamm, Funk & Wagnalls Co. v. (N. J.)...1050 770 Sailer v. Podolski (N. J. Ch.).. 967 St. Bridget Convent Corp., Appeal of (Conn.) Starner, Monroe Water Supply Co. v. (Pa.) 782 119 881 State v. Alfred (Vt.).. 534 St. Charles College v. Carroll (Md.). 277 State v. Alpert (Vt.)... 537 802 State, Avery v. (Md.).. 148 St. James African Methodist Episcopal State v. Blackington (Me.). 726 State v. Fiore (N. J.).. .1039 954 State v. Greene (Vt.).. 515 State v. Grier (Del. Gen. Sess.). 579 261 Sandy River & R. L. R. R., Borden v. State v. Hopkins (Del. Gen. Sess.) 473 Trustees of Samuel Ready School for Female Orphans v. Safe Deposit & Trust Co. of Baltimore (Md.).. Witmer v. Bessemer & L. E. R. Co. (Pa.) 314 Wolf, Leatherman v. (Pa.). 17 261 Wolfson, French v. (N. J.). .1092 THE ATLANTIC REPORTER VOLUME 88 (87 Vt. 77) BESSETTE v. GODDARD et al. (Supreme Court of Vermont. Lamoille. Aug. 22, 1913.) An order of the Public Service Commission for the elimination of certain grade crossings, resulting in the discontinuance of a portion of the highway, which was without jurisdiction because there was no finding of necessity for such though the orator was a party to the proceeddiscontinuance, is subject to collateral attack, 1. CORPORATIONS ($ 394)-"PUBLIC SERVICE not a court. [Ed. Note.-For other cases, see Corporations, Cent. Dig. § 1576; Dec. Dig. § 394.*] 2. CORPORATIONS (§ 394*)-PUBLIC SERVICE COMMISSION-JURISDICTION. The Public Service Commission being a body exercising special and limited statutory powers, not according to the course of the common law, nothing will be presumed in favor of its jurisdiction, but the facts necessary to confer it must affirmatively appear, and the exercise of jurisdiction does not imply a previous ascertainment of those facts. [Ed. Note.-For other cases, see Corporations, Cent. Dig. § 1576; Dec. Dig. § 394.*] 3. RAILROADS (§ 99*)-PUBLIC SERVICE COMMISSION-JURISDICTION-HIGHWAY CROSS [Ed. Note. For other cases, see Railroads, Cent. Dig. §§ 293-295, 297-304; Dec. Dig. § 99.*] 4. RAILROADS (§ 99*)-ELIMINATION OF GRADE CROSSINGS-ORDER OF PUBLIC SERVICE COмMISSION-JURISDICTION. Where the findings of the Public Service Commission in proceedings to eliminate certain grade crossings contain no finding of necessity for discontinuing a certain portion of a highway, and give no reason why it could not be relocated so as to eliminate the crossings, its order effecting the practical discontinuance of that portion of the road and for the diversion of travel to another road was without jurisdic tion. [Ed. Note.-For other cases, see Railroads, Cent. Dig. 88 293-295, 297-304; Dec. Dig. § 99.*] 6. RAILROADS (§ 99*)—ELIMINATION OF GRADE CROSSINGS-ORDER OF PUBLIC SERVICE COMMISSION-RESTRAINING ENFORCEMENT. A court of equity may restrain the enforcement of an order of the Public Service Commission for the elimination of certain grade crossings, made without jurisdiction, at the instance of a property owner, who alleges that its enforcement will result in the discontinuance of the highway past his farm and cause him irreparable injury which money would not compensate; injunction being the only adequate remedy, as certiorari would not stay the execution of the order. [Ed. Note. For other cases, see Railroads, Cent. Dig. §§ 293-295, 297-304; Dec. Dig. § 99.*] Appeal in Chancery, Lamoille County; William M. Taylor, Chancellor. Suit by Theodule Bessette against C. C. Goddard and others. From a decree dismissing the bill pro forma, the orator appeals. Decree reversed, bill adjudged sufficient, and cause remanded, with directions. This is a suit in chancery to restrain the town of Hyde Park, its selectmen, and the St. Johnsbury & Lake Champlain Railroad Company from executing an order of the Public Service Commission requiring the elimination of certain public highway crossings at grade on the "River Road" in said town and an alteration of that section of said road by substituting therefor a portion of another existing highway in said town. The bill alleges that the orator is the owner of a large farm on the "River Road," [Ed. Note.-For other cases, see Railroads, Cent. Dig. 88 293-295, 297-304; Dec. Dig. which is the only feasible route from his 99.*] farm to the village of Morrisville on the •For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes east, the village of Johnson on the west, and The bill shows that the orator was notito the railroad station and the sawmill in fied and appeared in person at the hearing, said town "on account of a very long and and that from the evidence and personal in steep hill on the other highway by which said spection the Commission found the allegafarm is accessible"; that the "River Road" | tions of the petition of the selectmen in reis, and for many years has been, the spect of grade crossings to be true; that said main highway from Johnson, Cambridge, crossings were among the most dangerous Waterville, and Belvidere, in Lamoille coun- on the railroad; and that public safety rety, and other towns westerly, to the village quired that two of them be eliminated, as of Morrisville, the leading business center in suggested in the petition and as indicated said county, and to Stowe, Waterbury, and in its order, which required the town of Hyde Montpelier southeasterly, and Hardwick and Park to expend not exceeding $4,500 in imSt. Johnsbury easterly; that because of the proving as therein directed, said section of large amount of travel on the "River Road," highway leading to the village of Hyde Park, and because of its being the only feasible and to pay all damage legally incident thereto, route from the orator's farm to the places and that, upon the completion of said work, mentioned, the value of said farm is very the second of said crossings, computing from greatly enhanced thereby, and its discontin- the east, be forever thereafter discontinued uance as proposed would greatly depreciate and abandoned as such and fenced and barred its value and make it an undesirable place to against public travel; that the most westerly live; that the orator has a large amount of of said crossings be forever discontinued and timber on said farm and each winter engages abandoned as a public highway crossing but in cutting the same and drawing it to the be maintained as a farm crossing for the sawmill near the railroad station and will accommodation of the orator's farm, and that be so engaged for a number of years to come; the other two crossings be maintained as that said mill is now accessible by an easy they are for the accommodation of Ladeau's and short route of not more than half a farm and the orator's farm; and that all mile over the "River Road," but that, if the expense properly incurred in executing said road is discontinued as proposed, the the order and paying land damages be appororator would be compelled to haul all of his tioned as stated among the state, the town, timber and lumber to said mill by a route and the railroad company. more than a mile long and up a long and steep sandy hill, thence through the village of Hyde Park, and down a long, steep hill to said mill, and that all of his manufactured lumber needed for use on his farm would have to be hauled back by the same difficult and circuitous route, all of which would be of great damage to him; and that, beginning a little west of the railroad station, the railroad runs parallel to the "River Road" for about half a mile to a point a little west of the orator's farm, within which distance said road crosses the track four times at grade. The bill further alleges that in April, 1910, the selectmen of Hyde Park brought their petition to said Commission, alleging that there are four railroad highway crossings at grade in said town in a distance of about a mile on the "River Road," which distance extends from near said station, northerly and westerly, past the dwelling house of John Ladeau and of the orator to the intersection of said road with the public highway lealing to and from the village of Hyde Park; that public safety requires that said grade crossings be eliminated by improving, reconstructing, and repairing a section of said last-mentioned highway from its intersection with the "River Road" to the village of Hyde Park, a distance of about 4,000 feet, which it is feasible to do, and discontinuing and abandoning said grade crossings and diverting the travel through said village over said improved section of highway, and pray The bill alleges that the elimination of the second crossings as aforesaid, if allowed, would effectuate discontinuance of that section of the "River Road" and cause irreparable damage to the orator and his farm; that the order is void for want of authority in the Commission to make it; that both the town and the railroad company will obey it unless restrained; and that the orator will suffer thereby as a taxpayer of the town as well as in inconvenience and the lessened value of his farm. The bill is demurred to for want of equity and for that the Commission had full jurisdiction to make the order and the orator an adequate remedy by appeal; that the orator is concluded by the order, it not having been appealed from, and the court of chancery without jurisdiction to interfere with it; that the orator has an adequate remedy at law by application to the Commission to assess his damages; that the selectmen of Hyde Park have full jurisdiction of the highways in the town, which should not be interfered with by the court of chancery; that the orator has an adequate remedy at law for the correction of any and all errors in the order, if any there are, unless he has lost the same by his own laches. By agreement of counsel the demurrer was sustained pro forma, the bill adjudged insufficient and dismissed, with costs, and the orator ap pealed. Argued before ROWELL, C. J., and MUN, SON, WATSON, HASELTON, and POWERS, |