Silverfine v. Town of Bakersfield

NOTICE:  This opinion is subject to motions for reargument under V.R.A.P. 40
as well as formal revision before publication in the Vermont Reports.
Readers are requested to notify the Reporter of Decisions, Vermont Supreme
Court, 111 State Street, Montpelier, Vermont 05602 of any errors in order
that corrections may be made before this opinion goes to press.


                                No. 89-079


Len Silverfine                               Supreme Court

                                             On Appeal from
     v.                                      Franklin Superior Court

Town of Bakersfield and                      January Term, 1990
Bell-Gates Lumber Company


Matthew I. Katz, J.

Douglas D. DeVries, Enosburg Falls, and Michael Rose, St. Albans (On the
  Brief), for plaintiff-appellant

David M. Yarnell and Jesse D. Bugbee of Kissane, Yarnell & Cronin, St.
  Albans, and Philip J. Fitzpatrick, Jeffersonville, for defendant-
  appellee Bell-Gates Lumber Company

Brown, Cahill, Gawne & Miller, St. Albans, for defendant-appellee Town
  of Bakersfield

Jeffrey L. Amestoy, Attorney General, and Andrew W. MacLean, Assistant
  Attorney General, Montpelier, for defendant-appellee State of Vermont


PRESENT:  Allen, C.J., Peck, Gibson, Dooley and Morse, JJ.


     MORSE, J.   Plaintiff landowner appeals from the dismissal of his suit,
which alleges that his civil rights were violated when defendant Town of
Bakersfield, pursuant to an unconstitutional state statute, granted
defendant Bell-Gates Lumber Co.'s petition to lay out a right-of-way across
his land in order to transport its lumber.  We affirm the dismissal of the
suit, but on grounds different from those relied on by the trial court.
     The parties stipulated to the facts.  During the spring of 1983,
pursuant to 19 V.S.A. { 325, (FN1) Bell-Gates petitioned the Town of Bakersfield
for permission to lay out a right-of-way to remove logs across plaintiff's
property.  The Town granted Bell-Gates's petition, provided that the company
pay plaintiff $100 for the estimated damage to his property, post a $1,500
bond to cover potential damages from runoff, and complete the logging
operation within two years.  In April of 1986, following two attempted suits
by plaintiff, (FN2) the Town gave Bell-Gates until April of 1987 to begin the
operation and another two years after that to complete it.  Bell-Gates began
work sometime between the fall of 1985 and the spring of 1986 and completed
it sometime between March and August of 1988.
     In January of 1987 plaintiff brought this suit, claiming damages under
42 U.S.C. { 1983 for an unconstitutional taking of his property.  There are
four counts to the complaint:  (1) against Bell-Gates for appropriating the
right-of-way, plaintiff seeks ten thousand dollars in compensatory damages,
an injunction from using the right-of-way across his land, and a declaration
that { 325 is unconstitutional; (2) against the Town of Bakersfield for
granting Bell-Gates's petition, plaintiff seeks compensatory damages of one
dollar and the same declaration; (3) against the State of Vermont for
enacting an unconstitutional statute, plaintiff requests unspecified
compensatory damages along with the same declaration.  The fourth count,
added later, states that the Declaratory Judgments Act, 12 V.S.A. {{ 4711-
4725, gives the court the authority to adjudicate the parties' rights vis-a-
vis { 325.  The trial court dismissed the case, concluding that the
temporary right-of-way across plaintiff's property did not constitute an
unconstitutional taking.
     On appeal, plaintiff argues that defendants' actions pursuant to { 325
constitute an unlawful taking for private purposes in violation of the Fifth
Amendment to the United States Constitution and Chapter I, Article 2 of the
Vermont Constitution.  Because no justiciable controversy exists, we do not
reach plaintiff's constitutional arguments.
     In order for this Court to declare a statute unconstitutional, the
litigants must show that the requested declaratory relief, if granted, would
make a practical difference in an actual controversy.  See Robtoy v. City of
St. Albans, 132 Vt. 503, 504, 321 A.2d 45, 46-47 (1974) ("action for
declaratory relief must be based on actual controversy"); Lace v. University
of Vermont, 131 Vt. 170, 175, 303 A.2d 475, 478 (1973) (absent justiciable
controversy, declaratory judgment would amount to unauthorized advisory
opinion); see also S. Nahmod, Civil Rights and Civil Liberties Litigation,
the Law of Section 1983 {{ 5.04-.05, at 276-78 (2d ed. 1986) (concept of
justiciability precludes courts from deciding issues where there is no
current, concrete dispute between adversaries).  We will not provide an
advisory opinion on the constitutionality of a statute where there is no
longer a live dispute between the parties.
     In this case, Bell-Gates logging operations have long ceased, and the
plaintiff has apparently accepted the $100 in damages ordered by the town.
There is no live controversy.  By accepting the damage award and foregoing
the appeals process, see 19 V.S.A. { 923(5) ("[i]f an owner is dissatisfied
with the award for damages he or she may appeal using any of the procedures
listed in chapter 5 of this title," which include a right to appeal the
amount of compensation or the necessity of the right of way), plaintiff has
foreclosed the instant { 1983 action because he has received full damages
for his injury.  The underlying injury necessary to make out the { 1983
action no longer exists.  See Littlefield v. Town of Colchester, 150 Vt.
249, 251, 552 A.2d 785, 786 (1988) (once plaintiff voluntarily dismissed his
underlying appeal of the denial of his application for a commercial
subdivision, no injury existed to support subsequent { 1983 action).
     Plaintiff argues that he "is not taking issue with the selectmen's
award for damages but is seeking redress under 42 U.S.C. { 1983 for a
violation of his constitutional rights."  Nonetheless, as the United States
Supreme Court has stated, "[s]ection 1983 presupposes that damages that
compensate for actual harm ordinarily suffice to deter constitutional
violations."  Memphis Community School Dist. v. Stachura, 477 U.S. 299, 310
(1986).  Accordingly, damages based on the speculative abstract value of a
violated constitutional right are not a permissible element of compensation
in { 1983 actions.  Stachura, 477 U.S.  at 310.  Moreover, this is not the
type of { 1983 action where reasonably quantifiable presumed damages may
substitute for compensatory damages representing actual injuries.  Presumed
damages are appropriate only when compensation is sought for "an injury that
is likely to have occurred but difficult to establish" or impossible to
measure.  Id. at 310-11; see, e.g., Hobson v. Wilson, 737 F.2d 1, 62 (D.C.
Cir. 1984) (where FBI agents had violated plaintiffs' First Amendment rights
to assemble and speak in peaceable political protest, court held that injury
to constitutionally protected interest could itself constitute compensable
injury to the extent that it was "reasonably quantifiable" and not based on
"the so-called inherent value of the rights violated").
     Here, the actual injury to plaintiff's property was not difficult to
establish or impossible to measure, and plaintiff accepted the compensation
offered for that injury.  Absent potential damages for the underlying
injury, plaintiff's request for a declaration on the constitutionality of {
325 is not justiciable.
     Affirmed.
                              FOR THE COURT:




                              __________________________________________
                              Associate Justice





FN1.    19 V.S.A. { 325 provided:
	     When it becomes necessary for the practical removal
	of lumber, wood, or other material, to pass through the
	lands of a person other than the owner of the land from
	which such lumber, wood, or other material is to be
	removed, the selectmen, in their discretion, may lay out
	a right of way through the land of any person for the
	purposes aforesaid, and, upon notice to and hearing of
	the owner of the lands, shall determine the necessity of
	such right of way, and such damages shall be paid by the
	person applying for such right of way before the same
	shall be open for use.  A party aggrieved by the action
	of the selectmen may appeal by way of petition to the
	county court as provided in case of refusal of selectmen
	to lay out, alter or discontinue highways.
	In 1986 the provision was superceded by 19 V.S.A. { 958.


FN2.    Prior to the instant complaint, plaintiff had filed two other
complaints.  The superior court dismissed the first complaint filed in
September, 1983 for improper service, and this Court dismissed the appeal in
July of 1984 for lack of a final judgment.  The second complaint was filed
in April of 1985.  It was dismissed by the superior court, and then again on
appeal for lack of progress.