Summary
affirming trial court's decision to reclassify road from class 4 to class 3 in order to require town to maintain road
Summary of this case from Town of Calais v. County Road CommissionersOpinion
No. 128-79
Opinion Filed December 4, 1979
Highways — Maintenance and Control — Classification
Where owners of three permanent buildings on town road sought to have road reclassified from Class 4 to Class 3 so that town would have to repair and maintain the road and keep it open during the winter stipulated with town that other town roads classified or maintained as Class 3 roads had characteristics similar to plaintiffs' road as to grade, ledge and narrowness, discrimination in maintenance was correctly inferred from the similarities and the uneven treatment, and the roads comparable to plaintiffs' did not have to be identical to plaintiffs', and lower court's reclassification from 4 to 3 would be upheld. 19 V.S.A. §§ 461, 931.
Town appealed reclassification of Class 4 road as Class 3. Windsor Superior Court, Morrissey, J., presiding. Affirmed.
Niles, Johnson Gibbs, Woodstock, for Plaintiffs.
F. J. Glover, Ludlow, for Defendant.
Present: Barney, C.J., Daley, Larrow, Billings and Hill, JJ.
Denied relief by the selectmen of the Town of Hartland, the appellees here brought an action under 19 V.S.A. §§ 461 and 931 to the Windsor Superior Court, seeking to have a section of Highway No. 24 in that town reclassified from Class 4 to Class 3. They were owners of three permanent dwellings on the road in question, one of which was occupied year round. After receiving a commissioners' report and taking additional evidence by way of stipulation, the trial court reclassified the highway as requested, and the Town appeals, claiming that the evidence does not support the result.
A review of the record discloses a factual situation on all fours with Gilbert v. Town of Brookfield, 134 Vt. 251, 356 A.2d 524 (1976). Squarely on point is the language of that decision:
In all important respects these highways are indistinguishable from others which the Town has elected to repair, maintain and keep open during the winter, yet it has sought to avoid its obligation with respect to them. Difficulty of snow removal is its principal asserted reason, but the court found this claim without factual basis. We cannot construe the pertinent statutes as giving the selectmen arbitrary authority to grant and to withhold Class 3 classification. To do so would render the enactments unconstitutional. (Citation omitted.)
Id. at 253, 356 A.2d at 526.
The appellant stresses that the road here in question could not be found to be identical to other town highways either classified or maintained as Class 3. The parties stipulated that these other highways had similar characteristics as to grade, ledge, and narrowness. Discrimination in their maintenance is, we think, correctly inferred from these similarities and conceded unevenness of treatment. We know, however, of no requirement that comparable highways be "identical." To infer such a requirement, impossible of achievement, would be to render nugatory the whole statutory scheme.
Moreover, the trial court clearly assigned alternative grounds for the result which it reached. Besides finding discrimination, it found the classification standards of 19 V.S.A. § 17, incorporated by reference into 19 V.S.A. § 931(2), to have been met. In effect, the trial court justified its reclassification on both discrimination and the compliance with statutory standards for reclassification, even in the absence of discrimination. This alternative basis for decision is not attacked by appellant's brief. Challenge of possible error in the court's independent basis of decision is thereby waived. Quazzo v. Quazzo, 136 Vt. 107, 111, 386 A.2d 638, 641 (1978).
Because of the impending approach of the winter season and the consequent desirability of speedy decision, we will certify our entry forthwith.
Judgment affirmed. To be certified forthwith.