In accordance with the provision in the Vermont Constitution designating non-attorney side judges to hear cases, advise, (and even-horrors-over-rule) real-attorney judges in some legal situations, your humble scribe proposes in these column-inches to dispute the recently-proffered legal opinion that the planned OMYA Middlebury rail spur, across U.S. Route 7 and bisecting Halladay Road, question should be seen in the dim light of a near-forgotten 19th century statute.
That's the one from the era of steam locomotives granting railroads eminent domain rights to acquire right-of-way land to extend trackage (where the railroad companies thought they could sell enough passenger tickets and freight waybills to make a profit for shareholders on the transportation service). I won't dwell, here, on the denigration of the profit motive in contemporary Vermont circles, but I will note that regarding those statutes, some lawyers are already observing, are "arch-aic".
For readers in East Overshoe, that's, like, y'know, really old and, I mean, totally obsolete and stuff, and not to be confused with controlling as in arch-bishop or ruling bishop or "arch-i-tect" or master builder.
These laws are almost as ancient (thus, in the Progressive view, antiquated and overdue-for-modernization with "living" penumbras and emanations) as the national and state constitutions which originally authorized them.
The laws may qualify for one of the many contemporary meanings of gnarly. I'll just take "archaic" as a chosen pejorative adjective-used-as-noun specifically intended to bias public opinion against the-ugh-involved corporations.
That's, primarily, the presumptively evil for-profit private one (OMYA) which quarries marble, and only secondarily, the presumptively noble-for-loss public one (Vermont Railway) which now owns most of the rail rights-of-way in Vermont (and runs most of the trains on rights-of-ways mostly acquired, originally, from unwilling land-owners through eminent domain in the mid-19th century).
Readers old enough to have been in school when civics was taught, and a brief exposure to the national constitution (what an archaic educational notion!) was required, already know that, within the Bill of Rights' Amendment V, the final phrase reads thus "...Nor shall private property be taken for public use without compensation."
The 18th century definition of "public use" didn't include private railroads, so its meaning was modernized (a little "living-constitution" lingo, there) to include them starting in the ante-bellum decades.
In Tennessee, for example, TCA 7-56-207 authorizes counties to condemn land for railroad use, under what later came to be labeled the public-benefit reinterpretation.
Since then the legal disputes over takings for real P.U. purposes-government buildings or publicly owned infra-structure, for example-have typically been challenges over the dollar amount offered, not for the P.U. rationale itself.
Meanwhile, takings for public benefit (aka P.B.) purposes have been far more seriously challenged over the validity of the P.B. argument-transferring land from one private property owner to another for the proclaimed purposes of reducing blight and/or increasing tax revenues.
The famous legal challenge of 1954, Berman v. Parker, failed to discredit it although the subsequent SCOTUS decision, in the Kelo case-wherein the City of New London, Conn., was approved to condemn private houses and give the land to Pfizer Chemical under the P.B. rubric (Pfizer has since chosen to go AWOL)-so offended voter and non-lawyer sensibilities that many states have since tightened up on the P.B. argument. But guess what?Vermont isn't one of them. Surprised?
I'd guess that the state, in its ineffable wisdom, will use the 20th century P.B. precedents rather than the 19th century P.U.-for-railroads precedents to acquire the right-of-way for the Middlebury OMYA spur. Wouldn't getting some of those marble-rubble-hauling 18-wheelers off Route 7 be a P.B.? That's what Vermont's beautiful people in Middlebury and Brandon have wanted up to now.
Public use has metastasized, under legal cultivation, from its original constitutional meaning to include public benefit as well, which explains why SCOTUS former-barristers judged for the City of New London and against Suzette Kelo (a private homeowner) in the pro-P.B. ruling. This effort pleased Progressives and urban planners and there wasn't even a railroad involved.
Former Vermonter Martin Harris lives in Tennessee.