Champlain Realty Company v. Town of Brattleboro

This was a suit in assumpsit by the petitioner, the Champlain Realty Company, to recover $484.50 and interest from the town of Brattleboro, Vt., being the amount of taxes levied on logs of pulpwood of the petitioner floating in the West river in that town on April 1, 1919, and paid by the petitioner under protest as illegally collected, because the logs were then in transit in interstate commerce to Hinsdale, N. H. The suit was brought in the county court, and, the defendant having failed to set the cause for jury trial within the time fixed by statute, it was heard by the court, which made findings of fact that under the state practice are conclusive on review by the Supreme Court. The county court gave judgment for the Realty Company. The town took the case on exceptions to the Supreme Court.

The Supreme Court (95 Vt. 216, 113 Atl. 806) summarized the findings of fact by the county court as follows:

'During the winter of 1918-19 the plaintiff cut pulpwood, in all about 10,000 cords, in the towns of Jamaica, Stratton, Londonderry and Winhall in this state. The plaintiff maintains a mill at Hinsdale, in the state of New Hampshire, about three miles below Brattleboro, where its pulpwood is rossed and bolted. The wood, cut four feet long, was placed upon the banks of West river and its tributaries to be floated down into the Connecticut and thence to its destination at the mill in Hinsdale. The waters of the West river are wholly in this state and empty in the town of Brattleboro into the Connecticut. West river and its tributaries had been used for driving pulpwood to the mill at Hinsdale in the years 1917 and 1918. A single log boom is provided at the mill to receive the wood floated down the river, but is incapable of holding it all when the water in the Connecticut is high and the current swift, and the wood is liable to be carried over and drawn under the boom and lost. A pond of considerable size is formed near the mouth of West river in the town of Brattleboro by water set back from the Connecticut by the dam at Vernon. Plaintiff maintains a boom at this point to hold and control the logs driven down West river until the water in the Connecticut has receded sufficiently to permit of their being held in the boom at Hinsdale.

'On March 25, 1919, the plaintiff began putting the pulpwood into the West river and its tributaries, the water in these streams then being high, intending to drive it down the river and thence into the Connecticut and down that river to its mill in Hinsdale. In anticipation of the probable high water in the Connecticut, plaintiff had previously placed its boom across West river near its mouth to hold the wood there until the water in the Connecticut had receded enough to allow it to be held at the mill at Hinsdale. The wood floated down West river on the high water and the head of the drive reached the boom at the mouth of West river on March 27, 1919. At that time the Connecticut was so high and its current so swift that it was not thought safe to let the wood into that river, as it could not be held at the Hinsdale boom. For this reason and no other the plaintiff held its wood in the boom at Brattleboro. The Connecticut was not suitable for driving pulpwood from the time the drive began until April 3d, on which date the plaintiff's servants cut the boom at the mouth of West river so that the wood could pass into the Connecticut. Prior to April 3d only about 4,000 cords of the wood had reached and been held at the West river boom. The balance arriving later went through to Hinsdale without stopping. On March 28, 1919, when there was by estimation about 4,000 cords of wood in the West river boom, it broke, allowing some of the wood to escape into the Connecticut, and onto the Retreat meadow in Brattleboro, near the mouth of West river. The boom was repaired on March 29, 1919. At this time the part of West river where the wood lay back of the boom, called the holding ground, was frozen, so the wood, if not boomed, could not have continued on its journey into the Connecticut at that time. On April 1, 1919, about 1,500 cords of the pulpwood was being held in plaintiff's boom at the mouth of West river. Some wood that was lodged on an island and the wood on the Retreat meadow remained after the boom was cut. The latter remained on the meadow about two weeks and had to be taken out by a process called 'booming' or 'warping.' None of this 1,500 cords was cut in the town of Brattleboro. All of it had been carried down West river and was destined for the plaintiff's mill at Hinsdale, N. H., by way of the Connecticut. The drive of pulpwood down West river to the Connecticut and thence to the rossing plant at Hinsdale was in continuous operation from March 25th until it was completed on May 9th, and was conducted properly to make an uninterrupted passage, so far as possible.'

On these findings the Supreme Court held that the interstate transit did not begin until the wood left the Brattleboro boom. Everything before that was merely preparations. The floating of the logs from the West river towns to Hinsdale was interrupted, and the interruption, although only long enough to secure safety in the drive, was for the benefit of the owner, and in law postponed the initial step in the interstate transit until the wood was released from the Brattleboro boom. The court, therefore, held the wood taxable at Brattleboro and reversed the county court.

Messrs. Wm. C. Cannon, of New York City, and M. P. Maurice, of Brattleboro, Vt., for petitioner.

Messrs. Arthur P. Carpenter and Ernest W. Gibson, both of Brattleboro, Vt., for respondent.

[Argument of Counsel from pages 369-371 intentionally omitted]

Mr. Chief JUSTICE TAFT, after stating the case, delivered the opinion of the Court.