Volume 134 — Vermont Reports

<bold>1. Criminal Law — Sentence — Review</bold> <block_quote> When a sentence is within the limits set by statute, a reviewing court is barred from any inquiry it might otherwise be inclined to make, except in the most exceptional circumstances.</block_quote> <bold>2. Criminal Law — Sentence — Review</bold> <block_quote> Where supreme court could find no evidence in the record that appellant's indigency was known to trial judge or alluded to at time that sentence hearing was held and sentence imposed, it would not hold that because appellant was an indigent, fact that at hearing on motion to vacate or reduce sentence the judge allegedly stated that he would consider shortening the sentence if defendant would consider restitution of funds received through his criminal issuance of false tokens constituted a denial of equal protection.</block_quote>

<bold>1. Pleading — Motion for Acquittal</bold> <block_quote> The test for granting a motion for judgment of acquittal is whether, taking the evidence in the light most favorable to the state and excluding modifying evidence, the state has introduced evidence fairly and reasonably tending to show the defendant guilty beyond a reasonable doubt. V.R.Cr.P. 29.</block_quote> <bold>2. Appeal and Error — Motion for New Trial</bold> <block_quote> Motion for a new trial is directed to the trial court's discretion and in the absence of discretion, the decision is not revisable. V.R.Cr.P. 33.</block_quote> <bold>3. Witnesses — Credibility</bold> The weight and credibility of testimony are for the jury. <bold>4. Rape — Elements of Offense — Penetration</bold> <block_quote> Jury could find that penetration, an essential element of rape, existed on the evidence before it. 13 V.S.A. § 3201.</block_quote> <bold>5. Appeal and Error — Evidence — Weight</bold> <block_quote> The exercise of discretion in passing on the weight of the evidence is for the trial court alone, and the supreme court on appeal has no discretionary power in the matter.</block_quote> <bold>6. Appeal and Error — Motion for New Trial</bold> <block_quote> Denial of motion for new trial would be sustained where it was not shown to have been exercised on grounds, or for reasons, clearly untenable, or to an extent clearly unreasonable. V.R.Cr.P. 33.</block_quote><page_number>Page 206</page_number>

<bold>1. Courts — Jurisdiction — Negligence</bold> <block_quote> Where decedent was killed in a two-car collision on a Maine highway and his estate's administrator sued company working on the highway, alleging that defendant's work was negligent and caused decedent's death, that the suit was brought under the law of Maine, where the accident occurred, and that neither administrator nor defendant company was a resident of Vermont, did not deprive Vermont courts of jurisdiction.</block_quote> <bold>2. Dismissal and Nonsuit — Grounds — Forum Non Conveniens</bold> <block_quote> Where decedent was killed in a two-car collision on a Maine highway and his estate's administrator sued company working on<page_number>Page 212</page_number> the highway, alleging that defendant's work was negligent and caused decedent's death, that the suit was brought under the law of Maine, where the accident occurred, that administrator was not a Vermont resident and company was authorized to do business in Vermont, but had its principal place of business in Kentucky, and that company could bring a third party action in Maine against another company, but could not do so in a Vermont action, was not grounds for dismissal on the basis of forum non conveniens and such dismissal below was an abuse of discretion, for it was not shown that ascertainment and application of Maine law would present any difficulty, the real parties in interest were the widow and decedent's family, who lived in Vermont, and dismissal would require a new action in another jurisdiction.</block_quote> <bold>3. Death — Wrongful Death — Jurisdiction</bold> <block_quote> An action under a wrongful death statute is transitory and may be maintained wherever the wrongdoer may be found, and the inability of defendant to bring in a third party is not sufficient to overcome that right.</block_quote> <bold>4. Dismissal and Nonsuit — Grounds — Forum Non Conveniens</bold> <block_quote> Dismissal on the ground of forum non conveniens should be granted only in the rare case in which the combination of factors to be considered tips the scales overwhelmingly in favor of defendant and the dismissal will cause no serious inconvenience to plaintiff; the mere showing of inconvenience on the part of defendant is not enough.</block_quote> <bold>5. Dismissal and Nonsuit — Grounds — Forum Non Conveniens</bold> <block_quote> The cardinal purpose of the doctrine of forum non conveniens is to prevent the plaintiff from seeking to vex, harass or oppress the defendant by inflicting upon defendant expenses not necessary to plaintiff's right to pursue his remedy, not to hinder plaintiff in a good faith choice of forum.</block_quote>

<bold>1. New Trial — Probability of Different Result</bold> <block_quote> New trial motion test of probability of a different result upon a new trial does not violate right to have the evidence in a criminal case measure up to proof beyond a reasonable doubt, for grant of a new trial is a privilege granted under legislative acts and the litigant has already had a trial subject to the reasonable doubt standard.</block_quote> <bold>2. New Trial — New Evidence</bold> <block_quote> To prevail on a motion for new trial on the basis of newly discovered evidence, one must show that the evidence is truly new and not merely undiscovered due to lack of diligence, and that there is a reasonable assurance that the evidence will work a different result upon a retrial.</block_quote><page_number>Page 221</page_number> <bold>3. New Trial — New Evidence</bold> <block_quote> Denial of new trial motion made on ground of allegedly newly discovered evidence was proper where court's decision was supported by a rational view of the evidence and the court's discretion was exercised on reasonable and tenable grounds.</block_quote>

<bold>1. Appeal and Error — Motion for New Trial</bold> <block_quote> Standard to be followed in passing upon contention that trial court erred in denying motion for new trial, made on ground that verdict of guilty of larceny was contrary to evidence of insanity, was whether there was evidence such that the jury could find beyond a reasonable doubt that the appellant was sane at the time of the commission of the offense. <cross_reference>13 V.S.A. § 4801</cross_reference>.</block_quote> <bold>2. Appeal and Error — Motion for New Trial</bold> <block_quote> Motion for new trial is directed to trial court's discretion and supreme court will defer to trial court's view and affirm unless there has been error as a matter of law or a clear abuse of discretion.</block_quote> <bold>3. Evidence — Weight and Sufficiency — Role of Jury</bold> <block_quote> Whether evidence of defendant's sanity at time of commission of larceny removed all reasonable doubt as to his mental state was for the jury to decide, and questions as to how fully informed prosecution's psychiatrist-witness was as to defendant's behavior on relevant past dates, and psychiatrist's expressed doubts as to validity and meaning of state's test of insanity statute, went to the weight<page_number>Page 228</page_number> of the evidence, a matter for the jury, and reversal was not required.</block_quote> <bold>4. Appeal and Error — Charge — Grounds for Reversal</bold> <block_quote> Where instruction on test of insanity was attacked on appeal, question was whether the instruction adequately covered the point and amply protected the rights of the defendant.</block_quote> <bold>5. Criminal Law — Defenses — Insanity</bold> <block_quote> In larceny prosecution defended against on ground of insanity, instruction that the term mental disease or defect does not include an abnormality manifested by repeated criminal or other anti-social conduct and that if the only evidence of mental disease was a pattern of anti-social behavior a verdict of not guilty by reason of insanity could not be returned was erroneous as likely to confuse the jury, and required reversal, where statute used the words "an abnormality manifested only by repeated criminal or otherwise anti-social conduct", and the court had left out the word "only", and where there was agreed-upon evidence that defendant suffered from a traumatically induced mental disease, which resulted in substantial organic damage to the brain, and court had left out statute's provision that "the terms `mental disease or defect' shall include congenital and traumatic mental conditions as well as disease". <cross_reference>13 V.S.A. § 4801</cross_reference>.</block_quote>

<bold>1. Appeal and Error — Appeal Before Final Judgment —</bold> <bold>Certification of Issues</bold> <block_quote> It is solely within the discretion of the trial court, on an interlocutory appeal, to state the controlling questions of law, and unless clear error is shown in stating the issues, supreme court will not review or rephrase the issues certified as issues, so that plaintiff could not gain relief from claim that questions certified were not the ones he desired to be considered. V.R.A.P. 5(b).</block_quote> <bold>2. Pardon and Parole — Effect</bold> <block_quote> Where governor granted full and unconditional pardon covering the three driving while intoxicated convictions of person whose license had been revoked for life, all legal punishment and disqualifications resulting from the convictions were removed and Commissioner of Motor Vehicles properly issued him a license. 23 V.S.A. §§ 603, 1183, 1187.</block_quote>

<bold>1. Highways — Maintenance and Control</bold> <block_quote> Trial court could find that town used discriminatory standards in classifying roads serving petitioners' property where the town did not keep the roads open in the winter, the roads were town roads, never abandoned and had been repaired, and other roads, with similar features and terrain, were maintained during all seasons and the town would not be unduly burdened by maintaining petitioners' roads. 19 V.S.A. §§ 17, 931, 1331.</block_quote> <bold>2. Pleading — Affirmative Defenses</bold> <block_quote> An allegation that plaintiff is barred from relief under the doctrine of election of remedies is an affirmative defense in the nature of waiver and must, under rule, be pleaded. V.R.C.P. 8(c).</block_quote> <bold>3. Election of Remedies — Consistent Remedies</bold> <block_quote> Statutory remedies relating to reclassification of a highway, and to specified repairs subject to a prescribed monetary limit, may be pursued concurrently or consecutively and thus are not subject to the doctrine of election of remedies. 19 V.S.A. §§ 931, 1333.</block_quote>

<bold>1. Brokers — Commission — Right to</bold> <block_quote> Broker with whom defendant listed his real estate was the procuring cause of sale and entitled to his commission where buyer contacted broker about other property, saw a for sale sign on defendant's property while viewing property he had contacted broker about, went onto the premises and met defendant, but did not discuss sale or purchase, inquired about defendant's property at broker's office, had several conferences with broker and broker's attorney concerning defendant's property, and purchased the property on his own upon being told by one of broker's employees that an offer had been made by another party.</block_quote> <bold>2. Brokers — Commission — Burden of Proof</bold> <block_quote> Real estate broker suing for commission for sale of property must show more than an incidental relationship to the sale; he must show that his actions were the procuring cause of the sale.</block_quote> <bold>3. Brokers — Commission — Right to</bold> <block_quote> That seller did not interfere in bad faith with his broker's efforts to sell the property did not relieve him of liability for the commission where efforts of broker were the procuring cause of the sale.</block_quote>

<bold>1. Constitutional Law — Right to Jury Trial — Guarantees</bold> <bold>Encompassed</bold> <block_quote> Right to trial by jury in civil cases, guaranteed by state and<page_number>Page 260</page_number> federal constitutions, carries with it the privilege to be present at the selection of the jury. Vt. Const. ch. I, art. 12.</block_quote> <bold>2. Constitutional Law — Right to Jury Trial — Guarantees</bold> <bold>Encompassed</bold> <block_quote> Plaintiff's constitutional right to be present at selection of jury to try civil cause was not denied where she failed to appear at the selection in spite of proper notification, did not show inability to be present and did not show prejudice. Vt. Const. ch. I, art. 12.</block_quote> <bold>3. Constitutional Law — Right to Jury Trial — Guarantees</bold> <bold>Encompassed</bold> <block_quote> Burden was on plaintiff objecting, on appeal, to her absence at time jury was drawn, to produce a record of improper activity on the part of the trial court.</block_quote> <bold>4. Appeal and Error — Preservation of Questions — Failure to</bold> <bold>Present Below</bold> <block_quote> A trial court may not be put in error on appeal on a point not made below, and the point is not for consideration on appeal.</block_quote>

<bold>1. Constitutional Law — Confessions — Determination of</bold> <bold>Admissibility</bold> <block_quote> Custodial interrogation resulting in oral confession did not have to be corroborated by a statement or waiver of rights form signed by person in custody in order for the confession to be admissible.</block_quote> <bold>2. Constitutional Law — Confessions — Determination of</bold> <bold>Admissibility</bold> <block_quote> Custodial interrogation resulting in a confession violates the constitutional privilege against self-incrimination unless the prosecution clearly demonstrates that the person interrogated received the <italic>Miranda</italic> safeguards prior to interrogation and knowingly and voluntarily waived his rights thereunder.</block_quote><page_number>Page 262</page_number> <bold>3. Constitutional Law — "Miranda" Warning — Waiver</bold> <block_quote> It is not necessary that a waiver of rights form or written confession be signed in order for the prosecution to sustain its burden of proving that a person in custody waived his Fifth Amendment rights.</block_quote> <bold>4. Constitutional Law — "Miranda" Warning — Waiver</bold> <block_quote> A waiver of <italic>Miranda</italic> rights may be implied where warranted from the facts and circumstances of a particular case.</block_quote> <bold>5. Constitutional Law — "Miranda" Warning — Waiver</bold> <block_quote> It is the task of the trial court as finder of fact to determine by a preponderance of the evidence if a defendant knowingly and intelligently waived his Fifth Amendment rights, and where trial court so found and supreme court was persuaded on appeal that the finding was supported by credible evidence, the ruling would not be disturbed.</block_quote> <bold>6. Criminal Law — Elements of Offense</bold> <block_quote> The date an offense is committed is not an essential element of the offense unless it is descriptive of the offense.</block_quote> <bold>7. Property Intentionally Damaged — Crimes — Elements</bold> <block_quote> The date on which it was committed is not an essential element of offense of intentionally damaging property when the person doing the damage has no right to do so or any reasonable ground to believe he has such a right, and the date need not be specifically proven. <cross_reference>13 V.S.A. § 3701</cross_reference>(c).</block_quote> <bold>8. Evidence — Time and Date</bold> <block_quote> Voluntary oral confession was proof of date on which offense confessed to was alleged to have taken place.</block_quote> <bold>9. Property Intentionally Damaged — Crimes — Elements</bold> <block_quote> Investigating police officer's unobjected to testimony that he observed victim's station wagon with all four tires slashed, together with defendant's confession, was sufficient proof of ownership of property damaged, in prosecution for intentional damage to property without right, or belief in right, to do so. <cross_reference>13 V.S.A. § 3701</cross_reference>(c).</block_quote> <bold>10. Property Intentionally Damaged — Crimes — Elements</bold> <block_quote> In statute making unlawful property damage an offense and referring, in two subsections, to "damage to any property which is valued in an amount exceeding" $1000 and $250 respectively, and referring in a third subsection to "damage to property of any value not exceeding $250.00", the word "value" refers to the amount of damage inflicted, not the value of the property which is damaged. <cross_reference>13 V.S.A. § 3701</cross_reference>.</block_quote> <bold>11. Property Intentionally Damaged — Crimes — Elements</bold> <block_quote> Under property damages criminal offense statute raising the penalty in accord with the damage value, exact value of the damage<page_number>Page 263</page_number> need not be proven where subsection dealing with the lowest damage bracket is alleged. <cross_reference>13 V.S.A. § 3701</cross_reference>.</block_quote>

<bold>1. Unemployment Compensation — Eligibility — Availability for</bold> <bold>Work</bold> <block_quote> Unemployment compensation claimant was disqualified from receiving benefits where she had worked as a waitress and turned down a job as a lunch counter attendant, requiring cooking and serving light lunches, on the ground that she did not feel capable of doing the work and did not want the responsibilities inherent in the job; the refusal to accept the job was personal and not job related. <cross_reference>21 V.S.A. § 1344</cross_reference> (a)(2)(C).</block_quote> <bold>2. Unemployment Compensation — Eligibility — Availability for</bold> <bold>Work</bold> <block_quote> An individual's physical inability to perform certain employment may, within unemployment compensation law, be good cause for refusal to accept an offered job.</block_quote> <bold>3. Unemployment Compensation — Eligibility — Availability for</bold> <bold>Work</bold> <block_quote> Burden was on claimant for unemployment compensation benefits to show that she refused a job for good cause. <cross_reference>21 V.S.A. § 1344</cross_reference>(a) (2)(C).</block_quote> <bold>4. Unemployment Compensation — Evidence</bold> <block_quote> Where unemployment compensation claimant was properly refused benefits because, for a personal reason, she refused a job similar to her last job, it was proper to exclude her proferred<page_number>Page 282</page_number> evidence relating to working conditions and responsibilities of the person who had last had the job offered. <cross_reference>21 V.S.A. § 1344</cross_reference>(a)(2)(C).</block_quote> <bold>5. Administrative Law — Judicial Review — Standards</bold> <block_quote> The judgment of the Employment Security Board is entitled to strong credence, as being within the particular province of a regulatory board with recognized competence and expertise.</block_quote>

<bold>1. Statutes — Construction and Application — Unambiguous</bold> <bold>Statutes</bold> <block_quote> When the meaning of a statute is plain on its face, supreme court is required to enforce it according to its express terms.</block_quote> <bold>2. Unemployment Compensation — Generally</bold> <block_quote> The unemployment compensation law, as remedial legislation, is to be interpreted in line with its benevolent objectives; therefore, no claimant should be excluded from its provisions unless the law clearly intends exclusion.</block_quote> <bold>3. Unemployment Compensation — Disqualification</bold> <block_quote> Statute providing that in periods of high level unemployment disqualification for benefits shall be for six to twelve weeks immediately following the claim did not require the whole of the six to twelve week period to fall within a time of high level unemployment; so that where high level unemployment ended during such disqualification period, disqualified persons could not be subjected to<page_number>Page 296</page_number> the disqualification provision in effect when unemployment was not at a high level, and were entitled to benefits at the end of the six to twelve week period. <cross_reference>21 V.S.A. § 1344</cross_reference>(b).</block_quote>

<bold>1. Statutes — Construction and Application — Generally</bold> <block_quote> In the process of interpreting phrase of statute, court was guided by rule that the legislature's objective was to be found from a study of the act, its subject matter and its consequences.</block_quote> <bold>2. Public Employees — Suspension and Dismissal — Statutes</bold> <block_quote> A nonprobationary policeman has the right to have a statute under which he is removed from his position fairly applied, and any mode of discharge pursuant to statute must be by strict adherence to the statute.</block_quote> <bold>3. Public Employees — Suspension and Dismissal — Evidence</bold> <block_quote> Conclusion that police officer's discharge was not due to economic necessity within statute allowing number of officers to be reduced for reasons of economic necessity was supported by evidence that, though it was alleged that protection contract with nearby town had been terminated, resulting in a $1,000 per month payment loss, and that the force was too large and had accrued undue overtime, in fact, the police budget had been overspent in the prior three years and no layoffs had occurred, the village was well within its general and police budgets and the force had not increased when the terminated protection contract had gone into effect. <cross_reference>24 V.S.A. § 1933</cross_reference>.</block_quote> <bold>4. Public Employees — Suspension and Dismissal — Probationary</bold> <bold>Employees</bold> <block_quote> Where probationary police officers were, by statute, excluded from the protections granted tenured police officers under the statute, probationary police officer who was laid off could not be reinstated, even though the layoff was for a reason other than that allowed by the statute and a fellow, tenured, officer had to be reinstated for that reason. <cross_reference>24 V.S.A. § 1933</cross_reference>.</block_quote>

<bold>Ejectment — Jurisdiction and Venue</bold> <block_quote> District court ejectment action was not a proceeding to establish or settle title to land, and venue was not governed by statute providing that actions concerning real estate shall be brought in the county in which the land lies; the action could be brought, under statute, in the territorial unit in which one of the parties resided, and it made no difference where the property was situated. 12 V.S.A. §§ 402, 405, 4851.</block_quote>

<bold>1. Deeds — Mistake in Execution — Rescission</bold> <block_quote> Where land is sold in gross for an entire sum, and a deficiency or excess in the amount of land specified in the contract is later ascertained, and the error arose from mutual, innocent mistake, the contract may be rescinded; and in the absence of actual or constructive fraud the court cannot allow abatement for a deficiency or extra compensation for an excess (overruling Darling v. Osborne, <cross_reference>51 Vt. 148</cross_reference> (1878)).</block_quote> <bold>2. Deeds — Mistake in Execution — Rescission</bold> <block_quote> Where deed was for 60 acres more or less, the boundaries recited therein were accurate, a subsequent survey showed there were only 41.7 acres of land and the difference was a result of mutual mistake, grantee could have recission, but the court could not order a rebate of the purchase price in an amount equal to the value of the difference between that bargained for and that actually conveyed.</block_quote>

<bold>Zoning — Nonconforming Uses</bold> <block_quote> Junkyard was not a non-conforming use, under statute defining such use as one which does not comply with all zoning regulations but which conformed to all applicable laws, ordinances and regulations prior to the enactment of the zoning regulations, where, prior to enactment of the zoning regulations, a license and certificate of approval were required and had not been obtained; and since it had been found in another proceeding that the junkyard was not entitled<page_number>Page 360</page_number> to a variance, certificate of compliance with local ordinance required for issuance of a license under statute could not be complied with. 24 V.S.A. §§ 2251, 4408 (a)(1).</block_quote>

<bold>1. Pleading — Affirmative Defenses</bold> <block_quote> Where, under rule, Statute of Frauds was an affirmative defense and required to be pleaded, plaintiff who failed to plead it in response to counterclaim could not avail himself of the defense in<page_number>Page 377</page_number> either the lower court or supreme court. V.R.C.P. 8(c); <cross_reference>12 V.S.A. § 181</cross_reference>(4).</block_quote> <bold>2. Statute of Frauds — Agreements Not To Be Performed Within One</bold> <bold>Year</bold> <block_quote> Where it was orally promised that loan made in May, 1969, would be repaid either in January of 1970, or upon receipt of borrower's tax refund for the taxable year 1969, either alternative was sufficient to take promise out of the Statute of Frauds, as by its terms the agreement was capable of being performed within one year. <cross_reference>12 V.S.A. § 181</cross_reference>(4).</block_quote> <bold>3. Statute of Frauds — Agreements Not To Be Performed Within One</bold> <bold>Year</bold> <block_quote> Nature of the undertaking governs the applicability of the Statute of Frauds, not the capacity to comply, so that where, by its terms, oral promise could be performed within one year, promisor's argument that due to his strained financial position he was not capable of performing within a year was to no avail. <cross_reference>12 V.S.A. § 181</cross_reference>(4).</block_quote>

<bold>Contracts — Performance — Negligence</bold> <block_quote> Where contractor built house and left the area around it roughgraded, there was no problem with water in the basement that winter and spring, owner then had the grounds fine-graded and a lawn put in, and water problem developed in the basement the following January, it could not be said that contractor was negligent and the cause of the problem, or that there was breach of warranty on contractor's part, for the intervening grading and lawn compromised owner's claim.</block_quote>

<bold>Divorce — Custody and Support of Children — Period of Minority</bold> <block_quote> Where parties to divorce agreed father was to pay support for the children to the age of 21 or until they should sooner become self-supporting, subsequent lowering of the age of majority to 18 did not affect obligation incurred by the father under the agreement, for statute changing age of majority provided that the age was deemed to be 21 for purposes of any provision of an existing will, trust, agreement, deed, contract or similar instrument, and the agreement of the parties was, in effect, a contract. <cross_reference>1 V.S.A. § 173</cross_reference>.</block_quote>

<bold>1. Trial — Findings — Scope</bold> <block_quote> In appeal from lower court's valuation of property for property tax purposes, findings of fact were inadequate, requiring reversal, where they did not expressly and specifically set forth the criteria and factors the court employed in determining the fair market value of the property.</block_quote> <bold>2. Trial — Findings — Scope</bold> <block_quote> Findings of fact which were largely mere recitals of the testimony, since they did not indicate the credence placed upon the testimony by the court or the extent to which the testimony influenced the court's decision, did not measure up to the requisite standard.</block_quote><page_number>Page 499</page_number> <bold>3. Taxation — Appraisal and Assessment — Value</bold> <block_quote> Net book value (original cost less depreciation) is not a controlling factor in placing a fair market value upon real property for property tax purposes.</block_quote> <bold>4. Trial — Findings — Purpose</bold> <block_quote> The purpose of findings is to make a clear statement to the parties, and the supreme court to which appeal is taken, as to what was decided and how, a purpose not met where the findings give no indication of the method by which the court made its determinations and the weight given to the factors disclosed by the evidence. V.R.C.P. 52(a).</block_quote> <bold>5. Taxation — Appraisal and Assessment — Value</bold> <block_quote> In proceeding to determine value of power company property for property tax purposes, testimony of company's expert regarding net book value of property (original cost less depreciation) was admissible as evidence of fair market value, and that expert did not take into consideration the price a willing seller would agree to in an arms-length transaction did not make the testimony inadmissible.</block_quote> <bold>6. Taxation — Appraisal and Assessment — Value</bold> <block_quote> The opinions of well informed persons based upon the purposes for which the property is suited are to be considered in arriving at fair market value of property when placing a value upon it for property tax purposes; and the weight to be given the testimony is for the court.</block_quote> <bold>7. Taxation — Grand List — Presumptions</bold> <block_quote> A presumption of validity and legality attaches to the actions of town listers of property for tax purposes.</block_quote> <bold>8. Taxation — Appraisal and Assessment — Burden of Proof</bold> <block_quote> When a town's appraisal of property for tax purposes is challenged there is a presumption that the appraisal is valid and the property owner has the burden of producing evidence to overcome the presumption, a burden satisfied by credible evidence fairly and reasonably tending to show assessment at more than fair market value or a listed value exceeding the percentage of listed value applied to the general mass of property in the community, at which point the town has the burden of justifying the appraisal. <cross_reference>32 V.S.A. § 4467</cross_reference>.</block_quote> <bold>9. Taxation — Appraisal and Assessment — Burden of Proof</bold> <block_quote> In a proceeding challenging the appraisal of property for tax purposes, the burden of persuasion as to the contested issues remains at all times with the taxpayer. <cross_reference>32 V.S.A. § 4467</cross_reference>.</block_quote> <bold>10. Taxation — Appraisal and Assessment — Value</bold> <block_quote> In challenge to appraisal of power company's property for tax purposes, employee with position of high corporate responsibility,<page_number>Page 500</page_number> who had been with the company for over 25 years and was familiar with the financial aspects of public utilities and with the appraised property, was competent to testify as to fair market value of the property, and any challenge as to his knowledge of utility sales elsewhere or his limited experience in testifying in courts went to the weight of his testimony, not his competence as an expert.</block_quote> <bold>11. Appeal and Error — Competency of Witnesses</bold> <block_quote> Challenges to qualifications of expert witnesses are for discretion of lower court and supreme court will not review a finding of competence to testify as an expert absent a showing that such finding was clearly erroneous or founded upon an error of law.</block_quote> <bold>12. Taxation — Appraisal and Assessment — Comparable Properties</bold> <block_quote> Where unique property is the subject of litigation, under statute providing that if upon appeal from appraisal of property for tax purposes it is found that the listed value of the property does not correspond to the listed value of comparable properties within the town the property shall be set in the list at a corresponding value, all property within the town is comparable for the purpose of determining the proper corresponding listed value. <cross_reference>32 V.S.A. § 4467</cross_reference>.</block_quote> <bold>13. Taxation — Appraisal and Assessment — Comparable Properties</bold> <block_quote> Where property the appraisal of which is appealed is unique, and the court is required to find whether its listed value corresponds to the listed value of comparable properties and to set it in the list at a corresponding value if it does not, all property within the town shall be considered comparable and the court may consider a salesratio study analyzing the average of ratio between sales price and listed value of land sold in arms-length transactions within the town. <cross_reference>32 V.S.A. § 4467</cross_reference>.</block_quote>