Volume 136 — Vermont Reports

<bold>1. Taxation — Appraisal and Assessment — Burden of Proof</bold> In de novo appeal to superior court questioning validity of town's method of appraising property value, presumption of validity and legality attaches to actions of listers, and once town introduces appraisal of taxpayer's property into evidence, burden of going forward with evidence to overcome presumption resides with moving party. <cross_reference>32 V.S.A. § 4467</cross_reference>. <bold>2. Taxation — Appraisal and Assessment — Burden of Proof</bold> In de novo appeal to superior court questioning validity of town's method of appraising property value, once taxpayer introduces credible evidence fairly and reasonably tending to show that property was assessed at more than fair market value or that listed value exceeded percentage of listed value actually applied to general mass of property in community, to prevail town has burden of producing evidence to justify appraisal and may meet its burden by introducing evidence demonstrating substantial compliance with constitutional and statutory requirements relative to fair market value and uniformity, or by introducing independent evidence of fair market value of subject property and listed value of comparable properties within town sufficient to justify appraisal. <cross_reference>32 V.S.A. § 4467</cross_reference>. <bold>3. Taxation — Appraisal and Assessment — Burden of Proof</bold> In de novo appeal to superior court questioning validity of town's method of appraising property value, burden of persuasion as to all contested issues remains on taxpayer. <cross_reference>32 V.S.A. § 4467</cross_reference>. <bold>4. Taxation — Appraisal and Assessment — Burden of Proof</bold> Through taxpayer's own testimony and that of real estate appraiser using willing buyer, willing seller definition of fair market value, taxpayer clearly satisfied his burden of producing credible evidence fairly and reasonably tending to show that property was assessed at more than fair market value. <cross_reference>32 V.S.A. § 4467</cross_reference>. <bold>5. Towns — Powers — Authorized by Legislature</bold> In Vermont, where there is no home rule constitutional provision, a town has only those powers specifically authorized by legislature. <bold>6. Towns — Powers — Taxation</bold> Legislature, having power to tax, can confer that power upon towns in such measure as it pleases; clearly State has ultimate control over methods used for local taxation. <cross_reference>32 V.S.A. § 3431</cross_reference>.<page_number>Page 84</page_number> <bold>7. Taxation — Appraisal and Assessment — Formulas</bold> Where town made use of method of appraisal provided by legislature in which commissioner of taxes could enter contract with any town to reappraise properties of such town, town's method of appraisal was constitutional. <cross_reference>32 V.S.A. § 3408</cross_reference>. <bold>8. Taxation — Appraisal and Assessment — Formulas</bold> An inflexible formula that fails to take into account various factors provided by statute cannot be employed as sole basis for an appraisal of property value for purposes of taxation. 32 V.S.A. §§ 3431, 3481. <bold>9. Taxation — Appraisal and Assessment — Formulas</bold> Sliding scale formula, which places on land a decreasing value per acre as number of acres increases, cannot be used as sole basis of appraisal of property value for tax purposes. <bold>10. Taxation — Appraisal and Assessment — Formulas</bold> Formula of appraisal used by town did take into account individual characteristics of land in the grade adjustment, but since no evidence was offered at trial as to how exactly a size adjustment was applied, town did not meet its burden of producing evidence of substantial compliance with relevant constitutional and statutory provisions, and trial court's finding of fair market value apparently based on such formula must be reversed. 32 V.S.A. §§ 3431, 3481. <bold>11. Taxation — Appraisal and Assessment — Formulas</bold> Although town failed to validate appraisal formula, taxpayer's property would not be set in grand list at its value in preceding year, where independent evidence, in addition to evidence based upon the formula, introduced by town consisting of testimony as to fair market value and listed value of comparable property, was sufficient to meet town's burden of producing evidence to justify appraisal as to fair market value and uniformity. 32 V.S.A. §§ 3431, 3481.

<bold>1. Indictment and Information — Specificity — Places</bold> Where information appeared to allege that offense of driving while intoxicated occurred in Connecticut, at close of state's case defendant moved for dismissal, court allowed amendment of information to make it clear alleged offense occurred in Vermont, no prejudice to substantial rights of defendant was claimed or appeared and record showed defendant in fact knew where the alleged offense took place, there was no error. V.R.Cr.P. 7(d).<page_number>Page 148</page_number> <bold>2. Constitutional Law — Self-Incrimination — Refusal To Take</bold> <bold>Alcohol Content Test</bold> Since the right of an operator of a motor vehicle to refuse to submit to a test of alcohol content of breath or blood is a creature of statute and granted by legislative grace and is not a constitutional right, the legislature may properly condition the exercise of the right by providing that any refusal may be introduced as evidence in a criminal proceeding, and admission of refusal evidence does not violate privilege against self-incrimination. 23 V.S.A. §§ 1201(a)(2), 1205(a). <bold>3. Evidence — Refusal To Take Alcohol Content Test</bold> Where statute expressly provided that if a motorist exercised the right given to him by the statute to refuse to take a chemical test for alcohol content of breath or blood the refusal could be admitted in evidence in a criminal proceeding, Vermont case noting in dictum that refusal to take a test could not be used in evidence in a criminal proceeding, and case upon which it relied, which were decided at a time when the statute did not expressly state that a refusal would be admissible, are no longer viable. 23 V.S.A. §§ 1201(a)(2), 1205(a).

<bold>Unemployment Compensation — Employment Termination — By Employee</bold> <bold>Without Good Cause</bold> Where employee was charged with driving while intoxicated after being hired as a driver but before beginning work, and was convicted and lost his license almost two years later, and employer forced him to sign resignation by threatening to withhold his vacation pay until he signed, employee did not leave his employer voluntarily without good cause attributable to his employer by voluntarily entering into conduct which resulted in losing his license and could not be denied unemployment compensation on that ground. <cross_reference>21 V.S.A. § 1344</cross_reference>(a)(2)(A).

<bold>1. Courts — Assistant Judges — Participation</bold> Participation by assistant superior court judges would be treated as surplusage where action sought injunctive relief, assistant judges participated in the proceedings and signed the order, although the relief sought was equitable in nature, and there was no showing that the order was not fully concurred in by the presiding judge. V.R.C.P. 83. <bold>2. Pleading — Limiting or Enlarging Issues</bold> Where parties stipulated to enlargement of relief sought by the pleadings, giving action for injunction characteristics of a declaratory judgment action, trial court undertook to comply, and there was no objection or claim of error based on the enlargement, the parties were bound by the court's exercise of jurisdiction. V.R.C.P. 57. <bold>3. Waters — Right To Take Water — Nature of Interest</bold> Where deed provided that defendants "furnish" plaintiff, "for whatever uses and purposes" plaintiff should choose, "water from their water system of sufficient volume to be carried by a 1/2" pipe," defendants had privilege of delivering the water at any point in the water system, including at the well, and defendants did not have the obligation to pump water into plaintiff's system under pressure,<page_number>Page 535</page_number> and the water must be made available to plaintiff from defendants' system, but no particular manner of compliance was compelled.

<bold>1. Bail and Recognizance — Conditions — Protection of Public</bold> A condition of bail designed solely for the protection of the public may be imposed. <cross_reference>13 V.S.A. § 7554</cross_reference>. <bold>2. Bail and Recognizance — Conditions — Protection of Public</bold> Imposition of condition of bail to effect that defendant shall not be the subject of a new charge of a felony or a crime against a person or a like offense to the offense charged for which, after<page_number>Page 562</page_number> hearing, probable cause is found, was not error, as there was no denial of bail. <cross_reference>13 V.S.A. § 7554</cross_reference>. <bold>3. Bail and Recognizance — Forfeiture — Grounds</bold> Revocation of bail for breach of condition that defendant shall not be subject of a new charge of like nature for which, after hearing, probable cause should be found, was not error. <cross_reference>13 V.S.A. § 7554</cross_reference>. <bold>4. Bail and Recognizance — Conditions — Protection of Public</bold> Conclusion of law contained in order revoking bail for breach of condition of bail to effect that defendant not be charged with a like offense while on bail, which stated that "based on the preceding findings, the Court concludes it can release a person on nonmonetary conditions of release where the judicial officer determines that the release of the defendant will constitute a danger to the public," referred not to the propriety of revoking bail, but rather, to the propriety of imposing the condition in the first place. <cross_reference>13 V.S.A. § 7554</cross_reference>. <bold>5. Bail and Recognizance — Determining Factors — Likelihood of</bold> <bold>Appearance</bold> Breach of a condition of bail imposed for reasons other than likelihood of appearing for trial might bear convincingly on issue of likelihood of appearing for trial, and one in violation of the condition may have his bail revoked and be incarcerated. <cross_reference>13 V.S.A. § 7554</cross_reference>. <bold>6. Bail and Recognizance — Forfeiture — Grounds</bold> There was no error in revocation of bail upon finding that condition of release that defendant not be charged with a like offense had been violated, where defendant had four felony and two misdemeanor charges carrying total sentence of over 35 years pending against him, had been convicted of six crimes, including two escapes from custody and aggravated assault, and had failed to appear for motor vehicle violation proceedings five times. <cross_reference>13 V.S.A. § 7554</cross_reference>. <bold>7. Bail and Recognizance — Forfeiture — Notice and Hearing</bold> Condition of bail providing that defendant shall not be charged while on bail with an offense of like nature cannot be the cause of revocation of bail on an ex parte determination of probable cause on a subsequent like offense without giving defendant notice and an opportunity to contest the finding of probable cause. <cross_reference>13 V.S.A. § 7554</cross_reference>. <bold>8. Bail and Recognizance — Change — Discretion of Court</bold> In the discretion of the judicial officer, breach of a condition of bail does not inevitably require revocation of bail and may instead lead to imposition of more restrictive conditions. <cross_reference>13 V.S.A. § 7554</cross_reference>.<page_number>Page 563</page_number> <bold>9. Bail and Recognizance — Determination of Amount — Accused's</bold> <bold>Prior Record</bold> Where defendant was charged in two informations with receipt of stolen property, following prior release without monetary bail on prior charge of receiving and aiding in the concealment of stolen property, and following revocation of nonmonetary bail for violation of condition of bail providing that he not subsequently be charged with a like offense, $15,000 surety or cash bail on the two charges of receiving stolen property was not excessive. <cross_reference>13 V.S.A. § 7554</cross_reference>.

<bold>1. Limitation of Actions — Tolling of Statute — Service of</bold> <bold>Process</bold> If filing of complaint is to toll statute of limitations as of filing date, timely service must be accomplished. 12 V.S.A. §§ 466, 512; V.R.C.P. 3. <bold>2. Limitation of Actions — Tolling of Statute — New Complaint</bold> Where action was dismissed because service was not made within required time after filing of complaint, statutory limitation period for the action passed, and a new complaint was filed, new complaint was not saved by statute providing that a new action may be commenced within one year after determination of the original action when the original action was commenced within limitation period and was dismissed for insufficiency of process caused by unavoidable accident or by default or neglect of the officer to whom the process was given, for plaintiff had burden to see that service was made and failed to do so. <cross_reference>12 V.S.A. § 558</cross_reference>; V.R.C.P. 4.