What is the legal test for determining fair market value under the Vermont Eminent Domain Code?

Since fair market value is found by weighing of all of the evidence, however, Petition of Mallary, 127 Vt. 412, 418-19, 250 A.2d 837, 841 (1969), no party has the burden of proof on the issue of the amount of compensation. As the Commissioners on Uniform State Laws state in their Comment to Unif. Eminent Domain Code Sec. 904, 13 U.L.A. 93-94 (1980), "[i]t seems difficult to assign an intelligible meaning to the concept of 'burden of proof' in the eminent domain context, since the pleadings are not required to allege or deny the amount of compensation claimed, and the ultimate standard of decision is the constitutional rule of 'just compensation.' " Necessarily, as they go on to say, "the ultimate determination necessarily reflects the weight and degree of credibility accorded to [conflicting] estimates." See also Martin v. City of Columbus, 101 Ohio St. 1, 127 N.E. 411 (1920). But in this case, counsel at a pretrial conference agreed that Green Mountain had the burden of proof and therefore was entitled to open and close the evidence. Moreover, the charge did instruct the jury to weigh the opinions of the various witnesses and all of the evidence in the case. As the court said, "it is your job to weigh the different methods of evaluation in arriving at the fair market value of this property" and "[y]our duty is to weigh all the evidence and arrive at a fair and just compensation." This part of the instruction was in accordance with the law of Vermont. The judgment will not be reversed on this ground.

Judgment affirmed.

1 Sec. 814. Exercise by licensee of power of eminent domain