(dissenting in part). I cannot agree that there should be a remand on the issue of public safety. On the contrary it is my judgment that the record demonstrates that the limited-access facility in question affords protection to existing businesses, as well as to provide for public safety. *25For these reasons I would reverse the judgment and remand the case for a new judgment order in favor of the appellant.
Paragraph 1 of the Findings of Fact states, “That this proceeding is brought pursuant to Title 19, Section 1861a of V.S.A., and all parties agree that the only issues involved in this petition is (sic) whether a request for limited access facility in the project here involved is justified either by protecting existing businesses or by traffic conditions present or future.” The case was tried on this theory. In Merrill v. Reed, 123 Vt. 248, 185 A.2d 737, at page 252, we held that “where it appears from the record that the trial below proceeded upon a certain theory, acquiesced in by court.and counsel, the theory thus adopted, whether right or wrong, becomes the law of the case. Leno v. Meunier, 125 Vt. 30, 32, 33, 209 A.2d 485.
Appellee’s evidence on the issue of traffic conditions is limited to a six month’s period. It merely concerns the absence of accidents at points of private access, and, that at the time of trial, the maximum traffic load of the highway had not been fully utilized. The findings and judgment order completely disregards the overpowering evidence introduced by the State, and undisputed, concerning projected traffic conditions, obsolescence of the highway if it remains a non-limited-access highway, and its safety aspects if converted into a limited-access facility.
I fully appreciate that it is not the province of this Court to make findings. A lower court’s findings must stand if there is any evidence fairly and reasonably tending to support them. Leno v. Meunier, 125 Vt. 30, 34, 209 A.2d 485; Murray v. Webster, 123 Vt. 194, 196, 186 A.2d 89. I believe that “any” means more than a scintilla of evidence. Appellees’ evidence generates no probative value of any consequence, as against the compelling and uncontroverted expert testimony produced by the State as revealed in the opinion. The state’s evidence is so strongly in its favor as to leave no reasonable basis for a judgment, other than in its favor.
The opinion suggests a remand on the issue of public safety. I suggest that traffic conditions and public safety are closely entwined. Regardless of whether an attempt is made to differentiate between the two — you end up with the same horse — that is safe traffic conditions. This issue was fully *26explored during the hearing below, and so considered as the heart of the case by the. parties and the court.
Moreover, there appear to be compelling reasons why this litigation should be brought to an end by an appropriate order on the part of this Court. The present plan of the highway board calls for a limited-access highway on Route 7 southerly of Rutland, Vermont. It is my view that a retrial, and a rehash of what is likely to be, at least in substance, the same evidence now present in the case, is not justified, and will not be conducive to the public interest. The parties have had their day in court.
It is my judgment that there is ample evidence in the case to justify a reversal and a new Judgment Order in favor of the State Highway Board.