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THE
VERMONT
LEASE LANDS
WALTER T. BOGART
Gc 974.3 B63v 1408283
GENEALOGY COLLECTION
M. L
GEN
ALLEN COUNTY PUBLIC LIBRARY 3 1833 00083 5857
THE VERMONT LEASE LANDS
By
WALTER THOMPSON BOGART, PH.D. Professor of Political Science at Middlebury College
VERMONT HISTORICAL SOCIETY MONTPELIER VERMONT
1950
Acknowledgment of permission to use copyrighted works: Harvard University Press-Jones, Matt Bushnell, Vermont in the Making, 1750- 1777 ; Columbia University, Faculty of Political Science, and Professor Florence M. Woodard-Woodard, Florence M., The Town Proprietors in Vermont: The New England Proprietorship in Decline; The Vermont Historical Society-Andrews, Edward D., The County Grammar Schools and Academies of Vermont; The New England Quarterly-Clarke, L. D., Vermont Lands of the Society for the Propagation of the Gospel; G. & C. Merriam Company-Webster's New International Dictionary, 2d Ed .; Capital City Press-Stone, Mason S., History of Education, State of Vermont; Secretary of State, State of Vermont-Outline Map of Vermont.
Copyright 1950 by
WALTER THOMPSON BOGART
1408283
TABLE OF CONTENTS
PAGE
Chapter
I. INTRODUCTION
Description of the subject: Source of lease land reservations ; Classification of lease lands-Wentworth reservations-Vermont reservations; Effects of obscurity of the subject on the beginning of the study; Second phase of the study-Difficulties respecting town data ; Third definition of the study; Usefulness of the study. Terminological problems : Basis for present title; "Glebe." Town charter problems: Number of Wentworth charters; Number of Vermont charters - "Gores" - Unorganized places; Totals of towns. Extent of the lease lands. Lease lands as a subsidy. Lease lands as an administrative problem. .
II. HISTORICAL BACKGROUND
Reasons for presenting history of situation. Nature of the juris- dictional controversy : Official statements respecting the contro- versy; Private statements respecting the controversy; Central point of the controversy (Order in Council of 1740) ; Conditions contributing to the controversy-Isolation of the area-Massachu- setts' part. Issue essentially between New Hampshire and New York: British failure at colonial administration; Genesis of con- troversy in Order in Council of 1764; Early conditions along New York's eastern boundary; Significance of New York boundary with Connecticut and Massachusetts. Various relevant land grant operations : Operations not affecting lease lands directly-Con- necticut-French Seigneuries; Four major operations affecting lease lands; Effect of land speculation; Equivalent Lands; Mas- sachusetts grants; New York-Walloomsack Patent; Operations of John Henry Lydius. Wentworth-New York conflict: Two phases of the colonial period; Period before the French War; After the French War - Influence of the War - Wentworth's granting operations-Later New Hampshire activity ; New York's role-Legalistic position-Weak administration of the area-Influ- ence of Colden-Land grants-Confirmatory grants-Suspen- sion order-New York errors, Ejectment suits; Influence of New York grants-Effects of policy of New York governors-Lack of government in the area; Effects of disorganized conditions. Period of independence: Turbulent conditions; Land granting ; Speculative interest; Conditions of government-Lack of compe- tent personnel-Physical manifestations, Itinerant government, Record keeping. Statehood and period since 1791: End of external influences on lease lands; Stability of conditions; Demographic in- fluences-Economic changes-Population changes; Other influ-
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7.50 6-27-67
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VERMONT LEASE LANDS
PAGE
Chapter
ences on lease lands-Individual family moves-Forest industries ; Activities of state government regarding lease lands; Political or- ganization of the state-State-local relations-The county-Cities -Villages-Towns-The state; The federal government's inter- est. . 21
III. GENERAL CIRCUMSTANCES AFFECTING THE LEASE LANDS
Limitations on the scope of the study. Influences contributing to confusion regarding lease lands : Such influences with respect to Wentworth towns-The controversy-Isolation-Types of settlers -Absentee ownership-Lack of agents for the lease lands-Land® speculation-Proprietorial system-Lack of community interest- Surveying conditions and difficulties, Social and economic difficul- ties, Technical difficulties; Such influences with respect to Ver- mont towns-Hurried granting-The controversy-Fear of in- vasion-Inaccessibility-Absentee ownership-Proprietors' doings -Speculation-Lack of agents for lease lands-Surveying situa- tion. Conclusions respecting above influences. Later influences ad- verse to good administration : Attitude of indifference by trustees (grantees) ; Attitude of indifference by state authorities ; Amateur administrators-Town lease lands-Other lease lands, The Ver- mont Diocese of the Episcopal Church, Grammar schools-Tenure of officers-Lack of audits or other controls-Custodial habits re- garding records-The University; Effects of the law on convey- ancing ; Terminological practices; Temperament of Vermonters. 59
IV. THE LEASE LANDS AND THE COURT: DURABLE LEASES AND ALIENATION
Introduction : Influence of the law on the lease land system; Or- ganization of the analysis; Prevalent judicial philosophy-Com- parison with non-lease-land situations; Extent of legal research -Effect of fragmentary early records and judicial reporting- Lack of good indexing. Doctrine of durable leases. Alienation : Conveyancing-Contrasting New Hampshire doctrine; Influence of common law; Attitude of court respecting construction of in- struments-Deeds-Wills-Statutes-Charters; Attitude respect- ing New Hampshire-New York controversy ; Adverse possession ; Prescription (presumption)-Presumptions of acquiescence; Ac- quiescence ; Proprietors' doings; Public policy ; Eminent domain ; Police power.
V. THE LEASE LANDS AND THE COURT : OTHER JUDICIAL DOC- TRINES
Ejectment actions. Obligation of contract: Attitude of court re- specting legislative activity; Attitude of court respecting town line changes; Attitude of court respecting activity of local offi- cials-Selectmen, Distribution of religious avails, Making of leases
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TABLE OF CONTENTS
PAGE
Chapter
-Listers, No lease land cases in Reports, Discretionary power, Influence of listing law. Trusts. Public use. Tax exemption. Cases before United States Supreme Court: Town of Pawlet v. Daniel Clark, et al .; Society for the Propagation of the Gospel v. New Haven and Wheeler; Society for the Propagation of the Gospel v. Town of Pawlet and Ozias Clarke. . 179
VI. THE LEASE LANDS AND THE LEGISLATURE
Introduction : Description of Appendix B; Arrangement of mate- rial. Leases. Conveyancing. New York-New Hampshire contro- versy. Statutes of limitation. Betterments acts. Easements. Pro- prietors' Doings: Town organization. Eminent Domain. Eject- ment. Town line problems. County lines. Gores (Unorganized areas). Local officers: School laws. State tax acts: Early state revenue system; County tax acts; Listers' laws. Tax exemption : Special legislation; Legislative inconsistencies ; Local government reporting. The University : Other institutions; Basic acts; Reor- ganization. The Society for the Propagation of the Gospel in For- eign Parts (S.P.G.). County grammar schools: Nature of the
compilation ; Character of legislation - Illustrations, Orleans County-Variations; Diversion of lands to public schools. Town schools: Nature of the compilation; Character of legislation ; Early period; School organization; Unorganized areas; Lease land legislation distinguished; Recent legislation. The "Gospel" right: Eighteenth century legislation; First administrative act- Changes; Unorganized areas; Church incorporation. The glebe. First settled minister's right. General comments. . 225
VII. ADMINISTRATION OF THE LEASE LANDS
Introduction : Scope of available data; Procedure for the analysis ; Lands in relation to centralized administration. The University lands : Facilities for land administration; Land records; Investi- gation of Mr. H. M. MacFarland; Income; MacFarland report of land status and leases; Litigation. S.P.G. lands: Quantity ; In- come and accounting ; Character of administration; Early condi- tions and history; System of administration-Early failure of ad- ministration-Later failure; Legal status; Litigation. Grammar school lands : Failure of original purpose of grants ; Original plan for location of schools and distribution of avails; First disposition of lands; The change in the plan; Development of secondary school movement ; Legislative failure to supervise the trusts ; Land administration by the schools; Diversion of grammar school rights ; Financial aspect; Early influence of the right on establish- ment of schools; Criticisms of the system; Reports to the legisla- ture on acreage and income; Report of the Educational Commis- sion; Litigation. Town lands : Condition of records data; Town reports-Lease land data; Evaluation of administration-Earlier conditions-Influence of system of school administration; Litiga-
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VERMONT LEASE LANDS
PAGE
Chapter
tion ; Conclusions. First settled minister lands : Distinctive features of this right; Disposition of the lots; Evaluation of the right; Legal problems and litigation. General evaluation of administra- tion : Role of grantees, judiciary, legislature; Role of the state administration. 265
VIII. CONCLUSIONS
General criticisms of the lease land system. The lands as a sub- sidy : Justification for the original grants; Evaluation of the sys- tem erected on the grants; Principal beneficiaries of the system ; Relation of lease rents to taxes; Problem of forest land; Extreme disparities between property value and lease rents; Inequities of tax revenue. Factors inhibiting good administration. The lease lands as a continuing public problem : Effect of the act of 1937; Latest legislative activity-Bill of 1945-Attorney-General's opin- ion. Proposed solutions of the lease land problem: Possibility of taxing lease lands-Herrick v. Randolph-Morgan v. Cree-State v. Clement National Bank-Piper v. Meredith-Wells v. Savan- nah-Listing law; Change respecting statute of limitation; Other proposed changes not recommended-State administration of lease lands-State supervision. . 315
BIBLIOGRAPHY 329
APPENDICES
A. Town Charters in Which the Reservations Do Not Conform to the Normal Pattern 361
B. Legislation Relevant to the Lease Lands . 363
C. Critique of Dissenting Opinion in University of Vermont v. Ward, 104 Vt. 239 (1932) 397
D. Exhibit of Circumstances in Bethel Illustrative of Conditions Confronting Administrators of Lease Lands . 401
E. "Joint Resolution Relating to the Changing the Name of the Township of Fullum to the Town of Dummerston and Legalizing Certain Acts and Proceedings of Said Town of Dummerston" 403
F. "A Letter to the Thetford People" 405
G. Report to the Legislature of 1878 on Acreage and Rentals of Lease Lands . 407
H. Report to the Legislature of 1882 on Acreage and Rentals of Lease Lands . 423
I. Map Depicting Areas Embraced in Wentworth Grants and Those Covered by Vermont Grants . 439
INDEX 441
PREFACE
A word of explanation is offered here as to why such a topic should have been made the subject of an extensive research. The study was undertaken because so little has been known, at least in an integrated way, of the lease land system in Vermont-so little, in fact, that the place of the system in the state has not been appreciated, even in Ver- mont.
My first encounter with the subject occurred shortly after my arrival in Vermont in 1937. In the course of a conversation, concerning govern- mental practices in the state, with Mr. Arthur J. Barry, then municipal manager at Middlebury, he mentioned the "glebe lands." This pricked my curiosity, the term being new to me. On questioning him further about them, he told me that he had had occasion, as assistant city engi- neer of Burlington, Vermont, to investigate them in that jurisdiction in an attempt to straighten out certain taxation problems. This was the ex- tent of his knowledge, although he went on to say that he was running up against such lands in Middlebury. He then referred me to several other people.
Since then, from time to time, I met the "glebes" in other places, both in conversations and in writings, but never in any conclusive way. I also made occasional positive efforts, as time allowed, to discover more about them. But, in every instance, what I found to be true is that the "information" is fragmentary and often incorrect. Here and there one talks with an individual who knows a great deal-about some one limited aspect of the lands. One finds references, documentary or secondary, which give a fairly good picture of a single facet of the system. An ex- ample of such limitations in documentary materials is the reports of cases in the Vermont and the United States supreme courts. These reports have been found to be ample within the area of the issue in dispute in each case. But there they stop, of course. In the secondary materials, one discovers frequent references to the lands, but only incidental to some other study at hand. Even the terminology of the subject is ob- scure, as is to be explained later.
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VERMONT LEASE LANDS
The final impetus to make the study occurred in the annual Middle- bury town meeting of 1940. At that meeting a prominent citizen of the community, much interested in civic affairs, reported a voluntary study which she had conducted on the matter of lands in the town which were sequestered from taxation. Her figures included classes of lands addi- tional to those investigated herein, and she was much concerned over the possible effect of tax exemptions on the public revenues of the town and on the tax burden of non-exempt lands. This, together with my pre- vious contacts with the subject, made me feel that there was a real justification for an investigation which might result in presenting an integrated picture of the so-called lease land system in Vermont.
Since the study was embarked on, this view has been confirmed in several directions. There was, among state officials and others in a posi- tion to be aware of the system, a high degree of enthusiasm that the study was being made and a unanimity of feeling that it would be ad- vantageous to the state. The system embraces a much wider group of lands and institutions than would be realized from a cursory knowl- edge. I have found various points at which this study ties in with other problems of government in Vermont and can be useful in their analysis. I have found that the course of development of the system is rather typical of the process of political development, generally, in the state. And I have come to feel that this subject provides an excellent oppor- tunity for demonstrating that political problems or situations can exist on the sufferance of lack of adequate information respecting them.
It may well be true that the lands in Vermont under consideration in the present study can be regarded as a minor problem relative to many that we face. But there are many such "minor" problems, which, added together, contribute heavily to our political difficulties. And the very fact of their relatively small proportions, individually, leads us away from them. An analogous situation is to be found in medical research in which large sums are provided and used with great enthusiasm and energy in the study of the major ailments of humanity. And much good has come therefrom. But the doctors have done little, and apparently can be little excited, about those many small disabilities which afflict us and which are quite capable of making the extended life span which they have given us far from happy.
The study is considered as an introduction because it has been found, as a result of the research, that no more could be hoped for without ex- tensive resources of time, money and specialized expert services. There
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PREFACE
is a definite place for an introduction to the lease lands as a political in- stitution ; it can serve the very useful role of providing an orientation and point of departure, now completely lacking, for more detailed re- search by those immediately concerned with the lands.
The immediate purpose of the research was to accomplish a doctoral dissertation and the study has been thus submitted at Stanford Uni- versity. However, the conditions unveiled during the research, which have been remarked on above and about which more will be said later, soon convinced me that both the direction of the research and the scheme of writing should be devised not only to produce a satisfactory academic dissertation. They should also provide a study which could be of use in Vermont toward a better understanding of the lease land system and toward possible improvements in its contribution to public affairs in the state. Some revision has been made herein to accommodate the some- what different technical writing requirements of an academic presenta- tion and a book for general circulation, but the substance remains un- touched.
I wish to express my appreciation of the interest in, and support of, this publication by the Legislature and the Curators of the Vermont Historical Society. My wish that the study may be useful to Vermont could not be realized without their joint determination to subsidize the publishing of this edition. I cannot hope to name all those people who aided me in the study with their interest in it, their time and their in- formation, and to whom I am deeply appreciative. The list of interviews in the bibliography will show how many contributed in one way or an- other. I can, however, say that no researcher probably ever was re- ceived and assisted in a more friendly, courteous and helpful manner than I enjoyed throughout the period of the work of accumulating the information from which this study was written.
Weybridge, Vt.
WALTER T. BOGART
Chapter I INTRODUCTION
This study is concerned with certain land grants in the State of Vermont, popularly known as the "lease lands." They are grants de- voted, as the local phrase goes, to "public, pious and charitable use," and they are widely distributed throughout the state. In fact, there are but few of the approximately 250 towns in the state which do not contain some of the lands, and these few towns in each instance present some special historical peculiarity. So it may be said that the lease lands form a normal part of the pattern of political institutions of the state.
They have a place in studies in political science for several reasons : they originated at the desire, and by the grant, of the governing author- ity ; they are spoken of and regarded as public rights, or public lands ; their purpose was to aid in the development of religious observances and of education and thereby to provide an incentive toward the settle- ment of the area ; certain of the lands are administered by public authori- ties, and all of them have been the intermittent subject of legislation ; they are tax-exempt lands; and in the last respect they are frequent cause for concern in the local jurisdictions of government as to the effect on the tax rate of non-exempt land.
The origin of the lease lands is found in the charters of the towns, explicity provided in each instance of a town grant, with the few excep- tions previously noted. There are altogether nine classes or groups of lease lands. For a first consideration of them they are readily classified by grants made prior to the Revolutionary War and those made by the state government after the establishment of Vermont as a separate jurisdiction.
The towns antedating the Revolution comprise the so-called New Hampshire, or Hampshire, Grants, which appear in historical studies of New England and in numerous historical novels. They were granted, and the charters issued, by Governor Benning Wentworth of the Prov- ince of New Hampshire, and in Vermont they are customarily referred to as "Wentworth towns." In all of his charters, which embraced the
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VERMONT LEASE LANDS
usual six square miles of land, there were provisions for certain public shares of land to be set aside. In a few such towns less than the cus- tomary shares were provided, but in the great mass of his charters there is what may be considered a standard pattern. This pattern provided for four public shares of lands, namely : one for a glebe for the Church of England; one for the Society for the Propagation of the Gospel in Foreign Parts1; one for the first settled minister of the Gospel; and one for the benefit of a school in the town.2
Following the Revolution, the people in the Grants established them- selves as a separate political entity which ultimately became Vermont, the fourteenth state of the Union. The government of Vermont pro- ceeded with little delay to issue charters for town grants for that por- tion of the state not included in the Wentworth towns. These charters continued the practice of specifying shares of land for public rights, the only changes in procedure being the number of public rights per town and the beneficiaries designated for them. In the "Vermont towns," as they are commonly called, there was a specification of five, instead of the earlier four, public shares in the standard pattern of these charters. Here again, a small minority of town charters shows variations from the standard pattern, failing to include some one or more of the usual five. Some unusually small grants, ordinarily granted as "gores" rather than towns, leave out the public shares entirely. There was, however, a stand- ard pattern of five such shares in the great majority of the Vermont
1. Hereafter referred to as the S. P. G. This abbreviation has for many decades been customary in Vermont. So much so, that various people who have occasion to speak of the S. P. G. lots do not know the full title of which these letters are a symbol.
2. The Wentworth charters also provided for a piece of land for the governor himself. With few exceptions, this was specified as amounting to 500 acres (al- though in about a half-dozen instances he called for 800 acres, and in two towns he was content with 400 acres). In almost all cases, he also specified the location of his acreage, generally in the corner of the town, so arranged that it abutted on his reserved acreage in adjoining towns. The charters specify that this personal reservation shall be accounted as two shares (in the 800 acre towns, three shares). This present study does not include the "BW" shares, as they were called. The only point in common between them and the lease lands was that they were all specified in the charters. The BW shares were not public rights but were dis- tinctly private rights for the personal benefit of the worthy governor. They have disappeared into the mass of the privately owned land of the state, having suffered a variety of fates. The only comment of consequence to be made of them is that there is no indication that Benning Wentworth ever profited from them to any im- portant extent. Thus they may be dismissed.
3
INTRODUCTION
towns. These were : one right for the use of a seminary or college3 ; one for the use of county grammar schools in the state; one for the first settled minister (or ministers) ; one for the social worship of God; and one for the support of an English school (or schools) in the town.
These, then, are the "lease lands" of Vermont-the four groups provided for by Benning Wentworth, and the five groups authorized by the State of Vermont.
These lands are mentioned briefly, in one connection or another, in numerous writings about Vermont. Such is almost inevitable since the lands are an integral part of the history of the region. It has been dis- covered, however, that such statements are not infrequently incorrect in one or another respect. The only writing which constitutes in any way a systematic consideration of the lands is an article by L. D. Clarke. The title of this is "Vermont Lands of the Society for the Propagation of the Gospel,"4 and its writing was apparently occasioned by the trans- fer of title of this group of lands in 1927 to the Episcopal Diocese in Vermont. For the most part it is correct. But it is brief and is no more than a summary. Furthermore, it covers but one of the groups of lands. Miss F. M. Woodard necessarily discusses the lands, but only inci- dentally, because her focus of interest was the proprietors and land speculation ; similarly with E. D. Andrews' study of secondary schools.5 There has not been any general systematic study made of the lands as a political institution of the state.
Indeed, the obscurity is so complete that its effects were apparent in the first stages of this study. Although numerous contacts had been made with the lands, as has been explained in the Preface, the writer was so ill-informed by those with whom he had talked that his first tentative outline of the study used the word "glebe" as applying to all the lands under discussion. It was not until some little progress had been made that this inadequacy was appreciated. The first phases of the re- search may, in fact, be thought of as groping blindly for bits and pieces.
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