USA > Vermont > The Vermont lease lands > Part 12
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esting points. Some time ago, the revenues from some of the lands were split up to go to towns in the county in which high schools are main- tained. The treasurer of this board of trustees made the following state- ment: "No formal transfer of the lease is made when the land is trans- ferred, but the lease thereafter is administered by the trustees of the high school. The lease transfer is apparently handled entirely by the legislative act setting up the high school." This man is an attorney, but was willing to relinquish lands without being fully acquainted with the basis for such action. He also went on to say that it seemed to him "a shaky matter, giving the town of grammar school lands because that town does not have any secondary education." And yet the lands were so transferred.
An agent for one of the beneficiaries discovered not long ago that his grantee was among those given shares in a town which had not been exploited by that grantee. He found that there had been three divisions of land so that he could expect to locate three parcels of land. However, on further investigation the town proved to be a "small- sized" town, one of those compressed by the vagaries of early survey- ing of adjoining towns. And so he decided not to proceed toward secur- ing the lots "because there was already so little land in the town."
Chapter IV THE LEASE LANDS AND THE COURT: DURABLE LEASES AND ALIENATION
Adequate understanding of the Vermont lease lands can only be developed by an appreciation of the law relating to them, as it has been developed by the court and the legislature. Without this information, various questions remain unanswered, notably the question as to why such an institution should have survived. It will be seen, in the pages following, that the State of Vermont has pursued a legal course de- signed to protect and maintain the lease land system, even to the ex- tent of diverging from customary Anglo-American legal concepts. In this process one finds a high degree of consistency on the part of both branches of the government. A very few instances will be observed in which either the legislature or the court have veered from the course. It will be seen that such occasions are unusual and each is explicable in terms of some specific circumstance. Indeed, the law may be considered as the one influence in which there has been a relatively consistent and positive viewpoint and program concerning the lease lands. The analy- sis contained in this phase will, in this respect, stand in marked con- trast to those phases preceding and following it.
The ramifications of the subject matter of this part of the study in- dicate a primary division of the examination into two parts : a) the law as developed by the court, and b) the law emanating from the legislature. There are various points at which these two will have to be related, and cross-reference will be necessary. But on the whole, a clearer picture can be produced by such a procedure. For the most part a chronological, or historical, approach will be utilized which will enable the reader to fol- low the progress of the law from the inception of the lease land system to the present day. It fits the nature of the topic; the lease lands are vestigial historically and politically.
The judiciary's part will be reviewed first. The court has, in the main, been the more active and significant agency. Major legislation concerning the lease lands has been infrequent, although many other
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statutes will possibly have affected particular parcels or groups of lands. In fact, for the purposes of this introductory study of the lease land system, it was found that the activity of the legislature, very largely, is best displayed by presenting tables of relevant acts in the appendix.1
Despite some resulting repetition, the work of the court can only be seen fully by a further two-fold division of the treatment. The cases of interest, both those turning on lease land difficulties and others used for comparison, will first be analyzed by principal legal topics such as "ad- verse possession," "obligation of contract," "public use," and so on. In addition to this, however, there should be a review of the court's vari- ous decisions relative to each of the classes or groups of lease lands ; this will develop in Chapter VII in connection with the analysis of their administration.
In the case of the legislature, the problem is somewhat simpler. For the most part a few major acts have covered all, or important portions, of the lease lands. Other, particular acts have been concerned with in- corporating grammar schools, providing for the University and setting the responsibilities of town officers. One notable incident of important legislation which was preoccupied with a single class of lease lands de- serves special comment as it will appear in both the activity of the legis- lature and that of the judges : the early efforts adverse to the interest of the Episcopalians.
The attitude of the court regarding the lease lands, and the several legal issues in which they have been involved, was found to be so pro- nounced that it appeared advisable to investigate the Vermont Reports beyond the limits of lease land cases. The purpose of the more extended inquiry was to determine general attitudes and positions of the judiciary in order to see to what extent the policy of protecting the lands might be regarded as a natural result of the prevalent judicial philosophy.2 On the whole, it will be found that there is a considerable degree of correlation. This would appear to arise from a historical acceptance by the Vermont court of the early frontier conditions and the later con- tinuing simplicity of society, as basic, and to be accommodated by the
1. See App. B.
2. Curiosity on this question was quickened by the sharp contrast of argu- ment between the majority opinion and Judge Moulton's dissent in University of Vermont v. Ward, 104 Vt. 239 (1932). This case was intended by the majority to be conclusive. Moulton's dissent, however, was equally vigorous and attains added interest from the fact that he later became Chief Justice of the Court.
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judges.3 There are a few sharp divergences, however, an example being found in the degree of tolerance toward tax exemption for the lease lands on the one hand and reluctance to grant such privilege to other charitable realty on the other hand. Such distinctions will be found to rest on legislative desires to which the court has been amenable or on the beneficent attitude of the judges toward the purposes for which the lease lands were set aside.
The results of the research for this and the succeeding chapter can- not be regarded by the writer with complete satisfaction. That is to say, it is not positively known that all relevant cases have been found. Two circumstances inhibited the possibility of certainty in this respect, and each deserves notice, as being indicative of the conditions in Ver- mont which can have influenced the status of the lease lands.
In the first place, this research was subject to the same unsatisfactory state of early records which would affect any legalistic study concerned with the early period of the state's development. The first court records are fragmentary and summary in content, where available. Unfortu- nately, this covers those years during which some of the fundamental attitudes were being established. For the purposes of this study, the fact is still more deplorable because the decades in question were a time of much turmoil and stress with respect to land settlement.4 It was also a period of consequence as to increase of population in the state,5
3. Judge Redfield displayed this viewpoint fully in his opinion in Gorham v. Daniels, 23 Vt. 600, 610 (1851) :
We entertain no doubt that our system of conveyancing, so different from the English, so simple and intelligible to all, and so intended to be . from the very first, was designed to be entire in itself. And although . most of its terms, and many of its forms of deeds, even . . . derived their meaning and operation to some extent, from the common law and the Eng- lish statutes . . . yet it was no doubt the purpose of the framers of our laws upon conveyancing to have them 'understanded' of the people, with- out the necessity of resorting to the study of the subject in other quarters. Such has been the practical construction of the subject by all, professional, or unprofessional, ever since.
The numerous opinions regarding judicial construction of deeds, wills and other instruments express strongly this same attitude; the court is regularly more con- cerned with the intention of the parties than with the legal technicalities of form.
4. This is illustrated by the content of the first published court reports, those prepared by Nathaniel Chipman, covering the years 1789-1791. Of twenty-five cases for which he wrote reports, ten of them are found to be suits in ejectment.
5. The writer's own Town of Weybridge provides a good example of the trend. In 1791 the population of the town was 175; in 1800, 502; and in 1850, 804. Hemenway, I, 110.
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which in turn implies that it was a period during which the public rights of land would be subjected to the hazards of disorderly land occupation.
No provision was made for judicial reporting until 1797, and this effort proved to be inadequate.6 It was only in the session of October, 1823, that the legislature finally recognized the need and provided for the appointment of a Reporter to compile and publish the opinions of the state supreme court. Daniel Chipman was appointed to this office and devoted his energy to carrying out a stipulation of the act which required publication of cases decided earlier. The nature of his work, and, consequently, the nature of material now available, can best be seen by quoting his own words:
The act of the Legislature makes it the duty of the Reporter to prepare and publish such of the former decisions of the Su- preme Court as he shall judge proper. On examination I find a number of former decisions which it will be useful to report: I shall first prepare and publish them, and then proceed to publish the decisions of the Court, in the order in which they shall be made. At the request of a number of Gentlemen of the Bar, I have selected a few cases from Chipman's Reports I shall then report a number of cases previous to the year 1813
Other than this belated compilation, there is recourse to a few slim volumes prepared by various judges on their own initiative. The earliest was that written by Nathaniel Chipman, already referred to. The others are Tyler I (1800) and Tyler II (1802), and Brayton (1815-19). In each instance, these volumes necessarily are limited to those cases
6. The nature of the situation can be grasped by the description of it written by Daniel Chipman in the preface to the first volume of authorized reports :
The Legislature seem to have entertained some idea of this, [the need for preserving the decisions of court cases] when in the year 1797 they passed an act requiring that each Judge of the Supreme Court, should make out his opinion in writing, and deliver it to the Clerk to be recorded in a book to be kept by him for that purpose. But it might have been for- seen that it was impossible for the Judges to comply with this requisition. The Judges made a circuit annually, holding a Court in each County for the trial of civil and criminal cases, and cases in Chancery. Under this system, the Judges could not possibly find time to consider the cases suffi- ciently to render judgments satisfactory either to themselves or to the suitors : how then could it have been expected, that each Judge could, in each case, make up and deliver to the Clerk his opinion in writing? This provision neither was nor could be complied with in any case. Gradual advances, however, were made towards an uniform system of Jurispru- dence, greatly retarded by a frequent change of the Judges, and at times by high party excitement. .
1 D. Chip. (1789-1824), preface, p. 30.
7. Ibid., preface, p. 34.
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with which the compiling judge was directly acquainted. Furthermore, the conditions related by Daniel Chipman made brevity essential, so that the reports are extremely short and give little more than the decision and sometimes a skeletal outline of the issues. Consequently, there is a period of almost fifty years in which the records cannot be viewed with admiration. Following his compilation in 1 D. Chip., Daniel Chipman published a volume, 2 D. Chip., covering the year 1824. This was fol- lowed by Aikens I (1825-26) and Aikens II (1826-27), and then 1 Vermont appeared for the years 1826-28.
Although the regular publication of court reports commenced in 1824, it was only gradually that facilities and experience allowed the content of the reports to develop to satisfactory dimensions. The open- ing volumes of the series do not present the ample statements which are found later. Environmental conditions, generally, precluded records of the sort to satisfy the researcher. Chief Justice Powers has described them well in the following words :
Before we begin our study of the Court of 1834, and its mem- bers, it will be well to have in mind the conditions under which it functioned. The time was a hundred years ago. Vermont was a sparsely settled area. There was not a railroad within its borders. Public travel was by horse-drawn vehicles over primitive high- ways and toll roads or on horseback over marked trails. Com- munication between towns and villages was slow and somewhat uncertain. The Morse telegraph was not publicly used until ten years later. The executive branch of the state government con- sisted of a Governor and Council; the legislative department of a House of Representatives, which sat annually; the judicial branch, of a Supreme Court of five judges, which constituted the Court of Chancery, and whose members presided in the County Courts. When the Court of 1834 took office, American law books and reports were few in number and expensive to acquire. Mas- sachusetts had published about thirty volumes of Reports, and New Hampshire had published five. Up to that time, and for many years later, our state made no appropriation for the State Library. However, by gift, exchange and otherwise, that library had acquired some twelve hundred and fifty volumes of legal and quasilegal publications. Bench and Bar were dependent mostly upon English decisions and textbooks for authorities. A partial and unsatisfactory reprint of the English Common Law Cases had been undertaken and partially carried out.8
8. Chief Justice George M. Powers, "The Supreme Court of 1834," Report of Proceedings of the 57th Annual Meeting of the Vermont Bar Association, 1934, XXVIII, 76-77.
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In addition to all this, the present study encountered throughout the law reports the same lack of attention to the lease lands which has been discussed as one of the characteristics of the system in Vermont.9 There are available two digests of Vermont Reports.10 Each includes a topic section for the lease lands (in one it is called "public lands" and in the other "public rights"). It was quickly discovered that neither topic section was of any value for this research: cases of which the writer was already aware were not included. Hence, it became necessary to go through the Digests, page by page, accumulating a list of cases which appeared, from the nature of the digest briefs, to be possibilities. To illustrate, a given case involving lease lands would not be classified under "public lands" but might be found in the category of "adverse possession," with no clear indication that it had to do with the lands of interest here. It should be added that the topical sections devoted to the various groups of lands, such as "school lands," "ministerial lands," and so on, were no more to be relied on.
The volumes of the Vermont Reports each carry the customary in- dex of cases. These indices were resorted to as a means by which to repair the deficiency in the Digests' classifications. Here, again, the lease lands had failed to impress the various Reporters. The classifica- tion title used is "public rights." It does not appear until volume 27 of the Reports (1856). Its next appearance is in volume 35 (1864). There- after, it appears only sporadically. In short, although the Vermont court has developed a law relating to the lease lands, of interest to the student, affecting a significant acreage of the state and of intense im- portance to individuals connected with the lands, no consciousness of the fact appears to have developed.11 The result, for this study, is that it is not possible to assert that all of the lease land cases have been ex- amined. It can, however, be stated that the list of cases in the bibliog- raphy is the only reasonably comprehensive compilation which exists.
9. Supra, p. 78.
10. Robert Roberts, comp., Vermont Digest, 1789-1905 (Burlington, 1910), and Guy B. Horton, comp., An Annotated Continuation of the Vermont Digest, 1905-1910 (Burlington, 1911) ; Vermont Digest Annotated (St. Paul, 1928, 1944), comp. and pub. under authority of the State of Vermont.
11. Furthermore, a few cases are to be found in which the subject matter and the phrasing of the opinion make it impossible to determine whether the land in question is lease land. See Taylor v. Blake, 109 Vt. 88 (1937), and University of Vermont v. Carter, 110 Vt. 206 (1939), as examples.
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DURABLE LEASES
Among the various topics to be examined, that which stands forth as of preeminent interest is the doctrine developed in Vermont respect- ing so-called durable leases,12 insofar as this form of conveyance is applied to the public lands. It is in this phase of the law that the Ver- mont court has moved away from the general Anglo-American posi- tion. And it is this doctrine upon which the continued existence of the lease land system, in its present form, is dependent.
With the exception of Judge Moulton's dissent, previously referred to, in the Ward Case,18 the court has been consistent in its reaction to durable leases of the lands under study. If there were earlier dissenters among the judges, it is not apparent from the published reports. Moul- ton's dissent is dignified as an exception, although it is not at present ruling court doctrine, because of several circumstances surrounding it. To begin with, the dissent is written strongly-almost, one might think, in a tone of emotional stress. Moreover, it was indulged in despite the obvious, and explicit, desire of the court to settle, once and for all, the issue of such durable leases.14 As was mentioned,15 he subsequently be- came Chief Justice of the Supreme Court-and evidently did not change his views: he adverted to them in an opinion written in 1936.16 Finally, in addition to the recognition given him by his advancement in the court, he is found to have had the deep respect of much of the legal pro- fession in the state. Both the majority opinion and the dissent will be examined at the appropriate time.
In brief, the doctrine of the Vermont court is this : whatever may have been the common law position, and whatever may be accepted as the law of durable leases of ordinary realty, so far as the public lands
12. The term "durable lease" is herein used to denote leasehold rights granted in perpetuity. The customary form of expression of the term of such leases is "for as long as grass grows and water runs" (or variations thereof). The court has regarded this phrase as equating perpetuity. Paine v. Webster, 1 Vt. 101 (1828).
13. University of Vermont v. Ward, 104 Vt. 239 (1932).
14. In the majority opinion, p. 264, the court said :
. . it has been argued with such earnestness that a durable lease of our public lands is in effect a conveyance of a base or determinable fee, and so many titles to our public lands are held under such leases, that we have considered the question in the hope that the true character of such leases may be settled for all time.
15. Supra, p. 100, n. 2.
16. Jones v. Vermont Asbestos Corp., et al., 108 Vt. 79.
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are concerned durable leases are leases and create the relation of land- lord and tenant.
The first recorded case in which leases of public lands appear as a subject was Selectmen of Rockingham v. Hunt in 1817.17 It is to be noticed that there is no discussion recorded respecting durable leases. The record is brief and is quoted in full :
In an action of ejectment, where it appeared the defendent was in possession of the premises under a lease, from the plain- tiff, and the cause of action was the non-payment of rent; the defendants cannot come in and be entitled to a time to redeem, i.e. pay the rent, etc., under the 76th section of the Judiciary Act.
This illustrates prior remarks respecting the inadequacy of early court records. No indication of the status of the lot or of the nature of the lease-hold is made. It can be fairly assumed that the lot was one of the public lands, in view of the nature of the plaintiff. But it cannot equally well be assumed that the lease was durable; at that period certain of the lands were leased for years. Hence, the only significance of the case is the presumption, from the report, that the court at that date accepted the idea of such lands being conveyed by lease.18 Bush v. Whitney19 soon after accepted the legislation respecting leasing of the confiscated glebe lots by the town selectmen and therefore voided an attempted conveyance in fee. Again, there is no specification of a durable lease, but, again, the court shows readiness to subscribe to the plan of leasing the public lands.
Oddly, the first reports dealing explicitly with durable leases do not involve public lands. Paine v. Webster20 and Arms v. Burt21 both con- cerned leases between private persons of ordinary realty. Both convey- ances were of the "as long as grass grows and water runs" variety. In the first case an annual rent was prescribed. The opinion of the court as to the nature of the conveyance fits the definition given in University of Vermont v. Ward22 of a fee upon condition subsequent. In the sec- ond case no rent was reserved, but covenants required lessee to per- form certain benefits of maintenance to the lessor and his family. In
17. Brayt. 66.
18. This point is of interest in a comparison between Vermont and New Hampshire doctrines respecting disposition of public lands. See infra, pp. 135-138.
19. 1 D. Chip. 369 (1821). See Laws of Vermont, 1805-1807, 1805, pp. 127-129.
20. 1 Vt. 101 (1828).
21. 1 Vt. 303 (1828).
22. 104 Vt. 239 (1932).
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this opinion the court described the conveyance as a fee determinable upon non-performance of conditions. It is to be seen that the court ad- hered, generally, to the common law position respecting durable leases, and from these rulings one could expect a similar rule for the public lands. However, this is not so and is one of the distinctions of Vermont law illuminating the interest in protection of the public lands.
The distinction was demonstrated no more than a year later in Lampson v. New Haven.23 The town had conveyed the glebe lot in the form of a durable lease but had not reserved an annual rent, taking in- stead a note for $1,500 from the lessee. The court viewed the situation as one in which both parties had acted in good faith and in ignorance of the limited power of the selectmen, but, nevertheless, followed the ruling in Bush v. Whitney24 and voided the conveyance. For our imme- diate purpose, the important part of the ruling is that the court recom- mended the form of lease which has become customary for the public lands: ". .. they [the selectmen] shall have their election to execute to said Barnum, his heirs and assigns, a perpetual lease of said glebe lot, reserving a reasonable annual rent, with the right to re-enter for the non-payment of such rent, or for waste committed. . "'25 Here we find the court recognizing such a lease as being a conveyance of less than a fee.26 This case is also of interest because the opinion carried a clear- cut statement of the reasoning upon which such conclusion was based, reasoning which has been followed since in cases concerning the lease lands. It is that the cestui que trust of the educational and religious grants include both present and future generations. If so, then disposi- tion of the lands must be such that the avails can benefit those yet to come as well as those living at the time of the conveyance.
Again, a year later, the court maintained the distinction now estab- lished, in Stevens v. Dewing.27 This was another case turning on a durable lease of ordinary realty, between private parties. The court ad- hered to the ruling in Arms v. Burt.28 That is to say, that the lease con- veyed a determinable fee.
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