USA > Vermont > The Vermont lease lands > Part 14
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And again :
The sale and conveyance of the estate . . . was not only a fraud on the power, as before observed, but also a fraud on the future objects of the power. The contract for such a sale was unconscionable on the part of the Grammar School; and it was also unconscionable in Holton and Judevine to obtain such a con-
78. Ibid., pp. 157-159.
79. 93 Vt. 220, 227 (1919).
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tract, knowing at the time the nature and purpose of the grant creating the power, and they made themselves a party to the fraud.80
For the rest, the opinion adverts to the rulings in the second case at law and reasserts them with emphasis. It again distinguishes between a grant in fee simple and a lease, the latter requiring the reservation of a reversion. It reiterates the statement of the purpose of the grant- education of the youth of the state, and that this contemplates future as well as present youth. It dwells on the point that an annual income is the only means for assuring the accomplishment of this purpose.
The decree is subject to attention because of a provision in it which is a forerunner of similar provisions in legislation enacted in 1935 and 1937.81 The amount of money to be received by the school, a not incon- siderable sum, was "for the benefit of the Trustees of Caledonia County Grammar School, to be held by it and treated as a portion of the said trust estate, the yearly income whereof to be applied to the use contem- plated by the trust. . . ''82
Holton v. Hassam,83 is notable mostly as an excellent illustration of the extent to which lease land in Vermont can become entwined in elaborate title difficulties. It concerned a Gospel lot and was a contest between private parties and their respective lines of claim to the lot. The court was agreeable to the idea of durable leases and, in fact, pre- sumed the revocation of an early lease for non-payment of rent and consequent resumption of possession by the town.
Though not concerned with public lands, nor with durable leases, Rosenberg v. Taft84 should be noted. The case reiterated a doctrine which had appeared in earlier cases85 to the effect that in the absence of a pro- vision against it, a tenant can sub-let without lessor's consent. The point is important. In connection with certain other legal positions, principally the law specifying against whom real estate taxes shall be listed,86 it has contributed to grantees of the public lands losing sight of them.
80. Ibid., pp. 237-238.
81. Infra, p. 134.
82. 93 Vt. 220, 244 (1919).
83. 94 Vt. 324 (1920).
84. 94 Vt. 458 (1920).
85. See Cooney v. Hayes, 40 Vt. 478 (1868), Rickard v. Dana, 74 Vt. 74 (1901), supra, p. 112. The ruling is found to continue at least as late as 1939 in Dieter v. Scott, 110 Vt. 376.
86. Infra, p. 195.
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As has been remarked,87 the leading case respecting durable leases is University of Vermont v. Ward.88 The situation in this litigation varies, in one element, from the customary pattern of the durable lease cases. Whereas, they are mostly found to be ejectments for non-payment of rent, in this instance the action was tort and trover for damages for cutting and removing timber. The University had, early in its leasing program, established a form of lease to include a covenant that the lessee and his successors would maintain and reserve on the premises a specified acreage for woodland without committing strip or waste thereon, taking just so much timber as needed for family maintenance. In this lease thirty acres was so reserved. The covenant carried pro- vision for re-entry and re-possession by the University just as in case of failure to pay rents.
The lease in issue had originally been granted in 1811 and had passed through various conveyances. In 1920, the administrator of the last possessor conveyed to Ward all the growing wood and timber on the premises, to be cut and removed within five years, which was done.89
Durable leases became the central issue in the opinion by virtue of defendant's motion for a directed verdict "that upon the evidence, viewed most favorably for the plaintiff, the plaintiff has no title to or interest in the premises or property, reversionary or possessory, such as entitles it to maintain this action."90
Although the majority opinion is lengthy (as is, also, the dissent) there is little new to be found in it. It is useful to the legal profession chiefly because of its earnest intent to quiet the question of durable leases91 and because it included a fairly full review of earlier cases and of pertinent legislation, as well as a summary review of historical con- ditions in the state.92 Perhaps the principal contribution of this opinion - is the detailed analysis it contains of the nature of various forms of
87. Supra, p. 105.
88. 104 Vt. 239 (1932).
89. In view of the decision respecting damages, against Ward, it is interesting to notice that the administrator conveyed to Ward with the license of the probate court.
90. 104 Vt. 239, 245 (1932). This is the basis of the remark earlier (p. 113) that the opinions in the Caledonia litigation should have made this case unnecessary. In the light of those, and earlier statements by the court, it is difficult to explain the reasoning which would bring forth such a motion.
91. Supra, p. 105, n. 14.
92. Previous opinions had not gone extensively into precedent, relying on rela- tively few citations.
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conveyance : base fees, determinable fees, fees upon condition subse- quent, and durable leases. The court proceeded, then, to make explicit the fact that the common law cannot be used as a measure of the law of durable leases :
And it may be conceded for the purposes of this case that at common law the lease in question would, in legal effect, be a con- veyance in fee. . . . Durable leases of public lands were un- known to the common law. A long-established and well-understood usage, which has received the express recognition and approval of the Legislature and this Court, has sanctioned such conveyances, and a departure from it now would unsettle and probably destroy many titles hitherto believed to be perfectly good. We are not re- quired by any provision of the organic law of this State to adopt a rule of the ancient common law never heretofore applied to them, and subject to its operation a species of tenure unknown to the common law, but adopted early in the legislation of this State as best suited to secure the objects for which such lands were to be held and leased.98
The court admitted that the legislation is not explicit on the matter of durable leases and in the course of its remarks displayed the extent to which the Vermont doctrine has actually been a judicial development :
While the intent of the Legislature as to the length of the term for which the University may execute valid leases of the col- lege lands cannot be ascertained from the language of the statutes authorizing it to lease and rent them, there are other acts passed about the same time authorizing the leasing of other of the public lands which deal with this subject. These statutes are in pari materia and it is a familiar rule of interpretation that in the con- struction of a particular statute, all acts relating to the same sub- ject-matter should be read in connection with it, as parts of one system.ª
But the usefulness of this statement is materially decreased by the further remarks in the opinion. The court considered the history of the Act of October 30, 1794, giving to the towns the S. P. G. lands, to be leased durably, and, unfortunately for the strength of the preceding quoted view, it concluded thus :
This is one of the first acts of the Legislature providing for
93. 104 Vt. 239, 251, 263 (1932).
94. Ibid., pp. 252-253. This is inconsistent with the record of the court re- specting interpretation of the provisions of the town charters, as to the grants. The court has insisted upon giving force to the most minute differences of phrase- ology.
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the leasing of our public lands on long-term leases, and it is the only act which specifically authorizes and empowers the trustees of such lands to lease the same for 'as long as water runs or wood grows,' or for equivalent terms.95
Another attempt, in the opinion, to credit the doctrine to the legis- lature was equally questionable :
. it cannot be questioned that the Legislature has the power to authorize trustees of the public lands to execute leases of such lands with terms co-extensive with the life of the trust, i.e., for- ever. This power is given to the Legislature by the reservation in the charters of the townships. . 96
At the very least, this can be said to create a misimpression; at the worst, it is clearly out of line with the record of the court in adhering to the minutiae of phraseology in the charters. Only the college right and grammar school right are found in the charters to be at the dis- posal of the legislature; in fact, in some charters certain of the rights are specifically at the disposal of the inhabitants of the town.
The court is at its best in the opinion, and on soundest ground, when it simply relies on the history of the situation :
It has been held by the Court, whenever the question has been raised, that neither the plaintiff, by its charter, nor the county grammar schools, by their grants, were authorized or em- powered to convey the fee in the public lands granted to them or the whole of their interest and estate therein; that they have only the authority and power to lease said lands by leases reserv- ing a substantial and adequate rent payable annually for the whole term of the holding, and authorizing a re-entry for the non-pay- ment of the same or the non-performance of the covenants of the lessee. And the same construction has been given to the stat- utes authorizing selectmen to lease certain of the public lands located in their respective towns.9
95. Ibid., pp. 253-254. The use of this act in the opinion becomes even more difficult to find acceptable when it is remembered that the act was written in the heat of the effort to dispossess the Episcopalians, and was nullified by the decision in the U. S. Supreme Court, which voided the confiscation of the S. P. G. lots in S. P. G. v. New Haven and Wheeler, 8 Wheaton 464 (1823).
96. 104 Vt. 239, 251 (1932).
97. Ibid., p. 248. This fails to cover the S. P. G. share. There has been no case in which the issue has been specifically determined respecting the authority of the Diocese to convey the fee in its lands. Dictum in Propagation Society v. Sharon, 28 Vt. 603 (1856), was perhaps to this effect, but the case, as has been seen, supra, p. 109, was a matter of adverse possession. However, the position of the court re-
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And again :
It is a matter of common knowledge, of which we take judicial notice, that from the early days of this State the greater part of our public lands have been leased by 'durable leases,' that is, by leases reserving a rent payable annually, with a right of re- entry for non-payment of the same, and for the term 'as long as grass grows or water runs,' or equivalent terms. .. . It ap- pears from the early statutes authorizing the leasing of our public lands and the Journal of the Legislature of 1794 to which we have called attention, that it was pressed upon the Legislature that leases of such lands on long terms were better adapted to the conditions which then existed than leases of short duration. Those conditions are a matter of common knowledge. The greater part of this State was covered with forests which had little value, if any, as timber. The land had to be cleared before it could be cultivated and made productive. . . . Settlers would not under- take the arduous task of improving these lands and making them productive unless they could be assured that they and their chil- dren would enjoy the fruits of their labors. This result, and a reasonable and adequate rent for the lands, could be secured only by long-term leases. . . . The various uses for which these lands were granted are perpetual. The titles of the trustees to these lands are indefeasible by the State and are as permanent, absolute, and effective as if the lands had been granted to a man, and his heirs and assigns forever. But the trustees have the power only to lease such lands.98
Jones v. Vermont Asbestos Corp., et al.99 is the latest lease land case of consequence.100 It is an extremely important case respecting the lease lands and will be dealt with at length under various other topics,
specting the nature of the trusts established by the grants of the public rights, and its view as to the character, present and future, of the cestui que trust, have been constant and have not been limited, in their statement, to any particular groups of the lease lands. This at least allows the assumption that the doctrine quoted may well embrace the S. P. G. lands. The question has practical importance. Mr. Wilson informed the writer that he had pondered the problem of administration of the for- est lots under his control and concluded that he would profit best by making just the type of lease conveyance which was so seriously discountenanced by the court in the Caledonia County Grammar School cases, 84 Vt. 1 (1910) ; 86 Vt. 151 (1912) ; 93 Vt. 220 (1919).
98. 104 Vt. 239, 252, 262-263 (1932). Judge Moulton's dissent is examined in App. C. As was stated, supra, p. 105, it deserves careful consideration. However, inasmuch as it is not ruling doctrine, it is not regarded as properly falling within the body of this analysis.
99. 108 Vt. 79 (1936).
100. Only one more follows it: Brown v. Derway, 109 Vt. 37 (1937). But this case was not one to attract any great attention.
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principally the next, which will examine the matter of conveying the lease lands. However, it needs a brief treatment here.
The action arose from a petition filed by Lawrence C. Jones, the State Attorney General, for a declaratory judgment on the validity of Acts No. 65 and No. 239 of 1935. These acts, respectively, authorized the University and the Town of Belvidere to sell certain lease lands to the asbestos corporation. (They are defendants in the action, together with the corporation.)
Belvidere was chartered in 1791, the charter containing the follow- ing clause : ". .. also reserving for public uses the usual quantity of Land reserved in other townships, chartered by this State, to be laid out at the place of Beginning."101 Lots numbered 162 to 169, inclusive, were set apart for these uses and held in common for them until 1862, when, under authority of Act of November 2, 1861, a committee of the legislature divided the rights. Lots 162 and 163, jointly, were divided into three parcels, one each for the college right, the Gospel right and the town school right.102
It transpired that the area embraced by these lots contained a work- able deposit of asbestos. The Vermont Asbestos Corporation had ac- quired the durable leasehold to the lots and desired to develop the mine beyond the operations of an earlier commercial effort. The leases called for annual rental payments of $25 to the University and $35 to the town. The corporation was not satisfied with its status, as a basis for large-scale developmental investment, because of certain ambiguous conditions in the law as to mineral rights vesting in the state. Hence, it proposed to purchase the lots. The University and town were agree- able ; the prices offered were enticing : $25,000 to the former and $50,000 to the latter. The legislature was approached and was agreeable ; hence, the two acts.
However, the rule respecting the inalienability of the lease lands had become so thoroughly established, following the Ward Case,103 that there was some doubt whether the court would accept the two acts. The
101. Vermont State Papers, II, 18.
102. Laws of Vermont, 1827-1831, 1831, p. 12, had set and annexed a part of Belvidere to the Town of Eden. This area included lots 162 and 163. But, under the Vermont law, Belvidere retained its title to the latter two rights and the beneficial use thereof. Eden, consequently, does not figure in the case. The outcome was im- portant to Eden, though, as it would make a difference in the assessable property in the town.
103. 104 Vt. 239 (1932).
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Attorney General, nominally acting in protection of, and asserting the rights of, the undetermined beneficiaries, filed the petition. Actually, the purpose was to draw from the court a ruling on which to rely before the negotiations for the sales should progress to completion.104
So far as it concerns the examination of the doctrine respecting dura- ble leases, the case is not of extensive significance. It continued to ac- cept such conveyances as valid, merely accepting the new legislation as broadening the scope of power of the trusts established by the grants. In fact, by implication, the laws-and the ruling of the court-fortify the durable lease doctrine. The opinion continues to adhere to the view that the beneficiaries include future generations. It accommodates this view to the revised status of the law respecting conveyances and aliena- tion of the lands by stressing that it is simply the res of the trust prop- erty which is changed-that the purpose of the trust shall remain in- tact and that there shall be due provision, as the legislature thinks ade- quate, that the proceeds of the sale be kept intact. The most significant recognition, by the legislation and the court's opinion, of durable leases is the provision that such sales of the lands shall be "to the owner or holder of leasehold rights, but not to others except subject to such lease- hold right, or simultaneously with the extinguishment thereof."105
This is the 1936 decision, earlier mentioned,106 in the opinion of which Judge Moulton made oblique reference to the Ward Case :
Although there is no specific prohibition of complete aliena- tion in our Constitution or in any statute, it has been the law of this State from the earliest times that an attempted conveyance of the fee of public lands is void. . . . The authority conferred . by the statutes to lease the lands has been, by de- cisions of this court, construed to include the power to execute so- called 'durable leases,' that is, conveyances of the 'as long as grass grows and water runs' variety, with covenants for rent and reservations of a right of re-entry for breach of condition . . it was held . . . that these conveyances, when given with regard to public lands, were leases, the parties thereto standing in the relationship of landlord and tenant.107
104. The court's doctrine had become firmly implanted in the consciousness of Vermonters. This is well illustrated by the fact that even in 1940, despite these acts and the broader legislation of 1937, the writer was gravely informed at the state capitol that the lands could not be sold. Apparently, the legal profession was like- wise convinced-the county court found for the Attorney General.
105. Laws of Vermont, 1935, pp. 265-266.
106. Supra, p. 105.
107. 108 Vt. 79, 94 (1936).
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The Brown v. Derway case in 1937,108 the latest case involving the lease lands, is interesting only because the court continued the estab- lished practice of accepting the idea of leasehold rights. Taylor v. Brown109 followed it and has to do with a durably leased lot, in an ac- tion of tort for trespass. It is not, however, herein classified as a lease land case because of uncertainty respecting it. The lessor was the select- men of the town, and this would lead toward the supposition that the lot was lease land. However, towns have received other real property, some of which has been so conveyed. The report of the case fails to distinguish the situation. The inability to make a firm assumption is demonstrated by Doubleday v. Town of Stockbridge. Here the land in question was leased for 999 years by the selectmen and was quite evi- dently not public land (as of the charter grants) inasmuch as it was regarded by all concerned as taxable, the issue in the case being the party against whom the tax should be laid, owner or possessor. In fact, the court said: "It is clear that the land leased did not belong to that class of public lands which are exempted from taxation. ."110 It is noteworthy, too, that the original lease arrangement included the same type of commuted payment to which the court had objected in various cases covering lands herein under study, and that in the case of this lot no such objection was found.
Queen City Park Association v. Gale111 enters this study because the opinion accepted, and relied upon, the Ward Case112 and the definitions therein of various conveyances. In addition, the opinion quotes several accepted sources for explanations of equitable restrictions and their effect on successors which go far to fortify the status quo respecting contractual rights established by the durable leases under examination.
Thus, it is to be noted that in almost a century and a half of litigation, the court permitted the loss of public lands in lease cases but once.113 On this occasion the loss occurred, not on the basis of the nature of the conveyance, but because the right in question had been subjected for a time to the provisions of the statute of limitation respecting adverse possession. Regularly, the court has distinguished between the nature
108. 109 Vt. 37.
109. 109 Vt. 88 (1937).
110. 109 Vt. 167, 171 (1937).
111. 110 Vt. 110 (1938).
112. 104 Vt. 239 (1932).
113. Society for the Propagation of the Gospel v. Sharon, 28 Vt. 603 (1856). Supra, p. 109.
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of durable leases of public lands, as granted in the town charters, and such conveyances of other real property.
ALIENATION
The associated topic of alienation of the lease lands has to some ex- tent been observed during the preceding presentation respecting durable leases.114 Inasmuch as a number of such actions involved conveyances on which the court frowned, some consideration of those attempted con- veyances occurred. There are other cases touching on the alienation of the lands by attempted conveyance. In addition, this aspect of the status of the lands must be regarded from the viewpoint of possibility of change of ownership through adverse possession, eminent domain proceedings, the construing of property lines, and so on.
Conveyancing
We have seen, in a series of cases, that the court has refused to ac- cept the validity of conveyances which had the form of durable leases, but which were considered as violating the reality because they pro- vided a commuted rent, or failed to secure a reversionary interest.115 The judges have, at various times, relied on the pertinent legislation as a foundation for their decisions. However, the writer's view is that the interpretation by Judge Moulton in the Asbestos Case116 is more in line with the facts-the judges have indulged in rather broad construction of the statutes, their meaning and intent, as well as their phrases, to develop the legal position that the lands could not be parted with by the grantees.117 The matter becomes particularly interesting in a comparison with the New Hampshire attitude.118
A few cases, besides those already observed, are to be discussed relative to the question of conveyancing of the lands by something
114. The writer meditated some on the practicability of treating the problems of durable leases and conveyances together, on the basis of their being so closely related historically and legalistically. It was concluded that the Vermont develop- ments would be more successfully delineated by separate analysis.
115. Bush v. Whitney, 1 D. Chip. 369 (1821) ; Lampson v. New Haven, 2 Vt. 14 (1829) ; Propagation Society v. Sharon, 28 Vt. 603 (1856) ; White v. Fuller, 38 Vt. 193 (1865) ; Caledonia County Grammar School v. Kent, 84 Vt. 1 (1910) ; S. C., 86 Vt. 151 (1912) ; Powers and Peck, Admr. for Judevine v. Caledonia County Grammar School, 93 Vt. 220 (1919) ; University of Vermont v. Ward, 104 Vt. 239 (1932) ; Jones v. Vermont Asbestos Corp., et al., 108 Vt. 79 (1936).
116. 108 Vt. 79 (1936), supra, p. 124.
117. Supra, p. 120.
118. Infra, pp. 135-138.
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other than a lease. A brief additional comment on Bush v. Whitney,119 however, is in order, to show how strictly the court held to the doctrine on non-conveyance. At the time the selectmen made the attempted con- veyance in fee to Bush, they took in exchange another lot in the town "as and for a glebe." Even this, the court disallowed.
Poultney v. Wells120 is of more concern elsewhere in this chapter- it was a matter of re-distribution of land avails, following a change in town lines. For this section, it serves, by inversion, as a forerunner of the decision in the Asbestos Case :121 The court made clear that the grant was irrevocable and the legislature could exercise no power over it, to vary the appropriation without the consent of the town. But, with such consent of the trustee of the grant, a change could be made.
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