USA > Vermont > The Vermont lease lands > Part 15
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In University of Vermont v. Reynolds, the college right was lost by the court's presumption of an adverse grant from another source. Dur- ing the course of the explanation of why a presumption should be in- ferred, the court said, however :
it is true that where there exists no power to make a grant, none can be presumed from a possession however long it may be. If it was necessary in this case to presume a deed from the trus- tees of the University to establish the defendant's claim, it would not be established, as the trustees never had any power to convey by deed.122
Williams v. Goddard123 demonstrates the preoccupation of the court with the program of maintaining intact the public rights. The case con- cerned a minister lot and was a matter of trespass. The court held that the wording of the grant in the charter of Concord, varying from the customary phrase in other charters, was determinant. The Concord charter went thus: ". . . lands to the amount of one right to be and remain for the purpose of settlement of a minister and ministers of the gospel in said town forever. . . "124 As the court saw it, this implied a succession of ministers. Hence, the town was precluded from conveying the fee in the lot to the first settled minister, duly settled though he was.
Keith v. Day125 likewise displays the generosity of the court toward the grantees of the public rights.
119. 1 D. Chip. 369 (1821), supra, p. 106.
120. 1 Aik. 80 (1826).
121. 108 Vt. 79 (1936).
122. 3 Vt. 542, 560 (1831).
123. 8 Vt. 492 (1836).
124. Vermont State Papers, II, 47, 168.
125. 15 Vt. 660 (1843).
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The University, in one of its occasional bursts of energy, brought action of ejectment for non-payment of rent against Keith, in Wash- ington County court in 1839, and won. Keith then sued Day for recov- ery of damages on covenant of warranty deed. The case gains point when the record, in the report, of the conveyances by warranty deed is read. There had been an impressive number of such transactions, and the court accepted the proposition that they had been done in good faith. This would be possible only by virtue of a period of carelessness on the part of the University in administering the land. Yet the court readily recognized the superior title of the University and awarded plaintiff damages. Thus, as in the Caledonia County Grammar School action, and other cases, it is clear that the responsibility for noticing the restricted status of lease lands is not on the grantees of the public rights, but on him who would purchase.
On the other hand, Pownal v. Myers126 allowed the conveyance of a minister lot. It is true that the circumstances distinguish the situation, to some extent, from the customary. One Gardner had, in 1789, been duly settled as minister and received the minister right. He had then deeded the land at issue, a portion of the right, to the town by deed of gift for "use and support of a gospel minister or ministers" in the town ". . for the benefit of the town forever," to be "in trust," etc. In 1797, a town meeting agreed to sell the land, the money received to be loaned, and the interest to be devoted as had the land rental money. This was done. Forty years later, the town sued in ejectment to recover the land as having been wrongfully conveyed.127 The court held against the town.
Pownal v. Myers requires careful attention. The court wished it to be leading: "We have been induced to go thus, at length, into this claim, in consideration of the importance of the question . . . . and the necessity that the question should be decided at some time."128 The "question" referred to is that of modification of trusts. Judge Redfield's opinion is strongly worded. It provides firm precedent for the outcome
126. 16 Vt. 408 (1844).
127. Any distinguishing of this situation becomes less significant by compari- son with Congregational Society, Newport v. Walker, 18 Vt. 600 (1846), discussed, supra, pp. 108-109. The attitude of the court, in both cases, indicates the view that the minister right was still being devoted to its original purpose, even though it had returned to continuing public benefit by deed of the minister. The contrast in the rulings is especially remarkable upon recalling that the Newport case followed the Pownal case by only two years.
128. 16 Vt. 408, 415 (1844).
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of the Asbestos Case.129 And it is interesting to observe its relation to various cases between those two. It might be averred that the status of the lease lands, so far as the court is concerned, has resulted, perhaps, from inactivity on the part of the legislature to provide its positive ap- proval of change.
Judge Redfield wrote to the effect that a trustee of real estate has always the legal estate. Thus, he can convey it as he sees fit; if the cestui que trust is sui juris, with his consent; otherwise, without such consent ; in all cases, with the consent of the cestui que trust and the founder of the trust, or charity.180
This is of the very nature of all trusts, or charities, and, in- deed, of all contracts, that the scheme may be modified by the consent of all concerned. And it must also follow that this assent may be either express, or implied . . . either from circumstances or lapse of time, or both. . . . A modification of the scheme of a charity, in so unimportant a particular as the form of the in- vestment, ought always to be presumed, when it was possible and has long been acquiesced in. If the modification goes to the very foundation and object of the charity, it ought not, perhaps, to be presumed, unless upon the very strongest ground, and then only upon such grounds as existed during the life of the founder. 131
It is to be noted particularly that there is no distinction made in the opinion between public and private trusts, although the plaintiff had argued for such a distinction. In fact, the court failed entirely to discuss the matter and wrote the opinion in such manner that it is to be inferred that no such distinction was acceptable. Thus, the court in this case went even further than did Judge Moulton in the Asbestos Case,132 in allow- ing a change in the res of the trust. It must be remembered, however, that the view of Judge Redfield has not been generally acceptable in the Vermont court, as respects the lease lands. If it were otherwise, his reasoning, especially that part of it in which he opens the way for pre- sumption of acquiescence, would have formed a sufficient basis by which the court could have admitted the various leases which were disallowed because of a commuted rent.138
129. 108 Vt. 79 (1936).
130. The same Gardner was a selectman in 1797 and was designated to be a member of the committee appointed to make the sale.
131. 16 Vt. 408, 414-415 (1844).
132. 108 Vt. 79 (1936).
133. A check of the case in Shepard's Vermont Citations indicates that it has been but little referred to in later lease land opinions.
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Daggett v. Mendon134 and Capen's Admr. v. Sheldon135 are asso- ciated cases. They involved the same lot-the minister's right in the Town of Mendon-and both came to be concerned with the conveyanc- ing of that lot. One Wellington, duly settled as minister, made a quit- claim deed of the lot in favor of the town in 1836. The town executed a warranty deed in 1872 to Daggett and Stratton, conveying the lot in fee for $1,000. These gave a mortgage to the town for a part of the pur- chase price. Later the town foreclosed this mortgage. In 1876 the town gave a quit-claim deed to Daggett (Stratton having died in the mean- time). On the same day Daggett quit-claimed the property to Capen.
The actions resulted from timber cutting on the property by an agent of Sheldon's, sometime prior to 1892. Sheldon claimed he was in by adverse possession, the original public right having been forfeited by non-observance of the charter requirement of settlement and culti- vation within three years of the granting thereof. The Capen case was a claim of trespass ; the Daggett action was against the town on covenants of warranty deed. The results, for our purposes, are somewhat ambigu- ous. The town argued that it was responsible only as to the later quit- claim deed, since the property had been foreclosed, as of the conveyance by warranty deed. The court held this argument good. The opinion is of most interest here in the fact that nowhere in it is there any reference to the property as having constituted one of the public rights.136
The Capen case had been pending in county court since 1892, and it did not reach the Supreme Court until much later. The court did assert that "conveyances in fee of our public lands, when the statute authorizes only leases reserving rent, are void as conveyances . . . but they may operate as licenses to enter."137 But then the opinion holds that such conveyances may give color of title if they contain a sufficient descrip- tion and that when one quit-claims real estate of which he is in possession under color of title, that possession passes to his grantee, and the quit- claim gives the latter color of title. Thus, Capen's status. The court re- fused Sheldon's argument of a forfeiture. To begin with, forfeitures are odious in law and are never presumed, but must be proved. Further- more, the requirement in the charter was not to be considered a limita-
134. 64 Vt. 323 (1892).
135. 78 Vt. 39 (1905).
136. The identity of the property, as being the minister right, was established by the writer after acquaintance with the later Capen case.
137. 78 Vt. 39, 47 (1905).
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tion, but, rather, a condition subsequent. As such, it would not work a forfeiture for breach of condition "until the State asserts its right to enforce a forfeiture, and . . . the grant coming from the State, no in- dividual can assail the title for non-performance of the condition."138 Basically, the court evaded the issue of interest here, going so far as to admit Capen to having color of title,139 reasserting the invalidity of con- veyances in fee of public lands, but failing to void the transaction.
The Asbestos Case140 essentially presented the same views as those expressed by Judge Redfield in Pownal v. Myers,141 but Judge Moulton was more restrained respecting such points as presumption of acqui- escence, and the possibility of accepting modification of a trust to the extent of modifying the purpose. It was stated earlier142 that the case is of the greatest importance in respect to a study of the lease lands. This is because, as a result of the decision respecting the two acts of 1935 (which had had a limited application), the 1937 legislature passed a similar act which provided for such conveyances of the lease lands, generally.143 Hence, the Asbestos decision can be regarded as a turning point in the Vermont law respecting disposition of the public lands granted in the town charters.
The crux of Judge Moulton's opinion is basically simple: that the new legislative provisions merely served to increase the power, or en- large the grant or gift, beyond the limits previously existing.144 He con- siders the nature of trusts, in respect to these particular grants, and, in that much, differs materially from Judge Redfield's treatment in Pownal v. Myers.145 Judge Moulton explicitly distinguishes private and public trusts :
The petitioner herein takes the position that, since voluntary trusts have been created, without an express power of revocation
138. Ibid.
139. To round out the unsatisfactory terms of the case, the court concluded that, although Capen was in under color of title and constructive possession and Sheldon was without right in the land, the decision was in favor of Sheldon be- cause there had been shown no master and servant relationship between him and Williams, who did the actual cutting.
140. 108 Vt. 79 (1936). See supra, pp. 123-124 for recital of circumstances.
141. 16 Vt. 408 (1844).
142. Supra, p. 122.
143. Laws of Vermont, 1935, pp. 78-79, 265-266; ibid., 1937, p. 89.
144. The significance of this point will be seen better after examination of the various rulings respecting the position of the legislature in relation to the obliga- tion of contract.
145. 16 Vt. 408 (1844).
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or modification, the corpus cannot be changed without the consent of all the parties interested, including the beneficiaries. . . . If this were a case involving a private trust there would be force in this contention. There is, however, no doubt that these lands are held to public charitable uses all the elements that distin- guish a public charitable trust from a private trust are present.146
On this latter point he said that public charity begins where uncertainty in the recipient begins. He holds to the traditional view of the court : that the beneficiaries of the Gospel and school lands held in trust by the town are those present and future inhabitants of the town who join in social worship or avail themselves of educational advantages offered by town schools; and the beneficiaries of the college lands include all per- sons now living or who may be born hereafter who are or who may be entitled to become students at the University. Hence, the benefits of the lands were conferred by the state upon an uncertain and indefinite num- ber of persons.
Since the lands were, before the issuance of the charter of the town, under the control and disposition of the General Assembly, the reserva- tion of the lands was, in effect, a grant or dedication to public uses. This places the General Assembly in the position of founder of the trust, when consent of parties to the trust is necessary for modification of the trust. Hence, the General Assembly had the power to authorize con- veyance in fee simple of public lands held by the town and University in trust for educational and religious purposes, without the consent of the beneficiaries, where the trustees were given discretion to convey the lands, if the conveyance would be advantageous to the beneficiaries and would be without destruction or modification of the purposes of the trust.147 As to the town, the power of the legislature cannot be found in the unrestrained power of the state over the property of municipal corporations held and used for governmental purposes-"the principal is not applicable to lands held in trust for educational or religious pur- poses."148 After an examination of various cases from other states ("for we have none of our own"), he concludes :
146. 108 Vt. 79, 91 (1936).
147. Italics are to emphasize the limitation which he included and which had been rather cavalierly minimized in Pownal v. Myers, 16 Vt. 408 (1844).
148. 108 Vt. 79, 93 (1936). He takes occasion to point out that, although the law elsewhere may prevent municipal corporations from holding as trustee for religious purposes, "our law has been otherwise from the earliest times." Ibid., p. 89. This is another point at which Vermont law has cut its own cloth. In Wil- liams v. North Hero, 46 Vt. 301 (1873), much was made of certain legislation
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. . . an inherent authority appears to lie in the Legislature as a part of its general authority. . . . Instead of interfering preju- dicially with any vested interest or estate which [had been] ac- quired in the premises under the former act, it confirmed and en- larged that already granted, by turning a qualified power of alienation into an absolute one. It was a new and additional gift to the one already made . . . or in other words, a release by the donor to the donee, of a condition annexed to a previous grant.149
With respect to both the town and the University, he stresses that the acts are permissive rather than mandatory, presumably to avoid any difficulties on the score of the Dartmouth College150 and Fletcher v. Peck151 doctrine.
Having established the general proposition that the authority of the legislature is adequate to the purpose of the two acts, he proceeds to consider the particular problem of a modification of the trust without the express consent of the beneficiaries, this being a central point in the petition of the Attorney General :
No judicial support for the proposition that the consent of the beneficiaries of a public charity is requisite to the validity of a sale of the trust property, under legislative authorization with pro- vision that the proceeds shall be held subject to the trust in the place of the property sold, has been called to our attention. The decisions upon which the petitioner relies do not go to this extent what the court was speaking about was not the land but the income from it, which obviously could not be diverted, or part- ly diverted, from the purposes for which the grant was originally made without destroying the trust to the extent of such diversion. The point in issue was not the sale . . . but the applica- tion of the proceeds. . . Where the Legislature authorizes a sale of the property of infants or other persons not sui juris, it does so in its capacity as parens patriae. The same principle ap- plies in the case of a public charity. . As to those persons who may hereafter become entitled to the benefits of the trust, there is a want of capacity to manage and preserve the property,
which made religious affairs a matter for private associations. But the case is out of line. Regularly, the Vermont court has accepted the religious lease lands as a municipal responsibility.
149. 108 Vt. 79, 96 (1936). This quoted remark was directed at his view of the situation in Welch v. Silliman, 2 Hill (N. Y.) 491. He admits that the de- cisions cited involved private trusts, "But the reasoning of the decisions, particularly of the latter, is applicable here." Ibid.
150. 4 Wheaton 518 (1819).
151. 6 Cranch 87 (1810).
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and hence the necessity of devolving this duty upon the sovereign represented by the Legislature.15:
He cites the Dartmouth College ruling to the effect that the potential rights of such students "are, in the aggregate, to be exercised, asserted, and protected by the corporation."153
In treating of the petitioner's allegation that the acts failed to make adequate provision for the future safeguarding of avails of such sales, the opinion leaves the situation fluid and provides the legislature with plenty of elbow-room :
As for the claim that the Legislature has failed properly to provide for safe investment of the funds received from the sales so that they may be kept from depreciation or loss, all that need be said is that this was a matter for the General Assembly to de- cide. . . . It is enough if the General Assembly, acting accord- ing to its judgment, in view of the existing facts, comes fairly to the conclusion that the conversion will be for the benefit of those entitled.154
(It is noticeable, too, that this also provides the court, in the future, with an opportunity to exert its influence. )
A final point in the opinion is important to this study, though it was made in relation to the problem of mineral rights, with which we are not concerned :
If the lands here in question come within the description of 'public land belonging to the people of the State,' these sections [relating to sovereign rights to mines and quarries155] will cease to have any application because, after the sale, the property will be of a private nature and no longer public land.156
This, as is apparent, is of crucial importance because it would apply, as the statement stands, to the whole matter of tax exemption.
While the opinion, of course, dealt directly only with the two acts in question, and those acts were limited in application, the decision must be regarded as affecting the status of all of the lease lands in Vermont. Based on it, the 1937 legislature extended the authority to all of the lands. The question might be raised that a fine legal distinction is pos- sible as to the effect of the opinion on lands in the "Wentworth towns,"
152. 108 Vt. 79, 98-102 (1936).
153. Ibid., p. 102.
154. Ibid., p. 103.
155. P. L., secs. 8208-8211.
156. 108 Vt. 79, 103-104 (1936).
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as distinct from the "Vermont towns," only the latter having been granted by authority of the General Assembly. This is not tenable. The problem of the "Wentworth towns" has been faced by the court in cases not involving lease lands. Bennington v. Park157 is definitive. The Town of Bennington had argued that towns antedating the Revolution ante- dated the State of Vermont and consequently held a reserved sovereignty, on the same line of reasoning by which the states, antedating the na- tional government, held a reserved power under the United States Con- stitution. The opinion of the court, in an ample statement,158 makes it clear that the towns in existence when the Vermont constitution was formed have no reserved sovereignty peculiar to themselves and not en- joyed by all other towns in the state. The opinion very clearly leaves the "Wentworth towns" and "Vermont towns" on the same footing in every respect.
We have seen, in the record respecting durable leases, and those other cases concerning conveyancing of the public lands, that the Ver- mont court has adhered to the proposition that the lands granted in the town charters for public use have been inalienable. The exceptions to this rule stand out by their rarity, the fact that they have lacked influ- ence in later decisions, and that they have involved particular sorts of circumstances. It is fair to assert that the law in Vermont, until the 1935 and 1937 legislation, has maintained the identity of the lease lands as public lands.
New Hampshire Doctrine
It is to be remembered that the practice of reserving a portion of the land chartered as a town, for "public, pious and charitable uses," was introduced into Vermont affairs from New Hampshire. The Went- worth charters west of the Connecticut River, in this respect at least, followed the form of charters for towns east of the river. One would tend to expect that customs would be parallel where the genesis was common and where the two jurisdictions were adjacent geographically and were similar socially. Such is not the case. Vermont proceeded on its own in determining the proper disposition of the public lands. A view of the New Hampshire law highlights the significance of Ver- mont's doctrine.
157. 50 Vt. 178 (1877).
158. Ibid., pp. 202-204.
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Baptist Society in Wilton v. Town of Wilton159 presents an ample statement of the New Hampshire position. It was a case in assumpsit for $300 had and received.
In the 1749 charter of the town there was the following reservation : "one share for the first settled minister, and one for the ministry, and one for the school there forever. . "'160 The share for the ministry, con- sisting of three lots, was taken possession of by the grantees and the profits of it used for hiring preaching. In 1763 the inhabitants and grantees granted the use and income to one Livermore as part com- pensation, and he settled there. In 1765 the town was incorporated. After Livermore ceased to be the minister, the town applied the lots to the use of the ministry until 1803. At that time the lots were sold by the town. The proceeds, $2,500, were set up as a fund and the interest used for procuring public religious instruction. Until 1818 there was only a Congregational religious society in the town. Then a Baptist society was set up and incorporated, and it settled a minister. The members paid about one-eighth of the taxes raised in the town. They demanded their share of the interest of the fund, which the town refused to pay to them.
The opinion of the court is so strong and complete a statement of the law of that state that it is quoted at some length :
It seems always to have been understood in this state, that lands originally reserved in the respective towns for the use of the ministry, were the property of the towns; and lands of this description have always been occupied, and sold, and transferred by the respective towns claiming them as the absolute property of the towns. . . . A general opinion seems to have prevailed in this state, that the lots reserved by the proprietors of the town- ships for the ministry and for schools, were intended to aid the first inhabitants in educating their children, and in procuring re- ligious instruction, and thus to induce individuals to become in- habitants of the town. That those lots were intended as an absolute gift to the inhabitants of the towns, to be applied to those pur- poses at their discretion ; and that, in fact, they were not intended to be vested in the towns in trust, to apply the rents and profits to those objects ; but were, in truth, given as a temporary aid to the first inhabitants. It is certain that towns have always claimed and exercised the right of selling and conveying the lots reserved for the ministry and for schools, at their pleasure, and we are not aware that this right has ever been called in question. . . . No
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