USA > Vermont > The Vermont lease lands > Part 16
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159. 2 N. H. 508 (1822).
160. Ibid.
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doubt was ever entertained that the first settled minister became the absolute owner of his share in fee simple, free from all trusts, and it was not very unnatural that towns should suppose that they were the owners of the other two shares in the same manner. No provision was made by law to preserve any trust sup- posed to exist in these reservations. . Whether these reser- vations might not have been considered originally as trusts, which towns were bound to apply specifically to their intended objects, it is unnecessary now to inquire. It is enough that the inhabitants of our towns have generally viewed them in a different light, and have acted accordingly, and that they cannot now be viewed as trusts, without great public inconvenience. . . . It was not in- tended that the towns should hold the reservations in trust, to ap- ply them specifically to those purposes, but they were absolute gifts, intended merely to augment the ability of the inhabitants to procure instruction for themselves and their children. . . . The land sold belonged to the Town of Wilton, and the money arising from the sale, is the property of the town, and not the property of individuals. . . . And we are of the opinion that if this were a trust fund, the law would be the same. The reservation was gen- eral, 'for the ministry,' leaving the management of the trust to the discretion of the town.161
Not only does this statement stand in direct contrast to Vermont law respecting alienation ; it differs elsewise, as well. It is to be noted that the Wilton charter reservation included the word "forever," which the New Hampshire court passed over. The Vermont court, on the other hand, has made much of the presence of the word in some of the charters of the state. It will be seen later that the two courts view trust condi- tions differently,162 and a pronounced difference of view exists as to the discretionary authority of the towns, as against responsibility to the state-the donor and founder of the trust, in the Vermont view. As the New Hampshire court said, it was there to be considered that the grants were absolute gifts to the towns. The Vermont court has refused to think of the lands thus. The New Hampshire court accepted the idea that the grants were in aid of the first inhabitants163 ; we have seen that the Vermont court has thought of the beneficiaries as both present and future inhabitants.
161. Ibid., pp. 509-512.
162. In fact, even in the Asbestos opinion, 108 Vt. 79 (1936), Judge Moulton was careful to insist on the inviolability of the trust created by the public grants. Only Judge Redfield, in Pownal v. Myers, 16 Vt. 408 (1844), took a position aligned with the New Hampshire doctrine.
163. See also quotation from this New Hampshire case, supra, p. 18, n. 39.
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Curiously, Judge Moulton, in his dissent in the Ward Case,164 164 did not use the Wilton case in his attempt to draw a moral from the law of the "sister" state. He relied on Piper v. Meredith and the following statement therefrom: "In reality the plaintiff's estate is not a leasehold at all, for it is well settled law that a perpetual lease upon condition con- veys to the lessee a determinable or base fee. . ."165 It is to be pre- sumed that he did so because the latter case spoke specifically on per- petual leases. For use in Vermont, it is not a strong citation. The land in question in the Piper case was not an original grant of public land in the town charter but had been conveyed to the town by Piper's predeces- sor. Actually, the case points up the contrast in the ruling law in the two states-New Hampshire fails to distinguish perpetual leases of public lands.166
In fact, the Vermont court recognized the difference in the law of the two states in Williams v. Goddard :
A case is also cited for the defendent . . . showing that in that state [New Hampshire] the rights reserved by charter for the support of the ministry, and for the support of schools, are regarded simply as appropriations in aid of the respective towns, and subject to their unqualified control and disposition. It was therefore held that those lands might be sold and converted into other funds at the discretion of the town. This is directly in con- flict with the doctrine supported and enforced in this state. The use of such reservations are considered as unalterably fixed by the charter, though subject to legislative regulation as to the manner of their enjoyment.167
The difference was observed, too, by Judge Story in the opinion in Town of Pawlet v. Daniel Clark, et al.168 in which he recognized the New Hampshire law, as described a few years later in the Wilton case.169
Influence of Common Law
The doctrine in Vermont is sufficiently peculiar compared to the general law of realty so that it is useful to observe the basis from which it could have been developed. Accordingly, a few cases, of various sorts,
164. 104 Vt. 239 (1932).
165. 83 N. H. 107, 110 (1927).
166. The Piper case, however, is useful in considering the problem of taxation.
167. 8 Vt. 492, 500 (1836). See supra, p. 127 and infra, p. 148 for other exami- nations of this case.
168. 9 Cranch 292 (1815).
169. 2 N. H. 508 (1822).
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have been examined by which to determine the extent of influence of the common law on Vermont jurists.170 Of these, only the Ward Case deals with lease lands. In lease land cases, the court has not been explicit on the Vermont relationship to the common law ; it has simply asserted the developed Vermont doctrine, as assumed.
To begin with, the Vermont legislature adopted the common law, with important reservations, by statute in 1782171 and has, from time to time, renewed this declaration, without changes of consequence. The court can be seen to have taken a pragmatic attitude toward the com- mon law itself, as well as toward the legislation referring to it. A re- view of the cases collected does not give a thoroughly consistent record. There are instances in which the court has written as though the com- mon law were of unmodified influence. Such are found in Whiting v. Burlington172 and State v. Sylvester.173 The former concerned the right of the city to authorize a bond issue; the latter was a criminal case al- leging malicious injury of a dog. In the former, the court ruled that the common law adopted in Vermont is in all courts a rule of decision, which means that the common law is the law of the state and is to be adminis- tered as such by the courts, and except as modified or repealed by statute, common law rules and principles determine the rights of, and prescribe rules of conduct for, all persons, which rules are to be applied by the courts in all cases to which they are applicable. And in the latter case, the court held that the rules of the common law are not to be changed by doubtful implication, nor overturned except by clear and unambigu- ous language. The court cited Lorenz v. Campbell174 as having used the same language.
However, such statements by the court are less frequent than those
170. Gorham v. Daniels, 23 Vt. 600 (1851) ; Le Barron v. Le Barron, 35 Vt. 365 (1862) ; Clement v. Graham, 78 Vt. 290 (1905) ; Swanton v. Highgate, 81 Vt. 152 (1908) ; Johnson v. Barden, 86 Vt. 19 (1912) ; In re Heaton's Estate, 89 Vt. 550 (1915) ; University of Vermont v. Ward, 104 Vt. 239 (1932) ; E. B. and A. C. Whiting v. City of Burlington, 106 Vt. 446 (1934) ; State v. Sylvester, 112 Vt. 202 (1941).
171. Slade, State Papers, p. 450. An earlier act, passed February, 1779 (Slade, State Papers, p. 288) is interesting in that it adopted the common law . as it is generally practiced and understood in the New-England States " rather than ". . . so much of the common law of England, as is not repugnant to the con- stitution or to any act of the legislature of this State . ." as it was stated in the 1782 act.
172. 106 Vt. 446 (1934). 173. 112 Vt. 202 (1941). 174. 110 Vt. 200 (1939).
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which provide much lee-way in the application of the common law. Customarily, one finds the court more than reluctant to be bound closely by the ancient rulings.
The orientation of Vermont judicial thinking respecting use of the common law was established by Nathaniel Chipman. The volume of reports which he published contained, besides, two interpretative essays written by him: one on the statute adopting the common law ; the other on the then statutory law on conveyances. For the most part, the court has continued in the path marked by him. It jibes with the general atti- tude of the court remarked earlier.175 The essence of the court's posi- tion is this: First, that the common law shall not be applicable where it is repugnant to the constitution or statutory laws. There is nothing un- usual, of course, in this. But, secondly, the court has held to the posi- tion that the common law shall not prevail where it is inconsistent with "the local situation and circumstances." It is by this attitude that the Vermont jurists have contrived the legalistic elbow-room needed for accommodating such positions as those developed in respect to durable leases of public lands and municipalities holding as trustee for religious purposes. One finds this flexibility insisted upon and reiterated in case after case. Even in the Whiting v. Burlington176 opinion, the court at another point in its exposition included the critical proviso. And it is noticeable that the court's position is most evident in cases concerning real property (due, possibly, to Nathaniel Chipman's influence, as repre- sented by his specific interest in conveyances).
The relevant part of the Gorham v. Daniels opinion has been quoted earlier177 but merits reference here because of the explicit stress on the needs of a frontier community. Clement v. Graham is of particular interest because the opinion held that the statute of 1782, adopting the common law of England, was largely declaratory of the common law as here practiced and understood.178 Village of Swanton v. Town of Highgate had to do with a matter of taxation of a municipally operated utility. The opinion does not speak directly respecting the common law, but does contain the following comment which clearly indicates that the Vermont jurists have had in mind the concept of a local "common law" development :
175. Supra, p. 100.
176. 106 Vt. 446 (1934).
177. 23 Vt. 600 (1851). Supra, p. 101, n. 3.
178. 78 Vt. 290 (1905).
-
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. . . and courts must have regard to [the] course and usage of government, and to the objects for which taxes have been levied by a long course of legislation, and what objects and purposes have been considered necessary to the support, and for the proper use, of the government, whether state or municipal; and what- ever lawfully pertains to this, and is sanctioned by time and the acquiescence of the people, may well be held to belong to the public use, and proper for the maintenance of good government. 179
The most complete statement of the Vermont position was found in Johnson v. Barden, and much of the relevant portions of the opinion are quoted at length in order to demonstrate how forthrightly the court has put its views :
Nathaniel Chipman considered that many of the rules and maxims resulting from the system of feudal tenures were 'full of absurdity' and were not operative here; that the English lawyers and judges had been 'habituated to pursue the rights of real property through a thousand intricate ambages and circuitous labyrinths ;' and that so far as transfers of real estate are con- cerned the rules of the common law, applicable here, are few and
simple. . . . Pursuant to these views, the intention of the parties has prevailed in the State in the construction of deeds unless such intention was contrary to some positive law, and no rule of con- struction, unless statutory in character, has been recognized as positive law . . . we have no case in which a mere rule of con- struction has been allowed to override the intention. . . . It seems to have been recognized from the first that the division of a deed into such parts as the premises, the habendum and the tenen- dum was pretty much a matter of capitalization and punctuation, and our Court was never greatly impressed with the idea that it is of vital importance. . In refusing to recognize the rule in Shelley's Case as positive law in this State, our Court took a step which emphatically demonstrated that mere technicalities have here a very limited application. . . The doctrine in this State was from the first applied so deliberately and with such conscious departure from technicalities that it is unprofitable to consider just how fully it is recognized in other States in consequence either of judicial decisions or of legislation.180
In re Heaton's Estate181 enunciated the same attitude in relation to the construction of wills. English decisions before the date of separa-
179. 81 Vt. 152, 157 (1908). Italics mine.
180. 86 Vt. 19, 24-27, 30 (1912).
181. 89 Vt. 550 (1915).
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tion, as well as those after, are to be taken merely as declarative of the common law, and not as binding precedents to be followed. And it will be recalled that the Ward Case opinion was equally outspoken in the matter of interpreting the nature of durable leases.182 The Ward Case, it should be remarked, reasserted the proviso by which the effectiveness of the common law, in Vermont, is to be limited by the local situation and circumstances.
Attitude Respecting Construction of Instruments
This whole position was sufficiently beguiling that it seemed advisable to determine to what extent it was actually practiced by the court. Hence, a considerable sampling was made of the cases of judicial con- struction of instruments-deeds, wills, charters, etc.183 As with the cases just above, the majority of those read were not concerned with lease lands, but served to demonstrate the general position of the court, in comparison with its attitudes toward the public grants.
To some extent, the cases cited are selected at random; to some de- gree they appear as a by-product of the procedure described earlier184 by which the effort was made to find the lease land cases. The only systematic aspect of their selection was an effort to cover a sufficient time spread to indicate whether a given position were free of particular- istic influences, and whether a given position appears as a steady, con- tinuing doctrine. The emphasis is on cases dealing with land deeds, as that offers the closest comparison to the conveyancing of the lease lands. Construction of statutes deserved some care inasmuch as the lease land cases have frequently depended on that judicial activity. A few cases concerning charters are presented. A few cases involving wills are in- cluded, which indicate that the attitudes of the Vermont court are effec- tive beyond Nathaniel Chipman's particular interest in conveyancing. Much of what the court says is to be found in the words of other courts, especially as to the significance of the intention of parties. The Vermont court stands out, however, for the steadfastness with which it does what it says and for the forthrightness of its words.
The numerous cases cited below,185 ranging over more than a cen-
182. 104 Vt. 239 (1932). Supra, p. 120.
183. This was the major point of interest in extending the law research in order to compare the majority and dissenting opinions in the Ward Case, 104 Vt. 239 (1932). Supra, p. 100, n. 2.
184. Supra, p. 104.
185. Strong v. Garfield, 10 Vt. 497 (1838) ; Adams v. Dunklee, 19 Vt. 382
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tury of adjudication, are consistent with the pragmatic flexibility of thinking expressed above with respect to the common law. They deal with a variety of issues: the significance of the habendum in a deed; the effectiveness of an un-sealed deed ; the influence of the word "heirs"; agreements to lease ; boundary determination, as to lot lines and quantity of land; easements. The tenor of them is harmonious: that people are not to be frustrated by adherence to legal technicalities. Representative statements are recited from a few of the opinions to provide a substan- tial demonstration of the character of the Vermont court.
Adams v. Dunklee held : "It may be remarked, that the rules for the structure and exposition of deeds of conveyance are emphatically of the artificial and technical class. "186 In Gilkey v. Shepard the court said : "Deeds, like other instruments, should be so construed as to give effect and carry out the intention of the parties."187
As to chancery, Quinn v. Valiquette188 held that a bill in equity to remove a cloud upon the title to real estate is addressed to the discretion of the court, which is to be governed by general rules and principles as far as it can be, but which, at the same time, grants or withholds relief according to the circumstances of the particular case when those rules and principles furnish no certain measure of justice between the parties.
Bennett v. Bennett illustrates the court's attitude toward the struc- ture of an instrument : "The habendum in the deed, when repugnant to the grant, yields to the manifest intent and terms of the grant."189 And in Cutler Co. v. Barber: "The intention of the parties must govern, if
(1847) ; Town of Colchester v. Culver, et al., 29 Vt. 111 (1856) ; Smith v. Hast- ings, 29 Vt. 240 (1856) ; Congregational Society, Halifax v. Stark, 34 Vt. 243 (1861) ; Flagg v. Eames, 40 Vt. 16 (1867) ; Thompson v. Carl, 51 Vt. 408 (1878) ; Gilkey v. Shepard, 51 Vt. 546 (1879) ; Chapman v. Longworth, 71 Vt. 228 (1898) ; Quinn v. Valiquette, 80 Vt. 434 (1907) ; Huntley v. Houghton, 85 Vt. 200 (1911) ; De Goosh v. Baldwin and Russ, 85 Vt. 312 (1912) ; Johnson v. Barden, 86 Vt. 19 (1912) ; J. H. Silsby & Co. v. Kinsley, 89 Vt. 263 (1915) ; Bennett v. Bennett, 93 Vt. 316 (1919) ; Cutler Co. v. Barber, 93 Vt. 468 (1919) ; Clarke v. Mylkes, 95 Vt. 460 (1921) ; Bragg v. Newton, 98 Vt. 102 (1924) ; City of Burlington v. Mayor of City of Burlington, 98 Vt. 388 (1925) ; Vermont Kaolin Corp. v. Lyons, 101 Vt. 367 (1928) ; Addison County v. Blackmer, 101 Vt. 384 (1928) ; University of Vermont v. Ward, 104 Vt. 239 (1932) ; Kennedy v. Rutter, 110 Vt. 332 (1939) ; Parrow v. Proulx, 111 Vt. 274 (1940) ; Hopkins the Florist v. Fleming, 112 Vt. 389 (1942) ; Nelson v. Bacon, 113 Vt. 161 (1943).
186. 19 Vt. 382, 387 (1847).
187. 51 Vt. 546, 550 (1879). 188. 80 Vt. 434 (1907). 189. 93 Vt. 316, 318 (1919).
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it can be ascertained from the language used in the deed."190 And, again, in Clarke v. Mylkes: "The form is not decisive of its character, and the mere use of technical words or phrases which have a definite significa- tion cannot be allowed to defeat a contrary intention. ">191 Bragg v. Newton further illuminates this position of the court: various rules of construction are called to our attention. But it is to be remem- bered that the rules are adopted for the sole purpose of removing doubts and obscurities so as to get at the meaning intended. "192
Another, oft reiterated view is found in City of Burlington v. Mayor of City of Burlington : "And in construing the language of a deed, the situation of the parties, the surrounding circumstances, the subject- matter of the grant, and the object and purpose sought to be accom- plished by it, may be considered."193 Likewise in Addison County v. Blackmer : "The situation and character of the property, for the bene- fit of which the grant was made, and other circumstances then [1816] existing, are for consideration."194 And Bragg v. Newton195 also em- phasized the view that when the meaning of an instrument is doubtful, resort may be had to the practical construction adopted by the parties.
The same philosophy was displayed in those few cases on wills which were inspected.196 The last case cited below presents amply the position :
The one rule of construction to which all others are servient and assistant is that the meaning intended by the testator is to be ascertained and given effect, in so far as legally possible. To deter- mine such meaning, the court is to take the instrument by its four corners, consider it in all its parts, and give effect to its language read in the light of the relation of the parties concerned and the circumstances attending its execution.197
With respect to construing legislative statutes, the court has been at least as broad-minded, if not more so.198 In the Caledonia County Gram-
190. 93 Vt. 468, 473 (1919).
191. 95 Vt. 460, 463 (1921).
192. 98 Vt. 102, 104-105 (1924).
193. 98 Vt. 388, 397 (1925).
194. 101 Vt. 384, 388 (1928).
195. 98 Vt. 102 (1924).
196. In re Willard Fuller's Estate, 71 Vt. 73 (1898) ; In re Heaton's Estate, 89 Vt. 550 (1915) ; In re Robinson's Estate, 90 Vt. 328 (1916) ; Huestis v. Manley, 110 Vt. 413 (1939).
197. 110 Vt. 413, 420 (1939).
198. See Edwards v. Roys, 18 Vt. 473 (1846) ; Caledonia County Grammar School v. Kent, 86 Vt. 151 (1912) ; Scott v. St. Johnsbury Academy, 86 Vt. 172
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mar School199 case it was held that a thing which is within the intention of the makers of a statute, although not within the letter, is as much within the statute as if it were within the letter, and where necessary to give effect to the evident intent of the legislature, the court in constru- ing a statute must disregard even the plain letter of the act. And in the Ward Case200 it was held that the guide to the meaning of a statute is the evil it was designed to remedy, and for this the court may properly look at the contemporaneous situation. In Town of Brandon v. Harvey, Judge Moulton, somewhat inconsistently with his dissent in the Ward Case, wrote :
The fundamental rule in statutory construction is that the in- tention of the Legislature is to be ascertained and given effect. If the language employed leaves the intent in doubt, ex- trinsic matters, such as history of the enactment, etc., may be called in aid.201
The court was even more emphatic in First National Bank of Boston v. Harvey :
If it can fairly be done, a statute must be so construed as to accomplish the purpose for which it is intended, and the intention and meaning of the Legislature are to be ascertained and given effect, not from the letter of the law, which is not in all cases a safe guide, but from an examination of the whole and every part of the act, the subject matter, the effects and consequences, and the reason and spirit of the law, although the intention and mean- ing thus ascertained conflict with the literal sense of the words.202
A pertinent example of the court's operations is to be found in the treatment accorded a series of acts which had as their purpose the in- hibiting of land speculation. The first statute "to prevent fraudulent speculations," etc., was passed in 1807. It provided :
(1912) ; University of Vermont v. Ward, 104 Vt. 239 (1932) ; Town of Brandon v. Harvey, 105 Vt. 435 (1933) ; First National Bank of Boston v. Harvey, 111 Vt. 281 (1940) ; In re George S. Walker Estate, 112 Vt. 148 (1941) ; Snyder v. Central Vermont Railway, Inc., 112 Vt. 190 (1941) ; In re Swanton Market Area, 112 Vt. 285 (1942) ; Notte v. Rutland Railroad Co., 112 Vt. 305 (1942).
199. 86 Vt. 151 (1912).
200. 104 Vt. 239 (1932).
201. 105 Vt. 435, 439-440 (1933).
202. 111 Vt. 281, 290 (1940). This from a court, the personnel of which are dependent on the legislature for their judicial office! In Vermont the members of the Supreme Court are elected by the Senate and House of Representatives, in joint assembly, biennially.
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that all bargains, sales, deeds, leases and other conveyances of lands, etc., where any person shall be in actual possession of said lands, etc., claiming the same by possession, or in any other way, adverse to the lessor, vendor, or grantor, shall be null and void, and of no effect in law, to convey said lands. 203
The court construed this as being merely a legislative declaration of an established principle of the common law and intending no new limitation. Hence, rulings were to the effect that such conveyances were good be- tween the parties to them and that this allowed a recovery by the grantee, in the name of the grantor, which should inure to the benefit of the grantee. Following such rulings, the legislature revised the act in 1839, so that it declared such conveyances absolutely void and of no effect. Yet, in University of Vermont v. Joslyn the court took cognizance of this change and said :
, yet I do not apprehend it was the object of the legislature, by the introduction of the word, 'absolutely' into the Revised Statutes, to change the operation of the common law principle, or the law as declared in the statute of 1807. . . The decisions, then, which have been had at the common law, are applicable un- der our statute; which I regard only in affirmance of the common law.204
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