USA > Vermont > The Vermont lease lands > Part 17
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This preoccupation with the practical consequences of adjudication runs strongly through all the cases cited during this examination, as well as others noted during the research. Reconciliation of form and phrase with intent is demonstrated fully in Hull v. Fuller :
It is a general rule that where the intent of the parties is satis- factorily ascertained, and their contract can be carried into effect, agreeably to that intention, incongruities and inconsistencies are to be reconciled ; and such parts, as through misapprehension tend to defeat that intent, are to be discarded.205
The one field of construction in which the court was not found to be consistent was in respect to charters. For the most part, there appears to have been a tendency to construe charters very strictly. This is noted in respect to cases involving lease lands and is true both for town charters and corporation charters, such as those granted to the grammar schools. Only two instances of broad construction were encountered. One was
203. Compiled Statutes (1850), p. 171. It was finally repealed in 1884.
204. 21 Vt. 52, 61 (1848).
205. 7 Vt. 100, 105 (1835).
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discussed in Chapter III.206 The other was Williams v. North Hero207 which had to do with disposition of a minister lot. As it needs com- parison with certain prior adjudication, discussion of it will be deferred for proper chronological arrangement.
Town of Charleston v. Allen was an action of ejectment respecting a minister lot. For the present, it is enough to observe the court's atti- tude respecting the charter :
it is not in the power of the court, by any known rules of interpretation, to correct the procedure, since the spirit and read- ing of the grants manifestly exclude these missionary and aposto- lic portions of the Christian ministry from the benefits of these public gratuities, to the infant settlements.208
The court took notice of the various phraseology of the grants in dif- ferent town charters, and accepted the differences, as read : "It is a Ver- mont charter, and differs from the New-Hampshire grants, and also from some of the Vermont charters."209
Lord v. Bigelow210 is not a lease land case. It concerned the Town of Wheelock and turned on the question of whether Lord was successor in office of Dr. Wheelock as president of Moor's Charity School, in rela- tion to the grant in the town charter, and the wording thereof. At the time of the grant of the town, John Wheelock was head of both Dart- mouth College and Moor's Charity School, and the grant ran to the benefit of both institutions. Some indication of the Vermont court's strict attitude toward charter phraseology is found in the fact that the court caused the case to revolve around the following wording in the town charter :
whereas the Honble JOHN WHEELOCK . . . for & in behalf of the Honorable Trustees of said College; & in behalf of said School, has applied . . . for a ... Tract of unappro- priated Lands within this State, for himself as president of said College and School & his successors in office & for the Trustees of said College & their Successors. . .. We ... grant the tract . . . unto him the said John Wheelock as president of sd School & to the Trustees of sd College . the said Wheelock
206. Supra, p. 75, n. 34. Pownal v. Myers, 16 Vt. 408 (1844), might be re- garded as a further possible exception.
207. 46 Vt. 301 (1873).
208. 6 Vt. 633, 641 (1834).
209. Ibid., p. 639.
210. 8 Vt. 445 (1836).
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as President and for his Successors in Office to have and to Hold the one moiety of said premises as above Described solely and exclusively for the use & benefit of said School forever and the said Trustees and their Successors in Office to Have and to Hold the other Moity solely and exclusively for the use & Benifit of Dartmouth College forever with all the privilidges & Appur- tenances thereunto belonging and Appertaining which are also hereby Granted to the President and Trustees. 211
Williams v. Goddard has been considered in respect to conveyanc- ing.212 It will be recalled that the court held that the particular charter phrase precluded a fee going to any minister :
The whole question therefore must turn on the manner in which this right is granted or reserved in the Town Charter.
. There is a diversity in these grants and reservations. In . some charters the right is simply reserved for the first settled minister in the town. In others, it is reserved for the first settled minister, to be disposed of for that purpose as the inhabitants of the town shall direct. Thus far the land is evidently destined, upon a legal and sufficient settlement of a minister, to vest ab- solutely in such minister as private property. The terms of the charter in this instance are different still. This reserva- tion does not purport to be for the settlement of one minister only, but of a minister and ministers, which would include a suc- cession of settled ministers. And that this succession was in- tended is quite evident, from the terms of perpetuity . . . . in short, the language of the charter in reference to this right seems to forbid the supposition, that the estate was to become absolute in the minister settled.218
Caledonia County Grammar School v. Burt,214 which arose as a re- sult of a legislative attempt to redistribute certain of the grammar school lands between schools within the county, is an instance in which the court was strict in respect to both the charter of the town and the charter of the corporation of the school. In the case of the town charter the court drew a fine distinction between the grant of the college and grammar school rights, on the one hand, and the grant of the other three public rights, on the other hand-although the word "forever" stands so as to apply to all five rights, the phrasing was held to be such
211. Vermont State Papers, II, 215, 218.
212. 8 Vt. 492 (1836). Supra, p. 127.
213. Ibid., pp. 498-499.
214. 11 Vt. 632 (1839).
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that the word "inalienably" affected only the first two rights. As to the school charter :
The legislature annexed to the [Peacham school] grant the express provision that a future legislature might distribute the avails of all such lands among the several counties; thereby clearly showing that they understood that, by the grant, they parted with all control of the lands, except what they expressly reserved.215
Thus, although the lands might at some future time be redistributed among the several counties, to the loss of the Peacham school, they could not be so redistributed to other grammar schools within the county. This becomes the more significant when it is recalled that the original concept of the grammar schools had been in terms of one to a county and that it was only later that the development of the state led to ex- pansion of educational facilities so as to call for more than one sec- ondary school per county. In Corinth v. Newbury the court said: "The title to land in our townships, is derived entirely from the charters, which must determine the geographical limits for that purpose ; and they cannot be extended or contracted, even by legislation."216
The two cases of Montpelier v. East Montpelier217 carried the court into some difficulties, as a result of this policy of strict construction of charters. The City of Montpelier was incorporated by act of 1848218; the character of that act, coupled with the wording of the original char- ter of the old town of Montpelier created the difficulty :
and we have no doubt, the effect of the act of 1848, divid- ing the town of Montpelier, was to abolish the old municipality of Montpelier, and to create two new and distinct municipalities out of the same territory, included in the old municipality.
From the peculiar and explicit language of the act, it is clear. If, by the act, the town had been simply divided, creating East Montpelier a new municipality out of a part of the territory included in the old town of Montpelier, the old municipality of Montpelier, might, by implication, have continued to exist with a curtailed territory. And this I think, has been the usual mode that has been adopted in the division of towns.219
215. Ibid., p. 640.
216. 13 Vt. 496, 500 (1841).
217. 27 Vt. 704 (1854) ; S. C., 29 Vt. 12 (1856).
218. Laws of Vermont, 1845-1848, 1848, pp. 5-7.
219. 27 Vt. 704, 707 (1854).
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The original town charter of 1781 had placed the rights of public land "under the charge, direction and disposal of the inhabitants of said township forever."220 The court held that :
The individual inhabitants of the township, as 'incorporated in 1781, may be regarded as the beneficiaries, or cestui que trusts. All the right which the old municipality of Montpelier could have had to these funds was as trustees. . There is nothing in the case to show any consent of the inhabitants of the old township to a division of these trust funds, between the two new corpora- tions. 221
Furthermore :
The effect of the act of 1848, of our legislature, being to abol- ish the trustee of these funds, created by the charter of 1781, and the act of 1848 being inoperative, to create a valid division of the funds between the two new towns, it must follow that this action cannot be sustained.222
On the basis of this reasoning, the court voided the decision of the trial court which had awarded the avails of the lands between the two towns on the basis of their respective 1848 grand lists and remanded the case. One can, perhaps, feel some sympathy for the court when it remarked : "This case has been before the court some length of time, and it is one with which the court have had some difficulty. "223
Two years later, the court was again confronted with the same problem, this time as a chancery action. The previous views were ad- hered to. It was reiterated that the cestui que trust was the inhabitants of the town, and the town in its corporate capacity was trustee. It re- peated, too, the established position that the legislative control over municipal corporations did not extend to control of property in trust for other than corporate and municipal use :
the beneficial interests and rights of the inhabitants of Montpelier, as it was originally chartered, remain unaffected, and as perfect as if no division had been made but there is no trustee or person in whom is vested the right to collect and receive the avails of that property.224
220. Vermont State Papers, II, 140, 169.
221. 27 Vt. 704, 707-710 (1854).
222. Ibid., p. 712.
223. Ibid., p. 706.
224. 29 Vt. 12, 20-21 (1856).
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The solution of the problem was found by an order for the appoint- ment, by the probate court, of a new trustee to administer the trust ac- cording to the original charter.
The case of Victory v. Wells225 is peculiar in some respects. Princi- pally, it is one of the rare instances in which the court permitted aliena- tion of public lands-this time by presumption, based on adverse pos- session. More than this, however, the opinion is involved in its reason- ing, and circles about somewhat. One even is led to speculate that the sympathy of the court was with keeping the two old ladies, defendants, in their homes. Another point of interest is that the opinion is unique in making a significant distinction between "grants" and "reservations." Customarily, the court has had no concern with this point, in respect to the lease lands : various terms-"grant," "reservation," "sequestration" -have been used interchangeably.226 Indeed, it is really upon this dis- tinction that the court's decision rests.
From one viewpoint, it could be urged that this case is one in which the court was loose-construction minded. In the charter of the Town of Victory, granted by the state in 1781, one share or right was specified "to be and remain for the purpose of settlement of a minister and min- isters of the gospel in said township forever," and this minister's right, with two others named, were:
with their improvements, rights, rents [and] profits . .. [to] remain unalienably appropriated for the uses and purposes for which they were assigned ; and be under the charge, direction and disposal of the inhabitants of said township forever."227
Yet the court managed to reason itself away from this flat term of per- petuity in justifying the presumption of another grant.
In the writer's view, nevertheless, the case falls within the strict- construction classification, both because of the critical distinction made respecting "grants" and "reservations," and, more particularly, because the court in its argument essentially relied on the same view as that found in the Montpelier cases228 respecting the trusteeship characteris- tics of the public grants, plus an emphasis on the use, or purpose, aspect of the particular right involved. The town had not been organized as late as 1842, and so the court held that there could have been no trustee.
225. 39 Vt. 488 (1866).
226. See Caledonia County Grammar School v. Burt, 11 Vt. 632 (1839).
227. Vermont State Papers, II, 198.
228. 27 Vt. 704 (1854) ; 29 Vt. 12 (1856).
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(Defendants had purchased the lot from a former occupant in 1825.) Moreover, there had never been at any time a settled minister in the town, and so, the court held, the land had never been encumbered, as to the original reservation, by the existence of a cestui que use. As to the interest of the inhabitants as cestui que trust:
It is also plain, that until a minister should be settled, the in- habitants of the town were to have no beneficial right or interest in the land, nor to derive any resulting benefit from it ; and after the settlement of a minister, it was not to be pecuniary in its char- acter, but social and public, as resulting from the religious and moral influence exerted by the gospel ministry in the town.229
With respect to the presumption of another grant :
As until organized, the town, in the character of trustee, had not any 'charge, direction or disposal' of the minister right, and had no interest in it, except as it constituted an inducement for the settlement of, and a means of supporting a minister, and as no minister has ever been settled in the town, we think it was com- petent for the State to assume the control and disposal of such right reserved in the charter, and that the Legislature-the grant- ing power of the State-had full power and right to grant the lot thus reserved to any person or purpose it might deem fit. [It will be seen later that this is rather contrary to the customary at- titude respecting the subsequent power of the legislature.] . . for the lot in question had not been granted by the charter, but was reserved to a use that has never been executed for the want of a cestui que use, and of which, for many years, there was no party in being designated by the charter competent and authorized to hold the estate till such cestui que use should have come into existence.230
The Williams v. North Hero case231 was also action of ejectment, but this time it was a problem of two ministers being involved. The case, as was said, is regarded as one of those in which the court was loose in its treatment of charter provisions. From the record in Shepard's Vermont Citations, it has not been used by the court since then, and rightly so in the opinion of the writer. It will be looked at carefully, as it is felt to be a rather poor judicial effort. Since it is not in line with the usual prac- tice of the court in interpreting charters, its characteristics should ap- pear clearly. The important aspect of this case is the decision respecting
229. 39 Vt. 488, 495 (1866).
230. Ibid., pp. 495-497.
231. 46 Vt. 301 (1873). Supra, p. 147.
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the alienation from the town of the right and the settlement on the min- ister in fee simple, together with its view respecting participation by the town.
This controversy hinges, mainly, on the closing expression in the provision of the grant, by which this and five other rights are reserved and appropriated to the purposes, named, viz .: 'Which said six rights shall, together with their improvements, rights, rents, profits, dues and interests, remain unalienably appropriated for the uses and purposes for which they are respectively as- signed, and be under the charge, direction, and disposal of the inhabitants of said island forever.' . . . In order to determine the meaning and effect to be given to the charter in this respect, it is proper to recur to the ideas, law, and usages, prevalent at the time the charter was granted. There was then [1799] no statute law on the subject in this state.232
In the view of the present writer, there are two serious faults with the opinion. The first is that Judge Barrett is seen to have misused by partial quotation, Judge Royce's opinion in Williams v. Goddard.233
So far as any trust might seem to have been created in the in- habitants of the town, or island, in reference to the right of the first settled minister, it must be held to have been in subordina- tion to the purpose of the appropriation, and to the rights of the person entitled to the land appropriated. In the expression 'and be under the charge, direction, and disposal of the inhabitants of said island forever,' it could not have been intended that the word forever should be operative to defeat the personal right of the party in whom, when he should answer the call as being the first settled minister, the grant was to become vested and accomplished in absolute right in fee. And this leads us to refer to and adopt the language of Judge Royce in Williams v. Goddard, supra: 'There is a diversity in these grants or reservations. In some charters the right is simply reserved for the first settled minister in the town. In others it is reserved for the first settled minister, to be disposed of for that purpose, as the inhabitants of the town shall direct. Thus far the land is evidently destined, upon a legal and sufficient settlement of a minister, to vest absolutely in such minister as private property.' . . . It is proper here to add, that in the charters granted by the state government, there is no uniformity in this respect.234
Here follows a lengthy description of this condition, and the assump-
232. Ibid., pp. 314-315.
233. 8 Vt. 492 (1836). Supra, p. 148.
234. 46 Vt. 301, 318-319 (1873).
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tion that this was due to carelessness in administration and a belief that the basic scheme would be the same in all cases. It is unfortunate that Judge Barrett felt impelled to cite and quote Judge Royce, from the opinion in Williams v. Goddard, as he did, because the use of the quota- tion creates a false impression in the mind of the reader of the real views of Judge Royce. Earlier in the latter's opinion, he states: "The whole question must therefore turn on the manner in which this right is granted or reserved in the Town Charter."235 To continue his words from where Judge Barrett left off, Judge Royce said :
The terms of the charter in this instance are different still. The right in question is 'to be and remain for the purpose of set- tlement of a minister and ministers of the gospel in said town forever.' And it is provided that this right, as likewise those re- served for the support of common schools, and of social worship, 'together with their improvements, rights, rents, profits, dues and interests, shall remain unalienably appropriated to the uses and purposes for which they are respectively assigned, and to be under the charge, direction, and disposal of the inhabitants of said town- ship forever.' . And that this succession [of ministers] was intended is quite evident, from the terms of perpetuity repeatedly applied to the use, from the perpetual charge and control con- ferred upon the town, and from the restraint of alienation which is stamped upon the property. The terms employed to direct and secure the application of this property to the purposes expressed, are applied with the like view to two other rights ; and these were never understood to be temporary reservations, or capable of be- ing diverted from the objects designated. In short, the language of the charter in reference to this right seems to forbid the sup- position, that the estate was to become absolute in the minister settled.236
Judge Barrett's partial quotation and subsequent use of it is doubly unfortunate since the two cases are so closely parallel in circumstances. In each instance a minister was attempting to acquire title in fee to the first settled minister's lot. And in each case the town charter happens to be one of those including the provisos "forever" and "unalienably." The only material distinction is that in the Goddard case the right was reserved for a"minister and ministers"; whereas, in the North Hero case it simply referred to the first settled minister. But this hardly affects the basic position taken by Judge Royce to the effect that the terms of the charter must govern in each instance, inasmuch as the charters vary
235. 8 Vt. 492, 498 (1836).
236. Ibid., p. 499.
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in their wording; or his secondary position that the phrasing as found in these two charters does not intend to separate the treatment of the minister right from that of the other rights embraced in the phrase. Actually, Judge Royce assumed perhaps the most extreme position to be found of literal application of charter terms.287
The other principal criticism to be made of the opinion has to do with the fact that this case also presented a problem resulting from revision of towns. The original charter, containing the grant at issue, had been for a town of Two Heroes, embracing South Island and North Island. Since, it had been split into the two towns of South Hero and North Hero. Judge Barrett discusses the difficulty of a trust relation- ship for the town due to this fact and refers to the opinions in the Mont- pelier cases288_quite rightly, because there is a parallel in the situation. But he then avoids any recognition of the solution accomplished in that litigation and, in fact, avoids a conclusion by virtue of recognizing the fee in the minister. In the process of his development, moreover, he manages to confuse the distinction which had hitherto been made (and emphasized in the Montpelier cases) between the town as a corporate organization, as trustee, and the inhabitants of the town, as cestui que trust.
In the Asbestos Case, the decision, and the central point in the opin- ion, rested on the point that "there was no expressed restriction [re- specting alienation] to the grants to the town and the University. "239
Attitude Respecting New Hampshire-New York Controversy
While on the subject of charters, in view of the comment quoted from Corinth v. Newbury240 respecting the source of land titles, it will
237. In the writer's opinion, the North Hero decision is much more in line with the customary views and practice in Vermont respecting the minister right than is the Goddard decision. It is simply felt that Judge Barrett took a regrettable route by which to justify his decision. There are certain other criticisms to be made of Judge Barrett's work in this case during the review of cases pertaining to the minister right.
238. 27 Vt. 704 (1854) ; 29 Vt. 12 (1856).
239. 108 Vt. 79, 96 (1936). This is another instance in which the distinction made in Victory v. Wells, 39 Vt. 488 (1866), between "grants" and "reservations" shows up as an exceptional viewpoint. Here it was held that since the lands were, before the granting of the charter, under the control and disposition of the General Assembly, the reservation was, in effect, a grant or dedication to public uses.
240. 13 Vt. 496 (1841). Supra, p. 149.
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be well to look briefly at the record of the Vermont court in its attitude toward the New Hampshire-New York controversy. Here, the court can be considered as hardly less than erratic.
The first cases recorded were Paine v. Smead241 and Jacob v. Smead.242 In these, Nathaniel Chipman took the position that the Order in Council of 1764 constituted a transfer of jurisdiction by the Crown, from the one province to the other, rather than a simple confirmation of jurisdiction in New York. Thus, he validated the Wentworth grants and also New York grants after that date.248
In Johnson v. Bayley244 the court enforced a trust and in effect rec- ognized New York confirmatory grants. Brown v. Edson said:
we do know, that this portion of the state [ Plymouth] was in those early times claimed by the inhabitants to belong to the State of New Hampshire, and the jurisdiction de facto was, for many years, always somewhat in dubio between New York and New Hampshire, the jurisdiction de jure always belonging to New York probably, but New Hampshire in fact maintaining the actual government. 245
In Townsend v. Downer the court held invalid the execution and proving of a deed accomplished in New York in 1773.
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