USA > Vermont > The Vermont lease lands > Part 18
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For the conveyance of land, is to be made according to the law of the place of the land, that is, the lex rei sitae. And if there be a conflict of jurisdiction, in that place, the law of the govern- ment, de facto, exercising the jurisdiction, rather than of the government, de jure, is to prevail. . . Strictly speaking then, we could only look at the law of the province of New Hampshire, and of this state, after it superseded that law. For although the present territory of Vermont did rightfully belong to the province
241. N. Chip. 51 (1791) ; also reported in 1 D. Chip. 56.
242. N. Chip. 95 (1791).
243. It is interesting to note, in this connection, that Nathaniel Chipman played a not well known part in the solution of the New York-Vermont controversy. At a critical period of the situation he and Alexander Hamilton carried on a cor- respondence and finally met at Albany. At that time, presumably, the plan, finally effectuated, was evolved by which Vermont made the reimbursement of $30,000 in return for extinction of New York land claims. Following the action of the two legislatures, Chipman was designated one of two commissioners to represent Ver- mont before Congress in the final successful appeal for admission to the Union. Special Master, Findings : 260, 261, pp. 389-391 ; 268-281 incl., pp. 392-404.
244. 15 Vt. 595 (1843).
245. 23 Vt. 435, 447 (1851). This was written by Judge Redfield, one of the more revered jurists of the Vermont court.
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of New York, the actual jurisdiction was always maintained by New Hampshire.246
This is a really remarkable statement to have been made in view of the actual history of the time-1773-and even earlier. It would require a powerful stretch of the imagination to conceive of New Hampshire's relation to the area as deserving the description of maintaining actual jurisdiction.
Davis v. Moyles247 referred to original grants made by New York. (The Chipman cases had had to do with New York confirmatory grants of Wentworth grants.) Here the court took the view that the 1764 Order had, in effect, been a transfer of jurisdiction. The court held that the preamble to the Vermont Constitution of 1777 refers only to lands held under original charter from New Hampshire, and does not invalidate the title to lands originally granted by the governor of New York after that government was given jurisdiction by royal decree.
Readsboro v. Woodford could have been an interesting case in point because of the nature of the situation. Defendant questioned the Reads- boro charter partly because it had been issued by Colden in 1770, the grant thus occurring after the Order in Council of 1767 suspended authority to make grants in the disputed area. The court side-stepped the whole issue, however, and relied on acquiescence as a basis for vali- dating the town charter : "Nor can the state itself question the legality of a municipal charter after long acquiescence in its validity."248
In order to complete the picture of the inalienability of the lease lands under Vermont doctrine, certain other topics must be examined in the light of Vermont cases.
Adverse Possession
The taking of land by adverse possession is of consequence as a legal problem, as well as a practical matter, in an area which, both historically and geographically, presented opportunity for considerable unorthodox land operating. The court recognized this condition in Caledonia County Grammar School v. Kent:
. it is quite within the course of such affairs in this State for men, without right and against right, to take possession of vacant
246. 27 Vt. 119, 123-124 (1854).
247. 76 Vt. 25 (1902).
248. 73 Vt. 376, 378 (1904).
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timber lands lying as here in remote and sparsely settled regions not easily accessible, for the very purpose of appropriating them to their own use. 249
The legislature took cognizance of the early land turmoil in an ill- advised series of acts respecting quieting of land titles, for which that body was severely censured by the Council of Censors in its first sep- tenary Address to the Freemen.250 The Council of Censors was not in- sensible to the conditions prevailing ; its remarks were vivid respecting the extent of land title difficulties. Its objection was to the cure proposed by the legislative body.
As might be expected, the Vermont Reports abound in cases arising from adverse possession of land. Those were read which affected lease lands, together with a sampling of other cases sufficient, it is believed, to establish the general attitude of the court. It can be stated, as a gen- eralization, that the court has not been favorably inclined toward loss of the public lands by adverse possession. No more has the legislature. There are exceptions, of which some notice has already been taken.251 As to the court, it will be found that such instances are so few as to constitute distinct deviations from established attitudes. Similarly, legis- lation in Vermont has protected the lease lands, with one important ex- ception-the period during which the S. P. G. lots were excluded from the benefit of the law. It can safely be asserted that this position is not surprising. It is consistent with the attitude thus far discovered-that the lease lands constitute a grant for a continuing benevolence which can only be assured by the continuance of the beneficial property.
Other than in respect to the public lands, the court has not been excessively severe on those claiming by adverse possession, especially in the earlier years. Again, this is reasonable when one considers the history of the state. The court has been more sympathetic to settlers than to ab- sentee owners. Tracy v. Atherton is of especial interest respecting the matter of easements. However, the court in that opinion pretty well sum- marized its justification respecting adverse possession generally :
And in our judgment, rights to easements acquired by long possession ought to stand on the same ground as rights by pos- session in lands. The real principle underlying the right is the
249. 84 Vt. 1, 14 (1910).
250. Slade, State Papers, pp. 537-539.
251. See Propagation Society v. Sharon, 28 Vt. 603 (1856), and Victory v. Wells, 39 Vt. 488 (1866).
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same precisely on which the statute of limitations stands. In the first place, it is presumed that one man would not quietly submit to have another use and enjoy his property for so great a length of time unless there existed some good reason for his doing so, and that after allowing it for so long, he should not call upon him to show his right or title, when it may not be in his power to do so ; and in the second place it is a rule of policy, adopted in sup- port of long and uninterrupted possession.252
The question of what constitutes possession has occupied the court's attention at times. It does not seem to be a clearly defined position. In Doolittle v. Linsley it was said :
It may be proper to notice that although there have been here- tofore, some decisions of our courts, giving a construction to the statute calculated to divest the proprietor of his title, where the person claiming had entered without colour of title, and had made no permanent improvements, or enclosures, they have not been supported by the more recent determinations.253
On the other hand, though, the opinion proceeds to show that many acts, other than fencing, would exhibit intention and possession. And Sawyer v. Newland is very liberal in the matter, holding, finally, that: "To constitute a possession, no doubt, there must be an exercise of acts of ownership on the land itself."254 The situation, of course, was a fairly complex one for the court in Vermont. The area was not one in which land use would customarily be only represented by settled farming. Possession of land could well be represented by lumbering, which would leave no permanent improvements; and, in the earlier decades, there was some little interest in mineral possibilities. Here, too, permanent improvements would be rare.
The cases respecting adverse possession seem, at first glance, to exhibit a variety of thought among the judges. A closer study, how- ever, shows a theme running through the record. As a general proposi- tion, it is relatively constant. On the other hand, it is of a nature to pro- duce an apparently heterogeneous end-result. The thread of viewpoint tying the various decisions together is a pronounced emphasis on the proposition that each case must be worked out in close relation to the situation and circumstances. It might be put thus : that even in cases at law, the Vermont court gives the appearance of proceeding on the
252. 36 Vt. 503, 514 (1864).
253. 2 Aik. 155, 160 (1827).
254. 9 Vt. 383, 390 (1837).
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assumptions underlying equity. This assertion must be modified to the extent that the court has been conscientious in respect to the require- ments and limitations of statutory provisions. But, even here, there has been some room left the judges in interpreting the situation of the parties-it is of the nature of such actions.255 For example, the problem, discussed above, as to acts of possession and intent. To illustrate the latter point, from Sawyer v. Newland: "It is to be noticed that, in all these cases, great stress is laid on the claim of title. The same acts and doings might be considered as acts of trespass, or of possession and ownership, according to the claim set up by the person performing them."256
As was indicated in the quotation from Tracy v. Atherton,257 for our purposes at least, easements may be bracketed with adverse possession of land. The court has regularly considered the problems of easements as analogous to those of adverse possession arising under statutes of limitations. The principal distinction to be found in the two lines of cases is that in respect to incorporeal rights, the court is somewhat more severe, both in the proving of the right and in the burden of proof laid on him who would assert the abondonment of an established right. The cases cited below are thought to present, collectively, a sufficient per- spective on the topic of adverse claims.258 For those who may wish to investigate it more fully than here, Townsend v. Downer259 and Tracy v. Atherton260 are recommended as leading cases. Of the cases cited, only those which deal with lease lands are to be analyzed.
University of Vermont v. Joslyn was action of covenant for pay-
255. Supra, pp. 145-146.
256. 9 Vt. 383, 391 (1837).
257. 36 Vt. 503, 514 (1864), supra, pp. 158-159.
258. Doolittle v. Linsley, 2 Aik. 155 (1827) ; Robinson v. Douglass, 2 Aik. 364 (1827) ; Sawyer v. Newland, 9 Vt. 383 (1837) ; Edwards v. Roys, 18 Vt. 473 (1846) ; University of Vermont v. Joslyn, 21 Vt. 52 (1848) ; Propagation Society v. Sharon, 28 Vt. 603 (1856) ; Townsend v. Downer, 32 Vt. 183 (1859) ; Perkins, Admr. v. Blood, 36 Vt. 273 (1863) ; Tracy v. Atherton, 36 Vt. 503 (1864) ; White v. Fuller, 38 Vt. 193 (1865) ; Victory v. Wells, 39 Vt. 488 (1866) ; Drouin v. Boston & Maine R. R. Co., et al., 74 Vt. 343 (1902) ; Sowles v. Minot, 82 Vt. 344 (1909) ; Caledonia County Grammar School v. Kent, 84 Vt. 1 (1910) ; Barber v. Bailey, 86 Vt. 219 (1912) ; Sanborn v. Village of Enosburg Falls, 87 Vt. 479 (1914) ; Davis v. Union Meeting House Society, 93 Vt. 520 (1920) ; Addison County v. Blackmer, 101 Vt. 384 (1928) ; D'Orazio v. Pashby, 102 Vt. 480 (1930) ; Brown v. Derway, 109 Vt. 37 (1937) ; Hopkins the Florist v. Fleming, 112 Vt. 389 (1942) ; Nelson v. Bacon, 113 Vt. 161 (1943).
259. 32 Vt. 183 (1859).
260. 36 Vt. 503 (1864).
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ment of lease-rent.261 The defense was that the lessee was unable to avail himself of the leasehold because of a portion of it being held in adverse possession by a third party. On the basis of the view expressed respecting the act of 1839,262 the court held it to be lessee's responsibility to get in: "If the title and possessory right passed, the assignee became possessed in law of the term, and an actual possession is not material."263 Furthermore, the court held against the lessee as to apportionment of lease-rent ; he was responsible immediately in proportion to that amount of the land from which he was not excluded. There is no word in the opinion by which the court spoke on the University land as being pro- tected from adverse possession. This, however, is not of consequence because the case actually was argued largely on procedural questions. In any event, the University was treated favorably by the court.
Propagation Society v. Sharon has been considered earlier.264 For this section of the study, it need only be noted that in this instance a piece of lease land was allowed to be lost as public land, by adverse pos- session. The ruling depended on the acts of the legislature in which the S. P. G. lands were subjected to this hazard. This is the only case to reach the Supreme Court in which this situation appeared. In fact, the S. P. G. lots, it will be seen later, have figured but very little in the Vermont Reports.
It is not known how many other S. P. G. rights were lost to the Diocese in this way. The writer attempted to discover this, as it seemed a good probability that there would have been some losses. This sup- position is reasonable because the period in which the S. P. G. lots lacked protection of the law was also a time when the S. P. G. land adminis- tration was not of the best. However, it was found that the land records of the Diocese were inadequate to supply the information desired. Cer- tain entries found in the Documentary History of the Diocese, particu- larly records of diocesan conventions, lead one to think that the loss may have been considerable.
261. 21 Vt. 52 (1848). It cannot be asserted certainly that this is a case of the public lands. The University leases others of its holdings. The case is not clear on the point. The University land records are so arranged that it is not always possible to sort out the holdings with which this study deals. The case appears, however, to concern public lands and is included on that basis simply to further the possibility of a more or less complete record.
262. Supra, pp. 145-146.
263. 21 Vt. 52, 65 (1848).
264. 28 Vt. 603 (1856). Supra, p. 109.
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Although there is but the one case in the Vermont Reports, this situation, on the basis of the remarks above, is the principal exception to the general rule that the lease lands have been immune to adverse possession. Other instances have involved no more than a single right.
Perkins, Admr. v. Blood had to do with a minister lot in Goshen Gore.265 As such, it is a case to be compared with Victory v. Wells, 266 since both lots were involved in litigation which turned on periods of time during which the respective areas were unorganized. The Perkins case was between two claimants, the claims of which stemmed from
the same source, and both of whom argued long prior possession under color of title. Briefly, the land had been entered upon as early as 1815, and there had been subsequent deeds thereof. In 1852, the legislature had provided that the county treasurer should administer minister lots in unorganized areas, giving leases for five year terms, the avails to be for the benefit of schools.267 In 1853, both claimants had applied for such a lease. The county treasurer held hearings and granted to intes- tate's administrator. (Probably, it was supposed in the court, because plaintiff's line of title had admitted the lot to be for the first settled minister.) The court took a different view of the matter than that ex- pressed in Victory v. Wells268
It was true that the absolute or paramount title to the premises was not vested in the plaintiff's intestate by virtue of any ad- verse possession by her, or by those under whom she claimed ; and that her title by occupancy and possession was subordinate to the title granted by the charter to the first settled minister, and would yield to that title whenever it was asserted. 269
White v. Fuller has previously been considered, as respects durable leases.270 It also is to the point in the matter of adverse possession of lease lands. The opinion is clear on the issue :
The right of the town and the grammar school in the public lands of that town could not be affected by any statute of limita- tions, and the length of adverse occupancy and enjoyment which would make a perfect title against any private right could give no title to these lands against the rightful original proprietors.271
265. 36 Vt. 273 (1863). 266. 39 Vt. 488 (1866).
267. Laws of Vermont, 1852-1854, 1852, p. 63.
268. 39 Vt. 488 (1866).
269. 36 Vt. 273, 285 (1863).
270. 38 Vt. 193 (1865). Supra, pp. 109-110. 271. Ibid., p. 203.
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The act of 1807 respecting conveyances when third party is in adverse possession was also ineffective in the case :
The application of the statute to any particular case is to be ascertained by taking into consideration its declared object or purpose and the course and tendency of the decisions under it. . . . The statute has never been regarded as applicable to con- veyances executed by public agents or officers acting in the line of their official duty ; and we consider these leases as being con- veyances of that character.272
In the first Caledonia County Grammar School v. Kent case273 the court, among various issues, spoke respecting adverse possession. It was held that where, long before any of plaintiff's rights in the land for grammar school uses had been barred by limitation, laws were passed, which remained in force, declaring that the statute of limitations should not extend to lands given or appropriated to a public use, plaintiff could not lose title to the lands in controversy by limitations.
Finally, as late as 1937, in Brown v. Derway,274 the court reaffirmed this position.
While it is clear that the court has adhered constantly to the pro- tection of the lease lands from such source of alienation, it should be distinguished that this position varies materially from that developed in respect to durable leases and conveyances in fee of the lands. Here, the court has explicitly relied on the statutory provisions exempting the public lands. There has been none of the sort of sociological justification found in the earlier topics-local conditions and circumstances, customs, purposes of the grants, etc.
Prescription
As a corollary to the matter of adverse possession, it is necessary to look at those cases dealing with titles by prescription-those instances in which the statutes of limitations do not apply. In fact, considering the protection afforded lease lands in the Vermont statutes of limitations, the doctrine of presumptive grants assumes considerable potential sig- nificance. Its actuality, as related to the lease lands, must be determined, if the law of the lease lands is to stand forth fully.
272. Ibid., pp. 203-204.
273. 84 Vt. 1 (1910). Supra, pp. 113-114.
274. 109 Vt. 37 (1937).
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As with the topics preceding, cases investigated cover litigation be- yond lease land actions.275 And, as with the preceding topics, only so much will be analyzed as will indicate the Vermont position and afford a frame of reference in which to place the lease land cases. The leading case on the doctrine of presumption is Townsend v. Downer.276 In that opinion, the court made an ample statement of the Vermont position, which has since been much relied on. It was an action of ejectment in which both parties claimed by succession from the same original grantor. The opinion is fairly exhaustive. It distinguishes between presumptions as matter of law and presumptions in fact. It also distinguishes clearly the conditions by which adverse possession may become established, in relation to statutes of limitations, as against presumptive grants outside of such statutes. It then defines the latter situations into three classes : a) that where the claimant is not within the statute; b) that where the subject matter is not included ; c) that where exclusion results from the relation of the parties. There appears to be nothing unusual in the Ver- mont court's position respecting presumption :
In general, these presumptions are bottomed upon the exis- tence of certain facts, which can leave but little doubt upon the mind of the truth of the fact which we are called upon to pre- sume. They frequently, too, derive their force and efficacy from that vigilance with which the law guards ancient possessions, which sooner than they should be disturbed, presumes that they had in contract a rightful commencement .... deeds and grants of lands may be shown by presumptive evidence . . . where there has been a possession corresponding to the grant, and where auxiliary circumstances exist making it reasonable to believe that such deed or grant has in fact been made, and where the circum- stances are not equally consistent with the non-existence of a grant. . . . The question is simply whether the evidence offered tends to prove the existence of the deed. . . . It is the charac- teristic of circumstantial evidence that while the circumstances taken singly and separately prove little or nothing, all of them
275. Executors of Hodges v. Parker, Brayt. 54 (1817) ; Stevens v. Griffith, 3 Vt. 448 (1831) ; University of Vermont v. Reynolds, 3 Vt. 542 (1831) ; Hull v. Fuller, 7 Vt. 100 (1835) ; Beecher v. Parmele, 9 Vt. 352 (1837) ; Brown v. Edson, 23 Vt. 435 (1851) ; Spaulding v. Warren, 25 Vt. 316 (1853) ; Clark v. Tabor, 28 Vt. 222 (1856) ; Londonderry v. Andover, 28 Vt. 416 (1856) ; Townsend v. Downer, 32 Vt. 183 (1859) ; White v. Fuller, 38 Vt. 193 (1865) ; Victory v. Wells, 39 Vt. 488 (1866) ; Caledonia County Grammar School v. Kent, 84 Vt. 1 (1910) ; S. C., 86 Vt. 151 (1912) ; J. H. Silsby & Co. v. Kinsley, 89 Vt. 263 (1915) ; Brown v. Derway, 109 Vt. 37 (1937) ; University of Vermont v. Carter, 110 Vt. 206 (1939). 276. 32 Vt. 183 (1859). Supra, p. 160.
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together harmonize and point to a result, which the mind must adopt as necessarily following from the coincidence of all the facts, all so coinciding that they cannot reasonably be accounted for without the result.277
Despite so broad a statement as this, there has not been much loss of lease lands by this route.278 The best known instance-one much cited -is University of Vermont v. Reynolds.279 In this case the University lost the right of college land in the Town of Alburgh, and clearly lost it by the doctrine of presumption.280 The court made plain that the lease lands are not subject to loss by adverse possession, being exempted from the statutes of limitations. Indeed, later, this point was used as a justifica- tion for finding a presumptive grant. Furthermore as noted earlier,281 the court admitted the Vermont doctrine against conveyances in fee of the lease lands, by holding that a grant from the University could not be presumed, and must be found otherwise. However, the situation was exceptional-so much so, that the University's case appears weak on which even to have commenced litigation.
The Town of Alburgh had been granted in 1781 in the usual pat- tern of Vermont grants, including the reservation of the public rights. But the proprietors under the charter made no division, nor ever suc- cessfully asserted their claim. In fact, the whole town was settled and occupied by other persons, none of whom held or claimed under the charter grantees. The University brought ejectment against the de- fendant, who had been in possession for thirty-eight years, holding ad- versely. (It is not clear why Reynolds was selected by the University as an object of the suit, rather than any other of the town's occupiers.)
The court held that the judge in the trial court should have directed the jury that it might and ought to presume, in favor of the long-con- tinued possession, an antecedent grant to the inhabitants of the town, or an abandonment and extinguishment of the charter title, or a sur- render of that and a subsequent grant to the persons in possession.
Essentially, the court's position was a matter of practical necessity,
277. Ibid., pp. 206, 208-209, 211-212.
278. This is the more significant when it is noted that the illustration used to demonstrate that class of presumptive grants determined by the claimant's being outside the statutes of limitations was a case in which lease land rights were so lost. 279. 3 Vt. 542 (1831).
280. The opinion is such as to warrant the inference that the other four public rights in that town were gone as well.
281. Supra, p. 127.
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in two respects. The first, and simplest, was that since there had been no division under the charter, no single holding, such as that of Rey- nolds, could be selected as the college right. Hence, if the University prevailed, it could only secure its prescribed share by taking one- seventieth of each of the holdings in the town, and this would be im- practicable both for the University and the inhabitants-such fractions could not be leased to any advantage or profit to the institution.
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