USA > Vermont > The Vermont lease lands > Part 19
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The second consideration was more involved. Briefly, it became a matter of public policy in quieting possession. The court considered at length the position of the University, in relation to the original charter. The nature of proprietorships was gone into and described as tenancies in common, rather than joint tenancies as would have been true under English law. From that, the court speculated on the relief available to a proprietorial tenant in common where no proper division had been accomplished. It was concluded that an action of ejectment would be the proper way to be let in. (The court did remark on the difficulty of considering the trustees of the public rights as ordinary tenants in com- mon, but made nothing conclusive of it.)
The crux of the decision was in the next step of the reasoning :
. one of the consequences of considering these public rights as being held in common with the other lands, ought not to be lost sight of. If the principle is correct which has been adopted in this state . that a tenant in common may, in an action of eject- ment against a stranger to the title, recover the whole of the estate held in common for the benefit of his co-tenants, and if the public lands are exempt from the operation of the statute of limi- tations, it will follow as a necessary consequence, that no length of time will protect a person in possession, but he will be liable at any time to be dispossessed by those who are trustees of the public rights of lands where there has been no location, not only of the shares, which belong to those rights, but also of the whole. 282
From this, the final step was "that public policy requires that this pos- session should be quieted."283
Brown v. Edson was a boundary line case, involving a line of divi- sion. The property on one side was the minister lot which had been leased out by the town for lumbering in 1842. The court, in respect to presumptions, said :
282. 3 Vt. 542, 555 (1831).
283. Ibid., p. 561.
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We should always incline to give effect to such ancient pro- ceedings, if possible, upon the ground that the very fact of their having been taken raises some presumption in their favor, that, at the time, they were regarded as valid; and, unless the court can perceive some sure ground, upon which their insufficiency rests, it ought to be presumed, that some law then existed, by which the proceeding was justified, and which has escaped the investigation of the court, through the obscurity which lapse of time always induces.28
Nevertheless, the court concluded :
The fact that Luke Rice and his grantors had deeds on record of the right of Grimes, and were recognized as the proprietors by the other proprietors, is not sufficient. Such cases, in the north- ern counties in the state occur every term of their county courts, almost ; and if this rule of presuming deeds were to obtain, when an ancient deed could not be found, it would change the title of immense tracts of land. 285
In White v. Fuller the court protected the public rights against ad- verse possession under the statutes of limitations.286 And it also refused to allow any presumption of relinquishment or abandonment of the rights.
Victory v. Wells has been analyzed rather fully287 but becomes an element of this section because it primarily rested upon presumption. It is significant as being the only other instance (besides the Univer- sity of Vermont v. Reynolds case)288 in which lease lands were lost by presumption. And it is clearly out of line with Vermont jurisprudence as is indicated by its lack of influence. The case is extreme in all re- spects. For example, the court noticed, but disparaged, the significance of the act of 1852 respecting administration of minister lots in unor- ganized areas,289 which was influential in Perkins, Admr. v. Blood.290 And, in fact, instead of relating the situation to that act, managed a line of reasoning by which it viewed the exceptional nature of the act as helping to justify the decision reached. The court relied on Town-
284. 23 Vt. 435, 446-447 (1851).
285. Ibid., p. 450.
286. 38 Vt. 193 (1865). Supra, pp. 162-163.
287. 39 Vt. 488 (1866). Supra, pp. 151-152.
288. 3 Vt. 542 (1831).
289. Laws of Vermont, 1852-1854, 1852, p. 63.
290. 36 Vt. 273 (1863).
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send v. Downer291 and Tracy v. Atherton292 as to the doctrine of pre- sumption, although neither of these cases referred to public lands. Finally, in fact, the court actually failed to conform to the Townsend v. Downer thought by saying: " ... and the jury were fully war- ranted in finding, that the defendants and their grantors were holding under some valid grant from the State,"293 although there were some circumstances tending to show that such grant was not made. The opin- ion also made much of University of Vermont v. Reynolds294 despite the fact that the two cases have but one point in common respecting their circumstances. The one parallel is that in both instances there had been an extremely long adverse occupancy during which there had been no proper administration of the public rights and that such adverse oc- cupancy had been, apparently, by parties acting in good faith.
This parallel circumstance loses its significance, however, as a basis for the Victory v. Wells decision when one recalls the other instances in which lease land litigation has arisen from similar conditions but in which the court has regularly discarded them as being of insufficient im- portance to weigh against the interest of the public rights. Indeed, no better illustration can be asked for than the Caledonia County Grammar School litigation.295 In the first of the three reports296 the court specifi- cally made reference to University of Vermont v. Reynolds,297 in re- spect to presumptive grants, and distinguished it as having been a situa- tion in which public policy could not otherwise have been protected, due to the peculiar circumstances. And in the second case298 the court added another obstacle to presumptive grants by affirming that one cannot acquire a prescriptive title to lands which he holds under a perpetual lease.
The latest case to be examined again pertains to the University.299 It will be recalled that this case was spoken of as one of those in which it is difficult to be certain whether the land was lease land. The record in the opinion has certain elements which tend to indicate that the land
291. 32 Vt. 183 (1859).
292. 36 Vt. 503 (1864).
293. 39 Vt. 488, 496 (1866).
294. 3 Vt. 542 (1831).
295. Caledonia County Grammar School v. Kent, 84 Vt. 1 (1910) ; S. C., 86 Vt. 151 (1912). 296. 84 Vt. 1 (1910). 297. 3 Vt. 542 (1831).
298. 86 Vt. 151 (1912).
299. University of Vermont v. Carter, 110 Vt. 206 (1939).
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was of the other holdings of the institution. For example, it appeared that the University acquired by quit-claim in 1844. This is not so con- clusive as it might seem. The lease lands have been so loosely admin- istered that such items as quit-claims may appear in the record of par- cels which are known to be of those granted in the town charters. The case is presented here to complete the record and, more especially, to indicate again the sort of circumstances in which the court may go so far as to find against educational or religious interests.
Following the 1844 quit-claim there was no evidence of conveyance by the University. The lot in issue was a part of defendant's farm, with perfect paper title commencing with mortgage deed in 1871, and pos- sessed by the defendant without permission of plaintiff since 1923. Also in the farm was another lot belonging to the University on which the defendant had regularly paid rent, believing that to be the only por- tion of the farm so encumbered, or in which the University was inter- ested. On the one hand the town had assessed and collected taxes on the lot in issue since 1870, while on the other hand, the University had never billed defendant or his predecessors in title for rent on it. After all that, the University belatedly brought action of ejectment. (This occurred during the institution's latest flurry of land administration. )
The court held that a grant could be "presumed to the defendants or some of their predecessors in title from the plaintiff provided the latter had power to convey."300 It was determined that such power existed un- der the provisions of Laws of Vermont, 1865, No. 83, sec. 4.301
There is another aspect of presumptions which must not be missed. It actually is fraught with more potential influence on lease lands than are direct court actions. These cases are those in which the court in- dulges in presumptions of acquiescence and the like in order to quiet questions of lot lines, proprietors' divisions and so on. They do not ordinarily bear directly on lease lands, in the litigation, but they are capable of fixing public shares along with other property in the town under consideration by the court. If the location of the public rights parcels were undesirable due to the proprietors' doings; or if, through mistake or otherwise, a lot boundary line encroached on lease land acre- age, such a decision would confirm the condition.
300. Ibid., p. 216.
301. This act established the juncture of the University with the State Agri- cultural College. Section 4 authorized disposition by the new corporation of proper- ties previously held by the two institutions.
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The cases cited include a variety of circumstances of presumption and, together, demonstrate the court's attitude. Generally speaking, it can be characterized thus : that the court has been extremely cautious of accepting circumstantial evidence if there appeared to be any possibil- ity of such acceptance perpetuating past illegal or illegitimate actions ; but the court has also recognized the necessity of quieting present pos- sessions and titles, at times, where uncertainty exists as a result of the disorderly situation prevailing in the early days. An example of this is the comment in Hull v. Fuller :
When the original monuments are found, no testimony can be received to show that the surveyor intended to locate the bounda- ries elsewhere. Were it otherwise, the boundaries of the whole State might be disturbed. A single error in the allotment of a town might lead to a new allotment throughout; and if ancient boundaries are to be disturbed, upon this principle, there would be no end to the consequences.3
Acquiescence
The topic of acquiescence having been touched upon, the whole mat- ter may well be dealt with. In addition to those cases cited in the last topic, others were examined.303 The position is this : lines, even though mistaken, and other such problems, including easements, will be con- clusive after 15 years, when coupled with acquiescence. The latter must be asserted by possession in accordance with the situation as claimed, but may be demonstrated by constructive possession. The fullest state- ment, including a broad review of conditions prevailing and problems to be confronted, was found in Neill v. Ward.304 This case also displays other matters of legal interest in Vermont. It included a review of pro- nouncedly questionable proprietors' activities; a good example of boundary line troubles (in fact, the decision and opinion were evidently designed to put the whole town at rest and avoid the possibility of nu-
302. 7 Vt. 100, 110 (1835).
303. White v. Everest, 1 Vt. 181 (1828) ; Boothe v. Coventry, 4 Vt. 295 (1832) ; Hull v. Fuller, 7 Vt. 100 (1835) ; Sawyer v. Newland, 9 Vt. 383 (1837) ; Crowell v. Bebee, 10 Vt. 33 (1837) ; Burton v. Lazell, et al., 16 Vt. 158 (1844) ; Ackley v. Buck, 18 Vt. 395 (1846) ; Child v. Kingsbury, 46 Vt. 47 (1873) ; Davis v. Judge, 46 Vt. 655 (1874) ; Felton v. Cheltis, 81 Vt. 10 (1908) ; Sowles v. Minot, 82 Vt. 344 (1909) ; Barber v. Bailey, 86 Vt. 219 (1912) ; Soulia v. Stratton, 99 Vt. 304 (1926) ; D'Orazio v. Pashby, 102 Vt. 480 (1930) ; Neill v. Ward, 103 Vt. 117 (1930) ; Parrow v. Proulx, 111 Vt. 274 (1940).
304. 103 Vt. 117 (1930).
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merous suits arising) ; trees as monuments, and their lack of perma- nence; lack of reliability of either the charter or proprietors' votes on which to estimate the acreage of rights. Boothe v. Coventry merits particular notice because in it the court specifically stated that the same rule of acquiescence applies to the location of the public lands, as to the lands of individuals.305 Sawyer v. Newland contained a pungent admis- sion by the court of the conditions with which it must contend: "It is scarcely possible to prove a legal division in any of our old towns. Hence, all which has ever been required, is to show a division in fact, and this presupposes that no evidence of a legal division exists."306 Felton v. Cheltis307 went to the extent of holding that a failure to assert a right may be evidence of an acquiescence, although it does not, in it- self, constitute acquiescence. And in Sowles v. Minot it was held that a failure to occupy land, for an indefinite time, does not constitute an abandonment of title or possession.308 An additional point in Vermont land affairs, brought out in D'Orazio v. Pashby,309 and other cases, is that description of a lot by reference to its number on the plan of the town is just as definite, though not as particular, as it would be if the lines were given. Such a description, in its legal effect, is according to the lines of the lot as surveyed and established in the original division shown by the recorded plan. In view of early conditions and ways of do- ing, this leaves the actuality of a given property in anything but a state of certainty.
Proprietors' Doings
Proprietors' doings, and the court's response thereto, form a dis- tinct problem to one who would attempt to know the lease lands of Ver- mont. Something has been shown, among the last few cases, of the situation. Attention is drawn to the problem, directly, however, so that its significance may not be overlooked. The group of cases cited310 will
305. 4 Vt. 295 (1832). The right at issue was one of those under the control' of the town. But which one is not clear. The opinion referred to it simply as "one of the public rights."
306. 9 Vt. 383, 391 (1837).
307. 81 Vt. 10 (1908).
308. 82 Vt. 344 (1909). It can be seen that both these last holdings are ap- plicable to the administrative habits of the lease land grantees.
309. 102 Vt. 480 (1930).
310. Executors of Hodges v. Parker, Brayt. 54 (1817) ; Evarts v. Dunton, et al., Brayt. 67 (1817) ; S. C., Brayt. 70 (1820) ; Stevens v. Griffith, 3 Vt. 448 (1831) ; Abbott v. Mills, 3 Vt. 521 (1831) ; University of Vermont v. Reynolds, 3
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give a sufficient picture of the problem of the judges in reconciling the earlier irregularities with the later necessities. The cases indicate clearly how it is that lease lands could have suffered during the period of in- stitution of the towns; and how the court might well find it expedient, and even essential, in terms of public policy, to confirm such situations. Here, the general necessities of the community would at times over- ride the sympathy of the court for the welfare of the public rights. Enough has been described from these cases, previously, at various points, to give the gist of the matter. It should be recalled, though, at this point, that the influence of proprietorial irregularities would be aggravated in the case of the public rights because they were not repre- sented at proprietors' meetings.
Public Policy
The requirements of public policy have also figured in lease land cases.311 In some of these it has been stated explicitly, in others by clear implication or by words which were the equivalent of the term. In all of them, except University of Vermont v. Reynolds,312 public policy was regarded by the court as calling for the protection of the lease lands.
Eminent Domain
Besides those topics already examined, the possibility of loss of lease lands by condemnation under the power of eminent domain is to be considered. Since 1937, the situation is clear. The act which au- thorized the sale of lease lands also provided that they were subject to this action. Before that date it would seem that such was not the case.
No report could be found from the Vermont Supreme Court of such litigation affecting the lease lands. Consequently, resort was had to eminent domain actions revolving around other situations by which to derive a conclusion respecting the lease lands. A reasonably conserva- tive interpretation of the Vermont law leads one to assume that the lease lands would have been completely immune to encroachment for
Vt. 542 (1831) ; Boothe v. Coventry, 4 Vt. 295 (1832) ; Beecher v. Parmele, 9 Vt. 352 (1837) ; Sawyer v. Newland, 9 Vt. 383 (1837) ; Clark v. Tabor, 28 Vt. 222 (1856) ; J. H. Silsby & Co. v. Kinsley, 89 Vt. 263 (1915) ; Neill v. Ward, 103 Vt. 117 (1930).
311. See University of Vermont v. Reynolds, 3 Vt. 542 (1831) ; Williams v. Goddard, 8 Vt. 492 (1836) ; Caledonia County Grammar School v. Kent, 84 Vt. 1 (1910) ; University of Vermont v. Ward, 104 Vt. 239 (1932).
312. 3 Vt. 542 (1831).
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purposes which justify the use of the power of eminent domain. One can go farther and assert that this immunity would have been "involun- tary"-that the trustees of the lease lands would have been helpless, in the law, to cooperate in condemnation of their lands. This view is taken on the basis of the cases related earlier in which the court has refused to accept any alienation of the lease lands beyond durable leases. (It must be remembered that a transfer of property under condemnation pro- ceedings amounts to a forced sale.)
As to the matter of the suggested complete immunity, the steady Vermont doctrine has been that land cannot be condemned and taken by eminent domain proceedings for a public use when the land is already devoted to another public use, without express or implied legislative authority.813 Such authority never expressly existed until the act of 1937. Advantage of the argument for an implied authority could rarely be taken-the court has held to a strict position, as described in Ver- mont Hydro-Electric Corp. v. Dunn :
The rule generally recognized is that when the only land avail- able for a particular public work specifically authorized by the Legislature is already devoted to a public use, the power to take such land will be inferred, but not otherwise. . . . It is not enough that the property sought to be taken will be a convenience to the party seeking to appropriate it; but the necessity must be actual, must clearly appear, and must arise from the nature of things over which the party desiring to take has no control.314
Furthermore :
where the language of the statute conferring the right of eminent domain is general, it is presumed, in the absence of some necessary implication to the contrary, that it was not intended that land already devoted to one public use should be taken for another 315
These statements would seem to preclude most efforts to take lease lands in this way. Roads and railroads in Vermont can ordinarily be laid in a variety of surveys. Dams for water storage would be the most
313. Deerfield River Co. v. Wilmington Power Co., 83 Vt. 548 (1910) ; Rut- land Ry., Light and Power Co. v. Clarendon Power Co., 86 Vt. 45 (1912) ; Wheeler v. St. Johnsbury, 87 Vt. 46 (1913) ; Sanborn v. Village of Enosburg Falls, 87 Vt. 479 (1914) ; Vermont Hydro-Electric Corp. v. Dunn, et al., 95 Vt. 144 (1921) ; Middlebury College v. Central Power Corp. of Vermont, 101 Vt. 325 (1928).
314. 95 Vt. 144, 151-152 (1921).
315. Ibid., p. 153.
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obvious case in which no choice of location was available. Yet even this was disallowed in the case just quoted from. The situation was that the City of Rutland wished to acquire water rights, which were the posses- sion of the utility corporation, in order to provide an additional municipal water supply, and this right was denied. The ruling gains added signifi- cance when it is related that the power corporation had not yet developed the water rights: "And it is not necessary that the property be actually in use for the public purpose to exempt it from the proceeding."316
In view of the passive character of the administration of many of the lease lands, it might be suggested that eminent domain proceedings could occur with the lessee, or tenant, as party defendant. One attempt- ing to take on such a basis would be insecure. The court has held that all parties in interest must be properly notified.
The Middlebury College case is the most nearly analogous of those cited, to the subject of this study. The college had received, by inheri- tance, a piece of land. The will specified that it was to be kept as a park, with the college as trustee. The power corporation wished to take an area of the park for the development of a power dam. The court refused to allow the diversion of the land. During the course of the opinion the court pointed out the existing broad meaning of "public use" in this connection :
ยท . the 'public use' involved in the law of eminent domain is not the 'public use' involved in the law of taxation . . 'the test whether a use is public or not is whether a public trust is im- posed upon the property ; whether the public has a legal right to the use, which cannot be gainsaid or denied, or withdrawn at the pleasure of the owner.' - '317
And, "'An enterprise does not lose the character of a public use because that use may be limited by circumstances to a comparatively small part of the public.' "318
Easements are also embraced in this doctrine of exemptions. In San- born v. Village of Enosburg Falls319 it was said that the subjection of land to a highway easement is a taking of property to the same extent as if the absolute title had passed to the municipality. And it was held that any permanent occupation of private property by a municipality for
316. Ibid., p. 149.
317. 101 Vt. 325, 336-337 (1928).
318. Ibid., pp. 336-337.
319. 87 Vt. 479 (1914).
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public use, so as to exclude the owner from its beneficial use, must be under the power of eminent domain upon payment of compensation, unless the act can be justified under some other governmental power.
Evidently, Vermonters insist on a flexible treatment of problems so that situations may be handled as needed. In view of the law, as just outlined, the writer has had his curiosity aroused by finding various in- stances in which railroads and highways cross lease land parcels. He was unable to secure from any of the trustees of the lands concerned any information as to how this was accomplished, from the legal view- point. Nor was he able to gain any satisfactory answer from those who had taken the rights-of-way.820
320. Such complaisance with respect to the law has also been displayed by the legislature. Although it had not provided authorization for encroachment by highways, it recognized and accepted an instance of such encroachment in the fol- lowing act :
Whereas, the legislature of the State of Vermont, at its annual session in 1848, divided the town of Montpelier into the towns of Montpelier and East Montpelier ; and whereas in the division of said town the public rights for the support of the gospel, and for the support of the ministry, and for the support of public schools, amounting to nine hundred and sixty acres, were all left in the town of East Montpelier; and whereas also, the town of Montpelier now draws from said East Montpelier a large proportion of the rents of said lands, which lands are not liable to taxation; and whereas also, there are many miles of highway on said rights now supported by the town of East Montpelier, and also many persons residing on said rights liable to become town paupers; and whereas also, it is not equitable that the town of Montpelier should share in the rents of said lands without sharing, in the same proportion, in the burthens imposed on the town of East Montpelier in relation to the same; Therefore .
Sec. 1. The town of Montpelier shall pay to the town of East Mont- pelier their just proportion of maintaining and keeping in repair all high- ways on said public rights.
Sec. 2. The mode of ascertaining the proportion for the town of Mont- pelier to pay, shall be as follows: the listers of both towns shall agree on the appraisal of said lands without the buildings, at the same rate the other lands in East Montpelier are appraised, appraising each piece sepa- rately and designating the school district in which the same is situated and the same shall be recorded in the town clerk's office in East Montpelier, and the percentage shall be carried out the same as the other lands in town, and when the town of East Montpelier shall vote any tax for the support of highways, the town of Montpelier shall pay to the town of East Mont- pelier, on or before the first day of July next thereafter, such proportion of the sum such tax would raise on said rights, if subject to taxation, as the proportion of the rents which they receive from said rights bear to the whole rents of the same; And in case the listers of said towns cannot agree on the value of said lands, either town may apply to the county court for the appointment of a committee to appraise the same, which committee shall be appointed on notice given to the other town twelve days before the appointment of said committee.
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