USA > Vermont > The Vermont lease lands > Part 20
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Sec. 3. The town of Montpelier shall pay to the town of East Mont-
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The two activities which will have had the most concern respecting the taking of lease lands are the Vermont State Forest and the National Forest Service, both of which hold large forest acreages in the state. The State Forest solved the matter by simply taking over the lease-hold and becoming the tenant.321 Financially, this has not been disadvanta- geous from the viewpoint of the Forest Service because the average level of lease rents is much below the average tax rate which would be paid otherwise. 322
Land was first acquired for the Green Mountain National Forest in 1932.323 This program would almost inevitably mean acquisition of lease lands because of the proportion of lease land lots located in the forested mountainous parts of the state. Inquiry was made of Mr. Joseph A. Mc- Namara, United States District Attorney, at Burlington. It appears that that office has undertaken condemnation actions in the federal district court, throughout the period of the forest acquisition. The actions have proceeded under the doctrine of "superior national public use" when au- thorized by Act of Congress, and the congressional legislation respecting the National Forest Service has been acceptable to the court as a basis.
Actually, the federal program has not been subjected to any ques- tion of validity because the federal agencies have met no opposition to their taking, by which the issue of the status of the lease lands has been raised. By far the most of the condemnations have been of S. P. G. rights.324 The Diocesan authorities have been agreeable and have appar-
pelier the same portion for building all new roads and bridges on said pub- lic rights.
Sec. 4. The several sums specified in this act shall be recovered as fol- lows : the treasurer of the town of East Montpelier shall give to the treas- urer of the town of Montpelier twenty days notice of the amount aforesaid, and if the town of Montpelier shall not pay the same in said twenty days, the same may be recovered in an action on the case founded on this statute, with full costs in case payment is refused.
Sec. 5. This act shall take effect from its passage.
Laws of Vermont, 1859-1860, 1859, pp. 146, 148.
321. The Governor, in the name of the state, leases for a term of years or otherwise, any such forest lands. Laws of Vermont, 1917, p. 10.
322. In order not to destroy the revenue resources of the "hill-towns," the legislature has allowed taxation of the State Forest acreage.
323. No. 1 of the Laws of Vermont, 1925, p. 3, authorized the acquisition of such forest lands by the United States "by purchase, gift or condemnation with adequate compensation" but included no express provision applicable to land al- ready devoted to a public use.
324. This would follow from the location, in the south-central section of the state, of the National Forest-the area in which Wentworth's grants extended farther back from the Connecticut River and Lake Champlain margins.
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ently considered the prices offered adequate. Mr. McNamara stated that his office was not immediately concerned with the problem of the com- pensation, but that the actions were brought against both the grantee of the public right and the lessee. The appropriate federal administrative personnel arranged a satisfactory division of the award money between the two defendants.
Police Power
There still remains to be examined the matter of taking of the lease lands under the police power of the state. There are no cases directly in point. The two cases cited325 were used only to ascertain the Ver- mont court's position relative to this power. It would appear that the court has erected no peculiar limitations around its use. It has said that the police power of the state extends to all the great public needs, and all property rights are held subject to it; as respects the police power, there is no closed class or category of activities affected with a "public interest." The court has also been explicit that a proper use of the police power is not inhibited by the fourteenth amendment to the United States Constitution. The only limitation found was that the use of the police power must not be a guise under which to effectuate action which is arbitrary or without reasonable relation to some purpose within the com- petency of the state to effect. Thus, the lease lands clearly have been subject to the operation of this power. No instances of such loss of lease lands were encountered during this research, however.
325. State v. Auclair, 110 Vt. 147 (1939) ; Sowma v. Parker, 112 Vt. 241 (1941). Both of these involved the question of taking property.
Chapter V THE LEASE LANDS AND THE COURT: OTHER JUDICIAL DOCTRINES
EJECTMENT ACTIONS
It was remarked before1 that the earlier days of Vermont saw much land trouble, and the contents of Nathaniel Chipman's Reports were described to illustrate the high proportion of ejectment suits. Actions of ejectment continued for a long while to figure prominently in Ver- mont court reports. And, of most immediate interest, they have figured prominently in litigation over the lease lands. Having completed exami- nation of the general subject of alienation of the lease lands, a recapitu- lation of the suits in ejectment is presented in order to focus attention on their significance and to bring forth at one point an appreciation of the treatment accorded the public rights by the courts. Before doing so, the law respecting such actions in Vermont should be explained.
As a move in the program, which has been touched upon from time to time, of simplifying the law pertaining to real property, action of ejectment was simplified. As it stands in Vermont, a single action de- termines both the question of right to the property and any damages accruing to the plaintiff as a result of a favorable decision. A second action for award of damages is not required. And it is to be borne in mind that the outcome of a suit in ejectment is conclusive as to the title to the property. For a well-stated explanation of the action of ejectment in Vermont, the opinion in Marvin v. Dennison, et al. is recommended.2
As with preceding topics, the cases below3 include cases not on lease
1. Supra, p. 101.
2. 20 Vt. 663 (1846).
3. * Selectmen of Colchester v. Hill, Brayt. 65 (1815) ; * Rood v. Willard, Brayt. 65 (1816) ; * S. C., Brayt. 67 (1817) ; * Selectmen of Rockingham v. Hunt, Brayt. 66 (1817) ; * Evarts v. Dunton, et al., Brayt. 67 (1817) ; * S. C., Brayt. 70 (1820) ; * Orange County Grammar School v. Dodge, Brayt. 223 (1817) ; Pomeroy v. Mills, 3 Vt. 279 (1830) ; S. C., 3 Vt. 410 (1831) ; * University of Vermont v. Reynolds, 3 Vt. 542 (1831) ; * Boothe v. Coventry, 4 Vt. 295 (1832) ; * Town of Charleston v. Allen, 6 Vt. 633 (1834) ; * Maidstone v. Stevens, 7 Vt. 487 (1835) ;
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lands, as well as those which did determine the title to lease lands. Com- parison is thus available. Furthermore, some of the non-lease-land cases contain important statements by the court on the subject of ejectment and respecting land titles generally. The list cited is not intended to be a complete compilation of ejectment suits, except for those relating to the lease lands. As to the latter, it is to be observed that this type of action has been well represented. The lease lands have been a fertile source of litigation. It is to be remembered, too, that these cases are only those in which resistance was strong enough to force the issue into the Supreme Court. The writer is informed that various of the trustees of public lands have brought other suits in ejectment in the county courts which were not appealed. An outstanding instance of this is the activity of the S. P. G. in securing various of its rights following the decision favorable to it in the United States Supreme Court. The cases, as they have hitherto been analyzed, show that the public rights to the lease lands have been accorded very favorable treatment in the court.
OBLIGATION OF CONTRACT
The attitude of the Vermont court, and its application of its views, toward three matters of law are to be taken into account in understand- ing the care with which the judges have treated the lease lands. These are: 1) the impairment of obligation of contract4; 2) trusts and respon-
Lord v. Bigelow, 8 Vt. 445 (1836) ; * Strong v. Garfield, 10 Vt. 497 (1838) ; *Caledonia County Grammar School v. Burt, 11 Vt. 632 (1839) ; Beach v. Haynes, 12 Vt. 15 (1840) ; * Keith v. Day, 15 Vt. 660 (1843) ; * Pownal v. Myers, 16 Vt. 408 (1844) ; Edwards v. Roys, 18 Vt. 473 (1846) ; * Congregational Society, New- port v. Walker, 18 Vt. 600 (1846) ; Marvin v. Dennison, et al., 20 Vt. 663 (1846) ; *Brown v. Edson, 23 Vt. 435 (1851) ; Spaulding v. Warren, 25 Vt. 316 (1853) ; *Orleans County Grammar School v. Parker, 25 Vt. 696 (1853) ; Clark v. Tabor, 28 Vt. 222 (1856) ; Propagation Society v. Sharon, 28 Vt. 603 (1856) ; Townsend v. Downer, 32 Vt. 183 (1859) ; * Victory v. Wells, 39 Vt. 488 (1866) ; * Williams v. North Hero, 46 Vt. 301 (1873) ; * Currier v. Rosebrooks & Town of Brighton, 48 Vt. 34 (1875) ; * Jamaica v. Hart, 52 Vt. 549 (1880) ; * Franklin County Grammar School v. Bailey, 62 Vt. 467 (1889) ; * Caledonia County Grammar School v. Kent, 84 Vt. 1 (1910) ; * S. C., 86 Vt. 151 (1912) ; State v. Thomas J. Heaphy, 88 Vt. 428 (1914) ; Soulia v. Stratton, 99 Vt. 304 (1926) ; University of Vermont v. Carter, 110 Vt. 206 (1939). Those cases marked with an asterisk (*) have to do with lease lands.
4. Poultney v. Wells, 1 Aik. 180 (1826) ; Caledonia County Grammar School v. Burt, 11 Vt. 632 (1839) ; Starksboro v. Hinesburgh, 13 Vt. 215 (1841) ; Herrick v. Town of Randolph, 13 Vt. 525 (1841) ; Orleans County Grammar School v. Parker, 25 Vt. 696 (1853) ; Montpelier v. East Montpelier, 27 Vt. 704 (1854) ; S. C., 29 Vt. 12 (1856) ; Jamaica v. Hart, 52 Vt. 549 (1880) ; Harris v. Towns-
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sibilities arising from them; and 3) the public use of property. These will, accordingly, be examined. In elaboration of the first of them, there is occasion to observe the position taken by the court respecting : limita- tions on the power of the legislature ; activities of other official agencies ; and the problems arising from changes of town lines. All of this, it is believed, will contribute to a better comprehension of what has been related and will, likewise, apply to an appreciation of the question of the tax exemption afforded the lease lands.
The judges have been uncompromising in respect to observance of the obligation of contractual rights, and nowhere more so than with the doings of the legislature.
Poultney v. Wells very early established the position respecting re- quirements for redistribution of the benefits of lease lands. The case arose from a change in the line between the two towns, and the issue was that Poultney demanded a proportionate share of the Wells avails. The perpetual nature of the public grants was recognized, and they were regarded as trusts.5 The position was taken, which has since been fol- lowed, that the cestui que trust is the inhabitants and not the town in its corporate capacity. Thus, no change in the trust can be made without the consent of all parties concerned, and as to the town, this means the in- habitants. So: the legislature can exercise no power over the grant as made in the town charter, or the proceeds thereof, except with such consent. In this case the court embraced the idea of implied consent on the part of Wells since there had been no objection raised to this pro- vision of the act for changing the town line and on this basis held that assumpsit could lie against Wells.
Caledonia County Grammar School v. Burt6 likewise developed from a legislative effort to redistribute the benefit of lease lands-this time to another grammar school. The court laid the whole issue in terms of im-
hend, 56 Vt. 716 (1883) ; Franklin County Grammar School v. Bailey, 62 Vt. 467 (1889) ; Vermont & Canada R. Co. v. Vermont Central R. Co., 63 Vt. 1 (1890) ; Stern v. Sawyer, 78 Vt. 5 (1905) ; North Troy School District v. Troy, 80 Vt. 16 (1907) ; Barre v. Perry and Scribner, 82 Vt. 301 (1909) ; Sargent v. Clark, 83 Vt. 523 (1910) ; Caledonia County Grammar School v. Kent, 84 Vt. 1 (1910) ; State v. Clement National Bank, 84 Vt. 167 (1911) ; O'Brien v. Holden, 104 Vt. 338 (1932) ; Brattleboro Retreat v. Brattleboro, 106 Vt. 228 (1934) ; Jones v. Ver- mont Asbestos Corp., et al., 108 Vt. 79 (1936).
5. 1 Aik. 180 (1826). This is of particular interest because the Wells charter was not one which used any of the terms such as "forever" or "inalienably" which figured in some later cases. N. H. S. P., XXVI, III, 533.
6. 11 Vt. 632 (1839).
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pairment of the obligation of contract. It was held that the legislature by the grant to the Peacham school had precluded such a move. The Dart- mouth College case,7 Fletcher v. Pecks and Terrett v. Taylor9 were re- lied on for authority : "That a grant of land, by a state legislature, vests a title indefeasable by the state, and is a contract which the state has no power to impair by subsequent legislation, is fully settled. . . ."1ยบ And a legislative grant, or a deed, of lands ". . . to an aggregate corpora- tion having perpetual succession, required no words of perpetuity, and was unconditional and as absolute and of the same effect, as a grant to a man and his heirs and assigns forever."11 And for our immediate interest :
All the lands in Vermont, granted by charters from its Gov- ernor, under the authority of the legislature, are held by the same tenure, and not greater, nor more inviolable than that by which the plaintiffs hold theirs; and it cannot be considered that our citizens hold their farms at the mere will and pleasure of the legis- lature.12
As to the trustees, the court said that, though the grant might have been made without any conditions whatever, ". . . it would have only the implied condition that the use must ever be applied to the purpose of the grant."13
Starksboro v. Hinesburg made clear the effectiveness in Vermont of the English common law principle :
that a statute should have a prospective and not a retrospec- tive effect 'a statute is not to be construed so as to work a destruction of a right previously attached.' Though one legis- lature may repeal the laws of another, yet the rights which have been acquired under them, while in force, do not thereby cease.14
Herrick v. Randolph15 will be treated fully at a later point in this chapter as it was the only case found which dealt with the question of
7. 4 Wheaton 518 (1819).
8. 6 Cranch 87 (1810).
9. 9 Cranch 43 (1815).
10. 11 Vt. 632, 641 (1839).
11. Ibid., p. 640.
12. Ibid., p. 641.
13. Ibid., p. 639.
14. 13 Vt. 215, 222 (1841).
15. 13 Vt. 525 (1841).
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tax exemption of the lease lands. For the present it may be noticed that it took the position that conditions annexed to a grant, after the grant is complete, are not of the same contractual quality and may subse- quently be repealed, even to include exemptions or privileges to the grantee. Conditions annexed to the grant, at the time of granting, are as irrevocable as the grant itself.
Orleans County Grammar School v. Parker,16 like the case preceding, was an instance in which the court upheld the legislature. There is a difference, however, in that this case related to a reservation of power, in the form of a condition, made in connection with the grant. The reservation, as made, was held adequate to support the redistribution de- sired by the legislature.
It has been seen that in the two cases between Montpelier and East Montpelier,17 the court applied the doctrine set up in Poultney v. Wells18 with the utmost rigor, holding that the terms of the charter of 1781 pre- vented the act of 1848 from being effective as to a division of the lands, or the avails therefrom, between the two new towns. It could find no evidence that the inhabitants had given their consent. The court ad- hered to this position, notwithstanding that it created a difficult prob- lem for the judges. Here again the Dartmouth College19 doctrine was relied on. It was made applicable by the ruling that towns came within it when it was a matter of trusts of property for other purposes than corporate or municipal use.
In the view of the writer, there appears to be a certain inconsistency in the court's work in the Montpelier cases. The opinions considered the situation in which a new town was created from part of an old town, the latter remaining in existence on a curtailed basis. As nearly as can be made out, it appears that the court's view was that the old town would retain the property. This obviously does not fit with the proposition that the interest of the inhabitants, as established in the original charter, must not be redefined.
Jamaica v. Hart20 was explicit that the leases with which this study is concerned are enforceable contracts. In the case of such leases granted by towns, the selectmen, acting in their official capacity, are sufficient agents of the town.
16. 25 Vt. 696 (1853).
17. 27 Vt. 704 (1854) ; 29 Vt. 12 (1856). Supra, pp. 149-151.
18. 1 Aik. 180 (1826).
19. 4 Wheaton 518 (1819).
20. 52 Vt. 549 (1880).
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Franklin County Grammar School v. Bailey declared No. 258 of the Acts of 1884 unconstitutional on the grounds of violating the Dart- mouth College21 doctrine. The act had undertaken to appropriate lands to the use of schools in Richford, which lands had pertained to the grammar school. The grant to the latter was held to be an executed grant, or gift, and irrevocable. The only right left in the state was to see that the avails were used as specified, and this would be a judicial, rather than a legislative action. "The foundation of all property rights in real estate depends upon the irrepealability of such grants . . all the grants of lands in townships to the original proprietors are of this kind."22 If a consideration should be regarded as necessary in an exe- cuted contract or grant, such consideration could be found in the relief to the state of the burden of administering the lands.
Stern v. Sawyer23 was not a matter of lease lands, but contains dic- tum of great consequence for their status. Where land is leased for a term, the lessor cannot, by sale and conveyance of the whole or a part, disturb the lessee in his possession and enjoyment during the term, but can only convey his reversionary interest, and upon such conveyance the rent passes to the purchaser as an incident to the reversion. This is re- flected in the limiting provisions of the 1937 legislation authorizing sale of lease lands.
In addition to adhering to what has gone before, the opinion in the first Caledonia County Grammar School v. Kent24 case tied down the grants still further by holding that where a grant of land is made, it will be presumed that the grant was accepted in the absence of dissent.
In conclusion, the force of the doctrine established is reflected in the Asbestos Case.25 There the court was agreeable to the 1935 acts authoriz- ing the sale of the lands in question. But the opinion went to some length to stress that the acts were permissive rather than mandatory, that all parties concerned were agreeable, and finally, that the trust basically was not being disturbed.
For the most part, the problem of preservation of the obligation of contract has so arisen that the attention of the court has been directed toward the legislature. This, in part, is due to the fact that the state has
21. 4 Wheaton 518 (1819).
22. 62 Vt. 467, 475 (1889).
23. 78 Vt. 5 (1905).
24. 84 Vt. 1 (1910).
25. 108 Vt. 79 (1936).
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made no effective provision for supervising the administration of the lease lands, whereby the trustees could be brought to book. Fundamen- tally, however, the situation has been so because the lease lands arose as legislative grants26 and because any material modification of the trusts would normally be initiated in the legislature. It is to be remembered, too, that it was the function of the legislature to dispose of two shares, that for county grammar schools and that for a college; the legislature has also had a principal part to play in respect to those shares controlled in the towns, through such legislation as that establishing the nature of school district organization.
In view of this, it is thought well to present a summary of the rela- tion between the court and the legislature: the views of the former toward the responsibility, the powers and limitations thereon, of the lat- ter. The cases below cover the matter thoroughly.27 It is to be seen that a large portion of them have already been examined, especially under the last preceding topic. But there is usefulness to a direct inspection of the relationship because it is determinative of what could be hoped for in any future effort to modify the lease land system.
Essentially, there is nothing exceptional in the attitude of the Ver-
26. This, perhaps, is not strictly correct as to the grants in the Wentworth towns, inasmuch as grants were then a royal prerogative. Two reasons exist for embracing the Wentworth grants in the assertion: 1) that the colonial governor's council, which was theoretically a participant in the granting, partook of the na- ture of the legislative function; 2) the ruling in Bennington v. Park, 50 Vt. 178 (1877), by which "Wentworth towns" and "Vermont towns" are placed on equal footing in the law.
27. Orange County Grammar School v. Dodge, Brayt. 223 (1817) ; Poultney v. Wells, 1 Aik. 180 (1826) ; Caledonia County Grammar School v. Burt, 11 Vt. 632 (1839) ; Starksboro v. Hinesburgh, 13 Vt. 215 (1841) ; Corinth v. Newbury, 13 Vt. 496 (1841) ; Herrick v. Randolph, 13 Vt. 525 (1841) ; Orleans County Grammar School v. Parker, 25 Vt. 696 (1853) ; Montpelier v. East Montpelier, 27 Vt. 704 (1854) ; S. C., 29 Vt. 12 (1856) ; Atkins v. Randolph, 31 Vt. 226 (1858) ; White v. Fuller, 38 Vt. 193 (1865) ; Victory v. Wells, 39 Vt. 488 (1866) ; Benning- ton v. Park, 50 Vt. 178 (1877) ; Jamaica v. Hart, 52 Vt. 549 (1880) ; Franklin County Grammar School v. Bailey, 62 Vt. 467 (1889) ; Readsboro v. Woodford, 76 Vt. 376 (1904) ; United States v. United States Fidelity and Guaranty Co., 80 Vt. 84 (1907) ; Barre v. Perry and Scribner, 82 Vt. 301 (1909) ; Sargent v. Clark, 83 Vt. 523 (1910) ; Caledonia County Grammar School v. Kent, 84 Vt. 1 (1910) ; Rutland Ry., Light and Power Co. v. Clarendon Power Co., 86 Vt. 45 (1912) ; Caledonia County Grammar School v. Kent, 86 Vt. 151 (1912) ; Clark v. City of Burlington, 101 Vt. 391 (1928) ; University of Vermont v. Ward, 104 Vt. 239 (1932) ; O'Brien v. Holden, 104 Vt. 338 (1932) ; Brattleboro Retreat v. Town of Brattleboro, 106 Vt. 228 (1934) ; Jones v. Vermont Asbestos Corp., et al., 108 Vt. 79 (1936) ; In re Taft's Estate, 110 Vt. 266 (1939).
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mont court. Its position is basically that to be found generally in Ameri- can courts. The Vermont jurists have accepted, without material qualification, the views put forth in such cases as Dartmouth College v. Woodward,28 Fletcher v. Peck29 and Terrett v. Taylor.30 The Vermont court, it may be added, has been strict, indeed severe, in its insistence on this legal position.
For this study, the significance of the above lies in various details of the legal views applied by the Vermont court. The effect of the general doctrine is apparent, as to the system of lease lands, only when these detailed matters are noted. The very strict, literal reading of charters, combined with the "loose construction" attitude of reading intent into other legislative acts, is important, as is seen from various sections of the preceding chapter. It has resulted in limiting later efforts by the legislature to adjust lease land affairs. This is the more serious because it is only too apparent that the legislature frequently failed to exercise foresight in regard to the possible development of the state; it failed ordinarily to include sufficient reservations by which future legislatures could modify the lease land arrangements. The town charters are a particularly glaring example of this. And the difficulty has been aggra- vated by the court's refusal to take into account the low level of bill drafting ability in the early days when the charters were being written. Another criticism respecting the court's insistence on literal reading of the town charters as limitations on the legislature lies in the fact that the charters were not actually legislative writing. Whatever the legal theory, the practice, under both Wentworth and Chittenden, was that most town charters were drawn up in the executive offices.
One of the most important actions of the court was the development of the proposition that the lease lands held by the towns were non-gov- ernmental trust property. This has been of unlimited effect in reducing the opportunity of later legislatures to modify the grants, or their use. The outstanding example is the inability to cope with the problem as it has arisen from changes of town lines.
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