USA > Vermont > The Vermont lease lands > Part 22
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The conditions, thus established, are enhanced by the reasonable definition by the court of the grants as constituting public trusts. The basis, of course, is that expressed in the Asbestos opinion and found, too, in In re Downer's Estate.71 The essential point taken is that the public nature of the benefit, and of the trust, results from the indefiniteness of the beneficiaries.
The court's proclivity for emphasizing the intention of the parties is applied to the interpretation of trusts, as seen in the Caledonia72 and Ward73 cases, respecting lease lands, and in Gilkey v. Shepard74 and
Gilkey v. Shepard, 51 Vt. 546 (1879) ; Town of Barre v. School District, 67 Vt. 108 (1894) ; Capen's Admr. v. Sheldon, 78 Vt. 39 (1905) ; North Troy School Dis- trict v. Troy, 80 Vt. 16 (1907) ; Sargent v. Clark, 83 Vt. 523 (1910) ; Caledonia County Grammar School v. Kent, 84 Vt. 1 (1910) ; S. C., 86 Vt. 151 (1912) ; Powers and Peck, Admr. for Judevine v. Caledonia County Grammar School, 93 Vt. 220 (1919) ; Davis v. Union Meeting House Society, 93 Vt. 520 (1920) ; In re Downer's Estate, 101 Vt. 167 (1928) ; University of Vermont v. Ward, 104 Vt. 239 (1932) ; O'Brien v. Holden, 104 Vt. 338 (1932) ; Jones v. Vermont Asbestos Corp., et al., 108 Vt. 79 (1936).
67. 84 Vt. 1 (1910) ; 86 Vt. 151 (1912) ; 93 Vt. 220 (1919).
68. 104 Vt. 239 (1932).
69. 108 Vt. 79 (1936).
70. 104 Vt. 338 (1932).
71. 101 Vt. 167 (1928).
72. 84 Vt. 1 (1910) ; 86 Vt. 151 (1912) ; 93 Vt. 220 (1919).
73. 104 Vt. 239 (1932).
74. 51 Vt. 546 (1879).
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O'Brien v. Holden,75 which dealt with other classes of trusts. The point is important because the court has utilized the technique, with few ex- ceptions, to maintain the stability of the lease land system; that is, to contribute to its inflexibility. The exceptions are clearly just that. Pownal v. Myers76 is the most notable, and it has been seen that the opinion is radically out-of-line with Vermont doctrine. The Asbestos opinion77 may be regarded as the other principal exception in that it admitted of modification of the corpus of the trust, with important reservations or limitations. O'Brien v. Holden, speaking of trusts gen- erally, admits of the same possibility.78 The relative inflexibility of these trusts, involving land grants, is brought into perspective by a compari- son with Town of Barre v. School District79 and North Troy School District v. Troy.80 These cases concerned redistribution of trusts con- sisting of money funds, occasioned by certain changes in school district organization. No difficulty, such as has accompanied such changes re- specting lease lands, was encountered by the court in adjusting the trust funds to the new circumstances.
Those public shares pertaining to the towns have drawn important rulings from the court, of much influence in the history of the land system. The solution of relationships, by which the municipal corpora- tion is regarded as trustee and the inhabitants of the town as cestui que trust, has been a steady influence and is found to be well stated in the Montpelier cases81 and in the Asbestos Case.82 Capen v. Sheldon83 makes the same point with respect to the first settled minister's lot: that the legal title is in the town in its corporate capacity, determinable upon the settlement of a minister. The relationship was badly confused in the Pownal v. Myers opinion.84 Indeed, the opinion went so far as to equate the inhabitants and the voters, which, of course, is obviously wrong, at
75. 104 Vt. 338 (1932). 76. 16 Vt. 408 (1844).
77. 108 Vt. 79 (1936).
78. 104 Vt. 338 (1932). Although lease lands were lost as public rights in Uni- versity of Vermont v. Reynolds, 3 Vt. 542 (1831) ; Propagation Society v. Sharon, 28 Vt. 603 (1856) ; and Victory v. Wells, 39 Vt. 488 (1866), only the last could possibly qualify as an exception of this sort.
79. 67 Vt. 108 (1894).
80. 80 Vt. 16 (1907).
81. 27 Vt. 704 (1854) ; 29 Vt. 12 (1856).
82. 108 Vt. 79 (1936).
83. 78 Vt. 39 (1905).
84. 16 Vt. 408 (1844).
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least in respect to a benefit such as religion or education. Davis v. Union Meeting House Society85 does something of the same trick respecting the inherited trust there being considered. And, while the first explicit statement is to be found no earlier than in the Asbestos Case,86 the court has steadily adhered to the idea more lately expressed in Judge Moul- ton's assertion respecting trusts for religious purposes-that, in Ver- mont at least, municipal corporations are capable of being trustee. The point must not be minimized because it has had so little attention. An- other ruling would have made a profound difference in an important portion of the lease lands.
Accompanying the position described in the preceding paragraph is the holding that these town trusts are for non-governmental purposes and, consequently, that the lease lands constitute non-corporate prop- erty ; that they, in effect, are vested rights. By this position, the court has very largely prevented the legislature from exercising any control over the lease lands. The Montpelier cases,87 White v. Fuller,88 and Sar- gent v. Clark89 contain good expressions of this, and the Asbestos opin- ion90 accepts it and demonstrates some of the implications arising there- from.
It is worth noticing that, while the court has emphatically insisted on the trust character of the public lands, there has been nothing what- ever said at any time respecting supervision of the trust. In certain cases, such as those in which attempted conveyances were voided, and most urgently in the Caledonia cases,91 the court has spoken respecting the requirement that the trustees administer the lands for the benefit of the purpose of the grants. There have been instances in which the court has said that the legislature had the continuing authority to see that this occurred. But in each such instance the statement was negative in con- text ; it was said in the course of remarks denying to the legislature any power beyond this. The judges have been anything but diffident in ex- pressing their views in lease land opinions, but nowhere does one find the court suggesting that it might be well to provide a supervision and
85. 93 Vt. 520 (1920).
86. 108 Vt. 79 (1936).
87. 27 Vt. 704 (1854) ; 29 Vt. 12 (1856).
88. 38 Vt. 193 (1865).
89. 83 Vt. 523 (1910).
90. 108 Vt. 79 (1936).
91. 84 Vt. 1 (1910) ; 86 Vt. 151 (1912) ; 93 Vt. 220 (1919).
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accounting procedure equivalent to that performed by the probate court in the case of private trusts.
PUBLIC USE
The language applied in some of the charters, and the language early applied in governmental practice, including judicial practice, to the lease lands was that they were lands "devoted to public, pious and charitable use." It has been obvious that this concept has been determinant in the law expressed by the Vermont court in respect to those matters which have thus far been explored. The ruling as to perpetual leases of the public lands, for one, is clearly dependent on the concept. The next topic, tax exemption, is similarly related. Hence, it is of consequence to ex- amine the ideas of the Vermont court respecting "public use."92 Some- thing of this has already appeared during the course of the analysis of the problem of condemnation by eminent domain proceedings.98 In the Middlebury College case the point was made that ". . . the 'public use' involved in the law of eminent domain is not the 'public use' involved in the law of taxation. ",94 Thus, it is necessary to perceive in just what way the court has viewed the lease lands. Tax exemption is a par- ticularly critical topic, and those cases in which "public use" appears as a tax problem are most usefully developed in the next topic.
Two issues exist in which the Vermont court has not been clear nor steady in its position. One is on the question of whether municipalities
92. Pomeroy v. Mills, 3 Vt. 279 (1830) ; Abbott v. Mills, 3 Vt. 521 (1831) ; University of Vermont v. Reynolds, 3 Vt. 542 (1831) ; Burr v. Smith, 7 Vt. 241 (1835) ; Beach v. Haynes, 12 Vt. 15 (1840) ; Montpelier v. East Montpelier, 27 Vt. 704 (1854) ; Victory v. Wells, 39 Vt. 488 (1866) ; Drouin v. Boston and Maine R. R. Co., et al., 74 Vt. 343 (1902) ; Stiles, Collector of Taxes v. Newport, 76 Vt. 154 (1904) ; Swanton v. Highgate, 81 Vt. 152 (1908) ; Deerfield River Co. v. Wilmington Power Co., 83 Vt. 548 (1910) ; Grand Lodge of Masons F. & A. M. v. City of Burlington, 84 Vt. 202 (1911) ; S. C., 104 Vt. 515 (1932) ; Rutland Ry., Light and Power Co. v. Clarendon Power Co., 86 Vt. 45 (1912) ; Caledonia County Grammar School v. Kent, 86 Vt. 151 (1912) ; Johnson v. Jones, 86 Vt. 167 (1912) ; Scott v. St. Johnsbury Academy, 86 Vt. 172 (1912) ; Powers and Peck, Admr. for Judevine v. Caledonia County Grammar School, 93 Vt. 220 (1919) ; Vermont Hydro-Electric Corp. v. Dunn, et al., 95 Vt. 144 (1921) ; Gore v. Blanchard, 96 Vt. 234 (1922) ; St. Albans Hospital v. Town of Enosburg, 96 Vt. 389 (1923) ; Boyce v. Sumner, 97 Vt. 473 (1924) ; In re Downer's Estate, 101 Vt. 167 (1928) ; Middlebury College v. Central Power Corp. of Vermont, 101 Vt. 325 (1928) ; Brattleboro Retreat v. Town of Brattleboro, 106 Vt. 228 (1934) ; Jones v. Vermont Asbestos Corp., et al., 108 Vt. 79 (1936).
93. Supra, pp. 172-175.
94. 101 Vt. 325, 336 (1928).
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hold the fee of public lands ; the other has been a question of the extent to which the terms "public use" and "public charity" carry distinct and separate implications.
In Pomeroy v. Mills it was held that "the words for the use of the public, show that the intention was to give a mere easement."95 This had to do with land in Burlington set aside by the proprietors for use as a public square and part of which was later leased by the selectmen. And in Abbott v. Mills96 the court said explicitly that the public are not a body capable of taking the fee either by deed or otherwise. In Univer- sity of Vermont v. Reynolds, the doctrine was applied to lease lands. The court stated, in the first place, that the exemption in the statute of limitations for lands granted, sequestered or appropriated to public, pious, or charitable uses, applies to lands reserved or granted in a town charter for the use of a seminary or college. Then it went on, later, to say : "As to these rights of land ["the rights of land which are usually denominated public rights"] and particularly that one which the plain- tiffs claim, it is the use which is appropriated, and not the freehold."97 More recently, in Gore v. Blanchard, the general position was again ad- hered too: "Inasmuch as the public cannot take by grant, prescription, which presupposes a grant, in its strict sense, seems to have no applica- tion to highways."98 On the other hand, in Beach v. Haynes, the court said: "But the court think, for the ordinary town purposes, such as sites for town houses, and public commons, towns may be allowed to take ", 99
the fee of lands. . . " and the opinion in Gore v. Blanchard pro- , ceeded to admit: "Nevertheless, there are cases in which the doctrine of prescription has been applied to highways. . "100 In the Beach v. Haynes opinion101 the court attempted to resolve its difficulty by dis- tinguishing between grants "to the town" and grants "to the public," the latter being thought to be too abstract to take the fee.
The problem has been dealt with in various of the lease land cases, as in the Montpelier cases,102 Victory v. Wells,103 and the Asbestos
95. 3 Vt. 279, 280 (1830).
96. 3 Vt. 521 (1831).
97. 3 Vt. 542, 554 (1831).
98. 96 Vt. 234, 241 (1922).
99. 12 Vt. 15, 21 (1840).
100. 96 Vt. 234, 241 (1922).
101. 12 Vt. 15 (1840).
102. 27 Vt. 704 (1854) ; 29 Vt. 12 (1856).
103. 39 Vt. 488 (1866).
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Case,104 by considering the "town" as holding the legal title as trustee, with the "public" (or as the term has gone, the "inhabitants") standing as cestui que trust. However, at least for practical purposes, the court has essentially treated the lease lands as belonging to the respective grantees of them. This has been expressed, too, in such statements, by the court, as that the lands constitute an irrevocable grant or gift, and that the grants were executed contracts.
In the second of the two open questions the court has treated the lease lands as falling generally within the phrase "public, pious, and charitable." It should be seen simply as another instance in which the court has been less technical minded about the lease lands than about some other types of dedicated property. The matter can be stated in this way : that "public charitable use" is embraced within the broader general term of "public use." The distinction has practical consequences in such matters as taxation.
As to "public use," various of the cases cited show it to include rail- road service, and electric and other utility service, whether operated privately or publicly. The term "public charitable use" as developed by the Vermont court, is that which carries the connotations with which the lease lands are colored. The essential ideas are as follows : 1) That the beneficiary includes an indefinite group of people. This group may comprise either a large, or a relatively limited, portion of the total pub- lic. 2) As to the lease lands particularly, that the beneficiaries include both present and future generations. 3) That the benefit may be of a variety of forms, social, moral, intellectual, physical. 4) That the relevant portion of the public have an undoubted right to enjoyment of the bene- fit. This, however, means neither that any individual has an incontest- able right, nor that the benefit has to be free of charge. For example, a school may be classified as a public charity but still have the right to refuse admission to individuals not qualified and to charge tuition fees. 5) That there be a legal necessity that the property dedicated to the public use must continue to be so used-that is, that there is a require- ment that trustees of such property shall so operate it. This specification, of course, applies as well to property devoted to public uses other than charitable public uses : railroads are not capable of reducing their serv- ice on their own initiative.
Quotations from Boyce v. Sumner105 and In re Downer's Estate106
104. 108 Vt. 79 (1936).
105. 97 Vt. 473 (1924).
106. 101 Vt. 167 (1928).
-
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are in point. They contain statements which go far to illustrate the Vermont attitude and the interest in public welfare which is so pro- nounced in the court's responses in lease land cases. In the first, the court said :
Various definitions have been given of a charitable use or pur- pose, but perhaps none is better or more applicable . . . . than that given by the Supreme Judicial Court of Massachusetts in Old South Society v. Crocker, 119 Mass. 1, 20. It is said there : 'To give it [gift] the character of a public charity there must ap- pear to be some benefit to be conferred upon, or duty to be per- formed towards, either the public at large or some part thereof, or an indefinite class of persons.' 107
In the Downer case these words were written :
In a legal sense, a public charity is defined to be a gift applied consistently with existing laws for the benefit of an indefinite number of persons by bringing their minds and hearts under the influence of education or religion, by relieving their bodies of disease, suffering or restraint, by assisting them to establish them- selves in life, or by erecting and maintaining public buildings or works, or otherwise lessening the burdens of government. . In its widest sense 'charity' denotes all good affections which men ought to bear towards one another, and in that sense em- braces what is generally understood by benevolence, philanthropy and good will.108
There is great significance, too, in the statement from the court in Rut- land Ry., Light & Power Co. v. Clarendon Power Co .:
An attempt to give a sufficiently accurate and comprehensive definition of the term 'public use' would be a perilous undertak- ing. The difficulty, if not impossibility of formulating such a definition is everywhere recognized. . . . A determination of the character of a given enterprise cannot be made upon a considera- tion of legal principles alone. Economic conditions and the needs of the people must have attention.109
Burr v. Smith presented the fullest explanation encountered respect- ing the law of charitable uses and so will be quoted at some length :
I think we shall find, that societies, or bodies of men, unincor- porated, have ever been considered, at common law, as capable of receiving gifts or legacies, to be applied to charitable uses; and
107. 97 Vt. 473, 478 (1924).
108. 101 Vt. 167, 172-173 (1928).
109. 86 Vt. 45, 50, 53 (1912).
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that it has been the invariable policy of our state, to consider them as capable. . . . In this state, it appears to me, that a decision that a company of individuals are incapable of receiving gifts, for a public or charitable purpose, or that such a society should not be protected in the enjoyment of property given to them . . . would be at variance with all our received ideas since the establishment of the state-at variance with the constitutional provisions made on the subject, and directly at war with the principles of religious freedom. It has always been the practice in this state, and may be considered as their settled policy, to encourage voluntary asso- ciations for public, pious and charitable purposes. . . It has been considered by the community generally, that associations may be formed, money subscribed and collected, property given and received, for the promotion of any cause interesting to the public, and designed to subserve their interests, or for the en- couragement or promotion of charity, morality, learning or re- ligion. . . . Every constitution of government which has ever existed since we became a state, have recognized these voluntary associations as deserving of encouragement, and have considered them as standing on the same ground, whether simply united as a voluntary association, or incorporated by an act of the legisla- ture. The 41st section of our constitution provides -. that gifts and grants may be made for purposes of relief to the poor, and for upholding charitable purposes, having in view the moral, intellectual, and religious improvement of the objects which are from necessity general, uncertain and indefinite-[that] com- munities and associations might be united for the purpose of re- ceiving these donations and distributing them . .
[that ] the court are to be liberal in the construction of charitable be- 110 quests, to carry into effect the intention of the testator.
The Judevine opinion is another of the cases in which the court makes reference to this general interest in welfare: ". . . the solici- tude of the founders of the State, respecting the education of its youth, as shown by the provisions placed in the organic law concerning the same. ยป111
The upshot of all this is an extremely indefinite and ill-defined posi- tion, but certainly one fully broad enough to accommodate the lease lands. Regardless of other aspects of the court's pronouncements, one point stands forth clearly. That is that the judiciary shares in the com- munity interest in charitable endeavor.
110. 7 Vt. 241, 278-281, 306-307 (1835).
111. 93 Vt. 220, 227 (1919).
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TAX EXEMPTION
The analysis of the work of the Vermont court opened with what is regarded as the central doctrine by which to account for the continuance of the lease land system-the law of durable leases. It is to be closed by examination of the principal effect of the system: tax exemption-a topic of equal consequence with the matter of durable leases, and, as will be shown, one now having considerable reciprocal influence. It is the tax exempt status, as much as anything, which makes the lease lands a subject of importance in the state and appears, since 1937, to contribute to their continuance.
This matter of tax exemption, like that of the exemption from the statutes of limitations, has been primarily a legislative affair. The court has functioned only negatively, leaving the question alone-an even more passive role than that played respecting adverse possession. In a century and a half, but two cases were found in which the tax exemption of the lease lands was even mentioned! The subject may also be inferred, though, from the Asbestos Case opinion112 in which it was said that after a conveyance in fee simple the lands would no longer be public. Hence, it is to be presumed that they would be taxable.
Herrick v. Randolph113 is the only case reported in which the issue was a matter of tax exemption of lease lands. No other case even ad- mitted its consideration, and the court has avoided any dictum on the question. The only assumption available is that the exempt status of the lease lands is so thoroughly accepted throughout the state that even those who complain about it do not regard it as a reasonable possibility for a trial at law.114
112. 108 Vt. 79 (1936).
113. 13 Vt. 525 (1841).
114. This assumption is substantiated by two items from the experience of this research. The first is that the writer was informed by everyone with whom he talked around the state capitol that the lease lands were not taxable. When he in- quired as to the basis for this, he was told vaguely that it was from the early state constitutional provisions, or that that was simply the nature of the lease lands, be- ing public rights. There was, in effect, an unquestioning acceptance of an im- mutable "fact." The other corroborative item is found from acquaintance with the ways of land agents. When they discover lands properly belonging to their princi- pals, which have been bearing a tax, they informally negotiate with the town officers and secure a reimbursement of some portion of such taxes as have been collected, in lieu of lease rent which has not been collected. This is a remarkable transaction, when it is considered thoughtfully. There is no logical basis for it. If there is to be a refund of wrongfully collected taxes, it should logically go to
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This situation becomes the more remarkable when one observes the various cases before the court in which tax exemption of other "public, pious, and charitable" property has been made an issue and reviews a variety of other tax litigation.115 Vermonters have not displayed the same complacency respecting other properties-including properties ac- tively and obviously utilized in welfare enterprises.
Herrick v. Randolph arose over the assessment of taxes on the im- provements (buildings, etc.) on land which was lease land, pertaining to the "support of the ministry" group of lands.116 The plaintiff claimed a right of perpetual exemption from real property taxes. He based his claim on the general listing law in force at the time the charter of Ran- dolph was granted and the original lease was executed by the selectmen. This act exempted from taxation all lands in the state sequestered to public, pious and charitable uses. The court ruled against Herrick and found him liable for the taxes assessed. The opinion is significant be- cause its view established what became the settled practice and was ex- pressed in legislation : that although the lease lands are tax exempt, betterments thereon are subject to taxation. The general remarks in the case, respecting taxation in relation to the obligation of contract, are
the tenant who had paid such taxes. Certainly, the town has no real responsibility to the trustees of the lands respecting a failure of the trustee in not having admin- istered its lands.
115. Congregational Society of Poultney v. Ashley, et al., 10 Vt. 241 (1838) ; Morgan v. Cree, 46 Vt. 773 (1874) ; Willard v. Pike, 59 Vt. 202 (1886) ; Colton and More v. City of Montpelier, 71 Vt. 413 (1899) ; Stiles, Collector of Taxes v. Newport, 76 Vt. 154 (1904) ; In re Hickok's Estate, 78 Vt. 259 (1904) ; United States v. United States Fidelity and Guaranty Co., 80 Vt. 84 (1907) ; Swanton v. Highgate, 81 Vt. 152 (1908) ; State v. Clement National Bank, 84 Vt. 167 (1911) ; Grand Lodge of Masons F. & A. M. v. City of Burlington, 84 Vt. 202 (1911) ; S. C., 104 Vt. 515 (1932) ; Rutland Ry., Light and Power Co. v. Clarendon Power Co., 86 Vt. 45 (1912) ; Johnson v. Jones, 86 Vt. 167 (1912) ; Scott v. St. Johns- bury Academy, 86 Vt. 172 (1912) ; Town of Orange v. City of Barre, 95 Vt. 267 (1921) ; St. Albans Hospital v. Town of Enosburg, 96 Vt. 389 (1923) ; Boyce v. Sumner, 97 Vt. 473 (1924) ; Village of Hardwick v. Town of Wolcott, 98 Vt. 343 (1925) ; Town of Sheldon v. Sheldon Poor House Association, 100 Vt. 122 (1927) ; In re Downer's Estate, 101 Vt. 167 (1928) ; Clark v. City of Burlington, 101 Vt. 391 (1928) ; Town of Brandon v. Harvey, 105 Vt. 435 (1933) ; Brattleboro Retreat v. Town of Brattleboro, 106 Vt. 228 (1934) ; Jones v. Vermont Asbestos Corp., et al., 108 Vt. 79 (1936) ; Doubleday v. Town of Stockbridge, 109 Vt. 167 (1937) ; Spaulding v. City of Rutland, 110 Vt. 186 (1939) ; In re Taft's Estate, 110 Vt. 266 (1939) ; First National Bank of Boston v. Harvey, 111 Vt. 281 (1940).
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