USA > Vermont > The Vermont lease lands > Part 24
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It was pointed out by the court, in respect to the claim by the Asso- ciation, that if that view were valid, the legislature would not have in- cluded the last clause specifically covering poor farms.
That bill as it was finally passed was in keeping with the long- settled policy of the State concerning the support of the poor and indigent ; namely, that each town and city shall bear the burden of supporting its poor. . . . Few laws of the State have received more vigilant attention by our lawmakers than those relating to the support of the poor, [160] and, so far as we are aware, no at- tempt has ever been made to charge one town with the burden of supporting the poor of another town, even in the smallest amount, unless such be the effect of the provision under consideration.161
The court considered that the last clause of section 362 turned on the word "therein" and, thus, such lands and buildings could be exempt only when located in the same town as that of the poor being supported. The court refused to consider the incorporating act of the same session, by which the legislature had recognized the joint effort of the several towns, as being in pari materia.
It takes no extensive thought on the matter to perceive that this position is a far cry from the treatment accorded the lease lands. Cer- tain groups of them assuredly fall within the scope of this limitation.
159. Laws of Vermont, 1906, pp. 729-730.
160. It might be added that these same laws have fostered a fantastic amount of litigation. The Vermont Reports abound in cases between towns concerning their respective responsibilities for the poor.
161. 100 Vt. 122, 129 (1927).
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The grammar school lands are perhaps the most in point since the de- velopment of the high school system in the state. As the situation now prevails in some counties, the secondary school in some one town de- rives income from lands located in other towns (which other towns may well be supporting their own secondary schools) ; and, furthermore, those other towns are deprived of tax revenue from such lands. The same may be said for both the University and S. P. G. rights since each of these rights covers approximately a half of the towns in the state. Yet, there is no suggestion that the principle should apply to these lease lands.
CASES BEFORE THE UNITED STATES SUPREME COURT
Thus, the Vermont court in relation to the lease land system. Before turning to the legislature, the contacts made with the lease lands by the United States Supreme Court should be observed. Three cases have brought the lands to the attention of the federal judges.162 All of them came relatively early, and all of them were a result of the effort by Ver- mont to dispossess the Episcopalians of the lands granted in the Went- worth charters for the benefit of the activities of the Church of Eng- land.163
The first, Pawlet v. Clark,164 concerned the right which was reserved in the charter "for a glebe for the Church of England." The legislature passed an act in 1805 entitled, "An act directing the appropriation of the lands in this state, heretofore granted by the government of Great Bri- tain to the Church of England as by law established."165 Action conse- quent upon this legislation resulted in the litigation.
The act asserted that such grants were in the nature of public reser- vations, and as such became vested by the Revolution in the sovereignty of the state. It proceeded to grant the land to the several towns and made it the duty of the selectmen to sue for and recover them and to lease them according to their best judgment and discretion, and appropriated the avails to the use of the schools in the town.
162. Town of Pawlet v. Daniel Clark and Others, 9 Cranch 292 (1815) ; So- ciety for the Propagation of the Gospel v. New Haven and Wheeler, 8 Wheaton 464 (1823) ; Society for the Propagation of the Gospel v. Town of Pawlet and Ozias Clarke, 4 Peters 480 (1830).
163. An interesting sidelight is that all three cases were certified to the Su- preme Court by the United States Circuit Court, the judges in the latter, in each instance, being divided in opinion.
164. 9 Cranch 292 (1815).
165. Lazes of Vermont, 1805-1807, 1805, pp. 127-129.
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A society of Episcopalians in Pawlet had contracted, in 1802, with the Reverend Bethuel Chittenden of Shelburne to function in Pawlet and to receive the avails of the glebe land. Chittenden leased to Clark and others. He died in 1809 and was succeeded by one Brownson who received the rents until 1811; then the society regularly settled the Reverend Stephen Jewett, who took the rents. The litigation was a suit in ejectment to recover the lots.
The opinion was delivered by Judge Story and was long and detailed in its treatment of the problems before the court. He settled quickly the question of jurisdiction, raised by Daniel Webster, who had argued that there was not a sufficient basis for federal action.
In a general way, Story assumed that the Vermont area had been in the New Hampshire jurisdiction and been separated therefrom. But the essential point was that Vermont had not existed in 1761, at the time of the Pawlet grant, and New Hampshire clearly was unrelated in 1805, at the time of the Vermont grant of the glebe to the town. Hence, the action came within the provision allowing for federal jurisdiction of conflicting claims based on grants from different states.
The legal nature of the grant of the glebe in the town charter, and the status of the grant in relation to the grantee, Story said, "was diffi- cult."166 In his effort to resolve it, he made an exhaustive survey of the English law relative to the Church of England. Briefly, he found that such a grant is in abeyance for want of a grantee until there is a duly settled parson, who becomes a corporation sole, capable of taking in succession. The grant cannot have been regarded as a conveyance in trust, "for at this early period trusts were an unknown refinement."167 However, the grant was not to be considered void despite the fact that, "In general no grant can take effect unless there be a sufficient grantee then in existence."168 It would form an exception, "like the haereditas jacens of the Roman Code in expectation of an heir,"169 and should be considered as a public appropriation or dedication to pious uses. The land would have passed out of the donor, the crown being the patron of the future benefice, and ". . . it would not be competent for the crown to resume it at its own will, or alien the property without the same con- sent which is necessary for the alienation of other church property."170
166. 9 Cranch 292, 323 (1815).
167. Ibid., p. 331.
168. Ibid., p. 330.
169. Ibid., p. 331.
170. Ibid., p. 332.
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He then found that by provincial statute of 13 Ann, chapter 43, the towns in the province of New Hampshire were authorized to choose, settle and maintain their ministers, as well as to build and repair churches, etc. Other than this, the common law of England prevailed. Hence, "The respective towns in their corporate capacity had no control over the glebe . . . but ... the glebe could not, before the erection of a church, be aliened by the crown without their consent."171
Returning to the nature of the English church:
But a mere voluntary society of Episcopalians within a town, unauthorized by the crown, could no more entitle themselves, on account of their religious tenets, to the glebe, than any other so- ciety worshipping therein. . . . The church entitled, must be a church recognized in law for this particular purpose. Whenever, therefore, within the province previous to the revolution, an Epis- copal church was duly erected by the crown, in any town, the par- son thereof regularly inducted had a right to the glebe in perpetual succession. Where no such church was duly erected by the crown, the glebe remained as an haereditas jacens, and the state which succeeded to the rights of the crown, might, with the assent of the town, alien or encumber it. . 172
He proceeded to review pertinent Vermont legislation, to determine its effect. He found that in 1787 selectmen were authorized, for a seven- year period, to care for and inspect glebes and lease them for the same period, to recover possession of them, ". . . but an exception is made in favor of ordained Episcopal ministers, who during their ministry within the same term, were allowed to take the profits of the glebes within their respective towns. . . "173 ; that an act of 1794 granted to the towns the entire property of the glebes, for the sole use and support of religious worship, and authorized selectmen to recover possession and lease ; that in 1799 this last act was repealed; and that in 1805 the glebes were again granted to the towns, for use of schools in such towns, with selectmen given the power to sue for possession and to lease.174 The effect of these acts of legislation was to make the ". . . towns respec- tively entitled to all the glebes situate therein which had not been pre-
171. Ibid., p. 334. 172. Ibid., pp. 334-335.
173. Ibid., p. 335.
174. Laws of Vermont, 1787, pp. 7-8, October Session; ibid., 1794-1796, 1794, pp. 101-103; ibid., 1799, pp. 11-12, October Session; ibid., 1805-1807, 1805, pp. 127- 129.
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viously appropriated by the regular and legal erection of an Episcopal church within the particular town."175 (He regarded the act of 1799 inoperative, in any case, it being beyond the power of the legislature to divest the rights granted in 1794. The act of 1805 he considered, in the same way as did Judge Moulton the legislation of 1935, to be simply a new right conferred which the towns might or might not exercise at their own pleasure-it could not rescind the grant as in the act of 1794 which had allowed the avails of the land for religious worship.) Thus it is found that the glebe right was transferred to the towns except where there was the required Episcopal ministerial establishment. The writer has been unable to determine in how many, or in which towns, this latter condition prevailed. He is informed, verbally, that they were few.
It is in this opinion that the remarks were made concerning the New Hampshire law of the public rights, to which reference was made earlier.176 It is worthwhile to quote them :
There is another view of the subject which if any doubt hung over that which has been already suggested would decide the cause in favor of the Plaintiffs. And it is entitled to the more weight because it seems in analagous cases to have received the appro- bation and sanction of the state courts of New Hampshire. In the various royal charters of townships in which shares have been reserved for public purposes (and they are numerous) it has been held that the shares for the first settled minister and for the bene- fit of a school, were vested in the town in its corporate capacity ; in the latter case as a fee simple absolute, in the former case as a base fee, determinable upon the settlement of the first minister by the town. ... The foundation of this construction is supposed to be that the town is by law obliged to maintain public worship and public schools ; and that therefore the legal title ought to pass to the town, which is considered as the real cestui que use. By analogy to this reasoning the share for a glebe might be deemed to be vested in the town for the use of an Episcopal church; and then before any such church should be established, and the use executed in its parson, by the joint assent of the legislature and the town, the land might at any time be appropriated to other purposes.1 177
This case resulted in a large transfer of lease land acreage from one
175. 9 Cranch 292, 336 (1815).
176. Supra, p. 138.
177. 9 Cranch 292, 337 (1815).
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trust to another, but cannot be accounted a loss of lease lands because the shares were still sequestered for public use.
The two other cases were efforts by the S. P. G. to secure the rights reserved in the Wentworth charters for the benefit of that organization. The New Haven case resulted from action taken under authority of an act of 1794 by which the Vermont legislature granted the S. P. G. rights to the respective towns to their use forever, for the support of schools.178 The act empowered selectmen to sue for and recover, and to lease the lands. The selectmen of New Haven made a perpetual lease in 1800 to William Wheeler, who immediately entered upon the land and had ever since had possession thereof.
Other material facts stated were that the S. P. G. had been chartered during the reign of William III and had existed ever since as a cor- poration with authority to hold estates, etc., all members thereof being subjects to the king of Great Britain; that New Haven had been char- tered in 1761, divided legally, and the right at issue set to the S. P. G .; that, "The plaintiffs never entered upon such lands, nor upon the de- manded premises, nor in any manner asserted a claim or title thereto, until the commencement of this suit."179
The town presented three principal contentions :
1) That the capacity of the plaintiffs, as a corporation, to hold lands in Vermont, ceased by, and as a consequence of, the revolu- tion ;
2) That the society being, in its politic capacity, a foreign cor- poration, it is incapable of holding land in Vermont, on the ground of alienage; and that its rights are not protected by the treaty of peace ;
3) That if they were so protected, still the effect of the last war between the United States and Great Britain, was to put an end to that treaty, and, consequently, to rights derived under it, unless they had been revived by the treaty of peace, which was not done.180
The opinion opened by premising the S. P. G. to be a private eleemo- synary corporation capable of purchasing and receiving real estate.
Depending on the rulings in earlier U. S. opinions,181 the court
178. 8 Wheaton 464 (1823). Laws of Vermont, 1794-1796, 1794, pp. 114-116. 179. 8 Wheaton 464, 467 (1823).
180. Ibid., p. 480.
181. Dawson's Lessee v. Godfrey, 4 Cranch 320 (1808) ; Terrett, et al. v. Taylor, et al., 9 Cranch 43 (1815) ; and Dartmouth College v. Woodward, 4 Wheaton 518 (1819).
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quickly disposed of the argument that the rights had been lost by the Revolution. As to alienage, Mr. Justice Washington was a bit tart. The fact of the Vermont courts having no jurisdiction over a British cor- poration to enforce the proper administration of the trust was consid- ered as of no consequence whatever. It was to be assumed that the British courts could be trusted to do this. And further on: "For aught that appears to the contrary, the society was, at the moment when the "182 act passed, fulfilling the trusts confided to it in the best manner. .
This phase of the opinion concluded simply :
In the present case, the plaintiffs were, at the period of the revolution, entitled to the legal estate in the land in question, under a valid and subsisting grant; and the only question is, whether the estate so vested in them, was devested by the revolu- tion, and became the property of the State? We have endeavored to show that it was not.183
The effect of the treaty of peace was settled in terms of the decision in Orr v. Hodgson184 by which such estates were found to be protected by the sixth article of the treaty. The Vermont legislation of 1794 was of inferior authority to the treaty of 1783 and, so, void.
The third contention was no more impressive to the court. The War of 1812 could not divest rights of property which had vested under the preceding treaty: "Such a construction would overturn the best estab- lished doctrines of law, and sap the very foundation on which property rests."185
The S. P. G. had fared better than the Church. Its right had been confirmed in the court of last resort. It still remained, however, to gain actual possession of the various shares in the different towns. The rec- ords of the Diocese indicate that this was not easy. Feeling in some places ran so high that the towns and those occupying the lands were reluctant to accept the fact of the decision. Various suits in ejectment were necessary to enforce the federal decision in particular instances. In the Town of Pawlet resistance was so stubborn as to bring the ac- tion into the federal court and conclude with another opinion from the United States Supreme Court.186
182. 8 Wheaton 464, 485 (1823).
183. Ibid., p. 487.
184. 4 Wheaton 453 (1819).
185. 8 Wheaton 464, 494 (1823).
186. S. P. G. v. Pawlet and Clarke, 4 Peters 480 (1830).
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The town, under the 1794 act of confiscation, had leased the lot to Ozias Clarke, who had previously been on the lot without right, as had his father before him, who had entered upon the land in 1780, so that the Clarkes had been on the land for more than forty years before this action was brought. As a consequence of this situation, the case varied from the New Haven action. Here, the issue was likewise raised as to whether the S. P. G. was a corporation capable of taking the grant ; there was put, however, the further question of the effect of Vermont statutes of limitations in relation to the long adverse possession by the Clarkes.
The agreed statement of facts included data on the lease, items re- specting various moves of the S. P. G. toward administering the lands, and various acts of the Vermont legislature. The opinion was another from Judge Story.
In respect to the first issue, he noted the charter of the S. P. G .; he pointed out that the grant to it in the Pawlet charter constituted recogni- tion; and he further noticed that the Vermont act of 1794 itself ad- mitted the existence of the corporation and its capacity, by the wording of the preamble to the act. He concluded this portion of his opinion by adverting to the decision in S. P. G. v. New Haven.187
A careful review of the various statutes of limitations, between those of 1783 and 1819, revealed that the court could not consider the Clarke occupancy as protected from the action, which was brought in 1824. The occupancy was regarded, not as an ouster, but as an intrusion until the lease was granted in 1795. The land was protected by exemptions of public, pious and charitable lands until 1819, at which time such pro- tection was removed for the S. P. G. lots. In fact, this act of 1819 showed that the S. P. G. lots were previously considered as protected.188 So that at no time did the Clarke occupancy extend the prescribed time period.
As a subsidiary issue, the court disposed simply of the question of mesne profits for the plaintiff. It found that Vermont legislation, effec- tive during the period of time under consideration, prohibited recovery of mesne profits except as consequent on improvements made by plain- tiffs. The treaties of 1793 and 1794 did not apply: "They take the bene-
187. 8 Wheaton 464 (1823).
188. Laws of Vermont, 1819-1821, 1819, pp. 26-27.
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fit of the statute remedy to recover their right to the lands; and they must take the remedy with all the statute restrictions."189
Besides the immediate effect of these three decisions on the particu- lar rights involved, it is seen that the whole system of public lands in Vermont was before the eyes of the court, including the practice of perpetual leases. The court tacitly acquiesced in the characteristics of the system as a public institution. Nowhere in the three opinions is there any dictum which would indicate a disapproval by the court of the rela- tionships established by Vermont practices.
189. 4 Peters 480, 510 (1830).
Chapter VI THE LEASE LANDS AND THE LEGISLATURE
This section is intended only to high-light the course of legislation, as related to the lease lands. There will be no exhaustive review of in- dividual acts. Rather, the emphasis will be on the nature of policy, changes of importance in policy, or lack of a clear-cut policy, as ex- pressed by the legislature.
The several lists of acts of legislation contained in Appendix B are believed to be complete for the subjects covered therein. It must be ad- mitted here that there is a possibility of omission of acts. As with the Reports of the court, the indices in the volumes of the Laws were not reliable for the purpose of this study. Consequently, the procedure of the research had to be a page-by-page review of the Laws of Vermont for the period of approximately 150 years. Despite this effort, two facts militate against certainty of coverage. One is that over a considerable period of time, the titles of acts are not trustworthy as to the contents of the acts. The other, noted before, was the early custom of including various subjects within a single act, such subjects at times having little relationship. Nevertheless, if there should, perchance, be omissions, they are certainly few and unimportant. This assertion is safe because of the legislative custom in Vermont of reference to previous acts on the same subject. Furthermore, the various compilations of the laws were studied. Several of them are carefully annotated respecting the session laws pre- ceding the compilations in question. Thus, two more-or-less adequate cross-checks were available.
In any case, the compilation in Appendix B is assuredly useful for those who may wish to pursue further any particular aspect of the lease lands. Probably the most potentially useful section is that containing the acts respecting town and county boundary line problems. (As for the other topics, the court has done much to crystallize the situation of the lease lands.) Here is the point of departure for any thoroughgoing effort to identify individual parcels, or to determine accurately the position of the towns with regard to sequestered lands.
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Insofar as the material has been parallel, this section is developed in the same order of topics as was followed in the analysis of the work of the court. It will be seen that there is not a complete parallel simply because there are topics of concern in the one section which have no place in the other.
LEASES
Legislation affords no generalization of a policy respecting disposi- tion of the public lands by lease, or otherwise. It will be seen later that the legislature has made broad over-all policy on the lands in certain matters such as tax exemption and the application of statutes of limita- tions. Such is not the case, however, in the matter of leases. Indeed, a study of pertinent laws tends to support the view that the doctrine re- specting durable leasing of the public lands developed chiefly in the hands of the judges. The legislature has simply treated each individual situation individually, and one finds a wide variety of provisions for the various groups of lands. So much so that it has not seemed useful to compile them as a separate topic. They will be found with the laws per- taining to the various classes of lease lands. This much can be said : the product of the legislature indicates a lack of policy respecting the public lands as an institution of the state, indeed an absence of an appreciation that the lands constituted a political institution, or system.
CONVEYANCING
The laws respecting conveyancing1 represent a variety of legislative interests and indicate thereby something of the condition of land affairs in the state. They include the early provisions for recording conveyances in town and county clerks' offices ; prohibition of title of religious prop- erty vesting in any person by designation of his ecclesiastical office; sev- eral attempts to solve the problem of conveyance of property while that property is held adversely by a third party ; provision for quieting titles conveyed by a collector's deed ; and other topics of like nature. A par- ticularly interesting act, for those persons concerned with the lease lands, provided :
Any person conveying knowingly, with intent to defraud, any encumbered real estate, who receives any consideration for such conveyance without notifying the recipient of the title, shall be
1. App. B, sec. 1.
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subject to a fine not to exceed $1000, or to a penalty not to exceed three years in prison, or both.2
Several laws have immediate interest respecting the public lands, among which may be included the act authorizing the sale of the Dart- mouth College holdings in Wheelock.3 One, in particular, is noteworthy.4 It authorized the selectmen of Irasburgh to convey by deed "grammar school lot number one hundred and ninety-two in said town." The pro- ceeds were to be kept in trust, and the interest was to go to such in- corporated academy or grammar school as a majority of the town's legal voters should direct. Why this should have been enacted, or what action ensued, is not known.
Interestingly, the University was authorized, in 1925, to convey its lease lands, by quit-claim deed or otherwise, insofar as this could be done without injury to the rights of lessees. The avails were to be kept intact and the income devoted to the purpose of the original trust. It would appear not to have been effective in practice. People at the University are unaware of it. Indeed, it would seem to have made the 1935 act un- necessary. Furthermore, it contained a requirement that the University report biennially to the legislature "as to the exact status of said funds."5 No evidence was found of any such reports.
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