USA > Vermont > The Vermont lease lands > Part 25
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Two acts which attract attention provided for transfer to the state of the property of the Lamoille and Orange county grammar schools, for so long as the state should operate educational institutions at those places.6 In the first instance the conveyance was by a ninety-nine year lease. In the second, it was by "assigning, transferring and conveying." Thus we find the state in the position of administrator of lease lands. In the case of the Randolph school, the act specified that the state Treas- urer should administer trust property. Yet, the writer could obtain no information about this from the Treasurer's office.
This group of laws, of course, includes the legislation of 1935 and 1937 which authorized the sale of lease lands and which has already been discussed.
Another act of 1937 is somewhat ambiguous and, hence, doubtful of
2. Laws of Vermont, 1878, p. 61.
3. Ibid., 1849-1851, 1851, p. 140. This act is pertinent because it authorized the sale of land under lease only to lessees who wished to purchase. Thus, it was to some extent less liberal than the acts of 1935 and 1937.
4. Ibid., 1886, p. 214.
5. Ibid., 1925, p. 52.
6. Ibid., 1910, pp. 64-66; ibid., 1931, pp. 199-200.
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its application to this study. It provides for transfer of property by an incorporated academy, or other educational institution, to the town school district or incorporated school district in which the incorporated in- stitution is situated. The act is questionable in that its wording might, or might not, be interpreted to include public lands held by the incorporated school.7
NEW YORK-NEW HAMPSHIRE CONTROVERSY
The legislature never spoke definitively respecting the New York- New Hampshire controversy. The nearest approach to such an action was the legislation implementing the agreement reached by the boundary commissions of New York and Vermont. This included the original act8 as well as subsequent acts levying a tax to pay the $30,000, providing for setting boundary monuments, etc. However, the legislature concerned itself variously with the residue of the controversy, notably by a series of acts which took notice of conflicting land claims and prohibited action respecting such claims in the courts. These acts varied. Some simply suspended the use of the courts for a specified time ; one provided for a commission to hear disputes; and in one case the legislature itself as- sumed the function of a chancery court and issued a decree in the form of an act. Of other pertinent acts, the following will illustrate the variety to be found and the general character of the legislation relating to this subject : one hundred dollars was appropriated to be paid to Reuben Jones of Jay, New York, as ". .. compensation for his services in sup- port of the claims of the inhabitants of the New Hampshire Grants, before the organization of this State."9
It is not surprising that such should be the legislative record. Vari- ous sources, such as the journals of the time, indicate clearly that the greater part of the membership of the legislature took for granted the validity of the New Hampshire grants and the relationship with that province which the grants presupposed and, conversely, that they saw no merit in the New York claims.
STATUTES OF LIMITATIONS
The statutes of limitations respecting land affairs, enacted by the Vermont legislature in the early period, present a somewhat bewildering
7. Ibid., 1937, p. 110.
8. Statutes of the State of Vermont, Revised (1787), pp. 259-261.
9. Lazes of Vermont, 1819-1821, 1821, p. 121.
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picture. Considerable effort is required to sort them out to a point where one can discern the status of the public lands at any given time. Judge Story's analysis of the position of the S. P. G. right gives a good ex- ample of its complexity.10 In twenty years' time, between 1783 and 1802, there were nine enactments of importance.
A review of the whole record might, at first glance, lead to the con- clusion that the legislature had vacillated in its policy of protection of the public lands from adverse possession. There is at least some plausi- bility to this conclusion, but, taking the record in its entirety, it is not the correct one. Despite some see-sawing in the statutes, the public rights were actually protected from adverse possession, excepting the S. P. G. right.
Because of its influence in contributing to the preservation of the lease land system and because of the complexity of the picture, it is thought to be useful to portray the development of this legal topic in some detail.11
The first enactment on which information is now available occurred in 1783. It was simple and provided a three-year limitation on actions. No exemption of the public lands was included. A year later another act, in effect, nullified that one by suspending use of the courts in land con- troversies. Again, after another year, the act of 1785 continued the three- year limitation, but this one specifically exempted the public lands.
In March, 1787, the whole business was overhauled, the period of limitation being changed from three to fifteen years. Here there was no exemption of the public lands, but the S. P. G. was conceivably pro- tected, undoubtedly by inadvertence, through a clause exempting the property held by "persons beyond seas, outside of the United States."12 In 1790 an act moved the effective date of this statute to December, 1787.
On November 6, 1797, an act was passed which provided that all actions accruing under earlier statutes of limitations were to remain in full force and effect. Four days later, a complete statute of limitations was passed, repealing and superseding the act of 1787. For the purpose
10. S. P. G. v. Pawlet and Clarke, 4 Peters 48 (1830).
11. The individual acts are not cited here as they are all to be found in App. B, . 4.
12. Judge Story alluded to this but did not rule on it, as being unnecessary to the case, since he found the S. P. G. right protected by a later act. However, the tone of his remarks leads to the view that the clause could well have been relied upon, if needed. S. P. G. v. Pawlet and Clarke, 4 Peters 48 (1830).
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of this study, it contained the same provisions. That is, there was no exemption of the public lands, but there was the protection for persons beyond seas.
It seems to the present writer, as an inescapable conclusion, that the omission of protection of the public lands was by oversight rather than intention. The first reason for this view is the nature of the whole legis- lative record of the time. A study of the laws brings to light such de- fects on many subjects other than the lease lands. These instances are high-lighted by subsequent acts of amendment intended to repair such failures. Indeed, in many instances, the subsequent amending acts were explicit in respect to the faults of the earlier acts to which they referred. In other words, this omission of protection of the public lands can be regarded simply as an example of the lack of experience and the condi- tions of turmoil from which the legislature suffered. This position is sup- ported by the subsequent reasons offered, the next of which is the fact that presently one finds the statutes of limitations changed again so as to protect the public lands, as they had been by the 1785 act. Finally, it is difficult to accept the proposition that the legislature of that day would intentionally have singled out the S. P. G. right, from all the others, and afforded it protection. It must be remembered that this was the very time during which the legislature was concerned to confiscate the glebe and the S. P. G. rights.
In any case, the situation was soon changed. In 1801, an act amended the act of November 6, 1797, to exempt the public lands. And in 1802 a new statute of limitations was written which included the exemption. In fact, this act exempted them from "any statute of limitations hereto- fore passed." It is to be seen that this change occurred fourteen years after the protection had been removed in 1787, and inasmuch as the latter legislation set a limiting period of fifteen years, the public lands would not have been liable to loss by failure of the trustees to bring action.
The next step in the development occurred in 1819 when the legis- lature removed the protection afforded by the 1801 and 1802 acts, so far as the S. P. G. right was concerned. In 1832, following Judge Story's remarks in the 1830 Pawlet case,13 the protection of "persons beyond seas" was repealed.
In 1839 a notable step was taken, providing that the public lands, gen- erally, should not be exempted after January 1, 1842. Apparently, the
13. S. P. G. v. Pawlet and Clarke, 4 Peters 48 (1830).
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legislators considered that the trustees should by then have had sufficient opportunity to protect their grants. This provision appears in the Re- vised Statutes of 1839 and the Compiled Statutes of 1850.14
It would seem, however, that the trustees of the public lands were able to convince the legislature otherwise because in 1854 that provision was repealed. Furthermore, the 1854 act specifically stated that all of the public lands were exempted and went on to state that ". . . any proper action for the recovery of such lands may be, at any time hereafter, commenced and prosecuted to final judgment and recovery of posses- sion."15 As with the earlier lapse of protection, this one was terminated before the prescribed fifteen-year limitation so that, again, the trustees had, in effect, enjoyed protection.
It is to be noticed, too, that the S. P. G. right again enjoyed protec- tion after a period of thirty-five years. As has been remarked earlier, it is not known to what extent the lands pertaining to this right were lost in that time.
The act of 1854 closes the development, so far as the lease lands are related to the statutes of limitations. The provisions of that act have been retained and appear, unchanged, in all subsequent compilations of the laws, including the latest.
An interesting side-light on the attitude of the legislature is avail- able in an act of 1811 which falls within this topic because it took ac- count of the problem of adverse possession of the public lands in unusual circumstances. The act demonstrates the interest of the legislators in the public rights. It summarizes certain matters in the land history of the Town of Shelburne, including the fact that in the early settlement no allotment was made for the public shares. It concludes by specifying certain numbered lots for each share and then authorizes the selectmen to substitute others, "in lieu," in case any of those should have been oc- cupied adversely.
BETTERMENTS ACTS
The so-called betterments acts have a close relationship to the statutes of limitations, and they illuminate, as well as any piece of data can, the confused condition of land and land affairs in Vermont's early period. The first of them was enacted as early as 1780. They appeared from time to time in the laws, as the legislature saw fit to revise their pro-
14. Revised Statutes (1839), ch. 58, sec. 4; Compiled Statutes (1850), ch. 61. sec. 4.
15. Laws of Vermont, 1852-1854, 1854, p. 17.
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visions.16 The last one appears as late as 1856. The very nature of the acts is significant, and the revisions and amendments indicate the extent of uncertainty even in the minds of the legislators. The Journal of the General Assembly for 1785 shows that the passage of these acts was apt to follow extended and stormy debate on land problems.17 As to the lease lands, here, too, the legislature failed to follow a firm policy. Only the acts of 1785 and 1800 protect the trustees of the public lands from suits for recovery on betterments. However, the omission of the specific exemption of the public lands in the later acts need not be regarded as too serious for the trustees. The act of 1820 and all later versions con- tained a proviso that the procedure for recovery on betterments should not apply to persons entering upon land after the date of the act. Pre- sumably, the trustees would have had a sufficient opportunity by 1820 to locate lands which had been so occupied.18
EASEMENTS
The acts found in section 6 of Appendix B, respecting the general problems of easements are various, dealing with matters of highways, turnpikes, railroads, and flood control flowage. They were included in the study as being representative of Vermont conditions. Among others, they show up both the early state concern to develop lines of communica- tion and the difficulties sometimes encountered by the state in securing local cooperation.
The first point to be observed is that the general nature of the law in Vermont is not unusual. The second and most immediately interest- ing point for this study is that in only two acts was there any reference, of any kind, to the public lands. One has already been discussed.19 This is the act by which the legislature undertook to iron out highway prob- lems between Montpelier and East Montpelier and, in so doing, accepted the fact of highway easements existing on those public lands. The other act was earlier and took the opposite position, by implication.20 It was
16. See App. B, sec. 5.
17. Journal of the General Assembly, October 1784 and June 1785, 1785, pas- sim.
18. An exception to this statement must be recognized with respect to the S. P. G. right. It will be recalled that the United States Supreme Court's con- firmation of the right in the Society did not occur until 1823: S. P. G. v. New Haven and Wheeler, 8 Wheaton 464.
19. Supra, p. 175, n. 320.
20. Laws of the State of Vermont, Revised (1797), App., pp. 71-79.
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basically an act laying a tax on land for highway development. The pub- lic lands were exempted. The most interesting aspect of the law, how- ever, was that the public lands were exempted from the customary allot- ment of land for highways. This practice of allotment has not before been described. It had its background in the Wentworth charters. In those instruments, there was the provision that, of the total acreage of the grant (customarily 23,040 acres), an allowance of 1040 acres for "High Ways and unimprovable Lands by Rocks, Ponds, Mountains and Rivers" should be set aside before division of the grant should occur.21
While this provision was not included in the Vermont charters, the custom was continued in practice by the procedure in Vermont of de- ducting five acres on the hundred in laws levying a land tax for high- ways. The deduction was based on the presumption that such a propor- tion of land should be available for sequestration in use as highway right-of-way. Thus, the act in question inevitably leads to the conclu- sion that the legislature then considered the public lands as exempt from the five percent allotment of acreage for highway use. This was the only act which treated the public lands in this way ; later acts failed entirely to mention them.
PROPRIETORS' DOINGS
The acts listed under the title "Proprietors' Doings"22 have two uses. Like the betterments acts, they demonstrate thoroughly the conditions of turmoil and confusion in which land affairs got under way in Ver- mont. They also are essential in any further study of the lease lands which should attempt to determine the lands in any particular town. There are included a few general acts regulating proprietors' activities where the nature of the provisions seemed to have a place in this com- pilation. It should be understood that there were numerous other gen- eral acts specifying proprietors' procedure which have not been included. These dealt with such matters as the mode of publication of anticipated meetings, etc. Although not discussed here, the fact should not be ignored that the legislature strove valiantly and frequently with the problems created by the proclivity of proprietors for unorthodox transactions.
One other explanatory remark is in order. The subject matter of acts in this section is somewhat broader than is indicated by the section title.
21. E.g., see charter of Guildhall, N. H. S. P., XXVI, III, 197.
22. App. B, sec. 7.
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The list includes numerous laws by which the legislature validated early defects in the conduct of the organized town affairs. This arrangement of material was made because many of the incorrect ways of the towns stemmed from preceding improper proprietors' activities. Furthermore, the illegalities in early town business were of a piece with similar pro- prietors' doings, due either to ignorance or carelessness of the proper ways to do business or to efforts at wrongful land manipulations.
The early Laws were full of acts, additions, amendments and re- pealers of acts, dealing with methods of collecting land taxes, regulation of vendues, attempts to secure proprietors' records, attempts to secure land surveys and determine town lines, prevention of frauds and so on. Many of the laws listed in this respective section of Appendix B are actions taken by the legislature to validate otherwise illegal transactions by the proprietors or the subsequent town organization. It is clear from the phraseology of these laws that the legislature was reluctant to con- done such things but felt constrained to do so in order to protect estab- lished rights of innocent parties. In some instances conditions were so bad that the legislature refused to accede to them and took some other course such as appointment of commissioners to settle matters, or even ordering that the proprietors do things over again. A few of the acts listed refer specifically to the public rights where the legislature inter- vened to see that those rights secured the shares to which they were entitled. The other acts, however, are equally vital in any particularized land study. They would be the source of explanation of discrepancies between charter provisions and actual land locations.
EMINENT DOMAIN
The laws of interest to this study respecting condemnation under the power of eminent domain are few and of recent date.23 Of those compiled, it is to be noticed that the greater part do not specify authority to condemn property already devoted to a public use. In fact, this was the reason for their inclusion-to show how few have been the legisla- tive decisions to subject the lease lands to this hazard, even in cases in which one would normally expect it to be done. Some of these acts come within the compilation because they refer to the acquisition of land by the federal government for its forest area. The nature of the earlier com- ment on this activity is thought to justify making available the legisla- tion on which it has rested.24
23. App. B, sec. 8.
24. Supra, pp. 172-175.
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In respect to the several acts just referred to, it will be seen that they turn on a clause which is common to all of them: "The consent of the state of Vermont is hereby given to the acquisition by the United States, by purchase, gift or condemnation with adequate compensation, of such lands in Vermont as in the opinion of the federal government may be needed. . . . It might be argued that this is implied consent to the taking of land already devoted to a public use, inasmuch as the grant of authority is so broad and unrestricted. Two arguments are advanced against such a proposition. The first is the demonstrated posi- tion of the court that an implication must be clear and must be inescap- able by virtue of the land needed. The second is that in several other acts the Vermont legislature did specifically include land in public use. These were for activities of the Board of Public Works; for airport development, when approved by the Public Service Commission; for interstate flood control development ; and the general provision in the 1937 act.26 It seems significant, too, that these acts bracketed, in time, the federal forest area acts.
None of the numerous acts of incorporation of businesses, in which condemnation authority was granted, allowed of the taking of land al- ready devoted to a public use. Nor did the legislation setting up the state forest program. As to the latter, it will be recalled that the policy has been for the state to become lessee.
EJECTMENT
The intent of the legislature that the trustees of public lands should have authority to recover by suits in ejectment is clearly demonstrated by the various laws referring to one or another lease land situation.27
TOWN LINE PROBLEMS
Of the laws on town and town line problems, some are found to in- clude provisions specifically dealing with the lease lands, or the avails therefrom.28 Many others fail entirely to mention them. This distinction cannot be used with safety by those who would find particular parcels of lease land.
25. Italics mine. For example, see Laws of Vermont, 1925, p. 3.
26. P. L., ch. 207, secs. 4974-4985; Laws of Vermont, 1941, pp. 66-67; ibid., 1937, pp. 89, 281.
27. App. B, sec. 9.
28. App. B, sec. 10.
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The very bulk of this section of the appendix indicates the juggling to which the towns have been subjected. It shows how far astray one would go who undertook to rely on the terms of the town charters. And it demonstrates what has been said elsewhere-that a particularized study of lease lands must commence with a determination of the towns in which such parcels are presumed to lie. In this connection, it is well to reiterate the caution that action resultant on these laws would have to be checked in the records of the towns concerned because of the long- standing custom of writing such acts conditional on town approval.
COUNTY LINES
Two explanatory remarks are in order respecting the laws compiled under the title "County Lines."29 For one, it should be noted that they include the various acts by which counties were, from time to time, organized, commencing with the earliest extant action, that of 1778. These laws fall into this category, logically, because, after that act, all others establishing new counties involved the partitioning of those exist- ing at the time. The other comment is that some duplication is found between this section and the one preceding. Besides those acts dividing counties into newer counties, numerous county line changes have in- volved the shifting of a town, or towns, or parts thereof, from one county into an adjacent county. As with the laws on town changes, some of these make provision for disposition of the lease lands, and many do not. Compared to the changes made in the towns, it is to be seen that the county changes are much less frequent. But, there was sufficient activity to create some confusions. It is noticeable that there have been very few acts of a general nature, such as those establishing the procedure for making changes, with reference to the counties.
UNORGANIZED AREAS
The title "Gores" was used for convenience to cover the whole prob- lem of unorganized areas.30 This fits Vermont practice and is historically justified because, of such areas, the gores have, in the past, formed the principal element. Other terms were used, however, to cover small, or individual, grants of land. These included "grants," "legs" and "tongues." Unorganized towns are also a part of this topic. There was a time, in the
29. App. B, sec. 11.
30. App. B, sec. 12.
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early period, when they were a subject of consequence-before settle- ment made possible town organization of some of the chartered grants. Then they became almost non-existent. More recently, they have re- appeared through the process of de-organizing towns which have lost their former population, and there is some thought in the state that more of this should occur. In any case, whenever there were general laws written, they applied to all unorganized areas.
Such laws were few in number. The first one of real importance to this study was that of 1854 which provided for administration of lease lands by the county treasurer. The great majority of the acts in this section deal either with the making or confirming of such grants, or they have to do with the annexation of gores to one or another adjacent town or towns. Some of the laws listed are tax laws. These are of inter- est here as they may, or may not, have affected public lands.
The gores cannot be ignored if the lease lands are to be investigated fully. Although many of such grants did not provide for reservation of public lands, some did.31 In addition, the ultimate disposition of the gores affected town lines, and thus they must be accounted for if one is to locate lease land parcels, in the towns affected. And the general laws on unorganized areas will be of increasing concern respecting the lease lands if the de-organization movement progresses.
LOCAL OFFICERS
The laws on the duties of local officers are, as might be expected, of a wide variety.32 They apply to various officers, and various duties. They serve to describe such duties, as they may have affected the lease lands, directly or indirectly. They also serve to demonstrate some of the diffi- culties in public administration which have existed in Vermont. In this latter respect, they indicate some of the ways in which lease land parcels could have become beclouded through local administration.
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