USA > Vermont > The Vermont lease lands > Part 29
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There are two records, referred to as Rent Rolls, 1 and 2, which were utilized, during the nineteenth century, as records for the collec- tion of rents. Rent Roll 1 is well named because it is literally a very long continuous stretch of paper which is stored in a roll. Rent Roll 2 is a large ledger dated "1834-1867" and contains accounts of University land rentals.8 It is impossible in most cases to distinguish between charter lands and other lands ; some charter lands are labelled "College Rights."
6. At the end of the volume there are arithmetrical work notes pertaining to a number of the towns described, by which it appears that the average land per town for the college right would be well above 300 acres.
7. Pp. 55-56.
8. There is also an account book which can be regarded as succeeding Rent Roll 2. It covers the period 1868-1913.
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The volume does not seem to contain a record of any un-leased parcels during those dates, except as leases were granted from time to time after 1834. The records therein permit of the generalization that, by and large, rents were collected pretty regularly, for those holdings which were under lease, during that period of time.
The coincidence of dates should not be overlooked. The note-book, certified by the Secretary of State, is dated 1834, and this volume of rent records commences then. One can presume that someone at that point developed an interest in sorting things out, similarly to the twen- tieth century effort made by Mr. MacFarland.
Contemporaneously, there is a series of four loose-leaf, leather bound volumes, specially prepared, and containing elaborate forms, also spe- cially prepared, for the land records. The volumes are titled "Lease Lands : U. V. M. & S. A. C."9 This title is misleading because the data within the volumes includes both the lands granted to the college right in the town charters and other holdings of the University, such as lands received by bequest.10
Mr. H. M. MacFarland, of Hyde Park, Vermont, was an attorney and a trustee, for some years, of the University. He became interested in the institution's land situation and decided to devote his time to it. The Board of Trustees approved his plan and authorized it, together with funds to cover the expenses.11 Besides his own work, he utilized the services of two members of the engineering faculty.
He seems to have had an ambition to accomplish a complete over- haul and to spare no effort in the process. His program contemplated a visit to every town in which University lands should properly be found, an inspection of the pertinent land records in the town, and a field in- spection of the land itself whenever this seemed advisable. His printed forms are devised to present all possible data of interest respecting each separate parcel of land, even to sociological data on the tenants. A high
9. Hereafter cited as "Lease Lands." Vol. I contains Mr. MacFarland's re- port, with subtitles, "Foreward," "Commentary on Tabulation," "Specific Data," and "Conclusion."
10. This is an instance of practices, spoken of earlier, by which confusions arise. The one group would properly be tax exempt; whereas, much of the other holdings are subject to taxation.
11. On p. 64 of vol. I of "Lease Lands," he says :
The general scope of the inquiry was determined upon in consultation with President Bailey at various times during the early part of 1922, and it has been carried on under his advice and with the approval of members of the Executive Committee of the Board of Trustees and the Board of Trus- tees as a whole since.
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proportion of the reports for the various towns are two-fold, one version being from his visit, the other being the report of visits by the two faculty members assisting him. He devoted his available time to the task for years.12 Yet, at his death the job was incomplete. And Professor Butter- field had, so far, not been able to complete it.
Numerous of the reports of the towns which were visited are not satisfactory to one using the reports, nor were they to Mr. MacFarland, as indicated by his remarks in the "Foreword," at page 7, volume I: "This tabulation is an attempt to show the 'lease land' holdings of the University in perspective. It is an epitome, more or less accurate, but in the nature of things, I know not absolutely so." With reference to his quotation from the 1804 report, in which, according to Mr. MacFar- land, it had been asserted to be " 'impossible to ascertain at present with any precision the exact quantity of land so reserved,' " he says, at page 12, volume I: "As was the condition at the time the preceding reports were made, so now there are college rights, not many, but some, that have never been located." And at page 14, volume I :
An added Century has not changed the situation except to make uncertainty even more uncertain. The sources of information are the same but an intervening hundred years and more has not added to clearness of vision with which to read this information understandingly.[13] Add to this the fact that the records in many towns are either wholly lacking or bad per se and so unreliable While I have not the presumption to think the follow- ing tabulation correct in every particular, which, considering . the sources of information at hand, sometimes meagre and frequently conflicting
There is only one conclusion possible. The University has clearly been negligent in administering its lands. Else, Mr. MacFarland's pro- gram would have been unnecessary, or, at the least, it could have been completed more readily. Evidently, the institution's attitude has not changed materially. Mr. MacFarland's individual reports on towns con-
12. Prof. Butterfield stated that for some years prior to his death he did noth- ing much else but this work.
13. In Mr. MacFarland's quotation of the 1804 report, the trustees are pur- ported to have said, at that time :
'This difficulty is further increased from the imperfection of the grants themselves, some of which are so vaguely expressed as to render it doubt- ful if the lands can be holden by such tenure. In many towns by neglect or design of the proprietors, the College lands have not been severed or located. .
"Lease Lands," I, 11.
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tain numerous recommendations to the trustees. Wherever he found a parcel of land in vague or ambiguous legal status, he urged that action be initiated to clear it up and assure its preservation for the University's benefit. The writer asked a responsible officer of the University what had been done and was informed that, so far as anyone knew, the trustees have never taken the time to consider the reports. It is now twenty years since the first of them was submitted.
No precise information was obtained by which to state the annual income from the lands of the college rights. This is basically because it varies somewhat, depending on the extent to which tenants, in any given year, happen to remit the rent, and the energy with which the University happens, in any given year, to force remittances. Furthermore, lease lands are not so recorded that totals of income are available, short of an exhaustive analysis of accounting records.14 The legislature's Commis- sion on Forest Taxation estimated that the University's total rent is $3,100.15 This appears to the writer to be a close approximation. The commission's report went on to say, ". . . but a large share of this sum is absorbed in bad debts and cost of collection."16 The figure given would indicate a development, at some time or other, of the University's land administration. Mr. MacFarland's quotation of the 1804 report is to the effect that at that time the total rents amounted to $1,048.79, of which there was then due $191.00.
Mr. MacFarland prepared a summary tabulation of the data detailed by towns :
, the following table is submitted as giving an approximately correct summary of lands now held by the University of Vermont, coming to it by charter from the State. . . 17
Total
Sold and Lost
Not Sold
Rented
Annual Rental
Not Rented
Not Ac- counted For 785
Acreage
28188
215+
1420
26553
3099.14
1418+
14. Billing and collections are the responsibility of the Treasurer's office. A question is in order as to how effectively this is accomplished and how well liaison is maintained with the Land Office. Mr. MacFarland's reports not infrequently in- clude information, derived from his interviews with town officials, respecting changes of occupancy of which the University was unaware. In the town of Brain- tree, for example, he was informed that a lumber company had "owned and occu- pied" two of the college lots for some three years past during which time they had thoroughly stripped "quite a good stand of second growth." Ibid., I, 198-202.
15. Forest Taxation, p. 8.
16. The report stated that the University "was originally granted 25,707 acres of which the records on almost twenty percent have been lost." Ibid.
17. "Lease Lands," I, 15. This summary is dated April 20, 1928.
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VERMONT LEASE LANDS
With respect to the item "Sold and Lost," he explains :
there were four ultra vires sales of 'chartered lands,'
viz :-
Town
Acreage
Chittenden
53/4
Fayston
100
Newport
10
Victory
100
Total
2153/4
though sales were ultra vires, they were, I think, sanc- . tioned in every case by the Trustees, and so these sales should not and I think will not be questioned.18
His explanation of the tabulation continues :
By the classification 'not accounted for' is meant those lands of which I have thus far only hazy and quite indefinite information, found in my search in the Town Clerks Offices, but sufficient, I think to warrant . . investigation . . In many cases I anticipate the decision on investigations will be to 'forget it,' for in gathering this data over nearly all parts of the State, I have given the benefit of the doubt to writing down 19
This assertion is substantiated by inspection of the reports on each town in the first three volumes. Much of the acreage which he includes as accounted for can only be so classified by the most flexible interpreta- tion of the situation. His report from Bethel is presented in full in Ap- pendix D to show the degree of difficulties encountered. It should be re- garded as anything but exceptional, although perhaps extreme. It would only burden this introductory study to multiply the available examples.
He later presents remarks on the University leases :
In most leases, though not in all, there is found a reservation to the University of the stumpage on a specified certain number of acres, usually fifteen or twenty, on which the lessee shall com- mit no 'strip or waste' . In some few instances the Uni- versity for a consideration has sold the stumpage entire and the right to remove same, and in a few others it has rented the land for a single present payment in money and a further rent of one
18. Ibid., I, 38.
19. Ibid., I, 43-44.
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barley corn a year if demanded,[20] but both of these courses have been unusual and in the so-called Judevine cases have been held by the Supreme Court to be contrary to any powers vested in the University or the Trustees Most of these leases were made many years ago and this stumpage reservation, I am sorry to say, in very many cases has become practically a dead letter and of little worth as such. There are several reasons for this: First, when the leases were made stumpage was of small if any value, and being of little worth, was not looked after ; Second, the expense attendant upon following the matter to any result would have been considerable and so, in the face of more urgent calls for money, investigation and checking up of stumpage was passed ; and third, 'doing nothing' became a habit, a precedent easy to follow .
Such inaction on the part of the University long continued brought about a feeling on the part of the lessee and sub-lessee that this reservation clause in the lease really meant nothing, that it was mere surplusage, and so by reason of long continued non- enforcement today in by far the larger number of cases the re- served stumpage is not to be found, it having been cut years ago by lessees long since dead.21
Another aspect of the land situation is well defined by his remarks respecting correct acreage :
It will be seen from references to the quadrennial appraisals found in the various towns referred to in the pages following that there is often and, in fact, generally, a variation in the Listers' return of the number of acres of College lands and the rent there- on, and the number of acres which these lots contain, going back to the original surveys thereof, and the rent which the leases dis- close as the amounts due the University.
This shows how inaccurate Listers' returns oftentimes are, as- suming that the records of the University are correct, and while it perhaps avails nothing to refer thereto here, I have thought it best to make general reference to this condition as in a way ex- plaining inaccuracies which otherwise might lead to confusion if not contention.
20. Besides the grammar schools and the University, the records of the S. P. G. show that some of those rights were disposed of in this way. Apparently the Cale- donia County Grammar School trustees were not alone in their early misapprehen- sion of their powers.
21. "Lease Lands," I, 48-50. It will be recalled that such cutting of stumpage was the cause of action in University of Vermont v. Ward, 104 Vt. 239 (1932) ; Ward, however, was still alive. The above was written in 1928, and the Ward Case was decided in 1932. From the appearance of things, it must be concluded that the "inaction" respecting lease land administration was not restricted to the matter of the stumpage reservations.
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To illustrate: In the town of Albany quadrennial appraisal of 1922, lot 55 is shown to contain 10012 acres, 108, 1011/2 acres, and lot 177, 92 acres, though each of the lots are supposed to con- tain 100 acres more or less.
It will also be seen from quadrennial appraisal that the total rent of the three above lots, excluding rent on the D. W. Buzzell and wife occupancy, 7 acres, in lot 177, which does not appear, is $25.78, whereas the total rent on leases last made on these three lots, as appears on page , of this book, was $36.60. .
Just what rent the University is actually receiving will appear from the records in the Comptroller's office. In this particular case rents are being received as follows,-
On lot 55, $12.60 ; on lot 108, $6.00; and on lot 177, $18.00. (See Rent Roll, pages 20, 22 and 21 respectively. )22
There is little to say respecting the University's record of litigation, beyond the coverage already given it. It was seen to amount to very few actions, so far as those going into the Vermont Supreme Court are con- cerned.23 The position of the court, respecting the college right, presented nothing novel or unusual, compared with rulings respecting other public rights.
Mr. MacFarland, in "Lease Lands," and others at the institution, have fretted considerably about the Reynolds decision.24 Unaccountably, it seems to the writer, in view of the peculiar circumstances of that case. In urging a new test case by which to clear up some of the "lost lands," as to prescriptive rights running against them, Mr. MacFarland said he did not expect an adverse decision to occur.25
THE S. P. G. LANDS
On the basis of the number of town charters in which an S. P. G. share was reserved, the Diocese should be an even larger holder of lease land acreage than is the University. This cannot be demonstrated here,
22. "Lease Lands," I, 60-62. A large number of his detailed town reports show that the Listers have not even gone this far-there is no acreage data in some of the quadrennial appraisals and only partial information respecting the rentals.
23. These included the Reynolds case, 3 Vt. 542 (1831) ; the Joslyn case, 21 Vt. 52 (1848) ; the Ward case, 104 Vt. 239 (1932) ; and the Carter case, 110 Vt. 206 (1939). To these may be added Strong v. Garfield, 10 Vt. 497 (1838) ; and Keith v. Day, 15 Vt. 660 (1843). These two involved University land and arose, be- tween private parties, as an end-product of the University's administrative habits. The Joslyn and Carter cases were thought not to involve lease lands, but other holdings.
24. University of Vermont v. Reynolds, 3 Vt. 542 (1831).
25. "Lease Lands," I, 46.
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in fact, because of the lack of data respecting the number of rights which may have been lost by adverse possession under the ruling in Propaga- tion Society v. Sharon.26 The minutes in the "Record Book" of the Board of Agents show that they were disturbed over the problem of the statute of limitations. But the minutes also indicate that they were not acting effectively about the matter.27 The technique of land administra- tion favored for this right prevents even an assertion as to the number of towns in which the S. P. G. right is being administered, or whether, in various towns, the whole share, or just a part of it, is under control.
The annual income is probably slightly greater than that of the Uni- versity. The legislative Commission on Forest Taxation appears to have felt less secure in its information here than in the case of the University. In respect to the S. P. G. lots, the report says that the Diocese collects "about $3,000."28 The writer's impression is that this is somewhat con- servative, as an estimate. His contacts with those concerned with the S. P. G. lots lead to an estimate of from $3300 to $3500 per year.29
However, it is almost impossible to derive a figure of any precision. The system of administration, and particularly the system of handling the avails, leads to uncertainty. For one thing, it is next to impossible to determine whether a given item of income is rental money for a given time period. For another, the Diocese has carried out some conveyances of the commuted rent type, frowned upon in the Caledonia County Gram- mar School cases.30 When such sums have been remitted to the treasurer
26. 28 Vt. 603 (1856). Supra, pp. 161-162.
27. At the meeting of Jan. 9, 1834, the following item appears: "The Statute of limitations being about to run against the claims of the Society, the agents thought proper to hold a meeting to see whether any further measures could be taken toward securing the Society's rights of lands." The meeting occurred in Octo- ber. Various proposals were made, but no new measures adopted. "Record Book. Journal and Proceedings of the Agents," 1823-1927, p. 81. Hereafter cited as "Rec- ord Book: Agents." In the minutes for Feb. 3, 1848, this item is found :
That the Treasurer be directed to correspond with the Sub-Agents in the several Counties, to enforce upon them the urgent necessity of speedily examining the records in all those Towns where we have lands which have not been leased in order to prevent the loss of any such lots by the Statute of Limitations.
28. Forest Taxation, p. 8.
29. Clarke states that he was informed by the Treasurer of the Agents that at that time (1930) the annual income was about $3700, being collected from 101 towns. "Vermont Lands," p. 296. In the first full, formal report by the Board of Agents, in 1845, the total income was given as $3296. "Record Book: Agents," pp. 115-117.
30. Caledonia County Grammar School v. Kent, 84 Vt. 1 (1910) ; S. C., 86 Vt.
276
VERMONT LEASE LANDS
of the trustees of the Diocese, they sometimes appear to have been credited to the anual income instead of being set up as a permanent fund, the interest of which should go into annual income. This, of course, besides confusing the income picture, runs contrary to the views both of the court and the legislature regarding the administration of such trusts. The income figure for a given year is not apt to be typical, either, be- cause the collection of rents is even less steady and regular than in the case of the University. And where a collection may be made of several years' outstanding rent, the sum is apt merely to go to the credit of the income for the year in which the payment occurs.31
If the annual income does run somewhat in excess of that received by the University, that would best be regarded as due to the greater
151 (1912) ; Powers and Peck, Admr. for Judevine v. Caledonia County Grammar School, 93 Vt. 220 (1919).
31. For example, the financial reports in the "Record Book: Agents" show that the total for 1850 was $4625.89; for 1852, $3745.11; and for 1853, $4206.08.
The following correspondence, found in the files of Joseph Wilson of Mont- pelier, illustrates some aspects of the methods followed :
Letter of E. A. C. Smith, Treasurer of the Episcopal Diocese to Guy Wilson, Sept. 8, 1925 :
The Bishops stipend account is overdrawn about twenty dollars this month, and if possible I would appreciate a check from the Board of Land Agents in whatever amount you are able to send me at this time. To date I have received $900 on this years account, and as this is not 1/2 of the total amount which I am supposed to receive by July 1st, no doubt it is self explanatory. I have felt that it would be much less inconvenience for both of us, if it could be arranged on your end, to have a regular check sent me quarterly for 14 of the total amount, in the months of March, June, September and December, on or before the 31st of each month. Perhaps you might not have funds available, but if it could be arranged in a regular manner it would assist me greatly in not overdrawing this particular account.
I would like to know what you think of an arrangement like the above, which I suggest ?
Letter of Guy Wilson to E. A. C. Smith, Sept. 7, 1925 :
I have your letter of the 8th inst [probably the 6th, really]
I am enclosing check for $900.
The yearly appropriation of the Land Agents for this purpose is $1800. I believe this completes this years payment. There happens to be plenty of funds in now so that I can relieve your stringency on this account.
I note what you say about a regular payment. This would be a very good idea if our payments came in regularly, but they do not come in so. As it happens this year the payments have come in very promptly and I can meet your request, but I can remember times in the past when the payments could not have been met in this way. If we could get some ahead it might be done but that policy is to spend yearly about all the yearly income. Perhaps it would be well to let it stand as it has been bearing in mind if you are ever short again, write me and I will do what I can and if possible anticipate payments.
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number of rights pertaining to the S. P. G. rather than to better admin- istration. Indeed, it is the opinion of the writer that the administrative practices and procedures of the Diocese suffer by comparison with those of the University.
The two Wilsons, first Guy and then Joseph, evidently had an inter- est in attempting to make the S. P. G. lands count for as much of an asset as possible for the Diocese. And the revised reimbursement status for the land agent enabled the latter to go farther with the lands than his predecessors. But, it still remains a part-time activity, as it always has been : something worked at during spare time. And those in positions of responsibility in the Diocese appear always to have been reluctant to con- sider the problem more realistically than this.32
If the S. P. G. lots are in a state of some confusion, something can be said in defense of those more recently responsible. It was not until 1927 that the full control of the right was in the Diocese. Until that date the S. P. G. land remained under the ultimate control of the Society for the Propagation of the Gospel in Foreign Parts, in London.33 The sys- tem of administration was that satisfactory to the Society. During the whole time, the income has, by action of the Society, been put to the benefit of the Episcopal church in Vermont. The lands were adminis- tered, however, by persons to whom the Society gave powers of attorney. This arrangement of powers of attorney set a pattern of organization, of which the system since 1927 was no more than a modification. Be- sides this, it must be borne in mind that there was a considerable early period of more or less complete inaction, followed by a time of litiga- tion and exclusion from the exemption from statutes of limitations. Criticism of the current S. P. G. land operation should be cast primarily in respect to the failure of the Diocese to establish a clean-cut system since 1927.
The Documentary History of the Episcopal Church in Vermont re- lates, in great detail, the developments respecting the S. P. G. rights, as well as the glebe rights, commencing with the earliest action by the So- ciety in London in 1762 and 1764 when its proceedings showed an ac- ceptance of the donation of the S. P. G. rights and a resolution that
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