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1904, p. 414. (Troy Conf. Academy). 1906, pp. 593-594. (Grafton Academy). 1908, p. 499. (Green Mountain Perkins Academy).
1908, pp. 501-502. (Troy Conf. Academy). 1908, p. 502. (Troy Conf. Academy). 1917, p. 317. (Newport Academy and Graded Sch. District). 1933, pp. 267-268, 271-272. (St. Albans Bellows Free Academy).
Section 20. School Lots
1787R, 1782, October, p. 179. 1794-1796, 1795, p. 4. 1797R, pp. 493-499. 1800, pp. 89-90. 1801, pp. 88-89, 92-93. 1802-1804, 1802, pp. 79-80, 89-90. 1802-1804, 1803, pp. 40-41, 45-46. 1802-1804, 1804, January, pp. 54-55. 1804, October, pp. 27-28, 49-50. 1805-1807, 1805, pp. 19-20.
1805-1807, 1805, pp. 127-129. 1805-1807, 1806, pp. 104-105. 1808-1810, 1808, pp. 23-24, 54-55.
1808-1810, 1809, pp. 96-97. 1808-1810, 1810, pp. 96-98, 153-155.
1811-1814, 1811, pp. 48-50, 82, 91-93. 1811-1814, 1812, pp. 35-36, 158-159.
1811-1814, 1814, pp. 111-112.
1815-1818, 1815, p. 49. 1815-1818, 1816, pp. 48-49, 128.
1819-1821, 1821, pp. 90-91. 1822-1826, 1822, pp. 76-77. 1822-1826, 1823, p. 10.
1822-1826, 1824, pp. 10-11. 1822-1826, 1825, pp. 26-27. 1822-1826, 1826, pp. 21-22. 1827-1831, 1827, pp. 19-28. 1827-1831, 1828, p. 13. 1833, pp. 13-15. 1835-1837, 1835, pp. 147-148.
394
VERMONT LEASE LANDS
1835-1837, 1836, pp. 38-39, 147. 1841-1844, 1844, p. 6. 1845-1848, 1845, p. 24. 1845-1848, 1846, pp. 10-11. 1845-1848, 1848, pp. 5, 9, 24.
1849-1851, 1851, pp. 141-142, 143.
1852-1854, 1852, pp. 63, 85-103, 193-194.
1855-1856, 1856, p. 7-10.
1861-1863, 1861, pp. 41-42.
G. S. (1862), ch. 97, secs. 3-5. 1864, pp. 107-124.
1865, pp. 191-204. 1866, pp. 93-94, 101-103, 221-228.
1867, pp. 22-24.
1870, pp. 38-44. 1872, pp. 51-54, 54-55.
1874, pp. 152-157.
1876, pp. 88-89, 124-127, 129-130, 132-133, 134-137.
1878, pp. 103, 104.
1880, pp. 97-100. 1882, pp. 36, 41, 212-213.
1884, pp. 267-268.
1886, pp. 73, 88-91, 127-128.
1888, pp. 9-52, 52-53, 153, 312.
1890, pp. 19-23, 23-24.
1898, pp. 186-192, 388.
1900, pp. 22, 355.
1904, pp. 66-67.
1906, pp. 57-61, 65-66, 255-256, 524, 725.
1908, pp. 22-23, 45-46.
1910, p. 24. 1912, pp. 4, 629-630.
1915, pp. 96-97. 1923, pp. 53, 170. 1925, p. 48. 1927, pp. 161-162.
1929, p. 67.
1931, pp. 253-255.
1933, pp. 90, 245. 1935, pp. 78-79, 107, 114-115, 265-266.
1937, pp. 89, 105, 108-109. 1939, pp. 108-109.
Section 21. Gospel (Ministry) Lots
1783, October, Slade, State Papers, pp. 472-473. 1787, p. 2. 1794-1796, 1794, pp. 101-103. 1797R, pp. 474-479. 1798, pp. 17-19, 42-44. 1801, pp. 17-20. 1801, pp. 92-93.
395
APPENDIX B
1803, pp. 82-83. 1805-1807, 1805, pp. 127-129. 1805-1807, 1806, pp. 104-105. 1808-1810, 1810, pp. 96-98. 1811-1814, 1811, pp. 91-93. 1811-1814, 1812, pp. 97-98. 1811-1814, 1814, pp. 111-112. 1815-1818, 1818, pp. 84-85. 1819-1821, 1819, p. 26. 1835-1837, 1835, pp. 147-148. 1845-1848, 1845, p. 5. 1852-1854, 1852, p. 63. 1861-1863, 1861, pp. 41-42. G. S. (1862), ch. 97, secs. 3-5. 1867, p. 57. 1868, p. 32. 1869, p. 39. 1872, pp. 608-611. 1874, pp. 57-58. 1876, pp. 88-89. 1878, pp. 100-102, 104. 1880, pp. 116-117. 1882, p. 137. 1884, р. 95. 1906, pp. 82-83, 598-600, 725. 1908, pp. 22-23. 1915, pp. 96-97. 1917, p. 189. 1935, pp. 265-266. 1937, p. 89.
Section 22. The Glebe
1787, p. 7. 1787R, p. 243. 1794-1796, 1794, pp. 101-103. 1799, pp. 11-12. 1801, pp. 92-93. 1805-1807, 1805, pp. 19-20, 127-129. 1811-1814, 1811, pp. 48-50. 1815-1818, 1816, pp. 96-97. 1845-1848, 1847, pp. 10-12. 1852-1854, 1852, p. 63. 1867, p. 57. 1876, pp. 88-89. 1937, p. 89.
Section 23. First Settled Minister 1783, October, Slade, State Papers, pp. 472-473. Jr. of the Gen. Assem., Oct., 1784 and June, 1785, 1785, p. 13. 1798, pp. 17-19.
396
VERMONT LEASE LANDS
1805-1807, 1805, pp. 19-20.
1805-1807, 1806, pp. 104-105.
1808-1810, 1810, pp. 96-98. 1811-1814, 1811, pp. 48-50, 91-93. 1811-1814, 1814, pp. 82-83, 111-112.
1815-1818, 1816, pp. 48-49. 1827-1831, 1830, pp. 62-63.
1835-1837, 1835, pp. 147-148.
1835-1837, 1836, p. 147.
1849-1851, 1851, pp. 141-142, 143.
1852-1854, 1852, pp. 63, 193-194.
1861-1863, 1861, pp. 41-42.
G. S., ch. 97, secs. 3-5.
1867, p. 57. 1868, p. 32.
1869, p. 39.
1874, pp. 57-58.
1878, p. 104.
1880, pp. 116-117.
1906, p. 725.
1908, pp. 22-23.
1915, pp. 96-97. 1937, p. 89.
APPENDIX C
CRITIQUE OF DISSENTING OPINION IN UNIVERSITY OF VERMONT V. WARD, 104 VT. 239 (1932)1
The dissent written by Judge Moulton in University of Vermont v. Ward was an earnest effort to turn the tide of a doctrine which had enjoyed judicial support in Vermont for a century and a half. It is not one which is apt to attract the sup- port of other jurists. Whether or not one is inclined to agree with his conclusion respecting the nature of durable leases, the construction of his argument is difficult to accept. Perhaps he was too earnest here; the opinion does not display the calm, careful use of legal material by which his other writings are characterized.
To begin with, his major tactic was to disregard the fact that Vermont had specifically developed its own doctrine, and to argue the case of perpetual leases in terms of the common law and the rulings from other states. For example, he looks to the New York "manorial leases" and Pennsylvania rent services for citations. And he says: "I believe and would hold that, regardless of whatever name may have been given to this conveyance, it is in its character and incidents a fee upon condition."2
So far, so good. It is fair enough for an eminent jurist to undertake to demon- strate that a local doctrine is sufficiently peculiar and far afield from generally ac- cepted concepts to merit reassessment. Unfortunately, though, he became so intent on achieving this that he so relied on certain cases as to leave them open to mis- understanding by one not familiar with them. Furthermore, it seems a weak point that, whereas he was basically arguing against local usages, at certain points he relied on other localisms.
With respect to his use of citations, for example, he says : "Estates granted for this length of time [perpetuity] have been held [in Vermont] to be in fee . "3 and cites Arms v. Burt,4 Lampson v. New Haven,5 Stevens v. Dewing,6 and Propa- gation Society v. Sharon.7 The first and third may be quickly dismissed as not being in point because they did not involve public land, and we have seen that the Ver- mont court has regularly made this distinction. The use of the Lampson case is difficult to understand. The court actually ruled that a lease perpetual in form, but with a commuted rent was such a conveyance. In fact, it was in this opinion that the court explicity decreed a lease of the type Judge Moulton argues against. The use of the Propagation case is not much more fortunate. The court's words, in point, were :
1. This was the single dissent discovered respecting the Vermont doctrine of durable leases as applied to the public lands.
2. 104 Vt. 239, 267 (1932).
3. Ibid., p. 267.
4. 1 Vt. 303 (1828).
5. 2 Vt. 14 (1829).
6. 2 Vt. 411 (1830).
7. 28 Vt. 603 (1856).
398
VERMONT LEASE LANDS
They are but leases in form . . . . and no rent is reserved, for the non- payment of which, an ejectment could be maintained. The barley corn rent is but nominal, and it is only payable if demanded.8
Similarly, it would seem that his use of Piper v. Meredith was not too apt. He wrote: "It is said in Piper v. Town of Meredith, 83 N. H. 107, that it 'is well settled law that a perpetual lease upon condition conveys a fee.'"9 This, of course, is a correct quotation. But it stops short of where it should have been carried be- cause the remainder is at distinct variance with Judge Moulton's own views. The full statement is this: "In reality the plaintiff's estate is not a leasehold at all, for it is well settled law that a perpetual lease upon condition conveys to the lessee a determinable or base fee . "10 Whereas, we find Judge Moulton proceeding :
This is not a fee simple absolute. Neither does it fall within the cate- gory of a qualified or base fee. It is, I think, a conditional fee, the incidents . of which are quite different from those of the estate last mentioned. It is necessary to be precise about this, for the distinction is important.11
He then makes a meticulous analysis of the distinction between determinable fees and fees upon condition, and this is with a definite purpose because he makes a point of it with respect to the circumstance in the case that the University had made no re-entry, as required in a fee upon condition.
The use of certain other citations is equally subject to question. But enough has been demonstrated.
As to the other major criticism of the opinion a single illustration should suf- fice. Throughout his argument, he insists on the technicalities of real property law, as inherited from England. For example, he says: "This case should be decided, I believe, not by taking refuge behind a name [lease], but by an analysis of the true nature of the conveyance."12 But, he produces this statement :
It is true that there are no words of inheritance in the habendum of this conveyance. But this does not preclude the grant of an estate in fee. The doctrine of the common law that the absence of the word 'heirs' caused the estate, though expressed to be perpetual in duration, to be one for life only has been from the earliest times in this State considered to be a rule of construction only and not one of positive law . . . The intention of the parties, as gathered from the instrument taken as a whole, is to govern.18
It is small wonder that he failed to convince the majority of the court from which he dissented. And it is too bad that the position taken was marred by such maneuvers. He makes a concluding remark which merits quotation because of its thorough soundness and its significance with respect to the situation in which the state finds itself with the present system of lease lands :
I do not share in the forebodings of my brethren that a failure to construe such a conveyance as a lease 'would unsettle and destroy many titles hither- to believed to be good.' The purpose in giving 'perpetual leases' of public
8. Ibid., p. 616.
9. 104 Vt. 239, 268 (1932).
10. 83 N. H. 107, 110 (1927). Italics mine.
11. 104 Vt. 239, 270 (1932).
12. Ibid., p. 275.
13. Ibid., p. 269.
399
APPENDIX C
lands was, as the majority opinion points out, to encourage the clearing of forest land and its use for agriculture. Settlers would not accept such conveyances unless they were assured that they and their children would enjoy the fruits of their labors. 'This result' say my associates, 'and a rea- sonable and adequate rent for the lands could be secured only by long term leases.' The purpose is as well fulfilled if the conveyances in perpetu- ity are construed to pass a conditional fee as if they are construed to pass a leasehold. In neither case can the rent be increased during the term. In neither case can the grantor repossess itself of the premises except as pro- vided therein. There is, it seems to me, far more danger that the titles of the grantees will be disturbed by holding that the conveyances are leases, than that the titles of the grantors will be affected by saying that they pass a conditional fee, even though the grantors may have believed, when they executed the instruments, that they meant something different than their language stated.14
It would have been well for Vermont if Judge Moulton had built an argument to support his views which had been acceptable. This he could have done by ex- panding his occasional references, such as that just above, to the historical situa- tion and the present anomalous nature of the system. It would have resulted in opening a path by which to tax the lease lands, because if they were held to have been conveyed in fee, they would probably not qualify any longer as public lands.
14. Ibid., pp. 278-279.
APPENDIX D
EXHIBIT OF CIRCUMSTANCES IN BETHEL ILLUSTRATIVE OF CONDITIONS CONFRONTING ADMINISTRATORS OF LEASE LANDS1
"Bethel was the first township chartered by the Legislature of Vermont and the records in the Town Clerk's office of Bethel show that the original survey of the township was along somewhat peculiar lines and that the allotments of the college right, and, as I assume, of all rights, was somewhat more complicated than in townships where there were, for instance, three divisions with one right in each division to the college and each of the original proprietors.
"The lots drawn to the college right are described in the 1922 quadrennial ap- praisal, and so far I have been able to find no better description, and I will say here that in my searching the records in different towns, I have found no town where the records seem to be more carefully and correctly kept than in the Town Clerk's office of Bethel, and no Town Clerk as fully conversant with all town af- fairs as Guy Wilson of Bethel, who assisted me materially in my search in this town.
The lots are as follows :
Lot 7 in the 1st range, east of the branch, 100 acres (1st div.)
Lot 12, 1st short range, west of branch, 100 acres (2nd div.)
Lot 35, east of Rochester line, 100 acres (3rd div.)
Lot 37, 1st range, east of Rochester line, 100 acres (4th div.)
Lot 3, after-division, 33-1/3 acres (after-div.)
"The above named lots appear listed on Rent Roll, pages 391 to 396, both in- clusive.
"The Rent Roll, page 397, shows that the University at one time, and for all that I have been able so far to learn, should have now lot 22, 2nd range, east of Rochester line, 100 acres, known as the 'Elias Lyman' lot. Guy Wilson, Town Clerk, told me that there is no such lot in Bethel.
"The 1922 quadrennial appraisal shows in addition to lands listed above as University land in Bethel, lot 1 in the northeast corner of town, containing 20 acres. There is no record of this on the Rent Roll, nor do I learn from the search I was able to make how this lot came to be listed as a University lot. It must be either one of the chartered rights or it must have been deeded to the University by someone at some time, or else it is error to include it among the University lands. In any event, it appears on the 1922 quadrennial appraisal among the sequestered lands with rent due the University of Vermont, as will appear in the following pages."
1. The exhibit is verbatim quotation of Mr. MacFarland's report, found in "Lease Lands," I, 174-194.
402
VERMONT LEASE LANDS
From "Addenda, May, 1925":
"No mention is made in the foregoing of a small lot of 91/2 acres called on Rent Roll, page 394, the 'College Intervale' lot. This lot was leased to Daniel Kinney, June 7, 1808 at an annual rental of $3.34 and rent has apparently been paid since. W. H. Wright, East Bethel, is the present occupant. W. H. Wright is also occupant of a certain lot 1, containing 20 acres in the northeast corner of the town, as shown by the Quadrennial Appraisal.
"Whether there is any connection between the two lots or not, I do not know, but think there is. The 91/2 acre lot appears on Rent Roll but not in Quadrennial Appraisal. The 20 acre lot does not appear on Rent Roll though there is a lease of this lot to Daniel Kinney in the possession of the University dated June 7, 1808, but is found in the Quad. Appraisal. This lease describes the land as being 'the Intervale lot that was surveyed and laid to the original right or share of land in said Bethel granted by charter for the use and benefit of a College,' but does not name the number of acres. The number of acres, 20, appears only on the filing of the lease and may not be correct. I am inclined to think, however, that it is, for the rent of $3.34 would be nearer the usual rent on 20 acres than on 91/2 acres. Further than this, the Quad. Appraisal lists a 20 acre lease lot and does not list a 91/2 acre lot, and both leases, if there were two, which I doubt, were made to Daniel Kinney the same day, June 7, 1808, both cover the 'College Intervale' lot, as shown by Rent Roll, and the lease above referred to in possession of the Uni- versity, and both occupancies are the same, W. H. Wright.
"So, in brief, I think there is but one 'College Intervale' lot in Bethel, that it contains 20 acres, that the occupant is W. H. Wright with a rental of $3.34, and that record on Rent Roll page 394 should be made to read 20 acres instead of 91/2 acres."
APPENDIX E
"JOINT RESOLUTION RELATING TO THE CHANGING THE NAME OF THE TOWNSHIP OF FULLUM TO THE TOWN OF DUMMERSTON AND LEGALIZING CERTAIN ACTS AND PROCEEDINGS OF SAID TOWN OF DUMMERSTON.
"Whereas, it appears that the charter of the township of Fullum, in the county of Windham, was heretofore granted by Benning Wentworth, Governor of the Province of New Hampshire, during the reign of George III, which charter was dated on the twenty-sixth day of December, 1753, and was recorded in volume 19 A, pages 41 to 45, both inclusive, of the charters of the Province of New Hamp- shire, and was renewed on the twelfth day of June, 1760, on the sixth day of July, 1761, on the seventh day of July, 1762, and on the seventh day of June, 1764, un- der which said township had acted until the fourth day of March, 1771, at which time said township was organized as the town of Dummerston and has since pur- ported to act as such town, and that no objection of any kind has been raised as to the acts and proceedings of the town of Dummerston since its organization; and
"Whereas, it does not appear by any act of the General Assembly of Vermont that the name designated in said charter has been changed to Dummerston; there- fore be it
"Resolved by the Senate and House of Representatives:
"That the name of the Township of Fullum is hereby changed to the town of Dummerston, and that all former acts and proceedings of said town since its or- ganization, so far as its name is concerned, are hereby ratified and declared legal and valid, as if the same were done and performed under the name of the township of Fullum."1
1. Laws of Vermont, 1937, pp. 406-407.
APPENDIX F
The following quoted material is extracted from the 1944 town Report of Thet- ford.1 It comprises a nice summary statement about lease lands. It demonstrates the condition of obscurity which prevails respecting the lease lands in that: 1) such a report should have been needed; 2) even in such a report, a serious error is to be found-the 1937 act is completely unnoticed.
A letter to the Thetford People.
I have been asked by the Board of Auditors to clear up the 'mystery' of the lease lands in Thetford. There was no mystery about them a century ago, but their existence has been continuous since the founding of the town, and they have been taken for granted by each succeeding set of town offi- cers until their origin has been forgotten. They come down to us from the original charter, vestiges of the days of King George the Third and of his agent, Benning Wentworth, Governor of the Province of New Hampshire.
In 1761, fifteen years before the Declaration of Independence, sixty two grantees, or proprietors, received the charter of Thetford from the Gover- nor in the name of the King. Besides the shares of these proprietors there were to be set aside four special ones; namely, for 'the benefit of a school in said town,' for 'the first settled minister of the Gospel,' for 'a Glebe for the Church of England as by Law Established,' and for the 'Incorporated Society for the Propagation of the Gospel in foreign Parts.'
The first one, for a school, explains itself and is still held by the town for its original purpose. The second became private property when the first minister received it. The remaining two are explained by the fact that the charter was issued by the English Crown and that the Governor was a devoted adherent of the English Church. Glebe is an English term refer- ring to land set aside in a parish for the support of the Church. The So- ciety (with the long name), often referred to as the S. P. G., was founded in London in 1701 for promoting Church of England missionary work in the colonies.
These two Church shares of about three hundred and fifty acres each, became subjects of much controversy after the Revolution. The New Eng- landers, being mostly of Puritan descent, did not care much for the Church of England and various efforts were made to divert the shares for other uses. Early in the history of Vermont the state decided that the towns should use them for the support of education. However, a long struggle was carried on to regain them for the English Church, and several lawsuits took place, two of which reached the United States Supreme Court, with Daniel Webster as one of the attorneys.
The final decision was that the Glebe lands should be retained by the towns as Vermont had decreed, and used for the support of schools, but that the 'Propagation' lands should be restored to the London Society. That Society had given a power of Attorney to the Eastern Diocese in America in order to carry on these suits, and the income, so far as it could be collected, was used in Vermont. The Vermont Diocese was organized in
1. Pp. 3-5.
406
VERMONT LEASE LANDS
1832, but it was only as recently as 1927 that it was able to persuade the London Society to convey the lands to them. In that year a quit-claim deed was lodged with the clerk of each town in which the land lies, and the Vermont Diocese has, with difficulty, identified most of the lots and taken possession.
None of these sequestered lands may be sold, nor can they be taxed but must be leased and a rent charged. Early leases in Thetford were not uniform, some being for nine hundred and ninety-nine years, and others for a much shorter term, according to conditions at the time. The leases are bought and sold and, from the first, the rent has been a fixed sum, but it is not always clear how this amount was decided. In some leases it was stated that the buyer paid a price for the lease which represented the value of the land, and the rent was six per cent of this value.
The effect of these leases has always been practically the same as that of private ownership; and the occupant at present, has an advantage from the fact that the rent is less than a tax would be, and does not fluctuate. Apparently the rent is for the use of the soil without regard to wood grow- ing in it or of improvements made upon it and many questions arise in one's mind about this situation. Because of the method of the original division of lands, the lots are scattered throughout the town. The peculiar condi- tions arising from the Church lands are unique in that they exist only in towns chartered before the Revolution.
There is another parcel of land in town which is subject to lease and rent, the 360 acre lot called College Land. This was early given to Dart- mouth by Thetford individuals who wished to help the then struggling institution, and the rent is still paid to its treasurer. This lot and the Propa- gation lots yield no income to the town.
From many causes, among them early inadequate surveying, the un- certainty of revolutionary times and later carelessness in recording, the chartered lease lands are in some confusion in Thetford as in other towns. The Glebe lots are not now easily identified except by tradition, but, being used for the same purpose, they have become merged with the school land.
I have given a necessarily brief and incomplete outline of the history of these lands. There are many aspects of them that should be more fully studied and recorded. It is a problem for our newly organized Historical Society and I suggest that a widespread discussion take place and the so- ciety be a clearing house for the results.
Mary B. Slade, Chairman of the Advisory Com- mittee of the Historical Society.
Hemenway has this to say respecting the first settled minister's lot :
Soon after his [Mr. Sumner's] settlement the trouble commenced between Great Britain and the Colonies, . Mr. Sumner proved to be the only Tory in Thetford, and soon destroyed his usefulness as a teacher of Christ with the people, who would not hear him preach, and threatened to tar, feather and mob him.
Mr. Sumner absconded to Swanzey, N. H. .. . He exchanged farms with Capt. William Heaton of Swanzey who soon moved on to the lot given Mr. Sumner where the depot at East Thetford now is. Capt. Heaton soon opened a tavern there and for a number of years it was the principal place for town and other meetings.2
2. II, 1093-1094.
APPENDIX G
REPORT TO THE LEGISLATURE OF 1878 ON ACREAGE AND RENTALS OF LEASE LANDS
408
List of Lands Sequestered in the County of Addison for Public, Pious, Charitable and other uses, 1878.
PURPOSES OF SEQUESTRATION.
TOWNS.
For all (public, pious and charitable) uses.
For religious uses.
For the support of town schools.
For the support of County Gram. Schools.
For the University of Vermont,
For Middlebury College.
Acres.
Appraisal.
Rents.
Acres.
Appraisal.
Rents.
Acres.
Appraisal.}
Rents.
Acres.
Appraisal.
Acres.
Appraisal.
Appraisal.
Rents.
Addison,
686
10089
193 20
265 351
4065
65 53
421
6024
127 67
Bridport,
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