USA > Vermont > The Vermont lease lands > Part 8
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During all of this period, and, in fact, until after the conclusion of the Revolutionary War, the area then known as the Hampshire Grants and now comprising the State of Vermont was distinctly "frontier" country-much more so than areas further west. It was largely unknown except by frontiersmen, hunters, trappers and so on, and those who had been across it in the course of the military campaigns. Except for the
5. A case in point involved the New York grant of the town of Kent. Kent had been granted to one Rogers and associates in 1770, and Rogers then acquired title from all the associates. In 1778 Kent was confiscated on the grounds that Rogers was a royalist, and in 1780 it was granted as Londonderry, with three men appointed as trustees to dispose of it "for the use of the State." In 1795, Rogers' son petitioned the legislature that he be conveyed, as heir, all the lands in London- derry then unsold or unappropriated. In 1795, the Assembly passed an act directing the trustees to so convey, excepting public rights, and a quit-claim deed passed from the trustees to Rogers' son. In Davis v. Moyles, 76 Vt. 25 (1902), the court refused to allow the claim of Rogers' son as heir or to accept the claim that Rogers' land had truly been confiscated, but it did hold that title might legally be based upon a New York patent granted after New York was given jurisdiction by royal decree. To complicate matters even more, in 1795 the legislature had formed part of east Londonderry into a separate town-Windham-and in 1797 had laid the boundary line up "Glebe Mountain" in such a way as to annex part of Windham back to Londonderry. In 1806 the legislature passed an act to straighten out the public shares between the two towns, having found that the committee of the original town of Londonderry for pitching the public lands had made no record of its pitches, although the lands had actually been located and fell partly in Lon- donderry and partly in Windham. Laws of Vermont, 1794-1796, 1795, pp. 11, 65-66; 1796-1798, 1797, pp. 21-22; 1802-1804, 1804, pp. 16-17 ; 1805-1807, 1806, pp. 104-105. For a map of conflicting grants of New York and New Hampshire see Edward Conant, Geography, History and Civil Government, 7th ed. rev. by Mason S. Stone (Rutland, 1925), facing p. 139. Hereafter cited as Conant, Vermont.
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small areas in the southeast-the lower part of the Connecticut Valley- and the southwest-the so-called Bennington area which had reasonably easy contact with Albany-it was not readily accessible.6 The combina- tion of topography, dense forest growths and lack of roads brought this about. The area was not on the road to anywhere except Canada, and even in that respect the west bank of the Hudson and Lake Champlain offered a preferable route.7 The very closeness to Canada may be re- garded as of interest to us because the fear of invasion from Canada had a retarding effect on immigration into the region with the result of long-continued absentee ownership. Moreover, it meant that among earlier settlers there tended to be a preponderance of adventurers who flaunted the risk and of squatters who came here simply because their poverty drove them to a place so wild that they could hope to establish themselves on land without purchase payments. It will be conceded that neither of these classes of people would be overly careful of encroach- ment on the rights to the lands granted for church and school benefits.
Absentee ownership has been briefly mentioned in the preceding paragraph, but should be accounted an important factor in the confusion of the lands. The Wentworth charters specifically violated both the phrasing and intent of the King's instructions of 1741. These were to the effect that charters for towns would be granted only when fifty or more individuals were prepared to settle on the land.8 However, cus- tomarily the proprietors listed in Wentworth's charters for the Hamp- shire Grants were individuals who had no intention of settling. Indeed, it appears that very few of them ever even visited the region or had such intention. They were concerned with receiving grants of land which could be sold to settlers other than themselves. This view is borne out, furthermore, by the general failure of such grantees to make any im- provements of any kind, even to the development of roads. Just enough
6. It must be remembered that during this period of history, New York and not Albany, was the focal point of British provincial government in New York, and in those days the City was a long way from the Green Mountains. Likewise with New Hampshire, Portsmouth being much further removed in both space and thought than the present capitol at Concord.
7. It can be said that this condition still exists and is of influence on Vermont affairs generally. The state lies off all important routes, and this undoubtedly is an important contributing factor toward the continued quiet, rural, "small community" life and viewpoint prevailing. This is of interest in the present study because of its influence on administrative ways.
8. Laws of New Hampshire (Manchester, 1904-05), II, 607-652, cited by Jones, p. 23.
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surveying was done to make possible the relatively few early divisions into severalty of the granted lands. Consequently, the actual land was as nebulous in their minds as the "paper profits" so pleasing to many people during the hey-day of the stock market operations in 1929.
Of all the absentee grantees, those concerned with the lands granted for religious and educational purposes were the most absent. Both the glebe for the Church of England and the share for the S. P. G. were of concern only to clerical officials in London, with no agents in the neighborhood of the lands. The other share for religious purposes, for the first settled minister, obviously could have no champion until there should be such a settler or until a church congregation should develop with an interest in inducing the settlement of a minister. The same con- dition holds true for the share allotted to the benefit of a school. Con- sequently, none of these shares profited by the watchful eye of inter- ested parties. They were not represented at meetings of the proprietors nor at the drawings for lots at the time of land divisions. The wording of the charters, taken in conjunction with the accepted practices of land division, would lead one to expect that the beneficiaries of the four public shares were to be an even basis with the proprietors in the luck of the draw. There are indications, however, that with no sponsors present to protect their rights, there was some tendency to locate these rights of land in the less desirable parts of the towns. There appears to be an extraordinarily high proportion of the lots located in the more moun- tainous parts.
Another result of the absence of sponsors or agents of the public lands appears to have been that such lands were occasionally used as the way out of otherwise insoluble conflicts of land claims. Such conflicts could arise as the result of overlapping grants from the governors of New Hampshire and New York, from the inadequacy of early sur- veying, from the loose and carefree ways of land speculators, and from the presence of squatters unwilling to move upon the arrival of bona fide purchasers. (In this respect the history of land settlement in Ver- mont is of a piece with the process of settlement of large areas of the United States.) It is a generally accepted view in Vermont among those aware of the lands that in some instances of such conflicts the issue was resolved by leaving a settler on the lot at issue and tacitly permitting the other claimant to move in on what had been regarded as land pertain- ing to one of the public rights. Documentation of this assertion obviously would be exceedingly difficult and is an example of the reasons why
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Mr. Harvey felt that five years and $25,000 would not be too much for the job of clarifying the status of the lease lands. One reason for the difficulty of such documentation is that any such incident obviously would be settled as quietly as possible. Another is that among Vermonters, then as now (with the rather lurid exception of Ethan and Ira Allen and their associates), there is a distinct reluctance to air quarrels and squab- bles, much less to put them into black and white.9 Finally, lots have been "lost" in other ways, as will be noted presently.
Land speculation should probably be assigned primary place as a factor in the present confusion surrounding these lands. At the time at which Wentworth made his first charter grants west of the Connecticut, land speculation was becoming important, and it rapidly became more and more significant in the affairs of the period. As is generally known, this was a time when there was some increase in wealth in the colonies, but in which British colonial policy inhibited investment in industry or commerce. It was also a time when money in the colonies was uncertain in value and erratic in quantity. Hence, there was a positive urge to turn toward land as a medium of enterprise. This all coincided with a pro- gressive decrease in the area of available land in the more settled New England colonies and in New York so that the wild area between the Connecticut River and Lake Champlain offered the only remaining un- patented land of great extent. Indeed, the New York authorities were energized in their struggle with the Wentworths of New Hampshire for
9. This has been noticeable all through the course of this research. In reading the secretaries' records of some of the groups dealing with the lands, one will come upon the development of a disagreement. Of a sudden, the minutes will simply clamp down on any further elucidation. One will find simply a brief statement that so and so tendered his resignation and it was accepted. A good example of this may be seen in the records of the Trustees of the Washington County Grammar School for the year 1887: "The Committee appointed to settle the matter of lands claimed by both Addison and Washington Counties reported the matter settled." In the discussions of the Trustees regarding combining the Washington County Grammar School with the Montpelier Union School District, covering a period of several years, it is evident that there was considerable difference of opinion among the members of the Board, but there is nothing in the minutes indicating the basis for the disagreements. The only notation, following the decision to make arrangements with the Union District, is a bare statement of somewhat wholesale resignations. MSS Trustees Records of Washington County Grammar School, 1813-1919, meet- ings of June 17, 1887, June 9, 1858, March 31, 1859, n.p. Hereafter cited as Trustees Records W. C. G. S. This characteristic of reticence greatly impedes any effort to track down the background of some events.
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authority over the region by their necessity to find lands to satisfy the royal orders for grants to British veterans of the war of 1754-60.10
The activities of the speculators were not methodical or orderly, any more than is apt to be true of any speculative operation. Certainly, they showed little concern for the orderly settlement and establishment of the towns granted by Wentworth, and it can be believed that they had less interest in the proper allocation and protection of the lands assigned to the public rights. During the speculative operations there was a con- siderable volume of transactions in the land of the Hampshire Grants in Connecticut and New York City. The New Yorkers would be little concerned about the public rights inasmuch as the entire system of town chartering prevalent in New England would be alien to their customs. It has been suggested by Matt Jones that much of the turmoil in the colonial history of the area now included in Vermont was due to the fact that the old traditional New England procedure of granting town charters was here applied under totally different conditions.11
As Miss Woodard puts it, the system had gained its first impetus as far back as the original settlements. (And this is supported by a glance at the history of Plymouth.) It had been fostered by the early tendency of groups of people to adhere and settle together as a church congrega- tion and from that start had developed into full flower.12 So, all through the settlement of the older New England colonies, bits of the wilder- ness were entered and developed by groups rather than by solitary in- dividuals or families, much as, in a later day, the west and far north- west sometimes were entered by fairly cohesive wagon-train groups. But, in New England there was this distinctive and unique feature-the land was granted to the group in common, for their later division into severalty; whereas, elsewhere in the United States specific plots of ground were granted or claimed by individuals. With what was prob- ably a minimum of bickering in most cases, the older New England towns were for the most part divided into severalty by those who were to live on the land so divided. Consequently, given individual lots of land could and would be located and identified, at least as far as the methods of those days permitted.
In the region of Vermont, however, no such condition prevailed gen-
10. Jones, p. 47.
11. Ibid., p. 258.
12. Woodard, Town Proprietors, p. 30; 34 Cyclopedia of Law and Procedure 1154, n. 77 (1910).
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erally. Here a grant in common was made to a group of individuals who did not see the land, who were bound together by no common interest other than their common greed, and who might live in various places and not even know one another. If conditions had been such that settlers were readily and quickly acquired, the process still might have exhibited some elements of order because the proprietors would then have been forced to proceed with the land divisions in a systematic way. But this did not occur. Instead, time passed, proprietors died, sold out, or became impoverished. Proprietors' meetings, when held at all, were apt to be under anything but scrupulous and proper auspices.13 Settlement oc- curred in some instances by squatters unauthorized on the land and unacquainted and uninterested in the legal division of the land as pro- vided for in the charters of the towns. Finally, in view of the individual way in which most of the settlement occurred, either squatters or bona fide settlers were likely to be interested in acquiring the best lands avail- able regardless of any division which might have awarded such desirable lots to the public shares. There was, in other words, no community inter- est existent, intent on the development of a cohesive community and hence concerned with the welfare of the religious and educational rights.14
Among the early influences contributing to uncertainty respecting the lands in Vermont generally, and the public lands particularly, was the primitive technique of surveying of the time. To begin with, the region of the Hampshire Grants was most imperfectly known except for relatively small areas, particularly those in the southeast and south- west corners. A few other spots were known to some extent, notably the valley of the Winooski (or Onion) River. But for the most part, the interior aspects were matters of speculation rather than knowledge, reliance being placed on the tales of the few travellers. Moreover, Ver- mont does not contain numerous sharply differentiated landscape fea- tures which would have become well known and provided clear points
13. This state of affairs developed such serious proportions that the early years of Vermont legislation had innumerable acts providing for procedure of proprietors meetings in detail, especially regarding requirements that the place of meeting must be within the state, at least. See Laws of Vermont, 1779, 1782, 1783, 1784, 1785, 1786, 1787, 1791, 1794, 1797, 1810, 1822; Neill v. Ward, 103 Vt. 117 (1930).
14. The system of town proprietorship and its perverted form during the pe- riod of the opening of Vermont is well described in Woodard, Town Proprietors, whose findings are in agreement with the views of Jones.
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of reference. There are a very few mountains of some prominence, such as Mt. Mansfield, no outstanding lakes, and no really prominent rivers. The Winooski attracted early attention, not because of its prominence as a river, but because its valley cuts sharply through the range of the Green Mountains, thus providing a relatively easy east-west passage. As a result of all this, the charters granted by Wentworth were largely estimates, or rather guess-work, as to definite location and bounds.
Because of the expense involved and the difficulties of the terrain, the earlier surveyors were commissioned by the proprietors to make only the simplest surveys possible in order to accomplish some land divisions. In most of the Wentworth towns no surveys were made until many years after the charters were granted. Surveys developed only as increasing settlement required. And no systematic surveying occurred until after the establishment of the State of Vermont, when Ira Allen was commissioned as surveyor-general.15
While Allen's own interest appears to have been in connection with his extensive land operations, the state government was interested in a survey to facilitate its own program of chartering towns and granting lands in those portions of the state not already granted.16 There was a real interest here, as the fledgling government was faced with serious fiscal requirements, and land grants offered an immediate source of in- come. (Parenthetically, some of the early state officers appear to have been bitten by the land-bug.) Prior to Allen's surveys, the most exten- sive were the surveys and attempted surveys of William Cockburn, who was under instructions from New York to make surveys in connection with some New York land grants in the region.17 These surveys, how- ever, covered only certain relatively limited areas and some of them were abortive because he was driven off by settlers who considered his activities dangerous to their own situation. In his last effort, along the Winooski River, he was kidnapped by the Allen men.
Following Allen, the state made a concerted effort to "find itself" in the surveying operations of James Whitelaw. Both Allen and White- law encountered great difficulty in reconciling town lines, and their troubles are reflected today in the map of Vermont. There are towns of unusually small size because it was found that flanking towns were
15. Slade, State Papers, p. 543.
16. "Committee Report on Unappropriated Lands," Nov. 4, 1780, in Vermont State Papers, III, pt. I, 153-155.
17. Jones, pp. 289, 303.
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actually much closer than had been believed.18 Gores exist as spots left open between the lines of adjacent towns when the grants had assumed that such lines would meet. The difficulties are well illustrated by the following remarks by Allen to the legislature:
To the Honarable General Assembly of the State of Vermont Conveaned in Hinesburg-With Respect to Town lines in the Northerly part of the State notwithstanding the many imbarras- ments that has attended that Business the greater part of the Lines are Compleated as will appear from the Charter hereinwith Exhibited-
Some measures ought to be taken that the Lines of Fairfield, Smithfield and Hungarford might be ascertained as a Number of Towns are dependent on them Towns-The Charter of Concord was taken out in my absence and was to be returned if I did not attest the bounds which has been Refused by me and as that Charter Contains more lands than the contents of six miles square the west line has not as yet been run- In Consequence of the Legislature giving wrong bounds to Topsham the lines of Top- sham, Orange and Wildersburgh will need alteration.
Several Grants have been made in vague terms & the grantees have requested Bounds to contain more lands than has been com- mon where the grants were explicitly made which have been re- fused & the Charters are not issued-Sundry other matters that respects the surveyors will be verbally mentioned for want of time to write them at large.19
Whitelaw's difficulties were aggravated by the refusal of some towns to cooperate in submitting their charters for inspection and checking.
Beyond the social and economic obstacles to adequate surveying stood technical difficulties which would, in any case, have rendered sur- veying of doubtful certainty. This region is one which would have frustrated the most earnest efforts of a conscientious surveyor of those days. Besides the annual magnetic deviation (which for this area was not then known) there is a daily variation as between different periods
18. Weybridge, Waltham, Whiting, St. George, Brunswick, Kirby, Brook- line, Landgrove are examples. The court, in Town of Underhill v. Town of Jericho, 102 Vt. 367, 369 (1930), declared that boundary lines must be located as nearly as reasonably possible to charter specifications, but conceded that this ". . . might in some cases be quite impractical and perhaps impossible. . . . " A similar view was taken as early as 1788, in a committee report to the legislature. Vermont State Papers. Reports of Committees to the General Assembly, 1778 (March) -1801 (Oct.) (Bellows Falls, 1932), IV, 54; ibid., (Bellows Falls, [about 1929]), III, pt. IV, 102, 126, 128.
19. MSS State Papers, XXIV, 24.
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of the day which would influence strongly the primitive early com- passes.20 Furthermore, the geological formations of parts of Vermont would have affected compasses, all unbeknownst to the early surveyors. Consequently, even the surveying done after the establishment of the state government was not reliable.21
All of this finally received official notice when it became accepted law in Vermont that the lines of individual holdings of land would be accepted as established by existing lines of not less than fifteen years time.22 The widespread knowledge and condonation of the uncertain
20. This information was first encountered in the office of the State Forester and later verified in conversations with Professor A. D. Butterfield of the Uni- versity of Vermont. Professor Butterfield, now emeritus, has for many years made an intensive study of magnetic effects in Vermont. Among his efforts, he has made a long and frequent series of readings of such effects on compass readings on the transit magnetometer which is located at the University's campus in Burlington. He finds that between the hours of 5 a. m. and 5 p. m. there will be a diurnal de- clination of from 12' to 25' in something of an S-shaped curve. He stated that this is as closely as the variation can be defined since it is not at all regular ; indeed, it is subject to wide fluctuations ; at Rutland a variation of 2° was recorded within a period of twenty minutes. He has found no evidence of recorded declination figures, as presumably used by surveyors, except for some data of an inadequate sort on an 1805 map of Burlington. As to annual deviation, he informed the writer that in 1793, the earliest year for which there is any information, the correct figure appears to be 7º 8' 3". At present it is approximately 15°-as a diurnal average. An additional point of interest is that the curve of the annual deviation is not constant.
21. Additional difficulty arose because of the failure of early surveyors to think in long-time terms in making their notes. All too frequently, early notes in- cluded highly transitory reference points. One intersection in the state is extremely uncertain because the original survey, according to legend, ran a line "to the place . where the red cow died." Noticeable trees were a favorite reference, and these have long since disappeared even from the oldest memories. In Grand Trunk Railway Co. v. Dyer, 49 Vt. 74 (1876), the court took special notice of this situation :
The compass varies by operation of time, and is swerved from its polarity by hidden agencies, which render it, in minute matters, vacillating and uncertain. Quantity alone [in description in a deed] gives neither shape nor form and, applied to an irregular plot, would be subject to vary in area according to the different degrees of subtlety and accuracy in those who make the computations.
See also Hull v. Fuller, 7 Vt. 100, 101 (1835) and Neill v. Ward, 102 Vt. 117, 132 (1930).
22. This view was expressed by the court in White v. Everest, 1 Vt. 181 (1828), and in many cases since then, of which a number are to be found in the bibliography. It is to be seen that, as time went on, the attitude of the court became constantly firmer on this point. The legislature took account of the situation by a series of Betterments Acts beginning in 1785. MSS Laws of Vermont, Oct. 27, 1785, n.p. For further description of such acts, see infra, p. 73, n. 30.
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