Galkin v. Town of Chester, 97-026

• Citation: 716 A.2d 25,168 Vt. 82
• Decision Date: 12 June 1998
• Docket Number: No. 97-026,97-026
• Parties: Irwin GALKIN v. TOWN OF CHESTER.
• Court: Vermont Supreme Court

Page 25

716 A.2d 25

Irwin GALKIN v. TOWN OF CHESTER.

No. 97-026.

Supreme Court of Vermont.

June 12, 1998.

Spencer R. Knapp and Molly K. Lebowitz of Dinse, Erdmann, Knapp & McAndrew, P.C., Burlington, for Plaintiff-Appellant.

Thomas S. Durkin of Kramer & Durkin, P.C., Brattleboro, for Defendant-Appellee.

Before AMESTOY, C.J., and DOOLEY, MORSE, JOHNSON and SKOGLUND, JJ.

JOHNSON, Justice.

Galkin appeals from an order of the Windsor Superior Court granting summary judgment in favor of the Town of Chester. He argues that the trial court erroneously determined that (1) his interest in glebe lands located in Chester is a leasehold and not a fee, (2) the leasehold does not include the right to mine talc deposits on the subject property, and (3) Chester is entitled to an award of its attorney's fees. We affirm the judgment, except for the award of attorney's fees to Chester, which we reverse.

Until shortly before this lawsuit, the parties believed the subject property was held in fee simple by Chester as public or "glebe" lands, and that Galkin was the lessee. Galkin brought this suit challenging that assumption so that he could sell or lease the mineral rights to the property to a third party.

Galkin's chain of title in the subject property dates back to 1947 when the Town of Chester leased the land to one Edward Holt under a durable lease, which provided that the lessee would pay annual rent in return for a tenancy that was to last "as long as wood grows and water runs." The lease also provided that "Edward E. Holt does further agree to use said property in good and husband-like manner."

Holt quitclaimed his interest in the property to Proctor Reels, Inc., from whom Galkin's business, the 251 Corporation, acquired title at a judicial foreclosure sale in 1960. Galkin then transferred title from the corporation to himself by warranty deed in 1969. He later conveyed the property to the Cypress Mining Corporation in early 1984. Later the same year, Cypress Mining Corporation entered into an option agreement with the Town of Chester. The agreement acknowledged that Chester owned the rights to any mineral deposits, and, in exchange for $25,000, Cypress received the exclusive right to purchase Chester's rights for the sum of $350,000. After Cypress declined to exercise its option, it conveyed the property back to Galkin.

I.

Galkin first contends that the trial court erroneously determined that Chester, rather than he, holds title to the subject land in fee simple. His claim turns on an analysis of historical events relating to the Chester Town charter.

Chester's first charter (Wentworth I) was issued in 1754 by New Hampshire's colonial governor, Benning Wentworth, and it named the town "New Flamstead." New Hampshire's colonial government later rescinded this charter, but Governor Wentworth issued a second, virtually identical charter (Wentworth II) in 1761. Both of the Wentworth charters reserved "glebe and school" lands to be used for educational and religious purposes.

New York's colonial government disputed New Hampshire's claim to the land that now comprises the State of Vermont, and New York issued its own land grants and charters (called "patents") covering these lands. In 1766, New York issued a land grant patent for the lands already controlled by the Wentworth II charter. The New York land grant renamed the area Chester and was issued to individuals who were largely different from those listed under Wentworth II. Unlike both Wentworth charters, the New York patent for Chester did not reserve public lands to be used for educational or religious purposes.

In 1779, Thomas Chandler, a proprietor under both the Wentworth II and the New York patent, filed a petition with the Vermont General Assembly seeking to resolve the apparent conflict between Wentworth II and the New York patent. The petition requested that "the Original Proprietors [of the town] or those that purchased of them ought to hold their Lands by Virtue of the New Hampshire Grants, without any Reguard [sic] to the New York Patent." 1 Journals and Proceedings of the Vermont General Assembly, reprinted in 3 State Papers of Vermont, at 61-62 (1924). The petition also requested that the town be renamed Chester. In response to the petition, the Vermont General Assembly passed a resolution stating "[o]n Petition of Thomas Chandler ... Resolved that the township formerly granted by the Governor of New Hampshire by the name of New Flamstead as described in said petition be and is hereby established by the name of Chester." Petitions for Grants of Lands, 1778-1911, reprinted in 5 State Papers of Vermont, at 61 (Mary Greene Nye ed.) (1939).

Galkin claims that Chester is governed by the New York patent rather than Wentworth II and because the New York patent does not preserve lands for public uses, that Chester does not actually own any lease lands. He therefore concludes that Chester does not hold title to either the property or the minerals at issue. Although as a durable lessee of Chester's fee, this conclusion would seem to defeat his interest in the property, Galkin contends that he holds title to the property in fee simple by virtue of the Marketable Record Title Act, 27 V.S.A. §§ 601-610. We disagree with both of these assertions.

In support of his claim, Galkin argues that New York required the surrender of New Hampshire grants prior to issuing New York patents. Thus, after the issuance of the New York patent, Wentworth II was no longer Chester's governing charter because it had been surrendered to New York. Moreover, Galkin disputes the trial court's finding that the General Assembly's resolution responding to the Chandler Petition bypassed the New York patent and ratified Wentworth II. He argues that there is an inherent contradiction in the General Assembly's resolution responding to the petition; the "township formerly granted by the Governor of New Hampshire" is significantly different from the land "as described in said petition." The former consisted of 23,000 acres with reserved public lands, while the latter contained 31,700 acres and did not reserve public lands.

Galkin contends that given the "petitioners' self-serving motivations," the petitioners sought the ratification of the New York patent, and not Wentworth II, because the New York patent provided for more acreage and did not provide for the reservation of public lands. He further contends that we should assume the General Assembly was responsive to the petitioners' request. Under this reading, Galkin argues, the reference in the resolution to the "township formerly granted by the Governor of New Hampshire by the name of New Flamstead" is simply meant to refer back to the way in which the Chandler Petition erroneously called the lands it described. The resolution, he contends, actually established the Town of Chester by granting the lands "as described in said petition," which are the lands granted under the New York patent. Galkin therefore concludes that the Assembly resolution did not ratify Wentworth II, and the New York patent remains in effect.

The trial court concluded that the General Assembly's response to the Petition demonstrates its intent that Wentworth II be Chester's governing charter. We agree. The Chandler Petition asked that their land holdings be ratified "by Virtue of the New Hampshire Grants without any Reguard [sic] to the New York Patent." In response, the General Assembly passed a resolution providing that the "township formerly granted by the Governor of New Hampshire by the name of New Flamstead as described in said petition ... is hereby established." In light of the fact that the petition expressly requests that the Assembly ratify the New Hampshire Grant, we conclude that had the Assembly intended to ratify the New York patent instead, it would have said so. Yet the Assembly omitted any reference to the New York patent.

Galkin next claims that, in any event, the New York patent was ratified by a 1790 agreement between New York and Vermont. The 1790 agreement provided that in return for Vermont's payment of $30,000 to New York, "all New York grants, other than those confirming Wentworth grants, were extinguished." W.T. Bogart, The Vermont Lease Lands, at 45 (1950). Galkin argues that the New York patent for Chester confirmed Wentworth II, and the patent was therefore ratified by the Vermont Legislature as of 1790. We disagree.

Even assuming arguendo that the New York patent confirmed Wentworth II for purposes of the 1790 agreement, we conclude the General Assembly's approval of the Chandler Petition in 1779 demonstrated the Assembly's intent that Wentworth II be the operative charter. Absent more compelling evidence to the contrary, we decline to hold that the 1790 agreement was intended by the Legislature, some eleven years later, to essentially reverse the General Assembly resolution approving the Chandler Petition, and to reinstate the New York patent.

Moreover, from the exhibits introduced at trial we note that the historical records of the Town consistently indicate the existence of glebe and school lands, and that the Town has regularly leased the subject property for more than one hundred and fifty years. In light of this long history and absent other evidence of the Legislature's intent, we hold that whatever legal significance the New York patent might have enjoyed prior to the General Assembly's resolution ended in 1779 with Wentworth II remaining in effect as the governing charter. Cf. Town of Readsboro v. Town of Woodford, 76 Vt. 376, 378, 57 A. 962, 963 (1904) ("When a municipal corporation has assumed under color of authority, and exercised for a considerable time with the consent of the state, the powers and privileges of such corporations, a private party in private litigation cannot question the legality of its existence."). The parties concede that all glebe and school lots are held in fee by the townships in which t...