State v. Catlin

• Decision Date: 01 January 1831
• Citation: 3 Vt. 530
• Parties: STATE v. GUY CATLIN
• Court: Vermont Supreme Court

3 Vt. 530

STATE v. GUY CATLIN

Supreme Court of Vermont, Chittenden

January, 1831

[Syllabus Material]

This was an indictment for a nuisance in maintaining and continuing a certain store in Burlington. The place, in which the offence was charged to have been committed, is a large space of ground extending from the south side of Pearl street, in Burlington, to that part of the college lot, which lies west of the college buildings, and is bounded on the west side by the tavern stand, called the Green Mountain House, and a line of buildings south of it, and on the east side by the brick building, opposite the dwelling house of Judge Foote, and a line of buildings south of it, and is supposed to be a little less than twenty rods wide, from east to west, and more than twenty rods long from north to south. For the purpose of proving that the place in question had become, and was, at the time of the offence charged, a public common and highway, the prosecutor offered to prove by parol that Stephen Pearl, (who was admitted to have been the owner of the land,) declared his intention in 1801, and afterwards of leaving this place open to the public as an addition to the college green; and that it was afterwards, within three or four years, cleared and made smooth by the voluntary labour of students and other individuals, and that it remained open and unobstructed until after the execution of a deed from Pearl to Giles T. Chittenden and Archibald W. Hyde hereafter mentioned. The prosecutor also offered to prove, for the purpose aforesaid, that in 1801, and afterwards, the said Pearl sold and conveyed in house lots the land on the west and east sides of the tract in question, and in the deeds bounded the purchasers upon the said tract by the name of the public square or college green. To all this evidence the respondent objected, insisting that it was not proper evidence to show a dedication to the public. But the court overruled the objection. The prosecutor then read in evidence the record of a deed from said Pearl to one Burnham of the land now forming part of the tavern stand, aforesaid, dated January 20, 1801, wherein the premises conveyed were described as " lying on the west side line of the green, which is four chains wide; " also a deed from Pearl to Frederic L. Goch, dated October 2, 1802, of a part of the same premises described in the last deed, aforesaid, and an addition, being five acres in the whole, which was therein described as " beginning at the north west corner of the college green, and extending southerly on the side of the college green; " also a deed from Pearl to Joseph Miller, dated in January, 1804, of the house-lot next south of the land last mentioned, which in said deed is described as " adjoining the west side of the college green; " also a deed from said Pearl to one Flagg, dated in January, 1804, of one and a half acres next south of the last mentioned lot, and described, as " adjacent to the college square; " also a deed from said Pearl to Samuel Fitch, dated in October, 1803, of a small lot on the east side of the tract in question, and adjoining Pearl street, in which no mention is made of any green, square, or common; also a deed from said Pearl to Daniel Farrand, dated in August, 1804, of a lot next south of the one last mentioned, which is described as lying on the " east side of the college green," said deed containing a covenant in relation to the tract now in question. The prosecutor also proved that the tract in question was gradually cleared off and made smooth between the years 1801. (when the college was built,) and 1805, and that this was chiefly done by voluntary labour of students and other individuals, aided in one instance by a contribution for digging out the stumps; that it was denominated a public square or college green, and most usually, " the college green," and that it continued open, with the original college green, and wholly unobstructed, until November, 1814. One witness testified that some considerable time previous to November, 1814, in conversation with Pearl relating to the piece of ground now in question, the latter told him in very emphatic terms, that he had given it out as a college green, and it should always remain so. Another witness testified, that more than twenty years ago, he, the witness, owned a house lot on the west side of the tract in question, and another on the east, and being in treaty for the sale of them, and feeling interested to know whether the space in question was to remain permanently open as a common, (as that fact would affect the price of the lots,) he applied to Pearl to...