Univ. of Vt. and State Agricultural Coll. v. Ward

• Decision Date: 04 February 1932
• Citation: 158 A. 773
• Parties: UNIVERSITY OF VERMONT AND STATE AGRICULTURAL COLLEGE v. WARD.
• Court: Vermont Supreme Court

158 A. 773

UNIVERSITY OF VERMONT AND STATE AGRICULTURAL COLLEGE

v. WARD.

Supreme Court of Vermont. Lamoille.

Feb. 4, 1932.

[Copyrighted material omitted.]

Exceptions from Lamoille County Court; Fred G. Bicknell, Judge.

Suit by University of Vermont and State Agricultural College against Walter W. Ward. Judgment for plaintiff, and defendant brings exceptions.

Affirmed.

Argued before SLACK, MOULTON, and THOMPSON, JJ., and GRAHAM and SHERBURNE, Superior Judges.

H. M. McFarland, of Hyde Park, and Theriault & Hunt, of Montpelier, for plaintiff.

Morse & Hanford, of Hardwick, for defendant.

THOMPSON, J.

On May 3, 1811, the corporation of the University of Vermont, by an instrument executed by it and Benoni Shaw, did demise, lease, and farm let to Benoni Shaw, his executors, administrators, and assigns, "as long as grass grows and water runs," the westerly half of lot No. 29 in the third division of the town of Morristown "laid out, surveyed and set to the college right in said town." (The description of the land as being in the third division was conceded by every one in interest to be a clerical error. The second division was meant.) A yearly rent was reserved, with a provision for re-entry in case of nonpayment, and it was also provided that the lessee, for himself, his heirs, executors, administrators, and assigns "doth hereby further covenant and agree that he, and they, shall and will at all times reserve thirty acres of the premises for woodland without committing strip or waste thereon, taking therefrom yearly such timber as shall benecessary for keeping in repair the buildings necessary for the improvement of the demised premises, and wood for not more than one family thereon, and in case of noncompliance it shall be lawful for the said corporation at any time to re-enter and possess the same in as full and ample a manner as in case of nonpayment of rents."

Through various conveyances the possession of the premises came to Francis Fontaine on November 6, 1915. On February 28, 1917, the latter conveyed the premises by warranty deed to Peter Fontaine. Peter died on January 28, 1919, and his administrator, having first obtained a license to sell from the probate court, on June 11, 1920, conveyed to the defendant all of the growing wood and timber upon the premises, the same to be cut and removed within five years. There was at that time a wood lot of 25 1/3 acres upon the land. The defendant entered and cut and removed the timber.

The declaration contains several counts in trespass quare clausum fregit; one in trespass de bonis asportatis; and one in trover for the timber. The counts in trespass quare clausum were withdrawn during the trial. The pleas are the general denial, and special pleas denying damage to the plaintiff's interest in the premises, and alleging a lawful right in the defendant to cut the timber. Issue was joined upon the defendant's general denial; and his special pleas were met by general denial and a replication alleging the conveyance to Benoni Shaw containing the covenant relating to the wood lot, and alleging that the deed of the standing timber to the defendant was in derogation of, and contrary to, its provisions. Trial was by jury, with verdict for the plaintiff, and the defendant excepted.

At the close of the plaintiff's case, and again at the close of all the evidence, the defendant moved for a directed verdict, and excepted to the denial of it. The ground of the motion which raises the vital question in the case is that upon the evidence, viewed most favorably for the plaintiff, the plaintiff has no title to or interest in the premises or property, reversionary or possessory, such as entitles it to maintain this action. We proceed at once to the consideration of this point.

It was conceded at the trial below that lot 29 in the second division was allotted as the college lot in the drawing of lots in the town of Morristown, under the reservation in the charter of the town of "one right for the use of a Simonary or College."

The University of Vermont was empowered by its charter, granted by the Legislature November 3, 1791 (Rev. St. 1787-1791, p. 300), "to take charge of, lease, rent, and improve to the best advantage, all such grants as have been already made by the authority of this state, for the use and benefit of a college."

In 1802 an act was passed which, after stating the following premise: "Whereas doubts have arisen, whether the corporation of the University of Vermont have a right to appropriate to the use and benefit of such University, the rents and profits of all such lands as have been already granted and reserved * * * for the use and benefit of a college, or for the use and benefit of a seminary or college," empowers the corporation "to take charge of lease, rent and appropriate to the use and benefit of the University of Vermont, all such lands as have been already granted and reserved, by the authority of this state, for the use and benefit of a college, or for the use and benefit of a seminary or college, and the same to continue until the further order of the Legislature." Acts 1802, ch. 95, § 1.

In 1810 a further change was made, whereby the corporation was "vested with full power, right and authority to take charge of, lease, rent, and appropriate to the use and benefit of the said University forever, all such lands as have been already granted and reserved by the authority of this state, for the use and benefit of a College, or for the use or benefit of a seminary or College." This act also repeals section 1, Acts of 1802, above mentioned. Acts 1810, ch. 83, § 8. The significant thing in this act is the word "forever," which, in connection with the repeal of section 1 of the act of 1802, renders the grant to the university irrevocable.

When, in1865, the University of Vermont and the Vermont Agricultural College were united and constituted a body corporate by the name of the "University of Vermont and State Agricultural College," the trustees thereof were empowered to receive and use "the rents and uses of all such lands as have been heretofore reserved in any charter of land in this State for the use and benefit of any college, and may have the same rights in respect to said lands, and to any leases of the same, and to any rents arising therefrom, that said institutions respectively now have, and may maintain suits in their own name or in the name of such new corporation to recover the same." Acts 1865, No. 83, § 4.

The principal question raised by the defendant's motion for a directed verdict is as to the true character of the instrument of conveyance from the plaintiff to Benoni Shaw which is in form that of a lease, and is hereinafter referred to as a "lease."

The defendant admits that the instrument contains apt words for a lease, with specific rights and duties as between the parties, reserving a substantial and adequate rent payable annually during the whole term of the holding, and authorizing a re-entry for the nonpayment of the rent or the nonperformance of the covenants, but claims that, because the habendum clause is "to have and to hold as long as grass grows or water runs," the lease is equivalent to a conveyance in fee, and is in fact a base or determinable fee, and that the university had the authority and power to convey such a fee.

The term "determinable fee" is used often as synonymous with base fees or with fees upon condition, but at common law the distinction between these three classes of fees was very clear.

A determinable fee is a fee-simple estate to a person and his heirs with a qualification annexed to it by which it is provided that it must determine whenever the qualification is at an end. Common instances given in the books are a limitation to one and his heirs so long as a certain tree stands, or so long as A and his heirs shall pay B a certain sum per annum, or so long as the property convoyed is used for a certain specified purpose. Such an estate may remain forever, or it may terminate on the happening of the contingency upon which the estate is limited. The possibility of reversion expectant upon such an estate, called the possibility of reverter, is left in the person who limits it, and in the meantime the whole estate is in the grantee or owner subject only to the possibility of reverter in the grantor. The possibility of reverter is not an estate in land. It is incapable of alienation or devise, but descends to his heirs.

A fee upon condition resembles a determinable fee in that it exhausts the whole estate, but may return to the grantor by breach of a condition subsequent to which it was granted, but it does not return until there has been an entry by the person having that right. The only practical distinction between a right of entry for breach of condition subsequent and a possibility of reverter upon a determinable fee is that in the former the estate in fee does not terminate until entry by the person having the right, while in the latter the estate reverts at once upon the occurrence of the event upon which it is limited. 17 Harvard Law Rev. 297; Pond v. Douglass, 106 Me. 85, 75 A. 320; Lyford v. Laconia, 75 N. H. 220, 224, 225, 72 A. 1085, 22 L, R. A. (N. S.) 1062, 139 Am. St. Rep. 680; First Universalist Society v. Boland, 155 Mass. 171, 29 N. H. 524, 15 L. R. A. 231; Institution for Savings v. Home for Aged Women, 244 Mass. 583, 139 N. E. 301; Slegel v. Lauer, 148 Pa. 236, 23 A. 996, 15 L R. A. 547; Hart v. Lake, 273 Ill. 60, 112 N. E. 286; Upington v. Corrigan, 151 N. Y. 143, 45 N. E. 359, 37 L. R. A. 794; Nicoll v. N. Y. & Erie R. R., 12 N. Y. 127.

In each of the above-cited cases there was a conveyance of the fee either upon a condition subsequent or subject to a collateral limitation which might destroy it.

While a base fee at common law was different from a determinable fee or a fee upon condition, it has not, so far as we can ascertain, been recognized in this country. See 17...