University of Vermont And State Agricultural College v. Walter W. Ward

• Decision Date: 04 February 1932
• Citation: 158 A. 773,104 Vt. 239
• Parties: UNIVERSITY OF VERMONT AND STATE AGRICULTURAL COLLEGE v. WALTER W. WARD
• Court: Vermont Supreme Court

158 A. 773

104 Vt. 239

UNIVERSITY OF VERMONT AND STATE AGRICULTURAL COLLEGE v. WALTER W. WARD

Supreme Court of Vermont

February 4, 1932

January Term, 1931.

Public Lands---Irrevocable Grant---"Determinable Fee"---"Possibility of Reverter"---Descent and Distribution---Estates---"Fee upon Condition"---Necessity of Entry for Breach of Condition---Reversion of Determinable Fee---Deeds---Estate Conveyed by Grant of Fee on Condition Subsequent---Instrument Attempting To Convey Fee of Public Lands Void---Term "As long as Grass Grows and Water Runs" as Indicating Perpetuity---Effect of Such Grant at Common Law---Power of Legislature To Authorize Trustees of Public Lands To Execute Perpetual Leases Thereof---Applicability of Common Law under G. L. 1479---Evidence---Judicial Notice of Leasing of Public Lands by "Durable Leases" as Matter of Common Knowledge---Statutes Construction of---Legislative Intent as to Effect of "Durable Leases"---Haben-dum in Conveyance as Indicating Merely Leasehold Estate---Presumptions---Lessee of Public Lands Presumed to Know Law Relating Thereto---No Presumption Parties to Lease of Land of University Intended Greater Estate To Be Conveyed Than University Had Legal Right To Convey---Trustees' Title to Public Lands---Instrument Conveying Land of University "As Long as Grass Grows and Water Runs" Construed---Defenses Unavailable to Stranger to Title Sued for Trespass---Status of Growing Timber---Rights and Limitations of Tenant under "Durable Lease" as to Trees on Premises---Repudiation of Tenancy by Sale of Growing Trees---Effect of Severance of Trees as to Their Property Classification---General Property in Trees Cut and Removed from Leased Premises---Trespass---General Property in Chattel as Drawing to It Possession---Damages---Harmless Error.

1. Acts of 1810, Ch. 83, 8, which vested university "with full power, right and authority to take charge of, lease, rent and appropriate" to its use and benefit "forever" all lands already granted and reserved by State for use and benefit of a college, or a seminary or college, held, in connection with repeal of Acts 1802, Ch 95, 1, to render grant to university irrevocable.

2. "Determinable fee" is fee-simple estate to person and his heirs, with qualification annexed to it by which it is provided that it must determine whenever qualification is at end, and such estate may remain forever, or terminate on happening of contingency upon which estate is limited.

3. "Possibility of reverter" of land under determinable fee is left in person who limits it, and in meantime whole estate is in grantee or owner subject only to possibility of reverter to grantor.

4. "Possibility of reverter" of land under determinable fee is not estate in land, and is incapable of alienation or devise, but descends to grantor's heirs.

5. "Fee upon condition" exhausts whole estate, but may return to grantor by breach of condition subsequent to which it was granted, such return, however, not occurring until entry by person having that right.

6. Fee upon condition does not terminate until entry by person having right of entry for breach of condition, while in determinable fee estate reverts at once upon occurrence upon which it is limited.

7. Every grant of fee on condition subsequent is conveyance of fee simple, grantor conveying whole estate, and no interest in land remaining in him.

8. Grantor in grant of fee on condition subsequent has mere right to enter on breach of condition, which entry revests estate in him.

9. Where university had no power or authority under its grant of authority from Legislature to convey fee of any kind, absolute or on condition subsequent, to its real estate, if lease executed by it of land for "as long as grass grows or water runs" is in legal effect conveyance in fee, such attempted conveyance is utterly void.

10. Terms "as long as grass grows or water runs" denote perpetuity, and at common law grant for such period conveys fee simple.

11. Legislature has power to authorize trustees of public lands to execute leases thereof with terms coextensive with life of trust, that is, forever.

12. Under G. L. 1479, only so much of common law as is applicable to local situation of Vermont and not repugnant to its Constitution and laws, is law therein.

13. Court will take judicial notice as matter of common knowledge that from early days of Vermont greater part of public lands have been leased by "durable leases," that is, by leases reserving rent payable annually, with right of reentry for nonpayment of rent, and for term "as long as grass grows or water runs," or equivalent terms.

14. In construction of particular statute, all acts relating to same subject-matter should be read in connection with it, as parts of one system.

15. In determining meaning of statute, consideration may be given to evil which it is designed to remedy, and for this, court may properly look at contemporaneous events, situation as it existed, and as it was pressed upon legislative body.

16. Legislative history held to show that it was legislative intent that durable leases of public lands should create relation of landlord and tenant between parties, and that they are valid leases on long terms and not conveyances in fee.

17. Habendum in conveyance of university land, to certain person "his executors, administrators and assigns," held clearly to indicate that parties did not intend to convey fee, but leasehold estate only, notwithstanding covenant for quiet and peaceable enjoyment of premises ran to such person, "his heirs," etc.

18. Lessee of land from university is presumed to know law as to leases of public lands.

19. It will not be presumed that parties to instrument pertaining to lands of university intended that such university should convey estate in land greater than it had legal power to convey.

20. Titles of trustees to public lands are indefeasible by State, and are as permanent, absolute, and effective as if lands had been granted to a man, his heirs and assigns forever.

21. Instrument executed by university conveying certain of its land for "as long as grass grows or water runs," under statute providing only for lease, reciting on its face that it is lease, containing apt words for lease, with specific rights and duties between parties, reserving adequate annual rent, and authorizing reentry for nonpayment of rent or nonperformance of condition, held to create relation of landlord and tenant between parties thereto.

22. Purchaser of all growing wood or timber on land of university, from lessee of such land under lease thereof "as long as grass grows or water runs," in violation of restriction in such instrument, was not entitled, when sued in trespass by university for cutting and removing such timber, to avail himself of claim that such durable lease was, in legal effect, conveyance of base or determinable fee, being stranger to title.

23. Such purchaser of all growing wood and timber on land of university from its lessee under durable lease being stranger to title, held not in position when prosecuted in trespass by university, to raise claim clause in such lease with respect to reservation of thirty acres of woodland without committing strip or waste thereon was so indefinite and uncertain as to render allocation of woodland impossible, or that such clause was covenant on part of lessee to lessor, and not reservation, and that plaintiff could not recover in

ACTION OF TORT.

24. Growing timber is part of land.

25. Tenant under durable lease held to have right to enjoy benefit of trees while standing and to reasonable estovers, but had no right to sell them to be cut and removed from land.

26. When tenant's administrator assumed to give deed of growing trees and grantee accepted it, and assumed to hold under it, it was in effect repudiation of tenancy, not only by administrator but also by grantee.

27. Severance of trees from land converts them into personal property.

28. General property of trees cut and removed from premises leased by university in whom fee remained, held to be in university.

29. University could maintain trespass de bonis asportatis for cutting and removal of trees from its land by grantee of its lessee, or trover for conversion of them.

30. General property in personal chattel draws to it possession in law.

31. In action of trespass by lessor against lessee's grantee for cutting and removing timber from leased land, measure of damages as against such defendant is value of timber which he cut and removed, he being stranger to title.

32. In such action, permitting witness who had knowledge of facts to testify that wood lot from which timber had been cut and removed was on plaintiff's land, held without error, its location being undisputed.

ACTION OF TORT for damages for cutting and removing timber from land of University of Vermont, by grantee of lessee of such land under durable lease. Pleas, general denial and special defenses. Trial by jury at the November Term, 1929, Lamoille County,Bicknell, J., presiding. Verdict and judgment for plaintiff. The defendant excepted. The opinion states the case.

Judgment affirmed.

Morse & Hanford, of Hardwick, for the defendant.

H. H. McFarland and Theriault & Hunt for the plaintiff.

Present: SLACK, MOULTON, and THOMPSON, JJ., and GRAHAM and SHERBURNE, Supr. JJ.

OPINION

THOMPSON

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 or 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." ...