University of Vermont v. Executor of Reynolds

• Decision Date: 01 January 1831
• Citation: 3 Vt. 542
• Parties: UNIVERSITY OF VERMONT v. EXECUTOR OF ELISHA REYNOLDS
• Court: Vermont Supreme Court

3 Vt. 542

UNIVERSITY OF VERMONT v. EXECUTOR OF ELISHA REYNOLDS

Supreme Court of Vermont, Grand-Isle

January, 1831

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This case was an action of ejectment, commenced in 1821, to recover lots no. 98 and 99 in the town of Alburgh, in which the plaintiffs declared on a seizin in fee for the whole of those lots. The plaintiffs claimed title to the demanded premises by virtue of a charter obtained under the authority of the state of Vermont, dated February 23d, 1781, granting to Ira Allen, and his associates, a tract of land therein described, and incorporating it into a township, called Alburgh, and granting to the proprietors and inhabitants thereof all the privileges and immunities which were enjoyed by the inhabitants of other towns in the state. By this charter five seventieth parts or rights of said township were reserved for particularly specified purposes: one right for the use of a seminary or college; one for the use of county grammar schools; one to be and remain for the settlement of a minister or ministers of the gospel in said town; one for the support of the social worship of God; and one for the support of an English grammar school in said town. The right for the use of the seminary or college, and the right for the use of county grammar schools, with the improvements, rents, interests and profits arising therefrom, were to be under the control and disposal of the General Assembly of the state forever. And the proprietors of said township were thereby authorized and empowered to locate said two rights equitably, quantity for quality, in such parts of said town as they might judge would least incommode the general settlement of said tract. There was a condition contained in the charter to this effect: that each proprietor, his heirs or assigns, were to plant and cultivate five acres of land, and build a house at least eighteen feet square, or have one family settled on each right, within three years next after the circumstances of the war, in which the country was then engaged, would admit of a settlement with safety, on penalty of forfeiting to the state each respective right not so improved and settled. This forfeiture was never claimed by the state. On the 2d day of November, 1791, the University of Vermont was founded; and by the act of incorporation the trustees were empowered to take charge of, lease, rent, and improve, & c. all such grants of land as had already been made by the state for the use of a college. On the trial in the county court it appeared in evidence, that prior to the year 1785 the town was plotted, and, not many years after, was, by direction of Ira Allen, surveyed; and the lines run through the whole town; that the lots were designed to be one hundred acre lots; and that every lot in the town was claimed and owned by some person, though there were some lots which were not improved nor cultivated. The plaintiffs tendered evidence to prove that no person held any land in Alburgh under an original proprietor; to which the defendant objected. The objection was overruled, and the evidence admitted, from which it appeared that there was no lot possessed or held under any of the proprietors named in the charter. It was admitted that the defendant's testator, and those under whom he claimed, had been in possession of the premises demanded, ever since the spring of the year, 1785, claiming the same in their own right, and adversely to all the world. The defendant produced in evidence a deed from Asa Gardner, acknowledged December 16, 1796, granting to him lot no. 99; and another deed from Joseph Sowles, dated September 14, 1796, granting to him lot no. 98.

It was contended by the defendant, 1st. That it ought to appear from the declaration how the plaintiffs claimed, whether as tenants in common, or in severalty. 2d. That the defendant had a complete title by the statute of limitations. 3d. That the exceptions in the statute respecting public rights, & c., did not apply until such rights were severed. 4th. That from the great length of time the town had been settled, and the defendant's testator been in possession, it was to be presumed that the college-right had been set off by the proprietors as directed by the charter. 5th. That if the college-right had not been set off, it was incumbent on the plaintiffs to cause a severance before an action of ejectment could be maintained. 6th. That if the college-right was not severed, it could not extend through the town; the charter having directed a particular location. 7th. That before the plaintiffs could maintain ejectment, they must demand of the proprietors to set out this right, and locate it agreeably to the provisions of the charter. 8th. That, as tenants in common, the plaintiffs could not sue to be let into possession without a demand. 9th. That no action will lie by one proprietor of a town against another proprietor, to obtain possession, until there is a severance. 10th. That the jury ought to presume a title in the defendant's testator after thirty eight years' adverse and peaceable possession.

A verdict was returned for the plaintiffs to recover one seventieth part of the premises demanded, with one cent damages and their cost, under a rule, that if the verdict be set aside, judgement should be rendered for the defendant to recover his costs. The defendant having filed exceptions, the case was reserved for the opinion of this Court.

Judgement rendered for the defendant.

Royce and Smalley, for the defendant.--I. The plaintiffs claim title to one undivided 70th part of the premises demanded as tenants in common with the defendant; and, in support of this claim, rely on the charter granting the town of Alburgh to sixty-five proprietors, reserving for certain public uses five-seventieths of the same, and the act incorporating the University of Vermont, and granting to that corporation the use of one-fifth part of the lands thus reserved. By this claim the plaintiffs admit that they and the defendant's testator were co-proprietors, and, therefore, as they insist tenants in common. But the defendant insists that the proprietors of towns do not stand in the relation of tenants in common to each other. Tenants in common must join in all personal actions where the profits of the land, or some indivisible thing, is in question.--1 Swift's Dig. 102, 103; Hammond on Parties, 44; 3 Bac. Ab. 706; Cro. Jac. 231. Will it be pretended that a proprietor in possession, before a division, cannot maintain trespass against a stranger without joining all his co-proprietors? The possession of a proprietor, as such, is necessarily adverse and exclusive, both before and after severance. From which it results that one proprietor cannot, even after demand and refusal, support ejectment against another for a commonage. --Britton v. Lawrence and Clark, 1 D. Chip. 103. Proprietors have rights and privileges which tenants in common have not; and these rights were well known and understood at the time of granting the charter.--Old stat. 293, Act of 1779; do. 323, 124, 143; Act of 1787, sec. 5, (Old stat.) By these acts the majority of the proprietors could vote to a settler his lot in lien of his draft, and grant a proprietor liberty to pitch. All these powers are inconsistent with the right of tenants in common. See act of 1787, (Old stat. 107.) If private proprietors, before a division, may, as between themselves, be considered tenants in common, yet they and the public cannot be so treated. The public right, when no particular mode of location is pointed out by the charter, cannot be located by pitch, but must be by draft, and the agents of the public cannot interfere with these rights until they are located.

II. But granting, argumentatively, that ununder those charters, where the division of proprietory rights is left to be regulated by the general statutes on this subject, one proprietor may maintain an action of ejectment against a co-proprietor as a tenant in common, it is insisted that the plaintiffs in this case are not proprietors at large through the town. The charter directs that this right shall be located in such manner as the proprietors should judge would least incommode the settlement of the township. The location of this right is made a condition precedent to the rights of enjoyment or possession by the college. It is said by the plaintiffs, that the proprietors were authorized and directed by the charter to locate the land belonging to their right, and that they have neglected so to do. Admit it. The proprietors have neglected their duty. But are the plaintiffs, because they have been deprived--through the neglect of the proprietors--of a particular right, which was given them by the charter, to acquire under this charter another and different right, which was not given? Have they the power of substituting any right, which they may claim for the one they have lost? If the plaintiffs have lost any right, it is by their own neglect. They have slept for forty years, without as they say, taking any measures to compel the proprietors to locate their land; and as a compensation for this neglect, they now ask, not that their lands may be located, not that they may have a lot of wild land, but that they may have an undivided 70th part of all the lands, with the buildings and improvements thereon, and this too without paying any thing for those improvements. If the plaintiffs are proprietors at large through the town, and, as such, tenants in common, they may remain so to the end of time. The legislature have always exempted public lands from taxation; and are there not infinite difficulties in carrying the several statutes...