| Vt. | Jan 15, 1840
The opinion of the court was' delivered by
—The only question raised in the present case is as to the title conveyed by the plaintiff to the town of Westford, by his deed of August 15, A. D. 1825. There can be no doubt, from the circumstances of the case, that the town expected to receive and the plaintiff was paid for and expected to convey the entire fee simple. It is true the object of the purchase was for a public common, but, where land is purchased by towns for that purpose, it is expected the use will be perpetual, and therefore the fee is ordinarily purchased. The style of the deed, too, is in the most unlimited terms i. e., “ do give, grant, bargain, sell, alien, convey, release and confirm unto the said town, and to the assigns thereof forever, all my right, title, interest or demand or claim, &c.” In the course of the description of the land this sentence occurs, “ said land being for the use of a common.” It is introduced, apparently, without any other object than to fix the location, or as a reason for fixing the form of the' land conveyed. The deed contains full covenants of seisin and warranty.
It is now contended that the section of the deed, in regard to the use of the land, was intended as a limitation of the conveyance. If so, when the town put the land to another use, their title was divested and became revested in the plaintiff. 1 Shep. Touchstone, 121 et seq. But it is evident, both from the phraseology of the deed, and from the circumstances and situation of the parties, at the time, that such could not have been their intention. Nor is such the legal import of the term used. It has been argued, that the town could not take a fee in land. If the plaintifi sold them a fee and was paid the full price of his land, 1
This is in no sense like the dedication by an individual of the use of lands to some public purposes e. g., a town common. In such case the fee, as was decided in the case of Pomeroy v. Mills, 3 Vt. R. 279, remains in the former owner and, upon any one intruding into the use of the land, the public may vindicate their right by way of indictment. State vs. Wilkinson, 2 Vt. R. 480. And the proprietor, in fee, may have ejectment. In the former case the grant was not to the town of Burlington, who might take a fee, but to the public, which is a mere abstraction, and incapable of taking a fee simple in lands. One might as well expect to grant the fee in lands “ to posterity,” as Lord Bacon, did his fame. And so, very justly, does Ch. J. Prentiss argue. But the present, as we have attempted to show, is not that case.
Judgment affirmed.