12 Vt. 172 | Vt. | 1840
The opinion of the court was delivered by
— The first question presented for our consideration, is, whether the plaintiff is entitled to recover the lands in dispute, by virtue of the pitch made in March, 1839.
It seems, from the case, that the plaintiff has the title to the rights of eight of the original proprietors of the town, and he claims that the pitch made by him, in 1839, was a severance of so much of the undivided land in the town, and vested the title to it, in severalty, in himself. Is this so ? , At a meeting of the proprietors of the town, held in October, 1795, it was voted to give the plaintiff the privilege of pitch" ing four hundred acres, for building a saw-mill and gristmill in the town, and it was specified in the vote that the time in which the mills should be completed should be agreed upon, by the proprietors, at their next meeting, and that the plaintiff should give bonds for his faithful performance of the business. The pitch made by the plaintiff and Amos' Fassett, in June. 1797, on the two hundred and fifty eight acres, purports to be under the vote of 1795, and as a compensation for building the two first mills in the town. The proprietors, it seems, had no further action on the subject after their first meeting, and no bonds were ever given by the plaintiff. The business rested here until 1839, when-the plaintiff made his survey of one hundred and twenty acres, covering the land in question. This pitch does not purport to have been made in pursuance of the vote of the proprietors of 1795, or any other vote, as a compensation for the building of the two first mills in the town, and, indeed, it would have been difficult for the plaintiff to have claimed any benefit from a vote of the proprietors, authorizing a pitch to have been made, after so great a lapse of time, if he had attempted it.
The facts stated in the survey bill of 1839, under the hand of surveyor, “ that it was surveyed agreeably to what House says Amos Fassett surveyed it in 1797, as the mill pitch,” can have no possible effect. Neither is it any evidence in the case.
The next question for our consideration is, can the plaintiff recover, on the ground that the lands in question are undivided lands ? The commissioners, appointed under the special act of 1810 to make division of the lands in this town, make report, it is true, that they have completed a division of all the lands in the town, except the lands in Knight’s gore, and a small quantity of land in the east part of the town, but, when we have recourse to the division of the lots No. ,20 and 28, as made by them, we find what lands, in fact, they have divided from these two lots. The lots in the town are understood to contain but one hundred and thirteen acres, though lots No. 20 and 28 contain, in fact, one hundred and seventy acres each. Of lot No. 20. the commissioners set to the original right of Stephen Fay jun. S6J acres, the east part of it, eight acres to the right of John Sherwood and four acres to the right of David Bull, making 68J acres. Andoflot No. 28 the commissioners set fifty six and one half acres, the east half, as they say, to the right of S. Griswold, and twenty three acres to the rights of two other proprietors, making seventy nine and one half acres, and twelve acres from the two lots are also set to another right.
It is then evident that the commissioners, even upon their own ground, assuming that each of these lots contained only one hundred and thirteen acres, according to their reputed quantity, did not intend to divide the whole of them, for some cause or other. The closing part of their return, “ that they had divided all the lands” &fc., cannot, conclude the plaintiff, especially as their whole record shows some part of these two lots, at least, undivided. ,
The bill of exceptions in this case, in fact, finds, that after taking out those portions of lots No. 20 and 28 which the commissioners had set off or assigned to particular proprietors, there was an overplus of landf and that this is the land in question.
This then must be undivided land, and, as the defendant stands a stranger to all title, the plaintiff may well recover against him by virtue of his proprietary rights.
The judgment of the county court is reversed.
