June 2006 - #5. RUMINATIONS - Grinding Well and Sufficiently: The Grist-Mill in Vermont Law.

• Author: by Paul S. Gillies, Esq.

Vermont Bar Journal

2006.

June 2006 - #5.

RUMINATIONS - Grinding Well and Sufficiently: The Grist-Mill in Vermont Law

THE VERMONT BAR JOURNAL #165, Volume 32, No. 1 Spring (June) 2006

RUMINATIONS - Grinding Well and Sufficiently: The Grist-Mill in Vermont Lawby Paul S. Gillies, Esq.Though the mills of God grind slowly, Yet they grind exceeding small; Though with patience he stands waiting, With exactness grinds he all.(fn1)

In 1787, the Sprague family was starving. In desperation, they sent their 14-year-old son John from their place in Randolph to Williston, to the Governor's farm, to barter for some grain. Most of the way he followed blazed trails. The boy took a cow, two ounces of indigo, and a pewter inkstand, to trade. The Governor was skeptical of the cow. It looked old; it had many wrinkles. The boy defended the bargain, saying, "It was born with three wrinkles," and this amused Tom Chittenden so that he agreed to the sale.

The boy then carried the bag of grain to Montpelier, to the grist-mill, to have it ground. In the early history of Randolph, the boy is described as having "begrudged the miller every spoonful he took for toll." Once he arrived home, the family ate the flour. When that was gone, they "sifted over the bran and ate the finest of it, and then, rather than starve, ate the hulls."(fn2)

John Sprague's journey was all too common for early Vermonters. Even if you were fortunate enough to have a good year for your wheat or corn, you could not enjoy it or barter with it for other goods, until it was ground. There were hand grinders, but they were slow and very crude. The first settlers relied on pound cake. They would burn a hole in the top of the stump of a large tree, smooth it off, pour grain onto the surface, and then beat it with the rounded end of another tree.(fn3) Gathered up, and cleaned of the ashes and other chaff, the product made a rough, hard bread.

There was no real alternative to ground flour or meal, which could be digested, first, and made fit for taste as well. But there were few mills at first, and the roads, to the extent they even deserved that name, were terrible. Residents of Concord, as late as 1795, had to carry their grain on their backs or by horseback to Lancaster or Haverhill, thirty to forty miles away, to be ground.(fn4)

A man could carry a bushel on his back, two bushels by horse. Coventry settlers took their grain down the river to West Derby in canoes.(fn5) Morgan residents made it, there and back, in two days, leading a horse.(fn6) Residents of Fairlee had a fifty-mile trip to Charleston with ox-sleds over the ice of the river in winter and in log canoes during the summer, to have their grist milled.(fn7) A man named Hobbs from Westfield "fitted out his sons with moose-sleds," carrying one and a half bushels each, in the journey to Craftsbury, and they made the forty-mile round-trip in two days. Westfield's earliest historian said this invention was "considered a great step towards the conveniences of civilized life."(fn8)

The first mill in the region became a hub. Mills were used as monuments when the first state roads were laid out.(fn9) The roads leading to the mill were the first to be opened up, and villages formed around the mill, as other businesses opened to serve the needs of the settlers who came from remote parts with their grain. The first wagon made it to Concord in 1806, driven by Capt. John M. Darling. Before then, the roads were exclusively for two and four-legged animals.(fn10)

The best roads were those maintained by turnpike companies. In 1799 the legislature created the Green Mountain Turnpike, granting its founders the exclusive privilege of maintaining the road from Clarendon to Bellows Falls, generally along the track of the present Route 103, and collecting tolls for the use of the road. The act contained exemptions. You would not have to pay a toll if you were going to or from public worship, militia duty, ordinary domestic business of family concerns, or travel to and from a grist-mill or saw-mill.(fn11)

Many towns actively promoted the building of a mill. Settlers of Westminster offered money and 110 acres of land to Col. Willard to build a grist-mill and a saw-mill, and operate it for ten years, on penalty of default. Later they voted 30 for a road to the mill.(fn12) Elijah Paine received two hundred acres of Northfield land for a promise to build a saw-mill within eighteen months and a grist-mill the next year.(fn13) In addition to land and a site on a stream, the first miller of Bennington was given the privilege of tolls of three quarts per bushel.(fn14)

________Regulating Mills_________

The Sprague boy begrudged the miller every spoonful he took. Millers had a reputation for being hard businessmen.(fn15) Describing the business habits of millers, Chief Judge Isaac Redfield quoted Hotspur, from Shakespeare's Henry IV, Part I, saying they "will give twice so much to any well-deserving friend, but in the way of a bargain will cavil upon the ninth part of a hair."(fn16) Early on, the legislature saw the value of regulating what millers would take for tolls.

The first Vermont law governing mills was enacted on February 17, 1779, and served as a model for more than a century. For every bushel of Indian corn he ground (which made about thirty-two quarts in all), a miller was allowed to keep two quarts. The same was true for English grain, and he was allowed an extra pint for bolting. In bolting, the grain or corn would be strained through a cloth, usually a cheese cloth, to remove impurities. For malt, the toll was a single quart. As further protection to the farmer, each mill had to provide sealed measures of a pint, quart, and two quarts, and to strike off the measures with a straight edge when toll was taken.(fn17)

This law was amended in 1797, changing the toll to 1/16 part of the meal or flour ground, with an extra 1/64 part if bolted, and one 1/32 for malted grain. This law also set the weight of corn, rye, and oats. A bushel of oats was thirty-two pounds; a bushel of Indian corn or rye, fifty-six pounds.(fn18) This avoided having a scale to weigh the product as it was brought to the mill. Dry measure could be trusted. In 1840, the legislature set the statutory weight of wheat, barley, and buckwheat at sixty pounds a bushel.(fn19)

In 1853, the law first recognized steam grist-mills, exempting them from the laws on tolls and allowing those millers to charge whatever the market would bear.(fn20) This meant new competition for water-powered grist-mills. Later in the century, the conversion of mill sites to the production of electric power doomed the grist-mill as a viable industry. All laws governing the running of grist-mill tolls were rescinded in 1896.(fn21)

Most of the rules regulating millers came from the common law, not statute. Millers fought with other millers for their just measure of stream flow. Partners refused to pay their share of a mill or dam ravaged by flood, fire, or decay. The Supreme Court, through dozens of decisions, constructed the common law of grist-mills, and mills generally, and from those derived the law of natural and artificial streams.

The general rule of riparian ownership, between landowners whose land is crossed by a stream, was stated plainly by Judge Samuel Prentiss in Johns v. Stevens (1830):

[E]ach has an equal right to the use of the water, in its natural course, without diminution or alteration; and neither has a right to use or obstruct the water to the prejudice of other proprietors, unless he has acquired a title to some exclusive enjoyment, by an actual appropriation and use of the water, in this state, for fifteen years, in some particular manner. This principle, however, is subject to the qualification, that each proprietor may use and apply the...