The Proprietors: Dividing Commonage Into Severalty1 Tenth Annual Vermont Judicial History Seminar June 29, 2004
| Publication year | 2004 |
| Citation | Vol. 2004 No. 09 |
September 2004 - #7. The Proprietors: Dividing Commonage Into Severalty1 Tenth Annual Vermont Judicial History Seminar June 29, 2004
Whenever conflicts arise between the state and its municipalities over matters of local control, somebody is bound to remind state officials that the towns created the state, rather than the other way around. The unspoken threat is that what can be done, can be undone. But that is not the way of the world. History shows it is nearly impossible to reverse certain decisions, particularly those affecting property. Zoning cannott touch non-conforming uses. Land can be adversely possessed, and easements created by prescriptive use. Roads, once cut and maintained, remain essentially in place, and valid, even if never formally laid out.
This is the principle of repose at work. Decisions made a long time ago, even when done without respect for law or procedure, become fixed and immutable. There is no undoing them. There comes a point where what has happened cannot be reversed, no matter how good the argument is to change it.
This is the reason towns still rule in Vermont, and remain central to our civic and political life. The territory of each town is essentially as it was from the time of the first charter, with a few exceptions for gores and annexations of parts of other towns. Local government takes care of the roads, keeps the land records, and elects officials, voting and collecting taxes to pay for most of what it costs to perform these duties, as it has done since government first started in the Green Mountains. Little has changed in the essential structure and organization of towns, since the first time people here exercised the power to govern.
The First Government
The first government was local. Long before the adoption of a constitution, Vermont was a series of city-states, operating under charters granted by a Governor who had no interest in governing their lives. These governments ruled largely by instinct and deliberation. They were the proprietors, or in some texts, the propriety. The propriety was an early type of public corporation, whose proprietors owned a right or share of a charter. The charter, issued in the name of the English king but by the colonial governor, authorized the improvement of a defined area, often six miles by six miles in size, set among the deep forests of the land west of the Connecticut River. The proprietors were tenants in common of the whole land mass, and had a right to an equal portion of that acreage. The charter was both a deed and organizational document, binding the proprietors together in a common bond of town, lot, and community.
Their first order of business was to divide the land. The proprietors of New Hampshire towns met where the majority of them lived, in Connecticut, Massachusetts, or New York, because the land they owned in the northerly parts of the country was often inaccessible, for lack of roads, and uninhabitable, because of the insecurities of life on the frontier. These first gatherings of proprietors in other states and towns were known as meeting "on the oblong."2 Charlotte's proprietors met first in Duchess County, New York, and later at New Milford, Connecticut, before the Revolution.3 Proprietors of Warren met first in Fairlee, then in Hartland, and finally in Warren itself.4 The first meeting in town was an event usually memorialized in all town histories where the records are available, as was the name of the first person to fell a tree or break ground for planting.5 If the issuance of the charter was conception, the first meeting was a quickening.
The proprietors elected officers, incurred and paid expenses, and voted land taxes, which if unpaid resulted in forfeiture of the grant, following a tax sale (or vendue). When the population had grown to a sufficient size, town meeting took over the basic functions of government, but the proprietors' duties were not done until the last part of the undivided lands of the town was divided. Holland, for instance, a town chartered by the State of Vermont in 1779, held its first proprietors' meeting in Greensboro in 1795, organized as a town in 1805, but held its last proprietors' meetings in 1850, dealing with undivided land.6
The first chartered town in the New Hampshire Grants was Bennington. The charter was issued by Governor Benning Wentworth in 1749. The proprietors first met in Bennington in 1762, the year following the first settlements.7 But the sixty-two original proprietors had already met in Portsmouth, had the town surveyed, and divided the lots back in 1749. Then they waited until it was safe to head north. Only after the conquest of the French in Canada did the successors of the proprietors make plans to settle the town.8
Proprietors' meetings of towns settled before 1776 in the northern parts of the state were suspended during the war, as the settlers fled to safer, southern towns. They came back to their homesteads in 1783, after the war ended. This was the case of the entire population of Hinesburgh, for example.9 Thomas Chittenden and his family moved from Williston to Sunderland for the duration of the war, for the same reason.10
By the end of the century, the map was filled in. All the area of Vermont was included in some kind of town charter, other than the land later discovered as gores. The last town organized as a town in Vermont was Stannard, in 1869, when there were finally enough families in what was formerly Goshen Gore No. 2 to justify recognition by the state.11 Today the proprietors are forgotten, even though we are ruled by the decisions they made. The principal reason is lack of records.
Records
What we know of the doings of the proprietors comes from their records, and from contemporaneous accounts of the first residents. But many towns are without such records. Readsboro's records were burned up.12 The charter and lotting plan of Barnet were reported to have been carried out of United States during the Revolutionary War.13 The proprietors' records in Hubbardton were stolen.14 No one in Townshend knew what became of the charter.15 The proprietors' records of Brandon were burned by the enemy, and the town used the only remaining source, the survey book, to restore its division
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map. All records of Pittsford for the first ten years were lost.17 Even today, those records you can find are fragile. Parts of them are worn or broken off. Some town clerks are not aware they have such records, or what they are.18
In later years, the deficiencies of the record led some towns to seek a legislative confirmation of their grants and lots. In 1782, for instance, the General Assembly voted to secure and confirm the lots of Tunbridge, although the charter was lost or destroyed.19
It allowed voters to confirm the divisions and pitches of Williston in 1799, recognizing that they were not done according to law, and because the papers were lost.20
The legislature also took a series of steps to ensure the records of proprietors were secure. In 1789 it enacted a law making the town clerk the proprietors' clerk if the latter was not a resident of town, and ordering that in those cases the incumbent turn over the records to the town clerk.21 That law was broadened in 1797 to appoint the town clerk as custodian of all proprietors' records, as soon as the proprietorship was dissolved - that is, when all the common land was divided.22 In 1810, the Assembly directed proprietors who had not met for ten years to convey their records to the town clerk, and made the town clerk proprietor's clerk.23 In the last legislative act that mentions proprietors, in 1822, the legislature directed that unorganized towns, where proprietors had not met for five years, or had lost their clerk due to death or emigration, must send their records to the county court.24 By that time, the propriety and the town had effectively merged.
The New Hampshire charters were assembled and published by Albert Stillman Batchelder, as Volume XXXVI of the State Papers of New Hampshire. An index to the papers of the Surveyors-Generals was published as the first volume of the State Papers of Vermont in 1918, the Vermont charters as the second volume in 1922, and the 101 New York patents to land now called Vermont as Volume VII in 1947. The most comprehensive source of records of proprietors is the five volumes of Abby Maria Hemenway's Vermont Historical Gazateer (1868-1891). Her local historians, many of them pastors, physicians, and lawyers, often reprinted the records of the proprietors without comment, as if these yellowed pages were sacred texts, to be presented without elaboration or explanation.
Sometimes the fear of uncertain claims to land was relieved by the loss of records. "Owing to the destruction of [grantees'] records previous to 1778," wrote Rev. Lyman Matthews, in his sketch of Cornwall, "the original assignment of rights cannot be determined with precision." You can almost hear a sigh of relief in that statement.25
Sovereignty over the Grants
The fact that Vermont could survive for fourteen years from independence to statehood as a separate country from Britain and the colonies still seems like the luckiest break, but one reason for that success was the dispute between the Governors of New Hampshire and New York over the territory that lay between them and the communities that had sprung up in these hills since the end of the Seven Years War.
Long before this dispute heated up, other governments had laid claims, and issued charters, to land in these hills. Land in what would become Ferrisburgh was chartered and deeded by the French and the English, before any colony thought to stick its stakes in...
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