Vermont Bar Journal
Spring 2007 - #12.
Gussets of Land
THE VERMONT BAR JOURNAL SPRING 2007
Gussets of Landby Paul S. Gillies, Esq.Originally, there was a spear with a flattened point, called, in the Icelandic language, a g r, and its shape gave a name to the oblique triangular strip of cloth that was sewn into clothing to account for different-shaped or changing bodies. That gusset took the name of gore. After that, when people wanted to describe odd-shaped parcels of land, often triangular in shape, caused by bad surveying, lying between deeded lots and belonging to neither owner, the name gore became associated with them, for lack of a better word.(fn1) In Vermont, the word has been used to apply to much larger parcels of land.
There were gores in England before there was a Vermont.(fn2) There were gores in New England, particularly in rural parts where land was not easily surveyed and the topography was not flat or easily made productive.(fn3)
In Vermont, a gore is a slip of land, often three-sided in shape, not originally included in the survey of a town.(fn4) Most were incorporated into a town after discovery; a few were large enough to qualify as towns themselves, once organized with enough settlers. Four escaped those changes, and today Vermont has three political subdivisions called gores--Avery's Gore and Warren Gore in Essex County, and Buel's Gore in Chittenden County--and a grant, Warner's Grant, in Essex County, which is treated in the same manner as a gore.
To be persnickety about it, a grant is a parcel of land that a political sovereign incorporates by defining it by courses and distances, or by monuments, usually the boundaries of established towns, after it is surveyed, and then conveys to one landowner or a group of landowners. With gores as with grants, sometimes fees were paid for the land; sometimes the land was given as compensation for services rendered. The term gore connotes an element of surprise and opportunity, as in, "There's more land up there than we thought."
Incorporation means the issuance of a charter. Benning Wentworth signed 135 charters to land west of the Connecticut River from 1749 to 1764.(fn5) New York issued charters to some of the same land after that date, stopping when tensions began to grow unmanageable between settlers claiming under Wentworth towns and grants and those claiming under New York charters, in 1776. Beginning after Vermont formed its own government in 1778, this state began incorporating towns, filling up all of the voids in the map and encouraging settlement. But there were more voids than expected--hence, gores. Organizing as a town is the final step, authorizing the municipality to send a representative to the General Assembly, before the legislature was apportioned in 1967. Today, residents of the three gores and the grant are enfranchised through representative districts that include these political subdivisions.(fn6)
Vermont had as many as forty-one gores. Thirty-two of these were identified, surveyed, described, and incorporated, either as separate grants or folded into one town or another, before 1800. The last, Perley's Gore, was discovered in the mid-1980's and incorporated into Montgomery. Although gores reflect the failures of early surveys or charters, no one has ever been sad when a new gore was found.(fn7) Vermont was always hungry for land and anxious to solidify town lines statewide. Where unknown territory was located, it was found money, from the fees that a charter could command. If you take all the land identified and treated as gores in Vermont, it totals more than nine townships.
James Whitelaw, Vermont's second Surveyor General, described gores as "the result of man's frustrating attempt to lay out right-angled plots of land upon a spherical earth's surface."(fn8) At the heart of it was bad science and rough surveying.(fn9) Confused titles, missing lines, the likelihood of claims for treble damages from overcutting--these are the costs of failing to run proper lines.(fn10)
An old gore between Waterbury and Bolton wound up being annexed to Waterbury in 1851. When a logger cleared the hills, a landowner sued him, claiming overcutting. The case went nowhere. The problem was proof. The surveying was just not reliable, largely because "there are local attractions that affect the compass needle so that a line run by it without taking back sights will vary from a strictly straight line at those points."(fn11) Even when done by compass unaffected by iron ore in the hills, some surveys just do not inspire confidence.
Gore Lot 4 in a part of Canaan formerly called Norfolk, bounded on the Canadian line, was timbered, but in challenging the loggers the plaintiff could not justify his claim to the land for lack of any defined line by which he might claim adverse possession.(fn12) This is another characteristic of gores, that because their lines are ill-defined or because their titles are clouded, they are averse to claims of adverse possession.(fn13)
In 1860, a witness in a trial at Newfane testified he was born in "No Town," by which he meant a gore next to Newfane and Marlboro. When the case reached the Vermont Supreme Court, Judge Hoyt H. Wheeler of Brattleboro attempted to explain how that gore came to be. It seems that the "original west line of Dummerston was in the west line of the Equivalent Lands," which left a gore next to Marlboro. The Equivalent Lands were laid out by Connecticut in 1715, and the south line of Brattleboro and north line of Putney are nearly identical to the north and south lines of the Equivalent Lands. Those lands were to be twelve miles in length but were overrun, "as most all old lines" were. These grants were respected by New Hampshire when it laid out its towns in this area of Vermont. "I have no doubt," wrote Wheeler,
that it was intended to have Newfane and Townshend join the equivalent lands on the west, but the north and south lines of those lands were 6 1/2 miles long, extending W.N.W. from the river, and the west line would be parallel to the direction of the river between the lines. They were probably deceived by that direction and made the east and west lines of those towns too nearly north and south, which left a gore at the north end which became Brookline. The direction of the east line of Marlboro left a gore there which was put on to Brattleboro and Dummerston.(fn14)
There was a surprising amount of land in Vermont that escaped the initial subdivisions. After the Surveyor-General finally produced his "chart of the state" on January 13, 1791, a legislative committee reported on what he had found, including:
... an interference of the township of Derby and Salem, of 5710 acres; they also find 10645 acres of land situated between the townships of Lewis and Warren; 3936 acres east of Hopkins's grant 10118 acres adjoining Kellysburgh; 8744 acres lies between Ripton and Kingston; also a tract west of Duncansburgh and east of Carthage and Westfield, containing 23040 acres; being 56,523 acres in the whole which has never been granted by this state.(fn15)
The problem with Fairfield was straightened out in 1792. Bakersfield was incorporated that year out of Knowlton's Gore and Knight's Gore, and a part of the disassembled town of Smithfield. The rest of Smithfield was given to Fairfield and part of Fairfield was given to Bakersfield.(fn16) Luke Knowlton (Knoulton) had been granted 10,000 acres by the General Assembly in 1791 and sold it to Joseph Baker for Lb500.(fn17) Coit's Gore was annexed to Bakersfield in 1799, but in 1824 was incorporated as the separate town of Waterville, along with Belvidere Leg.(fn18)
The mere act of surveying a gore, running lot lines, and paying taxes, however, is not enough to justify a claim of right in that land. This issue was addressed in a case involving land in Avery's Gore in Franklin County in Paine & Slocum v. Hutchins (1877). Judge Hoyt H. Wheeler wrote the decision for the court and explained the nature of the principle: The gore itself is one of the municipal divisions of the state, although not organized as a municipality; and the land in it was at the time in question subject to ownership by various persons, and occupied by them by different kinds of possession. It contained as much territory as many, and more than some, of the towns in the state, and was divided into lots the same as towns are. An owner of a parcel of land in it, would have no greater reason to suppose that a person acquiring mere color of title to the whole of it, and taking possession of a tract remote from his, was claiming his than the owner of a part of a whole township would under the same circumstances. It is well settled that constructive possession of the vacant parts of a whole township, cannot be acquired in that way.(fn19)
In a gore, "no constable had jurisdiction, and a sheriff, to get there, had to...