Ruminations
| Publication year | 2009 |
| Pages | 14 |
| Citation | Vol. 2009 No. 06 Pg. 14 |
Commentaries on Vermont Law: Private Ways
by Paul S. Gillies, Esq.
When I took the bar review course in 1978, the lecturer opened his talk with the statement that to understand the law of property you’d only need to purchase the first ten volumes of Vermont Reports. In the forty-some years since, I have often wondered whether that statement was justified. Now is a good time to test it.
Property law includes a diverse number of subjects, but for this purpose let’s focus on easements relating to access of a private nature. This requires a review of the caselaw of the Vermont Supreme Court to 1839, when 10 Vt. was published. Of the 585 cases in the Vermont canon that mention “easement,” there are but 15 in those first ten volumes. If we could expand the feld just a little further to include the eight volumes of privately-printed cases in books published before Vermont Reports started in 1827, a few more can be added.[1] A review of those decisions should answer the question of what was known and accepted wisdom on the law of private ways in Vermont at an early time.
The challenge goes deeper than that. I want to know whether and how the principles of the common law have changed since 1839 or, for that matter, from “time immemorial,” or “time whereof the memory of man runneth not to the contrary.”[2] That phrase, so frequently repeated, is just one of the memorable lines that are associated with easement law. It was used by William Blackstone in his Commentaries on the Laws of England (1765-1770).[3] You’re expected to pull back from further inquiry upon hearing that explanation for the origin of the well-defined principles of private easement law. The common law is legal gospel.
Matthew Hale called the common law Lex non Scripta, and defined it as “those Statutes of Acts of Parliament that were made before the Beginning of the Reign of King Richard I and have not since been repealed or altered, either by contrary Usage, or by subsequent Acts of Parliament, (because what is before Time of Memory is supposed without a Beginning, or at least such a Beginning as the Law takes Notice of) but they obtain their Strength by meer immemorial Usage of Custom.”[4]
But where would you look to find the common law in early days? You wouldn’t learn much about it from the statutes or constitution. The 1840 compilation of Vermont laws does not mention “easement.” The Vermont Constitution includes the words of Article 1st, “That all persons are born equally free and independent, and have certain natural, inherent, and unalienable rights, amongst which are the enjoying and defending life and liberty, acquiring, possessing and protecting property, and pursuing and obtaining happiness and safety….”[5] Possessing property is among the natural, inherent, and unalienable rights of Vermonters. Article 2ND provides the constitutional basis for the taking of private property for public purposes and Article 5th is the foundation for the Vermont judicial exercise of the police power.
Most critically, Chapter XXVII of the Revised Laws (1840) reiterated the statute enacted first in 1778 that adopted the common law of England, “as is applicable to the local situation, and is not repugnant to the constitution or laws of this state,” and required “all courts to take notice thereof, and govern themselves accordingly.”[6] To find the common law, courts up to 1839, and beyond, used other books.
The early Vermont cases were slow to provide annotations or precedents as authorities, but eventually decisions that relied on the common law treated English cases as established authority. This practice of using English caselaw to settle disputes in Vermont soon declined as the first official reports were published and disseminated. After 1826, the high court could quote itself for authority. The common law didn’t disappear. It still forms the spine of the laws that govern Vermonters, perpetuated and restated generation after generation in the reports. This is particularly true in property law.
When Judge Lott Hall wrote, “By common law a feme covert can convey neither real nor personal property,” in Harmon v. Taft (1800), he gave no authority to support his statement.[7] Perhaps he didn’t need to. Perhaps some tenets of the common law were so well known as not to require a source. But without sources, the law is unmoored. It must have books and cases, statutes and bylaws. Without books or libraries, or printed decisions, some judges were required to rely on their memories of earlier decisions. In Kinne v. Plumb (1801), Judge Noah Smith “recited memoriter the decision of a case in this Court last term, Bennington County….”[8]
The first book most lawyers owned was Blackstone’s Commentaries.
Blackstone on Easements
In Volume the Second of the Commentaries, Blackstone gave private access easements a brief treatment. He described them as a species of incorporeal here ditaments, that are “not the object of sensation,” “can neither be seen nor handled,” that are “creatures of the mind, [that] exist only in contemplation.” They “are a sort of accident, which inhere in and are supported by that substance; and may belong, or not belong to it, without any visible alteration therein. Their existence is merely an idea and abstracted contemplation; though their effects and profits may be frequently objects of our bodily senses.”[9] He traced the ownership of property back to original sources. “In the beginning, we are informed by holy writ, the all-bountiful Creator gave to man ‘dominion over all the earth; and over the fish of the sea, and over the fowl of the air, and over every living thing that moveth upon the earth, whatever any metaphysical notions may have been stated by fanciful writers upon this subject.’”[10]
Blackstone also looked back to the Twelve Tables of Rome, which guaranteed, “Warranty of prescriptive right in land shall be two years to acquire ownership. ... Of all other things, prescriptive right shall be for one year to acquire ownership.” The Tables also provided, “Against an alien a warranty of ownership or prescriptive right shall be valid forever.”[11]
Blackstone described private ways as a subspecies of the right of common, which included the right to profit in the land of another, pasture beasts, catch fish, dig turf, cut wood, and run over private land.[12] Private ways are those “in which a particular man may have an interest and a right, though another be owner of the soil,” granted by special permission. He distinguished easements in gross, which last only as long as the ownership of the grantee, from appurtenant easements, which run with the land. He described the rights of dominant and servient estates. He also noted that when a way is out of repair that the right may be extended to other lands of the grantor to ensure access.
Blackstone also covered prescriptive ways, which arise by act and operation of law, allowing an otherwise landlocked owner the right to continue to cross the land of another after using it for a period of time.[13]
Blackstone’s reputation suffered from a comment reported by Lord Mansfeld, when deciding Devon v. Watts (KP 1779): “We must not always rely on the words of reports, though under great names: Mr. Justice Blackstone’s reports are not very accurate.”[14] Blackstone was quoted as recently as last year, in Justice Beth Robinson’s dissent in In re A.P. (2020), finding “the delicate sensibilities of William Blackstone” insufficient to justify the use of imprecision in penal legislation, quoting an Alaska Supreme Court’s decision.[15] Yet that same year, among the citations supporting the court’s decision in VTRE Investments, LLC v. MontChilly, Inc., the court listed Williston on Contracts as a source, and added that comment was based on “2 Blackstone Comm. 295.”[16]
Blackstone still carries great weight. Part of the reason is his style. He wrote, “There is nothing which so generally strikes the imagination, and engages the affections of mankind, as the right of property; or that sole and despotic dominion which one man claims and exercises over the external things of the world, in the total exclusion of the right of any other individual in the universe.”[17] People fight over their “rights” in many ways, but nothing brings out the hoes and pitchforks like a good disagreement over roads that threaten that “sole and despotic dominion.”
Viner’s Abridgment
At trial, John Cook, arguing for the defendants in Hazen v. Smith (1801) read sections from Viner’s Abridgment into the record. Daniel Chipman, for the plaintiffs, also quoted Viner.[18] Charles Viner compiled his 23-volume opus A General Abridgment of Law and Equity in 1763. A new edition in 1791 included a 24th volume as an index.[19] The set would have graced lawyer’s libraries and avoided the need to purchase a complete set of decisions. Viner also is remembered for his generosity in endowing a professorship of law at Oxford. William Blackstone was the first to hold the Vinerian chair. Viner is listed as an authority by the Vermont Supreme Court in decisions throughout the years, as recently as 1934.[20]
That same John Cook, as attorney for the defendant in Page v. Walker (1801), quoted Bacon’s Abridgment.[21] Matthew Bacon’s A New Abridgment of the Law was first published in 1736, and by 1793 was in its sixth edition. The set included eight volumes. Bacon was last cited by the Vermont high court in Trustees of Caledonia County Grammar School v. Kent (1912).[22]
In his Abridgment Bacon discussed the obstruction of private ways: “If a man has a private way over the land of another, and is obstructed in the enjoyment of it, this action lies, whether he claim it by express reservation in any modern deed, by grant, by prescription, or by operation of law.”[23]
Some attorneys purchased other compilations of cases, including...
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