To understand the legal history of Vermont, we might start with a legal history of one town. The dart is thrown, and lands on Jamaica. Jamaica, a small town deep in the Green Mountains, in Windham County, has left large footprints on the law of Vermont. It has trod into areas of pauper law, highways, property tax assessment, and others, and the decisions that emerged from its controversies became precedents that affected other towns in similar situations.
Jamaica was chartered in 1780, by proprietors including Thomas Chittenden, Matthew Lyon, and Ira Allen. Governor Thomas Chittenden issued the charter, and the town organized the next year. Its charter required each proprietor to plant and cultivate at least five acres of land, and build a house at least eight feet square on it, within four years once the war ended, and reserved all the tallest pine trees for the navy. Vermont had no navy in 1780, but the New Hampshire charters that served in part as models for Vermont contained that condition, and it was continued after Vermont began issuing its own. In case Vermont ever needs them, those trees remain dedicated to a naval use.
There is a dispute over the origin of the name. In one account the name stems from the island paradise in the Caribbean Sea, the word that was first heard by white men on Columbus’s second voyage to the new world, affixed to the island that now bears its name by Arawack Indians, meaning a land of rivers and underground streams. Esther Munroe Swift states it was a Natick Indian word meaning "beaver." There were Jamaicas in Massachusetts and New York before this town took the name. It contains forty-two square miles, and is trapezoidal in shape. Its population crested 1,000 in the 2012 census. Ten years after it was organized, it held 263 people, and the town grew over time to 1,600 before the Civil War, then gradually slipped down in population to 496 by 1960. The town is boxed in by Londonderry on the north, Townshend on the east, Wardsboro on the south, and the towns of Stratton and Winhall on the west. That western line separates Windham from Bennington Counties. Route 30 travels southeasterly for a mile, then joins up with Route 100 for its merry way toward Townshend and Brattleboro, following the West River. That route was laid out by the state in 1801, but not until 1931 did it cease being a town highway. Much of the town lies in the Green Mountain National Forest. The West River runs around Ball Mountain, and heads southeasterly, gathering waters from Mill Brook and other streams, on its way to the Connecticut River. The Pinnacle is the highest point in town, at 2,542 feet.
The town’s write-up in the Federal Writers’ Project Guide to the Green Mountain State (1933) includes one story of early Jamaica. "According to persistent legend, the first minister of the Congregational Church, John Stoddard, was dismissed from the pastorate in 1799 for selling his wife to another man. Mrs. Stoddard, the scandalous and antique rumor relates, was well pleased with the transaction and raised a family with her purchaser." Its earliest history, as related in the Guide, includes a report of the 1748 retreat of Captain Eleazer Melvin and eighteen scouts, who had been pursued by "a band of Abnaki Indians" from Lake Champlain, the Otter Creek, and the West River, to a fishing spot beneath Ball Mountain, where they were attacked. In the melee that followed, six of the scouts and as many Indians were killed. The survivors with Captain Melvin fled into the forest toward Fort Dummer. The soldiers were shooting salmon in the river when the attack occurred, as the fish dove upstream against the rapids of the West River.
It was in Jamaica, on June 16, 1777, that the Howard brothers and sons, the first settlers, heard the battle of Bunker Hill, including the booming of cannon, more than a hundred miles away. The first settlers were challenged to clear the land, but their industry made the land prosperous. Over the years, the town contained grist and saw mills, tanneries, a chair factory, a bank, leather company, and both a Baptist and a Congregational Church.
In 1842, the town experienced a wave of public hysteria, as many residents were swept up in Millerism, the belief that the world would end before harvest the following year. The members of this movement refused to sleep or eat, awaiting the end. Mrs. Young died from "over-excitement" and Mrs. Stocker committed suicide. After the time passed for the end, the movement broke up, but the historian reports that much "property was wasted, families neglected, and churches rent in pieces" on account of the fever.
In 1869, the "great freshet" of that year devastated the town, swept out nearly every bridge, and tore out a mile of road.
The West River Railroad ran from Brattleboro to South Londonderry. It took thirty-seven years from the granting of the charter by the legislature until its completion in 1880, and it was only a limited success, on account of floods, cave-ins, snowdrifts, and fallen bridges. In addition to the high cost of the Civil War, Jamaica’s investment of its own funds in the railroad, through the purchase of railroad bonds, nearly bankrupted the town. But after 1880, and until the last train ran through the West River Valley in the mid-1930s, the West River Railroad brought Jamaica to the world, and the world to Jamaica. The tracks are gone now, sold for scrap. The stations are recycled.
Jamaica has been the home of great writers, and great writing. Scott and Helen Nearing wrote Living the Good Life while living in Jamaica. After homesteading in Jamaica for thirty years, they moved to Maine in 1952, discouraged by the ski area development that was underway at Stratton. Pearl Buck owned land in Jamaica, and regarded the village as her home in the 1950s, writing several books while living near this small town. Robert Penn Warren built a house in Stratton near the Jamaica border. The town has also raised more than its share of judges and lawyers.
The Bench and Bar of Jamaica
John Butler was born in Jamaica, and practiced law there for most of his career. Frank Fish wrote of him, "For the preparation of causes for trial, the arrangement and putting in of testimony, and the cross examination of witnesses, he had no equal in Windham county." Fish wrote, Butler had "a pity for the unfortunate victims of his art, who tried to keep the truth from his far-searching eye." John Butler and Benjamin L. Knowlton were partners in a law office in Jamaica, until Knowlton’s death in 1855. Hoyt Wheeler joined Butler in a law practice in town beginning that year. L.M. Reed joined them, as did Eleazer Waterman, but that office broke up in 1869, when Wheeler, after serving as town representative and state senator, was elected an associate justice of the Vermont Supreme Court. Wheeler served on the high court until 1877, when he was appointed U.S. district judge, and served in that office until his death on November 19, 1906.
Fred Butler, John’s son, was also born in Jamaica, in 1854, and was an associate in the firm of Eleazer Waterman and Hoyt Wheeler in town. Butler moved to Rutland after Wheeler’s ascension to the high court, where, after a career as state senator, city judge, and superior judge, he was also elected as an associate justice of the Vermont Supreme Court in 1923. Reelected in 1925, he resigned a year later. Albert Butler, another of John’s sons, practiced law in Jamaica, and served as town clerk.
Native Jamaicans left their mark on the law in other places. Alphonse Taft was born in Jamaica and moved to Cincinnati, serving as a superior judge for many years. His father Peter Rawson Taft served in the legislature, and as probate and assistant judge of Windham County. John H. Watson was born in Jamaica in 1851, schooled in town and local academies, read law, opened an office in Bradford, served as Orange County state’s attorney and state senator, practiced law for twenty-one years, and on January 19, 1899, was appointed associate justice of the Vermont Supreme Court. Nine years later, he became chief justice, and served until his death in office on December 7, 1929, a total of nearly thirty years on the bench. When he was first admitted and practicing in Bradford, in 1883, Watson led the Bradford militia that captured the magazine at the Ely mines in Vershire from startled striking workers, and earned early recognition as a man who could be trusted. Eleazer Waterman was born in Jamaica in 1839, and became one of the first Vermont superior judges, serving from 1906 to 1919. Orion Metcalf Barber, born in 1857, became judge of the United States Court of Custom Appeals.
In 1916, and again in 1922, Fred Butler gave talks at the Jamaica Old Home Days, and his remarks were preserved. Butler was a superior court judge at the time, and his view of the history of his home town is remarkably candid. Butler pointed to the large number of highways in town—the most in the county if you focus on comparing the cost per mile of maintaining them, noting that the first road in town was built in 1791. The expense of maintaining all of those roads contributed, according to Butler, to the town’s decline from the heady days of the 1850s. He noted that ten percent of the male population who were mustered into the ranks of the Union army, and added those losses to the "irresistible appeal" of the west and the decline of the sheep industry, as sources of the town’s loss of population. "The seeming prosperity and wealth that poured into the town was like a fantom. It faded away like the dews of the morning," he wrote. Jamaica could "not compete with the world." Then came the flood of 1869, tearing out a mile of bridges and highway in one night.
Judge Butler condemned the decision of the State of Vermont in 1882 to tax the railroad property in town, and exempt it from local taxes, after Jamaica had invested $33,000 in the construction of the line, fully expecting the taxes that would be raised from the infrastructure would repay the town for its investment. "The State took it away by force but it didn’t pay your debt. Was not this legalized larceny?," Butler asked. "This was your property. The State laid its heavy hand upon you and took it out of your list by force. It has never made restitution. Confiscation is larceny." Bold words from a sitting judge give color to the character of the man, this Jamaican.
That issue never made it to the courts. The conflicts that did thrust Jamaica into lawsuits, however, provide a unique portal into the social, cultural, corporate, legal history of the town.
Jamaica in the Vermont Supreme Court
There are sixteen reported cases in the Vermont Reports in which Jamaica is a party. Jamaica prevailed in nine of them. They involve a range of subjects common to municipal life at different eras. Curiously, of the sixteen reported decisions on appeal, only one appears after 1887, a tax appeal decision from 2003. One hundred and sixteen years pass without an appeal. Not that the town wasn’t busy with lawsuits in the intervening years, but whatever matters troubled the fathers and mothers that led the town were settled or resolved at the trial court level. This may well reflect the shrinking population, an aversion to lengthening lawsuits, or the centripetal influence that came with centralization of services to state government, such as the needs of the poor and major highways. Or maybe it was just good fortune. But wars are fought in court, sometimes bitterly, sometimes serially, and it’s fair to conclude that the number of cases over the town’s first century that made it to the Supreme Court reflected the unsettled nature of critical areas of the civil and common law, and the perception that important issues ought to be decided at the appellate level, where they were printed and published, to provide a permanent record of the evolution of the law. A town like Jamaica goes to court to protect its integrity and its fisc.
The earliest reported case in the Jamaica canon of law is a pauper appeal from 1824. This is one of hundreds of cases decided by the Vermont Supreme Court over the years, where one town claimed that the obligation for paying the support of poor persons should fall on another town, because the pauper was a resident of that other town. Jerusha Cook, a resident of Guilford, came to Jamaica, impoverished, and she was supported by the town. She later returned to Guilford for a time, and then came back to Jamaica, where she again fell on the mercy of the overseers of the poor, and died. Jamaica sued Guilford for the expenses of both periods. At the trial court Jamaica prevailed, but on appeal the Supreme Court affirmed only the award of the first period of support, finding no statutory support for the proposition of recovery in the common law or statute for a town that takes a peripatetic pauper back and supports her on a return visit. A second decision was issued in this case, granting a new trial, after Chief Justice Richard Skinner ruled that Jamaica had failed to mature its claim for expenses for keeping Jerusha, having given notice twelve, instead of thirty, days prior to the session of the court to which it is made returnable. Technical failures had serious consequences.
Jamaica fought with Dummerston in 1833 over a pauper, settled in Jamaica, who was living temporarily in Dummerston. Delia Taft had gained a legal settlement in Jamaica, then moved to Brattleboro, where she was warned out. This meant receiving a notice from the town overseers of the poor that had the effect of ensuring that she was not going to be a charge of the town if she became impoverished. She lived more than a year in Brattleboro, then moved on to Dummerston, where she was housed, fed, and clothed by the town. Dummerston then sued Jamaica, and Jamaica defended by claiming that the Brattleboro warning was defective. Judge Charles K. Williams began his decision by explaining that strict compliance was required for such warnings, but that immaterial and unintentional divergences would not vitiate the effect of the notice. Jamaica argued the notice was deficient because it did not include the words from the statute, "Hereof fail not, but of this precept." This was not persuasive, and Jamaica was charged with the costs of maintaining Delia in Dummerston. The record does not explain what happened to Delia, although it would be common practice to have had her returned to Jamaica’s overseers.
Russell Clayton, a pauper, was ordered removed from Jamaica to Townshend by the Windham county court in 1846. On appeal, Townshend claimed Clayton was not their pauper, because he had gained a settlement in Jamaica. Clayton had lived in Jamaica from 1832 to 1840, long enough to have established residence there, except that he had returned to Londonderry for a month in the spring of 1834, interrupting the seven years needed to settle in a town, for purposes of poor relief. Originally the settlement period was one year, but in 1817 the minimum period had been raised to seven years. If there was an interruption, Clayton belonged to Townshend, where he had originally resided, and Townshend owed Jamaica the funds for his support. The jury held for Jamaica, and Townshend appealed.
Townshend argued that the one month lapse was insignificant. Clayton had moved his family and furniture to Londonderry, started clearing land for a house, and then returned to his original homestead in Jamaica. The town explained, "A man may have a temporary residence, or a permanent one; he may have a permanent or a temporary home; it depends upon whether he has reached his destination, or intends ultimately to proceed farther." Judge Isaac Redfield wrote the decision, affirming the decision in Jamaica’s favor. He began by addressing the question of intent in settlement decisions.
No doubt the question of residence, of domicil, is very much controlled by the status of the mind of the dweller, or inhabitant. But domicil is not a thing resting wholly in intention. If it were so, most Americans would be without any fixed domicil. Many of us have, perhaps, high hopes of a happier home, and comfort and plenty in some far off region, where all the necessaries of life grow spontaneously, almost, and where neither idleness, vice or dissipation, will cheat us of comfort and plenty. But all this effects no present change of domicil;—that is still the home, whether the removal is intended in twenty-nine days, or as many weeks, or years. In either case, it may never come.
How long Clayton was in Londonderry was not important, according to Judge Redfield.
We all understand, that such persons are away from home, that they expect soon to return, or at some time. But in the present case it would seem the pauper never had resided upon the land, for which he had bargained; he had permanently and voluntarily abandoned his former home, without any animus revertendi. But, so far as the mind was concerned, he was looking forward, instead of back; his home in Jamaica, during this interval, was not a remembrance, but a hope, a desire. The mind may prolong a residence; but it will hardly anticipate one, as is claimed here.
Townshend would pay Jamaica for Clayton’s care.
Wilmington overseers obtained an order of removal for Mary Emily Davidson to Jamaica, where she had settled. In an 1870 appeal, Jamaica argued she was married to a Wilmington man, or "under coverture," at the time the order was granted by two county justices of the peace. Wilmington countered that George, her husband, had abandoned her and fled the state for parts unknown. The law at the time provided, "a married woman shall always have the settlement of her husband if he have any within this state; otherwise her own at the time of marriage, if she had any, shall not be lost or suspended by the marriage." Mary was returned to Jamaica, as she was its pauper.
Other than paupers, towns were most likely to end up in lawsuits in the nineteenth century because of roads and bridges. Jamaica fought with its neighbors over a bridge and roads for more than forty years.
A defective bridge caused plaintiffs’ stage coach and horses to fall through, resulting in the death of a chestnut mare, for which the owners of the stage line sought recovery from the town. In its defense, Jamaica argued that the town had no notice of the defect, and so no duty to repair it. The town also claimed that plaintiffs were liable for the loss of the mare, because they kept the horse in service despite the fact that it was ailing before coming to Jamaica, having driven her seventeen miles from Townshend to Brattleboro and back, over two days, rather than allowing the animal time to recover from its illness. Plaintiffs responded that "it was thought prudent to exercise her to restore her appetite." The case was entitled Bardwell and Huntington v. Jamaica (1843). The jury awarded plaintiffs their claimed damages, and the town appealed. The Supreme Court affirmed the decision, holding Jamaica liable even if the town had no notice of any defect, as no statute required it.
The most often-quoted case involving Jamaica was Hyde v. Jamaica (1855). An accident occurred on the road from North Wardsboro to West Townshend, in Jamaica, in April of 1850. This is now partly Route 100 and Route 30, major state roads, but in 1850 it was only a town highway. The road was out of repair, on account of the construction of the railroad in 1849 and 1851, as was the bridge over the Branch. Several times since 1831 when the bridge had been lost or repaired, travelers had used the historic fordway above the bridge to cross the stream. Snow felled the bridge in March of 1850, and travelers began using the fordway. The next month Dr. Dana Hyde drowned, after losing control of his buggy over the fordway.
The doctor’s heirs sued to recover damages for his death. The trial judge rendered judgment for the heirs at $2,000, and Jamaica appealed. Reversing the judgment, the Supreme Court, in the voice of Judge Milo Bennett, held that the judgment below should be reversed, on the grounds that the fordway was not part of the town highway.
This fordway had not, I think, become a part of the highway by dedication and adoption. No dedication of the land, by the owner, is found; and there was no evidence from which it could be found, and no evidence that the town had opened this fordway for travel as a public highway. The most that can be said is, the landholder might have suffered it to be used, as a way, and this license was, at his pleasure, countermandable.
But it wasn’t an easy decision, as shown not only by the length of the opinion, but the fact that all three members of the Court filed their own opinions, after the case had been argued twice.
Judge Bennett blamed Dr. Hyde for not exercising ordinary care, and he dismissed the argument that Dr. Hyde’s urgent business attending a sick child could justify his attempt to cross the river. "If the question of ordinary care is to be graduated according to the urgency of a man's business, the rule would be a very sliding one, and of the most difficult application."
Judge Pierpoint Isham filed a concurring opinion, and Chief Judge Isaac Redfield sternly dissented. In his opinion, Isham wrote,
The desire of Dr. Hyde, to proceed in haste, however strong or humane may have been his motive, or important his business, does not affect the case, or the question of his exercise of ordinary prudence on that occasion. His motive or desire did not, and, from the nature of the case, could not, increase his power or ability to overcome the difficulties which existed in crossing the stream. Whether those motives existed or not, the same disproportion existed between his power of resistance, and the difficulties to be resisted and overcome.
Chief Judge Redfield sounded angry in his dissent.
Strangers or travellers are not obliged to consult the public records, or inquire into the history of building such highways, before they are entitled to use them. If suffered to remain open to public use, the town are bound to see that they are in a safe state for public use.
Hyde v. Jamaica lived on as a precedent. It was cited in dozens of cases, distinguishing and refining the concept of dedication and its relationship to acceptance, in a town’s taking of land for highways and in linking the insufficiency with the proximate cause of the injury to hold towns liable. In Berge v. State (2006), a case that held a landowner’s access to his property by water did not defeat his claim for an easement by necessity, Justice John Dooley commended the decision for its "affirming the preeminent and constitutional standing of real property."
In 1828, over Jamaica’s objections, county commissioners ordered the construction and maintenance of the road from Jamaica to Wardsboro, which required building a bridge over the West River, the costs borne by Jamaica. Jamaica’s town representative introduced legislation in 1847 directing towns benefitted by a bridge in another town to pay a portion of the costs, as determined by the courts. In 1848, Jamaica discontinued the road, after the bridge had been taken out in a freshet (a nineteenth century term for a flood caused by a spring thaw) and laid out a new road over the same course and bridge, in order to take advantage of the new law. Jamaica gave no notice to Wardsboro or Townshend. The two towns sued. In Wardsboro and Townshend v. Jamaica (1850), they attacked these acts as fraudulent, an abuse of process. They objected to having to pay for the bridge, after commissioners ordered Wardsboro to pay two-twelfths, and Townshend three-twelfths of the costs. Worse yet, the towns claimed Jamaica had built the bridge "expensively."
Chief Judge Isaac Redfield wrote the decision of the Supreme Court, calling Jamaica’s actions a "finesse," and acknowledging that the motive for the discontinuance and new highway layout was to force the two towns to contribute. Some, wrote Redfield, "would regard it shrewd, and the more creditable for its very duplicity and indirection," while others "might characterize it as evasive, sinister and perhaps fraudulent." But personally,
I must say, I think the affair more in character with the labor-saving operations of modern inventions, than with the old-fashioned, straight-forward, hand-work of the generation now passing off the stage, under the stigma of some, not very flattering or complimentary cognomens. It is not needful further to characterize the proceeding.
If trying to convert "an equitable and imperfect demand into a legal right" is wrong, wrote Redfield, then look at the legislature, where in nearly every session special legislation is enacted. If the sole purpose of such legislation was to affect the outcome of cases in court, it would be unconstitutional and void, being more decree than legislation. But as this law was written to apply to any town, it was justified. Jamaica prevailed. The towns must pay.
Eighteen years later, the war erupted again. Where Jamaica had won compensation for the bridge, now its target was the cost of maintaining the road. The Supreme Court ruled that a new highway was largely of benefit to Wardsboro and Townshend, and granted Jamaica’s request for compensation for keeping it in repair. The following year, the case returned to the Supreme Court on appeal; the Court upheld the trial court’s decision to require Wardsboro to contribute 40% of the cost of improving and maintaining the highway, but freed Townshend from paying, given the little use its residents would make of it. Judge Timothy Redfield noted the limits of the court’s ruling, writing, "Whether the judicial power was exercised with the wisest discretion, in apportioning such expense, is not a matter that is before us." Nevertheless, Wardsboro must bear two-fifths of the cost.
What makes these cases interesting is how parochial they are. The consideration of the traveling public takes second place to the interests of inhabitants of the towns and their relation to the highway. Roads, while public, serve private homes, and in the allocation of costs, whose residents are benefited by the road makes all the difference. Wardsboro sued Jamaica one more time in 1886 to be freed from the expense of maintaining a different highway, one serving only two residents of Jamaica, and none of Wardsboro. Chief Judge Homer Royce wrote the decision of the court, upholding the order to vacate Wardsboro’s obligation to support the road. He explained, "The necessity spoken of in the act means the necessity for the use of any considerable portion of the highway for ordinary use; not an absolute necessity, but such a necessity as highways are ordinarily used for in the transaction of usual business." The order was properly vacated. Wardsboro escaped having to contribute to the road.
Today, that bridge is paid for largely by federal and state funds, and the highway, no longer a town highway, is maintained by the state.
Jared Howard sued the listers of Jamaica, claiming they illegally assessed his property in 1836, and that he had to pay higher taxes than were due. He was incensed at being two-folded. This was a penalty for failing to file your list with the town before the twentieth of June. For that neglect, the listers were authorized by an 1825 statute to double the list of the taxpayer. Howard had failed to file his list in time, and he did not contest that finding. His attorney argued that as the listers had not included the two-fold in the grand list originally, then Howard had no notice, and no chance to challenge it before the selectmen, and for that reason the two-fold was unenforceable. The listers had added the two-fold to the grand list in September. On appeal, Jamaica did not prevail. Judge Milo Bennett explained the right to a hearing before the selectmen could hardly be respected without timely notice of the listers’ actions.
Danforth May sued Jamaica in 1863, claiming the attempt of the town to collect that year’s taxes from him was improper, as he had already paid them. He had brought the case before a justice of the peace, and the amount in controversy was ten dollars. Jamaica sought relief on appeal to the Supreme Court, but the court dismissed the case, explaining that only cases where the claim was more than ten dollars was an appeal available. Judge John Pierpoint explained, "The fact that in reason, cases like the present ought to be embraced within the provisions of the act allowing appeals, is a consideration that may be and perhaps ought to be urged upon the legislature, but it is one which we cannot judicially take notice of.
Judgment affirmed." Today we have to wonder how any party would appeal a judgment of ten dollars to the Supreme Court. Sometimes the principle of the thing is what counts.
Charles Reed sued Jamaica claiming he didn’t owe the taxes the town collected from him in 1863. He argued there was a mistake, that his 1863 taxes were voted in early 1864 on the wrong grand list, and as those taxes were due under a former year’s grand list, Reed claimed he did not owe them. The tax was levied "for the paying of bounties to volunteers, to fill the quota of said town, under the late call of the President of the United States … " At trial, Reed prevailed, but on appeal the case was reversed and remanded to the county court to allow parol evidence to be introduced on the nature of the vote. The high court was clear, however, that if the taxes were voted in 1864 on the 1863 list, Reed would still be liable for them.
Up a private driveway off a town road in Jamaica, the listers visited Our Lady of Ephesus House of Prayer in 2002 and decided it was only partially exempt under the statute that freed the real estate of religious societies from property taxes. OLEHOP appealed to the superior court, and then to the Supreme Court, claiming it satisfied the public use test, a broader exemption than that for religious societies. The trial court had concluded that only a part of the barn, containing a small chapel, a meditation garden, a pathway and lawn were exempt, amounting to about 10% of the value of the barn, applying a quantum of use test. OLEHOP disagreed with that analysis. Justice John Dooley wrote the decision for the court and affirmed the decision of the trial court, concluding that OLEHOP was a religious society even though it had no congregation, no doctrines of faith, and welcomed anyone to use the facilities for meditation and prayer. The quantum of use test was never contested at the trial level, and the high court decided it didn’t need to decide whether it was appropriate or not in holding for the town.
The Jamaica tax cases do not have the same charisma and longevity as the pauper and highway cases the town had tried, but they demonstrate the continuing struggle over taxes, and the administration of a system of taxation at the local level, which has always been a challenge to small towns.
Jamaica resident David Gale volunteered to join the Union army in 1863, and when his term was up, he reenlisted, after learning that the town had offered $500 to any man who would help fulfill its statutory quota of soldiers. When he returned from fighting the town refused to pay him the funds. Gale’s name had been listed on Jamaica’s roster with the Vermont Adjutant General, but by the time Jamaica’s selectmen learned of it the town had already met its quota. Gale sued to recover his town bounty. Under the rules at the time, the soldier had the right to place himself on the list of men from a town that had failed to fulfill its required muster of soldiers. Chief Judge John Pierpoint, for the court, ordered Jamaica to pay Gale for his service, finding no obligation of the part of the soldier to notify the town. The article voted at the November 1863 town meeting contained no such conditions. Pierpoint found the town negligent in not checking with the Adjutant General as it reached its quota.
In 1880, Jamaica reclaimed lease lands after Lewis Hart, a tenant of a perpetual lease, failed to pay the fees due under the lease, after being requested to do so. This is something few towns have done, as many have been lax in pursuing lease rents because so little was involved—in this case amounting to $4.50 per year or $48 in all—and yet in Town of Jamaica v. Hart (1880), the town succeeded in taking back the land. The lands and their lease rents were originally dedicated to use for a grammar school in town, but the school had closed. There being no grammar school there, the legislature in 1823 had directed the lease rents to be paid to the common schools in town. Hart argued that act was unconstitutional, but the court found no need to reach that question after ruling that under the common law a tenant cannot challenge the title of a landlord while the tenant is in possession.
Lease lands remain a problem for Vermont towns and more worry for those whose titles are based on perpetual leases with conditions requiring annual payments. The small amount of the lease rents belies the risk of not paying them, and losing title as a consequence. That Jamaica, among all the towns in the state, recovered possession of these lands on this account ought to scare us, not only as landowners, but also as title examiners.
In 2010, Irene flushed Jamaica’s lands of houses, roads, and bridges, cutting it off from access to the outside world, and causing damage amounting to millions of dollars, to private and public property. News accounts at the time described Jamaica as an "artsy town." The Route 30 bridge over the West River went out. Engineers had to move part of a stream in order to fix one of the lost roads, and then move it back to its original location. So far, at least, no one has sued the town over this disaster. The town was hit hard, but it’s back, restored and vital, a home for stalwart residents and a small mecca of commercial and artistic businesses, serving the skiers from Stratton and Mount Snow, the leaf peepers in the fall, and visitors throughout the year. It’s a town with a noble history. It gets along better with its neighboring towns now that the era of suing each other has passed. The town works. It maintains its highways, collects its taxes, performs the business of government, and stays out of the court system if it can be helped.
Paul S. Gillies, Esq., is a partner in the Montpelier firm of Tarrant, Gillies, Merriman & Richardson and is a regular contributor to the Vermont Bar Journal. A collection of his columns has recently been published under the title of Uncommon Law, Ancient Roads, and Other Ruminations on Vermont Legal History by the Vermont Historical Society.