Burlington weekly free press. [volume] (Burlington, Vt.) 1866-1928, 1875-10-08

Church. St. Paul. Main and College streets.
was, 10 l19s. BY vote Of the Propristors OF
Burlington, set apart 'ior the uss Of the
public for the erecting Of all necessary
county and town buildings for public use.
and that this dedication was duly accepted;
that previous to 1908. one Lyman King had
a tavern on the northeast corner Of this
Square, and the county jail stood on land
adjoining this tavern; that. ia 1897, King
conveyed the lot OF land on Clurch street,
where the jail now stands. to tho County OF
Chttenden, for the purpase OF jail, IN
confirm to him the tide OF that portion of
the Square where his tavern stood. Icing
SO feet north and south on the west line OF
Church street. by IS feet east and west On
the south line Of College street; that doabts
having arisen whether the court mad power
SD to do, the Legislature,in 1908, passed an
act authorizing the Ssle;tmen Of Burlington
to make perpetual lease OF the land to
| King, reserying a rent of one pepper corn
annually, hich lease was n.!e according
| ly in 1899. that King and his grantees con-
tinued in possession of 50 much of this
tract OF land as is now covered by Strong
Building, until the present time. claiming
adversely to the public all the whilo (; that
| Henry Thomas purchased the land 50 leased
| in 1928, and continued to occupy it Cor the
| purposes of . tavern and store till 1889,
when he conveyed ii to the respondent, VIII 0
has been in possession ever since
| 1t further appeared that the land south of
the land covered by the lease 10 Lyman
| King was open and unObstructed and used
| BY the public as common until 1923. when
tho town of Burlington, by its Ssiectmen.
leased to Henry Thomas, then owning the
other piece, It strip of. land Immediately
south Of the land leased to King, "a teet
north and south by 80 feet east and west
extending east as far as the west liEe OF
| Church street. This lease was perpetual,
reserying an annual rent OF Sl2 50, and pro-
yiding that the town might take possession
| at any time on paving the lessee. or his
| assigns. the value OF the buildings which
| might be then upon it. About 1927 Thorn
as built over this last described strip OF
! land an addition 10 his tavern, consisting
| of a ballroom in the second story and
chambers in the story abOve. The ball
| room stood upon posts extending along the
south line of the "A feet strip. aud. under
| the ballroom and within these posts was a
| shed or covered driveway - that teams
| and stages could drive under aud through IN
| an east and west direction or between these
posts The south door vi the tavern
| opened into this shed, aud Il large flight
| OF steps descended from this door -
II. atar Nd hos
hicles, coming TO and going from the tavern,
were in the habit. particularly in wet
weather, of driving under this shed and
loading and unloading their passengers
there. The stables of the tavern stood on
the cas-. side of Church street, which in
those early days was not pas-able Tor We
hicles up and down between Main and Col
lepe streets. and the stages and teams cJn-
nected with the tavern had to pass to and
from this covered driveway over plece o!
lard living east Of the same and extending
to the west line of Church street. and cross
ed Church street between I; and the stables,
over a bridge across gully which then oc-
cupied the middle Of the street. this bali
room addition extended only II about Is
feet west Of the west line Of Church street,
and il was over this piece Il by 81 feet. that
tho stages and teams passed between thus
covered drive way and tue stables. A. above
stated
In 1889. on the slime day Of the convey
auce by Thomas to Strong OF the land cover
ed by the Lyman King lease. he also quit
claimed to the respondent thu, strip OF II b.
~ fee, covered By the lease from the town
TO Thoma-. executed IN 1923
In 1889. Immediately after this pIrchl-e.
Strong closed up tho open space under the
ballroom oY erecting II store thereon,
which has ever siuce beea occupied b. has
tenants. These tenants made use OF the
piece Of land, Il by 81 feet, lying immedI-
ately east Of tins store 10 pass over between
the store and Church street. and also IRE
quently unloaled and piled goods and boxes
thereon. In 1865. Strong extended this
store easterly over this piece ~ Church
street. and from that tine tue public we're
entirely excluded from passing over it. bat
previously :here was nothing 10 prevent the
public from passing under this ballroom
and across this piece, while Thomas owned
the property, when II was not IA use 10y
stages and teams connected with the tavern,
as above stated nor after Strong bought,
was there anything TO exclude the public
from passing across this piece east Vi the /
store, until lSGS; and individuals, not
having any business connected with the /
tavern. freq uently passed between Church F,
street and the Square under this ballroom I
and over this small piece and after Strong I.
bought, persons having nothing 70 DO with Z
the store passed across this snail piece Vn /.
their way between the same points.
In 1893, trial was had 10 the County (
Court on an indictment against Thomas Tor |
maintaining the entire building. the origin |
al tavern IA well a. the ballroom addition. I
Judge Phelps presided. AMI be directed (
verdict of NOT gully a. 70 20
much Of the building As occupied the 4
land covered by the King lease. On the !
ground tina, the State, by the act OF loOs, I
had authorized the use of the land BY King /
and his grantees for private purposes. and I
that the State could not prosecute TOR an I
act which was done by their license and
authority. As to the ballroom addition
which. 1t will be remembered, had then
stood but about six years, he left II 10
the jury to decide. and they rendered yer
diet of guilty. This verdict OF guilty, how
ever, did NOT result in any Judgment, but
the cause was continued for sentence and
never brought forward upon the docket and
no sentence was ever given, nor WIS the
building molested or removed. Strong never
paid any rent to the town, nor was any
ever demanded Of him. and he has since his
purchase Of Thomas held adversely t. all
the world.
In 1881. the Supreme Court decided 10
Poneroy Is. MilIs, and AJJ0n IS. MidS,
reported in the 3rd volume Of the Yer
mont Reports. involving the validity OF
leases Of portions Of this Square. similar 10
the one made to Thomas by the town. IN
1925, and like that. made without any legl--
latiye sanction, that those leases were III
valid, that the Square had been dedicated to
the purposes Of public common and that
10 kat nf * m. 4
to lease the Land for private purposes.
The questions OF law invOlyeI in the pres
eut indictment were argued to the court on
Friday last, at considerable length. by Mr..
Lawrence and Mr.. Roberts for the prosecu-
ton, and Mr.. Shaw and Mr.. Phelps for the
respondent.
On Saturday morning. Iii, Honor, Chief
Justice Pierpoint, rendered his decision,
which was,
l. In regard to the main portion of
the building. ON the land embraced By
the lease to King made in 1909, that with
out going into any question as To tue
effect ct the long continued pJ'>es-
sion Of the respondent aud his grant
ors. or of the Judgment of acqnittal ia
1888 the log i-aiive act of l50S. authOriz
ing the lease TO King rendered i, valid and
was Il complete bar to this prosecution
that though the public originally had an
ca sement of common in the land 80 leased.
yet the Legislature represented the public
and had complete sovereignty over this pub
lie easement. and could release it at its dis
cretion.
2 As to the part OF tha building nov
used for the Wheeloek 4 Griffin store and
the rooms above it. the Ch,ef Justice sad
that Thomas, under the lease ol 1925. took
of the land in question and built
upon it that not withstanding he left
irivc way open under tho ballroom. he ,,
nevertheless in law took possession ot the ,
and so left open. a. much a. If he had c
closed 1t up. because be left 1t 50 open merely {
Tor his own convenience aud for his own :
purposes, and more advantageous |
means OF approach to aud exit lruin his hu- Y
tel by carriages and that this remark APP {
"A LIZ u ,,ridar fh..h ul