Vermont phÅ“nix. [volume] (Brattleboro, Vt.) 1834-1955, 1894-06-01

told him he might 90 any day me wanted to
and fish in the pond they had no wish to
take away any of the rights of the Mari
boro people
Ezra Ames testified that he had known
the South pond for 40 years had sold an
undivided half interest in land to the club:
had never heard of any claim to ownership
to the water or land under the water. ''I
had no idea OF any such thing he said.
at was called public water ard / never
supposed / had any right TO &c." He was
questioned, but Intellectually. as to the spec
ial clause in the deed and whether tine
right to land under the pond was a part of
the consideration.
sharp controversy between the counsel
arose when A. NJ. Prouty was recalled. and
was asked by the defence whether it was
not true that deeds in the usual form were
first drawn for the sale of the land and
that, when submitted to the attorneys of
the club. the special clause was Inserted by
their request The plaintiffs stoutlv pro-
tested against this, and the question was
finally modified so as to ask il any consid-
Grafton was involved aside from the sale of
the land To this MI Prouty answered
no. He further said that he wouldn' have
given $50 for the land unless ne wanted to
get a shore right.
Mr.. Stoddard then submitted deeds and
copies OF deeds to show that grantors, pre-
vious to those who sold the land to the
club, made no claim to title of land under
the pond, or of the water of the pond.
George 5. Dowley then took the stand.
He denied absolutely having made the
statements which Moore testified TO. He
had never had any such talk with him.
Nothing was said about the people being
allowed to fish III the pond. Everybody
knew what the land was bought for
Bowen was also recalled. He testified
that there was no such conversation with
Moore. He bought the land Just as he
would buy any land on Main street. and
his feeling was perfectly friendly toward
all parties interested.
This closed the testimony, which occu-
pied nearly four hours time. At > 40 ad-
lOurnment was taken to Gas. when the
arguments were made, each side limiting
itself TO an hour and half The conten-
tions OF the plaintiffs counsel were, in
brief that the South pond was originally
private property, included in the grant
of the township The first time it changed
hands the deed included the whole OF the
pond: the second time the pond was cut
i'll two in the middle. Two of the deeds
in the chain of title carry the boundaries
out INTO the water. 1t was also claimed
that. the land around the pond being pri-
vate property, TO cross il constitutes a
trespass Thirdly, it is claimed that the
land around the pond being enclosed it is
competent for the owners TO post il. and
prohibit fishing. trapping and shooting in
the enclosure within the provisions OF sec
tion As OF the laws of 1892, % and that
this does not interfere with the constitu-
tiona provision which the defendants set
up as a bar.
The defendants base their contention,
first, on section 40 of the constitution.
which saws that The inhabitants of this
state shall have liberty in seasonable time
TO hunt and fowl on the lands they hold.
and on other lands not enclosed and in
ike manner 10 fish in all boat able and other
waters not private property. etc. Every
holder OF land around the pond. il is
claimed. took his deed and held his title
subject 20 this constitutional provision
~. There is no doubt that the south
pond is DOatable. and no law OF the legis-
lature can interfere with the public right
TO fsA 1t is further claimed that under
section 81 OF the law of 1892. no action of
trespass can bee maintained for crossing
the club S land to reach the pond. because
ii is not cultivated land and no damage
was done by those crossing the land. This
section says " No action shall be ma u-
talned against any person tor crossing uu-
cultivated land to reach public waters for
| the purpose OF taking 1sh. unless actual
! damage has been sustained.
After being out an hour the Jury re-
ported that they were unable to agree.
I p mo- b.
/ adjourned TO Thursday morning at 10
/ o clock. 1t is understood that the Jury
We're equally divided
The Case Goes 10 the County Court on
an Appeal.
After the case was called THURSDAY
morning. the time until 3 o'clock was
/ spent in a truItiess attempt TO secure q
( jury. out or thirty men who were sum
/ moned, only three were found who had not
| formed or expressed an opinion. Tire off.
/ Ger then announced that he should 60 "a
/ y enou Tor panel Under these circum-
! stances the plaintiffs gave judgment for
/ the costs and appealed the case to the
/ county court The other eleven cases wer,
| continued until the 10Th of November.
/ after the county court has passed upon thi,
initial case. The defendant counsel
/ wished the plaintiff counsel to make mu.
/ tual agreement that neither the club men,
! Oers nor the defendant fisherman should
/ ish in the South pond until the case is q p
/ cided. The plaintiffs objected to this, but
/ stated that. while no more suits would be
( brought al present. the names will be taken
! OF all persons fishing on the pond. othe!
! than club members, and IN case the court
/ decision is favorable to the CLUB, prosecu-
/ lions will be made.
OF the other eleven cases pending nv,
/ are against Geo. aud Irving Mather. and
one each against Levi Moore, Geo. Whit
/ ney. Herbert Bellows. Joel =. Butterfeld.
/ Herbert Mather, and Herbert Nichols. /,
/ Is stating a very apparent fact to say thai
/ the BrattleOOrO sentiment is strongly on
/ the side OF the Marlboro fishermen. This
| feeling does not argue any antipathy
/ against the club members. but is based
/ upon a general idea OF the constitutions
! rights involved in the case. To the aver,
/ age mind. not touched with legal techni.
! calltles, IL appears that if the South pond
/ may be made private preserve or posted
| water, the public can be shut out from any
1 water IN the state if a man or a company
/ OF men who so wish have money enough
/ 10 buy and control the land around it. The
fundamental question would seem 10 be
/ upon this point.
There is no doubt that the trainers of
] the \ prmOut constitution meant IN aecura