Land Claims & Water Rights

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Competing land claims flooded county court dockets in early Vermont. Land title cases could drag on for years, through numerous appeals. Litigants often provided extensive evidence in the form of surveys and deeds. Land speculation and inflation inevitably led to debt and deflation, and their legal consequence: foreclosure.



The Battle for Knight’s Gore


In 1826 Londoners Thomas and Francis Atkinson sued Daniel Wright, John Miller and Valentine Sergents over 101 acres in Franklin County. When the sheriff served writs on the three, Miller and Sergents posted bail, while Wright had “one billet of wood” seized as surety.  Through five years and ten trials decisions seesawed back and forth. The dispute revolved around a 1795 grant of 2,000 acres to Samuel Knight. The land had been annexed by Bakersfield in 1798,  but Bakersfield and Enosburg disagreed on the town line. Defendants claimed that a later survey had corrected David Fay’s 1789 line, making the 101 acres part of their Enosburg lots. The plaintiffs argued that, even if the Fay line was wrong, it had long been accepted by Enosburg as the northern boundary of Knight’s Gore. In 1831 the supreme court under Titus Hutchinson awarded the Atkinsons the land, one cent in damages, and $340.48 in court costs. Samuel Knight, former chief judge of the supreme court, would probably have had an opinion on the legal maneuvers over his land grant.





Most foreclosures, which took place in chancery court, were routine and uncontested. The creditor filed a petition, the court assessed what was owed, and then issued a decree of foreclosure that specified how long the debtor had to satisfy the mortgage before eviction -- usually six months or a year. Often these were underwater mortgages  – the debt was higher than the property value. A creditor might then request a faster foreclosure, submitting depositions to prove a low property value. Sometimes a debtor would bring in deponents to challenge the creditor’s. Since these were often farms, depositions might include opinions on land, buildings, farming practices, or work ethic.



Hard Times for Vermont Farmers


In 1877 and 1878 two Lamoille County farms were foreclosed on. Creditor Almon Whiting petitioned the court to step in before a Johnson property was laid to waste. He charged that John Carpenter, hard up for cash, intended “to skin the farm for his own profit and to the damage of the petitioner.” The court enjoined Carpenter from  “excessive ploughing & cropping more than shall be properly manured this spring” and from “removal of the forage & produce…without feeding the same…” He was also to stop cutting and selling wood.


Meanwhile, Godfrey and Maria Crutchey were deep in debt on an Eden farm that they no longer occupied. Carroll Page introduced evidence that the buildings were “old and poor and badly run down,” and that the land was “in a poor state of cultivation.” Due to “constant mismanagement” the farm was deemed to have depreciated to a value between $400 and $1000. Even though the Crutcheys had left long before the farm’s decline, they still owed Page $1700.



Water Wars


Water rights were a key industrial asset in 19th and early 20th century Vermont. They were deeded from owner to owner when property changed hands. As sawmills, gristmills, and other businesses expanded, there wasn’t enough water to power them all. Traditionally many mill owners had cooperated informally, operating at different times of the day or week, or suspending work during times of low water. The opportunity to boost production challenged old ways.


Other riparian disputes centered on damage to property from mill waste, or on the effects of dams on recreational property. While most water cases involved streams and ponds, Vermonters also went to court over access to springs and wells.

Water allotment cases could be complicated, requiring research by a court-appointed “special master.” In an 1883 South Peacham dispute Master Luke Poland -- former chief justice of the Vermont Supreme Court -- analyzed deeds, stream flow, past and present uses of the mills, and changes in equipment to define the water rights of miller Sanford Hooker and carriage shop owner James Judkins. Chancellor Jonathan Ross ruled that Hooker had the right to operate two run of grinding stones at all times -- but that he must use the water prudently.



Downstream Troubles


Johnson farmer HA Waterman grew a fine hay crop on his meadow along the Gihon River -- until it became covered with sawdust and mill waste from upstream. He sued Orange and Abijah Buck, along with other mill owners. 711 pages of testimony and Horace Henry Powers’ master’s report describe Gihon River flowage, the effects of mill waste on streams, the history of the mills, and the history of Waterman's meadow. Powers estimated that 4,000 bushels of sawdust a day went into the river. He concluded that this was no longer legally acceptable. In 1891 the supreme court upheld the chancery injunction restricting waste disposal, while reducing the amount of damages to be paid. There were similar cases all over Vermont during this era of industrial and transportation growth. Practices followed by mill owners since “time immemorial” began to change in the face of legal challenges.


Atkinsons v. Wright, Miller & Sergents -- The 1826 writ includes the plaintiffs’ complaint and the sheriff’s returns. The defendants’ bill of exceptions for an 1830 appeal gives some idea of the complexities of the case.


Almon Whiting v. John Carpenter -- Almon Whiting laid out the ways in which John Carpenter was damaging his heavily mortgaged farm.


Carroll Page v. Godfrey & Maria Crutchey -- One of Godfrey Cutchey’s notes on his “underwater mortgage” to Carroll Page.


Sanford Hooker v. James Judkins -- Based on Poland’s report, Chancellor Jonathan Ross ruled that Hooker owned the rights to operate two run of grinding stones at all times -- but that he must use the water prudently. [US Senate Historical Office]


HA Waterman v. Orange & Abijah Buck et al. -- Horace Henry Powers served as chief judge of the Vermont supreme court, state representative and senator, and US Congressman. He acted as both master and chancellor in this case. [US House of Reps] 

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This page was last updated: 2018-02-13