Church Loses The Common


C. Barnard's Map No. 5

United States Army Corps Of Engineers 1830


Mr. Editor---As I learn that the proprietors of the North Meeting-house in this village have attempted to exercise acts of ownership over the public square on which the Meeting-house is erected, I wish to inquire whether they have a right so to do? The matter is of some importance as affecting generally, the rights of the public, the rights of those whose property lies contiguous to this square and the rights of the society. When in March, 1814, the people of this village determined to separate from the society worshipping at the Meeting-house of the West Village, they held a meeting and appointed Lemuel Whitney, Francis Goodhue and Eli Sargeant, a "Building Committee, to make a contract for building a house for public worship." This committee selected a site, and took a deed from Mr. G. R. Ellis running to them and their successors, of the land in which the house now stands, and the land which since then has laid open as a common. The deed is dated the 13 of May, 1815.---Now, laying aside entirely the question of the validity of this deed, which depends upon the fact whether the "Brattleboro Village Meeting-house Society" had complied with the requisites of the revised statute of 1814 (see statute book, page 602) (though they were not incorporated as a Society until more than three years after); we come to the question, what rights have the public acquired to this public square, independent of this deed; that is, what rights have the public acquired over this public square, whether the deed be good and valid, or not.

The tract of land, deeded by Mr. Ellis, in 1815, has now lain open, for the free passage of the public for a term of nearly nineteen years, and they have thus acquired the right of way, the right of free passing and repassing over it in every direction, forever: and this right of easement, the public themselves can now neither alienate or destroy, even if they wished so to do. This has been fully settled by our Supreme Courts, in the cases "State vs. Wilkinson," Vt. Rep. Vol. 2d, page 480; "Pomeroy vs. Mills," Vt. Rep; Vol. 3, p. 279; "Abbott vs. Mills," Vt. Rep. Vol. 3, 521; "State vs. Cutler," Vt. Rep. Vol. 3, p. 530.

In the case, "State vs. Wilkinson," Judge Prentiss decided, "that when the public have had the use and enjouyment of a way for fifteen years, they have acquired a right of easement, which cannot be disturbed," and in the same case, the Chief Justice further observes, "that a high way, according to the common law, is a place in which all the public have a right to pass; and if a way is used for passing and repassing, and is common to all the people, it is a high-way, whether it be called a road, a street, or a public-square." In the present case, the point at issue, was the right of an individual to build on a public square, in the centre of the flourishing village of St. Albans, and in the decision of the County Court, which was affirmed by the Supreme Court---it is observed "that to constitute said common, a high-way, it is by no means necessary that it should be either laid out, surveyed or recorded"---"that its being a high-way did not depend upon its width or shape;" "that a high-way might be either six or twenty-six rods in width."

In the case "Abbott vs. Mills," 3d Vt. Rep. 524, Judge Williams decided, that "a dedication of land to the public need not be by deed. The public are not a body capable of taking the fee either by deed or otherwise." And further, "whenever a public square or common is marked out and set apart by the owners or proprietors, and individuals are induced to purchase lots bordering thereon in the expectation held out that it should so remain, or even if there are no such marks placed on the ground, but a map or plan is made, and village lots marked thereon, and sold as such, it is not competent for the owners or proprietors to disappoint the expectations of the purchasers by resuming the lands thus set apart, or appropriating them to any other use."

The inquiry now remains, has this tract of land ever been dedicated to the public as a common or high-way? We answer, undoubtedly it has. The very grantor, himself, built, and sold several houses, all bordering on this high-way; and during his life permitted the public to pass and re-pass over it in every direction, unmolested. The society, themselves, have now for more than fifteen years granted the same right, which they cannot now revoke.

In the case "Abbot vs. Mills," 3d Vt. Rep. p. 521, it was decided by Judge Williams, "that the silence of the proprietors, while people were buying or building on such square, and using it as a public common, will be considered as an acquiescence of such proprietors in such a dedication." And it is further by no means necessary, that a period of fifteen years should have elapsed; the right of the public will be presumed after a period of six successive years.---and it would seem sufficient if any individuals shall have purchased estates bordering on such a square, with the common belief and understanding that it should so remain. The true principle of the common law is that where ever the soil and free-hold vest; still, where the way is of public convenience, and has been used by the public without interruption, the presumption of their right arises, and a dedication is always to be inferred. Of the truth of the principle here laid down, any man may satisfy himself abundantly, by simply looking over the decisions to which I have referred. I regard the question, Mr. Editor, as one of general interest to the towns in this State and to individuals; not only in relation to this particular public square in Brattleboro, but to any strips of land which individuals may possess, bordering on the high-ways through any towns or counties.


A Citizen.

The Independent Inquirer, March 29, 1834.



The View From Behind The Church On The Common In 1854

The Church on the Common is referred to here as the "North Meeting-house" in order to distinguish it from the recently-constructed "Chapel on Elliot Street" or, the "South Meeting-house".

In an entirely separate legal action, the Church on the Common was proven to be negligent, and failing to meet a specified condition in the deed, that a strong and suitable fence be maintained around the common land.

While surveying for proposed canal construction for the Army Corps of Engineers in 1830, C. Barnard drew a map which indicated the layout for the Brattleboro Common. This map detail is included here to show how the Common was slightly different in form, one hundred and eighty years ago.

The Brattleboro Reformer for July 24, 2008 published an article entitled "Saving the Steeple", in which a source which is unidentified by the newspaper reporter, claims---in clear error---that,

Although the building was moved to its current home on Main Street across from the Post Office in 1842, the church still owns the Common, although it is often thought of as public property.



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