Jordan v. Haskell

Peters, J. The defendants were selectmen of the town of Cape Elizabeth. They are sued for removing a school house to a lot upon the land of the plaintiff, which had been taken for that purpose by the officers of the town. The plaintiff denies the validity of the location. The points relied on in support of his position are, that the meeting of the school district in which the proceedings for a location originated was not a legal one, because called by a justice of the peace when the district had an agent who should have called it: and that the vote at this meeting, which [196] was the foundation of the proceedings which resulted in the location subsequently made, was indefinite and incomplete and therefore void. Other minor matters of objection are found upon the plaintiff’s brief, but they are not much urged. As to the first point: It seems that the person alleged to have been an agent, was chosen at a meeting no notice of which appears to have been given, as far as the records disclose, and none was shown or attempted to be shown aliunde the record. Such person, although he took the oath of office when elected, afterwards regarded himself as illegally chosen, and for that reason “declined and refused” to act. As to the second objection: The vote was “to move and repair the school house the present year.” But there had been at a previous meeting the same spring, (which proved a nullity for want of a proper call,) a vote, which at this meeting was in the minds of those present, in favor of locating “at or near the four corners known as Clement Jordan’s hill.” The municipal officers afterwards established the location at that place by metes and bounds. The district indirectly ratified the location, after it was made by the town officers, by votes in reference to it; such as a refusal “to change the location . . . made by the municipal officers . . to the location where the house now stands and a vote, “to choose a committee to move and repair the house,” after the location was established. It is not necessary for us to decide, whether the objections taken to the validity of the location would have any importance under other circumstances or not. We are clearly of the opinion that they are not such as the plaintiff can take an advantage of. He has waived them. It seems that after damages were awarded to him for the land taken, he petitioned the county commissioners for a jury to consider the question of a change of location and to get his damages increased. He succeeded in getting the damages somewhat increased. The proceeding involved a protracted and expensive litigation. It imposed upon the district nearly four hundred dollars of additional costs. This was undoubtedly a waiver by the plaintiff of any mere irregularities in the location, if such [197] exist. The very foundation of his petition was that there had been a valid location. He had substantially to aver or count upon it. It is too late, to await the end of that proceeding, and being dissatisfied with the result of it, to repudiate it altogether, in order to set up new grounds of opposition totally inconsistent therewith. The ease of Pinkham v. Inhabitants of Chelmsford, 109 Mass., 225, cited by the defendants, is in point. The plaintiff claims, even if the location was legal, that the lot reverted to him, because no school house was placed thereon for two years after the land was taken. This point has been decided adversely to the plaintiff in another case. Judgment for the defendants. Appleton, O. J., Walton, Dickerson, Barrows and Virgin, JJ., concurred.