Norton v. Perry

Appleton, C. J. This is an action of trespass guare clausum. The alleged trespass is the erection of a school house upon the land of the plaintiff. The defendants justify as a building committee chosen by school district No. 3, in the town of Oxford, for the erection of a school house upon the locus in guo. The question presented is, whether there has been a legal location of the school house lot upon the plaintiff’s land. Assuming that the plaintiff’s land may be taken from her under the light of eminent domain, against her consent, and the compensation therefor fixed by others, without her participation therein, the proceeding must be in strict accordance with the provisions of the statute by virtue of which they were had. If not so, then the plaintiff’s estate would remain unaffected, and her right of action unquestioned. The power “to determine where their school houses shall be located,” is given directly by statute to the several school districts, in the first instance. R. S., c. 11, § 24, item 2. A meeting of the voters of school district No. 3 in Oxford called by the selectmen of that town was held at their school house upon the twentieth day of December, 1871, and continued by repeated adjournments to the first day of April, 1872. It was called for the purpose of taking action relative to the location and construction of a new school house. At the adjourned meeting of April [188] 1st, it was voted: “to accept the report of the committee . . .establishing and locating a lot for a school house on the north-east corner of the F. E. Norton lot, so called, bounded by Pleasant street and by land of George F. Tewksbury and that one hundred square rods be taken for said purpose;” “voted, to poll the house to make certain the vote on accepting the report of the committee on location of the lot for a school house. Moderator reported forty-seven in favor of accepting the report of the committee of lot for a school house and twenty-seven against it, and it was declared a vote to accept the report of the committee.” The above is a transcript from the records of the doings of the district at the adjourned meeting aforesaid. By B. S., c. 11, § 32, “at any district meeting called for the purpose of removing a school house, or locating one to be erected, if more than one-third of the voters be present and voting, object thereto, the clerk shall make a record of the fact.” The record in this case shows that “more than one-third of the voters present and voting” voted against the acceptance of the report of the committee by which the location of the lot was made on the plaintiff’s land. It is argued, that this does not bring the case within the statute, and that those objecting should have interposed a written objection. We think not. To vote against the acceptance of a report is to object against its acceptance. It is the precise and only mode of objecting contemplated by the statute. Nor is it required that the clerk shall record the names of the persons so objecting by their votes. He is to “make a record of .the fact,’’ that is, the state of the votes, and that is all that is required. Within thirty days after the vote locating the lot on 'the plaintiff’s land, certain members of the district, more than three, after rehearsing the proceedings in relation to the location, and describing themselves “as legal voters in said district numbered three in said town of Oxford, and of the number so present and voting and objecting at said meeting as aforesaid,” made written application to the municipal officers “to appoint a time and place in the district to hear the parties and give such notice as is required for a district meeting.” A meeting after due notice was. had at the time and [189] place appointed. The selectmen, the defendant, Perry (a member of the board), being an inhabitant of the district, after hearing the parties, at first did not agree “where the school house” should be placed, and so certified to the clerk, but before the certificate was entered of record, they withdrew the same and within the ten days allowed by statute, made and returned their certificate to the clerk of the district, in which they certify that they “have agreed and determined that said school house to be erected as aforesaid shall be located on land owned by C. F. Durell, bounded on the south-west by High street, on the south-east by land of Lemuel Crooker,” which the clerk forthwith entered “on his records.” After the clerk has made a record of the fact that more than one-third of the voters present and voting object to the location of the majority, it is then provided by § 32, that “the municipal officers on written application of any three or more of said voters, or any committee of the district, made within thirty days thereafter-wards, shall, as soon as may be, appoint a time and place in the district to hear the parties, and give such notice as is required for a district meeting; and after such bearing, they may decide where the school house shall be placed; and shall, within ten days, give a certificate of their determination to the clerk of the district, who shall forthwith enter it on his records ; and the district shall proceed to erect, or remove the school house, as if determined by a sufficient majority of the voters present at said meeting; but no such officer residing in the district, shall have any vote in such determination ; and when a majority of them reside therein, or do not agree, the superintending school committee shall do all the duties herein required of the municipal officers,” &c., &c. It is not contested that the application to the municipal officers of Oxford was made by three or more of the voters of the district present, voting and objecting to the location voted by the majority of the district; that it was made within thirty days after the vote of the district and that the notice required by the statute was duly given of the time and place of hearing. The municipal officers then had, under § 32, jurisdiction of the question where the school house should be placed, and they gave a certificate of their determination within ten days, to the clerk of the district, who forthwith entered it on his records. [190] This determination, if valid, is binding and conclusive upon all parties. But to its validity various objections are taken, which we propose to consider. The location is said to be indefinite in its language. This is denied. But suppose it to be so, then the case presented is that of a determination of the municipal officers which must fail from their vague and uncertain description of the place taken for the school house. The case shows there was “no sufficient majority of the voters present” at the meeting of April 1st, 1872, to finally determine its location. The voters objecting have carried the case by proceedings in the nature of an appeal before another tribunal. The appellate court have rendered a void decision; one which cannot be enforced. The location by the district by a mere majority is no longer in force, because of the appeal taken. Now suppose the location is void for misdescription, it does not render valid a location not made by “a sufficient majority” and vacated by subsequent proceedings. If the district by the requisite majority had made a location void for indefiniteness of description, it must proceed de novo, if desirous of a valid location. So, if the appellate tribunal attempt to make a location which fails from the vagueness of the reference to the premises to be taken, a new meeting must be called and the subject again presented to the district for their consideration. In fine, if a location void by reason of its uncertainty is made by the district by a “sufficient majority,” or by the municipal officers upon proceedings before them, the result must be the same in each case; that is, the location being void new proceedings must be had, precisely as if they had never before been commenced. So, if the location be void, as the counsel for the defendants contend, the one from which an appeal has been taken is not thereby revived. On the other hand, if the location by the municipal officers was a valid one, it is obviously binding. In either event, therefore, the first location of the district ceases to have validity. It is objected that the certificate of the municipal officers that they were unable to agree is a bar to all future proceedings on their part. ¥e think not. They have ten days within which to determine the location of the school house. They may be unable to [191] agree for eight days, and agree on the ninth. A disagreement is not a determination; it is an inability to determine. They have the full time prescribed by statute, within which to form their determination, and they do not lose the statutory time by any temporary disagreement. The doings of the municpal officers are to be entered by the district clerk “on his records.” This was not done, so far as the disagreement was concerned. The certificate of the inability to agree was withdrawn before such entry. Besides, such certificate is only a statement of the then state of mind of the municipal officers, but which they may change within the time given within which they are to “decide where the school house shall be placed.” Further, if it were as contended, the result claimed would not necessarily follow, for when a disagreement takes place, “the superintending school committee shall do all the duties herein required of the municipal officers.” It. S., c. 11, § 32. It follows, that the lot on the plaintiff’s land not having been “legally designated,” upon the facts as proved or admitted, that the justification set up by the defendants is not established, and that there must be judgment for the plaintiff for one dollar damage and costs, as per agreement. Defendants defaulted. Dickerson, Barrows, Peters and Turbev, JJ., concurred. Virgin, J., having been of counsel, did not sit.