Shaw, C. J.
This is in the nature of an action of trespass qua/re clausum, to recover damages from the former owner of a lot taken for a schoolhouse, for entering and removing a stone wall separating the lot from the highway. The defendant Thomas Copeland claimed title, and insisted that his right as owner of the lot, either as to the right of property or right of possession, had not been devested, by the proceedings of the school district, and of the selectmen, in setting off the land, as the site of a schoolhouse, pursuant to the statute. The other [416]*416defendants justified under the title of Thomas Copeland, and a license and command by him. The question is, whether under the proceedings of the school district, and the act of the selectmen in setting off the lot, the district acquired such title, or exclusive right of possession, as to enable them to maintain this action.
We are inclined to think that the two powers given to selectmen have no necessary connection with each other. The first is, when any school district cannot determine, under Rev. Sts. c. 23, §§ 28, 30, where to place their schoolhouse, the selectmen of the town to which the district belongs, upon application of the committee appointed to build or procure the schoolhouse, or of five or more legal voters of the district, shall determine where such schoolhouse shall be placed. By the subsequent St. of 1852, c. 110, such agreement of the district must be effected by a vote of two thirds of the voters of the district, present and voting thereon.
The other case is, “whenever a suitable place shall have been designated, by any town or school district, for the erection of a schoolhouse and necessary buildings, and the owner of the land shall refuse to sell the same, or shall demand therefor a price which in the opinion of the selectmen is unreasonable, the selectmen, with the approbation of the town, may select a schoolhouse lot, and lay out the same, and appraise the damages to the owner of such land, in the same way and manner as is provided for laying out town ways, and appraising damages sustained thereby,” subject to revision by a jury. St. 1848, c. 237.
We are inclined to the opinion, that after the selectmen had exercised the first of these powers, and determined where the schoolhouse should be placed, they should, before proceeding to take and set off the land and assess the damages, have left the agents of the district and the owner of the land to negotiate in regard to a purchase of it, and the price to be paid for it. Such negotiation cannot be had until the location is fixed; and until after an application to the owner of the land thus designated has been made, it cannot be known that he will refuse to sell the same, or will demand an unreasonable price therefor. Yet [417]*417it is only in one of these cases, that the selectmen, unon application, are to exercise the other power, of setting off the land and appraising the value. If this is a correct view, it would seem to be irregular, in the selectmen, to determine the place, and to proceed to assess the value, at one and the same time, though there is some color in St. 1848, c. 237, § 1, for executing both powers at the same time.
We have however not thought this point material to the present case, because, whether both powers could be exercised in the first instance or not, we are of opinion that the power of laying out land for a schoolhouse lot and assessing the damages could not be legally exercised, without notice to the owner of the land. The statute provides that the laying out of land for a schoolhouse and the appraisement of damages are to be conducted 11 in the same way and manner as is provided for laying out town ways, and appraising damages sustained thereby.” To that law we are to look for the course of proceeding by the selectmen.
Before the revised statutes, and when there was no express provision requiring notice, it was held, upon general principles, that notice to the owners of the land was a prerequisite. Copeland v. Packard, 16 Pick. 217. Commonwealth v. Weiher, 3 Met. 445. But by Rev. Sts. c. 24, § 67, seven days’ notice in writing is required before selectmen can proceed to lay out a town way.
The right to take a lot of land for a schoolhouse, if it exist at all, is a right of eminent domain, to be resorted to only in case of necessity; it is a sovereign right only, under which the rights-of private property are to be treated with the tenderest regard.. The owner whose land is proposed to be taken should have the-amplest opportunity to appear before the selectmen, who are-made judges for the occasion, to offer any evidence and arguments to convince them that no necessity exists for taking the-particular lot; that it maybe conveniently changed; that it will be specially injurious to his dwelling-house or other property; and especially to be heard on the subject of compensation. But whatever may be the reasons, the law is plain and explicit; and as there was no notice in the present case, the statute was not [418]*418complied with, and therefore the right, intended by the statute to be conferred on the district, did not pass.
One consideration was pressed in the argument of the defendants, in the present case, which though not necessary to be decided, it seems proper to allude to; it was this. By the St. of 1818, c. 237, § 2, it is declared that the land so taken shall be held and used for no other purpose than that contemplated by the act, and shall revert to the owner upon the discontinuance. Hence it is argued that, if the lot was well laid out according to the statute, and the district took all the right contemplated by the statute, still, they took an easement only; the fee remained in the owner; and in analogy to town ways laid out, the owner had a right to take off the fences and trees; and so the defendants were justifiable in removing the wall. In deciding for the defendants, we wish not to be understood as giving any weight to this argument. The tenure by which the district would hold such land would undoubtedly be very peculiar. But whether it would be denominated in law a perpetual easement, or a demise, or a conditional fee, is perhaps immaterial; but we cannot doubt that it would give the district a right to the legal and exclusive possession of the whole lot, and, all the rights, uses and benefits in the realty, which would be necessary and incidental to the keeping of a school at all seasons of the year. And we should conceive all those uses to be necessary and incidental, which would be conducive to health, comfort, mental and physical improvement, of all teachers and pupils, male and female. Such exclusive right of possession, we think, would enable the district to maintain an action of trespass for its violation.
And as to the right to remove trees and fences. The statute it is true, refers to the law regulating the laying out of town ways, as a direction to the mode of laying out a schoolhouse lot; and in the case of town ways, the owner of the land is allowed a reasonable time to take off his trees, fences and other property, which may obstruct the building of the way. St. 1848, c. 98. But where one law thus refers to another, we must take care not to follow it into its details, beyond the line where the cases are analogous. It would be inconsistent with the true intent of the [419]
Free access — add to your briefcase to read the full text and ask questions with AI
Shaw, C. J.
This is in the nature of an action of trespass qua/re clausum, to recover damages from the former owner of a lot taken for a schoolhouse, for entering and removing a stone wall separating the lot from the highway. The defendant Thomas Copeland claimed title, and insisted that his right as owner of the lot, either as to the right of property or right of possession, had not been devested, by the proceedings of the school district, and of the selectmen, in setting off the land, as the site of a schoolhouse, pursuant to the statute. The other [416]*416defendants justified under the title of Thomas Copeland, and a license and command by him. The question is, whether under the proceedings of the school district, and the act of the selectmen in setting off the lot, the district acquired such title, or exclusive right of possession, as to enable them to maintain this action.
We are inclined to think that the two powers given to selectmen have no necessary connection with each other. The first is, when any school district cannot determine, under Rev. Sts. c. 23, §§ 28, 30, where to place their schoolhouse, the selectmen of the town to which the district belongs, upon application of the committee appointed to build or procure the schoolhouse, or of five or more legal voters of the district, shall determine where such schoolhouse shall be placed. By the subsequent St. of 1852, c. 110, such agreement of the district must be effected by a vote of two thirds of the voters of the district, present and voting thereon.
The other case is, “whenever a suitable place shall have been designated, by any town or school district, for the erection of a schoolhouse and necessary buildings, and the owner of the land shall refuse to sell the same, or shall demand therefor a price which in the opinion of the selectmen is unreasonable, the selectmen, with the approbation of the town, may select a schoolhouse lot, and lay out the same, and appraise the damages to the owner of such land, in the same way and manner as is provided for laying out town ways, and appraising damages sustained thereby,” subject to revision by a jury. St. 1848, c. 237.
We are inclined to the opinion, that after the selectmen had exercised the first of these powers, and determined where the schoolhouse should be placed, they should, before proceeding to take and set off the land and assess the damages, have left the agents of the district and the owner of the land to negotiate in regard to a purchase of it, and the price to be paid for it. Such negotiation cannot be had until the location is fixed; and until after an application to the owner of the land thus designated has been made, it cannot be known that he will refuse to sell the same, or will demand an unreasonable price therefor. Yet [417]*417it is only in one of these cases, that the selectmen, unon application, are to exercise the other power, of setting off the land and appraising the value. If this is a correct view, it would seem to be irregular, in the selectmen, to determine the place, and to proceed to assess the value, at one and the same time, though there is some color in St. 1848, c. 237, § 1, for executing both powers at the same time.
We have however not thought this point material to the present case, because, whether both powers could be exercised in the first instance or not, we are of opinion that the power of laying out land for a schoolhouse lot and assessing the damages could not be legally exercised, without notice to the owner of the land. The statute provides that the laying out of land for a schoolhouse and the appraisement of damages are to be conducted 11 in the same way and manner as is provided for laying out town ways, and appraising damages sustained thereby.” To that law we are to look for the course of proceeding by the selectmen.
Before the revised statutes, and when there was no express provision requiring notice, it was held, upon general principles, that notice to the owners of the land was a prerequisite. Copeland v. Packard, 16 Pick. 217. Commonwealth v. Weiher, 3 Met. 445. But by Rev. Sts. c. 24, § 67, seven days’ notice in writing is required before selectmen can proceed to lay out a town way.
The right to take a lot of land for a schoolhouse, if it exist at all, is a right of eminent domain, to be resorted to only in case of necessity; it is a sovereign right only, under which the rights-of private property are to be treated with the tenderest regard.. The owner whose land is proposed to be taken should have the-amplest opportunity to appear before the selectmen, who are-made judges for the occasion, to offer any evidence and arguments to convince them that no necessity exists for taking the-particular lot; that it maybe conveniently changed; that it will be specially injurious to his dwelling-house or other property; and especially to be heard on the subject of compensation. But whatever may be the reasons, the law is plain and explicit; and as there was no notice in the present case, the statute was not [418]*418complied with, and therefore the right, intended by the statute to be conferred on the district, did not pass.
One consideration was pressed in the argument of the defendants, in the present case, which though not necessary to be decided, it seems proper to allude to; it was this. By the St. of 1818, c. 237, § 2, it is declared that the land so taken shall be held and used for no other purpose than that contemplated by the act, and shall revert to the owner upon the discontinuance. Hence it is argued that, if the lot was well laid out according to the statute, and the district took all the right contemplated by the statute, still, they took an easement only; the fee remained in the owner; and in analogy to town ways laid out, the owner had a right to take off the fences and trees; and so the defendants were justifiable in removing the wall. In deciding for the defendants, we wish not to be understood as giving any weight to this argument. The tenure by which the district would hold such land would undoubtedly be very peculiar. But whether it would be denominated in law a perpetual easement, or a demise, or a conditional fee, is perhaps immaterial; but we cannot doubt that it would give the district a right to the legal and exclusive possession of the whole lot, and, all the rights, uses and benefits in the realty, which would be necessary and incidental to the keeping of a school at all seasons of the year. And we should conceive all those uses to be necessary and incidental, which would be conducive to health, comfort, mental and physical improvement, of all teachers and pupils, male and female. Such exclusive right of possession, we think, would enable the district to maintain an action of trespass for its violation.
And as to the right to remove trees and fences. The statute it is true, refers to the law regulating the laying out of town ways, as a direction to the mode of laying out a schoolhouse lot; and in the case of town ways, the owner of the land is allowed a reasonable time to take off his trees, fences and other property, which may obstruct the building of the way. St. 1848, c. 98. But where one law thus refers to another, we must take care not to follow it into its details, beyond the line where the cases are analogous. It would be inconsistent with the true intent of the [419]*419legislature, and with the just and reasonable rules of construction, to follow out the course referred to, where the reasons of the one are not applicable to the other. In case of a strip of land laid out for a way, if there be fences crossing it, or trees standing upon it, (at least upon that part intended for the travelled path,) or a well with a pump in it, they must necessarily be removed; the way cannot be made practicable and safe without it. But far otherwise in the case of a schoolhouse lot. The fence may be useful, if not necessary, to secure the lot against the highway, or a coterminous proprietor; the trees add greatly to the health and beauty of the site, and this indeed may be an important consideration in selecting it; and the well and pump may be essential to the health and comfort of the school. The question however is not directly before us; and it is therefore only necessary now to say that we do not put the justification of the defendants upon that ground, and should be unwilling, without a full and grave consideration of the question, to have it understood that, after a lot has been duly laid out as a schoolhouse lot, the owner may legally enter and remove shade trees, fences, or any portion of the realty.
One other point is relied on by the plaintiffs, which is, that all exceptions to inregularities of proceeding on the part of the selectmen were waived by an acceptance of the sum awarded to the owner by the selectmen and tendered to him by the district. Had the fact been so, we should have been strongly inclined to think that the owner would have been estopped, by so unequivocal an act as taking the compensation, from setting up any irregularities, more especially from relying on the want of legal notice prescribed for his benefit. But upon examining the facts, it appears that Joseph Copeland received of the agent of the district the sum awarded as compensation for the land; but no privity is shown between Joseph Copeland and the owner of the land, Thomas Copeland, no agency, no authority to receive the money; of course he had no authority to waive the rights of Thomas Copeland. Exceptions overruled.