Jordan v. Haskell

What acts estop owner from denying the legality of the taking of his land. Where an owner of land, on which, a school house has been located, petitions the county commissioners for a change of location and an increase of damages, and proceedings are fully had on such petition, he cannot afterwards maintain an action for the occupation of the lot upon the ground that there were irregularities in the proceedings to take his land.

On pacts agreed. Trespass quare clausum for the removal of a school house, belonging to district No. 8, in Cape Elizabeth, to and upon a lot of land of the plaintiff’, which had been located and designated by the defendants, as selectmen of the town, as the school house lot of that district. The defendants admit and justify the doing of the acts complained of, as done in the discharge of official duty, under authority of law. There was no dispute but that the fee of the land was in the plaintiff at the time of taking it for the purposes aforesaid. The records of the district and of the proceedings in locating the lot made part of the case, but the only points raised with reference to them sufficiently appear in the opinion. and in the abstracts of the arguments. The papers in the equity case, the report of which immediately precedes this, also made part of this case. The minority of the district, upon whose ap plication the lot was first designated for the school house, petitioned the defendants, as selectmen, September 26, 1873, to put the house upon it, and it was removed a few weeks afterward, the plaintiff’s motion for a temporary injunction upon his bill in equity having been denied by the justice to whom it was made and argued. The appraised value of his land was tendered to Mr. Jor dan before he appealed from the award of the municipal officers, and the amount due according to the finding of the jury that were summoned to estimate damages, was offered to him November 10, 1873, before the house was moved, but he refused it, saying he had not sold his land and would not take any sum from them for it. Such judgment was to be entered by this court as the law and facts require. I. The district meeting at which this subject was acted upon, and upon which the location by the selectmen rests, was illegally held, and its action void, because it was called by a justice of the peace, while the district had a clerk to whom no application to call it was made. That agent’s affidavit that he was elected at a meeting called by one having no authority, and that he was therefore never really agent, and for that reason refused to act in that capacity, was inadmissible, not being the best evidence, and there being no explanation of the omission to furnish the best. He had acted as agent before his alleged refusal, and was therefore agent de facto, which is sufficient. Brown v. Bunt, 37 Maine, 428; Tucker v. Allen, 7 N. H., 131. II. The action of the selectmen in assuming to locate was void, because there had been no “disagreement” of the district as to the plaintiff’s land, or any specific lot. At the meeting of April 14, 1871, called by Charles E. Jordan, before he discovered his incapacity to act as agent, there was voted, twelve in favor to ten against, relative to moving the building to “the four corners, near Clement Jordan’s hill,” but the majority was so scanty that it was thereupon immediately voted to dismiss the whole subject, and the meeting dissolved. At the meeting of May 6, 1871, there was only a vote, fifteen to eleven, to move the school house, without specifying any place or vicinity to which it should be moved! R. S., c. 11, § 24, cl. 2; Tozier v. School District No. 2 in Vienna, 39 Maine, 556; Powers v. Sanford, Id., 186. III. The judicial proceedings are inadmissible, because there can be no such recognition by an individual of illegal official acts, done ostensibly under statute authority, and relating to the public interests, as to give them validity. Pope v. Linn, 50 Maine, 85 ; Commonwealth v. Metcalf, 2 Mass., 118. They are shown now to have been based upon an erroneous construction of the plaintiff’s rights and of the defendants’ acts, and so ought not to estop him. The proceedings of the meeting of school district No. 8, held March 25, 1871, were illegal because called by Charles P. Jordan who was elected at the meeting held April 9, 1870, of which no notice was ever given: and consequently that of May 6, 1871, called by a justice of the peace, was the only safe basis of action. R. S., c. 11, §§ 18,19 and 60; Fletcher v. Lincolnville, 20 Maine, 439. The plaintiff has sanctioned and adopted all subsequent proceedings and made them the basis of legal action, thereby waiving all legal objections to them. Pinhham v. Chelmsford, 109 Mass., 229.