Cousens v. Inhabitants of School-district No. 4

Barrows, J.

The defendants claim to hold the possession of the land demanded in this suit because they say it has been legally taken for a school-house lot by virtue of the provisions of B., S. c. 11, § 33.

That the title was previously in the plaintiff is not denied.

The case finds that after the proceedings, the validity of which is here in controversy, the defendants forthwith erected a new school-house on the lot taken, which adjoined the lot upon which the defendants’ old school-house stood, and the whole (which does not exceed forty square rods) is now inclosed with one fence and occupied by the defendants as one lot for their new school-house.

*284 The plaintiff alleges three objections to the validity of the proceedings. 1. He claims that the district by their vote undertook merely to “enlarge their present school-house lot,” and that they were not authorized by the statute to do this; that the statute as it stood at the time of these proceedings gave no power except to an incorporated city to take real estate for the enlarg ement or extension oí a school-house lot, and for play grounds. If the case showed a mere attempt to add to the grounds about an existing • school-house without occupying any part of the land taken with the building to be erected, there would certainly be no little force in this position. But such is not the case before us. The warrant for the meeting and the votes taken together show the object of the proceeding to have been quite different, and in connection with the other agreed facts bring the case within the power conferred in the first part of § 33 upon municipal officers •to layout a school-house lot not exceeding forty square rods and to appraise the damages therefor, and upon the district to take such lot to be used and held for that purpose upon payment or tender of such damages. The essential limitations in the exercise of this power relate to the obj ect for which the land is taken and the size of the lot, and both were duly regarded by the defendants. Their votes and acts clearly designate the object in view. The intermixture in the votes of some of the phraseology used in another part of the section does not affect the character of that object. It was none the less a designation of the land here demanded as a school-house lot for the erection of their new school-house which they then voted and afterwards proceeded to build, because they added their old lot to it, and called it enlarging their present school-house lot. The plaintiff cannot complain that they did not take more of his land, but only so much as with the addition of their old site would make a suitable lot for the new school-house.

It is not reasonable to suppose that, when the legislature authorized the appropriation of a lot not exceeding forty square rods to this public use upon payment of reasonable damages to the owner, they expected the whole of the land so taken to be covered with the buildings, or designed to prohibit the use of some part of it as *285 a play ground for the children. "We must not forget that § 33 is a revision and to some extent a condensation of several previous acts in some of which mention was made of specific uses which might he made of portions of the school-house lot, and in some it was not. The next year by c. 3, Laws of 1872, the legislature increased the size of the lot which might be taken to one hundred square rods, but nothing was said about play grounds or out-buildings. Those are mere incidents to the use oí the land as a schoolhouse lot, and mentioning or omitting to mention them in the proceedings for laying out such lot cannot affect the validity of the proceedings.

Nor does the justification of the district fail because in their vote they called what was obviously a designation of a lot for the erection of their new school-house, an enlargement of their present school-house lot.

2. The plaintiff’s second objection is that the municipal officers laid out the lot, and assessed the damage at one time; and he relies upon the case of School-district in Norton v. Copeland et al. 2 Gray, 414 , 416, as a decision under a similar statute favoring his view.

The case differs essentially from the one at bar. Shaw, O. J., expressly places the decision upon the want of notice from the municipal officers to the owner of the land prior to the laying out. Here, the statute notice was given. But if the dicta respecting the giving- to the land owner the opportunity to sell the particular lot to the district before proceeding to assess the damages were to be regarded as having the force of an authority, they would not apply to this case. For, here, the identical lot was designated by the district, and the case finds that the plaintiff refused to sell it. There, the district failed to fix the location, and the selectmen were called upon to determine the location ; and after laying out the lot they proceeded to assess the damages without waiting to see whether the land owner would refuse to sell the lot as laid out. Otherwise, here: the admission that the plaintiff “refused to sell the lot designated and described in the record” obviates the objection.

3. The third objection is that the doings of the selectmen in *286 laying out the lot, were not recorded in the town-clerk’s office, and so the selectmen did not proceed “as is provided for laying out town ways and appraising damages therefor,” according to the requirement of § 33.

But their return seems to have been duly made to and recorded by the clerk of the district. The remarks of Shaw, C. J., in the case above cited by plaintiff, ( 2 Gray, 414 , 418,) are apposite. Speaking of the requirement of the statute that the laying out of a school-house lot should be conducted in the same way and manner as is provided for laying out town ways, &c., he says: “When 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 wonl d be inconsistent with the true intent of the legislature and with the just and reasonable rules of construction to follow out the cours e referred to where the reasons of the one are not applicable to the other.”

It is plain that t he requirement is not that the proceedings in the two cases shall be literally identical; but that the course should be the same so far as the objects to be accomplished are analogous; the same, mutatis, mutandis.

We think the proper place for returning and recording the doings of selectmen in the laying out of a school-house lot for a schooi-district is the record of the district; and that this is according to the spirit of the requirement that the municipal officers shall proceed as in the laying out of town ways, the record of the district being substituted for that of the town because the returning officers are acting in a matter which concerns the district, as they are acting in a matter which concerns the town when they lay out town ways. If by the reference to the course of proceeding in laying out town ways, they are bound to make return to the town-clerk of the laying out of a school-house lot, because by c. 18, § 20, their return of the laying out of a town way is to be made and recorded there, it would seem to follow, under the same § 20, that their action could not be regarded as final until the town had accepted it at a town-meeting legally called afterwards. But, very clearly, no such action by the town is required to confirm the laying out of a school-house lot for a school-district; and we know of *287 no right of the land owner that is not as well guarded by an. entry on the district records, which, as a public record, he has the right at all times to inspect, and which the district in such a case is specially interested to preserve.

We think neither of the objections to the proceedings in the laying out of the lot is tenable. Judgment for defendants.

Walton, Dickerson, Danforth and Peters, JJ., concurred.