Summary
In trespass brought before a justice of the peace, the declaration was as follows:
In a plea of trespass, for that the defendants, on the eighth day of October, A. D. 1851, with force and arras, did break and enter the plaintiffs’ close, situated in Loudon aforesaid, bounded southwesterly by the highway leading from Chichester aforesaid, by the dwelling-house-of Stephen Perkins, in said Chichester, to Loudon Centre, northwesterly by land of Oliver W. Morrill, northeasterly by the plaintiffs’ pasture land, and southeasterly by the line dividing said Chichester from said Loudon, containing ten acres, more or less, and their grass there growing did tread down and consume, and then and there, with force as aforesaid, did throw down the bars and posts of the plaintiffs, and also ten feet of the plaintiff’s wall, belonging to and enclosing the said close; and then and there dug up and subverted the soil and earth, together with other the grass of the plaintiffs, then and there respectively growing and being, and then and there erected and built a great part of a certain schdol-house in and upon the said close, and then and there put out and expelled the plaintiffs from the possession and occupation of a great part of their said close, and kept and continued them so put out and expelled, and the said part of the said schoolhouse, so by them erected on the said close as aforesaid, for a long time, to wit: from thence hitherto; whereby the plaintiffs, during all that time have lost, and by reason of the said building will hereafter lose and be deprived of the free and entire use and occupation of their said close ; and other wrongs to them did, against our peace and to the damage, &c.
The defendants pleaded as follows :
1. And the said defendants come and defend, &c., when, &c., and say that the plaintiffs, their action aforesaid against them ought not to have and maintain, because they say that the close mentioned in the plaintiffs’ declaration, long before the committing of said supposed trespasses, to wit: on the twenty-ninth day of March, in the year of our Lord, 1830, was the soil and freehold of the inhabitants of that portion of the territory of Chichester and Loudon, known as the Chichester and Loudon Union School District; and the said inhabitants of said school district were then seized thereof in their own demesne as of fee; and the said inhabitants of said school district had then erected upon said close a school-house for the use of said district, as they had a right to do; and said inhabitants of said district have from time to time since that time repaired and maintained said school-house, as they had good right to do; and the said inhabitants of said school district, on the second day of April, A. D. 1851, at a legal meeting of said district, duly called and holden for that purpose, voted that said school-house should be repaired, and appointed M. G. Lane and D. Lake, two of the defendants, as agents for said inhabitants of said district, to enlarge and repair said school-house, in accordance with said vote ; and the said Lane and Lake, on the said eighth day of October, A. D. 1851, the day on which said supposed trespasses are alleged to have been committed, in accordance with the vote of the said inhabitants of said district aforesaid, and the said C. T. Lane and J. S. Clifford, as servants of the said M. G. Lane and D. Lake, and by their command, entered upon said close, for the purpose of repairing said school-house as aforesaid, as they had good right to do, and proceeded to repair the same in accordance with said vote, and for the purpose of so repairing said school-house, and in the proper and legitimate performance of their duty as said agents and the servants of said agents, they trod down the grass and removed a portion of the bars and posts and wall in the immediate neighborhood of said school-house, and built an addition to said school-house,— all of which they had good right to do; which are same supposed trespasses complained of in the plaintiffs’ declaration, and this they are ready to verbify; wherefore they pray judgment if the plaintiffs their aforesaid action thereof against them ought to have and maintain.
2. And for further plea, &c., they say that for more than twenty years before the committing of said supposed trespasses, the said inhabitants of said Chichester and Loudon Union School District, in their united capacity as said district, have used and occupied said close for the purposes of schooling, and have maintained thereon a school-house for said purposes, and have from time to time repaired said school-house, — all of which they had good right to do, and all of which they have done without hindrance or objection or adverse claim on the part of any person or persons whatsoever ; and in the inhabitants of said district, in their united capacity as said district, on the second day of April, A. D. 1851, at a legal meeting of said district, duly called and holden for that purpose, voted that said school-house should be repaired, and appointed M. G. Lane and D. Lake, two of said defendants, as agents for said district to repair said school-house, in accordance with said vote; and &c., as in the last plea.
3. And for further plea, &c., thay say that long before, &c., to wit: on the twenty-ninth day of March, A. D. 1830, one Joshua Lane was seized in his demesne as of fee, of and in the said close in the said declaration mentioned, and, in which, &c., with the appurtenances, and being so thereof seized, afterwards and before the committing of said supposed trespasses in said declaration complained of, to wit: on the day and year last mentioned aforesaid, by his certain deed or writing obligatory of that date, which said deed or writing obligatory, sealed with the seal of the said Joshua Lane, the defendants now bring here into court, the date whereof is the day and year last mentioned aforesaid, let, leased and sold said close in the plaintiffs’ declaration mentioned, and in which, &c., to the said inhabitants of said Chichester and Loudon Union School District in the language following, to wit:
“ Know all men by these presents, that I, Joshua Lane of Chichester, in the county of Merrimack and State of New Hampshire, Esquire, that whereas a number of inhabitants in the towns of Chichester and Loudon, in said county of Merrimack, have united into a school district, by the name of the Chichester and Loudon Union School District, and have been set off by a vote of said towns as a district or districts; and furthermore have erected a school-house for the use of said district. For and in consideration of or of my own free will have let, leased and sold, and by these presents do let, lease or sell to and for the use of said district, the land whereon the school-house now stands, being part in Chichester and part in Loudon aforesaid, and also a privilege of erecting a wood-house adjoining said schoolhouse, not exceeding twelve by fourteen feet, — to have and to hold the said leased premises, with all privileges and appurtenances thereto belonging, to the said district, so long as they and their heirs shall continue to be a district, and shall see fit to continue said house or houses on said premises.”
' And the said inhabitants in said Chichester Union and Lou-don School Districts thereupon, on said last-mentioned day, entered upon and took possession of said close by virtue of said deed, and being so possessed, the said plaintiffs claiming title to said close, in which, &c., with the appurtenances, under color of a certain chapter of demise, pretended to be thereof made to them by the said Joshua Lane, for the term of their natural life, before the making of the said demise, by the said Joshua Lane, to the said inhabitants of said Chichester and Loudon Union School District as aforesaid, whereas nothing of or in the said close in which, &c., or any part thereof, ever passed by virtue of that charter afterwards and before the said time when said supposed trespasses are alleged to have been committed, and during the continuance of the said term so demised to the inhabitants of the Chichester and Loudon Union School District as aforesaid, to wit: on the said day mentioned in said declaration on which said supposed trespasses are alleged to have been committed, entered into and upon the said close in which, &c., with the appurtenances, and was thereof possessed; and the said inhabitants of said Chichester and Loudon Union School District being possessed of said close in which, &c., by virtue of said deed or writing obligatory of said Joshua Lane aforesaid, on said 29th day of March, A. D. 1830, being the day of the date of said deed or writing obligatory, had there erected upon said close in which, &c., a school-house, as they had good right to do, and had from time to time since said last-mentioned date aforesaid, the same as they had good right to do, and said inhabitants of said district, on the second day of April, A. D. 1851, at a legal meeting thereof, duly called and holden for that purpose, voted that said school-house should be repaired, and appointed M. G. Lane and D. Lake, two of the defendants, as agents for said inhabitants of said ■ district, to repair said school-house in accordance with said vote; and, &e., substantially as in the first plea.
4. And for further plea, &c., said defendants say that the said close, at the time when said trespasses are alleged to have been committed therein, was the soil and freehold of said Chichester and Loudon Union School District, and still is, and that said district were and still are lawfully and actually seized and possessed thereof. Without this that the plaintiffs, or either of them, ever had any title or estate therein, or any lawful, legal, or actual possession thereof-; and this, &c. Wherefore, &c.
5. And for further plea, &c., they say that the said close, at the time when the said trespasses are alleged to have been committed therein, was, and still is, the soil and freehold of the inhabitants of said Chichester and Loudon Union School District, and the said inhabitants were, and still are, lawfully and actually seized and possessed thereof, without this that the said plaintiffs, or either of them, then or at any other time, had any title thereto or were ever lawfully or actually seized or possessed thereof; and this, &e.
6. And for further plea, &c., they say that the close aforesaid is not, and never was, the soil and freehold of the plaintiffs, or either of them ; that they have not, nor have either of them, nor have they or either of them, ever had any title thereto or any legal or actual seizin or possession thereof; and this, &c. Wherefore, &c.
By their attorneys,
Baker & Peabody.
Upon these pleadings no further proceedings were had before the justice, and the plaintiffs having entered their action in the court of common pleas, they there demurred specially to the first and second pleas.
And to the first, show to the court the following causes of demurrer:
The defendants allege that said close was, on the 29th day of March, 1830, the soil and freehold of certain persons under whom defendants claim to have done the supposed trespasses as agents, without alleging that said close was their soil and freehold at the time of committing said trespasses, or any subsequent time, — and have not set out sufficiently the persons, nor any legal body, in whom they allege the title to said close, — and is argumentative.
And to the second plea, the'following causes of demurrer :
The defendants do not set -out sufficiently the persons nor any legal body in whom they allege the title to said close, and is also argumentative. The plea does not state title in the school district, but only evidence of title, and that not conclusive or even competent.
By their attorneys,
Norris & Clark.
And to the remaining pleas they demurred generally, and the demurrers were joined.
Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.
