139 Mich. 539 | Mich. | 1905
Plaintiff brings this suit, which is an action of trespass quare clausum fregit, to recover the value of a schoolhouse which he alleges defendant removed from his land. The schoolhouse was erected on the land in question in 1868. The land, which was subsequently transferred to plaintiff, then belonged to plaintiff’s father. During the construction of the building, defendant and plaintiff’s father orally assented that their rights should be determined by certain writing. By this writing defendant, for a consideration therein named, leased the land for 50 years, provided “that at any time that the parties of the second part [defendant] shall discontinue the district school on said land, the same shall fall in full possession of the parties of the first part” (plaintiff’s ancestor and grantor). In the summer of 1902 defendant built a new-schoolhouse on a different site. It ceased holding school in the schoolhouse in question December 24th. 'December 29th its directors gave notice of a special meeting of the voters to be held in this old schoolhouse “ on Monday evening, January 5th, at ? o’clock p. m., for the purpose of disposing of the schoolhouse on the old site.” At this meeting plaintiff appeared, and insisted that he owned the schoolhouse. This claim was denied by the others present, and the district then sold the building to the highest bidder for $40 (the sale to be null and void if there was no right to sell), with the proviso “that the district hold the
Defendant insists that a verdict should have been directed in its favor on various grounds, of which we notice these two: (1) Plaintiff was not in possession of the property at the time the alleged trespass was committed. ^ (2) Defendant had a right to remove the building.
Plaintiff insists that defendant in the court below did not contend that it had a right to remove the building. If so, that contention cannot now be relied upon as a ground of reversal. We are bound, however — and this will more clearly appear in our opinion — to consider defendant’s right of removal in determining whether plaintiff was or was not in possession.
Was plaintiff in possession of the property at the time the schoolhouse was removed ? If he was not, he cannot maintain this action. See Carpenter v. Smith, 40 Mich. 639. Defendant never formally yielded possession to plaintiff. It never notified plaintiff that he might have possession. The only possession which plaintiff ever, took was to put a' lock on the schoolhouse door. It is obvious that this did not put the building in plaintiff’s possession if defendant’s possessory rights continued. If defendant’s possessory rights continued, plaintiff’s action was only an invasion of those rights. Those possessory rights did continue if defendant had a right to remove the building. Defendant’s right to remove the building at the time of the alleged trespass affords, therefore, a complete answer to plaintiff’s claim that he was in possession.
Plaintiff insists that the rights of the parties shall be determined by the writing' to which they verbally assented. No unfairness results to plaintiff therefore if we so determine them. This writing does not in express terms give defendant the right to remove thé schoolhouse. Neither does it provide that the schoolhouse shall be the property of the owner of the land. If the rights of the parties are
Plaintiff insists, however, that the common-law principles are rendered inapplicable to this case by reason of the following portion of section 4673, 2 Comp. Laws, viz.:
“Nor shall any district build a frame schoolhouse on any site for which they have not a title in fee or a lease for fifty years without securing the privilege of removing the said schoolhouse when lawfully directed so to do by the qualified voters of the district at any annual or special meeting when lawfully convened.”
It is obvious that the purpose of this statute was to se
It follows that the judgment of the lower court should be reversed, with costs of both courts. As plaintiff cannot recover, no new trial will be granted.