77 Me. 117 | Me. | 1885
At the time of the alleged trespass, the plaintiff' was mortgagee of the locus, with at least the right of possession. The defendants entered, removed a part of the fence enclosing the lot, and built on the lot a school-house. This was an injury to the realty, for which, if a trespass, the mortgagee under our law, can maintain the action of trespass guare clausum, the legal title being in him; Smith v. Goodwin, 2 Maine, 173 ; Stowell v. Pike, 2 Maine, 387 ; Frothingham v. McKusick, 24 Maine, 403 ; Cole v. Stewart, 11 Cush. 181. Had it been an injury to the possession merely, not affecting the mortgagee’s security, this action might not have been maintainable; Hewes v. Bickford, 49 Maine, 71; but we think the removal of the fence and the disturbance of the surface, and soil, bring this case within the principle of the cases before cited.
The defendants justify as the committee of the school-district which had essayed to take this land for a school-house lot under statute proceedings. The validity of these proceedings for taking the lot is the only remaining issue.
The district at one of its meetings, by a two-thirds vote, had voted to locate its school-house lot on land of which the locus was a part. Alleging the owner’s refusal to sell, application was made to the municipal officers to lay out a lot thereon, and appraise the damages to the owner. There arc two contingencies in which application can be made by a district to the municipal officers for action in relation to school-house lots. One is when the district cannot agree by a two-thirds vote upon a location. Then the municipal officers are, in effect, to call a district meeting, hear the contending parties, and " decide where the school-house shall be placed.” E. S., c. 11, § 56. The other contingency is when the location has been made, and no agreement can be made with the owner. Then the municipal officers are to
The notice they gave however was as follows: " To the inhabitants of school-district number nineteen, in the town of Harpswell. Application in writing having been made to the undersigned as selectmen of the town of Harpswell by . . , committee of said district for the location and erection of a schoolhouse, to call a meeting of the qualified voters thereof, for the purpose hereinafter named; you are hereby notified and warned to meet at the Union House, within said district on the fifth day of June next at two o’clock in the afternoon, for the purpose of hearing the inhabitants of said district on the subject of their disagreement respecting a suitable place to be selected for the erection of a school-house in said district, and of deciding where such school-house shall be located and lay out the same. Given,” &c. This notice was evidently applicable to a case within the former contingency. Was it sufficient notice of the application actually made, and of the proceedings that actually followed?
It is common learning that where private property is sought to be taken against the will of the owner, under statute authority, all the statute requirements must be fully and strictly complied with. In the procedure no step, however unimportant, seemingly, must be omitted, nor will the substitution of other steps, in the place of those named in the statute be sufficient. To deprive the citizen of his property requires the whole statute, and nothing in the place of the statute. If there be any degrees in the importance of the requirements, that of notice of the intended proceedings, would be the chief. The right of being seasonably
The notice in this case informed the public of an application in a case of a disagreement about a location, and of the intention of the municipal officers at a named time and place, to hoar the inhabitants of the district on the subject of their disagreement, and to decide where the school-house should be located. In this question, the land owner may have felt no interest. He may have been willing for the location to be made on his land, and only desired to be heard on the extent of the lot, or the damages. Ho could assume that a new application must be made for these purposes in case of disagreement as to price, and so disregard the proceedings in which he did not care to be heard. We do not think the notice was sufficient to conclude the owner as to the extent of the lot, or the amount of damages, and consequently the proceedings were invalid. Harris v. Marblehead, 10 Gray, 40 ; Fitchburg R. R. Co. v. Fitchburg, 121 Mass. 132.
The defendants’ counsel calls our attention to the words, "lay out the same,” at the end of the notice, and contends that these words gave the owner sufficient notice. We think the notice, as a whole, is unmistakably of an intention to decide a question of disagreement about a location, and not of an intention to lay out a lot and appraise damages therefor. Under such an application as the notice stated, there was no authority to lay out a lot, and the owner might properly disregard the words, "to lay out the same.”
It is also urged that the plaintiff must have known of the various proceedings of the school-district, and so have known what the application really was, and that the notice did not, in fact, mislead him. However that may be the legal transfer of the land requires the full observance of all the statute formalities. The rule is general and the land owner may rest upon it securely. There is in the case no sufficient evidence of waiver of any formality.
There is no need to consider any other objections to the proceedings. The justification fails for want of sufficient notice of the intention to take the land.
Judgment for plaintiff for one dollar damages.