35 Barb. 319 | N.Y. Sup. Ct. | 1861
This cause was tried, and the decision of the justice before whom the trial was had was
This being an action of ejectment, the plaintiffs must recover, if at all, upon the strength of their own title. Hence it was necessary for them to show, not only the existence of the corporation, of which they claimed to be trustees, but title to the premises in question also, in such corporation.
The plaintiffs, upon the trial, gave no direct evidence of the creation of any such corporate body as school district Ho. 5, in the town of Bath, at any time, and it remains to be seen whether the secondary or circumstantial evidence produced is sufficient to warrant the inference of the creation and legal existence of the corporation.
There seems to be no doubt that in this country corporations of this description may exist by prescription, which presupposes an authorized and legitimate creation. (2 Kent’s Com. 277. Angell & Ames on Corp. 57. Dillingham v. Snow, 7 Mass. Rep. 547. Stockbridge v. West Stockbridge, 12 id. 400.) The evidence here is presumptive only, but that may be resorted to where the record containing the direct evidence cannot be produced. The evidence shows, I think, that no record, of the original organization of this district, can be found. It was admitted, by the defendants' counsel, that the plaintiffs were trustees of school district Ho. 5, in the town of Bath, at the time of the commencement of this action. It was also proved on the part of the plaintiffs that the usual powers pertaining to ordinary school districts, in the several towns of the state, have been exercised by trustees by this name and title, and in the same locality, ever since 1819. School meetings have been held, trustees chosen, a school kept and school houses built, as appears, in the ordinary manner. This, I think, is abundantly sufficient to raise the
The presumption being that the district was duly organized, and had a legal corporate existence, the further inference of course follows, that it had all the powers belonging to corporations of that character, and was capable of owning and holding real estate, suitable to the purposes and objects of its creation.
The question then arises, whether the plaintiffs’ evidence was sufficient to establish a title to the premises in them, as trustees of the district. I do not see that the conveyances produced and proved upon the trial afford any evidence whatever of such title. The first conveyance, which bears date the 29th of December, 1812, is not to the trustees of this district, but to four individuals, who are designated therein, as “ trustees of Bath school.” This was before there was any statute authorizing the division of towns into school districts, in this state, and no privity, or connection whatever, is shown between the grantees in this conveyance, and the trustees of school district Ho. 5, which district must have been subsequently organized. This conveyance appears by the case to have been introduced by the plaintiffs, as part of their evidence of title. The second conveyance bears date the 28th of October, 1824, and is made by the same grantor who executed the first conveyance, to three persons designated as “ trustees of school district number five in the town of Bath,” and purports on its face to convey the premises therein described “ as a site for a school house, and for no other purpose.” At the time of the execution of this conveyance, it appears from the evidence that the grantor had no right or title to convey, and consequently the trustees took nothing by it. This conveyance was introduced, as appears, by the defendants as part of their defense. I confess Lam unable to see why these conveyances should have been introduced, re
It is suggested in the opinion at special term, that the first conveyance might operate as a dedication of the premises, to the inhabitants of the village of Bath, for school purposes. But I am unable to see how it is to operate as a dedication, and if it were so to operate, how the plaintiffs’ title as trustees of district Ho. 5 could possibly be aided by it. It is an absolute and unqualified grant of the entire title, to the four grantees named, and their successors in office forever. There being at the time no such incorporation as the “ Bath School,” there was no capacity to take by grant in succession, and the incorporation which gives capacity must precede the grant of the land. (10 Co. R. 26 b. Jackson v. Cory, 8 John. 385. Hornbeck v. Westbrook, 9 id. 73.)
The .title must therefore of necessity have vested in the individual grantees. It does not appear however that these grantees ever took or held possession of the premises, under this grant. On the contrary, the evidence shows that for several years prior to 1824 a two story building stood upon the premises, the lower story of which was occupied and used for a district school, of the district in. question, and the upper story by the society of free masons. About the last named period this building was burned down, and a school house was erected by the trustees of this district, which was occupied exclusively for the purposes of a district school, up to the summer of 1845. This building was burned down in 1849. Here then is a period of at least twenty years, of exclusive possession, by the trustees of this district; and that it was adverse, and under claim of title, is apparent from the fact that they built upon it, and also from the fact that they took the conveyance of it from Townsend in October, 1824. This is clearly sufficient to raise the presumption of a valid title in the plaintiffs, as against the defendants, who are con-
fessedly without title. A corporation may claim title hy means of adverse possession, the same as an individual, and this too, as has been held, even when it is incapable of taking by grant. ('Humbert v. Trinity Church, 24 Wend. 587. Bogardus v. Trinity Church, 4 Sandf. Ch. 633.)
But it is contended on the part of the defendants that if the plaintiffs, or their predecessors in office, ever had the title as claimed, they have lost it, by abandoning the premises, and permitting others to occupy and use them, for other purposes, and in hostility to their claim of title. This doctrine of abandonment, or non-user, applies, as I understand it, only to easements, claimed by one in the land of another, and in no respect to the title to the land itself. And in case of easements, the general doctrine seems to be well settled, that the right is not extinguished short of an entire abandonment for the period of twenty years. (3 Kent’s Com. 448. Miller v. Garlock, 8 Barb. 153. Hammond v. Zehner, 23 id. 475.) Corporations take a fee simple in lands, for the purposes of alienation, but only a determinable fee for the purposes of enjoyment. But the fee, whenever vested, is only determined by the dissolution of the corporation. In that case the reverter is to the original grantor, or his heirs, but this may be defeated by alienation in fee by the corporation, before dissolution. (2 Kent’s Com. 282.) In order to defeat the title of a corporation, an adverse possession must be shown, as in other cases, for twenty years, from which a grant may be presumed.
The conclusion therefore is, that the judgment at special term was right, and should be affirmed.
Welles, Smith and Johnson, Justices.]
