Crosby v. Inhabitants of Dracut , 109 Mass. 206 ( 1872 )

Ames, J.

Under the provisions of the Gen. Sts. c. 38, § 37, every town not divided into school districts, “ at a meeting legally called for the purpose, may determine the location of its schoolhouses, and adopt all necessary measures to purchase or procure the land for the accommodation thereof.” No power in that particular is given to the selectmen, except to select and lay out a lot, not exceeding eighty square rods, within the limits of the particular location designated by the town. The only article in the warrant relating to the subject matter was in these words, namely: “ To see if the town will build a new school-house in District Number Six, and make appropriations for the same.” The record wholly fails to show that the attention of the voters was called to any particular place, or to the land of any particular proprietor, within that district. The action of the town upon this article is, if possible, a greater difficulty, in the way of sustaining its proceedings, than the deficiencies of the article in the warrant. The vote of the town was merely “ that the selectmen be authorized to build a school-house in District Number Six, if in their judgment they shall think it necessary.” In this state of facts, it is manifestly impossible to say that there has been on the part of the town a substantial compliance with the requirements of the statute. Harris v. Marblehead, 10 Gray, 40. They have not only failed to determine the location of the new schoolhouse, but they have delegated it to the discretion- of the selectmen whether any such school-house shall be built.

The tenants contend, upon the authority of Hooper v. Bridgewater, 102 Mass. 512, that there is evidence of a waiver on the part of the demandant of all such objections. We think however that the report furnishes no evidence from which such a waiver could be properly inferred. The case cited shows undoubtedly that formal notice to the landowner and tender of damages, and generally all such provisions as were intended specially for his benefit, it was in his power to waive. If any such waiver on his part could extend any further, we see no evidence whatever of any waiver which would remedy so deeply seated a defect in the title of the tenants to the lot of land in question. The report indicates that the selectmen understood that it was not a case of a negotiation or compromise, but a proceeding in which he stood upon his legal rights, and in which they were to take the land according to law, and this the town has not done.

Upon the facts of this case we think that no allowance should be made for improvements upon the land under the Gen. Sts. c. 134, § 19. Harris v. Marblehead, 10 Gray, 40.

As the suit was commenced before the distribution of the property to the school districts under the St. of 1870, e. 196, the judgment should be against the Inhabitants of Dracut, and not against the district.

Judgment for the demandant.