Storer v. Hobbs , 52 Me. 144 ( 1862 )

The opinion of the Court was drawn by

Appleton, C. J.

This is an action of trespass quare clausum fregit. The title is shown to be in the plaintiffs. The defendant, in his specifications of defence and brief statement, justifies his entry as having been " done by him in the faithful discharge of his duty as one of the inhabitants of School District No. 15, in Wells, and as one of the building committee chosen by said District.”

The inhabitants oí School District No. 15, in Wells, undertook to erect a school-house upon the plaintiffs’ land without their consent, under the provisions of R. S., 1857, c. 11, § 28. Assuming the owners of the land to have refused to sell or to have asked an unreasonable price for the lot in controversy, still the «district had no right to enter upon, or take the lot, except "on payment or tender of such damages” as the municipal officers of the town should appraise, in accordance with § 28. But the district, without such payment, proceeded to erect a school-house on the plaintiffs’ land, in which the defendant, by his own admission, participated and in so doing became a trespasser.

The tender of the damages appraised by the selectmen, acting under the section before referred to, having been made after the school-house was erected and this suit commenced, can afford no justification. It should have been made before the lot was taken. No valid reason is disclosed why it was not done. The title of one of the plaintiffs was on record and, so far as thereby appeared, he was the owner of the whole estate. Prima facie, a tender to him would have sufficed. But none was seasonably made to any one.

The action of trespass is a possessory action. The case shows the title to have been in the plaintiffs. The law presumes the possession to have followed the title and to be in accordance therewith. But, from the report, it seems there was contradictory evidence as to the joint possession of the plaintiffs. The action is not maintained unless such possession is established. And, however improbable it may be that Japhet Storer would have disseised his grantee in a conveyance but a year before the trespass, and ousted him of his possession, yet, as the instructions given, or proposed to be given, were peremptory and excluded from the consideration of the jury the question of joint possession, a new trial must be granted. New trial granted.

Rice, Cutting, Kent, and Walton, JJ., concurred.