Beaver Township School District v. Burdick

• Decision Date: 14 October 1912
• Docket Number: 54-1912
• Citation: 51 Pa.Super. 496
• Parties: Beaver Township School District v. Burdick, Appellant
• Court: Pennsylvania Superior Court

51 Pa.Super. 496

Beaver Township School District v. Burdick, Appellant

No. 54-1912

Superior Court of Pennsylvania

October 14, 1912

Argued April 9, 1912

Appeal by defendant, from judgment of C.P. Crawford Co., Sept. Term 1910, No. 91, for plaintiff on case stated in suit of Beaver Township School District v. Edgar Burdick.

Case stated in ejectment for a lot of land in Beaver township. Before Prather, P. J.

The facts are stated in the opinion of the Superior Court.

Error assigned was in entering judgment for plaintiff on case stated.

Reversed.

F. J Thomas, of Thomas & Thomas, for appellant, cited Henderson v. Hunter, 59 Pa. 335; English v. Yates, 205 Pa. 106; Ogden v. Hatry, 145 Pa. 640; Ray v. Natural Gas Co., 138 Pa. 576; Wills v. Manufacturers' Nat. Gas Co., 130 Pa. 222; Davis v. Moss, 38 Pa. 346.

Geo. F. Davenport, for appellee, cited: Birmingham Public School Dist. v. Sharpless, 27 Pa.Super. 630; McKissick v. Pickle, 16 Pa. 140; Wright v. Linn, 9 Pa. 433.

Before Rice, P. J., Henderson, Morrison, Orlady and Head, JJ.

OPINION

RICE, J.

This is an appeal by the defendant from judgment in the plaintiff's favor on a case stated in an action of ejectment. The instrument under which the plaintiff claims the land was executed in May, 1873, and reads as follows: " Know all men by these presents that I, Christian Sensabaugh, of Beaver Township, doth agree to lease to Beaver School, or to the Directors of said township, a certain piece or parcel of land situate in said township on the northwest corner of my farm, known as the Slayton farm, containing 1-3 of an acre for school purposes so long as it shall be used for school purposes, for the consideration of $ 5.00 to me in hand paid, and the Directors are to hold it as such and their successors in office as long as it shall be used for school purposes, after which this shall be null and void." In 1892, Sensabaugh, the lessor, conveyed the farm, including the land in dispute, to the defendant, through which conveyance it is admitted the latter succeeded to the rights of the lessor in the school lot. Soon after the execution of the lease the school district erected a schoolhouse on the lot, and continued to hold school therein, and in a schoolhouse erected in its place, from 1873 or 1874 until some time in 1902, since which time no school has been held there " because," as agreed in the case stated, " of insufficient number of scholars." That this was the reason for ceasing to hold school there is further shown by the agreement of the case stated (1) that at a meeting of the school directors in August, 1902, a motion was made and carried to let a contract " to carry the children from the Sensabaugh school to the Green school at 75 cents per day," and (2) that at that time the number of scholars belonging to what is called the Sensabaugh district " had become so reduced that there had been but one scholar in attendance during the whole or greater part of the previous term of school." In the early part of 1909, the defendant's dwelling house on the farm burned and he and his family then moved into the school-house, without obtaining the permission of the directors, and have since occupied it as a residence. This action of ejectment was brought in 1910.

The foregoing is an outline of the facts upon which, we think, the case turns. But before discussing the questions of law arising out of them, we will briefly refer to some other facts embraced in the case stated, and indicate our reasons for regarding them as not having such materiality as can affect the decision.

One of these facts is, that for a period (whether long or short is not stated) after the action of the directors in 1902 there were left on the premises a stove, a bookcase, a dictionary, some school books, and a chart on the wall. But it is also admitted that all of these articles, excepting the school books and the chart, were removed by the directors during the time in which no school was held there, and it is not stated that they were used or kept for use. The mere fact that these articles were not removed at once does not show, nor tend to show, that during the time they were kept there the lot was being used for school purposes, within the fair and reasonable intendment of the agreement.

Another fact alluded to is, that at a meeting of the board of directors in July, 1906, four years after they had ceased to hold school in the premises, a motion was made and carried " that the Board meet at the Sensabaugh School House to see about repairing the same." This resolution, it will be noticed, did not commit the board to repairing the schoolhouse. Whether they would repair was left for determination later. As it does not appear that they did anything pursuant to the resolution, or even met as was proposed, it is impossible to see that the mere passage of the resolution has any significance.

Still another fact alluded to is, that at a meeting of the board on June 7, 1909, there being at that time eight or nine pupils in the district, a resolution was adopted " that we repair the Sensabaugh School House ready for school use, so we can start a school as soon as there is scholars enough to make one." While this resolution expressed the determination of the directors to repair the school-house, and perhaps shows inferentially that it was their intention to make the repairs soon, yet it fails to show that they intended to resume the use of the building for school purposes at that time, or at any fixed time in the future. Nor is the fact admitted in the case stated that they had such intention. Whether the directors were stimulated to the passage of this resolution by the fact that the defendant had taken possession, we cannot say; but we are quite clear that, whether that was or was not the impelling motive, they could not affect his right, under the facts as they existed when he took possession, by subsequently adopting a resolution to resume the use of the building for school purposes if and when at some indefinite time in the future there should be a sufficient number of scholars.

The broad statement, that a conveyance of land to trustees for a charitable use is not liable to be defeated by nonuser, is to be taken with a qualification depending on the nature of the conveyance, its limitation of the estate or interest conveyed, and its limitation of the use intended to be protected by it. Thus, where land was conveyed to trustees and their successors to erect a schoolhouse for the perpetual use of the parties to the deed and the inhabitants residing nearer to that school than any other, and such other persons as the inhabitants might see fit to admit, it was held that a charity was created which was not divested by nonuser for more than seventeen years after a schoolhouse had been erected by contribution and used and a re-entry by the grantor: Wright v. Linn, 9 Pa. 433. This is the leading Pennsylvania case of its class, and it is much relied on by the learned judge of the common pleas in his opinion entering judgment for the plaintiff. If the principles enunciated and applied in that case do not sustain the general proposition, that the right, interest, or estate, granted for such use is never determinable by nonuser, or do not sustain the specific proposition that the right, interest, or estate granted by this lease was not so determinable, we feel warranted in saying, after considerable research, that no other case of the class goes to that extent. It is important, therefore, to notice that, in that case, the legal title was conveyed to trustees, the grantor parting with his whole interest, except as an inhabitant of the neighborhood. This, in itself, is sufficient to distinguish the case from one involving a mere lease of land, and a re-entry by the lessor after the lease has expired by its own limitation. Again, the conveyance was in trust to build a schoolhouse on the lot (quoting the language of the deed) " to the intent that the said lot of ground may be faithfully appropriated to the use of a public school for the benefit of the surrounding neighborhood, not only during the present generation, but to continue in perpetual succession forever." As the court said, this emphatic language was...