Reed v. Acton

• Decision Date: 15 March 1875
• Citation: 117 Mass. 384
• Parties: Isaac G. Reed v. Inhabitants of Acton
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

117 Mass. 384

Isaac G. Reed v. Inhabitants of Acton

Supreme Court of Massachusetts

March 15, 1875

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Middlesex. Writ of entry to recover a parcel of land in West Acton. Plea, nul disseisin, with a specification of defence that the land was taken for a school-house in accordance with law. Trial in the Superior Court, without a jury, before Bacon, J., who allowed a bill of exceptions in substance as follows:

The demandant's original title and seisin, and the disseisin by the tenants were admitted. The tenants claimed to justify the disseisin and their continued possession and occupancy of the premises only on the grounds set forth in their specification of defence. In support of this claim, and of their right to take and hold the premises or land described in the writ, the tenants put in evidence the following extracts from the records of the town. In the warrant for a town meeting held March 4th, 1872, the 9th article was, "To see if the town will vote to build school-houses in South and West Acton, and raise money to pay for the same; and the 10th article was, "To see if the town will instruct the selectmen to purchase or take land in South and West Acton for the location of school-houses."

Upon these articles the town acted; and under article 9, "Voted to build two new school-houses the present year, one each in South and West Acton, if the districts want them."

Under article 10, "Voted that the selectmen be authorized and instructed to purchase or take land for building sites in South and West Acton, whenever a majority of the legal voters in either of said districts shall agree upon a location, and shall desire the land to be so taken or purchased."

After the last named vote was passed, the town, at the same meeting voted under article 9, "to appropriate a sum of money not exceeding the cost of the new school-house in the centre district when completed (exclusive of the land for site) for building a school-house in South Acton. Also the same sum for building a new school-house in West Acton, this sum not including the cost of land purchased or taken for building sites for said houses." The adjournment of this meeting was as follows: "Voted that this meeting stand adjourned to the April meeting."

The town of Acton was not at that time legally divided into school-districts, and has not been so divided since; but there was a definite portion of the territory of the town well known and called by the name of the West Acton district. The number of legal voters residing in that district at the time was one hundred and six. A meeting of these voters was called March 16, 1872, and was attended by eighty-eight of the one hundred and six voters. Forty-five voted in favor of the Heywood Lot (of which the land described in the demandant's declaration is a part) and forty-three voted in favor of certain other locations. This action was reported to the selectmen.

By virtue of a warrant dated March 25, 1872, a town meeting duly warned was held April 1, 1872. At the beginning of the record of the doings of this meeting is this recital: "A legal meeting of the inhabitants of the town of Acton held April 1, 1872, in pursuance of a warrant calling the same (and to which time the last March meeting stood adjourned,) the articles in said warrant were acted upon in manner as follows."

After disposing of the articles in the warrant for the April meeting, none of which related to the subject of the Acton school-district or school-house, or to the previous March meeting warrant, the record proceeds to say: "Took up the March meeting warrant;" and "voted" under article 10 of this warrant "that the selectmen be instructed to purchase or take the lot in front of the house of George Gardner, known as the Heywood Lot, as a building site for a school-house in West Acton."

The land described in the demandant's declaration, and which the selectmen took, is a small part only of the Heywood Lot, which contains several acres of land, and of which the demandant owned only one hundred and eight rods.

Another town meeting was held in Acton on April 18, 1872, under a warrant duly issued April 8, 1872, and served. It was shown that it had been the uniform custom of the town for fifty years or more to hold a town meeting annually on the first Monday of April.

On April 15, 1872, the selectmen of Acton issued the following notice, due service of which was made: "Notice. Isaac G. Reed. Acton, April 15, 1872. Notice is hereby given that it is the intention of the selectmen of the town of Acton to take the land in said town formerly owned by Ebenezer Heywood, for the purpose of erecting a school-house thereon. Said land is near Charles Robinson's store in West Acton, and bounded on the Harvard turnpike, so called; and that they will meet on the said premises for that purpose on said land the twenty-seventh day of April, 1872, at four o'clock P. M., and all persons interested therein will govern themselves accordingly. Given under our hands this 15th day of April, 1872. James E. Billings, Joseph Noyes, Hiram J. Hapgood, Selectmen of Acton."

On April 27, 1872, the three selectmen, being the whole board, proceeded to take the land demanded in this action, and the following is a copy of the report of their doings in the premises, signed by two of their number, and dated April 27, 1872: "Record and description of a lot of land taken for the location of a school-house in the west part of Acton, April 27, 1872. In accordance with a vote of the town of Acton passed at a meeting held April 1, 1872, instructing the selectmen to purchase or take a certain lot of land in the west part of Acton, known as the Heywood Lot, in front of the dwelling-house of George Gardner, as a building site for a new school-house, we the subscribers, selectmen of Acton, did on the 27th day of April, 1872, at four o'clock p. m., after having given such notice and taking such preliminary steps as the law requires, proceed to take a piece of land lying on the southerly side of the turnpike (so called) leading from Concord to Harvard, and opposite the dwelling-house of George Gardner, being a part of the lot now or formerly owned by the heirs of Ebenezer Heywood, of Boxborough, for the purpose of a building site for a new school-house: said lot being bounded and described as follow, to wit: Beginning at the northwest corner of the premises, at a point on the southerly line of the turnpike, so called, distant thirteen and one half feet from the range of the easterly end of the easterly wing of Charles Robinson's store (measured at right angles thereto;) thence running easterly on said turnpike one hundred and seventy feet to a stake and stones; thence south, 12[degree] 15 minutes west, one hundred and thirty-two feet to a stake and stones; thence north, 70[degree] 10 minutes west, one hundred and sixty-five feet to a stake and stones at land of said Robinson; thence by said Robinson's land north, 11[degree] 20 minutes east, one hundred thirty-two feet to the corner first mentioned, said lot containing by measure eighty-one and twenty-one hundredths rods, and we the selectmen did appraise the damages to the owners of said land as follows. James E. Billings, Joseph Noyes, Selectmen of Acton."

The report, although dated April 27, 1872, was not drawn up until April 29, 1872, when it was done at the request of the selectmen by W. D. Tuttle, town clerk, and was on that day signed by the two selectmen whose names it bears, and was left by them with the town clerk in his office, where it has since been kept. The clerk did not make any minute of the day the report was left in his office, and testified that he did not think that was necessary. It is admitted that the tenants can (if it is competent to prove the same by parol) prove that the selectmen did appraise the damage of the demandant at $ 100, and that they...