Eli Barnes vs. Lewis Barnes, 6 Vt. 388

The opinion of the court was pronounced by Williams, Ch. J. — The controversy in this case was, whether the plaintiff or defendant owned a certain building, which had been occupied as a school house; and further, if the defendant, or Mr. Goodrich, for whom he removed the house, was the owner," whether he was justified in entering the plaintiff’s land to remove the samé.The title to the land, where the house was erected, was in the plaintiff.

The school house was owned or claimed by one Thomas, and if the court were correct in admitting the execution and return in evidence, the jury, in finding a verdict for the defendant, must have found that the plaintiff had no claim to the house under Thomas. So far as the parties claim under Thomas, the defendant has been found to have the better title.

As the plaintiff was the' owner of the land, the defendant, to justify his entry and to make out his title, undertook to prove that the building which he removed belonged to a school district in Chelsea, called number twelve; that it was placed on the plaintiff’s land by his permission, and removed either by his express or implied assent. The first objection which has been made to the defendant’s title is, that no sufficient proof was made of the existence and organization of the school district.

No records of the town w»ere produced,jto show either the existence or organization of the district; and if no other proof is admissible for that pur-purpose, the defendant has failed in making out his title. The court, however, consider that the existence of a school or highway district may be proved by reputation. If the records of the town have been examined, and the organization of such districts do not appear of record, their existence in point of fact may be proved. All that is necessary in such a case is to show, that there is a district long known and recognized as such.

If there are persons claiming to act as inhabitants of a school district, within certain boundaries, and have for a long time acted as a school district, whether those boundaries are designated by any particular lines, or by the farms of the individuals belonging thereto, they may be regarded as belonging to a district regularly organized. Without this kind of proof, there would be a failure of evidence as to the existence or organization of most of the highway and school districts in this state.

In this case it appears, that the district, or individuals acting and claiming to exist as such district for a long time, built the school house in question on the plaintiff’s land, by his license. By his dealing wfih them as such, giving them permission to erect the house, and permission when the same was sold in pursuance of a vote of the district, to any one to remove the same, he recognized them as a district. This evidence was sufficient to show the existence and organization of the district, so far as it was necessary in this action; and the charge of the court thereon was not erroneous.

It is however objected, that the title of the defendant, by a purchase at a sale on an execution against Thomas, is bad; that the return of the officer was de-defective, in not stating the place where sold to be in Chelsea. But as this was a sale on an execution, (and the parties, have made no question whether this should have been sold or appraised) the return of the sheriff or officer is not essential to the plaintiff’s title.

If the sale is regular, the title of a purchaser is not defeated by the- omission of the officer to malte a correct or regular return; and especially, the correctness of such a return is not to be contested by any but the parties to the execution. The next question which was raised was, whether the de¡ fendant was a trespasser in entering upon the plaintiff’s lan for the purpose of removing the house. It has been argued, that if there was ever any license from the plaintiff to any one, to enter upon his land for the purpose of removing the school house, it was revoked.

We consider that the licence which was given to the district, at the time they placed the house on the plaintiff’s land, would justify them in erecting the house and continuing it thereon; and whenever the licence was counter- '1 manded or revoked by the plaintiff, the district, or any one to whom they should legally convey, would be justified in enter-/ ing- upon the land for the purpose of removing it, doing as lit-J tie damage as possible.

And further, that the licence given by the plaintiff, at the time of the sale, of itself, afforded a justification to the defendant in entering upon the land for the purpose of taking the house away; and it was not material whether the defendant, or Mr. Goodrich, was present at the time, or whether they heard the licence; as it undoubtedly had an effect on the value and price of the buildings. The price was probably enhanced in consequence of this 'permission, and it came to Mr. Goodrich at this value, increased by this licence or permission of the defendant.

We further consider, that this permission was- so far coupled with an interest in the persons to whom the building might be sold, that it could not be recalled or revoked. Mr. Thomas, who purchased the building, and the defendant, who acted under a man who had appropriated to himself the right of Thomas, were justified in entering on the plaintiff’s land, within a reasonable time after the sale and the public declaration of the plaintiff, for the purpose of removing the building. The question in relation to repairs put on the building by the plaintiff was involved in the question of title.

The building, with its repairs, was sold to Mr. Goodrich. The jury have found, that at the time of this sale, the plaintiff had no title from Thomas, by virtue of any contract with him. This question was correctly left to the jury, and we cannot see that any claim which the plaintiff had, or might have had, for those repairs, is involved in the questions which existed in this ease. The judgment of the county court is therefore • affirmed.