The opinion of the Court was drawn up by
Cutting, J.There can be no question that the attempt on the part of the town to divide the district proved abortive. It is now so conceded by the counsel of both parties, and the old district still remains an integer, and was such when the north half attempted to authorize their agent to prosecute the south half for removing the school-house; instead of which, he has commenced this action against certain individuals, alleging in one count a trespass quare clausum fregit, and an asportation of the house, in aggravation. The writ, pleadings and specifications were made a part of the case; of which only the copy of the writ now appears. Consequently, what was admitted or denied is uncertain. By the report we arc authorized to decide from what does, and not from what does not appear, except by legal inferences.
There is no proof that the plaintiffs ever owned a foot of land, or that the defendants ever invaded their soil; and we might as well infer that the house was located on the defendants’ as the plaintiffs’ close, in the highway, or on land of a non-resident proprietor. All we can infer is, that the house was, and still is within the limits of the district; that all the records are imperfect and the district disorganized.
Plaintiffs nonsuit.
Tenney, C. J., Rice, Appleton, May and Kent, JJ., concurred.