Before any proceedings can be had under the St. of 1848, c. 237, and the Sts. of 1851, c. 186, and 1853, c. 149, and c. 347, in addition thereto, it is necessary that a suitable place shall have been designated by the town or school district *43for the erection of the school-house, agreeably to the provisions of c. 23 of the Rev. Sts.
By § 28 of that chapter the inhabitants of the district are to determine in what part of the district the school-house shall stand. By § 30, if the school district cannot agree upon a place, the selectmen of the town are to determine where it shall be placed. But towns may carry into effect the provisions of this chapter without forming school districts. § 24. So if school districts already exist, the town may, if it sees fit, cony into effect the provisions as to school-houses at the common ex pense of the town, and in such case the town may at any legal meeting raise money and adopt all other proper measures for this purpose. §§ 28, 32. The town of Marblehead so exercised this power of building the school-houses at the common expense.
As a necessary condition precedent to the exercise ol the power conferred by the St. of 1848, it must appear that a suitable place had been designated for the school-house, and that the owner had either refused to sell, or demanded a price which in the opinion of the selectmen was unreasonable. Nothing can be more plain and explicit than the language of the statute § 1. Such designation of a suitable place for the school-house must be made at a legal meeting and by a vote duly recorded.
There is an entire failure to show any vote by the town, designating such suitable place for the school-house in question. The only meeting in which any action was had upon the subject is that of July 30th 1853. The article in the warrant was “ to see if the town will authorize the selectmen to select at their discretion a school-house lot, for the purpose of placing a schoolhouse thereon.” The vote adopted was, “ that the selectmen be and they are hereby authorized to select at their discretion a school-house lot and lay out the same, not exceeding in quantity forty square rods exclusive of the land occupied by the buildings, from the land of the heirs of the late Ebenezer R. Harris, heretofore selected by the town, situated on Mechanic Square.” “ From land heretofore selected by the town ” — when, at what meeting and by what vote, fails to appear *44There is a recital of a selection —that is all. There is no evidence that such selection or designation was ever made; and it is, of course, for the tenants to show that the land was duly-taken. In the absence of proof, we must presume it does not exist. The records given us of the earlier meetings show no action whatever on the subject of the lot for the school-house. The first and vital thing is wanting, that without which all the subsequent proceedings were useless ceremonies, to wit, the designation by the town of a suitable place.
If the vote of July 30th could be construed as authorizing the selectmen to designate a suitable place, it would not, we think, avail; for this is a discretion the town itself must use, and cannot delegate to its officers.
If we got beyond this point, there are other defects which would arrest our progress, and especially the insufficiency of the notice, in not stating the purpose for which the land was taken, or offering to the party a hearing.
A 'claim is made for betterments. Under the Rev. Sts. e. 101, §§ 19, 20, such claim may be made, provided the tenant holds under a title he had reason to believe good, that is, of whose defects he had no reasonable notice or warning. This does not apply to improvements made during the pendency of the controversy, and more especially where a party is taking land by force of the statute, and is bound to see that all the steps are regular. If it did, the party taking the land might in fact compel a sale of the land, or compel the party to buy the schoolhouse or any other building erected upon it. See §§ 29, 32, 33, 34, of c. 101.
Judgment for the demandant.