Boynton v. Adams

• Decision Date: 23 January 1975
• Citation: 331 A.2d 370
• Parties: Chester A. BOYNTON v. Lee F. ADAMS and Wahego Enterprises, Inc.
• Court: Maine Supreme Court

Page 370

331 A.2d 370

Chester A. BOYNTON v.Lee F. ADAMS and Wahego Enterprises, Inc.

Supreme Judicial Court of Maine.

Jan. 23, 1975.

Cleveland A. Page, Wiscasset, for plaintiff.

Nissen & Westcott by Michael N. Westcott, Damariscotta, for defendants.

Before DUFRESNE, C. J., and WEATHERBEE, POMEROY, WERNICK and ARCHIBALD, JJ.

DUFRESNE, Chief Justice.

By complaint dated March 9, 1972the plaintiff sought to establish title to, and recover possession of, certain premises situated in the Town of Jefferson, in the County of Lincoln, praying in addition thereto for money damages on account of waste.¹

The plaintiff and corporate defendant are abutting property owners disputing the location of their respective southerly and northerly divisional line.The plaintiff claims title to the area in controversy by virtue of deeds from the Town of Jefferson and from Louise Tibbetts and Barbara Sproul.He testified that the parcel conveyed by these deeds was known as the 'Christopher Erskine lot.'The corporate defendant, on the other hand, bases its title to the land in question upon the deed of Chester Chase to it of the so-called 'Amasa Ford lot.'

At hearing before a Justice of the Superior Court without jury, the reference deeds were introduced into evidence and they contain descriptions of the parcels of land conveyed in terms of metes and bounds, plus references to bordering lots.The testimonial evidence presented by both parties sought to throw light on the location of these reference lots upon the face of the earth.

On July 25, 1973 the Justice below, without extended opinion, found that the plaintiff'failed to sustain his burden of proof upon essentials of his complaint.'The plaintiff appeals from the ensuing judgment, raising in his points of appeal alleged error in the denial of certain motions and in the ultimate decision on the issue before the Court.We deny the appeal.

I MOTIONS

At the outset we consider the propriety of the denial by the trial Court of motions made by the plaintiff for (a) a new trial, (b) relief from judgment and (c) appointment of a surveyor.These motions, accompanied by affidavit of counsel, were filed on June 26, 1973 and heard on the following seventeenth of July, some eight days before the Court's decision.

The denial of the motion for the appointment of a surveyor was proper as an exercise of judicial discretion.Section 6851,Title 14, M.R.S.A. provides that 'the court may appoint a surveyor to run lines and make plans of lands demanded in a real or mixed action, or in an action in which the title to land is involved, as shown by the pleadings filed, on motion of either party.'

The word 'may', when used in a statute, is generally intended to be permissive, discretionary, and not mandatory, subject to the overriding principle that legislative intent must control.Collins v. State, 1965, 161 Me. 445, 213 A.2d 835.

In construing a statute as being mandatory or directory the purposes of the statute as well as the language must be considered.Hann v. Merrill, 1973, Me., 305 A.2d 545, 549.

The power to appoint a surveyor to run lines and make plans of lands was said to be an incident to the general authority of courts to hear and try the case, even without the reference special statutory provision.Leighton v. Haynes, 1870, 58 Me. 408.As our Court then said, such a survey is frequently imperatively necessary to the intelligent determination of the rights of the parties and may be useful in the trial of the cause.

It may be that the practice of appointing a surveyor on motion may have been prevalent in the past.However, since under 14 M.R.S.A., § 6852the court is authorized to fix and determine the amount of the fees and necessary expenses of the surveyor and, in connection with such determination is empowered to order the same paid, in whole or in part, by the county and/or either or both of the parties, if the court is of the opinion that such fees and expenses ought to be paid by the county and/or either or both of the parties, it seems to us that the Legislature intended the exercise of judicial discretion, not only in relation to the approval of the surveyor's fees and expenses, but also in the appointment itself.It is unrealistic to conceive the Legislature mandating the possible expenditure of county moneys at the urging of either party to a private suit, when the court itself found no need for the use of a surveyor as an aid in the solution of a pending controversy.

We hold that the appointment of a surveyor pursuant to 14 M.R.S.A. § 6851 is discretionary and that in the context of the instant case no abuse of discretion was shown.Indeed, both parties submitted the results of surveys which illustrated their respective claims and no further action in this regard appears to have been necessary.

The motion for a new trial² was based upon allegations of misrepresentation of material facts allegedly made by Chester Chase, defendant's predecessor in title, in his testimony at trial, and asserted that proof of said misrepresentation would materially affect the weight of the evidence and change the outcome of the case.The affidavit in support of the motion listed as 'new' evidence the proposed testimony of three persons who were not called upon to testify in the case, but whose testimony, if received, would dispute, it is claimed, statements made by Mr. Chase as a witness for the defendant.

The affidavit is glaringly silent as to the reason why the conflicting testimony of the three witnesses was not offered at trial.The absence of any explanation for the failure to produce evidence at the time of trial is enough to justify the denial of such a motion.Kirby v. United States, 1961, 5 Cir., 297 F.2d 466.

The burden placed upon a party seeking relief on grounds of newly discovered evidence, which the present motion factually calls for, is a heavy one.As stated in Harrison, Pro Ami v. Wells, 1955, 151 Me. 75, 81, 116 A.2d 134, 137:

'Five things must appear (1) that the new evidence is such that it will probably change the result upon a new trial, (2) that it has been discovered since the trial, (3) that it could not have been discovered before the trial by the exercise of due diligence, (4) that it is material to the issue and (5) that it is not merely cumulative or impeaching.Applications for new trials on the ground of newly discovered evidence are not favored by the courts.Proof must be convincing.'

See also, Rodrigue v. Letendre, 1962, 158 Me. 375, 184 A.2d 777;State v. Terroni, 1970, Me., 270 A.2d 75;2 Field, McKusick, Wroth (2d Edition 1970), Maine Civil Practice, § 59.2 at pp. 60-61.

The supportive affidavit discloses on its face that the motion for a new trial was properly denied.In the first place, the plaintiff by his motion seeks to introduce the testimony of two persons who, by reason of their cutting timber in the area between 1915 and 1920, it is asserted, are particularly familiar with the lots involved in the instant proceeding.Whatever may be their testimony, if admissible, it would merely be cumulative of much of the evidence already presented.The evidence at trial, for the most part, consisted of bald assertions of title and vague recollections of the location of boundary lines and monuments.We believe that further parole recollections respecting the lots in question would be unlikely to affect materially the evidentiary balance in the plaintiff's favor.

While the plaintiff, in the second place, grounds his motion for a new trial in terms of testimonial misrepresentation on the part of one of the defendant's witnesses, it is clear from the affidavit that the plaintiff is merely seeking an opportunity to present 'new' evidence of an impeaching nature.

The thrust of the 'new' evidence offered to prove misrepresentation on the part of Mr. Chase would appear directed at the following portion of the record:

'Q.Okay, and what did Mr. Thompson indicate to you was the north line of the Amasa Ford lot?

'A.The same markers as the others, at a monument here (pointing), on the pond at the northeast corner on the pond, by the pond, and then in a westerly direction to that stake-'

The plaintiff's affidavit suggests that Mr. Thompson, referred to in the testimony of Mr. Chase, if called as a witness, would testify that he did not know the location of the north boundary of the lot in question.Such testimony could not change the result in this action.The presiding Justice found for the defendant on the basis...