Mitchel v. Dover
| Decision Date | 22 September 1953 |
| Citation | 99 A.2d 409,98 N.H. 285 |
| Parties | MITCHEL et al. v. DOVER. |
| Court | New Hampshire Supreme Court |
McCabe & Fisher and John D. McCarthy, Dover, for plaintiffs.
James M. Jackson, City Sol., Dover (by brief and orally), for defendant.
The defendant first asserts that by its exception to the orders of mistrial made by the presiding justice after the close of the evidence, the cases are transferred to this court for a determination of the facts. With this contention we are not in agreement. The general ground upon which a mistrial is ordinarily declared by the Trial Court is the existence of some circumstance which indicates that justice may not be done if the trial continues to a verdict. The result of such an order, whether made after the close of the evidence or at an earlier point in the trial, is the discharge of the trier of facts, be it a jury or the court, without a determination of any facts, and a later trial of the case de novo before another jury or another justice of the court. Since the establishment of our supreme and superior courts in 1901, it has been clearly recognized that questions of fact arising in the course of trials in the superior court are to be decided there. Romano v. Littleton Construction Company, 95 N.H. 404, 406, 64 A.2d 695, and cases cited. While questions of law raised during the first trial may be transferred to this court for determination in advance of the new trial, see Lavigne v. Nelson, 91 N.H. 304, 309, 18 A.2d 832, and cases cited, the questions of fact involved in a decision of the merits are reserved exclusively for the superior court. The case of Perkins v. George, 45 N.H. 453, relied on by the defendant, involved an appeal from a probate court and is not in point. That appeal transferred the entire subject matter of the appeal, including the determination of questions of fact by trial de novo, to the supreme judicial court which then had, at its trial sessions, the same jurisdiction as is now reserved to our superior court, where it was treated as an original proceeding. Brown v. Jewell, 86 N.H. 190, 192, 165 A. 713.
The decision of the Trial Court, made upon his own motion, that he should disqualify himself occurred after his denial of the defendant's motions for nonsuits and the completion of the testimony. No reason was assigned for his decision nor does the record indicate any. Under these circumstances, it must be assumed that his disqualification existed from the commencement of the trial although evidently not apparent to him until its completion. Whether his disqualification was such as to render his acts void or merely voidable, see Moses v. Julian, 45 N.H. 52; Fowler v. Brooks, 64 N.H. 423, 13 A. 417, the effect of his decision was the voiding of all orders, other than merely formal ones, made by him in connection with the case, including his denial of the defendant's motions for nonsuits. While this would normally leave the defendant without an exception for our consideration at this time, it is thought expedient to now pass upon the issues raised by the defendant's motions as if transferred here without ruling.
An essential element of proof in an action to recover damages caused by the backing up of sewage from a public sewer through a private drain is that the drain was rightfully connected with the sewer. Rowe v. City of Portsmouth, 56 N.H. 291, 297; Roberts v. Dover, 72 N.H. 147, 149, 55 A. 895. While none of the circumstances under which the plaintiffs' drains were connected with the public sewer are in evidence on which to base a finding as to the rightfulness of the connection, it does appear that they had been connected more than five years before the event in litigation and that during that period, employees of the defendant had entered the plaintiffs' premises several times in connection with work on their drains and the backing up of water through them from the public sewer. On these occasions, the city, on the plaintiffs' complaints, had undertaken to clear any stoppage of the public sewer in order to prevent the flooding of the plaintiffs' premises through their drains. In the complete absence of evidence that the drain connections were wrongfully made or maintained by the plaintiffs, it is logical to infer and is therefore findable, from these previous acts of the defendant, that the connection of the plaintiffs' drains with the public sewer was rightful. The defendant's contention that evidence was lacking to support this element of the plaintiffs' cases is without merit.
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Brigham v. Hudson Motors, Inc.
...of a mistrial or new trial may be transferred to this court for determination in advance of a new trial. See Mitchell v. Dover, 98 N.H. 285, 99 A.2d 409 (1953); Eichel v. Payeur, 107 N.H. 194, 219 A.2d 287 (1966); Hayes v. State, 109 N.H. 353, 252 A.2d 431 (1969); LeClerc v. Gray, 112 N.H. ......
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Hurley v. Town of Hudson
...or operation of a municipal sewerage or drainage system. Allen v. Hampton, 107 N.H. 377, 222 A.2d 833 (1966); Mitchel v. Dover, 98 N.H. 285, 99 A.2d 409 (1953); Resnick v. Manchester, 99 N.H. 436, 113 A.2d 496 (1955); Roberts v. Dover, 72 N.H. 147, 55 A. 895 (1903). Nor is this a case where......
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Adams v. Bradshaw
...is its property and its right to regulate and control the use of it is a necessary incident of its ownership." Mitchel v. Dover, 98 N.H. 285, 289, 99 A.2d 409, 412 (1953). Concomitant with the right to regulate and control one's property is the right to dispose of it as one sees fit, and no......
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Opinion of the Justices
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