Pike v. Hartford

• Decision Date: 26 March 1957
• Citation: 100 N.H. 473,130 A.2d 540
• Parties: Charles A. PIKE v. Justin D. HARTFORD et al.
• Court: New Hampshire Supreme Court

Page 540

130 A.2d 540

100 N.H. 473

Charles A. PIKE v. Justin D. HARTFORD et al.

Supreme Court of New Hampshire.

Argued Jan. 2, 1957.

Decided March 26, 1957.

Leo Liberson and John DeCourcy, Portsmouth, for plaintiff.

Burns, Calderwood & Bryant and William E. Galanes, Dover, for defendants.

BLANDIN, Justice.

The reserved case transfers the defendants' exceptions to specified paragraphs of the Court's findings 'and to other rulings made by the Court.' The exceptions themselves do not appear. While the findings excepted to can be identified although they are not numbered, it is impossible to determine what rulings were excepted to. In Nixon v. Cooper, 97 N.H. 327, 329, 87 A.2d 687, 688, it was pointed out that reserved cases or bills of exception are 'merely instruments by which exceptions previously taken may be presented to this court.' They do not relieve counsel of the duty of seeing that there is a record of his exceptions in writing, if they are to be considered here.

The duty to state the exceptions for the record rests upon counsel, and the burden is upon him to see that they are transferred. Adams v. Severance, 93 N.H. 289, 41 A.2d 233. The obligation to see that a bill of exceptions is 'conformable to the truth of the case', RSA 490:10, and that a reserved case likewise presents exceptions which can be identified upon the record, rests upon the Presiding Justice. Lavigne v. Nelson, 91 N.H. 304, 310, 18 A.2d 832. Unless court and counsel perform their reciprocal duties in this regard, transfer to this Court can be of little value to the parties. Whelton v. Daly, 93 N.H. 150, 156, 37 A.2d 1.

Since it is impossible to identify any exception to rulings in this case, our consideration of it apart from the exception to findings cannot go beyond errors apparent upon the face of the record. See, Town of Sandown v. Kelley, 97 N.H. 418, 89 A.2d 758.

The essential findings were as follows. The disputed property and the lots of both plaintiff and defendants originally belonged to one Mendum. In January, 1902, his administrators conveyed the northern portion of the tract with a house on it to a predecessor in title of the defendants. In December of the same year the administrators conveyed the southerly tract to Arabella Cotton, predecessor in title of the plaintiff. The Court also found:

'At the time of these conveyances the northerly tract had a house upon it which reached practically to the passageway on its southerly side. This house faced on Chestnut St. To the east of this house were some stables and also a clothes reel. Chestnut Street runs in a southerly to northerly direction. The passageway was used almost exclusively for the delivery of coal to the house on the northerly tract. It is found that the passageway was created for the benefit of the occupants of the house on the northerly tract to afford access to the rear of said house for coal deliveries and such other use required to obtain access to the rear of the house. Dominion over said passageway has been exercised by the petitioner and his predecessors in title from almost the time the lot was conveyed and most certainly since 1930. The house on the northerly tract was razed in 1930 and no building has replaced it. The lot is now used as a parking lot by the petitionees. By deeds dated July 14, 1955, and August 15, 1955, the heirs of Charles Mendum, now known, released their right, title and interest in said passageway to the petitioner. While the petitionees have made claim to ownership of the fee in the twelve foot tract by adverse possession they have failed to substantiate that claim.'

The Court ruled on the basis of these findings that the plaintiff...