Rautenberg v. Munnis

• Decision Date: 30 April 1968
• Docket Number: No. 5717,5717
• Citation: 241 A.2d 375,109 N.H. 25
• Court: New Hampshire Supreme Court
• Parties: Carl N. RAUTENBERG et al. v. Albert MUNNIS et al.

Page 375

241 A.2d 375

109 N.H. 25

Carl N. RAUTENBERG et al. v. Albert MUNNIS et al.

No. 5717.

Supreme Court of New Hampshire.

Argued Feb. 7, 1968.

Decided April 30, 1968.

Wescott, Millham & Dyer, Laconia, (Harold E. Wescott, Laconia, orally), for plaintiffs.

Upton, Sanders & Upton, Concord (J. Gilbert Upton, Concord, orally), for defendants.

DUNCAN, Justice.

This is a motion by the plaintiffs for a new trial in an action to determine a boundary line. The case has twice been before this court, Rautenberg v. Munnis, 107 N.H. 446, 224 A.2d 232; Rautenberg v. Munnis, 108 N.H. 20, 226 A.2d 770. After the last cited opinion was handed down the motion for a new trial referred to in the first was heard by the Superior Court (Grant, J.) and denied.

The motion is founded upon the discovery of new evidence, in the form of a plan dated 1902, which the plaintiffs allege 'clearly indicates that the boundary line * * * is as claimed by the petitioners.' The Trial Court found that the parties were not at fault in failing to discover the plan prior to the original trial, but also found that the plan 'only confuses the issue and falls short of the requirements of RSA 526:1.' The questions raised by the plaintiffs' exception to denial of this motion were reserved and transferred by the Presiding Justice.

The findings which are prerequisite to the granting of a new trial under RSA 526:1, on the ground of newly discovered evidence, have long been clearly defined. A new trial will be considered to be equitably required only when the following conditions are met: (1) that the moving party was not at fault for not discovering the evidence at the former trial; (2) that the evidence is admissible (Small v. Chronicle & Gazette Publishing Company, 96 N.H. 265, 267, 74 A.2d 544), material to the merits, and not cumulative; and (3) that it must be of such a character that a different result will probably be reached upon another trial. McGinley v. Maine Central Railroad Co., 79 N.H. 320, 109 A. 715; Haney v. Burgin, 106 N.H. 213, 218, 208 A.2d 448.

The issue presented by the motion is one of fact for the Trial Court, and its decision is binding in this court unless it can be said to conclusively appear that a different result is probable, so that the Trial Court's conclusion is clearly unreasonable. Cf. McGinley v. Railroad, supra, 79 N.H. 322, 109 A. 715.

As appears from the opinion in Rautenberg v. Munnis, 108 N.H. 20, 226 A.2d 770, supra, the dispute centers about a common boundary line which constitutes the plaintiffs' northerly boundary and the defendants' southerly line. The westerly terminus of the line is not in dispute. The easterly terminus was described in the deed to the plaintiffs in 1950 as a 'pointed boulder at the shore with an iron pipe driven on the shore side.' This they claimed at the former trial was at a location then referred to as 'point D.' The defendants, whose predecessor in title was grantee under the first conveyance out by Jones, the common grantor of the parties, claim that the easterly terminus was an 'iron set in a large boulder near high water mark at the shore' as specified in the deed from Jones to Flanders. Their evidence was that this point, called 'point K' was marked by a drill hole in such a boulder, in which the 'iron' had never been set. Point K was about 150 feet southerly along the shore from point D. In finding point K to be the true bound, the Court at the first trial found 'persuasive' the similarity between the drill hole in the boulder at that point, and the drill hole in the ledge at the northwest corner of the defendants' tract, which was an unquestioned monument there.

The plan which the plaintiffs now offer as newly discovered evidence is a blueprint entitled 'Plan of Broad View Park on Shore of Lake Winnipesaukee, Alton, N.H.' It bears the date 1902 and the name L. E. Scruton, C. E., who was an engineer, now deceased. The plan shows 97 shore lots, number 21 of hwich includes 'Rum Point,' and bears the name 'Flanders' which appears to have been partially erased. This lot the plaintiffs contend is the lot described in the deed from Jones to the defendants' predecessor Flanders which was dated December 2, 1901 and recorded in October, 1903. It is not disputed that the plan was never recorded, and is not referred to in any deed involved in the litigation.

A comparison of the plan with the description in the Flanders deed discloses a number of discrepancies. While both indicate an iron hub as a monument at the northwest corner and the same measurement southwesterly to a 'spotted pine,' the plan...