Sheris v. Thompson, 6080

• Decision Date: 02 November 1971
• Docket Number: No. 6080,6080
• Parties: Edward SHERIS v. Archie THOMPSON et al.
• Court: New Hampshire Supreme Court

Page 268

295 A.2d 268

111 N.H. 328

Edward SHERIS v. Archie THOMPSON et al.

No. 6080.

Supreme Court of New Hampshire.

Nov. 2, 1971.

Leonard, Leonard, Prolman & Prunier, Nashua, and Thomas J. Wilgren, Boston, Mass. (Mr. Wilgren orally), for plaintiff.

McLane, Carleton, Graf, Greene & Brown and Peter B. Rotch, Manchester, (Mr. Rotch orally), for defendants and intervenors.

GRIMES, Justice.

In this real property dispute, the plaintiff seeks a new trial on the grounds of fraud and that he did not receive a fair trial because he was required to proceed with substitute counsel after his original counsel withdrew during trial.

The case began with a petition in which plaintiff claimed to own certain property upon which the defendant Thompson had built a house and had begun construction of another. The defendant Draper, a surveyor, was alleged to have trespassed on plaintiff's property in the process of making a survey for defendant Thompson. Plaintiff prayed that his title be established and that the defendants be restrained from further trespassing.

The plaintiff is the owner of three contiguous tracts of land in Wilton. The gist of plaintiff's claim is that the location of these tracts on the ground is such as to include the land claimed by Thompson. The owners of several other lots were allowed to intervene on the basis that plaintiff's claim posed a threat to their titles also.

The case was heard before a Master (Harrison E. Smith, Esquire), who found for the defendants. His recommendations were approved by the court and a decree entered accordingly on September 25, 1968. Thereafter, plaintiff's motion to reopen, alleging newly-discovered evidence, was denied by the court. Plaintiff then moved to reopen on the basis of a new survey which it was claimed would have aided substitute counsel if it had been available to him at the trial. This motion was denied by the court after hearing and study of a deposition, and plaintiff then filed a bill of exceptions in which he claims not to have had a fair trial. The matter was transferred here on a reserved case by the Superior Court (Leahy, C.J.).

The evidence before the master began on June 24, 1968 following a view. The evidence reveals that the land of all the parties lies southerly of Stoney Brook, so-called which in various deeds is referred to as 'the river.' Defendant Thompson's property lies southerly of plaintiff's land. It appeared through the testimony of plaintiff's first witness, a lawyer title abstractor, that the description in the deed to the tract making up the northeast portion of plaintiff's land describes its easterly boundary as running generally northerly 'to the river, at marks 'LH' on a rock.' It also appeared that essentially the same description appears in the deeds in plaintiff's chain for over one hundred years. No one claims that the location of the river has changed in the last one hundred years. The master stated that he had observed the 'lH' rock on the river. Using this bound and using the courses and distances in plaintiff's deeds, his land does not include that which is claimed by the defendant. Plaintiff, however, claims that the 'LH' rock seen by the master at the river is not his bound. His theory is postulated upon his location of a lot line in the original layout of the town, and using as a starting point for the above-mentioned tract a corner of walls several hundred feet southerly of the corner used by the defendants. Using the corner of walls selected by the plaintiff and running the courses and distances in his deed, the master found that his easterly sideline falls five hundred feet short of the river. There was evidence that if one starts at the corner of walls selected by the defendants, the courses and distances lead directly to the 'LH' rock at the river. The plaintiff claims the true bound is another rock with the letters 'LH' which has been defaced. The master considered this claim and rejected it. There was ample evidence, including courses, distances and monuments, in plaintiff's and other deeds to support the master's finding as to the location of the 'LH' bound.

The master found that the plaintiff had had four different surveyors survey his land and that 'the surveyors engaged by Petitioner, Dr. Sheris, all testified consistent with the testimony of Defendant Draper . . .' whose plan the master found showed the true location of the plaintiff's land as contended by the defendants.

About midday on June 27, the fourth day of trial, after plaintiff's witness, Hyde, a surveyor, had been partially examined, plaintiff's counsel requested a continuance of the case and asked leave to withdraw 'for reasons I have expressed today.' The master asked plaintiff if he heard what was said and on receiving an affirmative answer granted a continuance until 9 o'clock the next morning, adding: 'at which time Dr. Sheris will be here with an attorney or he will be defaulted.'

The next item in the record shows that new counsel, Mr. Richard Leonard, appeared at 9 O'clock on July 1, 1968 and stated that he had been requested to represent the plaintiff on June 28. He contended that he had insufficient information to continue with the case at that time. After some discussion, the master continued the case until July 3 for another view and then to July 8 for the taking of evidence. The record for July 8 reveals that Mr. Leonard, without objection, proceeded to continue the examination of the surveyor Hyde whose testimony on cross-examination was found to support the defendants' claim. The case proceeded each day until July 11 when plaintiff presented the testimony of a surveyor, Pfeffer, who had been engaged...