Town of Tilton v. Sharpe

• Decision Date: 28 June 1930
• Citation: 151 A. 452
• Parties: TOWN OF TILTON v. SHARPE.
• Court: New Hampshire Supreme Court

151 A. 452

TOWN OF TILTON

v. SHARPE.

Supreme Court of New Hampshire. Belknap.

June 28, 1930.

Transferred from Superior Court, Belknap County; Matthews, Judge.

Bill in equity by the Town of Tilton against David P. Sharpe, in which defendant filed a counter petition. Transferred on defendant's exceptions to findings, orders, and denial of motion to dismiss plaintiff's bill.

Case discharged.

Bill in equity, to enjoin the defendant from constructing a driveway for motor vehicles across the sidewalk in front of his filling station on Main street in Tilton, and counter petition, by way of answer, praying that the plaintiff be restrained from so maintaining said sidewalk as to obstruct passage from the premises to the street. This is the same case reported in 84 N. H. 43, 146 A. 159. It was there held that an order making permanent a temporary injunction against the defendant, and denying his petition, was error for the want of a finding of the essential fact that the proposed use of the property was unreasonable. The case was remanded to the superior court for a finding upon the question of reasonable use, or for such further hearing on that issue as justice might require. A hearing has since been had at which additional evidence was presented by both parties. Upon the evidence submitted at both hearings, further findings of fact have been made, and the former orders affirmed. A view was taken, and photographs and a plan are made part of the record. Transferred by Matthews, J., upon the defendant's exceptions to the findings, to the orders, and to the denial of his motion to dismiss the plaintiff's bill. The facts which appear in the opinion will be better understood by reference to the plan:

Thomas P. Cheney and Stanton Owen, both of Laconia, for plaintiff.

Robert W. Upton, of Concord, for defendant.

SNOW, J.

The trial justice closes his recital of the facts found with the general finding and conclusion: "Upon all the evidence at both hearings the court finds that, while an entrance near the. corner of School and Main streets as proposed by the defendant and an exit on Main street are necessary in order to enable the defendant to transact the business which he proposes to transact profitably, such use of the property would be accompanied by unusual hazard or danger of accidents to pedestrians and operators of motor vehicles; that, in view of all the circumstances the danger of accident would be so great that the proposed use of the property would be unreasonable and would constitute a public nuisance." To this the defendant specially excepts because both the conclusion and such general finding purport to be based upon matters in evidence not found and reported as facts, and are therefore improper and unwarranted. The defendant seasonably requested the court to give his decision in writing, stating the facts found and his rulings of law, as required under P. L. c. 316, § 12. This exception therefore presents preliminary questions as to the measure of the defendant's rights under the statute and whether they have been denied.

It was not a common-law function of the court to make special findings of fact. The rule was, "Ad questiones facti non respondent judices." Broom's Leg. Max (9th Ed.) p. 70; First National Bank v. Bank, 152 Ill. 296, 301, 38 N. E. 739, 26 L. R. A. 289, 43 Am. St. Rep. 247. The statutory requirement first appeared in an act remodeling the judiciary. Laws 1855, c. 1659. After authorizing the trial of civil actions in some cases by the court, section 27 of the act provides that, "The decision of the court shall be given in writing if either of the parties desire it, stating first the facts found and then the conclusion of law upon them which shall be filed and recorded," and that, "either party may except to the decision upon any matter of law * * * involved in such decision, in the same manner, and with the same effects, as upon a trial by jury." The statute was made to apply to the trial of issues in equity by G. L. c. 208, § 5 (1878). While the language of the statute has undergone changes in phraseology in subsequent re-enactments (G. S. c. 189, §; 5 Laws 1870, c. 2, § 3; G. L. c. 208, § 5; P. S. c. 204, § 10 and P. L. c. 316, § 12), no change in the meaning appears to have been intended. The finding of the facts which was formerly discretionary with the court was made mandatory by the statute When seasonably requested. The design of the statutory procedure was to provide a simple and expeditious method of presenting to the law court the questions of law arising on the facts proven, as distinguished from the evidence. Burnham v. McQuesten, 48 N. H. 446, 451; Moynihan v. Brennan, 77 N. H. 274, 90 A. 964; Peebles v. Rand, 43 N. H. 337, 342. Under the statute the findings of the court stand precisely as would like special findings by a jury (Willard v. Stevens, 24 N. H. 271, 276; Richardson v. Weare, 62 N. H. 80), or the findings of a referee. Wilson v. Atwood, 81 N. H. 61, 63, 122 A. 797; Eastern Elec. Co. v. Ekdahl Bros., 83 N. H. ——, 150 A. 549. In either case the facts proven and found take the place of the evidence which becomes immaterial. The party invoking the statute is entitled to have the facts found separately and with such fullness and detail as to enable him to fairly test the correctness of the legal conclusions. 26 R. C. L. Trial §§ 98, 99. A record made upon the statutory request is presumed to contain all the proven facts which the court deemed material and essential to his decision so as to present the question whether the judgment is a necessary conclusion therefrom.

The question of reasonable use is one of fact, but the fact, when found, is generally determinative of the rights of the parties. True v. McAlpine, 81 N. H. 314, 125 A. 680. A use is legal or illegal according as it is reasonable or unreasonable. The finding here that the use is unreasonable is therefore, for all practical purposes, tantamount to a ruling. Eastern Elec. Co. v. Ekdahl Bros., supra. In some cases a finding as to the reasonableness of a use accompanied by a mere description of the physical situation would be a sufficient compliance with the requirements of the statute, while in other cases such a limited record would be a practical denial of the party's rights thereunder. Under the circumstances presented by the record here, as respects the proposed entrance at the point B (see plan), the mere recital of the finding that the proposed use would be unreasonable followed by a decree, manifestly would not accord the defendant the rights which the statute contemplates. While the statement specially excepted to is enigmatical, it is capable of an interpretation consistent with the performance of the court's statutory duty. The scheme and context of the report, in view of the statutory requirement, would justify the interpretation that the assertion "that the proposed use would be unreasonable and would constitute a nuisance" is stated as a deduction from the other facts reported, and that the record is intended to present the question of law whether such conclusion is supported by the special facts found. On this view the procedural question raised by the defendant's exceptions would become immaterial and the case would then be here on the facts and not on the evidence. Ordinarily when the record of a transferred case is ambiguous, the appropriate procedure is to refer it back for amendment. Gerry v. Neugebauer, 83 N. H. 23, 136 A. 751, and eases cited. But in view of the urgency here for a prompt decision, the case will be considered on this interpretation of the record, leaving it to the parties, or either of them, to apply for such an amendment, showing this interpretation to be inconsistent with the trial court's intended meaning. In the event of obtaining such an amendment, the additional subsidiary facts found by the court and entering into the result reached by him will constitute the amendment.

The defendant's land, on which he has constructed a gasoline filling station, is a corner lot having a southerly frontage of forty-six feet on Main street and an easterly frontage of ninety feet on School street. The defendtnt's proposal, as stated on the present transfer, is: (1) To serve south going traffic on School street by an entrance twenty feet in width near the northerly line of his premises at a point designated A and by an exit on Main street of like width designated C, the westerly line of which shall be at least ten feet easterly from the building on the adjoining lot to the west; (2) to serve west going traffic on Main street by an...