106 A.2d 389

ELIHU T. ADAMS v. GEORGE MELLIAN AND SUN VALLEY BEACH, INC.

No. 4292.Supreme Court of New Hampshire Rockingham.Argued April 7, 1954.
Decided July 1, 1954.

The Superior Court has no authority either by statute or common law to establish a boundary line where the location is in dispute between the parties unless one of them sustains the burden of proving its location.

The burden of proof is upon the petitioner who seeks in equity a determination of a boundary line over a disputed area of land

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admittedly in the possession of the petitionee but the ownership of which is claimed by the petitioner.

BILL IN EQUITY, by which the plaintiff seeks to have determined the boundary line between his property located in Seabrook and the adjoining property occupied by the defendant George Mellian and other relief. The record owner of the latter property, Sun Valley Beach, Inc., was made a party defendant and by agreement the answer of Mellian was also treated as its answer.

The area in dispute is situated westerly of Ocean Boulevard, a state highway running approximately parallel with the Atlantic Ocean. Plaintiff claims title to the land on which the Mellian house is located by virtue of a deed dated July 3, 1945, from the town of Seabrook conveying to him four and one half acres, more or less, of beach and marsh land taxed to Ezra Jackman heirs. Sun Valley Beach, Inc. claims title thereto by deed from Tavern Investment Corporation dated June 5, 1944.

Trial before a master who in his original report recommended that the petition be dismissed because the plaintiff had failed to satisfy the burden of proof in establishing where the boundary line was. In an additional statement “not made with the intent of changing or amending the findings or rulings made in the principal report,” the master established a boundary line between the parties on the assumption “that each party had an equal burden and that a duty was imposed upon the master to establish on the evidence an equitable distribution of the land in dispute.”

The Court (Grimes, J.) accepted the master’s report and decreed that the boundary line be established in accordance with the findings in the additional statement of the master.

Defendants’ exceptions to the denial of its motion that the report of the master be accepted and the additional statement dismissed and to the decree of the Court including and adopting said statement as part of the master’s report and decreeing the boundary line between the parties to be as established therein were reserved and transferred.

George R. Scammon and Lindsey R. Brigham (Mr. Brigham orally), for the plaintiff.

Richard E. Shute (by brief and orally), for the defendants.

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LAMPRON, J.

The plaintiff alleging a continuing trespass on his property by the defendant Mellian sought relief in equity because he had no adequate remedy at law. In his bill he asked that title to the premises in question be determined and that they be decreed to be his property. During the course of the hearing it was agreed by the parties that the boundary line between their respective properties was the end of the marsh land and the beginning of the beach land. Plaintiff’s land was westerly thereof and defendants’ land easterly. There remained however the problem of locating that line on the locus.

Having admitted in his bill that defendant Mellian was in possession of part of the land in controversy the burden was on the plaintiff to prove his ownership thereof. Jodoin v. Baroody, 95 N.H. 154; Susi v. Davis, 134 Me. 308; Cf. Currier v. Thompson, 70 N.H. 250.

After viewing the premises and hearing the testimony the master concluded that: “A determination by the master, on the evidence, as to whether or not the premises now occupied by the defendant, are included within those to which the plaintiff secured title in the deed from the town of Seabrook would be highly conjectural . . . The burden of establishing the fact that that possession is adverse to the plaintiff’s rightful claim to the property so occupied is upon the plaintiff. The master finds that that burden has not been met.” The record supports those conclusions and does not compel the contrary.

We know of no authority granted to the Superior Court under its general equity jurisdiction or at common law to establish a boundary line the location of which is in dispute between the parties, without one or the other party sustaining the burden of proving its location. Wendell v. Abbott, 43 N.H. 68, 78; 11 C.J.S. 697; See Bemis v. Bradley, 126 Me. 462.

Nor does R. L., c. 371, s. 3, grant such authority. Its purpose was “to remove the difficulty which prevented, at common law, one in possession of real estate from obtaining an adjudication against one who disputed, but did not disturb, his rightful possession by legal action or overt act.” Harvey v. Harvey, 73 N.H. 106, 108; Walker v. Walker, 63 N.H. 321, 324. It does not show any intention on the part of the Legislature to change the usual requirement imposed upon the parties of proving the facts on which they rely

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for relief. Nor does it impose upon the Court the duty nor grant it the right to establish a boundary line in the absence of such proof.

Although the course taken by the master constituted a practical approach to the problem it is not authorized by law. See 11 C.J.S. 697. The additional statement should therefore have been dismissed and a decree entered in compliance with the principal report. The case is therefore remanded to the Superior Court for such action.

Exceptions sustained.

All concurred.