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NOTICE: This opinion is subject to motions for rehearing under Rule 22 as well as formal revision before publication in the New Hampshire Reports. Readers are requested to notify the Reporter, Supreme Court of New Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any editorial errors in order that corrections may be made before the opinion goes to press. Errors may be reported by E-mail at the following address: reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 a.m. on the morning of their release. The direct address of the court's home page is: http://www.courts.state.nh.us/supreme. THE SUPREME COURT OF NEW HAMPSHIRE ___________________________ Merrimack No. 2008-598 NICHOLAS GILMAN, TRUSTEE OF THE NICHOLAS GILMAN TRUST v. LAKE SUNAPEE PROPERTIES, LLC Argued: April 7, 2009 Opinion Issued: June 17, 2009 Orr & Reno, P.A., of Concord (James P. Bassett & a. on the brief, and Mr. Bassett orally), for the petitioner. Sheehan Phinney Bass + Green, P.A., of Manchester (Christopher Cole and Courtney H.G. Herz on the brief, and Mr. Cole orally), for the respondent. DUGGAN, J. The petitioner, Nicholas Gilman, Trustee of the Nicholas Gilman Trust (Gilman Trust), appeals the decision of the Superior Court (Conboy, J.), granting the motion to dismiss of the respondent, Lake Sunapee Properties, LLC. We reverse and remand. The record supports the following facts. Each party owns an undivided one-half interest in a seventy-two acre parcel located on Davis Hill Road in New London. The property has approximately 2667 feet of frontage on Lake Sunapee and approximately 2200 feet of frontage on Davis Hill Road. Several

buildings are located on the property, including a residence, a boathouse and a studio. Charmain Byers-Jones and Bartram H. Woodruff inherited the property by will from their father, G. Bartram Woodruff, upon his death in 1969. Charmain Byers-Jones conveyed her one-half interest to the Gilman Trust by deed dated April 1, 1980. Bartram H. Woodruff conveyed his one-half interest to the Bartram Haines Woodruff Family Trust by deed dated October 15, 1986. The Bartram Haines Woodruff Family Trust then conveyed its interest to Lake Sunapee Properties, LLC (LSP) by deed dated May 14, 2004. Charmain ByersJones and her family have been the primary occupants of the property, using it as a seasonal residence. In February 2005, following years of disagreements between the brother and sister over the property, LSP filed a petition in probate court to partition the property. The Gilman Trust objected to a physical partition and requested a financial partition, permitting the Gilman Trust to purchase LSP's interest at fair market value. The Gilman Trust argued "that the real estate could not be equitably divided, and . . . that if there were to be a division of property, the equities required an unequal division in its favor." Following a bench trial, the Merrimack County Probate Court (Hampe, J.) ordered physical partition of the property. The probate court found that "[c]onsidering the size of this property and the extensive road frontage it is clear that [LSP] is entitled to have the property partitioned." The probate court noted that the parties submitted various proposals for subdivision at trial; it also noted, however, that "[n]either party presented the court with a [two] parcel subdivision plan although [LSP] presented a proposed . . . [thirteen] lot subdivision and a suggestion as to allotting the proposed lots in such a manner so that the parties could each have their share." The probate court found that this thirteen-lot subdivision "can be used to divide the interests of the parties." Based upon the evidence submitted, the probate court assigned values to each of the thirteen lots and then subdivided the property into Sublot A and Sublot B. Sublot A consisted of lots 1-7 and Sublot B consisted of lots 8-13. The probate court then found that because Byers-Jones and the Gilman family have been using the property as their summer home, they had "a greater emotional attachment to the property," and thus the probate court ruled that the Gilman Trust could elect either Sublot A or Sublot B and the other would go to LSP. Disagreeing with the division of land, the Gilman Trust appealed to the superior court seeking a jury trial pursuant to RSA 547-C:3 (2007) (repealed 2008). LSP filed a motion to dismiss, claiming that because there is no right to a jury trial in equitable matters, the Gilman Trust did not have a right to appeal to the superior court. The superior court ruled that a right to a jury

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trial is not guaranteed by the New Hampshire Constitution in a partition action, and granted LSP's motion to dismiss. The Gilman Trust filed a motion to reconsider, which was denied. This appeal followed. On appeal, the Gilman Trust argues it is entitled to a jury trial pursuant to Part I, Article 20 of the New Hampshire Constitution and RSA 547-C:3. Specifically, the Gilman Trust argues that: (1) the plain language of Part I, Article 20 provides for a jury trial in all controversies concerning property; (2) partition actions were tried by jury prior to the adoption of the New Hampshire Constitution; and (3) based upon the facts of this case, there are questions of fact that should be heard by a jury. RSA 547:3, I(k) (2007) (repealed 2008) vests the probate court with exclusive jurisdiction over petitions for partition pursuant to RSA Chapter 547C. RSA 547-C:3, however, provides: "In cases where a right to jury trial is guaranteed by the constitution, a person may, at the time judgment by the probate court is declared, appeal therefrom to the superior court." See RSA 547-C:2 (Supp. 2008). The Gilman Trust's statutory right to a jury trial is therefore conditioned upon whether it has a constitutional right to a jury trial. Part I, Article 20 of the New Hampshire Constitution governs jury trials in civil cases and provides: In all controversies concerning property, and in all suits between 2 or more persons except those in which another practice is and has been customary and except those in which the value in controversy does not exceed $1,500 and no title to real estate is involved, the parties have a right to a trial by jury. Initially, we address the Gilman Trust's argument that the plain language of Article 20 guarantees a right to a jury trial in all property matters. The Gilman Trust argues that the exception of "those in which another practice is and has been customary" does not qualify "all controversies concerning property." Thus, because partition is a controversy concerning property, there is a right to a jury trial in all partition actions. As the final arbiter of state constitutional disputes, we review the trial court's construction of constitutional provisions de novo. Town of Canaan v. Sec'y of State, 157 N.H. 795, 799 (2008). "To interpret the meaning of a constitutional provision, we examine its purpose and intent." Id. (brackets omitted). "In doing so, we will give the words in question the meaning they must be presumed to have had to the electorate when the vote was cast." Id. "The language used by the people in the great paramount law which controls the legislature as well as the people, is to be always understood and explained

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in that sense in which it was used at the time when the constitution and the laws were adopted." Id. Originally, Article 20 provided: In all controversies concerning property, and in all suits between two or more persons, except in cases in which it has been heretofore otherwise used and practiced, the parties have a right to a trial by jury; and this method of procedure shall be held sacred, unless in cases arising on the high seas, and such as relate to mariners wages, the legislature shall think it necessary hereafter to alter it. Laws 1788 at 12; see N.H. CONST. pt. I, art. 20 (1987); McElroy v. Gaffney, 129 N.H. 382, 386 (1987). We originally interpreted this article to provide a twopart analysis: first, whether the controversy concerned property or involved two or more persons; and second, if it did, whether the controversy was one that was resolved by a jury at the time of the constitution's adoption. See Cocheco Co. v. Strafford, 51 N.H. 455, 457 (1871). Article 20 has been amended three times, each in an attempt to limit the cases that can be heard by a jury. In 1877, the amendment inserted "and except in cases in which the value in controversy does not exceed one hundred dollars, and title to real estate is not concerned" preceding "the parties." N.H. CONST. pt. I, art. 20 (history) in 1 N.H. Rev. Stat. Ann. 320 (2003). The subsequent amendments modified the amount in controversy. Id. In 1960, the amount in controversy was increased to five hundred dollars. Id. There were other unsuccessful attempts to increase the amount in controversy, see, e.g., N.H. Const. Convention 577 (1974), prior to 1988, when Article 20 was amended and the value increased to $1,500. N.H Manual for the Gen. Ct. 365 (1989). Article 20 was also amended generally in 1988, with grammatical changes and word substitutions. Compare N.H. CONST. pt. I, art. 20 (1989), with N.H. CONST. pt. I, art. 20 (1987). The main purpose of the 1988 amendments, however, was to increase the amount in controversy. See C.A.C.R. 4 (1987); N.H.S. Jour. 2065 (1987); N.H.H.R. Jour. 1385 (1987). Thus, the original meaning of the article, and our analysis pursuant to it, has not changed. The two-part analysis articulated in Cocheco Co. and recently applied in Hair Excitement v. L'Oreal U.S.A., 158 N.H. 363, 368 (2009), remains the law. The Gilman Trust's argument that, based upon the plain language of Article 20, the exception of "those in which another practice is and has been customary" does not qualify "all controversies concerning property" is without merit. We conclude that if the controversy concerns property but was not resolved by a jury at the time of the adoption of the constitution, no right to a jury trial exists. See Cocheco Co., 51 N.H. at 457, 459 (holding tax abatement concerns property but no right to a jury trial exists); Backus v.

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Lebanon, 11 N.H. 19, 27 (1840) (holding no right to jury trial to determine damages for the taking of property for public use). In this case, there is no doubt that a proceeding for partition is a controversy concerning property. See, e.g., Foley v. Wheelock, 157 N.H. 329, 333 (2008). This satisfies the first part of the analysis. The inquiry, therefore, is whether there was a right to a jury trial in partition actions at the time the constitution was adopted in 1784. "To resolve whether a party has a right to trial by jury in a particular action, we generally look to both the nature of the case and the relief sought, and ascertain whether the customary practice included a trial by jury before 1784." Hair Excitement, 158 N.H. at 368 (quotation omitted). Part I, Article 20 "was a recognition of an existing right, guaranteeing it as it then stood and was practiced, guarding it against repeal, infringement, or undue trammel by legislative action, but not extending it so as to include what had not before been within its benefits." Id. (quotation omitted). Our analysis, therefore, requires a historical discussion. As LSP points out in its brief, partition actions have consistently been described as matters in equity tried without a jury. Unlike most actions in equity, however, partition is unique in that it was originally tried by jury. Therefore, we first examine the history of the right to a jury trial in New Hampshire, and then discuss the history of partition actions in England and New Hampshire, focusing upon the transfer of partition actions to equity. Our discussion of the right to a jury trial begins during the seventeenth century, when New Hampshire united with the Massachusetts Bay Colony. See 1 Province Period [Prov. Per.] 1679

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