concurring specially. I agree with the majority that a jury trial likely was available at law to property holders seeking compulsory partition before adoption of the 1784 State Constitution. I write separately to discuss the contours of such right on remand. In addition to the normal pretrial procedures for screening triable issues, in my opinion the presiding justice has the authority pursuant to Superior Court Rule 73 to set aside the jury’s decree if it offends the traditional notions of equity. See RSA 547-C.-29 (2007) (listing equitable considerations); cf. RSA 547-C:10 (2007) (stating “the court shall have full power to determine the respective interests of all the parties”). See generally A.C. FREEMAN, COTENANCY AND PARTITION: A Treatise on the Law of Co-ownership as it Exists Independent of Partnership Relations Between the Co-owners § 505 (2d ed. 1886).
Whatever its genesis, it is undisputed that partition is now a matter calling heavily upon the court’s equity powers. Foley v. Wheelock, 157 N.H. *37329, 333 (2008); DeLucca v. DeLucca, 152 N.H. 100, 104 (2005); Gordon v. Gordon, 117 N.H. 862, 864 (1977); Hale v. Jaques, 69 N.H. 411, 412 (1898). While the pre-1784 jury trial right in partition actions developed in New Hampshire only at law, elsewhere the equitable jurisdiction over such matters became well-established. Crowell v. Woodbury, 52 N.H. 613, 615 (1873); Loyd, Partition, 67 U. Pa. L. Rev. 162, 168-69, 173 (1919). The state’s functional lack of an effective and independent judiciary in 1784 cannot be gainsaid, J. Reid, Legislating the Courts: Judicial Dependence in Early National New Hampshire 9,24 (2009), and likely accounted for the lack of equitable powers in New Hampshire courts, Copp v. Henniker, 55 N.H. 179, 210-11 (1875); Crowell, 52 N.H. at 615. Doubtless had our courts been vested with such power, the jury’s role in partitions would have been narrower. See Copp, 55 N.H. at 211; 1 J. POMEROY, A Treatise on Equity Jurisprudence § 116, at 136 (4th ed. 1918) (jury is ill-equipped “to frame and deliver a decree according to the doctrines and methods of equity . . . .”).
Although later acts governing partition vested the court with certain equitable power, see Crowell, 52 N.H. at 616, such legislative delegations typically cannot alter the substantive pre-1784 jury trial right. See Copp, 55 N.H. at 198. Other constitutional provisions may, however, and the superior court’s general equity power became constitutionally vested in 1966 as part of the “judicial power” conferred by Part II, Article 72-a of the New Hampshire Constitution. Cf. U.S. CONST, art. Ill, § 2 (“The judicial Power shall extend to all Cases, in Law and Equity . . . .”); Richardson v. Sport Shinko (Waikiki Corp.), 880 P.2d 169, 182 (Haw. 1994).
Consequently, I do not read the majority’s opinion as relieving the court’s duty to set aside an inequitable remedy. See Copp, 55 N.H. at 211 (right to jury trial in equity case is proper only “under the direction of the court”); Hampton v. Palmer, 99 N.H. 143, 146 (1954) (permitting equity to assume jurisdiction when the constitutional jury trial at law provides incomplete relief); FREEMAN, supra § 515 (stating that court of equity will intervene to prevent inequitable partition at law); cf. Baltimore & C. Line v. Redman, 295 U.S. 654, 659 (1935) (legal rulings made after jury verdict not violative of Seventh Amendment right to jury trial).