City of New Haven v. Hotchkiss

• Decision Date: 12 August 1904
• Citation: 58 A. 753,77 Conn. 168
• Court: Connecticut Supreme Court
• Parties: CITY OF NEW HAVEN v. HOTCHKISS.

58 A. 753

77 Conn. 168

CITY OF NEW HAVEN

v. HOTCHKISS.

Supreme Court of Errors of Connecticut.

Aug. 12, 1904.

Appeal from Superior Court, New Haven County; William S. Case, Judge.

Action by the city of New Haven against George W. Hotchkiss. From a judgment for defendant, plaintiff appeals. Affirmed.

The following facts were found: The tract of land in question, containing about 11 1/2 acres, is situated in New Haven, and forms a part of West Rock Park. Before it was conveyed to the town of New Haven, in 1891, it was owned by William W. Hotchkiss and David D. Lambert as tenants in common. Shortly before said land was conveyed to said town, the board of park commissioners of the city of New Haven entered into negotiations with the said William W. Hotchkiss for the purchase thereof. Said commissioners being unwilling to pay the price asked by said Hotchkiss for a deposit of earth and mineral upon the land which said Hotchkiss claimed was a valuable paint mine, an agreement, set forth in the deed afterwards given by Hotchkiss, was entered into, by which he was to have the right to open and work said mine. On January 26, 1891, William W. Hotchkiss executed a warranty deed to the town of New Haven of "one undivided one-half part" of said tract, the stated consideration being "one dollar and other valuable considerations," which deed contained the following provision, immediately following the description of the land: "Reserving, however, to said William W. Hotchkiss, but for a period of not to exceed five years from the date of this deed, the right to open a supposed paint mine on said land, and to work the same thereafter as a paint mine to its full extent within the limits of the land herein conveyed, provided, however, that the town of New Haven may at any time within six years from the date of this conveyance, purchase and extinguish the right herein reserved, by paying therefor such sum as shall be agreed upon by three disinterested persons. * * *" Said deed further stated that the premises were conveyed "solely for the purposes of a public park forever." On the 27th day of January, 1891, said David B. Lambert executed a deed to the town of New Haven of "one undivided one-half part" of said tract. The language of this deed was the same as that of William W. Hotchkiss, excepting that it contained no reservation of any right to open or work said paint mine, nor any provision concerning such mine, or reference to it. Both of said deeds were delivered to the park commissioners by said William W. Hotchkiss. The consideration for them was paid to him, and the negotiations for the purchase of said property by the park commissioners were with him, and not with said Lambert. The town and city governments of New Haven were consolidated in December, 1897. In the spring of 1895 said William W. Hotchkiss and his son George W. Hotchkiss, the defendant, formed a partnership for opening and working said paint mine, and in pursuance thereof "did open and work said paint mine." During the spring of 1895 they set up machinery for grinding and preparing the paint, and removed from the mine and prepared for the market about 200 barrels of the paint material. The defendant was engaged in selling the paint made from such material until his father died, in November, 1896, when the paint remaining and also said machinery were sold as a part of the estate of said William W. Hotchkiss. The only persons interested in the settlement of said estate were the defendant and the widow of William W. Hotchkiss. They divided the estate between them by agreement, but no division or distribution of the paint mine was made. It was necessary to thoroughly test said paint as to its durability before any extensive market could be found for it. It has been so tested during the past eight years, and seems to be of good quality and marketable, and said mine is valuable. After the spring of 1895 no work was done at said mine until April, 1903, when the defendant entered upon the land and began taking materials from said mine, and was in May, 1903. restrained by the temporary injunction issued in this action. No steps have been taken by either the town or city of New Haven to purchase the right to open and work said mine as provided in said deed. Upon these facts the plaintiff claimed in the trial court that the language of the deed of William W. Hotchkiss created in him no estate in the land, but only a right to acquire such estate; that the acts of William W. Hotchkiss in removing materials from the mine in 1895 were not sufficient to legally create or confirm in him a right or estate which survived the five-year period named in his deed; that the omission to work the mine, as stated in the finding, was, in law, such a failure to maintain title, or such an abandonment of any existing right, as justified the plaintiff, at the end of six years from the delivery of the deed, in asserting exclusive ownership; and that the defendant has no interest in said mine or said land. The trial court ruled that the provision in the deed of William W. Hotchkiss was an exception. The judgment file states that the issues were found for the defendant; that it is adjudged that the defendant is the owner of the paint mine, except for any dower interest in his mother; that the defendant and his mother, and their heirs and assigns, have the right to work said mine, etc.; and that the temporary injunction is dissolved.

Leonard M. Daggett, for appellant.

Henry G. Newton and Harrison Hewitt, for appellee.

HALL, J. (after stating the facts). The purpose of this action is...