Miller v. State

• Decision Date: 08 January 1936
• Citation: 183 A. 17,121 Conn. 43
• Court: Connecticut Supreme Court
• Parties: MILLER v. STATE.

183 A. 17

121 Conn. 43

MILLER v. STATE.

Supreme Court of Errors of Connecticut.

January 8, 1936

Appeal from Superior Court, Hartford County; Arthur F. Ells, Judge.

Suit by Jesse S. Miller against the State of Connecticut to determine the rights of the parties in certain rock rights upon land owned by the State in East Hampton, brought to the Superior Court in Hartford County and tried to the court. Judgment for defendant, and plaintiff appeals.

No error.

Cyril Coleman, of Hartford, for appellant.

Harry L. Brooks, Asst. Atty. Gen. (Edward J. Daly, Atty. Gen., on the brief), for the State.

Argued before MALTBIE, C.J., and HAINES, HINMAN, BANKS, and AVERY JJ.

AVERY Judge.

In 1933, the Legislature passed a bill which was duly approved by the Governor (Sp. Acts 1933, p. 998) authorizing Jesse S Miller to bring suit against the State for the purpose of having decided certain disputed claims between him and the State in regard to certain rock rights described in a deed from Joseph Hallberg to John G. Murphy, dated January 12, 1889, and recorded in the East Hampton land records. The present suit was brought by the plaintiff under the authority of this act.

The pertinent facts found by the court are as follows: On January 12, 1889, Joseph Hallberg, the owner of a farm of 130 acres more or less in the town of Chatham (now East Hampton) gave to John G. Murphy, his heirs and assigns a quitclaim deed of a certain described piece of land in Chatham, containing 160 acres more or less, containing the following clause: " The intent and purpose of this deed being to convey to the said Grantee, all the rock rights and privileges on and in said land and also a right of way over all parts of said land for the purpose of quarrying, blasting, removing, hauling or otherwise working said rocks in such manner as the said Grantee may deem best but the fee in said land is to remain in me, the said Releasor, subject to said rights and encumbrances." The instrument was witnessed and acknowledged as are deeds of land and recorded in the land records of East Hampton January 24, 1889. On July 12, 1889 Murphy quitclaimed his interest in the premises to Calvin A. Stevens by a deed which was duly recorded July 18, 1889. On June 19, 1924, Stevens' interest was distributed to his heirs by an instrument recorded April 3, 1925. In February and September, 1930, the interest of these heirs was conveyed to the plaintiff by two deeds recorded May 9, 1932.

Meanwhile, by a quitclaim deed, dated September 15, 1915, and recorded September 22, 1915, in the Chatham land records, Joseph Hallberg conveyed the farm to the State of Connecticut. The habendum clause of this deed reads: " To Have and To Hold the premises with all their appurtenances." The premises so conveyed became a part of Hurd Park under the control of the state park and forest commission, and it was from that time owned, held, and used by the state for public use and visited annually by thousands of persons; and the plaintiff had means of notice that the state used all the land as a state park for more than 15 years prior to the recording of the plaintiff's deed to the rock rights mentioned. The appellant has requested certain additions and corrections to the finding, but no change can be made whereby the position of the appellant will be materially advantaged.

The trial court concluded that the rights conveyed by Hallberg to Murphy by the deed of January 12, 1889, gave no title to the minerals or rocks in or on the land, but that the rights were limited to the privilege of quarrying, blasting, removing, hauling, or otherwise working the rocks and minerals, but the rocks and minerals, not having been removed, and having remained in place, were part of the fee; that no entry having been made upon the land for 45 years and no use of the right of way having been made for a period of 25 years, and the state having been in possession of the premises for more than the period of limitation and its possession having been open, notorious, adverse, hostile, and exclusive as against the plaintiff and all other parties, there was an abandonment of any rights which the plaintiff and his predecessors in title had to quarry and remove the rocks upon the property. The ultimate question involved in this appeal is the correctness of these conclusions of the trial court.

" The owner of land may give to another a right to extract minerals from the land for a period of time or in perpetuity, the person to whom the right is given having no interest in the minerals until they are extracted." 1 Tiffany, Real Property (2d Ed.) § 254; State v. Roden Coal Co., 197 Ala. 407, 412, 73 So. 5; Genet v. President, etc., of Delaware & Hudson Canal Co., 136 N.Y. 593, 603, 32 N.E. 1078, 19 L. R. A. 127; Harvey Coal & Coke Co. v. Dillon, 59 W.Va. 605, 53 S.E. 928, 6 L. R. A. (N. S.) 628, 636, 637; Wolfe County v. Beckett, 127 Ky. 252, 105 S.W. 447, 17 L. R. A. (N. S.) 688, 693; Coolbaugh v. Lehigh & Wilkes-Barre Coal Co., 213 Pa. 28, 62 A. 94, 4 L. R. A. (N. S.) 207. In Sanford's Appeal, 75 Conn. 590, 593, 594, 595, 54 A. 739, 741, we said: " The owner of land may therefore convey the surface or soil in fee, reserving or excepting either an estate in the minerals, or a right to mine them; he may convey an estate in fee in the minerals separate from the soil; or, while retaining in himself the property in the minerals until removed and in possession of the grantee, he may either grant the right or privilege to mine for them, or may lease for a term of...