Rothrock v. Loon Island
| Decision Date | 06 February 1951 |
| Docket Number | No. 3937,3937 |
| Citation | 96 N.H. 421,78 A.2d 512 |
| Parties | ROTHROCK et al. v. LOON ISLAND et al. |
| Court | New Hampshire Supreme Court |
Cooper, Hall & Cooper and John M. Brant, all of Rochester (Mr. Brant orally), for the plaintiffs.
Gordon M. Tiffany, Atty. Gen., and Warren E. Waters, Asst. Atty. Gen. (Mr. Waters orally), for the State.
Since the State cannot be sued in our courts without its consent and there is no statute, general or special, authorizing the present proceeding, it must be dismissed as against the State. Bow v. Plummer, 79 N.H. 23, 104 A. 35; State v. Kinne, 41 N.H. 238; St. Regis Co. v. N. H., etc., Board, 92 N.H. 164, 26 A.2d 832; Klinger v. Cartier, 96 N.H. 180, 71 A.2d 786. Because this principle of sovereign immunity may prevent the complete adjudication of property rights, many states have enacted statutes allowing courts to make a final determination in any case where the state asserts a lien, title or claim to the property in dispute. There is no such statute in this State. Cf. R.L. c. 87, § 52; annotation 113 A.L.R. 1511. Unless the State seeks to determine its alleged title to Loon Island by proceeding in its own right or the plaintiffs are authorized to do so by general or special legislation, the question transferred in this case cannot be answered.
Nothing said in this case is intended to express agreement with the contention that the admitted title of the State to the public waters of Silver Lake, R.L. c. 182, §§ 17, 18, and the soil thereunder 'carries with it title to Loon Island.' When that question is to be determined, it will have to be considered along with the legislative and judicial recognition that appears to have been given to the private ownership of certain islands in the lakes and ponds of New Hampshire for more than a century. See State v. Hutchins, 79 N.H. 132, 133, 105 A. 519, 2 A.L.R. 1685; Briefs & Cases 296-147 and 327-563; Laws 1907, c. 161; 7 N.H.Laws 665; Cheever v. Roberts, 82 N.H. 289, 133 A. 22; Dana v. Craddock, 66 N.H. 593, 32 A. 757; Laws 1891, c. 51; Fry, New Hampshire as a Royal Province (1908) 312, 313; XXIX N.H.State Papers (Batchellor 1896) 585, 586 and appended map; XXVIII Id. preface 6; State v. 4.7 Acres of Land, 95 N.H. 291, 62 A.2d 732; Laws 1939, c. 191, as amended. If record or documentary title involving the Masonian proprietors should become material, reference may be had to the boundary dispute in Cushing v. Miller, 62 N.H. 517, 518, 519, in which case a...
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Shirley v. New Hampshire Water Pollution Commission
...So far as this action is against the State, it may not be maintained because the State has not consented thereto. Rothrock v. Loon Island, 96 N.H. 421, 422, 78 A.2d 512, and cases cited; Wiseman v. State, 98 N.H. 393, 101 A.2d 472. Since it is claimed however that the Water Pollution Commis......
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State v. George C. Stafford & Sons, Inc.
...of R.L. c. 269, §§ 27-29. While the defendant could not have compelled the State to determine the boundary line (Rothrock v. Loon Island, 96 N.H. 421, 78 A.2d 512), the State through the Governor and Council would have authority to settle a boundary dispute. The effect of this might well be......
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West Park Shopping Center, Inc. v. Masheter
...had no jurisdiction over the defendant or the subject matter since the suit was in effect a suit against the state. In Rothrock v. Loon Island, 96 N.H. 421, 78 A.2d 512, an action to quiet title to an island located in a lake which was one of the public waters of the state, it was held that......
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Moore v. Dailey
...Justice. It is too well established to require extended citation that the State can not be sued without its consent. Rothrock v. Loon Island, 96 N.H. 421, 78 A.2d 512. It also seems clear under our law that the trustee process here is actually a suit against the State, Klinger v. Cartier, 9......