183 A. 17 | Conn. | 1936
In 1933, the Legislature passed a bill which was duly approved by the Governor (Special Acts, 1933, p. 998) authorizing Jesse S. Miller to bring *45 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 12th, 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 12th, 1889, Joseph Hallberg, the owner of a farm of one hundred and thirty 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 one hundred and sixty 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 acknowledge as are deeds of land and recorded in the land records of East Hampton January 24th, 1889. On July 12th, 1889, Murphy quitclaimed his interest in the premises to Calvin A. Stevens by a deed which was duly recorded July 18th, 1889. On June 19th, 1924, Stevens' interest was distributed to his heirs by an instrument recorded April 3d 1925. In February and September, 1930, the interest of these heirs was conveyed to the plaintiff by two deeds recorded May 9th, 1932.
Meanwhile, by a quitclaim deed, dated September 15th, 1915, and recorded September 22d 1915, in the Chatham land records, Joseph Hallberg conveyed the *46 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 fifteen 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 12th, 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 forty-five years and no use of the right of way having been made for a period of twenty-five 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 *47
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.,
Whether in a given case the conveyance is to be regarded as creating a fee in the minerals under the surface or as simply an incorporeal hereditament entitling the grantee to mine and remove them and to give no right in them until mined is to be determined not so much from the form of the instrument as by the intention of the parties as disclosed by the instrument of conveyance read in the light of the surrounding circumstances. Farmington v. Riley,
In the trial court and here, the appellant claims that the issue of abandonment was not raised by the pleadings. *49 In the answer of the State, in a special defense, it was alleged in substance among other things that any right of the plaintiff or his predecessors in title in the property had "long since ceased and terminated." The answer fairly asserted that if the plaintiff or his predecessors in title ever had any rights, they had been relinquished and abandoned. The denial of these allegations of the special defense by the plaintiff in a reply, raised the issue of abandonment and the claim of variance is not sustained.
In this jurisdiction, abandonment is a question of fact. Richardson v. Tumbridge,
There is no error.
In this opinion the other judges concurred.