Summary
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 the doctrine of sovereign immunity required a dismissal.
Summary of this case from Shopping Cen. v. MasheterOpinion
No. 3937
Decided February 6, 1951
In the absence of legislative consent, a bill in equity cannot be maintained as against the State to quiet a title to an island claimed by adverse possession and situated in one of the public waters of the State.
BILL IN EQUITY, to quiet title to Loon Island located in Silver Lake, one of the public waters of the State (R. L., c. 182, s. 17), in the town of Madison and the County of Carroll in this State. The following case was reserved and transferred by Goodnow, C.J.
"The plaintiffs are the owners of sixty (60) acres of land on the westerly shore of Silver Lake in the Town of Madison, this State. This action is a part of the same action brought by the plaintiffs against divers persons to clear title to their shore properties, in which the State of New Hampshire was named as a party defendant with respect to Loon Island. As to the shore properties, this court has already decreed their title to be clear and all clouds removed.
"The plaintiffs have no deed to the island but claim their title by prescriptive use. The State claims title to the island because it was never granted under the common law of this State and by virtue of chapter 182, s. 17, R.L. (1942).
"At the time of the hearing on the other issue the case was continued as to Loon Island and the question is now transferred without ruling upon the following statement of facts:
"Silver Lake is a body of water of more than twenty (20) acres. Loon Island is a small island approximately one hundred (100) feet in length, fifty (50) feet in width, rising out of the water at its highest point some twelve (12) feet, sparsely wooded and rocky, never cultivated or used for agricultural purposes, situate about four hundred (400) feet due east from plaintiffs' nearest shore line and about seventeen hundred (1,700) feet due north from Plaintiffs' Point House;
"Plaintiffs' property, lying along the westerly shore for a distance of some two thousand (2,000) feet, has been used and operated by the plaintiffs and their predecessor, Blanche Carstens, since 1917 as a girls' camp. Its shore line, beginning at a point north of the island, extends southerly for about sixteen hundred (1,600) feet, where turning easterly it forms a bay, within the limits and along the shores of which the plaintiffs carry on much of their camp activities, including boating and swimming. As early as 1920 Blanche Carstens began to use this island in connection with the program for picnics and overnight sleep-outs, and erected a windbreak thereon, putting a sign on it reading, `This hut placed here by Camp Allegro for the use of all who wish to use this island. Will you help us preserve it;'
"The Town of Madison has never levied any assessment upon the island.
"The State of New Hampshire, through its Forestry Department, demands of the plaintiffs that they recognize, if they continue to use the same, the State's right to control by acceptance of a lease for a nominal consideration.
"Since the plaintiffs can acquire no title through [against] the State by prescription, the question as to the State's title is transferred without ruling."
Cooper, Hall Cooper and John M. Brant (Mr. Brant orally), for the plaintiffs.
Gordon M. Tiffany, Attorney General and Warren E. Waters, Assistant Attorney General (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; State v. Kinne, 41 N.H. 238; St. Regis Co. v. Board, 92 N.H. 164; Klinger v. Cartier, ante, 180. 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, s. 52; anno. 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, ss. 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; 296 Briefs Cases 147 and 327 Briefs Cases 563; Laws 1907, c. 161; 7 N.H. Laws 665; Cheever v. Roberts, 82 N.H. 289; Dana v. Craddock, 66 N.H. 593; 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; 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 portion of a copy of the James Hersey map of 1781 was used and reproduced. See generally, Upton, Revolutionary New Hampshire (1936) c. 12; Akagi, The Town Proprietors of the New England Colonies (1924); 1 Powell, Real Property (1949), s. 57.
Case discharged.
All concurred.