Opinion
No. CV 02-0518318S
March 9, 2004
MEMORANDUM OF DECISION
This is an action to quiet title brought by the plaintiff, Scalia Brothers Trucking Company (Scalia), against the defendant Bristol Sand and Gravel, LLC (Bristol). The court conducted a trial in this matter on January 30, 2004 and makes the following findings of fact.
On March 6, 1999, Jeanette Grandmaison, the owner of a residence located at 120 Barlow Street, Bristol, Connecticut, entered into an "Earth Removal Agreement" with Bristol "for the removal of earth material from the rear yard of [her] lot." Under the agreement, as drafted by Bristol, Grandmaison was to receive payment for materials removed at the rate of $.75 cents per cubic yard. Once Bristol finished excavating under the agreement, the lot was to be re-graded.
The agreement provided further, regarding "Project Term":
There will be a time lapse between the date of this agreement and the date actual removal operation begins. Time will be required to prepare the necessary information and documents required for application submission [to the zoning commission]. The application review period by the Zoning Commission prior to actual permit approval and completion of materials removal from your property is ectimated [sic] to be one year. The restoration, however, could be longer due to the time of year removal is completed in that finish gradeing [sic] cannot be done during the fall and winter seasons.
The agreement concluded by making it additionally binding upon Grandmaison's heirs, executors, administrators and successors. This document was recorded on the Bristol land records on February 8, 2000.
Due to the failure to sign a similar agreement with an adjacent property owner, Bristol has never, to date, proceeded to obtain the permission of the zoning commission as contemplated in the Grandmaison agreement, nor has any work commenced on her premises. On April 5, 2002, over three years after signing the agreement, Grandmaison signed an affidavit that stated that she was revoking Bristol's earth removal agreement. She had anticipated that the project would have been completed within a year from the signing of the agreement, during April 2000. The affidavit was recorded on the Bristol land records on April 12, 2002. Grandmaison also filed and recorded at the same time, a revocation of Bristol's license agreement.
An officer of Bristol, Daniel P. Sutula, testified that the corporation is now ready to commence work at the Grandmaison site.
Scalia and Grandmaison then entered into a purchase agreement which she signed on July 5, 2002, and Scalia signed on August 28, 2002. By the agreement, Grandmaison was to sell Scalia her entire premises (the fee) for the sum of $120,000. Scalia stated that its intent in purchasing the property was to obtain a residential income property and to remove earth material. Scalia and Grandmaison agreed that the deposit paid by Grandmaison should be used to fund an action to quiet title by Scalia, directed against Bristol's license agreement. Mrs. Grandmaison died subsequent to signing the purchase agreement, but her representatives want to pursue the proposed sale. Scalia commenced a quiet title action on December 3, 2002.
Bristol first raises the issue of standing in that the estate of Grandmaison is not a party plaintiff. The court rejects Bristol's contentions. Under General Statutes § 47-31(a) any person claiming an interest in real property may bring a quiet title action to determine the rights of any other interest in the property. Loeb v. Al-More Corporation, 42 Conn. Sup. 279, 286, 4 Conn.L.Rptr. 788 (1991) ("The essential elements of this action . . . are that the plaintiffs claim title to the property and that the action is brought against such persons claiming an interest in the property that is adverse to the plaintiffs"). This would extend to a party plaintiff claiming a right by virtue of a purchase agreement. For a ruling under a similar statute, see Hamilton v. Linn, 200 S.W.2d 69, 70 (Minn. 1947) (a contract for sale and purchase of real estate vests an equitable title thereto in the purchaser). The standing of Scalia to bring this quiet title action is "technically distinct from [its] proof of the facts necessary to entitle [it] to an affirmative adjudication in [its] favor." Loewenberg v. Wallace, 147 Conn. 689, 693 (1960).
The determination that Scalia has standing under the purchase agreement it signed with Grandmaison, and allowing this case to proceed to the merits, will allow the court to determine the status of the Bristol agreement. Such a determination does not require the presence in the suit of Grandmaison or her legal representatives. Finally, the testimony at trial indicates that Nicholas Santullo was secretary of the Scalia Corporation at the time of the purchase agreement. Therefore he was authorized to sign the purchase agreement on behalf of Scalia. Harp v. King, 266 Conn. 747, 776 (2003).
Bristol claims further that its interest is protected by the "Dormant Mineral Interests Act," § 47-33m, et seq. Bristol notes that it recorded its agreement with Grandmaison on the land records and claims protection for the agreement under § 47-33r(a), that provides in part: "Any person claiming any kind of mineral interest may preserve and keep effective that interest by recording a notice of intent to preserve the mineral interest or a part thereof."
In relying on § 47-33r(a) to protect its interest, however, Bristol is misinterpreting the intent of that provision. This statutory provision was drawn from a proposed uniform law of the American Law Institute. Its purpose is to insure that "a person interested in purchasing or leasing the mineral rights would have information on identity and whereabouts of the owners of those mineral rights . . ." Oberlin v. Wolverine Gas Oil, 450 N.W.2d 68, 71 (Mich.App. 1989). It was to passed to "reduce the likelihood that the presence of unknown or unlocatable owners or fractionalized ownership of severed interests would unnecessarily hinder or prevent the development of these resources by requiring an owner to do certain specified acts indicating ownership or record a claim of interest every 20 years . . . without such a requirement, knowledge of the ownership could be lost in time." Van Slooten v. Larsen, 299 N.W.2d 704, 711-12 (Mich. 1980).
This precedent indicates that the statute's sole purpose is to give notice to the general public. It does not preserve an agreement that is otherwise invalid. As the comment in the uniform law to the same provision as § 47-33r(a) states: "Where the mineral interest being preserved is of limited duration, recordation of a notice under this section does not extend the interest beyond the time the interests expires by its own terms. Where the mineral interest being preserved is a lien, recordation of the notice does not excuse compliance with any other applicable conditions or requirements for preservation of the lien." Thus § 47-33r does not resolve the question of the continuing validity of Bristol's agreement with Grandmaison.
To resolve the issue of the continuing validity of Bristol's agreement with Grandmaison, the court must look to "the intention of the parties as disclosed by the instrument of conveyance read in the light of the surrounding circumstances." Miller v. The State, 121 Conn. 43, 48 (1936). In Miller, the Supreme Court read a similar restriction on real estate as giving no title to the minerals themselves, but only "a mere incorporeal hereditament" and noted that "[s]uch a right may be lost by abandonment." Id.
Bristol does not deny that its agreement is a license and not a lease. See Joe-Mark Sand Gravel Co. v. Pantanella, 139 Conn. 598 (1953).
The agreement, as Bristol argues, states that there will be "a time lapse" between the date of the agreement and the date removal operations begin. There is projected further time periods for the preparation of a zoning application, the length of the zoning permit process, and the removal and restoration processes. The time periods are flexible and Bristol's intention to remove the earth still endures. Thus, even though no earth removal has yet taken place, there is no evidence of abandonment as in Miller. What Bristol overlooks, however, is that its agreement, in the form of a license, might be terminated on Grandmaison's revocation.
A license has been defined as "a personal, unassignable, and ordinarily revocable privilege for the doing of one or more acts on land without possessing any estate therein." Demartin Properties v. Fairfield Town Plan and Zoning Commission, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV96 0355228S (April 13, 1999, Mottolese, J.), quoting Ballantine's Law Dictionary 3rd Ed. at 736 (1969). "Generally a license to enter premises is revocable at any time by the licensor." State v. Grant, 6 Conn. App. 24, 29 (1986); "Unlike a lease, a license in real property is a mere privilege to act on the land of another, which does not produce an interest in the property." Clean Corp. v. Foston, 33 Conn. App. 197, 203 (1993).
Of course, Bristol could have included in the agreement, which it drafted, language limiting revocation. See, e.g., Ark Bryant Park Corp. v. Bryant Park Restoration Corp., 730 N.Y.S.2d 48 (App.Div. 2001) (license may be revoked only with thirty-day notice). Bristol had the opportunity to set forth the conditions under which Grandmaison could exercise revocation during the various time periods of the agreement, but it did not do so. "[T]o the extent that the defendant drafted ambiguous contracts, it cannot claim the benefit of the doubt regarding the ambiguity." Levine v. Advest, Inc., 244 Conn. 732, 756 (1998); "When there is ambiguity, we must construe contractual terms against the drafter." Sidor v. Kravec, 135 Conn. 571, 573 (1949).
In fact, Grandmaison clearly revoked Bristol's agreement before she died. Therefore the court does not have to address Bristol's claim that its agreement is binding on Grandmaison's legal representatives. The court declares, pursuant to General Statutes § 47-31, that the Earth Removal Agreement recorded at Volume 1315, Page 819 of the Bristol Land Records, is invalid, due to revocation by the grantor. So ordered.
Cohn, J.