On appeal from judgments of the Supreme Court.
For the appellant Ocean City Automobile Bridge Company, Robert K. Bell.
For the appellant Hill Dredging Company, Thompson & Hanstein.
For the respondents, Bourgeois & Coulomb.
The opinion of the court was delivered by
DONGES, J. Defendant Ocean City Automobile Bridge Company appeals from judgments against it in favor of plaintiffs in eight separate suits and defendant Hill Dredging Company appeals from judgments against it, as well as the Bridge company, in favor of two of the plaintiffs. The cases were tried together.
These eight suits were begun by the lessees of certain clam and oyster grounds in Great Egg Harbor River, in Atlantic county, demised by the State of New Jersey, acting through the board of shell fisheries, for the period of one year beginning January 1st, 1927. These plaintiffs had been tenants of the same grounds for some years prior to 1927. During the year 1927, the bridge company acquired a sixty feet wide strip of lands under water from the State of New Jersey, acting through the board of commerce and navigation, for the purpose of constructing a toll bridge across Great Egg Harbor river from Somers Point, in Atlantic county, to Beasley's Point, in Cape May county. The bridge company contracted with the defendant Hill company to make the fill. The work was done in 1927.
Plans and specifications called for a fill of the width of at least three hundred and forty feet, as follows: A sixty feet strip coinciding with the riparian grant, to be bulkheaded on each side and filled to a point about six feet above ordinary high water; a forty-feet strip, likewise bulkheaded, and to be filled to about three feet above ordinary high tide, on each side of the sixty-feet wide strip granted by the state; and beyond the forty-feet strips a further fill one hundred feet wide on each side, with no bulkhead or other means of retaining it. There were two sections to be filled; one extending
from the Atlantic county shore line southwesterly about seven hundred and thirty-five feet; the other extending from Drag channel southwesterly about one thousand two hundred and twenty feet to the main channel.
The suits were all brought against the bridge company and the dredging company upon two counts, one for negligence and the other for trespass.
The lands held by only two plaintiffs, Lloyd and Tallman, were actually traversed by the fill. The complaint was that the manner of doing the work under the contract, plans and specifications resulted in sand being distributed for great distances by the action of the tide, and of the dredges and other apparatus used, and spreading upon the lands of all of the plaintiffs upon which oysters and clams were planted, killing such oysters and clams. The trial resulted in verdicts in favor of all of the plaintiffs, as to Lloyd and Tallman against both defendants for trespass, and as to the six other plaintiffs against the bridge company only for negligence, a verdict having been entered in favor of the dredging company as to all plaintiffs excepting Lloyd and Tallman.
Several grounds for reversal are argued. The first and second grounds are that the trial judge should have nonsuited at the end of the plaintiffs' case and that he should have directed a verdict for defendants upon the whole case. The principal ground urged is that the bridge company by its grant had a superior right to the use of the land so granted to it, notwithstanding the prior grant to the plaintiffs Lloyd and Tallman. We are unable to agree with this contention. The leases to plaintiffs were made upon statutory authority (Pamph. L. 1917, p. 116; Cum. Supp. Comp. Stat., p. 585), and gave plaintiffs the exclusive privilege of planting and cultivating oysters and clams upon said lands. The subsequent grant of the riparian right to the bridge company could not and did not wipe out the rights of the plaintiffs-lessees to the use of the ...