On petition for declaratory judgment under R.S. 1937, 2:26-66 et seq.
For the petitioner, George T. Vickers (L. Edward Herrmann, of counsel).
For the respondents, David T. Wilentz, attorney-general, William A. O'Brien, William J. McCormack and Robert Peacock, assistant attorneys-general.
Before Justices Trenchard, Case and Heher.
The opinion of the court was delivered by
HEHER, J. On April 15th, 1935, the Board of Commerce and Navigation, with the approval of the governor, granted to the State Highway Commission, for the construction of a public highway, a strip of land 120 feet wide, extending from a point in the mean high water line along the easterly shore of Newark Bay at or near Danforth Avenue, in the City of Jersey City, to a point in the mean high water line of its easterly shore at or near Eighth Street, in the City of Bayonne. The strip of land so conveyed then underlay the tide waters of Newark Bay, a navigable body of water, between the eastern shore's mean high water line and the bulkhead and pierhead line.
The Highway Commission covenanted and agreed, as part of the consideration for the grant, "to reclaim and fill up to proper grade" (to be agreed upon by the parties) "with suitable material the area of State's land now under water lying between the proposed highway and the mean high water line of the easterly shore of Newark Bay;" and "to permit access over the area so filled in to and from the proposed highway, both by vehicle and pedestrian traffic," and also "to permit access to the highway when constructed in respect to the lands now under water lying west of the proposed highway when such exterior lands shall be filled in."
Petitioner is the owner of a tract of land situate in the City of Jersey City, which, at the time of the aforesaid grant, was bounded on the west by the mean high water line of Newark Bay to the east of the strip so conveyed for highway purposes. The highway has been constructed "off the shore in front of and to the west of petitioner's said lands," and the State Highway Commission, in pursuance of its undertaking aforesaid, has (so runs the petition) "filled in * * *
the area of the State's land lying under water * * * between the easterly property line of the said granted highway strip and the mean high water line bounding petitioner's lands," the "fill extending to and upon petitioner's upland;" and the contentions are made that this constituted a trespass upon its riparian upland, whereby "the tide waters theretofore washing the shores of" its "lands * * * were artificially, by the said fill, completely and permanently excluded and the theretofore existing mean high water of the navigable waters of Newark Bay in front of petitioner's property were thus receded to the westerly right of way line of said 120-foot highway strip and westerly slope easement, thereby depriving petitioner as upland owner of all access theretofore enjoyed by it to utilize the said tide water according to the ancient right and privilege of upland with its riparian rights in and to the navigable waters of said Newark bay Bounding said land;" that the Board of Commerce and Navigation was not invested with power to grant this strip of land to the Highway Commission "upon the terms and conditions" adverted to, and the State Highway Commission did not possess "legislative authority to fill in, or contract to fill in, the lands under water of Newark bay east of the easterly slope line of the right of way granted for said public highway route."
More specifically, it is said that, "by reason of the filling in done on behalf of the state, and not in the interest of navigation, whereby the tide waters were receded as to petitioner's property and a new and permanent mean high water line was created by the state," the line of petitioner's riparian upland now extends out "to the newly created mean high water line * * * in front of its said original upland, subject only to the public easement for highway purposes in the 120-foot roadway and its lateral support," and that petitioner has, "in the newly created upland, subject to the aforesaid public highway easement, the same rights it possessed as riparian owner of the original fast land upon said navigable stream;" and the prayer is for a declaratory judgment "adjudicating and determining" that the lands thus filled in "so as to exclude the tide waters" of the bay "have become and are a part of the fast land and are the property of and
belong to the petitioner extending to the newly created mean high water line upon the said Newark Bay in front of petitioner's upland, subject only to the public easement for state highway purposes in the 120-foot strip granted for roadway and the additional necessary slope area," and that "petitioner is the owner of said filled in land and henceforth shall have as riparian upland ...