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Kirsch Holding Co. v. Borough of Manasquan

Decided: February 21, 1952.

KIRSCH HOLDING CO., A BODY CORPORATE OF THE STATE OF NEW JERSEY, AND IRVING B. KIRSCH, PLAINTIFFS,
v.
THE BOROUGH OF MANASQUAN, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANT



Leonard, J.c.c.

Leonard

In the year of 1914, the Seacost Real Estate Company, a corporation of New Jersey, was the owner of a large tract of land in the Borough of Manasquan (the defendant herein and hereinafter referred to as the "defendant borough"). This land was bounded on the east by the Atlantic Ocean and ran along said ocean for a distance of approximately 5,400', with the exception of some 400' upon which was located a life-saving station and a fishery.

On September 8, 1914, said Seacoast Real Estate Company by deed of dedication, granted and conveyed to the defendant borough a portion of said lands, viz. , the beachfront located between Ocean Avenue on the north and Manasquan Inlet on the south, being a distance of approximately some 4,400' along said beachfront.

The deed of dedication recited therein that the lands were granted and conveyed to the defendant borough among other things, "for public purposes and for a place of resort for public health and recreation."

The deed of dedication also contained the following reservation: "* * * Company reserves for itself, its successors, grantees and tenants the right to maintain bathing grounds, ropes, boats and other appliances on said beachfront for bathing purposes."

It is admitted herein that the deed was accepted by the defendant borough and the dedication fully consummated.

The plaintiff Kirsch Holding Co. (hereinafter referred to as the "corporate plaintiff"), is the owner of certain real estate situated between First Avenue and the beach, bordering

the ocean and running along said beach for some 110'. The corporate plaintiff acquired title to said property from the plaintiff, Irving B. Kirsch (hereinafter referred to as the "individual plaintiff") by deed dated November 10, 1949. The individual plaintiff, grantor in the aforementioned deed, secured title from one William B. Weir and Margaret F. Weir, his wife, by deed dated January 2, 1945.

The property which the corporate plaintiff now holds title to and which the individual plaintiff now is a tenant is a part of the premises originally owned by said Seacoast Real Estate Company and retained by said company at the time of making the dedication to the borough defendant.

The corporate plaintiff now claims title to the same by mesne conveyances from said real estate company.

On August 22, 1949, there was adopted and approved by the mayor and council of the borough defendant an ordinance entitled, "An Ordinance Regulating the Use of the Beachfront of the Borough of Manasquan and Providing Penalties for the Violation Thereof." This ordinance, among other things, requires that every person except individuals under the age of 12 years using the beachfront and waters adjacent thereto in the Borough of Manasquan for bathing purposes shall before using the same register with agents of the borough employed for that purpose, and on registering secure a badge or other insignia to be worn conspicuously at all times. The ordinance also provides that persons so registering "* * * if registered on or prior to July 31st in any season, shall pay at the time of registering for the season, a season charge of $3.00; provided however, that if the season badge is redeemed prior to August 1st, the registrant shall receive a refund of $1.00. Each and every person registering on August 1st or later in any one season, shall pay at the time of registering the sum of $2.00. Each and every person registering for the day shall pay the daily charge of $.50." The fees as provided in paragraph 1 (d) of the ordinance are to be used "* * * for the purpose of defraying the cost of providing for, improving, preserving, maintaining, policing,

and regulating the beachfront and providing for the protection and safety of bathers using said beachfront."

The individual plaintiff has been conducting a business on said property owned by the corporate plaintiff for the renting of 155 bathhouses to bathers and customers for about three years (prior to the adoption of said ordinance). Said individual plaintiff has been charging $.75 per day on weekdays and $1 per day on Saturdays, Sundays and holidays as a rental for said bathhouses. The individual plaintiff testified that during the summer weekends he averaged 50 customers; on Saturdays he averaged 75 to 100 customers, and on Sundays he averaged 150 to 200 customers, and on holidays he averaged 300 to 400 customers.

The officials of the defendant borough commenced enforcement of said ordinance on June 28, 1950, and attempted to enforce the same against the bathers and customers of the individual plaintiff. Said individual plaintiff, as a result thereof, alleges that he lost a considerable amount of business and contends that if said ordinance is enforced against his patrons, he and the corporate plaintiff will suffer substantial and irreparable damage.

The plaintiffs seek by their complaint herein a ...


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