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Kirsch Holding Co. v. Borough of Manasquan

Decided: December 12, 1952.


On appeal from a final judgment of the Superior Court, Chancery Division, whose opinion appears in 18 N.J. Super. 112 (Ch. Div. 1952).

Eastwood, Goldmann and Francis. The opinion of the court was delivered by Goldmann, J.A.D.


On August 22, 1949 the Borough Council of the Borough of Manasquan adopted an ordinance entitled "An Ordinance Regulating the Use of the Beachfront of the Borough of Manasquan and Providing Penalties for the Violation Thereof." The Chancery Division of this court determined -- contrary to plaintiffs' contention -- that the ordinance was not ultra vires but a valid exercise of the police power, and that a certain reservation contained in the deed of dedication from Seacoast Real Estate Company (hereinafter called "Seacoast"), one of plaintiffs' predecessors in title, to defendant borough was void. The court entered judgment in favor of defendant, and plaintiffs appeal.

On September 8, 1914, Seacoast was the owner of a large tract of ocean front land in the Borough of Manasquan. On that date the company conveyed to the borough the beach front portion of the tract, running from Ocean Avenue on the north to Manasquan Inlet on the south -- a distance of about 4,400 feet. The deed of dedication recited, among other things, that the lands were granted and conveyed "for public purposes and for a place of resort for public health and recreation * * *." The conveyance contained the following reservation:

"The Company reserves for itself, its successors, grantees and tenants the right to maintain bathing grounds, ropes, boats and other appliances on said beach front for bathing purposes."

The deed was to take effect upon the completion by the borough of a 1,000-foot boardwalk within a period of two years. This requirement was admittedly fulfilled.

Seacoast subsequently conveyed portions of the remainder of its tract to the following: (1) Jersey Shore Company, whose grantee, in turn, made some 80 conveyances out of the lands involved; (2) American Timber Company, which later sold only one lot but has 271 tenants on the rest of its lands; and (3) Manasquan Beach, Inc., which made about 120 conveyances before the borough foreclosed the balance of its holdings; the borough has since made about 70 conveyances. Seacoast voluntarily dissolved in 1942, some years after disposing of all its Manasquan lands.

At the time of the trial there stood on the lands which Seacoast retained after the 1914 deed of dedication 646 bungalows, 20 general business establishments, 11 real estate offices, 6 hotels and rooming houses, and 1 church. Municipal records showed 691 real estate assessments on properties making up the original Seacoast holdings, and 736 separate family water service connections to structures on these lands.

Plaintiff Kirsch Holding Company is presently the owner of a small parcel of land that was part of the lands sold by Seacoast to Manasquan Beach, Inc. It fronts 110 feet on the east side of First Avenue, Manasquan, has a depth of about 152 feet, and is located between the avenue and the dedicated beach. All deeds in the Kirsch company's chain of title contain a clause that the property therein described is conveyed together with all the appurtenances. In addition, the deed out of Manasquan Beach, Inc. and all subsequent deeds in the chain of title -- except for a sheriff's deed in foreclosure -- contain this clause:

"Together with any right, title or interest that the party of the first part may have by virtue of a deed from the Seacoast Real Estate Company to Manasquan Beach, Inc. dated April 6, 1926 * * * covering that part of the beach 110 feet in width between the easterly monumented beach front line above mentioned to the line of high water in the Atlantic Ocean * * *."

Plaintiff Irving B. Kirsch is lessee of the Kirsch company property and operates a pavilion thereon which houses concessions, a restaurant, apartments and bathhouses. Kirsch operates the latter, some 155 in number. The remaining facilities are sublet to others. The daily charge for a bathhouse during the week is 75 cents, and on Saturdays, Sundays and holidays $1. No charge is made for the use of the beach. Plaintiffs had operated the bathhouses for about three years preceding the trial; bathhouses had been rented on these premises for more than 40 years.

An exposition of the terms of the August 22, 1949 ordinance regulating the use of the Manasquan beach front is important to the determination of this appeal. Section 1 provides that "the following rules and regulations shall be observed * * *":

(a) Every person, except children of the age of 12 or under, using the beach front and waters adjacent thereto for bathing, or clad in bathing attire, must first register with agents of the borough employed for that purpose, giving such information as may be required.

(b) Upon registering, the person is to be given a badge, check or other insignia, to be worn conspicuously at all times.

(c) A person registering on or before July 31 shall pay a season charge of $3, with the right to a $1 refund if the badge is redeemed before August 1. A person registering on or after August 1 shall pay $2, and one registering for the day is to pay the daily charge of 50 cents.

(d) "Said charge is made 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."

(e) The borough council is authorized to employ personnel and purchase supplies necessary to carry out and ...

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