Plaintiffs herein seek to set aside a riparian grant made to the State of New Jersey upon the application of Spencer Miller, Jr., State Highway Commissioner of the State of New Jersey, and a judgment declaring that they are vested with title to the disputed lands.
This matter was submitted upon the following stipulation of facts:
"1. The following plans or surveys are introduced into evidence:
(1) P-1, entitled: Survey of land of H. C. Leonard, et ux. , dated April 1951, revised June, 1952, by William A. Conover and Associates.
(2) D-1, Map or Plan entitled: Map showing lands under tide waters situate partly in Borough of Paulsboro and partly in Township of West Deptford and East Greenwich, in the County of Gloucester, granted to State of New Jersey, State Highway Department, June 12, 1950, signed Peter Gannon, Chief, Navigation Section.
(3) D-2, Map or Plan entitled: New Jersey State Highway Department, Route 44, Section 14, original location plan for Mantua Creek, et cetera , dated in pencil October, 1944.
2. The following facts may be taken as proven for the purposes of this litigation:
(a) Prior to July 1, 1891, there had been constructed along the easterly bank of Mantua Creek, adjacent to lands now owned by plaintiffs and by a predecessor in title of said plaintiffs, an embankment or dike (the beginning point and end of which for the purposes of this litigation are not necessary to be determined), which said embankment or dike excluded the tide waters from that portion of the land designated as T-85 on P-1 and delineated in pencil as Tract 1 on D-1. The said dike or embankment was then constructed in the following manner, i.e. , of mud, dirt, stone and rocks.
At the time of the exclusion of the tide waters as aforesaid, the then high-water line was as delineated by a broken line east of the easterly bank of Mantua Creek, as shown on P-1 and as delineated in green and entitled: 'Edge of Woods -- original H.W.L.' on D-2.
The predecessor in title of said plaintiffs who so excluded the tide waters was the owner of the lands to the high-water line as shown on P-1 and D-1.
3. The plaintiffs herein have whatever title was obtained to T-85 by virtue of the construction of said embankment or dike and the exclusion of tide waters therefrom.
4. At the time of the riparian grant to the State of New Jersey, as delineated on D-1, the plaintiffs, or one of them, was the owner of the upland adjacent to said riparian grant to the mean high-water line. No notice was given them, or any of them, of the proposed application by the State Highway Department for the riparian grant, above referred to, to the State of New Jersey.
5. The mean high-water line as shown on D-1 is substantially the same high-water line which existed prior to the construction of the above referred to embankment or dike, which excluded tide waters from the lands in question."
Plaintiffs base their demand for relief, under the stipulated facts, upon three grounds: (1) the common law; (2) L. 1851, p. 335, hereinafter referred to as the Wharf Act and the repeal thereof, L. 1891, c. 124, p. 216, hereinafter referred to as the repealer, and (3) the failure of the State Highway Department to give the statutory notice to plaintiffs of a proposed ...