Plaintiffs herein seek to set aside and have cancelled a certain certificate of redemption from tax sale issued by the collector of taxes for the Township of Haddon, and to have the tax sale certificate reinstated as a valid and subsisting lien. The ground upon which this relief is demanded is that the defendants are not such persons who were entitled to redeem under R.S. 54:5-54, which reads as follows:
"The owner, mortgagee, occupant or other person having an interest in land sold for municipal liens, may redeem it at any time within two years from the date of sale, or at any time thereafter until the right to redeem has been cut off in the manner in this chapter set forth, by paying to the collector, or to the collector of delinquent taxes on lands of the municipality where the land is situate, for the use of the purchaser, his heirs or assigns, the amount required for redemption as hereinafter set forth."
The individual defendants allege that they are (1) the owners of the premises involved, and (2) were, in any event, the occupants of the premises at the time of redemption and hence entitled to redeem.
The facts in connection herewith are as follows:
In 1813 one Samuel Webster, of the then Township of Newton, County of Gloucester and State of New Jersey, was the owner of a large plantation, including a grist mill, mill pond site, dam, raceway and mill pond. The said pond was completely surrounded by lands owned by him. He departed this life in that year leaving a last will and testament, under the terms of which he divided his plantation into three parts, devising one part to each of his three sons, Isaac, Samuel and Josiah. We are here concerned only with the devise to Josiah Webster, to whom the defendants trace their title. The said will, so far as here pertinent, reads as follows:
"I give and devise unto my son Josiah all the residue of my Plantation with the Grist Mill, Buildings, and appurtenances; also
the Four acres of land excepted off the Tract given to my son Isaac; and together also with all the lands flowed by the Mill Pond when a full head of water is raised, * * *."
For the sake of brevity, here follows a map of said premises, with various notations of the devolution of title thereon, hereafter explained.
The lands designated "Pond" Plot C were sold by the Township of Haddon for the failure to pay taxes. The plaintiffs are the holders of the tax sale certificate.
The defendants assert that the title to said pond is vested in them as successors to Josiah Webster by mesne intervening conveyances. They do not base their title on a conveyance to the "edge" or "bank" of the pond, but assert that there was an express conveyance by description of said lands. They contend that they are the "owners" of the locus in quo.
The plaintiffs contend that the said Josiah Webster did not divest himself of title to the submerged land in the pond by any conveyance, but that at the most he granted an easement in the water for use at the mill and that, therefore, the defendants are not the owners as aforesaid.
Under the defendants' first claim of right to redemption it is necessary to examine and interpret certain conveyances in order to ascertain the intention of the parties thereto and to determine whether defendants are the owners thereof. In reaching a conclusion we must keep certain basic principles in mind.
It must be recognized at the outset that the property rights to water flowing land and the land thus submerged are separate and distinct and may be separately held and separately transferred. The rights to the waters of a pond are separable from submerged soil and may be acquired distinct from the ownership of the soil, by grant or prescription. An easement could therefore be created in the water flooding the land and the use thereof, and the owner of such land could retain the freehold therein. Cobb v. Davenport , 32 N.J.L. 369 (Sup. Ct. 1867); Perrine v. Bergen , 14 N.J.L. 355 (Sup. Ct. 1834); Conover v. Atlantic City Sewerage Co. , 70 N.J.L. 315 (E. & A. 1903); Walden v. Pines Lake Land Co. , 126 N.J. Eq. 249 (E. & A. 1939).
In construing deeds, the question is not what interest did the grantor intend to pass but what interest did he pass by apt and proper words. The intention of the parties must, however, be given effect so far as the words of the grant permit. Koplowitz v. Central Trust Co. of N.Y. , 135 N.J. Eq. 552
(Ch. 1944), Northeastern Tel. & Tel. Co. v. Hepburn , 73 N.J. Eq. ...