Clapp, Goldmann and Ewart. The opinion of the court was delivered by Goldmann, J.A.D.
Plaintiffs appeal from a judgment of the Chancery Division dismissing their amended complaint in which they demanded judgment (1) setting aside a certain riparian grant from the Division of Navigation, Department of Conservation and Economic Development, to the State of New Jersey; (2) establishing that plaintiffs are the owners of the lands covered by the riparian grant; and (3) requiring and commanding defendants to institute condemnation proceedings to condemn said lands, already taken by the State for highway purposes, so that they might be compensated for the value thereof.
The action was originally instituted in the Law Division, with the State Highway Department as sole defendant. The court on its own motion transferred the action to the Chancery Division for final determination on the ground that complete and effective relief could be obtained there. The complaint was then amended, adding the Department of Conservation and Economic Development, Division of Planning
and Development, as a defendant. The State Highway Department answered, setting up as separate defenses that (1) the State Highway Commissioner had the legal right to enter upon and take possession of the lands for highway purposes in advance of making payment therefor; (2) the complaint failed to state a claim upon which relief could be granted because title to the lands were vested in the State; and (3) the riparian grant gave the State title for the use of the State Highway Department. The cause was submitted upon an agreed stipulation as to the facts and legal questions involved.
Sometime prior to July 1891 plaintiffs' predecessor in title constructed an embankment or dike along the easterly bank of Great Mantua Creek, adjacent to the lands now owned by plaintiffs which are located in West Deptford Township, Gloucester County, New Jersey. This embankment excluded the tidewaters of the creek from the lands in question. The present mean high water line is substantially the same as that which existed prior to the construction of the embankment. At the oral argument it was stated that plaintiffs acquired title to their present lands in 1939. It was admitted that at that time, and since, the lands here in controversy were flooded by the flow of the tide through breaches in the embankment.
On March 1, 1950 the then State Highway Commissioner applied to the Department of Conservation and Economic Development for a riparian grant covering the lands in question in connection with the construction of State Highway Route 44. The riparian grant was made on June 12, 1950, without notice to plaintiffs, the riparian owners. The State Highway Department entered upon the premises January 2, 1951 and has proceeded with the building of the highway, which operation involved, among other things, the cutting, digging out and removal of the banks on the edge of Great Mantua Creek, which banks are claimed to be the property of plaintiffs.
As stated in the stipulation filed in the Chancery Division, plaintiffs based their claim for relief upon the common law,
the Wharf Act of 1851 (L. 1851, p. 335), the repeal of that act by L. 1891, c. 124, and the failure of the State Highway Department to give them statutory notice of its application for a riparian grant. The State conceded that plaintiffs' predecessor in title who built the embankment or dike prior to 1891 thereby became vested with a fee in the lands which are the subject of this action, and this by virtue of the common law of the State or under the provisions of the Wharf Act of 1851.
Gough v. Bell , 22 N.J.L. 441 (Sup. Ct. 1850), affirmed sub nom. Bell v. Gough , 23 N.J.L. 624 (E. & A. 1852), determined that in the absence of legislative restriction and where no nuisance was created, a riparian proprietor might appropriate the tide-flowed shore adjoining his land, between high and low water, to his own use. Chief Justice Green stated (at page 470) that "The custom of making such appropriation, long enjoyed and universally acquiesced in, constitutes a local common law, which this court will recognize, and which it would be alike unsafe and unwise to disregard." On appeal, Justice Elmer spoke of the usage as having been "sanctioned by the courts and by repeated legislative enactments too unequivocal to admit of dispute and too plain to be disregarded." 23 N.J.L. , at page 668. The Wharf Act of 1851, section 1, adopted after the Supreme Court decision in Gough v. Bell , reaffirmed the local common law. Accordingly, plaintiffs' predecessor in title who reclaimed or improved the lands here involved became vested with a fee therein. It is admitted that L. 1891, c. 124 repealing the Wharf Act did not detract from nor add to the title so acquired.
Did the riparian owner lose his title to the State when the lands again became tide-run because the creek had worked its way through the dirt and stone dike? The Chancery Division judge held that plaintiffs or their predecessors were divested of title to so much of the land as lay beyond the high water line, and the State ...