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Bailey v. Driscoll

Decided: February 23, 1955.


Jayne, Stanton and Hall. The opinion of the court was delivered by Hall, J.s.c. (temporarily assigned).


[34 NJSuper Page 233] The plaintiff appeals from a judgment of the Chancery Division denying him relief with respect to a grant of lands under tidewater to defendant Kline by the Department of Conservation and

Economic Development of the State through the Council of the Division of Planning and Development thereof. There is involved an unusual physical situation and questions of the rights of riparian owners which do not appear to have been heretofore directly passed upon by our courts.

The case was tried below upon a somewhat sparse stipulation of facts and exhibits. The court rendered an oral opinion at the conclusion of the trial and made no other findings of fact and conclusions of law. From the stipulations, exhibits, pleadings, and admissions of counsel in argument both below and in this court, we derive the following summary of the case:

Since 1926 plaintiff has been the owner of two islands lying in Barnegat Bay. We are concerned only with the larger of the two, comprising slightly over five acres, which originally was separated from the upland or mainland on the easterly shore of the bay in the Ortley Beach section of Dover Township, Ocean County, by an arm of the bay known as Muscrat (or Muskrat) Creek, which had both its origin and terminus in the bay. As shown by the Division map in evidence, this so-called creek, before the events to be detailed, flowed around the east end of the island and cut into the mainland opposite it in a general semi-circular fashion so that the distance between the mean high water level of the island and that of the mainland, i.e. , the width of the water-filled creek at mean high tide, was approximately 250 feet at the widest point and 150 feet at the narrowest. There is nothing to indicate the location of the low water mark with respect either to the island or the mainland or that exterior bulkhead or piers had been fixed as to the mainland. There is a line drawn around the end of the island, east of the mean high water line, designated as "future pierhead and bulkhead line," which we assume to have been fixed and established by the Council (see R.S. 12:3-19).

It was stipulated that Kline "is the owner of lands on the mainland, encircling plaintiff's island, except the bed of Bay Boulevard," which was constructed by Ocean County after

1945. This road occupies a good part of the bed of the creek on a fill, as will presently be more fully detailed. We construe this stipulation to mean that Kline has owned, at least since 1945, the lands on the mainland shore of the creek in its entire semi-circular course around the easterly end of plaintiff's island, extending to what was the mean high water line of the mainland prior to the physical events that have occurred in the area since 1945.

As of the latter year, three public streets on the mainland, Second Avenue, Shuster Avenue, and Third Avenue, had their westerly terminus at the mean high water line opposite plaintiff's island. In 1948, the public rights in Second and Third Avenues were vacated. Shuster Avenue remains as a public street, but since the construction of the boulevard has its westerly terminus at the easterly right-of-way line thereof.

As has been indicated, some time between 1945 and 1950, the County of Ocean built a new highway, called Bay Boulevard, along the east shore of the bay from Seaside Heights to Lavallette, the 100-foot wide right-of-way of which crossed the are of the semi-circle made by the waters of Muscrat Creek and occupied on fill a large portion of the bed thereof between plaintiff's island and the mainland. The westerly side line of the road as laid out comes within about 60 feet of the mean high water line of plaintiff's island at its nearest point and the easterly side line is approximately 50 feet west of the mean high water line of the mainland at its farthest point therefrom. The westerly side line of the new road is, therefore, located west of the center line or thread of the creek for a distance of about 150 feet in front of the island and there remains a small unconnected portion of the bed of the creek between the east side line of the road and the shoreline for a north-south distance of about 200 feet. For this distance, the road lies entirely west of Kline's lands; otherwise it runs through them.

To make this highway construction possible, the plaintiff executed and delivered an instrument to the county, dated December 18, 1945, whereby he released "any rights I have

or may have in and to the waters of Muscrat Creek." The document recited as the reason for it that the state agency would not make the necessary riparian grants to the county for the bed of the new road where it passed through the creek because plaintiff might have some rights in and to the waters of it lying east of his island. The proposed road was described not only with respect to the area covered by its 100-foot right-of-way, but also to include slope rights on land on each side thereof sufficient to permit slopes of five foot horizontal to one foot vertical as required by the elevation of the surface of the road. While the releasing clause is general, it must be read in the light of the recitals and we construe it, as have counsel in their arguments, to constitute a release of such portions of his rights only as were necessary to construct the boulevard in the location and manner described therein.

About the same time, by instrument dated December 31, 1945, describing the same right-of-way and adjacent slope rights, Kline and other upland owners along the entire highway route released to the county "any right we may have in and to the waters of Barnegat Bay lying East of the East line of the proposed Bay Boulevard," on recitals that the road would at several places cross the waters of the bay and its tributaries and thereby leave certain waters thereof lying east of the road closed off without access to the main body of the bay and that the necessary riparian grants would not be made to the county for the bed of the boulevard because upland owners might have some rights to that portion of the bay and its tributaries so closed. It is to be noted that this instrument does not expressly encompass a release of any rights in and to the waters of the creek west of the easterly side line of the road, as did the plaintiff's release. Whether another instrument to effect such a release was given or this document construed to cover it is not expressly disclosed by the proofs, but we will assume that Kline has no rights in the former tidewater land now occupied by the boulevard, and that such are now in the county and that ownership of

the land west of the boulevard remained in the State, subject to the county's slope rights, until the grant in question was made to Kline.

The record is also entirely barren of any evidence as to whether the county thereafter obtained from the state agency grants covering the right-of-way, adjacent slope rights and permission to fill in adjoining lands, and if so, the exact extent thereof, but we assume it must have, for the road was constructed along the right of way described. Moreover, as a result of the construction and presumably of the necessary fill in connection with it, the creek bed has become completely filled between the easterly end of the island and the westerly right-of-way line of the highway. In other words, plaintiff's island is no longer an island but a peninsula of the mainland, and Muscrat Creek is no longer a continuous arm of the bay encircling the easterly side of the island, but has become two arms, separated by the island, each terminating at the westerly edge of the fill. As far as the proofs show, the filled land connecting the island with the boulevard was, at the completion of the highway construction, still owned by the State as land formerly under tidewater.

With the physical situation in this posture, Kline made written application, dated February 6, 1950, to the Division of Planning and Development of the State Department of Conservation and Economic Development for a grant in fee simple of the land under tidewater adjacent to and in front of a long list of parcels described by lot and block number therein, of which he stated he was the owner. He further represented therein that the described parcels adjoined the tidal waters of Muscrat Creek, but above the high water mark thereof. The proofs do not disclose the location of the listed lots, but we assume that they touch upon and include what was, before the boulevard was built, the entire mainland shore line along the semi-circle made by the indentation of the creek from a point on the shore northerly of plaintiff's island and about 60 feet west of the westerly side line of the highway to a point on the shore southerly of the island and

about 60 feet west of the westerly side line. It should be here noted that, since the building of the highway, Kline's lands, except for this 60-foot distance on the north and south ends of the are west of the highway, have been separated from the main waters of the creek by the highway and by that small portion of the creek closed off and lying between the road and the mainland.

By instrument dated September 11, 1950, Kline received a grant from the Council of the Division, presumably based on his application. This is the grant here under attack. It was executed by the individually named defendants other than Kline, who are the members of the Council, the Governor, the Commissioner of the Department, and the Attorney-General. The instrument recites as a basis for the conveyance that Kline represented he was the owner of lands fronting on Muscrat Creek in front of which the granted lands are situated. A consideration of $330 for the grant is also recited.

A conveyance in fee follows "in and to the lands now or formerly flowed by tidewater at mean high tide of Muscrat Creek" described by metes and bounds. The land so conveyed comprises a strip with parallel east and west boundaries running across the arc of the semi-circle of what was previously the bed of the creek and immediately adjacent to the boulevard on the west. It runs from Kline's shore land on the northerly side of the arc west of the highway to his land similarly situated on the south side and varies in depth (from east to west) from 25 feet to 60 feet. The length of the easterly line thereof along the boulevard is approximately 450 feet from north to south and that of the westerly line about 577 feet by reason of the curvature of the shoreline. It is significant that, for a distance of 140 feet directly in front of the east end of plaintiff's island, the depth of the grant is, by an indentation in the westerly boundary, reduced to 25 feet, which brings the westerly boundary only about 25 or 30 feet from the nearest point of the mean high water line of the island. If it were not for this indentation, the

westerly boundary of the grant would practically touch the mean high water line of the island at one point. Therefore, by the indentation, a rectangular piece of land about 140 feet long by 25 or 30 feet deep is still retained by the State between the westerly line of the grant at this point and the easterly end of the island. This piece, as has been said, is filled land and not covered by water. It is important to note that no part of the grant touches or adjoins Kline's land east of the boulevard; its only connection with his other property is at its northerly and southerly ends west of the road. Moreover, the land comprising the grant is all solid, filled ground, and a large part of it, including that portion nearest the island, lies on plaintiff's side of what was the centerline or thread of the creek as it existed before the highway construction.

The instrument of grant further recites that it is made and accepted with full cognizance "of the artificial fill placed upon the lands by the County of Ocean for the protection of Bay Boulevard," and then goes on somewhat contradictingly to give the right to exclude tidewater from the land conveyed and thereby appropriate the lands under water to the grantee's own exclusive use after obtaining approval therefor from the Department, and until such filling, it is stated that the grant is made subject to the natural rights of the public to the use of the waters flowing over the same and to temporarily anchor thereon.

Finally, the instrument gives only a conditional grant: "this grant is upon the condition and limitation: that if the said Charles T. Kline, Jr. is not the owner of the upland adjoining the land under tidewater hereby granted, then, and in that event, this conveyance and all the covenants herein on the part of the State shall be void; * * *."

Thereafter, Kline received a permit from the Division, dated January 2, 1951, allowing him for one year to maintain the existing fill on the conveyed lands, subject to the conditions of the grant. No proof of annual renewal thereof is found in the record, but we are assuming such to have been obtained.

It is conceded that Kline did not give any formal six months' notice to plaintiff of his application for the grant as the statutory provisions (of which more hereafter) require when one other than a riparian owner seeks a grant from the State. The plaintiff had actual knowledge thereof, but Kline admits such is not sufficient to comply with the statute if applicable.

Some time in 1950, whether before or after Kline's application was filed, we are not told, the plaintiff applied to the Division for a grant of lands under tidewater, presumably those surrounding his islands, which included in part the lands granted to Kline. The Division denied the application by letter dated January 31, 1951, more than four months after the grant to ...

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