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Bailey v. Driscoll

Decided: October 10, 1955.


On appeal from Superior Court, Appellate Division, whose opinion is reported in 34 N.J. Super. 228.

For reversal -- Chief Justice Vanderbilt, and Justices Heher, Oliphant, Wachenfeld, Burling, Jacobs and Brennan. For affirmance -- None. The opinion of the court was delivered by Burling, J.


This controversy involves the validity of a grant of submerged lands to defendant Kline (hereinafter referred to as Kline) by the Department of Conservation and Economic Development of the State through the Council of the Division of Planning and Development (hereinafter termed "Council").

The action was initiated in the Chancery Division of the Superior Court by plaintiff Frederick C. Bailey (hereinafter called "Bailey") against Kline and numerous state officials, including the Governor, Attorney-General, Commissioners of the Department of Conservation and Economic Development, and the individual members of the Council. Bailey sought invalidation of the grant, injunctive and declaratory relief, all of which was denied and the action dismissed against the state officials. The Appellate Division reversed and remanded, Bailey v. Driscoll, 34 N.J. Super. 228 (App. Div. 1955), ordering substitution of the Council as a party defendant in place of the individually named state officials. Upon defendants' petition, we certified to the Appellate Division. 18 N.J. 546 (1955).

The introductory material contained in the opinion of the Appellate Division of which Judge Frederick W. Hall was the author, sets forth in assiduous fashion the intricate factual and procedural background of this controversy. We choose for conservation purposes to incorporate it in this

opinion by reference thereto from page 233 to the end of the continued paragraph at the top of page 243 of 34 N.J. Super. The disposition of the adjective questions meets our approval. As to the proper party to represent the State's interest we treat the Council as a party defendant. The substantive questions will be dealt with independently in this opinion.

Our concern is directed to legislation involving submerged lands, R.S. 12:3-1 et seq., and the nature of the Council's power as invested by statute to convey such lands. Specifically, did the Legislature impose any limitation on the exercise of that power which would limit the outward extent of a riparian grant to a littoral owner?

Relatively speaking, there is a paucity of decisions in New Jersey relating to the proprietorship of the State as sovereign in submerged lands. This may be attributed to the fact that certain fundamental concepts appear to be firmly embedded in our law. In Ross v. Mayor, etc., of Borough of Edgewater, 115 N.J.L. 477, 483 (Sup. Ct. 1935), affirmed 116 N.J.L. 447 (E. & A. 1936), certiorari denied 299 U.S. 543, 57 S. Ct. 37, 81 L. Ed. 400, Mr. Justice Heher stated:

"In this state it is settled that the title of the riparian owner extends only to the high-water mark. While a boundary on a nonnavigable stream extends ad medium filum aquae, in the case of bays, arms of the sea, and navigable rivers, it reaches only to the shore or ordinary high-water mark. This was a principle of the common law. All the land below high-water mark belonged to the British nation, and was vested in the king, as the head thereof, in trust for the public. It was vested by the Revolution in the sovereignty of the state, and is held under the guardianship of the Legislature. Gough v. Bell, 21 N.J.L. 156; Same case, 22 N.J.L. 441, 455, affirmed 23 N.J.L. 624; Arnold v. Mundy, 6 N.J.L. 1, 71; Elizabeth v. Central Railroad Co., 53 N.J.L. 491; Stevens v. Paterson and Newark Railroad Co., 34 N.J.L. 532; Martin v. Waddell, 16 Pet. 367, 10 L. Ed. 997.

There is an essential difference, however, between the public easement in navigable waters and the title of the state to the underlying lands. 'The former inheres in the state in its sovereign capacity. The latter is strictly proprietary.' Mayor, etc., of Hoboken v. Pennsylvania Railroad Co., 124 U.S. 656, 8 S. Ct. 643, 649, 31

L. Ed. 543. It has been held in this state that, while the king at common law, especially after the grant of Magna Charta, was not possessed of the right to divest the people of their common right of navigation and of fishery, in navigable waters, in virtue of his proprietary interest in the soil thereunder, the dominion of parliament over the jura publica was absolute and unlimited, and the Legislature is possessed of like omnipotent authority to regulate, abridge, or vacate public rights in navigable rivers, except in the field reserved to Congress by the Federal Constitution. Stevens v. Paterson & Newark Railroad Co., supra. The doctrine of this case is that the public has no rights in such waters so fundamental as to be beyond legislative impairment. Be that as it may, the dominion of the state is subject to the paramount power of Congress to control the navigation of such waters to the extent necessary for the regulation of foreign and interstate commerce. Scott v. Lattig, 227 U.S. 229, 33 S. Ct. 242, 57 L. Ed. 490; Mayor, etc., of Hoboken v. Pennsylvania Railroad Co., supra."

The historic decisions of the United States Supreme Court popularly known as the "Submerged Land Cases," -- United States v. California, 332 U.S. 19, 67 S. Ct. 1658, 91 L. Ed. 1889 (1947); United States v. Louisiana, 339 U.S. 699, 70 S. Ct. 914, 94 L. Ed. 1216 (1950); United States v. Texas, 339 U.S. 707, 70 S. Ct. 918, 94 L. Ed. 1221 (1950) -- recognized paramount right in the Federal Government in lands under the sea. For a treatment of these cases refer to Bartley, The Tidelands Oil Controversy, ยง 1301 et seq. (Univ. of Texas Press, 1953). Subsequently Congress enacted the Submerged Lands Act, 67 Stat. 29 (1953), 43 U.S.C., sec. 1301 et seq. (Supp. 1954), 43 U.S.C.A., which, in effect, quitclaimed any right, title or interest, subject to certain exceptions, which the federal government might have in such lands, to the states, and, as applied to New Jersey, within a boundary of three geographical miles extending seaward from the coastline. Constitutionality upheld, State of Alabama v. Texas, 347 U.S. 272, 74 S. Ct. 481, 98 L. Ed. 689 (1954). See Shalowitz, Boundary Problems Raised by the Submerged Lands Act, 54 Col. L. Rev. 1021 (1954). Thus, for the purposes of this decision the law as pronounced by Mr. Justice Heher in the Ross case, supra, is applicable.

Having emphasized the absolute proprietorship of the State in submerged lands within its ...

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