For reversal and remandment -- Chief Justice Vanderbilt, and Justices Heher, Wachenfeld, Burling and Jacobs. For affirmance -- None. The opinion of the court was delivered by Burling, J.
The factual background of this case is developed in Bailey v. Driscoll, 34 N.J. Super. 228 (App. Div. 1955), reversed 19 N.J. 363 (1955). Plaintiff Bailey owns land which extends out into Barnegat Bay in the Ortley Beach section of Dover Township in Ocean County, New Jersey. The land in question was formerly an island, westerly of and separated from the mainland by a tidewater creek (known as Muscrat Creek) which originated and terminated in Barnegat Bay, encompassing the island in a semi-circular fashion.
Ocean County then constructed Bay Boulevard, running generally in a north-south direction, a portion of which was laid out in the bed of Muscrat Creek. This served to bring
the mainland a considerable distance closer to the easterly tip of Bailey's island. Fill was used to shore up the westerly line of the boulevard and was so liberally applied that Bailey's land was transformed from an island into a peninsula.
When this case was before us during the last term we conceived the characteristics of the terrain to be this: If one were to stand on the connecting fill immediately joining the easterly tip of Bailey's island to the mainland, observing either in a northerly or southerly direction, he would see the waters of Muscrat Creek which but for the fill would be joined. Beyond the creek waters, in either a northerly or southerly direction, one would observe westerly projections of mainland.
These mainland projections (which lie west of Bay Boulevard) are owned by defendant Kline, or at least those portions which lie directly north and south of the connecting fill. By virtue of this "riparian" ownership Kline applied for a grant of land "under the tide waters of said Muscrat Creek lying adjacent to and in front of the premises above described" to the Council of the Division of Planning and Development of the Department of Conservation and Economic Development of the State of New Jersey. The application was approved and a grant of lands "now or formerly flowed by tidewater * * * of Muscrat Creek" was executed. The grant encompassed, for the most part, the area lying between the easterly tip of Bailey's land and the westerly line of Bay Boulevard and extending in a northerly and southerly direction to Kline's mainland properties. We assumed that the grant included both submerged and filled lands, not only from the terms of the application but the grant itself, the aerial photographs and a map which were made a part of the record, and this in the light of a contrary indication in the opinion of the Appellate Division, 34 N.J. Super., at 239. Because Kline thereby came into ownership of a portion of the connecting fill between Bailey's former island and Bay Boulevard, Bailey was precluded from gaining access to the highway.
The precise question decided in Bailey v. Driscoll, 19 N.J. 363 (1955), was whether the Legislature imposed any limitation
upon the outward extent of a riparian grant. We recognized that such grants were to be limited in outward extent by the establishment of exterior lines, that such lines were to be established so as to delineate navigable waters and that access to such waters was a primary consideration and inherent purpose in grants of land flowed or formerly flowed by tidewater. We directed a remand to the Superior Court, Chancery Division for the purpose, inter alia, of
"* * * entering judgment upholding the validity of the riparian grant to defendant Kline to the extent it is not transgressed by the exterior lines to be established by the Council, and without prejudice to either plaintiff Bailey or defendant Kline to institute proceedings to review the action of the Council which is contemplated by this decision."
The Planning and Development Council immediately sought to carry out the court's mandate. A field survey was conducted in the Ortley Beach section in the area of Muscrat Creek and Barnegat Bay to establish high water lines, channels, waterways and filled land. An exterior pierhead and bulkhead line was established off the two portions of Kline's mainland previously adverted to and westerly of Bay Boulevard, which resulted in decreasing the size of Kline's grant in some measure but insufficient to allow Bailey access to Bay Boulevard. The latter was notified of the establishment of the exterior line and now challenges the action of the Council as arbitrary. An appeal was addressed to the Appellate Division and we certified the cause prior to an appellate review below.
It is now apparent that the grant to Kline encompassed only lands formerly flowed by the tidewaters of Muscrat Creek, i.e., filled lands entirely, spreading from the westerly line of Bay Boulevard to a point considerably beyond the westerly line of the grant. The Council, in establishing the exterior line undertaken on the remand, has charted out a prospective waterway which it states will be usable by boats of shallow draft after the fill is removed. We are informed ...