By this suit in lieu of prerogative writ plaintiff seeks to invalidate a resolution (Exhibit P-2) adopted by the Board of Chosen Freeholders of the County of Ocean on May 2, 1956, which provided generally for the acquisition and taking over as a county road of all that portion of 20th Street in the said borough extending from Central Avenue (Long Beach Boulevard) northwestwardly to the high water line of the easterly shore of Barnegat Bay, which high water line is the boundary line between the said borough and the Township of Long Beach, and which resolution further provided for the acquisition of such real estate, or interest therein, by condemnation if necessary, as might be required for said improvement.
By paragraph 4 of the pretrial order made in this cause on September 28, 1956, it is stipulated that the first resolution adopted by the board of chosen freeholders on March 21, 1956 (Exhibit P-1); the giving of notice of public hearing to be held April 18, 1956; and the holding and
conduct of said hearing on the date last mentioned complied with the statutory requirements insofar as concerns the formalities connected therewith; that plaintiff borough, by its officials and representatives, attended the said public hearing held April 18, 1956 and were afforded a full and adequate opportunity to be heard; and that the said board of chosen freeholders had ample funds appropriated in its capital improvement fund to cover the cost of the making of said improvements.
At the opening of the trial of this cause, the parties by their respective counsel further stipulated:
(1) That Central Avenue, otherwise known as Long Beach Boulevard, is a county road extending through the Borough of Barnegat Light.
(2) That Barnegat City Improvement Co., former owner of the territory now comprising the Borough of Barnegat Light, caused a map of its property to be prepared by A. P. Irons dated December 21, 1880, filed in the Ocean County Clerk's Office June 14, 1881, dividing the area now comprising the said borough into streets, lots, blocks, etc., and showing thereon, inter alia , 20th Street of a width of 70 feet (Exhibit D-8), extending from Seaview Avenue on the east in a general northwestwardly direction, crossing Central Avenue, otherwise known as Long Beach Boulevard, to Bayview Avenue on the west, but not beyond Bayview Avenue (see map marked Exhibit P-4).
(3) That the said land company caused copies of said map to be circulated; sold lots therefrom; and that the action of the land company amounted to a tender of dedication of the streets shown on said map, including 20th Street, for public use.
(4) That the acts of the borough (whose name was changed from that of Barnegat City to Barnegat Light), including the improvement of 20th Street with state aid, constituted a sufficient acceptance of the tender of dedication to constitute 20th Street a public street from Central Avenue northwestwardly to Bayview Avenue as shown on said map (Exhibit P-4).
(5) That the borough has been the owner of the fee of the soil of the lands lying between Bayview Avenue as shown on said map and the mesne high water mark of Barnegat Bay in the area of 20th Street since the year 1929, the borough having acquired title to said lands by deed from Barnegat City Improvement Co., dated May 6, 1929, and recorded in the Clerk's Office of Ocean County May 9, 1929 in Book 823 of Deeds, page 86.
(6) That the affidavits and maps and documents annexed thereto, submitted to the court in connection with the defendant's motion for summary judgment, which motion was denied, shall be considered in evidence in this cause to the same extent as if testified to by witnesses under oath, excepting that the court is to disregard any hearsay statements or statements of conclusions as may be contained in said affidavits.
(7) That the affidavit of Mr. William S. Grimaldi filed in said cause, dated November 28, 1956, shall be admitted in evidence and marked Exhibit P-5, subject however to the same qualifications and limitations as stated respecting the other affidavits above mentioned.
Referring to the pretrial order made in this cause and dated September 28, 1956, at the conclusion of the trial plaintiff abandoned the points raised under paragraph 2, subsections E and G, and the defendant abandoned points raised in paragraph 3, subsections D, F and G.
In addition to the factual matters stipulated as recited above, from the pretrial order, pleadings, exhibits and other proofs in the cause, I find the pertinent facts necessary to a disposition of this cause to be as follows:
Plaintiff, Borough of Barnegat Light (formerly known as Barnegat City), is a municipal corporation located at the northerly end of Long Beach Island in the County of Ocean. It is bounded on the east by the Atlantic Ocean; on the north by Barnegat Inlet; on the west by the high water line on the easterly shore of Barnegat Bay; and on the south by the northerly boundary line of Long Beach Township. And the high water line on the easterly shore of
Barnegat Bay is likewise the boundary line between the said borough and the said township, (Exhibit P-4). There are three public streets running in a general northwardly and southwardly direction through the borough, namely Seaview Avenue on the east along the ocean; Central Avenue (otherwise known as Long Beach Boulevard), about midway between the ocean and bay; and Bayview Avenue on the west, running generally parallel to the bay shore. In addition, a street known as Broadway runs diagonally across the island from Seaview Avenue at 12th Street to Barnegat Inlet. Additionally, there are cross streets running generally east and west, beginning with 1st Street on the north and ending with 29th Street on the south (Exhibit P-4). All of the lands now comprising the Borough of Barnegat Light were formerly owned by Barnegat City Improvement Co., which company caused the lands to be mapped, divided into lots, blocks, streets and avenues as shown on the map (Exhibit P-4), said map having been surveyed and drawn by A.P. Irons, C.E., December 21, 1880 and filed in the Ocean County Clerk's Office June 14, 1881. On said map 20th Street, which is in controversy in this suit, is shown extending from Seaview Avenue on the east westwardly crossing Central Avenue, or Long Beach Boulevard, to Bayview Avenue on the west. The original map does not show 20th Street extending to the west of Bayview Avenue, and does show a strip of unplotted land between the westerly side of Bayview Avenue and the high water line of the bay (Exhibit P-4).
High Bar Island lies in Barnegat Bay about 1,500 feet west of the easterly shore of Barnegat Bay, which is the boundary line between Borough of Barnegat Light and the Township of Long Beach; contains approximately 800 acres in area; and has been mapped and subdivided into something over 2,500 building lots. And some 3,000 feet farther out in the bay, to the north, are islands known as Sunset Shoal, comprising something over 400 acres in area, (Exhibit P-12). Both islands lie in the Township of Long Beach west of the Borough of Barnegat Light.
In 1945 the U.S. Government, having acquired by condemnation easement rights, created by means of a hydraulic fill a sand dike beginning at the westerly end of 20th and 21st Streets in the Borough of Barnegat Light, extending thence in a general northwardly direction to the bay and across High Bar Island and continuing thence northwardly through another section of the bay and across the islands known as Sunset Shoal (Exhibit P-12). This dike built by the government was erected in connection with the improvements to Barnegat Inlet and was designed to divert the tidal flow into a newly constructed channel of Barnegat Inlet. The sand dike was pumped in to a height of about seven feet above high water, and as much as 11 feet above high water at some points; is from six to seven hundred feet in width at water level; about 200 feet in width at the top of the dike; and the sand from the building of the dike spilled over as far as Central Avenue (Long Beach Boulevard) in the Borough of Barnegat Light and for a considerable distance along the bay shore north and south of the dike. It completely obliterated the former high water mark on the easterly shore of the bay at 20th and 21st Streets and for some distance north and south thereof.
In 1946 the Borough of Barnegat Light with state aid and under supervision of the late Benjamin Sleeper, Borough Engineer, improved 20th Street from Central Avenue on the east, westwardly crossing Bayview Avenue for a total distance of some 715 to 720 feet. It was improved by grading to a width of 30 feet, graveling for the same width, with a three-foot slope on each side of the 30-foot-wide improvement. And in subsequent years 20th Street was further maintained and improved by scraping and by applying oil to the surface thereof so as to afford a hard surface highway. At the westerly end of 20th Street, as a part of the improvement of said 20th Street, there was erected a wooden barrier by sinking posts into the ground and fastening heavy boards thereto. Then the barrier was painted. That barrier is located 123.5 feet west of the westwardly side of Bayview Avenue, near, but not identical
with, the end of the improvements to the street. In fact, the improvement by grading and graveling of 20th Street extended some five to eight feet beyond and to the west of said barrier.
The proofs disclosed and I find as a fact that the westerly end of 20th Street as built by the borough with state aid in 1946 extended beyond the former high water line and is at a point a few feet west of the former high water line on the easterly shore of the bay as the same existed before it was obliterated by the sand dike in 1945, and that the edge of the meadow marking the high water line of the easterly shore of the bay as it existed prior to the building of the sand dike is located beneath the sand at a point approximately 1 1/2 feet west of the said wooden barrier erected in 1946 (Exhibits P-3, D-12, and D-11).
As mentioned, the original maps (Exhibits P-4 and P-9) reveal that 20th Street ends at Bayview Avenue and it does not extend beyond Bayview Avenue. However, by deed dated May 6, 1929 and recorded in the Ocean County Clerk's Office May 9, 1929 in Book 823 of Deeds at page 86 et seq. , the said borough acquired from Barnegat City Improvement Co. the fee title to certain lands including the lands lying between Bayview Avenue shown on the map, and the high water mark of the bay, subject to certain restrictions as to use (Exhibits P-4 and D-6, and there was a so-called corrective ...