On appeal from Superior Court, Chancery Division.
For modification -- Chief Justice Weintraub, and Justices Heher, Wachenfeld, Burling, Jacobs and Francis. Opposed -- None. The opinion of the court was delivered by Burling, J.
This is an appeal by 24 of 43 original plaintiffs from a declaratory judgment action seeking a determination of whether the plaintiffs as owners of property adjacent to or nearby Culvers Lake have any rights to the recreational use of the lake. The Superior Court, Chancery Division, denied plaintiffs' claim for a judgment declaring this right to so use the lake and for injunctive relief against interference by the defendants. The court entered a judgment pursuant to a counterclaim by defendant, Normanoch Association, Inc., declaring title in the lake to be in the said defendant and granting an injunction against trespass by the plaintiffs. The Borough of Hopatcong was granted leave to interpose as amicus curiae and has filed a brief in the appeal. Prior to hearing, and while the cause was pending in the Appellate Division, we certified the case to this court on our own motion.
Culvers Lake is a natural body of fresh water comprising some 460 acres located in Sussex County, New Jersey. Recent times have witnessed an expansion of the lake area for year-round residential purposes and as a summer resort. There are presently some 536 cottages contiguous to the lake or in the surrounding area.
Originally the lake and surrounding property were owned by the Board of Proprietors of the Eastern Division of New Jersey. The record indicates that at least as early as 1767
the Proprietors began granting property adjacent to the lake. These sales continued until by 1851 all of the property surrounding Culvers Lake had been conveyed. The largest conveyances made during the period from 1767 until 1851 were of Great Lot 45 and Great Lot 46 of the Sussex Allotments conveyed by the Proprietors to John Rutherford in 1834. A substantial portion of the present-day area of the lake was contained within the bounds of these allotments, but the Proprietors in the grants to Rutherford expressly reserved the area covered by the waters of Culvers Lake. (There was no evidence introduced concerning the bounds of the lake as it existed at the time of the grants to Rutherford in 1834. Hence, it cannot be determined upon this record whether the lake area included within the allotments at that time was more or less than it is today.)
In 1882 the Proprietors by deed conveyed to one Nathaniel Niles title to the bed of Culvers Lake. The terse description in the deed reads as follows:
"* * * the lands covered by the waters of Culvers Lake with a margin upon the shores of the same three hundred feet beyond high water mark, a map thereof being filed in the (said) office of the Surveyor General at Perth Amboy on the 18th day of August, A.D. 1882."
No metes and bounds description was included in the deed.
A survey map dated June 30, 1882, on file in the office of the Board of Proprietors and made by Benjamin Roome for Nathaniel Niles, entitled "Map of Culvers Lake," was introduced in evidence. The trial court assumed, and we concur, "that it was in fact the map which was filed on August 18, 1882 and was referred to in the Niles deed." Appended to the map was a metes and bounds description.
In 1920 a group of property owners in the Culvers Lake area organized the Normanoch Association, a non-profit corporation for the purpose of acquiring the title to the lake. By subscription they garnered the necessary funds and in 1921 purchased the lake from the then holders of the Niles title, Julia R. Smith and James L. Smith, her husband.
While the deeds intervening between Niles and the Smiths omitted any reference to the Roome survey and metes and bounds description, the deed in 1921 from the Smiths to the Normanoch Association contained in its description the metes and bounds calculations of Roome. In 1929, following a corporate reorganization, the Normanoch Association conveyed to the present defendant Normanoch Association, Inc., a business corporation.
The evidence adduced at the trial indicates that from 1882 until at least 1921 Culvers Lake was used both by the adjoining owners and the general public for swimming, boating, fishing, and skating and driving on the ice. The lake was, to use the expression of one witness, "as free as the air." Moreover, the testimony shows that persons so engaged in the various recreational activities upon the lake were never molested or interfered with by the owners in any way during that period.
Since acquiring title in 1929 the defendant corporation has paid taxes on the lake. During the 1930's and 40's it made various attempts to get adjoining property owners to join or pay dues to the association for the privilege of using the lake. Each season it sent letters to the adjoining property owners requesting that they pay for the use of the lake; at various times they published notices in a local newspaper; they also posted temporary signs indicating that the lake was private property and for the use of members only. In the main these attempts were in the nature of importunings rather than an active assertion of rights. While the association, at least as early as 1935, hired patrolmen for the alleged purpose of insuring that no boats without the association sticker would be permitted to use the lake, there is no evidence that anyone was ever driven from the lake prior to 1951. Ford N. Merring, a patrolman for the defendant from 1946 until 1951, who was called as a witness for the plaintiffs, testified to his duties as follows:
"Well, the first four years we did not bear down on the people. We patrolled the lake. And I went around and got the names of the residents and all the property owners and talked to them and
solicited them for funds, instead of making a levy on them, and asked them to work with us."
In 1951 one of the plaintiffs herein was successfully prosecuted for trespassing on the lake, and thereafter patrolmen for the association stopped boats without stickers on several occasions. It is significant that beginning between 1951 and 1953 many of the plaintiffs paid the association for lake privileges for the first time.
The pretrial order divided the numerous plaintiffs into four classes:
1 -- Those plaintiffs claiming to own property under the waters of Culvers Lake. They may be divided into two sub-classes as follows: First, those plaintiffs who own property adjoining what it denominated as the Meyer's Cove area. Meyer's Cove is a tract covering some 13 acres underlying the present shoreline of the lake. The area is not located within the Roome survey boundaries of the lake in 1882. Secondly, ...