Goldmann, Freund and Conford. The opinion of the court was delivered by Goldmann, S.j.a.d.
This action was brought to determine the rights of the respective parties to land under the tidal waters of the Delaware River known as Fisher Cove, in Pennsauken Township, Camden County, New Jersey, and to quiet title to that land. Additionally, plaintiff sought an injunction against defendant's dredging operations in the cove.
Plaintiff claims by reason of an act of 1869 (c. 386) which authorized the Camden and Amboy Railroad and Transportation Company and two other utilities to reclaim and improve lands under tidewater fronting on uplands owned by
them and to take title to the lands so reclaimed and improved. Among the properties allegedly benefitted by this act was a 1,000-foot strip of upland along Fisher Cove in the Delaware River north of Camden. In August 1955 this right of reclamation, still unexercised, was conveyed by the railroad company (then consolidated with the two other utilities under the name of The United New Jersey Railroad and Canal Company) to plaintiff River Development Corporation, which had been organized for the purpose of converting submerged lands into industrial sites. In the fall of 1956, and before plaintiff had embarked upon any improvement in Fisher Cove, defendant Liberty Corporation sent its dredging equipment into the cove and proceeded to remove underwater sand and gravel. Plaintiff then instituted this action and obtained a temporary restraining order. The parties entered into a stipulation that defendant would not dredge in the underwater area claimed by plaintiff until the Chancery Division had determined that the dredging did not interfere with any right, title or interest of plaintiff.
The Attorney-General appeared as amicus curiae at the request and for the assistance of the court in its consideration of the riparian law of the State and the legislative grant in L. 1869, c. 386. He introduced no evidence but in his brief claimed that the 1869 act gave only a license to reclaim the submerged lands, revocable at any time by the State, and that such revocation was effected by L. 1894, c. 71.
As against plaintiff's demand for judgment adjudicating its rights in Fisher Cove, for a permanent injunction restraining defendant Liberty Corporation from its dredging operations, and an accounting for profits and damages for the sand and gravel already dredged, defendant claimed that (1) the Camden and Amboy Railroad and Transportation Company acquired no rights in the submerged lands in question because it failed to comply with the conditions attached to the statutory grant of 1869 in that it was not the riparian owner of Fisher Cove at the time of the grant, and the map and description filed by it with the Secretary of State did not meet the requirements of the statute, the
one-dimensional map not being a map in the statutory sense, and the call to "deep water" in the description being too indefinite for location; (2) if the right to reclaim vested in the railroad, it was thereafter revoked or terminated; (3) the right had been abandoned; (4) the railroad's deed to plaintiff was invalid because the right to reclaim depended upon continued riparian ownership and could not be transferred in gross and, further, the deed was void because not legally approved by the Board of Public Utility Commissioners; (5) in any event, plaintiff's right to reclaim did not extend outstream more than 1,700 to 1,800 feet from the high water line of 1869; and (6) if plaintiff acquired any right to reclaim, it was a non-exclusive right until exercised and did not preclude defendant's dredging prior to plaintiff's reclamation.
The Camden and Amboy Railroad Transportation Company was incorporated by special act of the Legislature in 1830 for the purpose of building a railroad between Camden and South Amboy (L. 1830, p. 83). Section 11 of its charter authorized the company to survey, lay out and construct such railroad, with all necessary appendages, provided that the road or its branches should not exceed 100 feet in width. The initial survey was made by Lt. William Cook of the U.S. Artillery whose field notebooks are in evidence, the first two covering the survey between Camden and South Amboy completed in December 1830, and the third covering the relocation survey completed in April 1833.
Title to the portion of the railroad abutting Fisher Cove was obtained by deed from William Folwell and wife to the company under date of November 22, 1831. The description in this deed locates the land conveyed as "so much of the lands of the said party of the first part situate in the Township of Waterford in the County of Gloucester in the State of New Jersey, over which the line of said Rail Road is now laid out and located as may be necessary for the
use and construction of the said Road * * *." The deed continues:
"* * * the line of said Road when completed not to exceed fifty feet in width through and across the farm of the said party of the first part situate near Coopers Creek [now in Camden, New Jersey] and running from William Coopers line, to the line of Joseph Gardiner and Joseph W. Cooper, and from thence to include a road of twenty five links in width to the said Folwells other land purchased by him of the said Joseph Gardiner, and the said line not to exceed one hundred feet in width through and across the other farms of the said party of the first part, lying on the River Delaware when completed as aforesaid, TOGETHER with all and singular the ways water rights liberties privileges and appurtenances thereto * * *."
These lands are situate in what is now Pennsauken Township, Camden County. Plaintiff's claim of right in Fisher Cove as an upland owner springs from this deed. It contends that the line of the right-of-way granted by Folwell bordered the Delaware River for the entire 1,000-foot length in question. Defendant disputes that the description in the Folwell deed included the high water mark. Much of the testimony and many of the exhibits were addressed to this phase of the case.
Not long after its organization, the Camden and Amboy entered into an informal consolidation or "active union" with its potential competitor, the Delaware and Raritan Canal Company, incorporated the same day. They agreed they would jointly complete and operate their respective projects. Burgess and Kennedy, Centennial History of the Pennsylvania Railroad Company , 1846-1946, pages 245, 251 (1949). Later another competitor, the New Jersey Railroad and Transportation Company, was absorbed into the union, the three companies sharing their issued stock and having a common board of directors. Ibid., pages 262, 263. This group became known as The United New Jersey Railroad and Canal Company (familiarly "The United Companies") and was so recognized in a number of our statutes. One of the more important of such laws is chapter 248 of the Laws of 1868 granting "the right and title of the state to the land lying between high water mark on the west, the
deep water of the Hudson on the east, the center of south Second Street on the north and the center of south Seventh Street on the south in Jersey City," except for the so-called Budd grant, to The United Companies, their successors and assigns, to hold in the corporate name of New Jersey Railroad and Transportation Company. This is known as the Harsimus Cove grant. Authority was given the grantee to fill up and improve the property with wharves, storehouses, depots, shops, etc., and to extend bulkheads, solid filling and piers to the exterior lines adopted for those purposes by the commissioners appointed under L. 1864, c. 391, or to such other exterior lines as might thereafter be established by or under the authority of the Legislature. The United Companies were to pay the State Treasurer such sum as might be fixed by the Attorney-General and three commissioners. They eventually fixed the purchase price of Harsimus Cove at $500,000, and their report was accepted by The United Companies.
The following year the Legislature enacted L. 1869, c. 386, hereinafter referred to as The United Companies Act, under which plaintiff claims. We reproduce it in full:
"Whereas, the United Delaware and Raritan Canal Company, the Camden and Amboy Railroad and Transportation Company, and the New Jersey Railroad and Transportation Company, have recently secured to this state the payment of five hundred thousand dollars for the grant of lands under water, in front of lands owned by them, and are desirous of having the right and privilege of erecting and making wharves, piers and other improvements in front of other lands now owned by or in trust for them, so that they may safely make such improvements as they may find necessary to facilitate their business; therefore,
Be It Enacted by the Senate and General Assembly of the State of New Jersey , That the said United Companies shall be and they are hereby authorized to reclaim and erect wharves and other improvements in front of any lands now owned by or in trust for them, or either of them, or by any company in which they now hold the controlling interest, adjoining Kill Von Kull or any other tide waters of this state; and when so reclaimed and improved to have, hold, possess and enjoy the same as owners thereof; provided , that such improvements shall be subject to the regulations (where applicable) as to the line of solid filling and as to pier lines heretofore recommended in the report of the commissioners made and filed under the
act entitled 'An act to ascertain the rights of the state and of the riparan [ sic ] owners in the lands lying under the waters of the bay of New York and elsewhere in this state,' approved April eleventh, eighteen hundred and sixty-four, but neither said improvements nor those which may be made by said companies in Harsimus Cove shall be subject to any other restrictions than those contained in said report; and provided further , that the said United Companies shall, on or before the first day of July next, pay to the treasurer of this state the further sum of twenty thousand dollars in full satisfaction for the right and privilege hereby granted; and provided further , that the said United Companies shall on or before the said first of July, file in the office of the secretary of state a map and description of the lands under water in front of the upland referred to in this section."
The $20,000 consideration called for by chapter 386 was thereafter paid to the State, and a quadrant of the map and a description of the lands here involved filed with the Secretary of State. The original map and description are reproduced in the Chancery Division opinion appearing in 45 N.J. Super. 445, at page 451. The description refers to lands lying under the tide waters of the Delaware River in Stockton Township, Camden County, "granted" to the United Delaware and Raritan Canal Company, Camden and Amboy Railroad and Transportation Company and New Jersey Railroad and Transportation Company by act of the Legislature, approved March 31, 1869, i.e., c. 386, and continues:
"The said lands under water so granted lie in front of the uplands adjoining said River belonging to the Camden and Amboy Railroad and Transportation Company: Beginning at high water mark on the division line between said uplands and the land owned by James M. Chapman and running thence in a North Easterly direction along the high water line of said River and along the said uplands one thousand feet more or less to other land of the said James M. Chapman, and the lands so granted extend in a North Westerly direction from the said high water line to the deep waters of the said Delaware River."
It will be noted that chapter 386 of the Laws of 1869 imposed a limitation upon the extent of its authorization to reclaim and improve outstream by requiring that it "shall be subject to the regulations (where applicable) as to the line of solid filling and as to pier lines heretofore recommended
in the report of the commissioners" appointed under the act of April 11, 1864 (L. 1864, c. 391). The commissioners' report, however, was confined to the Hudson River and adjacent waterways; no line for solid filling or bulkhead or pier lines had been established in the Delaware at the time the 1869 act was adopted.
Fisher Cove in 1869 was a moderate concavity in the eastern shoreline of the Delaware River. In 1886 the United States Corps of Engineers completed the erection of a wide stone dike, known as Fisher Dike, beginning at the northerly extremity of the cove near Fisher Point and extending some 3,000 feet downstream and close to the main channel of the river. The cove is bordered by a steep bank rising between 25 and 40 feet to a plateau on which there has lately been extensive urban construction. The bank is a natural feature, not man-made. The railroad right-of-way and tracks are located on a shelf built half-way up the bank.
On June 30, 1871 The United Companies leased all their property and franchises to the Pennsylvania Railroad Company for a term of 999 years. The next year the Legislature authorized the formal consolidation of the Camden and Amboy, Delaware and Raritan, and New Jersey Railroad and Transportation companies. L. 1872, c. 223. The consolidation was effected soon thereafter, the new company taking the corporate name of "The United New Jersey Railroad and Canal Company," L. 1872, p. 1402. All assets of the three companies were transferred to this new entity, including whatever rights Camden and Amboy had in Fisher Cove, sometimes designated in the testimony as Parcel C.
On August 12, 1955 The United New Jersey Railroad and Canal Company conveyed to plaintiff "all its estate, right, title and interest" of, in and to the lands under water bordering the 1,000 feet of shore frontage on Fisher Cove and extending westwardly to the U.S. Bulkhead and Pierhead Line of the Delaware River as established in 1940, the high water line running northeast as well as southwest to lands formerly of James M. Chapman. The line of upland is located and described by metes and bounds. The
recited consideration for the deed is $1,000; attached is a quitclaim by the Pennsylvania Railroad Company, lessee of The United Companies. The conveyance received the approval of the New Jersey Board of Public Utility Commissioners.
It is conceded that the right to reclaim given by the 1869 act has never been exercised insofar as the lands involved in this litigation are concerned.
The Chancery Division, after a comprehensive review of the record and the riparian law of the State of New Jersey as developed by the Legislature and the courts, held that plaintiff's predecessor in title, The United Companies, received only a revocable license to the subaqueous lands in front of their Fisher Cove property from the State under The United Companies Act, L. 1869, c. 386; and further, that the license was revoked by virtue of L. 1891, c. 124. The court found support for the establishment of a public policy to revoke all licenses of like nature theretofore given, in L. 1894, c. 71, as maintained by the State. River Development Corp. v. Liberty Corp. , 45 N.J. Super. 445 (1957). The trial judge consequently entered final judgment declaring that the State of New Jersey has unencumbered title in fee simple to the submerged lands in question and the right to license defendant to dredge any such lands, and that plaintiff has no right, title or interest therein.
After the entry of final judgment, the Pennsylvania Railroad Company, acting for itself as lessee and for The United New Jersey Railroad and Canal Company as grantor, filed a verified petition in this court for leave to appeal or, in the alternative, that its counsel be permitted to appear as amicus curiae and file a brief in support of its contention that the judgment below be reversed and to present oral argument in support of its position. The petition reflected the applicant's belief that the judgment of the Chancery Division rendered uncertain not only plaintiff's title to the
submerged lands in question but also the title of other grantees similarly derived from The United New Jersey Railroad and Canal Company through The United Companies Act of 1869, as well as the titles to submerged lands still held by The United Companies. All of the parties consenting thereto, we entered an order granting the alternate relief requested, so that we have before us not only the briefs of plaintiff and defendant but those filed on behalf of the State and of the Pennsylvania Railroad Company, as amici curiae.
In colonial days title to tide-flowed lands below high water mark within the limits of New Jersey were in the English Crown. Following the Revolution, title was deemed vested in the State. Arnold v. Mundy , 6 N.J.L. 1 (Sup. Ct. 1821); Martin v. Waddell's Lessee , 16 Pet. 367, 41 U.S. 367, 10 L. Ed. 997 (1842) (also reported in 18 N.J.L. 495 (Sup. Ct. 1842)); Bell v. Gough , 23 N.J.L. 624 (E. & A. 1852); Schultz v. Wilson , 44 N.J. Super. 591 (App. Div. 1957), certification denied 24 N.J. 546 (1957). These tide-flowed lands were held under the guardianship of the Legislature and were subject to express grant by statute of a freehold or lesser estate to any grantee, whether or not owner of the adjacent uplands. Stevens v. Paterson and Newark R.R. Co. , 34 N.J.L. 532 (E. & A. 1870); Ross v. Mayor, etc., of Borough of Edgewater , 115 N.J.L. 477 (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 (1936); and see P.L. 1832, p. 15; P.L. 1837, p. 13; P.L. 1837, p. 64; L. 1868, c. 248 and L. 1869, c. 383 for examples of statutory grants.
Although under the English law an upland owner had no right to improve the lands between high and low water fronting his property (to do so constituted a purpresture), there arose in this State the custom that a riparian owner, by ...