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Main Associates Inc. v. B. & R. Enterprises Inc.

Decided: May 23, 1962.

MAIN ASSOCIATES, INC., PLAINTIFF,
v.
B. & R. ENTERPRISES, INC., ITS SUCCESSORS OR ASSIGNS; UNKNOWN OWNER OR UNKNOWN CLAIMANT, HIS HEIRS, DEVISEES AND PERSONAL REPRESENTATIVES, AND HIS, THEIR OR ANY OF THEIR SUCCESSORS IN RIGHT, TITLE AND INTEREST; AND THE STATE OF NEW JERSEY, DEFENDANTS, V. BOROUGH OF PENNS GROVE, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, THIRD-PARTY DEFENDANT



Wick, J.s.c.

Wick

Plaintiff Main Associates, Inc., a New Jersey corporation with principal offices in the Borough of Penns Grove and County of Salem, is seeking to foreclose a tax sale certificate against defendant B. & R. Enterprises, Inc., owner of the premises in question, which tax certificate was assigned to plaintiff by the Borough of Penns Grove.

The matter before this court involves the assessment of riparian land located in the Delaware River adjacent to the Borough of Penns Grove. The court is directly concerned with those premises known as Tract No. 1 owned by B. & R. Enterprises, Inc., upon which tract a pier has been erected extending for several hundred feet into the Delaware River. The Borough of Penns Grove, alleging the land and premises to be situate within the borough, has assessed taxes thereon. By reason of nonpayment of these

taxes a sale was conducted and the premises purchased by the Borough of Penns Grove. A tax sale certificate was delivered to the borough, being dated December 21, 1954, and on April 29, 1959 the tax certificate was assigned to plaintiff for $2,150.81, the sum claimed due the borough under said certificate.

The facts show that defendant owns no upland, or ripa, adjacent to the riparian land in question. It has derived its ownership of the riparian tract through a riparian grant made by the State of New Jersey to the Penns Grove Pier Company, defendant's predecessor in title. In pursuance of said grant the Borough of Penns Grove enacted an ordinance waiving its riparian rights in Tract No. 1, and in consideration of such waiver received a conveyance of certain surrounding lands from the Penns Grove Pier Company by deed of April 14, 1916. The premises conveyed consisted of an extension to Main Street in the Borough of Penns Grove, with Penns Grove Pier Company retaining a right of reversion therein should the land be used for other than public or municipal purposes. By reason of the conveyance of Tract No. 1 from Penns Grove Pier Company to B. & R. Enterprises, Inc., the latter has succeeded to the reversionary right formerly held by the pier company. This right represents a future rather than a present interest, so, for the purposes of this opinion, it can be acknowledged that defendant does not presently own any portion of the ripa.

The matter is further complicated by reason of a United States Supreme Court decision entered on June 3, 1935 in the case of New Jersey v. Delaware , 291 U.S. 361, 54 S. Ct. 407, 78 L. Ed. 847. This decision, in fixing the boundary of the State of Delaware, held that said boundary was to encompass an area within a 12 mile radius of the town of New Castle, Delaware, to the mesne low water mark on the New Jersey side of the Delaware River. This decision was made without prejudice to the rights of either state under the Compact of 1905 which has been enacted

in New Jersey as R.S. 52:28-34 et seq. The Borough of Penns Grove is so geographically located that the aforesaid 12-mile radius would arc at the mesne low water mark fronting said borough. This fact has prompted defendant to assert the defense that the assessment levied by Penns Grove is illegal since the premises sought to be levied upon are located within the 12-mile radius and therefore situate within the State of Delaware. By contending the premises to be within the confines of the State of Delaware defendant is, in effect, not only claiming them to be outside the jurisdiction of the Borough of Penns Grove, but outside the State of New Jersey as well. While this defense may have some prima facie merit, the court is not willing to concede its validity. To do so would permit defendant to dispute the source of its title. Following this defense to its logical conclusion, and assuming the premises to be within the State of Delaware as contended, defendant could not claim good title to the land in question since neither it nor its predecessors in title have ever been recipients of a riparian grant from the State of Delaware. To go even further, it could be contended that by reason of defendant's nonownership it has no interest in the premises whatsoever since it owns no ripa upon which riparian rights could attach.

The court realizes that defendant could not have intended this defense to develop such ramifications. Rather, it is merely an attempt by defendant to circumvent the assessment by alleging lack of jurisdiction in the taxing body. This defense is best disposed of by resort to the United States Supreme Court decision in New Jersey v. Delaware , above. In its concluding language the court states, on page 385, 54 S. Ct. , on page 415:

"Within the twelve-mile circle, the river and the subaqueous soil thereof up to low water mark on the easterly or New Jersey side will be adjudged to belong to the state of Delaware, subject to the Compact of 1905."

The Compact of 1905, referred to above, is a compact entered into between the States of New Jersey and ...


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