For reversal -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For affirmance -- None. The opinion of the court was delivered by Haneman, J.
This is an appeal by Normanoch Association, Inc. (Normanoch), from a judgment of the Superior Court, Chancery Division, which dismissed its complaint demanding injunctive relief and damages against Paul Baldasanno (Baldasanno) for alleged trespass upon certain lands underlying Culvers Lake in Sussex County, and which adjudged Baldasanno the owner of said lands. Decision in this matter was held in abeyance, awaiting the argument of a related case. See Normanoch Association v. Deiser, 40 N.J. 100 (1963).
Normanoch is a corporation organized in 1929 by owners of lands in the vicinity of Culvers Lake for the purpose of acquiring title to the lake bed. Baldasanno is an owner of a lakeside lot, who claims title in the lake bed to the extent of 200 feet in front of said lot. It is this 200-foot segment of the lake which is here involved.
Normanoch, asserting title to the entire lake bed, brought suit seeking to enjoin Baldasanno from making use of the waters in front of his property for boating, fishing, swimming, maintaining a dock and boathouse, and piping water. It also demanded damages for Baldasanno's alleged past acts of trespass.
Baldasanno filed an answer denying Normanoch's title. Although other defenses were raised in the answer, the pretrial order limited the issues to (1) whether Normanoch had title to the land involved, (2) whether Baldasanno had trespassed thereon, and (3) whether Normanoch was entitled to an injunction and damages.
After plenary trial, the Chancery Division concluded that Normanoch did not have title to the bed of the lake to the
shoreline but, on the contrary, that title to the underwater lands extending 200 feet into the lake adjacent to the high land of the Baldasanno lot was vested in him. Subsequent to the rendering of this opinion, Baldasanno was permitted to file a counterclaim asserting his ownership in said lands and demanding an adjudication to that effect on the basis of the proof already presented.
Final judgment was then entered dismissing Normanoch's complaint and adjudging that Baldasanno had title to the aforementioned portion of the lake bed. From this judgment Normanoch appealed to the Appellate Division. Before argument there, this court certified the appeal on application. R.R. 1:10-1(a).
Normanoch bottoms its claim to title (1) upon estoppel arising from a judgment entered in prior litigation (Baker v. Normanoch Ass'n. Inc., 25 N.J. 407 (1957)) and (2) as ultimate successor in title to the original grantee in a deed dated September 1, 1882 from the Board of Proprietors of the Eastern Division of New Jersey (Proprietors) to Nathaniel Niles encompassing in its terms the waters of Culvers Lake.
Baldasanno (1) denies that the court in Baker v. Normanoch Ass'n. Inc., supra, adjudged title to the disputed lands to be in Normanoch, and (2) asserts that title to those underwater lands is vested in him as the ultimate successor in title to a portion of an original grant from the Proprietors to John Rutherfurd surveyed July 31, 1828 and recorded in the office of the Proprietors on May 23, 1834.
We shall first consider Normanoch's contention that Baldasanno is estopped from contesting its title by virtue of the judgment in Baker, supra.
In that case a number of owners of property surrounding Culvers Lake sought a judgment declaratory of their rights to use Culvers Lake for recreational purposes. The plaintiffs were divided in the pretrial order into four classes. Baldasanno was included within the class which claimed title
to a part of the lake bed. As to that class the late Justice Burling said, 25 N.J., at p. 419:
"For the purposes of the present controversy we need go no farther than to hold that where, as here, one party is the undisputed owner of the substantial portion of the bed he may exclude therefrom owners of minimal portions of the bed. These plaintiffs are restricted to the use of such portions of the waters of the lake, the bed of which they may own."
The final judgment entered pursuant to the mandate of this court in modification of the original judgment recited:
"(1) That defendant Normanoch Association, Inc. owns and holds title to the major portion of the bed and waters of Culver Lake, and that ownership of the vast portion of the present boundaries of the lake is in said defendant; * * *.
(2) That no determination is being made as to the precise boundaries between the lands owned by defendant Normanoch Association, Inc. and those owned by those plaintiffs claiming title by deed to portions of the bed of the lake; * * *."
The express terms of the opinion and the final judgment in Baker, supra, militate against Normanoch's contention. The question of title here involved was not determined in that suit and Baldasanno is, therefore, not estopped from contesting Normanoch's purported title.
We come, therefore, to the primary, remaining issue, whether the Rutherfurd grant or the Niles deed encompassed the lands in question.
Basically, the solution of this problem depends upon the location of the perimeter of the lake as it existed either at the time of the survey made for Rutherfurd on July 31, 1828 or at the recordation thereof on May 23, 1834, as Niles could have obtained title in 1882 to but so much of any lands which might now be submerged as were excepted from the Rutherfurd grant. Since the ultimate decision depends upon these two chains of title the sequence of grants and conveyances will be outlined. Each will be separately listed, Baldasanno's claim first because therein lies the nub of the question.
Prefatory to an analysis of the respective chains of title, however, some brief history of the Proprietors and their methods of conveying title, a detailed recital of which is contained in Proprietors of Eastern Division of New Jersey v. Force's Executors, 72 N.J. Eq. 56 (Ch. 1896), is in order. The Proprietors, in 1682, became successors to the lands once held by Sir George Carteret and were thereby vested with title to lands in that portion of the colony known as Eastern New Jersey. In some instances the Proprietors sold lands to the public and conveyed title by deed. The more common method of land disposition was by the issuance to its members of special warrants or right of locations by way of dividends. These instruments came to be known as "warrants" or "rights" and entitled the holder to have set off to him a certain number of acres in severalty wherever he chose to locate them, if the warrants were unrestricted, or in a special locality if they were restricted. When issued, the warrants were credited to the proprietor in a book of the Proprietors designated a "warrant book."
The mode of locating land under a warrant of location was as follows: The owner of the warrant having chosen his land applied to the Surveyor General of the Proprietors to survey it for him. As it was impracticable for the Surveyor General to make all such surveys the practice had been from early times for that officer to appoint Deputy Surveyors in the various parts of the domain and for the holder of the warrant to employ one of these Deputy Surveyors to survey the land. The Deputy then certified that he had surveyed the land at the request of the warrant-holder, gave its metes and bounds description and contents together with a map and computation of contents annexed, and sent the certificate of survey to the Surveyor General. This certificate came to be called simply a "survey." The Surveyor General, having examined the documents and verified the accuracy of the survey and computations, made a certificate -- called a "return" -- of the land so surveyed to the holder of the warrant and transmitted it to the register of the Proprietors who charged the number of
acres contained in it against the account of the holder of the warrant on the warrant-books of the Proprietors. The Proprietors in council assembled, then approved and recorded the certificate.
As to the vesting of title by these warrants, Chief Justice Kirkpatrick said, in Arnold v. Mundy, 6 N.J.L. 1, at pp. 67-68 (Sup. Ct. 1821):
"The proprietors of East Jersey are tenants in common of the soil; their mode of severing this common estate is by issuing warrants, from time to time, to the several proprietors, according to their respective rights, authorizing them to survey and appropriate in severalty, the quantities therein contained. Such warrant does not convey a title to the proprietor, he had that before; it only authorizes him to sever so much from the common stock, and when so severed, by the proper officer, it operates as a release to him for so much. This is the case when the proprietor locates for himself. When he sells his warrant to another, that other becomes a tenant in common with all the proprietors pro tanto, and, in the same manner, he proceeds to convert his common, into a several, right. Regularly there is a deed of conveyance upon the transfer of this warrant for so much of the common property and that deed of conveyance, and the survey upon the warrant, is the title of the transferee. It is true, that the survey must be inspected and approved by the board of proprietors, and must be carefully entered and kept in the secretary's office, or in the office of the surveyor-general of the division, but this is for the sake of security, order, and regularity only, and is, by no means, the passing of the title. It proves that the title has already passed, but it is not the means of passing it. It may be likened to the acknowledgement of a deed by a femme covert. Her deed cannot prevail against her, unless such acknowledgment be regularly made and recorded; yet such acknowledgment does not pass the title, the deed has already done that, and it operates from the day of its date."
And again, 6 N.J.L., at p. 69:
"* * * The truth is, I believe, that the survey of the proper officers, under a warrant duly issued for that purpose, has always been considered as the act of severance; the inspecting, approving, and recording, as relating back to that act; and the party surveying, as having an estate in severalty from that time. And, of course, except in the case of posterier surveys, the time of inspecting, approving and recording has not been thought material. And, as to the mode of partition, however necessary it may have been in other cases
of tenancy in common, that it should be made by deed; yet in this proprietary estate, upon locations of this kind, I believe it never has been so done."
In 1774 the Proprietors had lands in Sussex County surveyed, and subdivided the area into numerous "Great Lots," the tract being designated the "Sussex Allotments." Title to the major portion of Great Lots 45 and 46 of the Sussex Allotments, within whose bounds lies the greater part of Culvers Lake, remained vested in the Proprietors in 1828, grants having been made of some portions thereof prior to that date.
In 1828, John Rutherfurd, a New York lawyer and a member and president of the Proprietors who had over the years acquired a number of warrants under which no land had yet been appropriated, caused Great Lots 45 and 46 to be surveyed for him by Deputy Surveyor Richard M. Lawrence. Baldasanno's lot lies within the confines of Great Lot 46. The description of Great Lot 46 as contained in the Lawrence survey dated July 21, 1828 recites the area of that Lot to be 1,426 acres. Within its bounds were portions of two natural bodies of water, one known as Round or Great Pond, now known and herein referred to as Culvers Lake, the other as Long Pond, now known as Lake Owassa. The description excepted from the total 1,426-acre area, lands theretofore granted to others, as well as 207.99 acres recited as covered by a part of Culvers Lake within Lot 46 and 24.83 acres recited as covered by a part of Long Pond within that Lot. Neither of these bodies of water was described by metes and bounds in the survey nor do there appear delineated on the accompanying Lawrence map any bearings, distances or stations around the perimeter of the lakes. The net acreage appropriated within the survey after deducting these excepted acreages was 1,000 acres. Although according to its terms, the survey was made on July 31, 1828, for some unexplained reason the return was not issued and recorded until May 23, 1834. The
survey of Lot 45, made a few weeks later in 1828, also remained unrecorded until 1834.
Title to this property remained in Rutherfurd until his death. In 1867 John Rutherfurd, his grandson, having obtained title to the entire tract, conveyed, together with his wife, Charlotte, a portion thereof containing the lands now owned by Baldasanno, to Stephen H. Condict, the deed containing a description which reads, in part: "(4) * * * to the edge of Round Pond [Culvers Lake]; thence (5) along the same north 53 1/4 degrees, east 1 chain and 18 links; thence (6) along shore of the said pond southeasterly following the several courses thereof to a stake in said southeast line of Lot 46; * * *." Mesne conveyances containing the same description carried title to 1891 when the Condict tract was fragmentized and a portion thereof conveyed by Nathaniel Burtis and Mary, his wife, to Robert Duncan by a description which gave as one of the boundaries "a heap of stones on the back of the pond." Title to that portion of the lands next went to one Snook, who subdivided the tract, of which two contiguous waterfront lots ultimately vested in defendant. In some of his deeds conveying lots in the tract Snook included a clause, "together with the right, title and interest of the parties of the first part in and to the waters of said Culvers Lake adjoining the said premises and the land thereunder." The lots in question were conveyed out of the tract separately in 1913. The deed to one of the lots carried the above-quoted clause. The other did not. Both lots came into a common grantor in 1925 and Baldasanno is a remote grantee under that grantor. Baldasanno's single deed to both lots still includes the lake rights clause but only as to one of the two lots. It is this provision which is relied upon by Baldasanno as giving him the interest in the underwater lands. But of course the clause gave him nothing if his immediate and remote grantors had no right, title and interest to convey. It should also be noted that the description in this latter deed recites the bank of the lake as one of the main lot boundaries.
In 1882 the Proprietors conveyed to Niles by a single deed their right, title and interest in Lake Hopatcong, Culvers Lake and Quicks Pond together with a 300-foot margin of land around said waters. Both parties here admit, as they did in Baker, supra, that the Proprietors had no title to these marginal lands, and they thereby eliminate discussion of title to them. No metes and bounds ...