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 the third installment of the Culvers Lake trilogy. See Baker v. Normanoch Assn., Inc., 25 N.J. 407 (1957), Normanoch Association v. Baldasanno, 40 N.J. 113 (1963). All three matters deal with some facet of the title to the bed of Culvers Lake and the right to use the waters thereof for sundry purposes. Although Baldasanno and the present matter were tried concurrently, the appeal in Baldasanno was first ready for argument. After oral argument, we retained Baldasanno until the matter sub judice was ready for our consideration, as it was inferred that both cases raised some common questions of law and fact. With consent of counsel, the proofs in the Baker case were made applicable to this case.
Here, as in Baldasanno, Normanoch sought to enjoin the defendants from using and maintaining a dock which extends into Culvers Lake in front of the high land that defendant indisputably owns, and from drawing water, boating, bathing, fishing, iceboating, ice skating, and otherwise using the bed or waters of Culvers Lake contiguous to their property. Normanoch as well sought a mandatory injunction requiring the defendants to demolish said dock. Additional elements of relief originally demanded have been abandoned.
After plenary trial, the court concluded that Normanoch had not proved its title to the lake bottom in front of the Deisers' lands. The Deisers thereupon were permitted to amend their pleading by filing a counterclaim which sought an adjudication of the title to those inundated lands, relying upon the evidence already adduced at the trial. Judgment was entered dismissing the complaint and sustaining the Deisers in their claim of title under the counterclaim. Normanoch appealed to the Appellate Division. Before argument there we certified the appeal on our own motion. R.R. 1:10-1(a).
The issue with which we are confronted is the title to the subaqueous lands in that portion of Culvers Lake, adjacent to the high land of the Deiser lots, which is commonly known as Meyer's Cove. As will more particularly appear hereafter, the solution of the problem lies in the location of the lake shore in 1905, the year in which Asher E. Snook, the then owner, caused a subdivision plotting to be made of acreage owned by him.
Because of the manner in which this question arises, the action is akin to an action in ejectment. As in ejectment, the plaintiff must prove that he is the owner of the lands involved. To establish a prima facie case, the plaintiff must demonstrate possession of the lands in question by himself or by someone from whom his title is derived, or he must trace a valid paper title to an acknowledged owner or to an authority having power to transmit title. Rollins v. Atlantic City R.R. Co., 70 N.J.L. 664 (E. & A. 1904); Troth v. Smith, 68 N.J.L. 36 (Sup. Ct. 1902).
We shall first consider the Normanoch proofs.
Normanoch attempted to prove that John and Dolores Stehr, its immediate grantors of title to the submerged acreage which bordered the Deisers' high land, had maintained possession of these lands while they held title to them. Proof was elicited that the Stehrs had dredged out a cove in the vicinity of the subaqueous lands in question, and Normanoch asserts that this dredging indicated sufficient possession to establish its prima facie title. However, the testimony reveals that the Stehrs had not dredged any of the area fronting the Deisers' property. Therefore, possession of that area was not proved. Normanoch consequently must trace its paper title to a grantor with the authority to transmit valid title, in order to establish a prima facie case.
Normanoch contends that it is vested with title through either of two chains, both of which originate with the Council of Proprietors of the Eastern Division of New Jersey (Proprietors). One chain, under which both Normanoch and the Deisers claim title, stems from a grant by the Proprietors of
Great Lot 46 of the Sussex Allotments to John Rutherfurd, surveyed by Deputy Surveyor Richard M. Lawrence on July 21, 1828, and the second chain stems from a conveyance of the lake bed by the Proprietors to Nathaniel Niles on September 1, 1882. The lands here involved fall within the confines of the Rutherfurd grant and outside of the Niles conveyance which does not encompass this section of Meyer's Cove. Niles, therefore, obtained no title to the lands in question by virtue of the Proprietors' deed to him. See Normanoch Association v. Baldasanno, supra. It follows that Normanoch as well obtained no title from this source.
We proceed then to the Rutherfurd chain as proved by Normanoch. When John Rutherfurd, the original grantee of the Proprietors, died, title to a portion of Lot 46 vested in his grandson, also named John Rutherfurd, by virtue of a deed from Mary Rutherfurd, Executrix of John Rutherfurd, dated April 22, 1853. The description in the deed reads, in part:
"Beginning at the intersection of the Southeast line of said No. 46 with the center of the Turnpike Road; thence (1) along the middle of the turnpike road North 32 degrees and a half West 13 chains and 50 links, thence (2) North 23 degrees and a half West 29 chains, thence (3) North 27 degrees and 3 quarters East 27 chains, thence (4) North 4 degrees and a quarter West 85 links to the edge of round pond, thence (5) along the same North 53 and a quarter degrees East 1 chain and 18 links, thence (6) along the shore of said pond Southeasterly following the several courses thereof to a stake in the said Southeast line of No. 46 thence along the same South 46 degrees West 24 chains and 20 links to the place of beginning. Containing 131 acre and 45/00 of an acre."
John Rutherfurd and his wife conveyed the premises with an identical description to Stephen H. Condict. By mesne conveyances these lands vested in Robert H. Duncan by a sheriff's deed dated June 29, 1897. When Robert H. Duncan died, his devisees conveyed the lands so described to Asher E. Snook on January 12, 1905 who, in turn, over the years, conveyed various separate lots out of the tract, including "Lot #8 in Block W" which was conveyed to Stephen M. Case on April 26, 1921, and which ultimately vested in the Deisers. Upon
Snook's death, his heirs conveyed certain parcels of land still remaining vested in him to Christopher Snook by deed dated July 28, 1936. A part of the lands so conveyed was described as "all the swamp lands or lands lying under water owned by the said Asher E. Snook or in which the said Asher E. Snook had any interest therein whatsoever at the time of his death and as lie Northeast of said State Highway #S31 and Northwest of the shore line of property fronting on Myrtle Avenue as shown on the aforementioned map." The map referred to was entitled "West Side Villa Sites, Culvers Lake, Frankford Twp., Sussex County, New Jersey, development of Asher E. Snook, Paul B. Haines, L.S. 1929." Although this map was not produced at trial it is admitted that the description encompassed Meyer's Cove and that it was intended to convey so much thereof as remained vested in Asher E. Snook at his death. It is also undisputed that such title as Asher E. Snook retained in the lake bed fronting the Deiser property ultimately vested in Normanoch by mesne conveyances ...