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Borough of Wildwood Crest v. Masciarella

Decided: July 19, 1966.

BOROUGH OF WILDWOOD CREST, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, PLAINTIFF,
v.
CHARLES MASCIARELLA AND MARGARET MASCIARELLA, HIS WIFE; RALPH JOHNSON AND VERA JOHNSON, HIS WIFE; WILLIAM EARL JOHNSON AND BERTHA JOHNSON, HIS WIFE; ROBERT E. KAY AND ADALENE W. KAY, HIS WIFE; VELMA M. DARE; DEPARTMENT OF CONSERVATION AND ECONOMIC DEVELOPMENT OF THE STATE OF NEW JERSEY AND THE STATE OF NEW JERSEY, DEFENDANTS



Civil action. Conclusions.

Wick, J.s.c.

Wick

This matter is in the nature of a declaratory judgment proceeding wherein plaintiff Borough of Wildwood Crest (hereinafter referred to as the borough) seeks to have this court determine and declare the rights of the parties hereto with reference to the title to lands formed by accretion.

On April 30, 1908 and August 3, 1915 the State of New Jersey (hereinafter referred to as the State), by its Governor, Riparian Commissioners and the Board of Commerce and Navigation, conveyed all its right, title and interest in certain lands under water, subject to certain terms and conditions, to the Wildwood Crest Company, its successors and assigns. This riparian grant was made pursuant to L. 1871, c. 256, now N.J.S.A. 12:3-10, which provides:

"Any riparian owner on tidewaters in this State who is desirous to obtain a lease, grant or conveyance from the State of New Jersey of any lands under water in front of his lands, may apply to the board,

which may make such lease, grant or conveyance with due regard to the interests of navigation, upon such compensation therefor, to be paid to the State of New Jersey, as shall be determined by the board, which lease, conveyance or grant shall be executed as directed in sections 12:3-2 to 12:3-9 of this Title, and shall vest all the rights of the State in said lands in said lessee or grantee."

The second course in this riparian grant extended 1,000 feet to the exterior line of the Atlantic Ocean, as established by the riparian commissioners. The grant expressly conferred the right to appropriate the lands under water to the exclusive private use of the grantee.

Under the terms of the riparian grant the State reserved the right to "change the exterior lines for solid filling and piers, and fix the same further from the shore than formerly." If the exterior lines were changed accordingly, the grantee, or anyone claiming under the grant, was given the exclusive right to apply for and receive a lease or grant of the additional land under water lying between the former exterior line and the new exterior line.

Thereafter, by mesne conveyances, title to a portion of the lands abutting on the ocean, together with all riparian rights, vested in William Earl Johnson and Ralph Johnson, by deed dated September 14, 1953; in Charles Masciarella and Margaret Masciarella, his wife, by deed dated February 25, 1964, in Robert E. Kay and Adalene Kay, his wife, by deed dated May 15, 1956, and in Theo Dare, by deed dated May 25, 1954. Theo Dare died testate, devising all his right, title and interest in the property to Velma M. Dare, his widow.

The complaint alleges that since 1915 lands have steadily accreted to the upland owned by defendants Masciarella, Johnson and Kay (hereinafter collectively referred to as the upland owners). The action has been dismissed insofar as defendant Velma Dare is concerned. The borough contends that the accretion was caused by the erection by the United States Government of stone jetties at Cold Spring Inlet in 1911 and by the closing of Turtle Gut Inlet in 1917.

The upland owners claim to own the lands which have accreted to the upland of their respective holdings. The State

claims that the accretion was artificially made and, therefore, that title to the land beyond the exterior line of the 1915 riparian grant is vested in it. The borough, as plaintiff, supports this contention, but claims that title to the accreted lands is ...


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