For reversal -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Schettino and Haneman. For affirmance -- None. The opinion of the court was delivered by Weintraub, C.J.
This case involves the ownership of lands along the Hackensack River in East Rutherford claimed by the State to be "tidelands" and as such to be its property. The trial court, sitting without a jury, found the property was tideland, but held the State was estopped to assert its title because of certain transactions between the defendant State Highway Department and plaintiff to which we will later refer. Involved also was a claim by plaintiff upon a title policy issued by defendant title insurance company. The title company answered that "tidelands" were excepted from the policy coverage and on that basis it declined to defend plaintiff against the claim of ownership urged by the State defensively. As to this phase of the case, the trial court, having found that the lands were tidelands, gave judgment for the title company. Both plaintiff and the Highway Department appealed, and we certified the case before argument in the Appellate Division.
The complaint had two counts. The first, which sought a judgment of ejectment, was dismissed on defendant's motion before trial on the ground that the State had not consented to be sued. The trial proceeded on the second count which sought to compel the Highway Department to condemn lands it used for highway purposes. The lands so used were but a small part of the total parcel of 25 acres which both plaintiff and the State claim to own. Although but a small part of the premises was thus actually involved, the testimony ranged indiscriminately over the entire tract. So also, although the judgment ultimately ordered the Highway
Department to condemn only the strip actually used in the highway project, it nonetheless adjudged ownership of the whole tract.
The Highway Department raised no objection either at trial or on appeal to the litigation of title to the entire tract. We raised the question, and in response the Attorney General said he was satisfied to have that larger issue decided in these proceedings, and this notwithstanding that at an earlier stage the Highway Department successfully resisted the ejectment count upon the ground of sovereign immunity. The Attorney General's offer to submit the matter to the judiciary suggests the question, which was not argued, whether he has the power to consent on behalf of the State to an action proscribed by the doctrine of sovereign immunity. See 7 Am. Jur. 2 d, Attorney General, § 15, p. 20; annotation, 42 A.L.R. 1464, 1484 (1926). We will not, however, pursue that inquiry because we are satisfied an action by the owner of upland to settle a tideland controversy is outside the immunity doctrine.
We need not recount the uneven history of sovereign immunity. Suffice it to say that today courts are disposed to hear an action against the State unless good reason stands in the way. It is currently said the doctrine bars suits which seek to control State action or to subject it to liability. Duke Power Co. v. Patten, 20 N.J. 42, 50 (1955); Gallena v. Scott, 11 N.J. 231, 237 (1953); Abelson's, Inc. v. New Jersey State Board of Optometrists, 5 N.J. 412, 417 (1950). Thus a suit will be declined if it requires an order of a court upon the Legislature or the Governor, or if it seeks directly to control the exercise of discretion vested within the other branches of government and this for the reason that the Constitution intends that discretion to be beyond judicial interference of that kind. So, too, an action for a money judgment against the State is barred because the judiciary cannot compel its co-equal branches of government to appropriate moneys to pay. See Fitzgerald v. Palmer, 47 N.J. 106, 108
A suit to settle title to property does not collide with considerations upon which the State's immunity from suit now rests. The private claimant does not ask the judiciary to compel the Legislature or the Chief Executive to do anything. Nor does the claimant seek a dollar judgment. He asks only that it be decided that he, and not the State, is the owner of some specific property. Cf. Michalski v. United States, 49 N.J. Super. 104, 110 (Ch. Div. 1958). That issue must be decided sometime, for we must assume the State will persist in its claim and will, sooner or later, exercise a right of ownership sufficient to permit a suit against it under the cases we have just cited. Since vast areas of valuable land are now idled by the tidelands controversy, and still other property, already improved, lies in its shadow, there is an economic blight which should be dissipated in the public interest. We think it our duty to accept the litigation.
For reasons stated hereinafter, the matter must be remanded for retrial. Upon the remand plaintiff may amend her complaint to add the State of New Jersey and to demand a declaration of ownership as to the entire tract, in addition to her existing demand that the State Highway Department be ordered to condemn the portion already used for highway purposes.
As stated earlier, the trial court found the State owned the tract but was estopped to say so.
The facts with respect to the issue of estoppel are these: In 1931 and 1932 the State Highway Department condemned some portions of the tract and paid compensation. In 1953 John I. O'Neill took title from the record upland owner. On June 1, 1954 he entered into a contract with the Highway Department to convey a small portion for $3,422. The title examination, however, revealed that O'Neill owned but a 5/8 interest in the tract, and presumably he was so advised. O'Neill died on October 7, 1955, and his widow, the plaintiff, became executrix of the estate. On January 13, 1959, four and a half years after the contract was made, counsel for Mrs. O'Neill inquired of the Highway Department as to what disposition had been made of it. The Department replied on February 5, 1959 that the agreement had not been consummated because of the title deficiency we just mentioned, and said that although normally a condemnation proceeding would have been started because of the title problem, none was because a question had intervened with respect to the location of a proposed interstate route. The letter added that "We feel at the moment that we will continue to withhold any action in light of future developments from the standpoint of additional or new construction." Although the record is obscure, it seems safe to assume that O'Neill was advised of the Department's position prior to his death in October 1955.
In December 1957, long before her inquiry of the Highway Department concerning the status of the 1954 contract, Mrs. O'Neill paid $21,660.96 to satisfy liens for municipal taxes on the tract. Between that date and July 1961 when the present dispute arose, she paid taxes in the further sum of $1,901.87. In addition, following receipt of the Department's letter of February 5, 1959, mentioned above, in which reference was made to the title deficiency, Mrs. O'Neill
started a quiet title suit in connection with which she expended $5,550. After obtaining judgment, Mrs. O'Neill so advised the Highway Department, and in early 1960 she delivered a deed and received the contract price of $3,422.
Plaintiff stresses the expenditures just recounted to support her claim of estoppel. But there is nothing to show they were made at the request of the Department. As to the taxes, it is clear that Mrs. O'Neill paid them in order to avoid a tax foreclosure. The decision to sue to quiet title appears to have been wholly her own. As already noted, the Department would have condemned when ready, leaving the claimants to quarrel over the proceeds. The record shows only that after she started the suit to quiet title, Mrs. O'Neill informed the Department to that effect in connection with a request for some information to assist her. The fair inference is that she decided ...