For affirmance -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For reversal -- None. The opinion of the court was delivered by Haneman, J.
Plaintiff appealed to the Appellate Division from the dismissal of an action in lieu of prerogative writs which sought to compel the State Highway Department (Department) to condemn land upon which the State had constructed a portion of a State Highway. This Court granted certification on plaintiff's motion. R.R. 1:10-1A.
Prior to September 8, 1960, the Department constructed a jug handle at the juncture of Route 43 and Hylton Road in the Township of Pennsauken. On that date plaintiff was notified by the Department that unless it would accept an offer of $2,000 for a conveyance of the land upon which the construction had been completed, the Department would institute condemnation proceedings. Subsequent correspondence between the parties, resulted in a rejection of the offer and finally termination of negotiations and an assertion of title in the State by the Department. Plaintiff thereupon undertook this action in order to compel condemnation by the Department.
After plenary trial, the court found that prior to 1888 the upland owners constructed a bank or dyke at the low water mark which excluded the tidal flow from meadows of which the subject lands were a part. Originally, the bank contained a sluice gate which, when opened, permitted the tide to overflow these lands. In the course of time, this gate was permitted to fall into disrepair and was finally entirely demolished 50 years or more ago, reinundating the lands at high tide. From that date to the initiation of the highway construction the lands were tideflowed. These facts are accepted as true by the litigants. The trial court found that as the land was tideflowed, the title was vested in the State when possession was taken by the Department and dismissed plaintiff's action.
The primary issue before this Court is therefore, whether plaintiff's predecessors in title ever became vested with title by the exclusion of the tide and if the answer to that question is in the affirmative whether that title was thereafter lost to the State because the land subsequently again became tideflowed.
Neither party disputes that at some undisclosed and probably unascertainable time prior to 1888, the meadowlands here involved were, in their natural state, tideflowed, and that thereafter, sod banks were constructed along the edge of the stream in the vicinity of the low water mark thus excluding the tide. The question naturally arises as to the right to so exclude and the impact upon title of such exclusion.
At this late date, there can be no doubt that generally title to lands flooded at mean high tide is vested in the State. O'Neill v. State Highway Department of New Jersey, 50 N.J. 307 (1967).
From early colonial days into the middle of the last century there existed a local state common law or custom under which the owner of the upland at the high water mark had the privilege or license of reclaiming tideflowed lands adjacent to such holdings to the low water mark. When this privilege was exercised, the State became divested of and the ripa owner became vested with absolute title to the lands so reclaimed.
In Bell v. Gough, 23 N.J.L. 624 (E. & A. 1852), in holding that the owners of land bounding on navigable waters had the right to wharf out and otherwise reclaim the land down to the low water mark, the court said at p. 658:
"The usage to do so from the earliest settlement of the country has been universal; and until recently the right to do so was never questioned, either by individuals or by the government. A vast
amount of labor and capital has been thus expended, to the great benefit of the community. Not only wild marshes, overflowed at extraordinary tides, but large tracts of mud flats lying below the ordinary high water line of our rivers and navigable creeks, such as by the common law of England are held to be the property of the sovereign, and such as in the case of Lowe v. Govett (3 B. & Add. 863) were the subjects of a parliamentary grant, have been embanked and reclaimed, and by great expense transformed from a perfectly useless to a very valuable and productive property, by individuals or companies who never thought of obtaining grants for them, or licenses to use them from the crown or the colonial government or the state. The mud flats lying outside of the banks, and subject to the daily overflow of the tides, are now constantly resorted to for mud to repair the banks, and in many cases are indispensable to their maintenance.
There is the most ample evidence that this understanding and usage are of ancient date, and universal in ...