For affirmance -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Goldmann and Schettino. For reversal -- None. The opinion of the court was delivered by Jacobs, J.
A declaratory judgment was entered in the Chancery Division pursuant to its opinion in Wildwood Crest v. Masciarella, 92 N.J. Super. 53 (1966). Appeals by the plaintiff-appellant and the defendants-appellants to the Appellate Division were certified by us before argument there. R.R. 1:10-1.
The facts were stipulated and were sufficiently set forth below. In 1905 the Wildwood Crest Company became the upland owner of land bordering on the Atlantic Ocean. In 1915 it bought and received a riparian grant from the Board of Commerce and Navigation. The grant conveyed the submerged land adjacent to the upland for a distance of 1,000 feet from the high water mark to the exterior line established by the Riparian Commissioners under their statutory authority and as shown on an attached map. The grant provided that the State of New Jersey, by its Board of Commerce and Navigation, could change the exterior line and fix it further from the shore, in which case the holder of the grant would have the exclusive right to apply for and receive a grant of the additional submerged land between the present exterior line and the new exterior line.
Since the making of the grant in 1915, all of the submerged land from the high water mark to the exterior line and for about 200 feet beyond has become fast and
visible land. This was not the result of any filling in or other action by the upland owner but was the result of accretion. The stipulation set forth that the area "has gradually and imperceptibly accreted" during the years from the riparian grant to the present time. There was some evidence that the accretion was stimulated by the Government's construction of jetties in 1911 at Cold Spring Harbor, about three miles away, and by the Government's closing in 1917 of Turtle Gut Inlet, to the south of Wildwood Crest. But the trial judge found that this evidence did not call for the conclusion that the accretion was caused by artificial means and that, at best, it must be concluded that "the accretion was caused by a combination of natural and artificial causes." 92 N.J. Super., at p. 63. This finding is clearly supported by testimony in the record.
Through mesne conveyances the area has become vested in the individual defendants, the Masciarellas, the Johnsons and the Kays, who are now the upland owners. The action insofar as the individual defendant Dare is concerned has been dismissed and is not before us on appeal. 92 N.J. Super., at p. 56. The upland owners contend that they are entitled to all the land which has accreted including the 200 feet beyond the original exterior line, and they further contend that the exterior line in the grant was ambulatory and now extends for 1,000 feet beyond the present high water mark. The State contends that the exterior line in the grant was not ambulatory but was firmly fixed in 1915 and that the 200 feet of accreted land beyond that line is now owned by the State. In support of its position it asserts (1) that the grant intended not only to vest in the upland owner the area described therein but also to restrict the grantee to that area, thereby depriving it of any claim to accreted land beyond the exterior line and (2) that even if that be unsound the 200 feet here in question should be deemed the property of the State, rather than the upland owners, on the ground that it was the result of artificial rather than natural causes.
The Borough of Wildwood Crest supports the State's position except that it claims that title to the accreted 200 feet is in it rather than the State by virtue of L. 1942, c. 345. The Chancery Division held that the upland owners were entitled to the benefit of the accretion and therefore found no occasion to determine the issue between the State and the Borough. 92 N.J. Super., at p. 64. In this connection we are entirely satisfied that L. 1942, c. 345 does not grant to the Borough any ownership of the land in question as against the claim of the State. As its title and terms clearly indicate, the cited statute was simply designed to fix the boundaries of the Borough for jurisdictional purposes (cf. Ross v. Mayor, &c., Edgewater, 115 N.J.L. 477, 486 (Sup. Ct. 1935), affirmed, 116 N.J.L. 447 (E. & A.), cert. denied, 299 U.S. 543, 81 L. Ed. 400 (1936)) and was not at all designed to transfer any of the State's interest in its submerged lands. See 2 McQuillin, Municipal Corporations § 7.06, p. 295 (3 d ed. 1966); cf. Henderson v. Atlantic City, 64 N.J. Eq. 583 (Ch. 1903); R.S. 12:3-33 et seq.
New Jersey's law of accretion, rather than the federal decisions, is admittedly controlling here. See 43 U.S.C.A. § 1301 et seq.; 1 Shalowitz, Shore and Sea Boundaries 115 et seq. (1962); cf. Hughes v. Washington, 389 U.S. 290, 88 S. Ct. 438, 19 L. Ed. 2 d 530 (1967). That law has been extensively set forth below (92 N.J. Super., at p. 57) as well as in earlier opinions by our courts. See Stevens v. Paterson and Newark R.R. Co., 34 N.J.L. 532 (E. & A. 1870); Ocean City Association v. Shriver, 64 N.J.L. 550 (E. & A. 1900); Bailey v. Driscoll, 34 N.J. Super. 228, 246 (App. Div.), reversed, 19 N.J. 363 (1955); Schultz v. Wilson, 44 N.J. Super. 591, 596 (App. Div.), certification denied, 24 N.J. 546 (1957); River Development Corp. v. Liberty Corp., 45 N.J. Super. 445, 453 (Ch. Div. 1957), affirmed, 51 N.J. Super. 447 (App. Div. 1958), affirmed, 29 N.J. 239 (1959). See also 1 Waters and Water Rights § 40, p. 245 et seq. (R. Clark ed. 1967).
Private title to lands along the Atlantic Ocean, as well as other tide-flowed lands, extends to the high water mark. Beyond that, title is in the State and is subject to legislative disposition within constitutional limits. The high water mark may shift from time to time through erosion and accretion and persons who own or purchase tide-flowed lands are well aware of this. Where there is erosion, they lose title to the State; where there is accretion, they gain title at the expense of the State. The doctrine of acquisition by accretion is said to have been founded on a principle of compensation; in Ocean City Association v. Shriver, supra, Chief Justice Depue put the matter in the following terms:
The proprietor of lands having a boundary on the sea is obliged to accept the alteration of his boundary by the changes to which the shore is subject. He is subject to loss by the same means that may add to his territory; and, as he is without remedy for his loss, so he is entitled to the gain which may arise from alluvial formations. This rule is vindicated on the principle of natural justice, that he who sustains the burden of losses imposed by the contiguity of waters ought to receive whatever ...