Conford, Kolovsky and Carton. The opinion of the court was delivered by Carton, J.A.D.
This action is a sequel to two earlier consolidated actions brought by plaintiffs Spiegle against defendant Borough of Beach Haven. In the earlier proceeding our Supreme Court upheld two borough ordinances as reasonable exercises of police power. The first one prohibits erection or maintenance, without a permit, of fences or other structures on privately-owned ocean beachfront property (fence ordinance). The other perpetuates a sand dune area through both public and private property (dune ordinance). This dune ordinance is intended to prevent increased westward encroachment by the sea and authorizes the borough to construct and maintain a dune area. The effect of this ordinance, described more fully hereinafter, is to prohibit construction of habitable structures east of a designated building line.
Holding that plaintiffs had not sustained the burden of proving that the dune ordinance deprived them of the beneficial use of their property, the court stated that its action was "without prejudice, however, to any further proceedings based upon a claim and showing of an actual taking of a beneficial use." Spiegle v. Beach Haven , 46 N.J. 479, 494, cert. den. 385 U.S. 831, 87 S. Ct. 63, 17 L. Ed. 2d 64 (1966).
Although various forms of relief are requested in connection with the alleged interference with plaintiffs' rights, in essence plaintiffs' present action against defendants Borough of Beach Haven and American Telephone and Telegraph Company is one based upon the claim of deprivation of beneficial use of their property without compensation. Specifically, in the first count plaintiffs seek a declaratory
judgment as to their rights in the beds of certain dedicated but unaccepted streets and in the abutting beachfront properties, as against defendant borough, along with an adjudication of the unconstitutionality of certain other ordinances, referred to later in this opinion, as they affect plaintiffs' property interests. The second count seeks money damages and injunctive relief against defendant American Telephone and Telegraph Company for trespass grounded on the claim that plaintiffs sustained damages by reason of the installation of an overseas cable in the bed of one of the streets running to the oceanfront. The trial judge granted summary judgment and dismissed the complaint as to defendant American Telephone and Telegraph Company because its use of the property was authorized by an easement granted by defendant borough.
The trial, requiring some 1,000 pages of transcript and involving numerous exhibits, was directed primarily toward two issues: (1) whether the use by the public and by defendant borough of those portions of the Spiegle property east of the building line had been of such a nature and duration as to create a prescriptive easement in the public for beach purposes and in the borough for beach protection activities, and (2) whether plaintiffs could make any economic or beneficial use of their property eastward of the building line so as to establish an uncompensated taking of the beneficial use.
The trial court ruled against plaintiffs on these main issues and made various additional rulings as to the nature of plaintiffs' interests in the beds of the streets and as to their claimed right in accreted lands. Plaintiffs now appeal from the summary judgment granted in favor of American Telephone and Telegraph Company and from those portions of the judgment on the first count adverse to them.
For a better understanding of the various issues involved, it is necessary to set forth the factual background and a general description of the five parcels of property involved.
The Supreme Court opinion (46 N.J. at 482) refers to and describes only four of the parcels. These will be described in detail later in this opinion. Appended is a diagram which reproduces, in reduced form, the area involved as it appears in one of the exhibits, upon which we have superimposed additional explanatory notations.
Between 1957 and 1964 plaintiffs acquired title through various conveyances which referred to and were delineated as various lots on a map filed in the Ocean County Clerk's Office, known as "Plan of Subdivision of Beach Haven, Island of Long Beach, Ocean County, New Jersey, Beach Haven Heights Company." These properties are located in the southern portion of defendant borough, a municipality near the southerly end of Long Beach Island. As shown on the current tax map of the borough (on which the numbering system differs from that of the filed subdivision map), the Spiegle properties involved in this action encompass five oceanfront tracts.
The first and most northerly tract, bounded on the north by Jefferis Avenue, on the east by Beach Avenue and on the south by Kentford Avenue, is described on the tax map as one-half of Lot 12 and all of Lots 13 and 14, Block 42. This parcel is unimproved.
The second tract consists of Lots 7 through 10, Block 21, and is bounded northerly by Kentford Avenue, easterly by Beach Avenue (which is to some extent a paper street as will be indicated later in this opinion) and southerly by Leeward Avenue. In 1961 plaintiffs built a one-family, two-story residence on this tract abutting the north side of Leeward Avenue.
The third tract, encompassing part of Lot 8, Lots 9 through 12, and Lot 14, Block 20, is bounded northerly by Leeward Avenue, easterly by Beach Avenue and Lot 13, and southerly by Merivale Avenue. In 1958 plaintiffs erected a small, two-story, frame apartment house called the "Sand Castle," fronting on the south side of Leeward Avenue, on Lot 9 and part of Lot 8.
The fourth tract, which is unimproved, consists of Lots 9 and 10, Block 19, and spans the area between Merivale and Nelson Avenues.
The fifth tract, also unimproved, consists of Lot 3, Block 18. This parcel abuts the south side of Nelson Avenue.
Each parcel is, at least in part, east of the "Dune Area."*fn1 Under the dune ordinance, as noted above, no habitable buildings may be constructed eastward of the building line.
Over the years the borough has paved Nelson, Merivale, Leeward and Kentford Avenues eastward up as far as the beach or strand area. Water, gas and sewer mains have been installed in these streets, terminating near the end of the paved portions. Beach Avenue, the most easterly north-south street, was paved as far south as Liberty Avenue almost four blocks north of plaintiffs' most northerly tract. The remainder of its bed, as shown on exhibits received in evidence, remains either unpaved and on the strand or below the mean high water line of the Atlantic Ocean.
The following excerpt from the trial judge's letter opinion accurately summarizes the topographical setting of Long Beach Island, particularly the area in the vicinity of plaintiffs' property, the continuing efforts of various governmental agencies to protect the shoreline from deterioration resulting from storms and erosion, and the effect of the savage storm of 1962:
As with all barrier beaches along the Atlantic coast, the entire length of [Long Beach] island including the Borough was originally bordered along its easterly side at varying distances from the mean high water line by a continuous chain of sand dunes. These served to help protect the island from the ravages of the sea and constituted an effective barrier until man changed their profile or removed them completely. In the Borough those dunes remaining are immobilized by natural vegetation, dead tree branches and fencing.
The topography of the Borough is such that it slopes gradually from the top of the dunes in a westerly direction to Little Egg Harbor
and drops much more precipitately eastward to the mean high water line of the Atlantic Ocean.
Since the early 1920's the Borough's easterly shore line has suffered much erosion and some subsequent accretion. To stabilize the beach area and protect the remainder of the Borough, the State and Federal Governments have at various times joined with the Borough in expending funds to erect and maintain jetties and groins to lower the force of the littoral current and encourage accretion. Public monies have also been expended in piping sand from Little Egg Harbor Bay across the Borough to partially replace sand scoured from the beach by tides and storms. The Borough has erected fencing and used tree limbs and other sand-catching devices in the dune area to assist in enlarging and stabilizing the dunes and the beach eastward to them.
All of these means have been employed in the area of the Spiegle property for the purposes enumerated.
On March 6 and 7, 1962 New Jersey was struck by a hurricane preceded by several days of strong northeast winds. As a result of the storm and tidal action many homes on the island including a number in the Borough near the Spiegle property were destroyed or severely damaged. In the Kentford to Nelson Avenue area the protective dunes were so completely leveled that two witnesses described it as "flat as a prairie."
It was after the 1962 hurricane that the borough adopted the dune ordinance designed to perpetuate the protective sand dunes bordering the Atlantic Ocean. As noted above, no habitable structure was permitted to be constructed in the Beach-Dune Area (that area lying easterly of the building line). The ordinance is set forth at length in Justice Haneman's opinion in Spiegle and need not be repeated here.
In early 1967, subsequent to the Supreme Court's decision in the earlier actions, plaintiffs applied to the borough's governing body for a fence permit pursuant to the borough's fence ordinance and to the building inspector for permits to erect a one-family dwelling on the first, or most northerly tract, on the north side of Kentford Avenue and a four-family apartment on Lots 9 and 10, Block 19 (the northerly half of the fourth tract), fronting on Merivale Avenue.
Plaintiffs received no response to their request for a fence permit. Both applications for building permits were denied because the construction planned in both extended eastward
of the building line and were therefore violative of the dune ordinance, and because it would have been impossible to provide road access or utilities to the proposed buildings. This action then ensued.
The Spiegles and the borough agree that the paved portions of the streets adjacent to Spiegles' lands have been accepted and maintained by the borough. The Spiegles claim a superior interest to that of the borough in the unpaved portions of the streets which lie on the beach and have never been formally accepted by the borough. They further contend that accretion of land following earlier erosion has extended their property rights to the mean high water line of the ocean. They assert that as a consequence the borough has no right to use or regulate these properties and that the public may not utilize these tracts for beach purposes.
The trial court determined that the public has acquired an easement for beach purposes and that the borough had the right to provide for protection of the adjacent lands from the ravages of the sea by utilizing all of plaintiffs' property east of the building line. However, the court found that the borough had relinquished its beach easement to that portion of Block 20 consisting of all of Lot 9 and those portions of Lots 10, 11 and 12 lying behind plaintiffs' bulkhead although east of the building line. It concluded also that plaintiffs were not entitled to the issuance of building permits by reason of the easement which the court ruled had been ...