[118 NJSuper Page 597] Plaintiff, by way of a bill to quiet title, seeks to perfect his title to certain lands lying in Ocean City, N.J., a portion of which was at one time the bed of Weakfish Creek. Weakfish Creek is a tidal stream which at one time flowed southeastwardly parallel to what is now 59th Street in Ocean City and continuing in that direction from the bay beyond Asbury Avenue. The West Jersey and Seashore Railroad Company, deciding to lay tracks across Weakfish Creek running northeastwardly and southwestwardly, obtained a grant from the State of New Jersey dated March 6, 1922. This grant contained two tracts, each five feet long and 60 feet wide at both shore lines, with an accompanying right to fill in between these tracts a width of 60 feet to
accommodate the roadbed of the railroad. This had the effect of suddenly drying up the lands to the southeast of the rail line. Plaintiff in his bill to quiet title includes as a portion of the premises in his complaint the lands which were below Weakfish Creek prior to the action of the railroad. The records of the State show that it was understood that this would close the creek, an obvious result because tide could not flow through such a project.
The riparian grant vested the railroad with a small portion of land on each side of the creek with the accompanying right to fill in the creek within the two areas of the grant although it did not convey them. Nothing either expressly or by implication divested the State of any title to any other portion of the creek. The deed of the State must be construed in its favor. See River Development Corp. v. Liberty Corp. , 51 N.J. Super. 447 (App. Div. 1958), aff'd 29 N.J. 239 (1959). That case held that a legislative grant was to be strictly construed in favor of the sovereign and most strongly against the grantee. It follows a fortiori that a third-party claim under the deed is subject to the same interpretation.
Further evidence of a lack of intent to alienate the tidelands is revealed by the recognition of the Appellate Division in River Development Corp. v. Liberty Corp., supra that the State has never alienated its interest in them except as follows: (1) the common law privilege confirmed by the Wharf Act (repealed in 1891) to reclaim to the low water line; (2) legislative license; (3) grant or lease under a special act; (4) conveyance of the fee or a leasehold interest with an option to take the fee as provided by the General Riparian Act of 1869. 51 N.J. Super. at 470. To this list may be added (5) acquiescence in condemnation and (6) consent judgments in settlement of title disputes in quiet title actions.
In view of the fact that a reading of the grant will not support any contention that there was an intentional divestment of title on the easterly side of the railroad bed, the question arises as to whether the closing of the creek under the authority of the State as a matter of law divested the State of its title to the bed of the creek. The answer to this question should be "no." First of all, of course, there has been no consideration paid the State for anything other than the rights set forth in the riparian grant instrument itself. That instrument recites on its face that the consideration of $200 was for the land described in the complaint and not otherwise. By L. 1894, c. 71 the riparian land was placed in the School Fund. See River Development Corp. v. Liberty Corp., supra , 51 N.J. Super. at 474-75. This is still the state of the law. N.J.S.A. 18A:56-5 and 6. Under both the Constitution of 1844, Art. IV, § VII, par. 6, and the Constitution of 1947, Art. VIII, § IV, par. 2, the Fund for the Support of Free Public Schools and all money, stock and other property appropriated for that purpose has been declared to be a perpetual fund. Thus, a gift of such property, even for public purposes is, unconstitutional. See In re Camden , 1 N.J. Misc. 623, 639-641 (Sup. Ct. 1923); Henderson v. Atlantic City , 64 N.J. Eq. 583 (Ch. 1903). As a result of these ruling public agencies, including the New Jersey Department of Transportation, must obtain grants before taking riparian lands for their projects. N.J.S.A. 12:3-33.
It follows, therefore, that if plaintiff is right in this matter, the officers of the State, in making the grant in question and authorizing the closing of Weakfish Creek, acted unconstitutionally. They received no consideration for the portion of the creek on the east side of the embankment and yet the same was closed and the tidewaters were excluded therefrom. Such administrative action can hardly be countenanced and, of course, the court should construe the legal result of their administrative action so as to avoid an unconstitutional result. But in any event, as a matter of
law at common law, before the adoption of the School Fund Act, the action of the riparian commissioners attempting to divest the State of its ownership on the easterly side of the embankment would have been ineffectual, just as in Henderson v. Atlantic City, supra , where an easement deed for a $1 consideration was voided. The present constitutional and statutory provisions, cited supra , would work the same effect.
At common law the artificial exclusion of water from a tidal stream does not as a matter of law divest the sovereign of its ownership of the bed of the stream. The State's title to the lands under tidal water is proprietary. Bailey v. Driscoll , 19 N.J. 363, 367 (1955). But title to such lands may be divested by the State ...