For reversal and remandment -- Chief Justice Hughes, and Justices Jacobs, Mountain, Sullivan, Pashman and Clifford. For affirmance -- None. The opinion of the Court was delivered by Mountain, J.
Plaintiff submitted several applications to the Natural Resource Council in the Department of Environmental Protection, apparently pursuant to N.J.S.A. 12:3-10, to purchase certain riparian lands from the State. The properties sought to be acquired, described as six separate lots, are located within Long Island Cove, an arm of Barnegat Bay, Brick Township, Ocean County. The applications were filed following the discovery by State officials that plaintiff had in fact already encroached upon the State lands in question, while developing adjoining upland for resale. The Natural Resource Council gave tentative approval to plaintiff's application, fixed the compensation to be paid, and imposed, with respect to each lot, a so-called "use and occupancy assessment," which plaintiff was also required to pay before the State would convey title.
In order to test the validity of these "assessments," plaintiff instituted this declaratory judgment action in the Chancery Division of the Superior Court. Defendant answered, generally contesting all claims advanced by plaintiff, and also filed a counterclaim, setting forth a demand for damages arising from plaintiff's alleged trespass and seeking an order compelling plaintiff to vacate the tidelands and restore them to their former condition. Defendant moved for summary judgment and affidavits were filed by both parties. While this motion was pending, the Chancery Division judge entered an order, sua sponte, transferring plaintiff's suit to the Appellate Division, but retaining jurisdiction of defendant's counterclaim. The order of transfer stated that
it was entered pursuant to R. 2:2-3(a)(2), which provides that "appeals may be taken to the Appellate Division as of right . . . (2) to review final decisions or actions of any state administrative agency. . . ." The Appellate Division determined that the Natural Resource Council was without authority to impose use and occupancy assessments and remanded the matter to the Chancery Division for further proceedings. 128 N.J. Super. 552 (1973). We granted the defendant's petition for certification. 64 N.J. 496 (1974).
The only issue presented for determination is whether the Natural Resource Council, acting on behalf of the State of New Jersey, may require, in addition to a stated consideration for sale of riparian lands, the payment of a further sum of money, here referred to as a use and occupancy assessment. Admittedly the "assessment" is intended to compensate the State for the use and occupancy of its lands by one who has been trespassing. The Appellate Division resolved this issue in favor of plaintiff, basing its decision upon the conclusion that no statute specifically grants authority to the Council to impose use and occupancy assessments. For the reasons set forth below we reach a different result.
No one disputes the proposition that tidal lands, lying between mean high and low water marks, are owned by the State, to the extent they have not been validly conveyed to others. Bailey v. Driscoll, 19 N.J. 363, 367 (1955); Ross v. Mayor, etc., of Borough of Edgewater, 115 N.J.L. 477, 483 (Sup. Ct. 1934), aff'd 116 N.J.L. 447 (E. & A. 1936), cert. den. 299 U.S. 543, 57 S. Ct. 37, 81 L. Ed. 400 (1936); Schultz v. Wilson, 44 N.J. Super. 591, 596 (App. Div. 1957), certif. den. 24 N.J. 546 (1957). As the holder of such title the State possesses all attributes of ownership, including the right, subject to the demands of the public trust doctrine, to grant or alien the lands so held.*fn1 In
large measure the responsibility of overseeing and controlling tidelands has been allocated by the Legislature to the Department of Environmental Protection. Within that Department the Natural Resource Council has been empowered to negotiate leases and conveyances on behalf of the State. N.J.S.A. 12:3-7; 12:3-10; 13:1B-13; 13:1D-3(b). The Council is given the right to fix such price or compensation as it shall see fit as consideration for any such lease or conveyance. Id.
In addition, the Department of Environmental Protection is authorized to institute civil actions in the name of the State of New Jersey against persons trespassing upon or occupying tidelands of the State. N.J.S.A. 12:3-8. It is also empowered to bring actions to prevent encroachments or trespasses upon riparian lands and to "compel the removal of any such encroachment or trespass." N.J.S.A. 12:5-2.
Finally, it is important to bear in mind that the State is under no obligation to convey riparian lands when requested to do so, but may, if it sees fit, simply continue to retain title.
In the instant case the realities of the proposed transaction have been somewhat obscured by the rather unfortunate nomenclature employed. To say, as the State rather incautiously has done, that it is levying a use and occupancy assessment is strongly to suggest that some form of governmental charge or duty is being imposed by the Natural Resource Council. The Council has no discernible right to impose any such charge. The matter may, however, be viewed in a quite different light. We are not slaves to ...