The opinion of the court was delivered by: GERRY
Plaintiff instituted this civil rights action for injunctive relief and damages after the defendants failed to establish a public swimming beach at 113th Street in the Borough of Stone Harbor. Plaintiff seeks the right to be able to swim in the waters abutting the 113th Street beach. However, plaintiff contends that she is not seeking a mandatory injunction requiring the borough to undertake any action with regard to her, but rather moves the court to enter a restraining-type order which would bar the Borough from interfering with plaintiff's use of the waters in front of her home. Although the area to the north of 113th Street contains the only private beach property in Stone Harbor, consisting of a convent and its beachfront extending to the high waterline, plaintiff does not seek to affect the use of that property or to make use of that property.
Plaintiff also complains of discriminatory treatment in that the nuns which occupy the convent have been permitted to swim in the waters in the vicinity of 112th Street to the exclusion of all others and have been provided with one municipal lifeguard for their protection. Such treatment, plaintiff maintains, violates the equal protection clause.
Finally, plaintiff contends that the conduct of the Borough in permitting and encouraging the nuns to use the beach in the vicinity of 112th Street violates the Public Trust Doctrine. Under such doctrine, all lands below the mean high tide mark not conveyed to private parties belong to the public. As a result, governmental entities regulating the use of such lands must do so in an even-handed manner, opening beaches to all on equal terms.
Jurisdiction over this action is grounded in 28 U.S.C. § 1332, diversity of citizenship, and 28 U.S.C. § 1343, which grants jurisdiction over actions involving violations of 42 U.S.C. § 1983.
The court conducted a non-jury trial of this action on June 9-12, 1981. The court has reviewed the testimony at trial, along with the exhibits introduced into evidence, the depositions, the pleadings and the submissions of counsel, and makes the following factual findings:
1. Plaintiff is and was at all times relevant to the instant action a citizen of the State of Delaware. (T. 34.)
2. Defendants are the Borough of Stone Harbor, a municipal corporation; the Stone Harbor Beach Patrol, a municipal entity of the Borough of Stone Harbor; Arden W. Hand, Chairman of the Stone Harbor Beach Patrol and a resident of Stone Harbor, New Jersey; James G. Wood, Mayor of Stone Harbor, and a resident of Stone Harbor, New Jersey; Sam Wierman, Beach Patrol Captain, and a resident of Cape May Courthouse, New Jersey; and Bill Forsyth, Beach Supervisor, and a resident of Norristown, Pennsylvania. (Complaint, PP 2-7; Answer P 2; Wierman Dep. 38.)
3. Between August 28, 1978 and September 6, 1978, the Borough Clerk of the Borough of Stone Harbor had arranged to advertise that the Borough would accept bids on certain lots in the Borough at a public auction to be held on September 9, 1978. (P-2.)
4. The advertisement appeared in the Cape May County Gazette-Wildwood Leader, Cape May County Times-Seven Mile Beach Reporter. (P-2.)
5. The advertisement listed the block and lot numbers of the properties to be auctioned. It did not contain any further description of the lots or their surrounding environs. (P-2.)
6. The purpose of the advertisement was to notify interested parties of the availability of the properties and not to provide an exhaustive account of the recreational facilities available in the Borough. (P-2.)
7. The advertisement did not designate the beaches at which swimming was permitted in the Borough of Stone Harbor. (P-2; T. 48.)
8. Plaintiff and her husband Louis Capano (now deceased) were desirous of purchasing a beachfront lot. The Capanos owned a home in North Wildwood. However, Mr. Capano, who was sick, was unable to walk to the water to swim because of the depth of the beach in Wildwood. (T. 58-59.)
9. The Capanos' principal objective in seeking to purchase a lot in Stone Harbor was to obtain a property from which Mr. Capano could use and enjoy the beach and ocean. (T. 58-60.)
10. Prior to the auction on September 9, 1978, the Capanos visited the 113th Street area to look at the lot for sale. They observed the beach and noted that people were in the water swimming, and two lifeguards were on duty. (T. 35-36.)
11. They also observed a sign at the end of 113th Street which contained a number of prohibitions but which did not prohibit swimming at that location. (T. 38; P-1.)
12. The Capanos visited the area on more than one occasion, all times in the afternoon, and each time they observed persons swimming on the beach. (T. 40, 46.)
14. On the day that Joseph Capano shot elevations, he went for a swim after he had completed his work. There were no lifeguards on duty at the time, although there was a lifeguard stand on the beach pulled up by the dunes. Other people were swimming at the time, but not many. (T. 277-280.)
15. Prior to the auction, the Capanos did not seek to examine official records and did not ask any one, even a member of the beach patrol, to determine whether swimming was permitted at the 113th Street Beach. (T. 94-95.)
16. Plaintiff attended the auction on September 9, 1978 with her husband and son. (T. 48-53, 282.)
17. Prior to the start of the auction, the Mayor of Stone Harbor, Mayor Wood, a defendant herein, outlined the rules for the bidding and sought to answer questions from the floor. (T. 53; D-9.)
18. The Mayor did not describe the recreational facilities available in Stone Harbor. (T. 53.)
19. The Capanos did not, at that time, inquire as to whether swimming was permitted at 113th Street. (T. 53.)
20. The Mayor made no representations as to whether swimming was or was not permitted at 113th Street. (T. 500.)
21. At the auction, the Borough sold six lots. It did not auction any rights to the use of the beach or otherwise include beach use as a component of the properties sold. (T. 49; P-2; P-3; D-1; D-9.)
22. The Capanos successfully bid on lot number six, the last property auctioned, at the price of $ 165,000. (T. 51-52; T. 283; D-9.)
23. At the conclusion of the bidding, Mr. Capano gave a deposit of 15% and signed an agreement to purchase the property. (T. 64; D-1.)
24. While Mr. Capano was giving the deposit, Mrs. Capano learned from a neighbor that swimming was not permitted at 113th Street, and that the beach in the vicinity of 112th Street was only for nuns who owned a convent and beachfront between 111th and 112th. (T. 64.)
25. When Mr. Capano returned from giving the deposit, he was informed by his wife of the swimming restriction. (T. 294.)
26. Mr. Capano then approached the Mayor and asked for the return of his money on the ground that swimming was not permitted at 113th Street. (T. 65-66.)
27. Mr. Capano was very upset at the time of his conversation with the Mayor. (T. 66; T. 295.)
28. Present during the conversation between Mayor Wood and Mr. Capano were Joseph Capano, Carlos Leffler, Mrs. Capano and Councilman Clelland. (T. 67; T. 151; T. 297, 302; T. 500-501.)
29. Mayor Wood told Mr. Capano that his money could not be returned and that the sale was completed and finalized. (Wood Dep. 129, lines 10-15; See Final Pretrial Order-Admissions and Stipulations.)
30. There is a conflict in the evidence as to what the Mayor told Mr. Capano regarding the establishment of a bathing beach at 113th Street. Mrs. Capano testified that the Mayor told her husband that it would be taken care of and that they would be allowed to swim. (T. 66.) Joseph Capano stated that the Mayor told his father not to worry, that they would straighten it out so that they (the Capanos) could swim. (T. 297.) Mayor Wood and Councilman Clelland testified that he (the Mayor) stated that he would look into the matter and if it was possible to put a beach at 113th Street they would probably do so. (T. 389-390; T. 501.) Mr. Leffler testified that the Mayor told Mr. Capano that "it would be worked out." (T. 155.)
31. After his conversation with the Mayor, Mr. Capano ceased his objection to the purchase and did not attempt to get his money back. (T. 462.)
32. The Capanos did not seek to obtain any written assurances from the Mayor. (T. 145.)
33. At the time the Mayor told the Capanos that something would be worked out, he did not know that there were jetties located at 111th ...