On appeal from the Superior Court, Chancery Division, Atlantic County, opinion reported at 188 N.J. Super. 145.
Fritz, Furman and Deighan. The opinion of the court was delivered by Furman, J.A.D.
[193 NJSuper Page 177] At issue on appeal is whether the State established in a non-jury trial its sovereign title to formerly tide-flowed lands which became fast land above mean high tide sometime in the spring of 1870. The premises in dispute extend between New Jersey and Delaware Avenues in Atlantic City inland from the
Boardwalk. Plaintiff Housing Authority of Atlantic City, which acquired title to the premises for over one million dollars in 1966 and 1967 as part of an urban redevelopment project, brought this action to quiet title against the State. From an adverse judgment the State appeals.
In a published opinion at 188 N.J. Super. 145 (Ch.Div.1983), Judge Gibson denied plaintiff's pretrial motion for summary judgment on the ground of estoppel against the State. Plaintiff cross-appeals from that denial. On its motion for summary judgment plaintiff relied on three riparian deeds, two in 1878 and one in 1899, to its predecessors in title and on the State's course of conduct in not disputing upland ownership for over 100 years. The riparian deeds conveyed submerged lands seaward from the mean high water line. In ruling in favor of the State Judge Gibson recognized that the State, in conveying riparian lands, accepts the existing mean high water line without examining tidal survey maps or otherwise investigating the upland owner's title.
Trial to resolve the title dispute then proceeded. Judge Gibson fixed the burden of proof on the State as the party challenging the existing physical scene, in accordance with O'Neill v. State Hwy. Dept., 50 N.J. 307, 327 (1967). That ruling is not in issue on appeal.
The State's theory of tidelands title is without supporting precedent in the more than 150 years of reported opinions in this State adjudicating ownership to lands which were at the time of the litigation or formerly tide-flowed, see e.g. Arnold v. Mundy, 6 N.J.L. 1 (Sup.Ct.1821). That theory is that the high water line shifted seaward up to 150 feet in an avulsion, a sudden and perceptible welding of a sandbar to the upland through tidal action.
In pressing its novel theory, the State relies upon dicta or implications in reported opinions that, just as private title to what had been fast land is not lost as the result of a channel breakthrough or other violent shift, so State title to what had
been tide-flowed land is not lost as the result of a sudden and perceptible avulsion. See Ocean City Association v. Shriver, 64 N.J.L. 550, 555-560 (E. & A.1900); Garrett v. State, 118 N.J. Super. 594, 601 (Ch.Div.1972).
Neither does the State cite any English or other out-of-state reported opinion applying the doctrine of avulsion to a seaward shift of the mean high water line. We do not consider Bauman v. Choctaw-Chickasaw Nations, 333 F.2d 785 (10 Cir.1964), cert. den. 379 U.S. 965, 85 S. Ct. 658, 13 L. Ed. 2d 559 (1965), which the State relies on, to be a parallel avulsion case. The holding in Bauman is that title to land which had been on one side of a meandering river was not lost because a sudden change in the river channel shifted the premises to the opposite side. Uniformly in reported opinions applying the avulsion doctrine the factual background, as in Bauman, has been a channel breakthrough or other violent flooding of land, which may have the incidental consequence of an addition to fast land nearby; none has dealt factually with a sudden and perceptible welding of a sandbar to fast land through tidal action, as the State contends happened here.
The converse of avulsion is accretion, a gradual and imperceptible addition to fast land by operation of natural forces, water and, it may be, wind, over an extended period of time. Title to adjoining fast land formed by accretion remains in the upland owner, Borough of Wildwood Crest v. Masciarella, 51 N.J. 352, 357 (1968).
Plaintiff contends that the joinder of the sandbar to the fast land at this site was by the gradual process of accretion. The issue before us, narrowly stated, is whether the State sustained its burden of proving that in the spring of 1870 the high water line at the premises in dispute shifted seaward suddenly and ...