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Jersey City Redevelopment Agency v. Tug and Barge Urban Renewal Corp.

Decided: February 16, 1987.

JERSEY CITY REDEVELOPMENT AGENCY, (JCRA), PLAINTIFFS,
v.
TUG AND BARGE URBAN RENEWAL CORP., ET AL.



Humphreys, A.j.s.c.

Humphreys

The clash between landholders and the State over rights to tidelands has engaged our jurisprudence for many years.*fn* This case is another chapter in that struggle.

Plaintiff JCRA condemned land owned by Tug and Barge. Some of the land is tideland and therefore subject to claims of the State under the Public Trust Doctrine. Bor. of Neptune City v. Bor. of Avon-By-the-Sea, 61 N.J. 296, 308 (1972). The State and Tug and Barge have agreed to a settlement of the State's tideland claim. The Tidelands Resource Council has approved the settlement. However, JCRA will not consent to the settlement contending that the State's claim is valid and that Tug and Barge does not have any right to the disputed tidelands.

The State moves for the entry of a consent judgment vesting title and providing for other relief. Since JCRA and the intervenor Newport will not consent, a "consent" judgment cannot be entered. City of Jersey City v. Roosevelt Stadium, 210 N.J. Super. 315, 326-327 (App.Div.1986).

Tug and Barge moves for summary judgment on the tidelands issue. JCRA opposes the motion on factual and legal grounds. All counsel agree that the legal grounds can and should be determined at this time. The court will therefore rule on them in this opinion. The court will also schedule a status conference to determine whether genuine factual issues exist.

Tug and Barge does not contend that it has only revocable rights over the tideland. See U.S. v. Cox, 190 F.2d 293 (10th Cir.1951), cert. denied 342 U.S. 867, 72 S. Ct. 107, 96 L. Ed. 652, and case note in 25 Temple Law Quarterly, pp. 385-388 (1952). Tug and Barge contends instead that it has fee simple title to the disputed tideland and should consequently receive just compensation therefor in this condemnation action. The basis of Tug and Barge's claim is the United Companies Act of 1869, Chapter 386 of the Laws of New Jersey.

The central issue is what rights to the tidelands were acquired by Tug and Barge's predecessor under the United Companies Act. Tug and Barge contends that under that Act, Tug and Barge's predecessor in title acquired a license to the tidelands which would ripen into fee simple ownership if the tidelands were reclaimed and improved; that the tidelands were so reclaimed and improved; and that Tug and Barge's predecessor thereby acquired fee simple title which it conveyed to Tug and Barge.

JCRA contends that Tug and Barge does not have fee simple ownership to the tidelands since:

(1) Ownership can only be acquired under the United Companies Act upon the occurrence of certain conditions. Whether those conditions have occurred raises factual issues which "may

require plenary hearing after further research into official records and discovery." (JCRA brief, p. 14); and

(2) The Legislature in enacting the United Companies Act, did not intend to give the United Companies a fee simple ownership "capable of transfer separate from the upland and for uses not related to rail transportation." (JCRA brief, p. 16).

JCRA argues that when Tug and Barge acquired title in 1978 and began to use the land for private shipyard purposes, the cessation of railroad use of the pier within the disputed area resulted in a revocation of the license granted under the United Companies Act. At that point, JCRA argues, exclusive dominion and control of lands reverted to the State which holds the title for the benefit of the public pursuant to the Public Trust Doctrine.

Simply stated the basic question resolved in this opinion is whether the Legislature in enacting the United Companies Act intended to grant fee simple title to the United Companies upon their reclaiming and improving the tidelands, or only a lesser right of ownership which would be revoked if the tidelands were later conveyed to another for other than railroad purposes.

The court after careful consideration concludes that basic principles of real property law and court decisions clearly establish that the Legislature intended the former. Hence if the tidelands here were reclaimed and improved as set forth in the United Companies Act, then the United Companies obtained a fee simple title not subject to later divestment. Consequently Tug and Barge as the successor in title to the United Companies has fee simple ownership of the tidelands in question and is entitled to compensation therefor in this condemnation action.

I.

Tidelands are owned by the State and are impressed with a public trust for the benefit of all. Bell v. Gough, 23 N.J.L. 624 (E & A 1852); O'Neill v. State Highway Dept. 50 N.J. 307

(1967); Lusardi v. Curtis Point Property Owners Ass'n., 86 N.J. 217, 228 (1981). However, under common law, riparian owners along the Hudson River had the right to fill in and reclaim riparian land to the waterline at low tide. Bailey v. Driscoll, 19 N.J. 363, 369 (1955). This local custom was sanctioned and regulated by the Wharf Act, Laws of 1851, Chapter 330. See Id. at 371-372.

In 1869 the Legislature enacted the United Companies Act, Chapter 386 of the Laws of 1869. Under that act the United Companies were authorized to reclaim and erect wharves and other improvements in front of any of their lands adjoining Kill Von Kull or any other tidewaters, and "when so reclaimed and improved to have, hold, possess and enjoy the same as owners thereof" subject to certain provisos. The United Companies did reclaim and improve certain tidelands now owned by JCRA. Specifically, a pier was constructed, waterways were filled in, and certain buildings were erected and used by the United Companies for railroad purposes.

Tug and Barge acquired the land in 1978. Its deed encompassed the disputed tidelands. Tug and Barge has used the property as a private shipyard. JCRA contends that upon the conveyance to Tug and Barge in 1978, railroad use ceased and as a ...


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