On appeal from the Superior Court, Law Division, Monmouth County, whose decision is reported at 219 N.J. Super. 79.
Antell, R. S. Cohen and Deighan. The opinion of the court was delivered by Cohen, R.s., J.A.D.
[226 NJSuper Page 10] This is an action for possession of land. In 1894 plaintiffs' predecessors deeded a parcel of land in Monmouth Beach to the United States for use as a life-saving station. In 1965 the United States vacated the property and permitted it to be used by the State of New Jersey. In 1968 the United States deeded its interest in most of the parcel to the State. Plaintiffs' thesis is that the 1894 deed to the United States conveyed an estate in fee simple determinable, and that the interest of the United
States terminated in 1965 when it stopped using the parcel for a life-saving station. The State's position is that the 1894 deed conveyed to the United States an estate in fee simple absolute, which was then conveyed to New Jersey. The State also argues that, even if the United States acquired only a determinable fee, the estate terminates only if the use changes. It has not, the State says, because the the State has continued substantially the same use. Plaintiffs respond that the United States, as holder of a determinable fee, could not convey to a third party an interest which ended when it stopped using the property. The Law Division ruled for the State, holding that it received a fee simple absolute from the United States. Plaintiffs appealed. We affirm.
An Act of March 3, 1875 authorized the Secretary of the Treasury
to acquire, by donation or purchase in behalf of the United States, the right to use and occupy sites for life-saving or life-boating stations, houses of refuge and sites for pier-head beacons. . . .
Pursuant to that authority, the United States paid $2,400 for a deed from plaintiffs' predecessors affecting a 1.10 acre parcel in Monmouth Beach. The deed was a printed form prepared by the United States. Since its language is central to our determination, the relevant parts are reproduced in full:
WHEREAS, The SECRETARY OF THE TREASURY has been authorized by law to establish the LIFE-SAVING STATION herein described;
And whereas, Congress, by Act of March 3, 1875, provided as follows, viz: "And the Secretary of the Treasury is hereby authorized, whenever he shall deem it advisable, to acquire, by donation or purchase, in behalf of the United States, the right to use and occupy sites for Life-saving or Life-boat Stations, Houses of Refuge, and sites for Pier-head Beacons, the establishment of which has been, or shall hereafter be, authorized by Congress;"
And whereas, the said Secretary of the Treasury deems it advisable to acquire, on behalf of the United States, the right to use and occupy the hereinafter-described lot of land as a site for a Life-Saving Station, as indicated by his signature hereto:
Now, this Indenture between . . . [Walton and Baker], parties of the first part, and the United States, represented by the Secretary of the Treasury, party of the second part, WITNESSETH that the said part [ sic ] of the first part, in consideration of Twenty four hundred Dollars by these presents grant, demise, release, and convey unto the said United States all that certain lot of land
situate . . . [land description] be the contents what they may, with full right of egress and ingress thereto in any direction over other lands of the grantor by those in the employ of the United States, on foot or with vehicles of any kind, with boats or any articles used for the purpose of carrying out the intentions of Congress in providing for the establishment of Life-Saving Stations, and the right to pass over any lands of the grantor in any manner in the prosecution of said purpose; and also the right to erect such structures upon the said land as the United States may see fit, and to ...