June 12, 2008
KENNETH ERNST AND NANCY ERNST, PLAINTIFFS-RESPONDENTS,
LINDA HAWKINS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Chancery Division, Sussex County, Docket No. C-8-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued April 28, 2008
Before Judges Stern, A.A. Rodríguez and C.S. Fisher.
Plaintiffs Kenneth and Nancy Ernst commenced this quiet title action to resolve a dispute with their neighbor, defendant Linda Hawkins, regarding the location of the boundary between their adjacent, lakeside lots. The dispute arose as a result of the accretion of land onto the lakeside borders of their lots.
Because this dispute is factually convoluted and legally complex, we vacate the summary judgment entered in favor of plaintiffs, reject defendant's argument that she is entitled to summary judgment, and remand for further proceedings.
Plaintiffs are the owners of Block 3130, Lot 69 in Hopatcong*fn1 ; defendant is the owner of the adjacent Lot 68.*fn2 The homes on these lots face Lines Avenue; to their rear, is Lake Hopatcong. The waterside edge of their lots is not straight or evenly curved; instead, there is a peninsula that juts out near the border between the two lots, with a dock affixed at its end. Plaintiffs and their predecessors have long assumed that the peninsula falls on their side of the borderline, and they have apparently used, maintained and repaired the dock for many years.
When these lots were conveyed by their original owner to the parties' predecessors in the early 1920's, the boundary between Lots 68 and 69 was defined as a straight line 170 feet*fn3 from Lines Avenue to "a marked maple, at high water mark of  Lake [Hopatcong]." The early conveyances indicate that the highwater line carves out a small gulf between the maple tree and the end of the peninsula, as indicated in the following map*fn4
Gradually, since the original conveyance of these lots, the lake has receded, and the gulf depicted in the above illustration on the lakeside of Lot 68 has been filled in, as land has accreted to that side of Lot 68 and on all sides of the peninsula. As a result, a continuation of the border between the lots past the location of the former maple tree would continue on dry land and bisect the peninsula, cutting off its far end and the affixed dock from plaintiffs' side of that line, as illustrated in the following map, which depicts the continuation of the border beyond the maple tree as a broken line:
To summarize the problem at hand, the lake has receded since the original conveyance, with land accreting in the gulf between the peninsula and the place where the maple tree once was, and along all sides of the peninsula. Defendant argues that the border should now be recognized as a continuation of the original 170- foot border from Lines Avenue to the former maple tree, because that line is not interrupted by water, but instead continues over dry land until after its passes through the end of the peninsula. As a consequence of this alleged extension of the original border, defendant argues that the far end of the peninsula and the dock should now be declared to be part of Lot 68 and title should be so quieted.
Plaintiffs argue that defendant is mistaken in asserting that the corner of their lots has moved toward the lake. They contend that this corner was originally -- and remains -- at the place where once stood the maple tree, approximately 170 feet from Lines Avenue. Defendant insists that the highwater line is controlling and that the corner has moved with the highwater line.
This suit, which was intended to resolve the parties' dispute, was triggered by defendant's erection of a fence along the course of what she claims is the current boundary line between Lots 68 and 69 -- a fence that blocked plaintiffs' access to the end of the peninsula and the dock. In granting summary judgment in favor of plaintiffs, and in directing the removal of the fence, the trial judge appears to have accepted the contention that the maple tree marked the corner of the lots and that it would be inequitable to conclude that any part of the peninsula or the attached dock falls on defendant's side of the boundary line.
A party "in the peaceable possession of lands in this state and claiming ownership thereof" may maintain an action "to settle the title to such lands and to clear up all doubts and disputes concerning the same" where the "title thereto, or any part thereof, is denied or disputed, or any other person claims or is claimed to own the same." N.J.S.A. 2A:62-1. Contrary to defendant's argument that plaintiffs do not have standing -- an argument we find to have insufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(1)(E) --plaintiffs commenced this action to resolve the dispute regarding the location of the boundary line between Lots 68 and 69.
The boundaries of a parcel of real property are normally ascertained by resort to the instrument that conveyed title. Boundary lines in instruments may be described in various ways, including by references to: monuments, i.e., natural or artificial physical objects*fn5 ; maps; adjoining lands; courses and distances*fn6; area or quantity*fn7; or by a combination of such things. When the location of a boundary line is in doubt, "the prime consideration in determining the meaning of the basic title instruments is the intention of the parties." Normanoch Assoc., Inc. v. Baldasanno, 40 N.J. 113, 125 (1963).
The description of the corner in question that is contained in the original conveyance -- a straight line 170 feet from Lines Avenue to "a marked maple, at high water mark of  Lake [Hopatcong]" -- is ambiguous. It does not clearly reveal whether the controlling natural monument is the maple tree, which is identified by reference to the highwater line, or the highwater line, whose location at the time was indicated as being near the maple tree. If the governing natural monument intended by the original grantor was the maple tree, as argued by plaintiffs, then the location of the corner is clear, and the peninsula and affixed dock fall with Lot 69, i.e., on plaintiffs' side of the border. However, if the corner is governed by another natural monument, the highwater line of Lake Hopatcong, its present location has moved from where it was at the time of the original conveyance and caused significant uncertainty about the length and location of the border between Lots 68 and 69.
Whether the matter is governed by the location of the maple tree or by the highwater line was not capable of being resolved by way of summary judgment. The original conveyance is ambiguous as to this point. And subsequent deeds and surveys, which have convoluted the matter in the eyes of the parties, cannot serve to clarify what was once ambiguous. That is, any subsequent deed conveyed only what it was that the transferor originally possessed. Accordingly, even if subsequent deeds appear clear or certain, they ultimately rest upon what it was that the original owner conveyed to the parties' predecessors. In addition, the conflicting surveys referred to by the parties reveal only the surveyors' interpretations of what the deeds contain. The confusing record that was presented to the trial judge, and to us, precludes the resolution of the original conveyor's intent. Accordingly, there is a genuine factual dispute about whether the corner is defined by the location of the former maple tree or by the highwater line.
For this reason alone, we are compelled to vacate the summary judgment under review and remand for a determination of the original grantor's intent when setting the location of the corner in question. We agree with plaintiffs that if the corner in question is fixed by the location of the maple tree, the peninsula and dock fall on their side of the border. However, if the corner was not intended to be static, but instead intended to move with the highwater line, then the border's location is presently uncertain and further proceedings are required to ascertain its location. And, even if the determination on remand is that the grantor intended to define the corner by reference to the highwater line, it does not necessarily follow that the 170-foot line from Lines Avenue to the locus of the former maple tree should merely be extended in the same direction until ultimately meeting the highwater line. Instead, in that circumstance, the trial judge must determine the placement of the boundary through consideration of the principles to which we now turn.
If, in subsequent proceedings, the trial judge determines that the corner is not fixed at a point approximately 170 feet from Lines Avenue but should follow the location of the highwater line, then the location of the boundary must be ascertained with the initial understanding that when a body of water is designated as a boundary line, the body of water remains the border even if it should change its location.
Powell, Law of Real Property § 66.01 (2007). At times, defining the boundary line in such circumstances may be "as complex and muddy as the movements of the water." Id. at 66.01.
However, even if the trial judge ultimately accepts defendant's theory that the length of the boundary line between Lots 68 and 69 is defined by the present location of the highwater line, the matter is not as easily resolved as defendant contends. The trial judge is not required by that determination to simply gauge the location of the highwater line and draw the border as a straight line from Lines Avenue to the former maple tree and then to the current location of the highwater line, and conclude that everything falling on one side belongs to plaintiff and everything falling on the other belongs to defendant. The trial judge must sift through and apply the most appropriate theory for resolving lakeside border disputes and, in addition, apply equitable considerations in ultimately quieting title -- for the present*fn8 -- to the disputed area of land.
Many years ago, in Del., Lackawanna & W. R.R. Co. v. Hannon, 37 N.J.L. 276 (Sup. Ct. 1875), the court attempted to devise a rule for ascertaining the riparian rights of neighboring properties abutting the Passaic River. The court recognized not only that any such rule may vary depending upon whether the shore line is relatively straight or marked by "deep indentations or abrupt projections," id. at 279, but may also be impacted by equitable considerations. Other than concluding that "each land owner [should have] an allotment of the water front, proportionable to the extent of his riparian proprietorship," the court recognized that there could be devised no "precise formula, applicable to every case," and that each attempt to determine the appropriate allotment must often be "conciliated by an equitable adjustment." Ibid. The matter, in essence, must be approached by starting with an appropriate mathematical formula for divining the line between neighboring properties that abut the particular body of water; that rule may also, in appropriate circumstances, be refined by equitable considerations.
Various formulae have been devised for use in related circumstances. When the abutting body of water is a circular-shaped lake, some courts have used a "pie-cutting" approach, viewing the center of the lake as if it were the center of a pie and drawing lines from that center point to the lakeside in order to ascertain the parties' riparian rights. See, e.g., Hanson v. Rice, 92 N.W. 982, 983 (Minn. 1903); Karterud v. Karterud, 195 N.W. 972, 974 (S.D. 1923). However, this approach has generally been rejected when the abutting lake is long and narrow. See, e.g., Burton v. Isaacson, 142 N.W. 925, 927 (Minn. 1913); Calkins v. Hart, 113 N.E. 785, 786 (N.Y. 1916). Courts in that circumstance have determined the parties' riparian rights by locating the center line instead of the center point of the lake. That is, in dealing with an elongated lake, courts have drawn a single line from each of the two farthest shores --the lake's longest bisecting line -- and then drawn lines at right angles from this center line to the side lines of the properties in question. This approach has been referred to as the "thread theory." Attempts to devise a fair formula have also led to the adoption of variations on these pie-cutting and thread theories, depending upon whether the water line is concave. See Hilleary v. Meyer, 430 P.2d 666, 668-69 (Idaho 1967). And, this approach has been further varied to create equality among the parties with regard to access not just to the water in front of their lots but also to the deep water frontage. Ibid. Considering the record's lack of clarity regarding the size and shape of Lake Hopatcong, little more may be said on this subject.*fn9
Warring against these methods for dividing riparian rights*fn10 is the law of accretion, which, as a general matter, benefits the owner of the land on which the land has accreted. As our courts have held, a property owner whose land extends to the highwater line of a body of water "is obliged to accept the alteration of his boundary by the changes to which the shore is subject," and that just as the property owner "is subject to loss by the same means that may add to his territory, . . . so he is entitled to the gain which may arise from alluvial formations." Ocean City Assoc. v. Shriver, 64 N.J.L. 550, 555 (E. & A. 1900) (quoted with approval in Borough of Wildwood Crest v. Masciarella, 51 N.J. 352, 357 (1968)). As a result, the lands that have accreted in this area might arguably be allocated to the property owner on whose lot they accreted. If the original conveyance divided the lots in a way that placed the peninsula within Lot 69, then the land that has gradually attached to the peninsula could be viewed, by application of this law of accretion, as belonging, to some degree, to the owner of Lot 69. Considering the contours of the lakeside, however, an attempt at precisely determining what land has accreted onto Lot 68 and what has accreted onto Lot 69 may not produce clear results and might also not satisfactorily resolve the parties' dispute.
Moreover, we emphasize that the matter is not governed solely by resort to the most appropriate of these formulae. Indeed, as we have observed, there is tension between and among these general principles. As a result, great caution should be exercised, and the trial judge should not feel obligated to slavishly follow any one of these theories to the exclusion of the others. As we have observed, courts that have wrestled with these types of perplexing problems share a strong jurisprudential foundation -- the desirability of a division of rights that is rooted in equity. See, e.g., Delaware, supra, 37 N.J.L. at 279 (holding that any division may be "conciliated by an equitable adjustment"); Randall v. Ganz, 537 P.2d 65, 68 (Idaho 1975) (holding that "the controlling thought in every case is to approach each case equitably . . ."); Grill v. Meydenbauer Bay Yacht Club, 378 P.2d 423, 426 (Wash. 1963) (holding that "a formula which works well in one situation may be inequitable in another" and that "it is desirable that all affected property owners be treated equitably").
In the unusual circumstances of this case, we recognize that plaintiffs may lay claim to a substantial equitable interest that may affect the outcome of this case because, when the lots were created and originally conveyed, it would appear certain that the peninsula jutting into the lake fell within Lot 69. It is also of importance that a dock, which has been appended to the end of this peninsula since at least the mid-1940's, appears to have been exclusively used, maintained and repaired by plaintiffs and their predecessors since that time. Again, although an attempt at formulating a general method for resolving the parties' disputes, such as the "pie cutting" and "thread" theories adopted by some courts, may be a worthwhile venture, and consideration and application of the general law of accretion followed in this state may represent an appropriate starting point for examining the dispute, it must not be overlooked that the quieting of title in these circumstances must ultimately be governed by the judge's consideration and weighing of legitimate equitable interests. The presentation of expert testimony may go a long way in clarifying the perplexing problems presented by this case.
In vacating the summary judgment entered in favor of plaintiffs, we also do not mean to suggest that the same result could not be reached in the future. We hold only that in considering the very nature of the complex problem presented, and the lack of certainty about some of the relevant facts, the summary judgment procedure constituted too fragile a foundation for a resolution of the parties' disputes.
We lastly make the following observations about a few other matters. First, we note that defendant has argued that past municipal actions, such as her obtaining a permit to build the fence in question, has some bearing on the location of the border between Lots 68 and 69. They do not. Second, defendant has argued that an offer made by plaintiffs to purchase some portion of the area in dispute amounts to an admission about the boundary's location. We discern from the record on appeal that these communications related to an offer of settlement and are, thus, inadmissible to prove the location of the boundary line. N.J.R.E. 408. Third, we note that defendant has argued that we should not only reverse the entry of summary judgment in favor of plaintiffs but also mandate the entry of summary judgment in her favor. For the reasons we have expressed, the present record precluded the entry of summary judgment in favor of either party. And fourth, even if we were able to agree with the trial judge's resolution of the location of the borderline, the judge appears to have only quieted title to the peninsula and dock and not other land that has accreted in the area of Lots 68 and 69. On remand, in fixing the border between Lots 68 and 69 through consideration of the general principles we have discussed, the judge must determine any uncertainties about all the alluvion in question.
With the exception of our affirmance of the interlocutory mandatory injunction compelling removal of the fence, the order of summary judgment is vacated and the matter remanded for further proceedings in conformity with this opinion.*fn11 We do not retain jurisdiction.