On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-4895-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 20, 2009
Before Judges Parrillo, Lihotz and Ashrafi.
Dagit Brothers Holding Company, LLC, the owner of a man-made, navigable waterway, appeals from an order for summary judgment granting riparian rights to adjoining landowners.
Although Dagit Brothers filed a notice of appeal from the entirety of the summary judgment order, it has abandoned much of its appeal, excepting claims relative to third-party-defendant Thomas J. McGowan. The Law Division granted summary judgment to McGowan determining that he has riparian rights to use of a lagoon and dock owned by Dagit Brothers adjoining his upland lot. We affirm.
The summary judgment record establishes the following undisputed facts. The subject lands are located in Egg Harbor Township, Atlantic County, with navigable access to the Great Egg Harbor Bay. McGowan purchased his property in 1990, Dagit Brothers in 2003. For purposes of summary judgment, McGowan admits that Dagit Brothers owns the land under the waters of the lagoon that is the subject of this litigation.
The respective titles of McGowan and Dagit Brothers trace back to a common owner in the 1950s, when Joseph O'Byrne acquired a tract consisting largely of marshland through a foreclosure proceeding. Portions of the land were conveyed to several corporate entities in the 1950s, including Longport Manor, Inc., a predecessor in title to McGowan's lot and parts of Dagit Brothers' tract. Historical aerial photography shows that the lagoon had been dredged out of the marshlands by 1956, and several docks had been built by that time, including one abutting McGowan's lot.
At about the same time, South Jersey Mortgage Company acquired title by foreclosure judgment to two tracts of land that included McGowan's lot. In 1957, South Jersey Mortgage filed a lis pendens and a lawsuit in the Chancery Division against Longport Manor and others, seeking injunctive relief and declaratory judgment that South Jersey Mortgage and its successors had the right of access to the waters of Great Egg Harbor Bay. On March 13, 1958, a judgment was entered in that lawsuit that granted to South Jersey Mortgage and its successors "the right to use the lagoon for boating, fishing, bathing and other usual uses of such a waterway, with the right and privileges of building and maintaining a bulkhead on the edge of said lagoon abutting said property . . . ." The judgment was never recorded, although it was docketed with the Clerk of the Superior Court. The lis pendens was recorded in the Atlantic County Clerk's Office.
After the litigation, South Jersey Mortgage conveyed McGowan's lot to Longport Manor, which held title for twenty days in 1958 and then conveyed the lot to a Margaret Harris, who in turn conveyed it to Joseph O'Byrne two months later. In 1959, the Egg Harbor Township governing body approved a subdivision plan for parts of the tract adjoining the lagoon. Joseph O'Byrne died intestate the same year, and title in McGowan's lot passed to his widow and children. In December 1990, O'Byrne's heirs and successors conveyed title to McGowan.
When McGowan acquired his property, a dock abutted his lot near its southeasterly corner marker. Aerial photographs in the summary judgment record show that a dock existed at that same location since at least 1963. McGowan moored his boat to the dock and used it continuously until Dagit Brothers purchased the adjoining tracts and intentionally destroyed parts of the dock in 2003.
All the deeds in McGowan's chain of title are silent as to use of the man-made lagoon and dock. They neither make exceptions regarding use of the waters, nor do they affirmatively grant such use and rights. The deeds generally conveyed all "ways, rights, liberties, privileges, hereditaments and appurtenances."
In 2003, Dagit Brothers acquired the lagoon and adjoining land planning to build a 111-boat-slip marina and clubhouse. It applied to the Egg Harbor Township Planning Board and the New Jersey Department of Environmental Protection (DEP) for approval of its development plans. Hearings were held before the planning board in 2006, at which discussion included the conflicting rights of adjoining upland owners to use of the lagoon. The planning board granted approvals subject to the jurisdiction of the Superior Court to determine the relative rights of adjoining landowners. The DEP, however, denied the application of Dagit Brothers for a waterfront development permit. As of the time of the trial court's summary judgment decision, Dagit Brothers was in discussion with the DEP to obtain approval for its development plan.
A number of adjoining landowners filed suit against Dagit Brothers in 2006 seeking a declaration that they were riparian owners of lands adjoining their properties and the lagoon. Dagit Brothers filed an answer, counterclaim, and third-party-complaint against the plaintiffs and other adjoining landowners, including McGowan, to quiet its title. McGowan filed an answer asserting defenses ...