68 N.J. Eq. 198 | New York Court of Chancery | 1904
A grant, made by the riparian commissioners to the Central Railroad Company of New Jersey, for a tract of land under and along the waters of Staten Island sound, within the limits of the city of Elizabeth, is brought in question by this information and bill, the general object of which is to have the grant declared void as to a portion of the tract which is alleged to be within the lines of a public highway.
On-November 12th, 1874, the riparian commissioners, together with the governor of the state, granted and conveyed to the defendant, the railroad company, twelve tracts of land, seven of which were situated in Hudson county (four in the waters of New York bay, and two in the Kill von Kull, and one in Newark bay) : three in Union county (in the waters of New York bay and Arthur’s Kill), and two in Middlesex county, one in the Arthur’s Kill and one in the Raritan river. Eor ten of the tracts, being all except the first and the ninth, the inner boundaries of the respective tracts were fixed by the grant at “high-water mark.” In .the case of two of the tracts, the first and the ninth,, the tracts conveyed are described as being formerly under .tidewater, but now partly above tidewater, and for the first tract the shore line is fixed as “the ordinary high-water mark of the bay of New York or Communipaw cove, as the same existed in 1804.” The ninth tract, which is the only one now in question, lies in. the Arthur’s Kill or Staten Island sound, on the north side of the outlet of Elizabeth river, and is described as a tract, “part of which was formerly under, but is now above the tidewaters of the Arthur’s Kill or Staten Island sound.” The shore line is described as “the original high-water mark on the westerly shore of said sound,” and “the original high-water mark on the northerly shore of the Elizabeth river,” and the grant conveys, by metes and bounds, a tract beyond these original shore lines of the sound and river to the exterior wharf line fixed by the commissioners under the riparian, acts. The grant expressly conveyed “all the rights of the state in said lands.”
The attorney-general, as informant, and the city of Elizabeth allege that, from time immemorial, a common highway
In a ease of this kind, where a suit at law is pending between the complainant and defendant, for the final settlement of the question of the existence of the public highway, the general rule to be applied is that the relief on the information, as well as on the bill, should only be auxiliary to the suit at law, and that the attorney-general should not here question or review the rulings of the court of law upon the legal question already decided in the action at law, or upon questions of a legal character which may be thereafter decided there. In other words, the information should not be used by the attorney-gene.ral, in this case, as a method of reviewing in this court the decision of the law court in the ease of tire city. In deciding the issues in this case I shall, therefore, consider the information as well as the bill as merely auxiliary to the action at law pending. The issues of fact and law made by the pleadings in this cause are these:
(1) The existence or non-existence of a public highway over the locus in quo prior to the riparian grant.
(2) Whether the grant was ultra vires, on the ground that neither the railroad company nor the ferry company were riparian owners of the lands included within the lines of the highway.
(4) Whether the grant was obtained by fraud or false suggestion.
(5) Whether the right to any equitable relief is barred by delay in bringing suit.
As between the city and the railroad company, the first of these questions — highway or no highway — having been once decided in favor of the city, is now in the course of final adjudication in the action at law. It is á question properly triable in the action at law, and so long as the action at law for the trial of that issue is pending, this court should not, either on the information or on the bill, decide this issue, but should confine itself to such equitable relief as the informant or complainant, may be entitled to in order to have the issue tried at law. On that view of the scope of relief, and for the purposes of this suit, it must now be assumed, as to this issue, that in the action at law the existence of the highway over the locus in quo prior to the grant may be satisfactorily made out and that the highway existed as claimed in the information and bill.
The second question, whether the grant was ultra vires, on the ground that neither tire railroad company nor the ferry company were riparian owners of the lands included within tire lines of the highway, as claimed, was also' an issue in the action at law and is now as between the city and the defendant, an issue to be finally determined there. The decision of the question involves the determination — first, of the question of fact as to the record or paper title of the ferry company to the ripa and reclaimed lands, and second, of the question of law as to the power of the commissioners under the riparian acts to make the grant to the railroad company with the consent of the ferry company. On the rule to show cause both these questions were resolved in favor of the grant. On tire new trial the same issue will remain to be again decided, and this court should not now, on the application of the city, undertake to decide this question; but should, for the purposes of this suit and on the information as well as on the bill, assume that this issue, so far as it involves a matter of fact,
The third issue, whether under the riparian acts the grant operated to prevent or terminate the existence of the highway over the lands included in the grant below the line of the original high-water mark, was purely a question of law as to the construction of the riparian acts, applied to the 'facts proved in reference to the situation of the lands at the time of the grant. In the action at law it was decided in favor of the railroad company, and so far as the city is concerned, this decision upon a matter of law settles the law of the case for the purpose of the new trial, and also in this suit, brought to aid the future trial of the action. As to the attorney-general, the decision must be considered as one made by the court of law upon a question purely legal and should be followed in this court, leaving the review of the decision to the appellate court. But while following the decision, and as to the informant as well as the complainant, it is proper that I should call attention to an aspect of the case as now presented on this third issue, which does not seem to- me to have been specially presented to or decided by the supreme court, but which is presented on the whole record. In deciding upon the effect of the riparian grant, the supreme court, as I read the opinion, gave it operation as conveying all the lands between the original high-water mark and the exterior wharf line fixed by the commissioners, as being then lands of the state conveyed by the grant. The ratio decidendi of the decision (at p. 'J/.95) was that the claimant (under a riparian act grant) was the grantee of all the rights of the state in specified lands under water, founding its title upon express words of conveyance, the reasonable force of which excluded the reservation which would be implied against a licensee under a mere license to' fill in and enjoy undefined land. Such license is subject to the implied limitation that the licensee should acquire against the state no greater rights in the land reclaimed than he had in the ripa in front of which the reclamation is made, and a public right of access to the water is not extinguished by filling up under the license. The de
“That it shall be lawful for the owner of lands, situate along or upon tidewaters, to build docks or wharves upon the shore in front of his lands, and in any other way to improve the same, and when so built upon or improved to appropriate the same to his own exclusive use.” 8 Gen. Stat. p. 8158.
By the eleventh section of this act, “shore” was defined to be the lands between the limits of ordinary high and low water. By force of our local common law and these provisions of the Wharf act of 1851, the land between high and low-water mark reclaimed by the shore owner became vested in the shore owner as his lands. Stevens v. Paterson and Newark Railroad Co., 34 N. J. Law (5 Vr.) 532, 549 (Court of Errors and Appeals, 1870); American Dock and Improvement Co. v. Trustees Public Schools, 39 N. J. Eq. (12 Stew.) 409 (1885). In the latter case Mr. Justice Depue, charging the jury at law on an issue sent from this court, said that the title of the riparian owners to lands above low water reclaimed under the Wharf act was indefeasible, and he directed the jury that this title was good against a subsequent grant of the state to another person covering lands above low water thus reclaimed (at pp. 424, 437). Chancellor Runyon, in the same cause, on application for new trial, also said (at
“the riparian commissioners, or any three of them therein concurring, together with the governor of this state, to fix and determine, within the limits prescribed by law, the price or purchase-money, or annual rental to be paid by any applicant for so much of lands below high-water mark, or lands formerly under tidewater belonging to this state, as may be described in any application therefor, duly made according to law; and the said commissioners, or any three of them therein acting and concurring, with the approval of the governor, shall, in the name and under the great seal of the state, grant or lease said lands to such applicant accordingly.”
The supreme court, in the Elizabeth Case, 53 N. J. Law (24. Vr.) 497, beld that this act authorized a grant of lands to any applicant, whether riparian owner or not, but it wall be observed that this act, in its terms, authorized a grant only of lands belonging to the state, then or formerly under tidewater, and extended to no- other lands than those owned by the state. In all the previous Riparian acts, up to the act of April 6th, 1871, the same limitation is made, either expressly or by clear implication. Previous to the act of April 6th, 1871 (P. L. of 1871 p. 113; 3 Gen. Stat. p. 2796), entitled “An act relative to the riparian commission,” the right of the riparian commissioners to make any grants or leases of lands of the state not under tidewater seems to have been doubted, and by that act, for the purpose, as recited in the preamble, “of quieting the possession of those who apply to the commission for grants or leases of land which were heretofore but are not now under tidewater,” the commissioners (among other things), on applications for leases or grants of lands not under tidewater, were authorized “to grant or lease such lands, or any part thereof, tying betunen what was at any time heretofore the original high-water line and the exterior lines to be' established.” The grants of lands belowr original tidewater, under this act, may have been intended to quiet the possession and complete the title of lands which had been reclaimed without authority of the state, and as to which the state had or might claim to have proprietary rights, and as betunen the state and the riparian owner who had reclaimed or
Treating the grant, then, as vacating the highway over all the lands described in the grant of the ninth tract, the remaining issue is whether the grant of this tract or of the rights of the state in it, or in the part claimed to' be covered by the highway, was obtained by fraud or false suggestion. Under the Riparian acts in force at the time of the grant in question, grants of land were made upon application of the riparian owner or applicant to the commissioners, upon which application the commissioners designated the lands and fixed the price or rental. They were required to make a certificate of the boundaries, the price, compensation and rentals under their hands, to be filed with the secretary of state. On payment to the state treasurer of the compensation fixed the commissioners, in the name of the state and under the great seal of the state, granted the lands. Act of March 31st, 1869, section 8; 3 Gen. Stat. p. 2788 § 15. The act of April 6th, 1871, entitled “An act relative to riparian commission” (3 Gen. Stat. p. 2796), which expressly authorized applications for grants or leases of lands “which were not at the time of the application under tidewater, and authorized the grant of such lands, or any part thereof, lying between what was at any time heretofore the original high-water line and the exterior lines established or to
“that the applicants are the owners of land in the counties of Hudson, Union, Essex and Middlesex, in the State of New Jersey, fronting- on water where the tide ebbs and flows, and so are riparian owners in the tidewaters of this state, and are also, by the written consent and contracts in writing of other riparian owners, invested with the rights of riparian owners as to their lands under tidewater, and while claiming the ownership are nevertheless desirous of obtaining a grant from the said state of the lands under water which lie in front of said lands hereinafter described, to wit
Then follows the description of the several tracts, the one in question being as follows:
“Ninth Tract. — Being in the city of Elizabeth, in the county of Union and State of New Jersey, beginning at a point where the southeasterly extension of the centre line of Marshall street, in the city of Elizabeth, intersects the former ordinary high-water mark in the northerly shore of Staten Island sound; thence southerly and southwesterly in said high-water mark, along the sound and up Elizabeth creek to South Front street; thence northerly and easterly, along the boundary lines of the Elizabethport and New York Ferry Company to the place of beginning.”
On this map no lines were designated or marked as being the line of either existing or original high-water mark, or as property lines of the ferry company; neither were any points fixed on the map, inasmuch as the only two points which were referred to in the description were said to be in the original high-water mark. The map, although in fact annexed to the application, was not referred to in the application as so annexed. Upon this application the commissioners made a certificate of boundaries, which was annexed to the application and maps, and after formally reciting that it was made “in compliance with the above application,” designated as the ninth tract:
“All that tract of land in the city of Elizabeth, in the county of Union and State of New Jersey, part of which was for-merly under, but is now above, the tidewaters of the Arthur kill or Staten Island sound, and part of which is still under the tidewaters of said sound, described as follows: Beginning at the original high-water mark on the westerly shore of said sound, at a point in line with the centre line of Marshall street, extended southeasterly and from thence running south twenty-eight degrees and twenty-five minutes east, to the exterior wharf line established by the commissioners appointed under the authority of the Riparian act of 1864 and the supplements (said exterior wharf line being at a distance of two hundred and twenty-two feet and three-tenths of a foot from the southeasterly line of Eront street, measured in the centre line of Marshall street) ; thence along said exterior wharf line [six courses, specified by courses and distances, the last two courses above mentioned lying along the Elizabeth river] to the original high-water mark on the northerly shore of the Elizabeth river, and northeasterly along the original high-*218 water mark of the Arthur kill or Staten Island sound to the xslace of beginning, and likewise any and all lands lying in front of that above described to any point or points to which the said exterior wharf line may hereafter be legally extended.”
The commissioners certified the boundaries of all the twelve tracts and fixed the price of $300,000 as the entire price or compensation, upon paying which a conveyance for said lands should be made. Attached to the certificate of boundaries were maps of the several tracts, the map of the ninth tract being one which was identical with the map annexed to the information and bill as Schedule A. In addition to the lines marked on the map accompanying the original application, this map attached to the certificate of boundaries contained, marked in red, the exterior wharf lines, and also;, in red, a line about seventy-five feet in length on the northern boundary of the tract, and being an extension of the centre line of Marshall street, beyond the line marked as a shore line out to the exterior wharf line.
The formal grant by tire governor and commissioners, which was dated November 12th, 1874, recited the application, as above, the payment of the price fixed, and conveyed all of the tracts, including the ninth tract, by the same description as in the certificate of boundaries, “together with all and singular the hereditaments and appurtenances hereunto belonging and all the rights of the said state in said lands.” No maps were referred to in the grant, nor, apparently, were any maps annexed to the grant. The Riparian act authorizing the insertion of this clause conveying all the rights of the state was the supplement of March 21st, 1871 (3 Gen. Stat, p. 2790), which directed that a grant or lease to a riparian owner of lands under water in front of his lands “shall vest all the rights of the state in said lands in said lessee or grantee.” The grants under the act of April 6th, 1871 (3 Gen. Slat. p. 2796), authorized the grant of such rights as were authorized under the fourth section of the act of 1869 (3 Gen. Stat. p. 2787 % 11), which was that the grant or lease should pass “not merely the title to the lands therein described, but the right to fill up to the exterior bulkhead lines and appropriate the land to exclusive private uses.” The supplement of March 27th, 1874 (3 Gen. Stat. p. 2791 § 26),
The information and bill charge that the map or diagram annexed to the, application purported to display the ninth tract and the location of the highway in relation thereto'; that no other or further information was submitted to the governor and commissioners as to the boundaries of said tract or the location and terminus of the highway than the information contained in the application, being the description and map, and that, on November 12th, 1874, the governor and commissioners, in pursuance of and relying on the statements and information contained in the application, executed the grant of the. ninth tract by the description above set out. It is charged that the statements in the application, together with the representation on the map, that the railroad company was the riparian owner of so much of tire ninth tract as lay between the lines of tire highway, were false and intended to mislead and deceive- the commissioners and governor; that at the time of the application the highway extended to the sound and ran between two tracts owned by the ferry company, and that so much of said grant as purported to convey to the railroad company the lands or any interest in the lands between the lines of the highway and below original high-water mark thereon was obtained by means of said false suggestion and untrue statements in the application and is illegal and void. The governor and all .the commissioners who signed the grant are deceased, and the on-ly evidence outside of the papers themselves relating to representations to the commissioners relating to the lands - or highway upon which the claim of false suggestion is based, is the evidence of a Mr. Jacob M. Clark, a civil engineer or surveyor. He said, in the ejectment suit (at p. 185, Sc.), that, acting for the Central Railroad Company, he prepared a map, showing the wharf lines as he surveyed them as they then stood, for the commissioners for their information; that this map was with the grant, and he identified a map shown him on the trial (and marked either D SI or D SS) as the map referred to. On cross-examination, in refer
The representation of the railroad company that the ferry ' company were the riparian owners of the land in front of which the grant was applied for, including the laird claimed to be covered by the highway, must, for the purposes of this hearing, be considered as true. The riparian ownership of the ferry company was one of the points contested in the action at law and considered, and the claim that the state was the riparian owner was also presented and considered. The conclusion of the .supreme court upon the proofs (which are the same now submitted) was that the ferry company was the riparian owner. 53 N. J. Law (24 Vr.) 493. This decision cannot be reviewed here. The claim of false suggestion, therefore, rests solely on the effect of the representation of Elizabeth avenue on the map as terminating in South Front street. It is claimed that the map should have delineated the avenue as extended- to the sound and over the land covered by the grant applied for, and that inasmuch as the avenue did in fact extend one hundred and sixty-eight feet further, and did lawfully extend to the sound at the time of the application, this delineation of it as terminating at South Front street was a material false representation or suggestion. This view as to the effect of the map
On the assumption, however, that the map in question must be considered as a false representation of the location of the highway, it should further appear, satisfactorily, that the grant in question, so far as it affected the highway, was made by the governor and commissioners in reliance on the false suggestion. The commissioners were authorized and directed by the riparian acts, as part of their duty, to' locate the lines of original high-
The cases relied on by complainant’s counsel as holding that where false representations have .been made with a view to a particular purpose, which has been attained, the burden of proving the immateriality of the representation, and that the end was not attained by the deception, rests upon the grantee, were all cases in which the transactions were questioned between those
One of the grounds upon which the denial of purely equitable relief, on the ground of laches, is often based is that by reason of the lapse of time and delay in seeking relief the party against whom it is asked has been put in a situation, as to his proofs or otherwise, in which it would not be reasonable to place him, if the right is to be asserted. Lutjen v. Lutjen, 64 N. J. Eq. (19 Dick.) 773, 780, 781 (Court of Errors and Appeals, 1902); Rochefoucald v. Boustead, 1 Ch. 196, 210 (1897).
The equitable rules relating to the effect of laches and acquiescence. are enforced against the state when it is a suitor for equitable relief as well as against private suitors. Attorney-General v. Delaware and Bound Brook Railroad Co., 27 N. J. Eq. (12 C. E. Gr.) 1, and cases cited at p. 27. And it is insisted in this case that the information should be dismissed on tire ground of laches and acquiescence. While the dela3r in filing the information until all the officers who executed it on the part of the state are dead may not be sufficient of itself to deprive the state of equitable relief, it is certainly sufficient to prevent it from insisting upon the application of a mere rule of evidence relating to the burden of proof as the basis for deciding that in the absence of proof to tire contrary it must be conclusively presumed that the grant in question (so far as it affects the highway) was in fact induced by the representation on tire map as to the termination of the highway.
These riparian grants, as was justly said by Vice-Chancellor Pitney, in Morris and Essex Railroad Co. v. Jersey City, 63 N. J. Eq. (18 Dick.) 54, are made with great care and caution by trusted public servants, after full moneyed consideration paid to the state, and under safeguards designed to protect the state against imposition and fraud. The courts have therefore always given the grants great value, and they should not be set aside, reformed or controlled in their operation, upon the ground that they were induced by false suggestion or fraud, in the absence of clear and cogent proofs.