80 N.J.L. 596 | N.J. | 1910
The opinion of the court was delivered hy
The prosecutrix claims to have been illegally assessed for local taxes upon certain lands under water in Newark bay for the years 1901 to 1906, inclusive.
The writ of certiorari in this case was allowed on May 13th, 1910, presumably when applied for or within a few days thereafter) and the case might well be disposed of on the ground of laches, the latest taxes brought up dating back over three years, and the earliest over eight years. Pompton Steel Co. v. Wayne Township, 36 Vroom 487. But we consider also that prosecutrix should not succeed on the merits, for reasons sufficiently important to be made a matter of record.
“That if any person or persons, corporation or corporations, or associations, shall desire to obtain a grant for lands under water which have not been improved, and are not authorized to be improved, under' any grant or license protected by the provisions of this act, it shall be lawful for any two of the said commissioners concurring, together with the governor and attorney-general of the state, upon application to them, to designate what lands under water for which a grant is desired lie 'within the exterior lines, and to fix such price, reasonable compensation, or annual rentals for so much of said lands as lie below high-water mark, as are to be included in the grant or lease for which such application shall be made, and to certify the boundaries, and the price, compensation or annual rentals to be paid for the same, under their hands, which shall be filed in the office of the secretary of state; and upon the payment of such price or compensation or annual rentals, or securing the same to be paid to1 the treasurer of this state, by such applicant, it shall be lawful for such applicant to apply to the commissioners for a conveyance, assuring to the grantee, his or her heirs and assigns, if to an individual, or to its successors and assigns, if to a corporation: * * * and the said commissioners shall, in the name of the state, and under the great seal of the state, grant
The act of 1871, extending the jurisdiction’of the commission to all tidewaters of the state, including Newark bay, makes no change in the character of the grant or the mode of its execution, and specifically provides that the “lease, conveyance or grant shall vest all the fights of the state in the lessee or grantee.” Gen. Stat., p. 2790, pl. 21.
It will he noted that section 8 of the act of 1869 contains the words “grant,” “conveyance,” “grantee,” several times repeated; that the grantee may reclaim, improve and appropriate to his own use the lands so described, and that the lands “shall vest in such applicant.” There is no provision for any stated term of years and none covering the question of ownership of the filling or other improvements at the expiration of any such term. .There may be some question as to whether the word “conveyance”'1 includes a lease for years (7 Encycl. L. (2J ed.) 487), but in this state, for purposes of recording at least, it does not, unless through some recent change in the recording acts. Hutchinson v. Bramhall, 15 Stew. Eq. 372 (at p. 384). With the exception of the words “lease” and “rent” the rest of the language of section 8 is appropriate only to a conveyance in fee, and this is especially indicated by the words “heirs and assigns” describing the character of the conveyance to be delivered.
Turning to the paper of 1889 we find the phrases “lease,” “lands leased,” “annual rental,” several times recurring. But on the other hand there is no term; the operative words are “bargain, sell, lease and convey unto the said Louisa D. Cook
The paper in question seems to be substantially similar to those passed upon by the Court of Errors and Appeals in Hudson Tunnel Co. v. Attorney-General, 12 C. E. Gr. 573, 578, in which it was held that the interest of the stale remaining after their execution was a mere charge to secure the payment of the rent reserved, by distress and re-entry or taking possession. In that case the tunnel company was attempting to condemn lands under water “leased” to other corporations and the state intervened, claiming that it was seized of the fee and that the lands were consequently not subject to condemnation; hut the court, as we have just seen, held otherwise. We think that case is in point, and that what the prosecutrix look under the so-called “lease” of 1889 was a fee subject to rent charge and the rights of re-entry and distress as reserved. The so-called “grant” of 1907 is then nothing more than a release of the rent charge in consideration of a gross sum pursuant to the covenant in the paper of 1889; and its language is entirely appropriate for the purpose.
The taxes for 1901 and succeeding years were properly imposed, and are therefore affirmed, with costs.