64 N.J.L. 550 | N.J. | 1900
The opinion of the court was delivered by
This was an action of ejectment brought by the Ocean City Association against "William Shriver to recover possession of a lot of land in Ocean City, lying between Ocean avenue and the Atlantic ocean.
The Ocean City Association is an incorporated land company. In 1880 it purchased a tract containing several thousand acres of wholly unimproved land lying between Peck’s Beach, in the county of Cape May, and the Atlantic ocean. On this tract a summer resort known as Ocean City has grown up.
Shortly after the purchase the association had a map made from a survey made by one Lake. The map was lithographed and a copy filed in the office of the clerk of Cape May county, and some lots were sold by the association by reference to it. In 1883 the association caused a more extensive map or plan to be made by Lake, which was lithographed and a copy also filed in the clerk’s office. By the map of 1880 it appeared that there was a considerable space of undivided land lying between that portion of the association’s property and the Atlantic ocean. On this map Ocean avenue was delineated practically parallel with and some distance from the ocean. Streets were delineated extending from Ocean avenue westerly, among which Sixth, Seventh, Eighth and Ninth streets only are material to this case. On the map of 1880 Ocean avenue was delineated only as far as Eighth street. The premises which have given occasion to this litigation front on Ocean avenue and lie between Eighth
By a deed bearing date October 29th, 1884, the association • conveyed lot No. 849 to one Henry B. Howell. This lot was ■ on the westerly side of Oeeau avenue, between Ninth and Tenth streets. It had between it and the Atlantic Ocean, Ocean avenue, and also the strip of unimproved or unplotted land •between that avenue and the ocean. The description of the •premises conveyed to Howell is as follows: “All that certain lot or piece of ground situate, lying and being in Ocean City, •on Peck’s Beach, Upper Cape May township, Cape May county, State of New Jersey,, and numbered 849 in section C on the plan of lots of the said ‘Ocean City Association.’ Beginning on the northwesterly side of Ocean avenue, at the -distance of one hundred and fifty feet southwesterly from the southwesterly line of Ninth street, containing in front or breadth on the said Ocean avenue fifty feet, and of that width ■ extending northwesterly between lines parallel with the said Ninth street, one hundred and thirty-five feet, to a fifteen-feet-wide street.” It is manifest from this, description that the sale to Howell was made by reference to the map of 1883. Howell, by a deed dated April 21st, 1895, conveyed this lot to Shriver, the defendant in this suit, by the same description—that is, of a lot on the northwesterly side of Ocean avenue.
Both parties claim title by accretion. It will be assumed that the alluvial deposits that changed the line of high water were such as, by the common law, would extend the title of a riparian owner to the line of high water as it was at the commencement of this suit. The material proposition for
There is evidence that when the map of 1880 was made-Ocean avenue was actually laid out on the ground above-high water, but on that map Ocean avenue did not extend below Eighth street. The testimony is conflicting with-respect to the-line of ordinary high tide in 1883 and 1884. There is evidence that the ocean after 1880 gradually worked' inland, carrying away the avenue, or part of it, in front of lot No. 849, and that in 1895 the ordinary high water-came up to this lot. In 1897 the ocean began to recede, and the map of the riparian commissioners indicates a high-water line in Ocean avenue. On the 3d of August, 1897,. Shriver obtained a grant from the riparian commissioners-covering in terms a strip of land fifty feet in width between the extended lines of the lateral boundaries of lot No. 849,. from the high-water line as indicated by the commissioners-to the commissioners’ exterior line, a distance of nine hundred and eighty-five feet. This suit was commenced in 1898. The controversy concerns the title to the strip of land within-the description of the riparian grant, fifty feet wide, extending from the westerly side of Ocean avenue, easterly about one hundred and fifty feet. I have assumed the advance of high water to or upon the lot 849 at the times above mentioned, but there is little evidence with respect to the line of'
Although the call in the deed from the association to Howell is for Ocean avenue as a fixed monument, I do not consider that fact decisive in this case. The doctrine of dereliction and accretion depends upon principles that are peculiar to that subject. The right to alluvion depends upon the fact of the contiguity of the estate to the water, and to give a right to accession and accretion there must be an estate to which the accession can attach. Saulet v. Shepherd, 4 Wall. 502. The doctrine whereby title is acquired by accretion is founded on the principle of compensation. The proprietor of lands having a boundary on the sea is obliged to accept the alteration of his boundary by the changes to which the shore is subject. He is subject to loss by the same means that may add to his territory; and, as he is without remedy for his loss, so he is entitled to the gain which may arise from alluvial formations. This rule is vindicated on the principle of natural justice, that he who sustains the burden of losses imposed by the contiguity of waters ought to receive whatever benefits they may bring by accretion. Banks v. Ogden, 2 Id. 57; 1 Am. & Eng. Encycl. L. (2d ed.) 476, note 1.
Lands gained from the sea are per alluvionem, or land washed up by the sea, and per reliotionem, derelict land or land left dry by the retirement of the sea. Hall R. Cr. 108. The doctrine of accretion applies in both these instances; for, as was said by Lord Hale, “there is no alluvion without some kind of reliction, for the sea shuts out itself.” Id. 115,
There is another condition under which the doctrine of accretion is presented—that is, of ground once terra firma, but since flooded, which has been recovered. Mr. Callis puts this case: “ The sea overflows a field where divers men’s grounds lie promiscuously, and there continueth so long that the same is accounted parcel of the sea; and then after many years the sea goes back and leaves the same, but the grounds
The common law is stated in Hale’s JDe Jure Maris, in these words: “If a subject hath land adjoining the sea, and the violence of the sea swallow it up, but so that yet there be reasonable marks to continue the notice of it, or though the marks be defaced, yet if by situation and extent of quantity and bounding upon the firm land, the same can be known, though the sea leave this land again or it be by art or industry regained, the subject doth not lose his propriety. * * * But suppose the inundation of the sea deface the marks and boundaries, yet if the certain extent or contents from the land not overflown can be evidenced, though the bounds be defaced, yet it shall be returned to the owner according to those quantities and extents that it formerly had. Only if any man be at the charge of inning- of it, it seems by a decree of sewers he may hold it till he be reimbursed his charges, as was done in the case of Bur.nell before alleged. But if it be freely left again by the reflux and recess of the sea, the owner may have his land as before, if he can make it out where and what it was ; for he cannot lose his propriety of the soil, though it be-for a time become part of the sea.” Harg. Law Tr. 15, 16, 17. Lord Justice Lindley, speaking on this subject in 1878, said: “Our own law may be traced back through Blackstone, Hale, Britton, Fleta and Braeton, to the Institutes of Justinian, from which Braeton evidently took his exposition of the subject.” Foster v. Wright, 4 C. P. D. 438, 446. “The principle laid down by Lord Hale, that the party who suffers
Hew Orleans v. United States is the leading case in this-country. The court there said : “ The question is well settled at common law that the person whose land is bounded by a stream of water which changes its course gradually by alluvial formations shall still hold by the same boundary, including the accumulated soil. Ho other rule can be applied on just principles. Every proprietor whose land is thus bounded is subject to loss by the same means which may add to his-territory, and as he is without remedy for his loss 'in this-way he cannot be held accountable for his gain.” 10 Pet. 662; Jones v. Soulard, 24 How. 41; Banks v. Ogden, 2 Wall. 57; Saulet v. Shepherd, 4 Id. 502; St. Clair County v. Lovingston, 23 Id. 46; Jefferis v. East Omaha Land Co., 134 U. S. 178.
To entitle a proprietor to the right of accretion he must be-a riparian owner and his land must adjoin the line of ordinary high tide. In Fitzgerald v. Faunce, 17 Vroom 536, this-court held that a strip of land four feet in width interposed between the lands of an adjacent proprietor and the water-deprived the latter of the rights of a riparian owner, although that strip was conveyed for use and enjoyment for purposes-of fishing. So, also, if a strip of land, however small, intervene between the premises conveyed and the water at ordinary high water the owner will not be entitled to the accretion (Saulet v. Shepherd, 4 Wall. 502; Trustees, &c., of the Town of East Hampton v. Kirk, 84 N. Y. 215), and, as between vendor and vendee, the right to alluvion depends upon the condition of the land at the time of the transfer of the-legal title. Gould Wat., § 156.
In Jones v. Johnson the facts were thése: One Robert A. Kinzie was the owner of a tract of land situate in the bend-of the Chicago river. In February, 1833, lie laid out an-addition to the town of Chicago upon this fractional section and made a plat of the same, which was recorded in the re
In Banks v. Ogden, 2 Wall. 57, the defendant became the owner of a block or lot bounded by a street on the McKenzie plat. McKenzie’s title subsequently devolved on Banks. Ogden’s deed was dated in 1833. In 1844 and 1845 land was formed which extended easterly more than two hundred feet from the shore of the lake at the time Ogden’s deed was made. At that time the waters of the lake limited Sands street by an oblique line, creating a triangle in front of Ogden’s lot within the designated lines of the street. This triangle was less than thirty-three feet wide at its southern •end and it diminished to a point concurrent with the northerly line of Ogden’s lot. The Supreme Court of the United States held that the fact that the land within that triangle belonged to the original proprietor, gave to Banks the hew land that was formed in 1844 and 1845 by accretion. The map of the premises in question in that case, printed on page 59 of the report, exhibits a similarity between the premises then in •question and the premises involved in this case. It will also be observed that in that case it was held, as our courts hold, that a boundary on a street carries -title to the grantee to the middle line of the street.
In Mulry v. Norton, 100 N. Y. 424, it was held that where the title of a littoral proprietor to land by accretion was involved, that while the title of such a proprietor is liable to be lost by erosion or submergence, erosion to effect that result
The cases and text-books have so uniformly adopted the principle that the line of ordinary high tide at the time of the conveyance “ governs and decides the question as between vendor and vendee ” that further citation is unnecessary. On no other rule can the principle be applied that as the proprietor of lands is subject to loss by the encroachment of the sea, he is therefore entitled to the gain which may arise from alluvial formations.
The rules of construction and appropriation of lands acquired by accretion, adopted in the above cases, are applicable to the present suit. As between the association and Howell, the situation of the lot conveyed to him with respect to the line of ordinary high water is decisive of the rights of the parties respectively. Shriver acquired title under Howell by the same description as was contained in the deed to Howell. As against the association he could not acquire any title or estate or right beyond that which the association, by its deed, in 1884, conveyed to Howell.
To maintain the title of the defendant, counsel contends that Shriver’s right to alluvial deposits is referable to the condition that existed in 1895, when he acquired title under Howell, and not to the time when the association conveyed to Howell. This contention rests upon the assumption that although, as between the association and Howell, the condition of the line of high water was such as that, between those parties, the association may have remained the riparian owner, yet, by the changes that subsequently occurred,
It is well settled at common law that where lands of riparian owners are separated by a river—each being a riparian owner but on different sides of the stream—the river is the common boundary, and if its course be changed by alluvial formations the owners of such lands will hold to the same boundary, including the accumulated soil. In such cases “the filum aquce is the common mark or boundary, though it borrow great quantities of land, sometimes of one side, sometimes of the other, and give them to the opposite shore.” Hale De Jure 5, 6; New Orleans v. United States, 10 Pet. 662; Nebraska v. Iowa, 143 U. S. 359, 360, 366. An extract from Mattel (Du Droit D’Alluvion, § 268), translated and cited with approval by Mr. Justice Brewer in the case
The passages in the opinion in Welles v. Bailey, that are pressed upon the attention of this court, are these: “If a particular tract was entirely cut off from the river by an intervening tract, and that intervening tract should be gradually washed away, until the remoter tract was reached by the river, the latter tract would become riparian as much as if it-had been originally such. * * * If after washing away the intervening tract it should encroach upon the remoter lot, and should then begin to change its movement in the other direction, gradually restoring what it had taken from the intervening lot, the whole, by the law of accretion, would belong to the remoter but now approximate lot.” These sentences detached from the body of the opinion and put aside from the case sub judice, if they were intended to express the
Gilbert v. Eldridge, decided by the Supreme Court of Minnesota in 1891, is a case in principle similar to the one now before the court. In that case one Orrin Rice, the owner of a tract of shore land, in 1858 platted it out, designating streets and blocks. At the time of the platting the line of low water crossed block 110. The plaintiff owned block 108 and the defendants block 110 on this plat. Block 108 was southwest of block 110, separated from it by a street, and was wholly above and beyond the shore line. The platting by the owner extended into the shallow water of the bay of Duluth, beyond the shore line; other lots, blocks and streets being platted in the water beyond block 110. On December
The case just cited presents the question passed upon in: the Connecticut case in conformity with.the law of acere-' tion, without complications arising from changes in a natural boundary, and is in that respect in harmony with the doctrine of the common law and the decisions of the courts of Eugland and of this country.
The defendant also claimed title under his riparian grants
The riparian grant in this case was made by the commissioners under the act of 1871. It recites that “Whereas, pursuant to an act of the legislature, approved March 21st, 1871, entitled ‘A further supplement to an act entitled “An act to ascertain the rights of the state and of riparian owners in the lands lying under the waters of the Bay of New York .and elsewhere in this state,” approved April eleventh, one thousand eight hundred and sixty-four,’ and other acts and joint resolutions of the legislature of said state, William Shriver, &c., being the owner of lands fronting on the Atlantic ocean, in Ocean City, in the county of Cape May, and Slate of New Jersey, which lie above high-water mark and in front of which the lands, under water hereinafter described are situated, has applied to the riparian commissioners of said state for a grant of the said lands under water,” &c.; and, after describing the lands granted, with words of conveyance, contained an express proviso hereinafter referred to. The purport of this grant unmistakably indicates the purpose of the riparian commissioners to vest the state’s rights in these
The case between these parties turns wholly on the condition of the line of ordinary high tide in 1884, the date of the deed to Howell. If, at that time, the association was the owner, in whole or in part, of the land on the line of ordinary high water in front of this lot, its title was carried out to the full extent of the land obtained by the accretion, and Shriver did not become the owner of the land referred to in the riparian grant. If, on the other hand, the line of ordinary high tide in 1884, when the association conveyed its-title, was on this lot, then, by force of the conveyance to Howell, he became the riparian owner, and he and his grantee-are entitled to the accretions. In that event the plaintiff has no title to the locus in quo.
The learned judge charged the jury that if the high-water line, before or in 1895, advanced to or on the lot 849, that lot became a riparian lot, and whatever alluvial increase the-ocean had in its advance brought to and in front of the lot became the land of the defendant. This instruction was erroneous, and for this reason the judgment should be reversed.
For affirmance—Magie (Chancellor), Dixon, Collins. 3.
For reversal—Depue (Chief Justice), Van Syckel, Garrison, Gummere, Hendrickson, Adams, YredenBURGH, YoORHEES. 8.