92 N.J. Eq. 219 | N.J. | 1920
The opinion of the court was delivered by
We pass over the questions discussed by the learned vice-chancellor and ably argued by counsel whether the scheme of repairing the government dike was well advised and well planned, and whether the' repairs of 1914 were well executed. We pass over also the interesting question whether what was done was merety by way of repairs to the mortgaged premises, or whether it was an improvement, with the sole remark that where the question arises with reference to riparian lands and tire effect of the work is to make new land by way of preservation of the presént area or by way of filling in, either by human labor or by natural forces, it is difficult to .say that what is done is reparation. The addition of new land increasing the area, can hardly be other than an improvement. A riparian owner is subject to loss by erosion and is supposed to be compensated by gain from accretion.; but the erosion is by natural forces without artificial aid and the accretion except as regulated by statute must be also by natural forces or by lawful acts. Otherwise there would be no limit but the length of the riparian owners’ purse. It is for this reason, among others, that the accretion ordinariN must be by imperceptible quantities. Erosion along tidal waters extends the domain of the state; accretion narrows the domain of the state and must be limited in accordance with the statutes. The state has made provision for the artificial extension of the land of the riparian owner. After the decision in Gough v. Bell, 22 N. J. Law 441. the legislature regulated the acquisition of tidal land, by filling in or docking out, in the Wharf act of 1851. Subsequently, it became important that the matter should be controlled by the riparian commissioners, and in 1891 the Wharf act was repealed and the matter regulated by an amendment of the
The question presented, therefore, is the narrow one, whether a mortgagee in possession can charge a mortgagor with money unlawfully spent in an effort to acquire title contrary to law to 'land not covered by the mortgage, from which the mortgagor or mortgagee may at once be legally ejected. It is too plain for argument that the mortgagor can at most only be charged with
As to the costs and counsel fees, there is a difficulty. The complainant succeeds in its foreclosure, and to some extent is entitled to costs; it fails on the main question litigated, and ought not to be allowed the additional costs and counsel fees made necessary by the accounting. We are in. no position in this court to make an equitable decree as to the costs in the court of chancery. The question -can readily be solved by the chancellor.
What we have said controls tire decision on the appeal of the Seacoast Beal Estate Company, which is not aggrieved by the decree.