18 N.J. Eq. 390 | New York Court of Chancery | 1867
The dispute in this case is as to lands on the shore, or between high and low water line, along the Delaware river, in the city of Camden. The parties respectively own adjoining parcels of land bounded by the river; the parcel of
The parcel of land on the north of the ancient line contended for, has been held by one branch of the Cooper family for over one hundred and fifty years, and the parcel south of that line has been held by another branch of that same family, for the samé length of time. This line was first created by a deed of gift, from William Cooper to his son, Daniel Cooper, dated April sixteenth, 1695. By it, William Cooper, who owned the lands on both sides of that line, fronting on the river Delaware, granted one hundred and
By the common law', as it existed in New Jersey before 1851, the owners of lands on the margin of tide waters had certain rights and privileges to the water, and in the shore in front of his lands, although the title was in the state. By the statute known as the wharf act, approved March eighteenth, 1851, the right to reclaim the shore in front of his lands, and appropriate it to his own use, was vested in the shore owner. What were the lands in front of him, and what was the boundary upon the shore between coterminous shore owners, was not settled by that act. But where such coterminous shore owners, either before ■ or since the passage of the wharf act, had fixed the boundary of their rights upon the shore, by deeds or other instruments that wmuld have bound them if their inchoate rights had been complete and perfect, they must, upon plain principles of
I think that persons who have for years recognized and acquiesced in a line as separating their inchoate and imperfect rights upon the shore, should be held bound by such acknowledgment and acquiescence, for the same reason that they are held to be bound by them as to lines on upland. This seems to be the ground of the decision in the case of O’Donnell v. Kelsey, 6 Seld. 412, and 4 Sandf. S. C. 202.
But if such acquiescence and recognition have no force to settle the boundary, and recourse is had to any of the rules adopted elsewhere in such cases, which are very unsettled, the complainants’ rights in the shore will, by some, be extended south of the line claimed, and will by none of them come short of it. If we adopt the rule in Rust v. The Boston Mill Corporation, 6 Pick. 158, approved in Sparhawk v. Bullard, 1 Metc. 98, and in Deerfield v. Arms, 17 Pick. 41, and mentioned with approval in O’Donnell v. Kelsey, the line on the shore would be much south of the ancient line extended. If we take as the rule, that laid down in Massachusetts in the more recent case of Gray v. Deluce, 5 Cush. 12, in which the shore line, to which it was applied, was very like that line in this case, still the line would, beyond question, diverge south of the ancient line. The rule in Gray v. Deluee, seems much more in accordance with sound principle and good sense, than that in Rust v. The Boston Mill Corporation. The rule of division adopted in Maine, in Emerson v. Taylor, 9 Greenl. 42, is so uncertain and impracticable, that it can never be adopted anywhere permanently, as the rule of division of the shore. It would always vary at any point on high water line, if either of the adjoining proprietors, before running the division line, should sell some of his shore front, or increase it by purchase. The Superior Court of New York, in Nott v. Thayer, 2 Bosw. 10, were much inclined to
As the complainants apply for the injunction and relief only to the old partition line extended, and claim nothing south of it, I have no doubt but that their right to' reclaim and improve the shore, extends to that line. The piles driven by the defendant, Browning, north of that line, are an injury to them, and an obstruction to the exercise of their rights. If the complainants permit them to remain, and Browning to go on with his improvements, they may be barred by acquiescence. They have no remedy at law; although they have a vested right or easement in these lands, they are not entitled to the exclusive possession until reclaimed or enclosed, and cannot sustain ejectment.
The complainants are entitled to have the ancient line extended, declared to be the division line upon the shore between them and the defendants, and established as such; and to have the defendants enjoined perpetually from placing piles or other obstructions on the shore in front of their lands north of that line.