Bew v. Ventnor City

• Decision Date: 06 June 1911
• Citation: 81 N.J.L. 207,80 A. 28
• Parties: BEW et al. v. VENTNOR CITY et al.
• Court: New Jersey Supreme Court

80 A. 28

81 N.J.L. 207

BEW et al.

v. VENTNOR CITY et al.

Supreme Court of New Jersey.

June 6, 1911.

(Syllabus, by the Court.)

Certiorari by James T. Bew and. others against Ventnor City and others to review proceedings for the issue of bonds, and the making of a contract for the erection of a pier. Resolutions affirmed, and contract set aside.

Argued February term, 1911, before SWAYZE, BERGEN, and MINTURN, JJ.

Theodore W. Schimpf, for prosecutors. Gilbert Collins, J. S. Westcott, and H. Starr Giddings, for defendants.

SWAYZE, J. The question involved is the validity of resolutions for the issue of bonds under chapter 13 the Acts of 1909 (P. L. 1909, p. 27), and of contracts for the erection of a pier. The first objection relates to the constitutionality of the statute. In view of the decisions with reference to a similar statute, this question is now hardly debatable. Seaside Realty Co. v. Atlantic City, 74 N. J. Law, 178, 64 Atl. 1081, affirmed 76 N. J. Law, 819, 71 Atl. 912; Fishblatt v. Atlantic City, 78 Atl. 217; Crossan v. Ventnor City, 78 Atl. 12. The prosecutor finds two difficulties in the way of construing the act so as to apply to the present ease: (1) That the city does not own the land proposed to be improved; (2) that it is only authorized to improve lands owned by it contiguous to the beach or ocean front, and the beach or ocean front contiguous thereto. The first difficulty is supposed to arise from the fact that, although the city has at present a title to the land under a deed with apt words to convey a fee simple, that title is liable to be divested hereafter in case the boardwalk along the ocean is moved further oceanward as the land may extend by accretion. This contingency does not prevent the city from owning the fee. It is what is called a qualified fee; but the proprietor of a qualified fee has the same rights and privileges over the estate till the qualification upon which it is limited is at an end as if he were a tenant in fee simple. Pipe Line Co. v. D. L. & W. R. Co., 62 N. J. Law, 254, 268, 41 Atl. 759.

The second objection to the applicability of the act rests on the fact that all of the property on which it is proposed to erect this pier lies below the low-water mark. The argument is that a tract wholly surrounded with water cannot properly be said to be contiguous to the beach or ocean front. The answer to this argument is to be found in tlie opinions of the Court of Errors and Appeals in Fishblatt v. Atlantic City, and Crossan v. Ventnor City, already cited. The boundaries of Ventnor (P. L. 1903, p. 75), like the boundaries of Atlantic City, extend as far as the jurisdiction of the state, and the reasoning of those cases is therefore applicable to this.

If, however, the act of 1909 is constitutional and applicable to the situation, the prosecutors insist that the proceedings for the issue of bonds are defective (1) because the procedure under the act of 1897 under which Ventnor is governed was not followed; (2) because the resolution of November 2, 1910, is indefinite, and uncertain, in that it fails to specify the improvement intended to be made; (3) because the resolution of December 21, 1910, for additional bonds, proposes to improve the public parks, while the land in question, which alone is specified in the November resolution, is outside the park. The objection that the procedure under the act of 1897 was not followed cannot prevail. The act of 1909 provided for its own procedure. It expressly fixed a limit of $150,000 to the...