Dickinson v. Fund for the Support of Free Public Schools

• Decision Date: 22 October 1982
• Citation: 454 A.2d 491,187 N.J.Super. 224
• Parties: Fairleigh S. DICKINSON, Jr., et al., Plaintiffs-Respondents and Cross- Appellants, v. The FUND FOR THE SUPPORT OF FREE PUBLIC SCHOOLS, et al., Defendants-Appellants and Cross-Respondents.
• Court: New Jersey Superior Court — Appellate Division

Page 224

187 N.J.Super. 224

454 A.2d 491

Fairleigh S. DICKINSON, Jr., et al., Plaintiffs-Respondents and Cross- Appellants, v. The FUND FOR THE SUPPORT OF FREE PUBLIC SCHOOLS, et al.,

Defendants-Appellants and Cross-Respondents.

Superior Court of New Jersey,

Appellate Division.

Argued Aug. 30, 1982.

Decided Oct. 22, 1982.

William Harla, Deputy Atty. Gen., for defendants-appellants and cross-respondents (Irwin I. Kimmelman, Atty. Gen., attorney; James J. Ciancia, Asst. Atty. Gen., of counsel).

E. Carter Corriston, Hackensack, for plaintiffs-respondents and cross-appellants (Breslin & Breslin, Hackensack, attorneys; Brian T. Campion, Hackensack, on the brief).

John R. Weigel, Princeton, for amicus curiae N.J. Land Title Ass'n (Joseph M. Clayton, Jr., Princeton, on the brief).

Before Judges MATTHEWS, MICHELS and MORTON I. GREENBERG.

The opinion of the court was delivered by

MORTON I. GREENBERG, J.A.D.

This opinion records another episode in the ongoing and seemingly endless controversy concerning ownership of lands in New Jersey claimed by the State as tidelands. See, e.g., Wildwood Crest v. Masciarella, 51 N.J. 352, 240 A.2d 665 (1968); O'Neill v. State Hwy. Dep't, 50 N.J. 307, 235 A.2d 1 (1967); Garrett v. State, 118 N.J.Super. 594, 289 A.2d 542 (App.Div.1972). An understanding of this litigation requires that the background of the problem be set forth at length.

History

In England the sovereign owned the tidelands. See Schultz v. Wilson, 44 N.J.Super. 591, 596-599, 131 A.2d 415 (App.Div.), certif. den. 24 N.J. 546, 133 A.2d 395 (1957); River Development Corp. v. Liberty Corp., 51 N.J.Super. 447, 460, 144 A.2d 180 (App.Div.1958), aff'd 29 N.J. 239, 148 A.2d 721 (1959). This ownership included the lands up to the mean high tide. See O'Neill v. State Hwy. Dep't, supra, 50 N.J. at 323, 235 A.2d 1. Not surprisingly, this sovereign ownership was recognized to exist in New Jersey when it was a colony. See Schultz v. Wilson, supra, 44 N.J.Super. at 596-599, 131 A.2d 415. Accordingly, at the time of the American Revolution title to the tidelands became vested in the State as successor to the English sovereign. O'Neill v. State Hwy. Dep't, supra, 50 N.J. at 322-323, 235 A.2d 1; Schultz v. Wilson, supra, 44 N.J.Super. 596-599, 131 A.2d 415.

During its first two centuries our State Government made no effort on a state-wide basis to catalog or itemize all of the tidelands claimed by the State. See O'Neill v. State Hwy. Dep't, supra, 50 N.J. at 320, 235 A.2d 1. In the absence of a clear delineation of the State's claim, private persons developed lands which arguably were state-owned. In many instances there can be no doubt but that these persons were acting in good faith since it was a difficult process to ascertain the line of mean high tide separating public and private ownership. See O'Neill v. State Hwy. Dep't, supra, 50 N.J. at 327, 235 A.2d 1. In such circumstances, if the property developed had in fact been tidal, the State was de facto deprived of its lands, its loss being attributable in part to its neglect in asserting its claim. In other cases properties, though once tidal, by reason of gradual accretion lawfully became privately owned and were then developed. See Wildwood Crest v. Masciarella, supra, 51 N.J. at 352, 240 A.2d 665. In yet other situations properties that were close to but above the mean high water line and never had been below that line, were filled and developed. The State could have no valid claim to properties in the second and third categories. But the State would, unless barred by grant or on some other basis, have a claim to properties in the first category. The difficulty in distinguishing among the types of lands after they were filled, coupled with the absence of mapping of the State's claims, guaranteed that there would be doubt as to the ownership of particular parcels.

As might be expected, properties in all three categories were sold and conveyed and reconveyed. A purchaser, after several conveyances following the original improvement of the property, would have a difficult time in ascertaining whether the State could assert a legitimate claim to his property. See Gormley v. Lan, 88 N.J. 26, 29, 438 A.2d 519 (1981).

The Supreme Court recognized the difficulty caused by these title uncertainties in O'Neill v. State Hwy. Dep't, supra, 50 N.J. at 307, 235 A.2d 1. The court, though declining generally to bar the State's claim to tidelands on principles of estoppel, adverse possession or prescription, noted that for the most part people dealing with the tidelands had acted in good faith. 50 N.J. at 327, 235 A.2d 1. Hence the court directed that the burden of proof in tidelands title disputes would be on the person attacking the existing scene. Ibid. Since ordinarily private persons do not suggest (absent a riparian grant from the State) that tide-flowed property is privately owned, ¹ this principle assigning the burden of proof ameliorated the strictness of the rules declining to apply estoppel, adverse possession or prescription against the State. In short, the State was ordinarily given unlimited time to make its claim but it was burdened with the obligation to prove it. Further, the court, in an effort to bring order out of chaos, made a suggestion to the Legislature that the State catalog its property. 50 N.J. at 320, 235 A.2d 1.

The legislative response to the court's suggestion was prompt. By L.1968, c. 404, the then Resource Development Council of the Department of Conservation and Economic Development was directed "to undertake title studies and surveys of meadowlands throughout the State and to determine and certify those lands which it finds are State-owned lands." N.J.S.A. 13:1B-13.2. The initial survey, which was to be completed within six months, was to be of the Hackensack meadowlands. Ibid. No doubt this was a reflection of the economic significance of that property. Indeed, O'Neill v. State Hwy. Dep't, supra, 50 N.J. at 307, 235 A.2d 1, was a Hackensack meadowlands case. The Legislature was overly optimistic as to the time in which the surveys could be completed. The Hackensack meadows were not properly surveyed within the six months period. Nor was the balance of the State surveyed by December 31, 1974, the time the Legislature contemplated in 1968. See L.1968, c. 404, § 92. Indeed, the State has to this day not been completely surveyed.

Two other aspects of the 1968 act are also significant for our purposes. As noted, the Council was to study and survey "meadowlands" throughout the State. Meadowlands were defined as being lands "now or formerly consisting chiefly of salt water swamps, meadows or marshes." L.1968, c. 404, § 87; N.J.S.A. 13:1B-13.1. Thus, by its terms the Council was not directed to survey property such as unlawful stream encroachments. But we have no doubt but that this restrictive terminology is simply a reflection that the Legislature's attention was directed to the Hackensack region. Indeed, the principal purpose of the statute was to create the Hackensack Meadowlands Development Commission. % L.1968, c. 404, § 5. There the title disputes to a large degree did involve meadowlands. In any event, the Resource Development Council and its successor agencies, first the Natural Resource Council ( N.J.S.A. 13:1D-3), and now the Tidelands Resource Council (L.1979, c. 386, § 1), have construed L.1968, c. 404, as authorizing mapping of all State tidelands. We accept this practical administrative interpretation. See Malone v. Fender, 80 N.J. 129, 137, 402 A.2d 240 (1979).

Secondly the statute does not expressly indicate the consequence of the classification of a property as State-owned or not. There can be no question, of course, that the State could not, simply by claiming the property, deprive a rightful owner of his title. Indeed, the Legislature contemplated no such thing. Rather, it established mechanisms for a claimant to challenge the State's claim of title. N.J.S.A. 13:1B-13.5.

A more difficult question is whether the Legislature intended that lands not claimed by the mapping under L.1968, c. 404, be free from any future state claim. It is well known that the proceeds of the sale of riparian grants are and have been dedicated to the Fund for the Support of Free Public Schools. See Gormley v. Lan, supra, 88 N.J. at 31, 438 A.2d 519; River Development Corp. v. Liberty Corp., supra, 51 N.J.Super. at 475, 144 A.2d 180. Thus, the State cannot make a gift of such lands, even to a municipality. See Garrett v. State, supra, 118 N.J.Super. at 599, 289 A.2d 542; In re Camden, 1 N.J.Misc. 623, 639-641 (Sup.Ct.1923); Henderson v. Atlantic City, 64 N.J.Eq. 583, 54 A. 533 (Ch.1903). While we note this point, we find it unnecessary to decide in this case. Therefore, it might be asserted that even if the State does not make a claim to lands on a map made pursuant to L.1968, c. 404, a subsequent claim is not barred. ²

Finally, it is important to note that the Legislature intended to give a landowner no relief other than finding out the status of his property. The landowner would know if the State claimed it. And he could challenge the decision administratively or judicially. Beyond that his only recourse was to obtain a grant. N.J.S.A. 13:1B-13.7. There was no amnesty in the act for owners of properties unlawfully filled.

The initial mapping techniques used pursuant to L.1968, c. 404, were inadequate. The original map of the Hackensack meadowlands, "Block and Lot Subdivision in the Hackensack Meadows, Part I and Part II," called the "gray and white map," became implicated in litigation entitled "State of New Jersey by the Commissioner of Transportation vs. The Council in the Division of Resource Development of the Department of Conservation and Economic Development of the State of New Jersey," L-12561-68. Judge Trautwein, on September 8, 1971, in that action held that the map had not been properly prepared. See Newark v. Natural Resource...