Elliot v. Atlantic City

• Decision Date: 11 January 1907
• Parties: ELLIOT et al. v. ATLANTIC CITY.
• Court: U.S. District Court — District of New Jersey

149 F. 849

ELLIOT et al. v. ATLANTIC CITY.

United States Circuit Court, D. New Jersey.

January 11, 1907

Thompson & Cole, for complainants.

Harry Wooten and Godfrey & Godfrey, for defendant.

CROSS District Judge.

The bill of complaint herein is filed to quiet the title to certain real estate at Atlantic City under an act of the state of New Jersey entitled 'An act to compel the determination of claims to real estate in certain cases, and to quiet the title to the same,' approved March 2, 1870 (Laws 1870, p. 20, c. 153, and the amendments thereto). The controversy is over the alleged existence across the premises described in the bill of complaint of an avenue designated as Maine avenue, between Atlantic and Baltic avenues, and, if such an avenue be found to exist, then as to its width. The complainants admittedly have an undisputed title to the lands described in their bill, and, indeed, all of the jurisdictional facts are admitted, except that the complainants are in peaceable possession of the lands in controversy. It appears that the lands are beach lands, and a portion of them, at least, is subject to the ebb and flow of tidal water from Absecon Inlet and the Atlantic Ocean. I think the complainants have shown all the possession that the lands are capable of in their natural condition, and that such possession is peaceable. They have shown that there was a large building upon the land but two or three years prior to the time they purchased it; that such building stood there for several years, until it was injured by a storm, when for that reason it was removed by its owners. The piles, however upon which it was constructed, still remain. At the time the building was there, there was also adjacent to it a toboggan slide. Both of these structures were used, for a considerable period of time, for amusement purposes. Moreover, after the complainants acquired title, they built jetties upon the property at different places, with the intent of reclaiming the submerged portion of the land from the ocean. These jetties were in existence when this suit was commenced, and the right of the complainants to erect and maintain them does not appear to have been disputed. In 1901, after the complainants acquired title, the city constructed a temporary boardwalk over a portion of the lands, which, however, it subsequently removed upon notice from the complainants that such act constituted a trespass; and furthermore, the city subsequently accepted a grant from the complainants, the exact object and purport of which, however, does not appear. In Oberon Land Company v. Dunn et al., 56 N.J.Eq 749, 40 A. 121, Vice Chancellor Gray, speaking of the possession required by the statute to confer jurisdiction upon the court, says:

'This peaceable possession must exist at the time of the filing of the bill; but the evidence of such a possession may be the action of the complainant, and of those under whom it claims, at any reasonable time preceding the beginning of the action in this court. Any acts regarding the premises which would naturally convey to an onlooker the sense that the party doing or directing them was the owner are evidential of such a possession as the statute contemplates. These acts must necessarily vary greatly according to the character of the property in question. A house would not be dealt with as would a tract of woodland, nor a sand beach property as would a farm.'

The doctrine thus enunciated is reasonable, and applicable to the point under consideration. I think it entirely proper to consider the buildings which were formerly located upon the land, and which were removed therefrom but two or three years prior to the beginning of this suit, as well as the construction and maintenance of the jetties, as evidence of complainants' possession. The testimony also indicated other acts of possession of a less conspicuous character, which it seems unnecessary to set forth. Possession in fact, as distinguished from constructive possession, which arises simply by virtue of the legal title, is essential to confer jurisdiction upon the court; but actual possession of the principal tract is sufficient possession of adjoining uninclosed land, held under the same title and used in connection therewith. Sheppard v. Nixon, 43 N.J.Eq. 627, 13 A. 617; Yard v. Ocean Beach Association, 49 N.J.Eq. 306, 24 A. 729.

The defendant sets up a claim to an easement over a portion of the land in controversy for the purpose of a public street or highway. The portion thus claimed is alleged to be 100 feet in width, and to extend across the property from Baltic avenue to Artic avenue, and is known as Maine avenue. The city maintains the existence of such avenue by reason of a dedication made by predecessors in title of the complainants who in 1852 filed a map, known in the case as 'Plan of Atlantic City,' on which Maine avenue was laid down, and also because by divers subsequent deeds, appearing in the chain of title to the plot of ground described in the bill of complaint, Maine avenue has been recognized. It is contended on behalf of the complainants, however, that the city is estopped from claiming such dedication of the avenue for reasons which will appear later; and further, that if not so estopped, such dedication exists only as to an avenue 50 feet in width, or, at the most, 75 feet in width, and not to an avenue 100 feet in width, as claimed by the city. The map above referred to embraces a very large tract of land, practically the entire site of Atlantic City. It is drawn to a scale, and counsel for both parties agreed that for some portion of its length Maine avenue, measured by such scale, is 100 feet in width, and as laid down on said map extends for a distance of eight blocks. The original map was not produced, but a copy was, and counsel agreed that the lines on the original map indicating Maine avenue are blue in color, and that, measuring from the north end thereof southward for four blocks, the street as indicated thereon is undoubtedly 100 feet wide. Beginning, however, with Baltic avenue, and for the remaining four blocks, including the block...