Girard Trust Co. v. McGeorge, 122/572.

• Citation: 15 A.2d 206,128 N.J.Eq. 91
• Decision Date: 10 September 1940
• Docket Number: No. 122/572.,122/572.
• Parties: GIRARD TRUST CO. v. McGEORGE et al.
• Court: New Jersey Court of Chancery

15 A.2d 206

128 N.J.Eq. 91

GIRARD TRUST CO.

v. McGEORGE et al.

No. 122/572.

Court of Chancery of New Jersey.

Sept. 10, 1940.

Syllabus by the Court.

1. Acts of possession of waste sand islands in the tidal waters of this State, consistent with the character of the land, which acts constitute notice to onlookers that the party doing or directing them claims to be the owner, are sufficient to establish the possession required by R.S. 2:76-2, N.J.S.A.2:76-2, in order to maintain a suit to quiet title.

2. The "presumed possession" of one claiming title to waste sand islands in the tidal waters of this State in fee, under a proprietary survey, who has paid taxes and to whom the taxes thereon have been assessed for 5 years immediately prior to the commencement of the suit to quiet title, may be defeated by a person who is in actual possession of said land as contrasted with a presumptive or constructive possession of such claimant.

3. Defendant herein, prior to the present litigation, obtained judgment in ejectment in a suit which did not involve the lands herein described and in which complainant was not a party at the time judgment was rendered; held, that said judgment is not res adjudicata in the present suit.

4. A judgment by default is as conclusive an adjudication between the parties thereto of whatever is essential to support the judgment as one rendered after answer and contest, but it is conclusive only as to such matters or issuable facts as are properly averred in the declaration in the ejectment suit, and it appearing that plaintiff in ejectment had voluntarily dismissed complainant herein as a party to the ejectment suit and amended the declaration therein so as to exclude the lands involved herein before judgment, that judgment is not res adjudicata herein.

Suit by the Girard Trust Company, trustee of Joseph Wharton, deceased, against Bertha N. McGeorge and others, to quiet title to certain realty.

Decree for complainant.

Thompson & Lloyd, of Atlantic City (John Lloyd, Jr., of Atlantic City, of counsel), for complainant.

William M. & Thomas R. Clevenger, of Atlantic City (James Mercer Davis, of Camden, of counsel), for defendant Norristown-Penn Trust Company, administrator, etc.

Endicott & Endicott, of Atlantic City, for defendants Arthur McGeorge et al.

SOOY, Vice Chancellor.

Complainant, herein sometimes referred to as Wharton, has filed a bill to quiet title to certain lands situate partly in the City of Brigantine and partly in Galloway Township in Atlantic County. This land is known as Boot Island and is situate in the inland waters leading to Absecon Inlet, with "Main Channel" to the west and "Golden Hummocks Thorofare" to the east. The island is divided by what is known as the inland waterway channel and also Fish Tail Cut, which was cut through the island by the Board of Commerce and Navigation of the State of New Jersey, the lands to the north of said waterway being situate in Galloway Township and those to the south in the City of Brigantine. Prior to 1923 complainant claimed to own all of Boot Island, with the exception of the northermost "toe," which belonged to the Estate of John J. Gardner, deceased, containing 44 acres, but in that year complainant conveyed the southermost portion of the island (approximately 36 acres) to the Island Development Company, which company subsequently conveyed to the Atlantic-Brigantine Bridge Company, and one or the other of these companies constructed what is known as Brigantine Boulevard over the land so conveyed.

Complainant claims title through a proprietary survey made by the Council of Proprietors to one Clark on February 20, 1903.

The matter comes before me on a preliminary hearing to determine whether complainant is entitled to maintain its bill, the defendant having denied the existence of the statutory requirement in the complainant.

The statute, Revision of 1937, 2:76-2, N.J.S.A. 2:76-2, provides: "Any person in the peaceable possession of lands in this state and claiming ownership thereof, may, when his title thereto, or any part thereof, is denied or disputed, or any other person claims or is claimed to own the same, or any part thereof or interest therein, or to hold a lien or encumbrance thereon, and when no suit is pending to enforce or test the validity of such title, claim or encumbrance, maintain a suit in the court of chancery to settle the title to such lands and to clear up all doubts and disputes concerning the same."

Section 2:76-3 provides: "If the lands are not, by reason of their extent or because they are wild, wood, waste, uninclosed or unimproved, in the actual peaceable possession of the owner or person claiming ownership, the owner or person claiming ownership in fee under a deed or other instrument, duly recorded in this state, who has paid taxes thereon and to whom or to whose grantors the taxes thereon have been assessed for five consecutive years immediately prior to the commencement of the suit authorized by section 2: 76-2 of this title, shall, if no other person is in actual possession thereof, be presumed to be in peaceable possession thereof, and shall have all the rights and benefits of and be subject to all the provisions of this article."

The lands in question are uninclosed and unimproved and consist of sand accumulations unsuited for agriculture. The general elevation is above normal high water but is at times covered by storm tides. The only use that could be made of this land at the present time would be gunning for wild fowl, fishing in the adjacent waters, and oystering or clamming therein. It does not appear in the evidence that salt hay grows thereon in harvestable quantities.

Complainant contends that it was in peaceable possession at the time of the filing of the bill and has so continued to be, and that it has paid the taxes assessed thereon, starting with the year 1933 and for 5 years thereafter; that no other person is in actual possession of the lands in question and that there was no suit pending to enforce or test the validity of complainant's title at the time of the filing of the bill. All of these assertions are denied by the defendants herein, sometimes referred to as McGeorge.

The proofs as to actual possession on complainant's part disclose that in October of 1911 Wharton conveyed to the State of New Jersey a right-of-way across the island; that the State dredged a channel 200 feet wide which bisected the island and diverted the inland waters through that channel and made it a part of the inland waterway of the State. The work of dredging occupied several months before completion, during which time a large suction dredge or dredges, worked continuously and at which time large pipes to conduct the dredged sand from the cut to places of deposit were plainly visible from all points of the compass and during this time a large number of men were engaged in this work, and it was by reason of this channel that Boot Island may be said to have become two separate islands.

In 1923 complainant conveyed the southermost portion of Boot Island to the Island Development Company and it, in turn, conveyed to the Atlantic-Brigantine Bridge Company, and a portion of the land so conveyed was used to construct the present boulevard connecting the City of Brigantine with Atlantic City, and has been continuously used as such for many years past. The lands so conveyed and so used are not the subject of this suit, it being the remaining portion of Boot Island north and south of the now inland waterway aforesaid which is here contested.

In 1924 complainant bought from the New Jersey Board of Commerce and Navigation a riparian lease covering lands between high and low water on both sides of the locus in quo. This lease was recorded in the records of the Board and extended for a period of 15 years and upon its expiration was renewed for 5 years additional.

Complainant sent its surveyors on the lands at various times for survey and map work and in 1936 they erected a cabin on the lands in question, which cabin was never fully completed but was boarded up in an incompleted state.

As opposed to this proof, defendants show that in December of 1936 an agent of the defendant visited the island and saw the cabin aforesaid partially completed and in addition to the cabin he saw 2 small shacks located along the course of the inland waterway, one on the northern side and one on the southern side.

In June of 1925 we find that the defendant disputed complainant's title by instituting a suit in ejectment in the United States District Court, describing in the declaration the whole of Boot Island. The suit was against the complainant and its grantee, the Island Development Company aforesaid, as well as the latter's grantee, the Atlantic-Brigantine Bridge Company. In this suit, of course, McGeorge alleged that Wharton and the other defendants in the ejectment suit were in possession. After the institution of that suit, McGeorge dismissed as to Wharton and amended the description of the land as set forth in the original bill, so as to describe only such part of Boot Island as Wharton had conveyed as aforesaid, so that the suit thus restricted continued against Wharton's grantee and its grantee and not against Wharton. This suit was tried, resulting in favor of McGeorge; the judgment was reversed by the Circuit Court of Appeals, Island Development Co. v. McGeorge, 3 Cir., 26 F.2d 841, and the suit permitted to drag until September of 1935 when, by consent, a judgment was entered against the defendants named therein but, of course, not against the complainant herein. Such proceedings were had by virtue of that judgment that McGeorge was put in possession of the premises described in the amended complaint by the United States Marshal.

In December of 1936 McGeorge filed another suit in ejectment for all of Boot Island excepting the land covered by the amended complaint in the first suit above mentioned. This...