Lower Tp. v. City Of Wildwood

• Decision Date: 29 April 1943
• Docket Number: No. 19.,19.
• Citation: 130 N.J.L. 186,31 A.2d 807
• Parties: LOWER TP. v. CITY OF WILDWOOD et al.
• Court: New Jersey Supreme Court

130 N.J.L. 186

31 A.2d 807

LOWER TP.

v.CITY OF WILDWOOD et al.

No. 19.

Court of Errors and Appeals of New Jersey.

April 29, 1943.

Proceeding by the Township of Lower, a municipal corporation of Cape May County, New Jersey, against the City of Wildwood, a municipal corporation of Cape May County, New Jersey, and others, for appointment of commissioners to fix, determine, and monument the boundary line between the Township of Lower and the City of Wildwood. From a judgment of the Supreme Court, 129 N.J.L. 22, 28 A.2d 74, dismissing a writ of certiorari allowed to review an order of the Court of Common Pleas of Cape May County dismissing the petition and rule to show cause, the Township of Lower appeals.

Supreme Court judgment affirmed.

Bolte, Miller & Repetto, of Atlantic City (Augustine A. Repetto, of Atlantic City, of counsel), for prosecutor-appellant.

Frank A. Mathews, Jr., of Camden, and Irving Shenberg, of Wildwood, for respondents-appellees.

BROGAN, Chief Justice.

This is an appeal from a judgment of the Supreme Court on certiorari, the writ having been allowed to review an order which amounted to final judgment, in the Common Pleas Court of Cape May County. The question involved is whether our statute, infra, may be invoked to determine and monument the boundary line between the municipalities, Lower and Wildwood, and whether there is a dispute concerning the true line. The proceeding was initiated by the governing body of the Township of Lower and the petition alleges a dispute between the petitioning township and the City of Wildwood with regard to a certain boundary, that is, the easterly side of Beach Creek which at one point is the westerly boundary of Wildwood. The dispute and uncertainty with regard to the true boundary arises, according to the petition, ‘by changes in the contour and general physical condition of the said Beach Creek’ and the lands adjoining it ‘which changes have taken place from time to time and have been both natural and artificial.’ The occasion for the alleged disagreement between the two municipalities seems to have arisen out of the fact that the Township of Lower issued a liquor license to one Mackell who conducted a place of business for the sale of alcoholic beverages, in the vicinity of Beach Creek, near Rio Grande Avenue. The City of Wildwood contended that the locus in quo is in fact within its territorial limits and it proceeded to prosecute Mackell for selling alcoholic beverages without a license from the City of Wildwood. The fortunes of Mackell, however, are not involved in this case except incidentally and collaterally as the occasion for taking the dispute over the boundary line into court. The prayer of the petition presented by the Township of Lower is that the court appoint three commissioners ‘to fix, determine and monument the disputed boundary line between the two municipalities.’

The statute invoked by the petitioner (N.J.S.A. 40:43-67) provides as follows: ‘When there is a dispute or uncertainty concerning the true boundary line between any two adjoining municipalities, the governing body of either municipality, upon fourteen days' notice in writing, served upon the mayor or other chief executive officer and upon the clerk of the adjoining municipality, may make application to a judge of the court of common pleas of the county wherein the disputed boundary line is located, for the appointment of three commissioners to fix, determine and monument the boundary line between the municipalities, which line, when finally fixed, determined and monumented, shall remain inviolate. The judge shall thereupon, unless good reason be presented for his not doing so, appoint three commissioners who shall be freeholders in the county, one to be appointed from each municipality, and one who shall not reside in either municipality.’

The learned judge in the Pleas, after testimony and argument, dismissed the rule to show cause previously allowed, holding that ‘the boundary line involved is the bank of a navigable and tidewater stream and therefore cannot be fixed, determined and monumented.’ The Supreme Court affirmed. 129 N.J.A. 22, 28 A.2d 74. As the Supreme Court pointed out in its opinion, the City of Wildwood was carved by the Legislature from the Township of Lower and thereafter the Borough of Holly Beach City was consolidated with Wildwood so that the precincts of Wildwood extend to the outer boundary of Holly Beach City. The statute (...