New Jersey Zinc & Iron Co. v. Morris Canal & Banking Co.

• Decision Date: 30 August 1888
• Citation: 15 A. 227,44 N.J.E. 398
• Parties: NEW JERSEY ZINC & IRON CO. v. MORRIS CANAL & BANKING CO. et al.
• Court: New Jersey Court of Chancery

15 A. 227

44 N.J.E. 398

NEW JERSEY ZINC & IRON CO.

v. MORRIS CANAL & BANKING CO. et al.

Court of Chancery of New Jersey.

August 30, 1888.

(Syllabus by the Court.)

On final hearing on bill and answer and proofs.

John R. Emery and Henry C. Pitney, for complainant. Oscar Keen and Robert Gilchrist, for defendants.

VAN FLEET, V. C. This is a suit brought under the statute of 1870, authorizing this court in certain cases to settle and determine the title to lands. Revision, p. 1189. The jurisdiction of the court is undisputed. Both parties admit that the necessary facts to give jurisdiction exist, and each call upon the court to pronounce a decree establishing the title it sets up. The case presents simply a question of title. The subject of the suit is a tract of land, situate in the city of Newark, lying on the south side of the Passaic river, extending northerly from the tow-path of the Morris canal to the dock line of the river, and bounded on the east by lands of a corporation known as the "Chemical Works," and on the west by lands of S. C. Williams. Its dimensions, as given in the complainant's bill, are as follows: Being 1,095 feet in length along the dock line, about 1,170 feet in length along the tow-path, about 178 feet along lands of the Chemical Works, and about 102 feet along lands of S. C. Williams. From this description it will be seen that the principal part of the land in controversy lies between the high and low water lines of the Passaic river. The complainants' immediate predecessors in title, the New Jersey Zinc Company, in October, 1870, obtained a license, under the wharf act of 1851, from a joint commission appointed by the chosen freeholders of the counties of Essex and Hudson, authorizing them to fill in and dock out on the land in question; and they, soon thereafter, erected a line of piling, surmounted by a cap or string piece, along its front and western boundary. The land on the east, belonging to the Chemical Works, and forming the eastern boundary of the tract in dispute, had already been tilled in out to the dock line. The complainants and their predecessors in title, after obtaining the license, and before the institution of this suit, expended in improving the land in dispute over $17,000. The license granted to the New Jersey Zinc Company gave them no authority to fill in and dock out unless they were the owners of a ripa lying behind the land covered by tide-water. A license granted under the statute of 1851 confers no right whatever on the licensee, unless he is the owner of the shore, and is of no use to him unless he is. His license is conditional, the condition being that he has title to a ripa lying behind the public domain covered by his license. Brown v. Canal Co., 27 N. J. Law, 648. Without title to a ripa, it is entirely clear that the complainants are in no position to assert a right to any of the land in dispute lying beyond the high-water line. The law on this subject is so firmly settled as not to be open to debate in this court. All navigable waters within this state, together with the soil under them, belong, in actual proprietorship, to the state. A person acquiring title to land abutting on a navigable stream takes title only to the high-water line, and that line is limited by the outflow of the medium high tide between the spring and neap tides. All below that line belongs to the state, and the state may, at any time before it is reclaimed by the owner of the adjacent upland, grant it, for a public use, to whomsoever it sees fit. A grantee of lands abutting on a navigable stream acquires no peculiar rights, as incidents of his estate, in the land beyond the high-water line, lying in front of his land; but in virtue of a local custom long prevalent in this state, and now having the force of established law, the adjacency of his land to the stream invests him with a license to fill in and wharf out on the public domain to such an extent as does not interfere with the public rights of fishing and navigation; and this license, when executed, becomes irrevocable, and confers on the riparian owner a good and indefeasible title to the land thus reclaimed. Gough v. Bell, 22 N. J. Law, 441; Stevens v. Railroad Co., 34 N. J. Law, 532. No such license exists, however, in favor of any person except a riparian owner. It is a right growing out of the adjacency of his land to navigable water, and is incident to the ownership of land thus located, but can have no existence apart from the ownership of land abutting on a navigable stream.

The complainants show a perfect paper title to the lands in dispute. They claim under the proprietors of the Eastern division of New Jersey. Their title to the eastern part of the tract in question originated in a survey made to one of the proprietors in March, 1806, and to the western part under a survey made to another of the proprietors in August, 1833. The transmission of the title from these two proprietors to the complainants, through several intermediate conveyances, is fully established. The defendants do not deny that the complainants show a perfect paper title, but they say that all the lands covered by their title lay, at the time their title originated, below the high-water line of the Passaic, and therefore it was not possible for a title to be acquired to them, except by a grant from the state, and that, inasmuch as no such grant is shown, the complainants show no title; in other words, that their paper title is worthless. This statement of the defense is, in a material respect, much broader than that made by the defendants' answer. It is a fact about which there is no dispute—indeed, it is one of the few things about which no controversy was made during the hearing—that the defendants' canal along nearly the whole of the locus in quo was constructed in part on lands covered by the complainants' title. The defendants' answer does not claim that that part of the land covered by the complainants' title upon which the defendants constructed their canal lay below the high-water line of the Passaic; on the contrary, it distinctly admits that it lay above the high-water line. The answer speaks, on this point, as follows: That the canal was so located, along and opposite the piece of land in dispute, as that it skirted the high-water line of the Passaic in such manner that when it was constructed the base of the bank which supported the tow-path of the canal extended to the high-water mark of the river, along the whole length of the strip of land now in dispute in this cause. This averment, as I understand it, asserts, with the utmost perspicuity, that, on the completion of the canal, the base or foot of the tow-path was coincident with the high-water line, along the whole of the locus in quo. It follows necessarily that all of the land covered by the complainants' title, which the canal and tow-path occupied, lay above high-water line. Accepting the statement of the answer on this subject as an accurate description of the location of that part of the land covered by the complainants' title which the canal occupied, there can be no doubt that their title at one time embraced a sufficient ripa to confer upon the person who held it all of the privileges which inhere in the ownership of land abutting on a navigable stream. Under such a condition of facts, the important question which the court would be called upon to decide would be whether the defendants, by the acquisition of an easement for the purposes of their canal over the ripa covered by the complainants' title, that is, by simply taking possession of such ripa, and building their canal on it, and retaining possession of it for over 40 years,—for the defendants have shown no better or other title,—had so far succeeded to the privileges which the owner of the ripa might otherwise have exercised over the shore lying in front of his land as to put it in their power to prevent him from exercising them. I believe no court in this state has as yet decided that where the Morris Canal & Banking Company have, either by condemnation or by taking possession, acquired land abutting on tide-water, simply for a part of their right of way, and not as a terminus, that the right thus acquired gave them authority to exercise the privileges of a riparian owner. On the contrary, the truth is that serious doubts have always been expressed, whenever the question has received attention, whether, in view of the provisions of their charter, the defendants were competent to exercise the privileges of a riparian owner, even over the shore of land which they hold by grant from the owner of the fee. The utmost most extent to which the decisions on this question have as yet gone is this: that the canal company were competent to receive such privileges by grant from the owner of the fee, and thus cut him off from the right to exercise them; but it was doubtful whether they themselves could exercise them, or take them for any other purpose than to prevent their grantor from exercising them. This is the view expressed by the supreme court in State v. Brown, 27 N. J. Law, 13; and although the judgment pronounced in that case was subsequently reversed, Brown v. Canal Co., 27 N. J. Law, 648,) yet the judgment of the supreme court, as to the effect which should be given to a grant made by a riparian owner to the canal company, has since been twice approved by the court of errors and appeals. Improvement Co. v. Hoboken, 36 N. J. Law, 540; Fitzgerald v. Faunae, 46 N. J. Law, 536.

The difference in the legal effect, which must be attributed to the conveyance of an estate in fee, whether absolute or qualified, and the right which the defendants acquired by simply taking possession of land for a right of way or condemning it for a like purpose, is wide and vital. Under a conveyance, even if it be of only a qualified fee, the defendants have, while their estate continues, by the plain terms of their grant, an...