Nixon v. Walter

• Citation: 41 N.J.E. 103,3 A. 385
• Parties: NIXON v. WALTER and others.
• Decision Date: 07 April 1886
• Court: New Jersey Court of Chancery

3 A. 385

41 N.J.E. 103

NIXON

v. WALTER and others.

Court of Chancery of NEW JERSEY.

April 7, 1886.

Bill to quiet title. On final hearing on pleadings and proofs.

S. H. Grey, for complainant.

D. J. Pancoast, for answering defendants.

RUNYON, Ch. This suit is brought under the act "to compel the determination of claims to real estate in certain cases, and to quiet the title to the same." Revision, 1189. The bill alleges that the complainant, ever since the conveyance of the property in question to him, has been in peaceable possession thereof, claiming to own and owning the same in fee-simple. One of the defendants has answered. She denies that the complainant is, or ever has been, in possession of the property under or by virtue of his conveyance, or in any other way or manner; and she alleges that she, and those under whom she claims title, have had possession for over 20 years, and have been accustomed to use the property for the only purpose for which it has been or is valuable, viz., digging and removing sand for moulding and other purposes. There is no proof in the cause that the complainant is, or ever has been, in possession of the property. In order to maintain a suit under the statute, it is necessary that the complainant be in peaceable possession of the land under a claim of ownership. The statute was passed for the relief of a class of persons who, up to that time, had been without remedy; those who, being in peaceable possession of land of which they believed themselves to be the owners, were vexed and injured by claims of title to or interest in or incumbrance upon it by others, or by denials of or imputations upon their title, and there was no suit pending to enforce or test the validity of such claim, or to silence such denial, or clear up such doubts. Such persons had no means of removing the cloud except under peculiar circumstances, and could not bring their title to a test. The complainant, by the allegations of his bill, has brought himself within the provisions of the statute; but the jurisdictional averment of possession was liable to be controverted, and it was controverted, and issue joined upon it. It was thereupon incumbent upon him to establish its truth. Not only has he not done so, but he has made no attempt what ever in that direction. His suit, therefore, cannot be maintained under the statute.

But it can be supported as a suit quia timet, irrespective of the statute. The complainant claims to be the owner of land bounded by the line of high water in Delaware bay and Maurice River cove. He states that the defendants claim to be the lawful owners of part thereof, viz., a strip six rods wide, the whole length thereof bounded on high-water mark. He insists that they have no title whatever to that strip, but that the strip which was conveyed by the deeds under which they claim title, and which was between his land and high-water mark, as it stood when the title to the strip as a separate tract originated, has been submerged by the encroachment of the waters of the bay, which have covered it entirely. A court of equity will set aside a deed as a cloud upon title where it is invalid, and extrinsic evidence is necessary to show its invalidity; especially if such evidence be oral testimony. Here are deeds which, upon their face, convey title to part of the complainant's land, while if the complainant is right they in fact convey, and were intended to convey, other and different land, which from natural causes has disappeared temporarily, if not permanently; and it is necessary to produce extrinsic evidence, by the testimony of witnesses testifying as to their personal knowledge of the locality, derived from long observation, to show the fact,—to show where the line of high water is at this time, and that it has shifted inland more than six rods since the making of the original conveyances for the strip as a separate tract under which the answering defendant claims title. It is true that if the answering defendant is in possession the complainant might bring an action of ejectment to try the title, and so bring her claim to a legal test. The evidence on the subject of the possession is that the answering defendant, or those under whom she claims, have from time to time dug and removed sand for sale from the land in question, (which is a mere uninclosed and unoccupied sand bank,) and have paid taxes for the property, and that she, and others claiming with her under the same claim of title, brought suit against some other person or persons for trespass on the property, and recovered in the action. The removal of sand was, if the complainant was the owner of the property, a trespass merely, and the payment of tax, either irrespective of or in connection with such removal, is not evidence of possession. Other persons who made no claim of title also have taken the sand from time to time without leave or license. The witness who testifies that the answering defendant, and those who claimed with her under the same claim of title, took sand, says that a good many persons trespassed upon the property and took the sand without leave. But, in my view of the case, the complainant's right to maintain this suit does not depend upon the decision of the question whether he could maintain an action at law to test the defendant's claim. He does not admit, but denies, that the defendants have ever had possession. If the land is his, and they have an apparent but unreal title to it, he is entitled to relief in this court. Under such circumstances, the relief which is appropriate is such as this court can best give. What is required to relieve the complainant is a decree that the answering defendant has no title, under her deeds, to the land described in his deeds,—to declare and establish the rights of the parties with reference to the present situation.

There can be no doubt, and, indeed, the fact is not denied, that the six-rod strip which was the subject of the conveyances under which the answering defendant claims, has been, since the time when some of those conveyances were made, covered by the waters of the bay by the encroachment thereof. The answering defendant claims that notwithstanding that fact she has title to a six-rod strip answering the description, taking the present high-water line as the boundary on the bay. That claim cannot be supported. The deeds under which she claims convey a strip of land by explicit boundaries, one of which was the high-water line. By the term "beach" in the expression "back of the beach" was meant high-water line. Trustees of East Hampton v. Kirk, 68 N. Y. 459. Had there been accretions to the strip by imperceptible degrees, the owners of the property would have been entitled to them. On the other hand, if, by encroachment of the waters of the bay, it has been and is submerged and lost, the loss fell, not on the adjoining owner, but on those who owned the land submerged. It was held in Scratton v. Brown, 4 Barn. & C. 485, that the grantee of the shore of navigable waters does not take a fixed freehold, but one that shifts as the shore recedes or advances; but there the grant was of the shore,—the land between high and low water marks, a shifting thing,—not, as here, of a strip bounded by the shore. In Cook v. McClure, 58 N. Y. 437, where a boundary line was "along the high-water mark" of a pond, it was held that the line thus given was a fixed and permanent one,—the line of high water at the date of the deed,—and did not follow the changes of the high-water mark of the pond. In this case the six-rod strip was, when it was first conveyed, a definite parcel of land. It has been covered by the waters of the bay, so that that which was the high-water or beach line when the original conveyance for the strip as a separate tract under which the answering defendant derives her title was given, is now at least six rods below the present high-water or beach line. Such being the fact, she has no title under her deed to any part of the land covered by the complainant's deeds.

The following is the history and derivation of the titles: April 13, 1735, Samuel Cotton located a tract of marsh, by virtue of a deed of right. The tract was said to contain about 3,200 acres, and the strip was included in it. In 1764 the sheriff of Cumberland, under execution, sold and conveyed the tract to Robert Towers and John Towers....