Normanoch Ass'n v. Baldasanno

• Decision Date: 06 May 1963
• Docket Number: No. A--117,A--117
• Citation: 190 A.2d 852,40 N.J. 113
• Parties: NORMANOCH ASSOCIATION, INC., a corporation, Plaintiff-Appellant, v. Paul BALDASANNO, Defendant-Respondent.
• Court: New Jersey Supreme Court

Page 113

40 N.J. 113

190 A.2d 852

NORMANOCH ASSOCIATION, INC., a corporation, Plaintiff-Appellant, v. Paul BALDASANNO, Defendant-Respondent.

No. A--117.

Supreme Court of New Jersey.

Argued May 7 and 8, 1962.

Decided May 6, 1963.

Frank G. Schlosser, Newton, for plaintiff-appellant.

Martin J. Loftus, Newark, for defendant-resppondent.

The opinion of the court was delivered by

HANEMAN, J.

This is an appeal by Normanoch Association, Inc. (Normanoch), from a judgment of the Superior Court, Chancery Division, which dismissed its complaint demanding injunctive relief and damages against Paul Baldasanno (Baldasanno) for alleged trespass upon certain lands underlying Culvers Lake in Sussex County, and which adjudged Baldasanno the owner of said lands. Decision in this matter was held in abeyance, awaiting the argument of a related case. See Normanoch Association v. Deiser, 40 N.J. 100, 190 A.2d 845 (1963).

Normanoch is a corporation organized in 1929 by owners of lands in the vicinity of Culvers Lake for the purpose of acquiring title to the lake bed. Baldasanno is an owner of a lakeside lot, who claims title in the lake bed to the extent of 200 feet in front of said lot. It is this 200-foot segment of the lake which is here involved.

Normanoch, asserting title to the entire lake bed, brought suit seeking to enjoin Baldasanno from making use of the waters in front of his property for boating, fishing, swimming, maintaining a dock and boathouse, and piping water. It also demanded damages for Baldasanno's alleged past acts of trespass.

Baldasanno filed an answer denying Normanoch's title. Although other defenses were raised in the answer, the pretrial order limited the issues to (1) whether Normanoch had title to the land involved, (2) whether Baldasanno had trespassed thereon, and (3) whether Normanoch was entitled to an injunction and damages.

After plenary trial, the Chancery Division concluded that Normanoch did not have title to the bed of the lake to the shoreline but, on the contrary, that title to the underwater lands extending 200 feet into the lake adjacent to the high land of the Baldasanno lot was vested in him. Subsequent to the rendering of this opinion, Baldasanno was permitted to file a counterclaim asserting his ownership in said lands and demanding an adjudication to that effect on the basis of the proof already presented.

Final judgment was then entered dismissing Normanoch's complaint and adjudging that Baldasanno had title to the aforementioned portion of the lake bed. From this judgment Normanoch appealed to the Appellate Division. Before argument there, this court certified the appeal on application. R.R. 1:10--1(a).

Normanoch bottoms its claim to title (1) upon estoppel arising from a judgment entered in prior litigation (Baker v. Normanoch Ass'n, Inc., 25 N.J. 407, 136 A.2d 645 (1957)) and (2) as ultimate successor in title to the original grantee in a deed dated September 1, 1882 from the Board of Proprietors of the Eastern Division of New Jersey (Proprietors) to Nathaniel Niles encompassing in its terms the waters of Culvers Lake.

Baldasanno (1) denies that the court in Baker v. Normanoch Ass'n, Inc., supra, adjudged title to the disputed lands to be in Normanoch, and (2) asserts that title to those underwater lands is vested in him as the ultimate successor in title to a portion of an original grant from the Proprietors to John Rutherfurd surveyed July 31, 1828 and recorded in the office of the Proprietors on May 23, 1834.

We shall first consider Normanoch's contention that Baldasanno is estopped from contesting its title by virtue of the judgment in Baker, supra.

In that case a number of owners of property surrounding Culvers Lake sought a judgment declaratory of their rights to use Culvers Lake for recreational purposes. The plaintiffs were divided in the pretrial order into four classes. Baldasanno was included within the class which claimed title to a part of the lake bed. As to that class the late Justice Burling said, 25 N.J. at p. 419, 136 A.2d at p. 652:

'For the purposes of the present controversy we need go no farther than to hold that where, as here, one party is the undisputed owner of the substantial portion of the bed he may exclude therefrom owners of minimal portions of the bed. These plaintiffs are restricted to the use of such portions of the waters of the lake, the bed of which they may own.'

The final judgment entered pursuant to the mandate of this court in modification of the original judgment recited:

'(1) That defendant Normanoch Association, Inc. owns and holds title to the major portion of the bed and waters of Culver Lake, and that ownership of the vast portion of the present boundaries of the lake is in said defendant; * * *.

(2) That no determination is being made as to the precise boundaries between the lands owned by defendant Normanoch Association, Inc. and those owned by those plaintiffs claiming title by deed to portions of the bed of the lake; * * *.'

The express terms of the opinion and the final judgment in Baker, supra, militate against Normanoch's contention. The question of title here involved was not determined in that suit and Baldasanno is, therefore, not estopped from contesting Normanoch's purported title.

We come, therefore, to the primary, remaining issue, whether the Rutherfurd grant or the Niles deed encompassed the lands in question.

Basically, the solution of this problem depends upon the location of the perimeter of the lake as it existed either at the time of the survey made for Rutherfurd on July 31, 1828 or at the recordation thereof on May 23, 1834, as Niles could have obtained title in 1882 to but so much of any lands which might now be submerged as were excepted from the Rutherfurd grant. Since the ultimate decision depends upon these two chains of title the sequence of grants and conveyances will be outlined. Each will be separately listed, Baldasanno's claim first because therein lies the nub of the question.

Prefatory to an analysis of the respective chains of title, however, some brief history of the Proprietors and their methods of conveying title, a detailed recital of which is contained in Proprietors of Eastern Division of New Jersey v. Force's Executors, 72 N.J.Eq. 56, 68 A. 914 (Ch.1896), is in order. The Proprietors, in 1682, became successors to the lands once held by Sir George Carteret and were thereby vested with title to lands in that portion of the colony known as Eastern New Jersey. In some instances the Proprietors sold lands to the public and conveyed title by deed. The more common method of land disposition was by the issuance to its members of special warrants or rights of locations by way of dividends. These instruments came to be known as 'warrants' or 'rights' and entitled the holder to have set off to him a certain number of acres in severalty whereever he chose to locate them, if the warrants were unrestricted, or in a special locality if they were restricted. When issued, the warrants were credited to the proprietor in a book of the Proprietors designated a 'warrant book.'

The mode of locating land under a warrant of location was as follows: The owner of the warrant having chosen his land applied to the Surveyor General of the Proprietors to survey it for him. As it was impracticable for the Surveyor General to make all such surveys the practice had been from early times for that officer to appoint Deputy Surveyors in the various parts of the domain and for the holder of the warrant to employ one of these Deputy Surveyors to survey the land. The Deputy then certified that he had surveyed the land at the request of the warrant-holder, gave its metes and bounds description and contents together with a map and computation of contents annexed, and sent the certificate of survey to the Surveyor General. This certificate came to be called simply a 'survey.' The Surveyor General, having examined the documents and verified the accuracy of the survey and computations, made a certificate--called a 'return'--of the land so surveyed to the holder of the warrant and transmitted it to the register of the Proprietors who charged the number of acres contained in it against the account of the holder of the warrant on the warrant-books of the Proprietors. The Proprietors in council assembled, then approved and recorded the certificate.

As to the vesting of title by these warrants, Chief Justice Kirkpatrick said, in Arnold v. Mundy, 6 N.J.L. 1, at pp. 67--68 (Sup.Ct.1821):

'The proprietors of East Jersey are tenants in common of the soil; their mode of severing this common estate is by issuing warrants, from time to time, to the several proprietors, according to their respective rights, authorizing them to survey and appropriate in severalty, the quantities therein contained. Such warrant does not convey a title to the proprietor, he had that before; it only authorizes him to sever so much from the common stock, and when so severed, by the proper officer, it operates as a release to him for so much. This is the case when the proprietor locates for himself. When he sells his warrant to another, that other becomes a tenant in common with all the proprietors Pro tanto, and, in the same manner, he proceeds to convert his common, into a several, right. Regularly there is a deed of conveyance upon the transfer of this warrant for so much of the common property and that deed of conveyance, and the survey upon the warrant, is the title of the transferee. It is true, that the survey must be inspected and approved by the board of proprietors, and must be carefully entered and kept in the secretary's office, or in the office of the surveyor-general of the division, but this is for the sake of security, order, and regularity only, and is, by no means, the passing of the title. It proves that the title has already passed, but it is not the means of passing it. It may be likened to the acknowledgment of a...