Ocean City Ass'n v. Shriver

• Decision Date: 18 June 1900
• Citation: 64 N.J.L. 550,46 A. 690
• Parties: OCEAN CITY ASS'N v. SHRIVER.
• Court: New Jersey Supreme Court

46 A. 690

64 N.J.L. 550

OCEAN CITY ASS'N

v. SHRIVER.

Court of Errors and Appeals of New Jersey.

June 18, 1900.

Error to supreme court.

Action of ejectment by the Ocean City Association against William Shriver to recover possession of certain land. Judgment for defendant, and plaintiff brings error. Reversed.

D. J. Pancoast, for plaintiff in error. Albert A. Howell, Samuel W. Beldon, and Samuel H. Grey, for defendant in error.

DEPUE, C. J.This was an action of ejectment brought by the Ocean City Assoelation against William Shriver to recover possession of a lot of land in Ocean City lying between Ocean avenue and the Atlantic Ocean. The Ocean City Association is an incorporated land company. In 1880 it purchased a tract containing several thousand acres of wholly unimproved land, lying between Peck's beach, in the county of Cape May, and the Atlantic Ocean. On this tract a summer resort known as "Ocean City" has grown up. Shortly after the purchase the association had a map made from a survey made by one Lake. The map was lithographed, and a copy filed in the office of the clerk of Cape May county, and some lots were sold by the association by reference to it. In 1883 the association caused a more extensive map or plan to be made by Lake, which was lithographed, and a copy also filed in the clerk's office. By the map of 1880 it appeared that there was a considerable space of undivided land lying between that portion of the association's property and the Atlantic Ocean. On this map Ocean avenue was delineated practically parallel with, and some distance from, the ocean. Streets were delineated extending from Ocean avenue westerly, among which Sixth, Seventh, Eighth, and Ninth streets only are material to this case. On the map of 1880 Ocean avenue was delineated only as far as Eighth street. The premises which have given occasion to this litigation front on Ocean avenue, and lie between Eighth and Ninth streets. On the map of 1883 Ocean avenue is delineated as extending beyond Eighth street down to Fourteenth street, crossing Eighth, Ninth, and Tenth streets, and the other streets below. On that map is delineated a line of high water in 1882. That high-water line is located about 250 feet east of the easterly line of Ocean avenue, and between that line and Ocean avenue appears a space of unplotted land,—land which had not been laid out in lots for sale. This map was used as the sales map. By a deed bearing date October 29, 1884, the association conveyed lot No. 849 to one Henry B. Howell. This lot is on the westerly side of Ocean avenue, between Ninth and Tenth streets. It had, between it and the Atlantic Ocean, Ocean avenue, and also the strip of unimproved or unplotted land between that avenue and the ocean. The description of the premises conveyed to Howell is as follows: "All that certain lot or piece of ground situate, lying, and being in Ocean City, on Peck's beach, Upper Cape May township, Cape May county, state of New Jersey, and numbered 849 in section C on the plan of lots of the said Ocean City Association. Beginning on the northwesterly side of Ocean avenue, at the distance of one hundred and fifty feet southwesterly from the southwesterly line of Ninth street, containing in front or breadth on the said Ocean avenue fifty feet, and of that width extending northwesterly, between lines parallel with the said Ninth street, one hundred and thirty-five feet, to a fifteen feet wide street." It is manifest from this description that the sale to Howell was made by reference to the map of 1883. Howell, by deed dated April 21, 1895, conveyed this lot to Shriver, the defendant in this suit, by the same description; that is, of a lot on the northwesterly side of Ocean avenue. Both parties claim title by accretion. It will be assumed that the alluvial deposits that changed the line of high water were such as by the common law would extend the title of a riparian owner to the line of high water as it was at the commencement of this suit. The material proposition for consideration is which of these parties is by law entitled to the increment by alluvion. The call in the deed for Ocean avenue as a boundary carried the grantee's title to the middle line of the avenue. Salter v. Jonas, 39 N. J. Law, 469. The avenue, as delineated on the map, is a fixed monument in the description in the deed; and in that respect it differs from a boundary on the ocean, where, by force of the description itself, the title of the grantee will advance or recede as the line of high water changes from time to time, and he will hold by the same boundary, including the accumulated soil that has arisen from alluvial formations. Scratton v. Brown, 4 Barn. & C. 485; Rex v. Lord Yarborough, 3 Barn. & C. 91; s. c. in house of lords, sub nom. Gilford v. Lord Yarborough, 5 Bing. 163; Land Co. v. Lippincott, 45 N. J. Law, 405. There is evidence that, when the map of 1880 was made. Ocean avenue was actually laid out on the ground above high water; but on that map Ocean avenue did not extend below Eighth street. The testimony is conflicting with respect to the line of ordinary high tide in 1883-84, There is evidence that the ocean, after 1880, gradually worked inland, carrying away the avenue, or part of it, in front of lot No. 849, and that in 1895 the ordinary high water came up to this lot. In 1897 the ocean began to recede, and the map of the riparian commissioners indicates a high-water line in Ocean avenue. On the 3d of August, 1897, Shriver obtained a grant from the riparian commissioners covering in terms a strip of land 50 feet in width between the extended lines of the lateral boundaries of lot. No. 849 from the high-water line as indicated by the commissioners to the commissioners' exterior line, a distance of 985 feet. This suit was commenced in 1898. The controversy concerns the title to the strip of land within the description of the riparian grant, 50 feet wide, extending from the westerly side of Ocean avenue, easterly about 150 feet. I have above assumed the advance of high water to or upon the lot 849 at the times above mentioned, but there is little evidence with respect to the line of ordinary high tide before 1897. The distinction between the waters by the action of the sea overflowing lands, and the line of ordinary high tide, is of Importance in deciding the problem involved in this case.

Although the call in the deed from the association to Howell is for Ocean avenue as a fixed monument, I do not consider that fact decisive in this case. The doctrine of dereliction and accretion depends upon principles that are peculiar to that subject. The right to alluvion depends upon the fact of the contiguity of the estate to the water, and, to give a right to accession and accretion, there must be an estate to which the accession can attach. Saulet v. Shepherd, 4 Wall. 502, 18 L. Ed. 442. The doctrine whereby title is acquired by accretion is founded on the principle of compensation. The proprietor of lands having a boundary on the sea is obliged to accept the alteration of his boundary by the changes to which the shore is subject. He is subject to loss by the same means that may add to his territory, and, as he is without remedy for his loss, so he is entitled to the gain which may arise from alluvial formations. This rule is vindicated on the principle of natural justice that he who sustains the burden of losses imposed by the contiguity of waters ought to receive whatever benefits they may bring by accretion. Banks v. Ogden, 2 Wall. 57, 17 L. Ed. 818; 1 Am. & Eng. Enc. Law (2d Ed.) 476, note 1. Lands gained from the sea are per alluvionem (or land washed up by the sea) and per relictionem (derelict land or land left dry by the retirement of the sea). Hall, Rights of Crown, 108. The doctrine of accretion applies in both these instances; for, as was said by Lord Hale, "there is no alluvion without some kind of reliction, for the sea shuts out itself." Id. 115. There is another condition under which the doctrine of accretion is presented; that is, of ground once terra firma, but since flooded, which has been recovered. Mr. Callis puts this case: "The sea overflows a field where divers men's grounds lie, promiscuously, and there continueth so long that the same is accounted parcel of the sea; and then after many years the sea goes back and leaves the same, but the grounds are so defaced as the bounds thereof be clean extinct, and grown out of knowledge, it may be that the king shall have those grounds; yet in histories I find that Nilus every year so overflows the grounds adjoining that their bounds are defaced thereby, yet they are able to set them out by the art of geometry." Callis, p. 51. To which Mr. Hall says: "At this day it may be concluded that the former ownership may be identified by mensuration, so that if the sea suddenly swallow up ten acres, and after several years leave twenty acres dry, the ten acres may be reclaimed by admeasurement; but then the locality must be proved." Hall, Rights of Crown, 130. The common law is stated in Hale's De Jura Maris in these words: "If a subject hath land adjoining the sea, and the violence of the sea swallow it up, but so that yet there be reasonable marks to continue the notice of it, or, though the marks be defaced, yet if, by situation and extent of quantity, and bounding upon the firm land, the same can be known, though the sea leave this land again, or it be by art or industry regained, the subject doth not lose his propriety. * * * But suppose the inundation of the sea deface the marks and boundaries, yet, if the certain extent or contents from the land not overflown can be evidenced, though the bounds be defaced, yet it shall be returned to the owner, according to those quantities and extents that it formerly had. Only, if any man be at the charge of inning of it, it seems, by a decree of Sewers, he may hold it till he be reimbursed his charges, as was done in the Case...