Quinlan v. Borough of Fair Haven

• Decision Date: 01 February 1926
• Docket Number: No. 9.,9.
• Citation: 131 A. 870
• Parties: QUINLAN v. BOROUGH OF FAIR HAVEN.
• Court: New Jersey Supreme Court

131 A. 870

QUINLAN

v. BOROUGH OF FAIR HAVEN.

No. 9.

Court of Errors and Appeals of New Jersey.

Feb. 1, 1926.

Appeal from Supreme Court.

Action by May L. Quinlan against the Borough of Fair Haven. Judgment for plaintiff, and defendant appeals. Affirmed.

On appeal from the Supreme Court, Monmouth county, in which Jess, circuit court judge, filed the following o

"This is an action of ejectment, tried by consent of counsel by the court without a jury. The plaintiff, May L. Quinlan, sues to recover possession of a tract of upland and an adjoining tract of land under water situate in the borough of Fair Haven in Monmouth county. The defendant pleads the general issue, thus admitting possession by it amounting to an ouster of the plaintiff. Jacobson v. Hayday, 83 N. J. Law, 537, 83 A. 902.

"I find the facts to be as follows:

"(1) By an act of the Legislature of New Jersey, approved February 5, 1866, the Fair Haven Dock Company was incorporated. The individuals who were by that act constituted a body corporate were Charles Doughty, Edward Bennett, Forman Smith, Benjamin B. Hance, Cornelius Hendrickson, Denise Hendrickson, Abraham Trafford, and George D. H. Gillespie. The act recited in its preamble that these men and their associates had 'heretofore erected a dock or wharf at the terminus of the public highway from Rumson, at Fair Haven, on the south side of the North Shrewsbury river, in the township of Shrewsbury, in the county of Monmouth, in this state, and said dock or wharf still remains in use.' The act authorizes the corporation 'to demand and receive of all persons who use said dock or wharf, and of all persons whose property shall be landed on said dock and be protected by said company, such sums of money from time to time as shall be a just and reasonable compensation for the use of said dock or wharf and storehouse that is or may be erected thereon, for the purpose of maintaining and making proper additions to said dock or wharf and storehouse.'

"(2) The dock or wharf referred to in the act of incorporation was built in the year 1859, and has since been maintained.

"(3) The dock was not at the time of the incorporation of the Fair Haven Dock Company and never since has been located, as described in the act, 'at the terminus of the public highway from Rumson.' This highway now is known as Pearl street, which runs to the Shrewsbury river. The dock is situated about 40 feet eastwardly from the easterly line of Pearl street. It is approached by a roadway which extends northwardly at an acute angle from Pearl street to the river. This road is about 30 feet wide and 40 feet long. It is the land included in this road, and the adjoining land under water over which the wharf or dock is built, that constitute the locus in quo.

"(4) The Fair Haven Dock Company, by deed dated September 28, 1914, and recorded in the office of the clerk of Monmouth county in Book 984 of Deeds, on pages 84, etc., conveyed to the Borough of Fair Haven the locus in quo, by a description by metes and bounds. This deed recites that: 'It is the intention of these presents to grant and convey unto the party of the second part all the estate, right, title, interest, property, possession, claim and demand of the party of the first part (and no more, anything herein to the contrary notwithstanding) in and to the premises above described, commonly known as the Fair Haven Dock Property.' The deed was executed by the president and secretary and by the managers and trustees of the corporation.

"(5) By deed dated December 30, 1920, and recorded in the Monmouth county clerk's office in Book 1135 of Deeds on pages 68, etc., Charles Rohe, as the sole surviving executor of William Sperb, conveyed to May L. Quinlan, the plaintiff, in fee a tract of land, which included the upland portion of the locus in quo. This deed recites that it covers the same land that was conveyed to William Sperb by John F. Hankins by deed dated May 3, 1894, and recorded in the Monmouth county clerk's office in Book 535 of Deeds on pages 262, etc.

"(6) By a riparian grant dated December 20, 1923, the state of New Jersey, by its board of commerce and navigation, conveyed to May L. Quinlan, the plaintiff, in fee, a tract of land under water, which includes that part of the locus in quo under water and over which extends the wharf formerly owned by the Fair Haven Dock...