River Development Corp. v. Liberty Corp., C--534

• Decision Date: 17 May 1957
• Docket Number: No. C--534,C--534
• Citation: 45 N.J.Super. 445,133 A.2d 373
• Parties: RIVER DEVELOPMENT CORP., a corporation of the State of New Jersey, Plaintiff, v. The LIBERTY CORPORATION, a corporation of the State of Pennsylvania, Defendant.
• Court: New Jersey Superior Court

Page 445

45 N.J.Super. 445

133 A.2d 373

RIVER DEVELOPMENT CORP., a corporation of the State of New

Jersey, Plaintiff, v. The LIBERTY CORPORATION, a corporation of the State of

Pennsylvania, Defendant.

No. C--534.

Superior Court of New Jersey

Chancery Division.

May 17, 1957.

Louis B. LeDuc and Stephen M. Gretzkowski, Jr., Camden, for plaintiff.

DuBois & DuBois, Camden (Josiah E. DuBois, Jr., Camden, appearing), for defendant.

Grover C. Richman, Jr., Atty. Gen. (Sidney Kaplan, Deputy Atty. Gen. appearing), amicus curiae.

HANEMAN, J.S.C.

Plaintiff seeks to enjoin the defendant from conducting certain dredging operations in the tidal waters of the Delaware River known as Fishers Cove in Pennsauken Township, Camden County, New Jersey, and incidental thereto seeks a declaration of its rights in and to such subaqueous tidal lands.

In 1830 the Camden and Amboy Rail Road and Transportation Company was organized by special act of the Legislature for the purpose of building a railroad between Camden and South Amboy. L.1830, p. 83. Its charter provided, inter alia, as follows:

'Sec. 11. * * * authorized and invested with all of the rights and powers necessary to survey, lay out, and construct a rail road or roads, with all necessary appendages, * * * Provided, that the said road or its branches, shall not exceed one hundred feet in width on the surface of the road * * *.'

No specific authority or license to fill in, reclaim or improve lands under water was included in the charter.

By deed dated November 22, 1831, William Folwell conveyed lands to the Camden and Amboy Rail Road and Transportation Company, as follows 'do grant, bargain, sell, convey and confirm to the party of the second part and their successors so much of the lands of the said party of the first part situate in the Township of Waterford in the County of Gloucester in the State of New Jersey, over which the line of the said Rail Road is now laid out and located as may be necessary for the use and construction of the said Road, the line of the said Road, when completed not to exceed fifty feet in width * * * to the said Folwells other land purchased by him of the said Joseph Gardiner, and the said line not to exceed one hundred feet in width through and across the other farms of the said party of the first part, lying on the River Delaware when completed as aforesaid, Together with all and singular the ways water rights liberties privileges and appurtenances thereto.'

The Habendum clause reads as follows: 'peaceably and quietly, to enter upon, hold, occupy, possess and enjoy the said line of land and premises herein before conveyed or intended so to be, for the construction and use, of the said road according to the provisions and conditions mentioned and contained in the act incorporating the said company.'

The foregoing lands are now in Pennsauken Township. Whether the description included the high water mark is disputed.

Between that year and 1833 Lt. William Cook, of the United States Artillery, a surveyor and engineer, completed a survey showing the railroad's proposed right of way which, in part, was to traverse lands of William Folwell in the Township of Waterford, Gloucester County.

Prior to 1868 the Camden and Amboy Rail Road and Transportation Company, the Delaware and Raritan Canal Company and the New Jersey Railroad and Transportation Company entered into an informal consolidation. The result of this union became familiarly known as 'The United Companies.' In 1872 these three corporations were formally consolidated by act of the Legislature under the name 'The United New Jersey Railroad and Canal Company.' L.1872, c. 223, p. 567 and p. 1402.

In 1869 the Legislature enacted chapter 386 (L.1869, c. 386, p. 1026), hereafter referred to as the United Companies Act, under which plaintiff claims. That enactment reads as follows:

'An Act to enable the United Companies to improve lands under water at Kill Von Kull and other places.

'Whereas, the United Delaware and Raritan Canal Company, the Camden and Amboy Railroad and Transportation Company, and the New Jersey Railroad and Transportation Company, have recently secured to this state the payment of five hundred thousand dollars for the grant of lands under water, in front of lands owned by them, and are desirous of having the right and privilege of erecting and making wharves, piers and other improvements in front of other lands now owned by or in trust for them, so that they may safely make such improvements as they may find necessary to facilitate their business; therefore,

'1. Be It Enacted by the Senate and General Assembly of the State of New Jersey, That the said United Companies shall be and they are hereby authorized to reclaim and erect wharves and other improvements in front of any lands now owned by or in trust for them, or either of them, or by any company in which they now hold the controlling interest, adjoining Kill Von Kull or any other tide waters of this state; and when so reclaimed and improved to have, hold, possess and enjoy the same as owners thereof; provided, that such improvements shall be subject to the regulations (where applicable) as to the line of solid filling and as to pier lines heretofore recommended in the report of the commissioners made and filed under the act entitled 'An act to ascertain the rights of the state and of the riparian owners in the lands lying under the waters of the bay of New York and elsewhere in this state,' approved April eleventh, eighteen hundred and sixty-four, but neither said improvements nor those which may be made by said companies in Harsimus Cove shall be subject to any other restrictions than those contained in said report; and provided further, that the said United Companies shall, on or before the first day of July next, pay to the treasurer of this state the further sum of twenty thousand dollars in full satisfaction for the right and privilege hereby granted; and provided further, that the said United Companies shall on or before the said first of July, file in the office of the secretary of state a map and description of the lands under water in front of the upland referred to in this section.

'2. And be it enacted, That this act shall take effect immediately. Approved March 31, 1869.'

The $20,000 was thereafter paid to the State of New Jersey.

A quadrant of the map and description of the lands here involved, as filed with the Secretary of State, is as follows:

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

On June 30, 1871, prior to the formal consolidation of the 'United Companies,' the Camden and Amboy Rail Road and Transportation Company leased its entire property to the Pennsylvania Railroad Company for a term of 999 years.

On August 12, 1955 the United New Jersey Railroad and Canal Company sold and conveyed to plaintiff all of its estate, right, title and interest in and to subaqueous lands in front of the lands allegedly conveyed by Folwell, to a width of 1,000 feet, extending from the high water line of the Delaware River to the U.S. Bulkhead and Pierhead line of the Delaware River as established in 1940. Attached to this conveyance is a quitclaim by the Pennsylvania Railroad Company. The recited consideration is $1,000.

Neither the plaintiff nor any of its predecessors in title had reclaimed or erected wharves or other improvements upon the lands conveyed to plaintiff on August 12, 1955, as aforesaid.

The defendant is conducting dredging operations, under a license from the State of New Jersey, within the lines of the lands conveyed to plaintiff by the United New Jersey Railroad and Canal Company on August 12, 1955.

Because of the indirect effect which a determination of this cause may have upon other subaqueous lands, the court requested the intervention of the Attorney-General of the State of New Jersey as Amicus curiae.

Plaintiff contends that the Folwell deed ran to the high water line of the Delaware River and that the Camden and Amboy Rail Road and Transportation Company acquired title in fee to the subaqueous lands riverward from said high water line by virtue of the United Companies Act, and that it has succeeded to the title of the Camden and Amboy Rail Road and Transportation Company by virtue of said Mesne conveyances or, in the alternative, it has acquired, in the same manner, some other interest in said lands, which interest is not capable of definite classification but is similar to an irrevocable license or an option.

Inter alia, defendant denies that the Folwell deed ran to the high water line and contends that the United Companies Act conveyed nothing more than a revocable license which has heretofore been revoked by the State of New Jersey.

In view of the conclusions hereafter stated, it will be necessary to treat only with the subject of the nature of the interest in lands under water granted by the United Companies Act, presuming, for the purpose of these conclusions only, that the Folwell deed did run to the high water line.

If a statute alters or amends previous law, it is important, in discovering the intent of the Legislature, to ascertain the old law, the mischief at which it was aimed, and the proposed remedy. Blackman v. Iles, 4 N.J. 82, 71 A.2d 633 (1950).

A brief chronological historical resume of the development of the law concerning subaqueous lands in this State, as far as they concern, are pertinent to, or relate to the lands here involved, is necessary to the ascertainment and determination of plaintiff's interest in these subaqueous lands.

Tide-flowed lands below the high water line were, in colonial days, deemed vested in the Crown. Upon the separation of this State from the mother country the title thereto was deemed vested in the State. Bailey v. Driscoll, 19 N.J. 363, 117 A.2d 265 (1955); Schultz v. Wilson, 44 N.J.Super. 591, 131 A.2d 415 (App.Div.1957); American Dock & Improvement Co. v. Trustees for Support of Public Schools, ...