River Development Corp. v. Liberty Corp.

• Decision Date: 16 July 1958
• Docket Number: No. A--696,A--696
• Citation: 144 A.2d 180,51 N.J.Super. 447
• Parties: RIVER DEVELOPMENT CORP., a corporation of the State of New Jersey, Plaintiff- Appellant, v. The LIBERTY CORPORATION, a corporation of the State of Pennsylvania, Defendant-Respondent, and Grover C. Richman, Attorney General of the State of New Jersey, amicus curiae. . Appellate Division
• Court: New Jersey Superior Court — Appellate Division

Page 447

51 N.J.Super. 447

144 A.2d 180

RIVER DEVELOPMENT CORP., a corporation of the State of New Jersey, Plaintiff- Appellant, v. The LIBERTY CORPORATION, a corporation of the State of Pennsylvania, Defendant-Respondent and Grover C. Richman, Attorney General of the State of New Jersey, amicus curiae.

No. A--696.

Superior Court of New Jersey Appellate Division.

Argued Jan. 13, 1958.

Supplemental Briefs Filed March 7, 1958.

Decided July 16, 1958.

Louis B. LeDuc, Camden, for appellant.

Josiah E. DuBois, Jr., Camden, for respondent (DuBois & DuBois, Camden, attorneys).

David D. Furman, Deputy Atty. Gen., for the State amicus curiae (Grover C. Richman, Jr., Atty. Gen., attorney; Sidney Kaplan, Deputy Atty. Gen., on the brief).

Edward J. O'Mara, Jersey City, for Pennsylvania R. Co., amicus curiae.

Before Judges GOLDMANN, FREUND and CONFORD.

The opinion of the court was delivered by

GOLDMANN, S.J.A.D.

This action was brought to determine the rights of the respective parties to land under the tidal waters of the Delaware River known as Fisher Cove, in Pennsauken Township, Camden County, New Jersey, and to quiet title to that land. Additionally, plaintiff sought an injunction against defendant's dredging operations in the cove.

Plaintiff claims by reason of an act of 1869 (c. 386) which authorized the Camden and Amboy Railroad and Transportation Company and two other utilities to reclaim and improve lands under tidewater fronting on uplands owned by them and to take title to the lands so reclaimed and improved. Among the properties allegedly benefited by this act was a 1,000-foot strip of upland along Fisher Cove in the Delaware River north of Camden. In August 1955 this right of reclamation, still unexercised, was conveyed by the railroad company (then consolidated with the two other utilities under the name of The United New Jersey Railroad and Canal Company) to plaintiff River Development Corporation, which had been organized for the purpose of converting submerged lands into industrial sites. In the fall of 1956, and before plaintiff had embarked upon any improvement in Fisher Cove, defendant Liberty Corporation sent its dredging equipment into the cove and proceeded to remove underwater sand and gravel. Plaintiff then instituted this action and obtained a temporary restraining order. The parties entered into a stipulation that defendant would not dredge in the underwater area claimed by plaintiff until the Chancery Division had determined that the dredging did not interfere with any right, title or interest of plaintiff.

The Attorney General appeared as Amicus curiae at the request and for the assistance of the court in its consideration of the riparian law of the State and the legislative grant in L.1869, c. 386. He introduced no evidence but in his brief claimed that the 1869 act gave only a license to reclaim the submerged lands, revocable at any time by the State, and that such revocation was effected by L.1894, c. 71.

As against plaintiff's demand for judgment adjudicating its rights in Fisher Cove, for a permanent injunction restraining defendant Liberty Corporation from its dredging operations, and an accounting for profits and damages for the sand and gravel already dredged, defendant claimed that (1) the Camden and Amboy Railroad and Transportation Company acquired no rights in the submerged lands in question because it failed to comply with the conditions attached to the statutory grant of 1869 in that it was not the riparian owner of Fisher Cove at the time of the grant, and the map and description filed by it with the Secretary of State did not meet the requirements of the statute, the one-dimensional map not being a map in the statutory sense, and the call to 'deep water' in the description being too indefinite for location; (2) if the right to reclaim vested in the railroad, it was thereafter revoked or terminated; (3) the right had been abandoned; (4) the railroad's deed to plaintiff was invalid because the right to reclaim depended upon continued riparian ownership and could not be transferred in gross and, further, the deed was void because not legally approved by the Board of Public Utility Commissioners; (5) in any event, plaintiff's right to reclaim did not extend outstream more than 1,700 to 1,800 feet from the high water line of 1869; and (6) if plaintiff acquired any right to reclaim, it was a non-exclusive right until exercised and did not preclude defendant's dredging prior to plaintiff's reclamation.

I.

The Camden and Amboy Railroad Transportation Company was incorporated by special act of the Legislature in 1830 for the purpose of building a railroad between Camden and South Amboy (L.1830, p. 83). Section 11 of its charter authorized the company to survey, lay out and construct such railroad, with all necessary appendages, provided that the road or its branches should not exceed 100 feet in width. The initial survey was made by Lt. William Cook of the U.S. Artillery whose field notebooks are in evidence, the first two covering the survey between Camden and South Amboy completed in December 1830, and the third covering the relocation survey completed in April 1833.

Title to the portion of the railroad abutting Fisher Cove was obtained by deed from William Folwell and wife to the company under date of November 22, 1831. The description in this deed locates the land conveyed as '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 said Rail Road is now laid out and located as may be necessary for the use and construction of the said Road * * *.' The deed continues:

'* * * the line of said Road when completed not to exceed fifty feet in width through and across the farm of the said party of the first part situate near Coopers Creek (now in Camden, New Jersey) and running from William Coopers line, to the line of Joseph Gardiner and Joseph W. Cooper, and from thence to include a road of twenty five links 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 * * *.'

These lands are situate in what is now Pennsauken Township, Camden County. Plaintiff's claim of right in Fisher Cove as an upland owner springs from this deed. It contends that the line of the right-of-way granted by Folwell bordered the Delaware River for the entire 1,000-foot length in question. Defendant disputes that the description in the Folwell deed included the high water mark. Much of the testimony and many of the exhibits were addressed to this phase of the case.

Not long after its organization, the Camden and Amboy entered into an informal consolidation or 'active union' with its potential competitor, the Delaware and Raritan Canal Company, incorporated the same day. They agreed they would jointly complete and operate their respective projects. Burgess and Kennedy, Centennial History of the Pennsylvania Railroad Company, 1846--1946, pages 245, 251 (1949). Later another competitor, the New Jersey Railroad and Transportation Company, was absorbed into the union, the three companies sharing their issued stock and having a common board of directors. Ibid., pages 262, 263. This group became known as The United New Jersey Railroad and Canal Company (familiarly 'The United Companies') and was so recognized in a number of our statutes. One of the more important of such laws is chapter 248 of the Laws of 1868 granting 'the right and title of the state to the land lying between high water mark on the west, the deep water of the Hudson on the east, the center of south Second Street on the north and the center of south Seventh Street on the south in Jersey City,' except for the so-called Budd grant, to The United Companies, their successors and assigns, to hold in the corporate name of New Jersey Railroad and Transportation Company. This is known as the Harsimus Cove grant. Authority was given the grantee to fill up and improve the property with wharves, storehouses, depots, shops, etc., and to extend bulkheads, solid filling and piers to the exterior lines adopted for those purposes by the commissioners appointed under L.1864, c. 391, or to such other exterior lines as might thereafter be established by or under the authority of the Legislature. The United Companies were to pay the State Treasurer such sum as might be fixed by the Attorney General and three commissioners. They eventually fixed the purchase price of Harsimus Cove at $500,000, and their report was accepted by The United Companies.

The following year the Legislature enacted L.1869, c. 386, hereinafter referred to as The United Companies Act, under which plaintiff claims. We reproduce it in full:

'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,

'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...