River Development Corp. v. Liberty Corp.

• Decision Date: 02 March 1959
• Docket Number: No. A--73,A--73
• Citation: 29 N.J. 239,148 A.2d 721
• Parties: RIVER DEVELOPMENT CORP., a corporation of the State of New Jersey, Plaintiff-Appellant, v. LIBERTY CORPORATION, a corporation of the State of Pennsylvania, Defendant-Respondent. David D. Furman, Attorney General of the State of New Jersey, Amicus Curiae, Edward J. O'Mara, Amicus Curiae, Counsel for Pennsylvania R.R. Company.
• Court: New Jersey Supreme Court

Page 239

29 N.J. 239

148 A.2d 721

RIVER DEVELOPMENT CORP., a corporation of the State of New Jersey, Plaintiff-Appellant, v. LIBERTY CORPORATION, a corporation of the State of Pennsylvania, Defendant-Respondent David D. Furman, Attorney General of the State of New Jersey, Amicus Curiae Edward J. O'Mara, Amicus Curiae, Counsel for Pennsylvania R.R. Company.

No. A--73.

Supreme Court of New Jersey.

Argued Feb. 2, 1959.

Decided March 2, 1959.

Louis B. LeDuc, Camden, for plaintiff-appellant.

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

David D. Furman, Atty. Gen., amicus curiae, pro se (Sidney Kaplan, Deputy Atty. Gen., Morton I. Greenberg, Legal Asst., Trenton, on the brief).

PER CURIAM.

Subject to the qualifying comments to be set forth, the judgment is affirmed for the reasons expressed in the comprehensive opinion of the Appellate Division, 51 N.J.Super. 447, 144 A.2d 180 (1958).

Under part VIII of the opinion it was declared that plaintiff's statutory authorization or license to reclaim the subaqueous land in question had been lost by abandonment. Ordinarily, a conclusion that a license in land has terminated in that fashion must be reached with great caution. Since abandonment bespeaks a voluntary relinquishment and involves the element of intention, mere non-user, though a factor to be considered, is not of itself adequate to sustain such a finding. Raritan Water Power Co. v. Veghte, 21 N.J.Eq. 463 (E. & A.1869). But when it is accompanied by a course of conduct or circumstances inconsistent with an intention to exercise a particular incorporeal license, relinquishment thereof may be adjudged. 1 C.J.S. Abandonment §§ 3, 4. In the present case, non-user appears to have been the major factor leading the Appellate Division to its determination of abandonment. And undoubtedly the accompanying circumstances, evaluated in the light of the reason for the grant by the Legislature, i.e., the desire on the part of the original licensees to erect wharves and piers and to make such other improvements 'as they may find necessary to facilitate their business,' point in the direction of abandonment.

In our judgment, however, the end result reached may be based more appropriately on a somewhat different principle. It offends reason and doctrine to insist that the license to reclaim conferred a vested right in perpetuity in the underwater lands. Such a right must be considered as surviving only for a reasonable time. By implication of law the assumption must be indulged that the parties intended the receiver of the license to reclaim and thereby to acquire actual ownership of the fee within a period of time which would be reasonable under the facts and circumstances surrounding and characterizing the transaction. The situation may be likened to the grant of an option to purchase land. If its duration is not stipulated, the law assumes that the parties intended the exercise to take place within a reasonable time. If it does...