State v. Phillips

• Decision Date: 01 March 1979
• Citation: 400 A.2d 299
• Parties: The STATE of Delaware, upon the Relation of the Department of Natural Resources and Environmental Control and the Department of Highways and Transportation, formerly the State Highway Department, Plaintiff, v. Emmons B. PHILLIPS and Mae T. Phillips, husband and wife, and Blaine T. Phillips and Janet Cozart Phillips, husband and wife, Defendants.
• Court: Court of Chancery of Delaware

Page 299

400 A.2d 299

The STATE of Delaware, upon the Relation of the Department of Natural Resources and Environmental Control and the Department of Highways and Transportation, formerly the State Highway Department, Plaintiff, v. Emmons B. PHILLIPS and Mae T. Phillips, husband and wife and Blaine T. Phillips and Janet Cozart Phillips husband and wife, Defendants.

Court of Chancery of Delaware, Sussex County.

Submitted Nov. 20, 1978.

Decided March 1, 1979.

John T. Gallagher and James F. Waehler, of Morris, Nichols, Arsht & Tunnell, Wilmington, for plaintiff.

Blaine T. Phillips, of Potter, Anderson & Corroon, Wilmington, for defendants.

HARTNETT, Vice Chancellor.

This case is presently before me on the plaintiff's ("State") Motion For Summary Judgment. This action was filed almost 12 years ago by the State which seeks to assert its claimed title to approximately 13 acres of ocean front property lying just north of the Delaware-Maryland line in Sussex County. The State contends that it has been vested with title to the land, as the sovereign, since declaring its independence from Great Britain in 1776. The claim of the defendants is now based primarily on their claimed sole and exclusive possession since 1939, and of their predecessors since at least 1912.

Two Motions For Summary Judgment were previously filed by the defendants and disposed of by prior Opinions. In their first Motion, the defendants claimed that the land in dispute remained vested in the heirs of William Penn after 1776 and never vested in the State. Chancellor Duffy, in 1973, in denying defendants' Motion, held that the title to the land in dispute passed from the heirs of William Penn to the State in 1776. State v. Phillips, Del.Ch., 305 A.2d 644 (1973), aff'd., Phillips v. State ex rel. Dept. of Nat. Res. & Env. Con., Del.Supr., 330 A.2d 136 (1974). In the defendants' second Motion they contended that two patents granted by the State since 1776 showed on their face that the disputed land did not belong to the State. In 1976, Chancellor Quillen denied that Motion, however, holding that the legal descriptions of the two patents in question did not have as their easternmost boundaries the Atlantic Ocean, and therefore the lands granted in the patents to private owners could not have included the lands now in question. State v. Phillips, Del.Ch. (unreported C.A. # 276-Sussex, Jan. 2, 1976).

After the two prior decisions, and with leave of the Court, the State filed the Motion For Summary Judgment now before me. The several contentions of the parties are discussed seriatum.

I

Originally it was the law of this State that title by adverse possession can not be obtained against the State. See Kempner v. Aetna Hose, Hook & Ladder Co., Del.Ch., 394 A.2d 238 (1978) and cases cited therein. Then in 1843 the General Assembly enacted 9 Del.L. 454 which amended the original Vacant and Uncultivated Lands Act, 2 Del.L. 1160 (1793). The 1843 Act stated Inter alia :

Sec. 2. And be it further enacted by the authority aforesaid, That a continued uninterrupted and peaceable possession of any lands and premises in this State for the space of twenty years, by any person or persons, or by those under whom such person or persons claim, whether by descent, devise, deed, gift, grant, assignment or otherwise howsoever, shall be and enure as a complete and effectual bar to any claim of title on the part of the said State to the said lands and premises; notwithstanding no warrant, survey, patent or grant have been made for the same, and notwithstanding nothing may have been paid to the State for or on account thereof; and in any suit on the part of the said State, or its grantees or assigns, for any such lands and premises, it may and shall be lawful for the person or persons claiming the same by virtue of such possession, to give the same in evidence under the plea of the general issue, and without pleading the same specially.

Sec. 4. And be it further enacted and declared, That none of the foregoing provisions of this act shall be construed or intended to apply to any of the Salt marshes of this State; but the same are hereby expressly excepted from the operation of this act, and the title thereto shall in no wise be affected thereby. (emphasis added)

In 1852, as will be discussed, the words "beach or shore" were added to the salt marsh exception.

In 1953 the law permitting adverse possession to run against the State was repealed by 49 Del.L., ch. 386. Therefore, from 1776 until 1843 title by adverse possession could not be obtained against the State. From 1843 until 1953 it was possible to obtain title by adverse possession against the State (except for certain lands), and since 1953 it has been impossible for adverse possession to run against the State.

The defendants assert that they and their predecessors in title have been in exclusive, continued and peaceable possession, with accompanying acts of ownership, of the land in question, since at least 1912. If this is so, defendants' possession could have ripened into title prior to the 1953 repeal. Furthermore, defendants contend that the exception denying adverse possession for "other than salt marsh, beach or shore" appearing in the statutes since 1852 does not preclude their claim of title by adverse possession since they are not now claiming any land which constitutes salt marsh, beach or shore. They tacitly concede that they are not entitled to claim ownership of the beach or shore and claim that only a small portion of the lands in dispute constitute beach or shore.

Since the validity of the defendants' claim to title to the land in dispute depends in large measure on the definition of beach or shore, it is necessary to examine the history of the statute and the judicial definitions construing these words.

The preamble to the original Act relating to vacant and uncultivated lands in the State stated:

"WHEREAS it appears to this General Assembly, that large quantities of vacant and uncultivated land are within this State, which at the present do not, and heretofore have rendered no support to government;"

thereby indicating that the purpose of that Act was to make available for private ownership vacant and uncultivated lands. 2 Del.L., p. 1160 (1793). The original Act was silent as to the barring of the State's claim to lands occupied for over 20 years. In 1843 the General Assembly amended the Vacant and Uncultivated Lands Act by enacting 9 Del.L., ch. 454 quoted previously, which permitted the acquisition of title against the State by adverse possession. As noted, the 1843 enactment contained an exception for salt marshes only. The exception was broadened in 1852 when the preparers of the Revised Code of 1852 rewrote the Act to read Inter alia :

Sec. 2. A continued, uninterrupted and peaceable possession of any land, Other than salt marsh, beach or shore, for twenty years by any person, or by those under whom he claims, shall be a bar to any claim of title in the State to such land, although no patent or grant has been made for the same, and nothing paid to the State therefor. Ch. 2, Rev.C. 1852 (emphasis added)

The 1852 Code was adopted as positive law by the General Assembly in 1852. Rev.Code 1852, p. IV. The law remained substantially unchanged until 1953 when it was repealed by 49 Del.L., ch. 386 (July 15, 1953). See § 12 Rev.C. 1874; § 12 Rev.C. 1915; § 12 Rev.C. 1935; 7 Del.C. § 4502.

The question of whether defendants can obtain title against the State by adverse possession to the lands in question therefore depends on whether these lands are salt marsh, beach or shore, within the meaning of the Statute. It is a factual question, which can only be determined at trial, whether any part of the lands in question constitute salt marsh.

II

It has been held that the words "beach" and "shore" are deemed to be synonymous with one another. Littlefield v. Littlefield, Me.Supr., 28 Me. 180 (1848); Storer v. Freeman, Mass.Supr., 6 Mass. 435 (1810); see also U. S. v. Pacheco, 69 U.S. 587, 17 L.Ed. 865 (1864); and the cases collected at note 1, 17 L.Ed. 865. The U.S. Supreme Court stated in U. S. v. Pacheco, 69 U.S. at 590: "By the common law, the shore of the sea, and, of course, of arms of the sea, is the land between ordinary high and low water mark, the land over which the daily tides ebb and flow." Accord, Shively v. Bowlby, 152 U.S. 1, 14 S.Ct. 548, 38 L.Ed. 331 (1894); Borax Consolidated v. City of Los Angeles, 296 U.S. 10, 56 S.Ct. 23, 80 L.Ed. 9 (1935). Numerous cases have defined both beach and shore as the space between the high and low water marks. Hewitt v. Perry, Mass.Supr., 309 Mass. 100, 34 N.E.2d 489 (1941); Hodge v. Boothby, Me.Supr., 48 Me. 68 (1861); Merwin v. Backer, Conn.Supr., 68 A. 373 (1907); Axline v. Shaw, Fla.Supr., 35 Fla. 305, 17 So. 411 (1895); Storer v. Freeman, supra; Doane v. Willcutt, Mass.Supr., 71 Mass. 328 (1855); Potomac Dredging Co. of Baltimore City v. Smoot, Md.App., 108 Md. 54, 69 A. 507 (1908); Wood v. Hildebrand, Md.App., 185 Md. 56, 42 A.2d 919 (1945); Littlefield v. Littlefield, supra; Snow v. Mt. Desert Island Real Estate Co., Me.Supr., 84 Me. 14, 24 A. 429 (1891); State v. Wright, N.J.Supr., 23 A. 116 (1891); Attorney General v. Central R. Co. of New Jersey, N.J.Ch., 68 N.J.Eq. 198, 59 A. 348 (1904); McRoberts v. Bergman, N.Y.App., 132 N.Y. 73, 30 N.E. 261 (1892); Bell v. Hayes, N.Y.Supr., 60 A.D. 382, 69 N.Y.S. 898 (1910); Town of Oyster Bay v. Stehli, N.Y.Supr., 169 A.D. 257, 154 N.Y.S. 849 (1915).

The terms "shore" and "beach" have also been defined by Delaware Courts.

In Harlan & Hollingsworth v. Paschall, 5 Del.Ch. 435, 463-4 (1882), this Court said the following:

. . . The shore (Saxon) The coast of the sea; the bank of the river; that part of the bed lying between the top of the bank and that part of the bed where the water actually flows and which, as the water rises and falls, is land or water.

. . . Roman Law has distinguished the...