Twp. of Lower v. City of Wildwood

• Decision Date: 11 September 1942
• Docket Number: No. 223, May Term, 1942.,223, May Term, 1942.
• Citation: 20 N.J.Misc. 22,28 A.2d 74
• Parties: TOWNSHIP OF LOWER v. CITY OF WILDWOOD et al.
• Court: New Jersey Supreme Court

28 A.2d 74

20 N.J.Misc. 22

TOWNSHIP OF LOWER

v. CITY OF WILDWOOD et al.

No. 223, May Term, 1942.

Supreme Court of New Jersey.

Sept. 11, 1942.

Syllabus by the Court.

1. A municipality whose territory borders upon a tidal stream has title to the high water mark.

2. The right of the state and its people over land between high and low water mark is paramount in the absence of grant, but this circumstance does not deprive the municipality of the right to exercise its police power over such bordering lands when no inconsistent action has been taken by the state.

3. The banks of tidal streams cannot be monumented since the grant of land bordering such stream is to the high water mark wherever it may be.

Proceeding by the Township of Lower, a municipal corporation of Cape May County, New Jersey, against the City of Wildwood, a municipal corporation of Cape May County, New Jersey, for the appointment of commissioners to fix, determine and monument the boundary line between the Township of Lower and the City of Wildwood. To review an order of the Court of Common Pleas of Cape May County, dismissing the petition, and dismissing rule to show cause which issued on the petition and the restraints therein contained, the Township of Lower, opposed by the City of Wildwood and others, brings certiorari.

Writ dismissed.

Bolte, Miller & Repetto and Augustine Repetto, all of Atlantic City, for prosecutor.

Frank A. Mathews, Jr., of Riverton, and Irving Shenberg, of Wildwood, for respondents.

May term, 1942, before BODINE, HEHER, and PERSKIE, JJ.

BODINE, Justice.

This writ of certiorari brings up for review an order made by the Court of Common Pleas of Cape May County dismissing the petition of the Township of Lower for the appointment of commissioners to fix, determine and monument the boundary line between the Township of Lower and the city of Wildwood, and in dismissing the rule to show cause which issued upon the petition and the restraints therein contained. The petition, it is alleged, was filed pursuant to the provisions of R.S. 40:43-67, N.J.S.A. 40:43-67.

The facts are not in dispute. The city of Wildwood was carved by the legislature from the Township of Lower. It consists, by consolidation, of the original city of Wildwood and the borough of Holly Beach City. The statute providing for the incorporation of Holly Beach City (P.L. 1897, Chapt. 177, p. 345) fixes the boundary for the fourth course along Post Creek, a tidal stream, and the several courses...