Yard v. Ocean Beach Ass'n

• Decision Date: 25 July 1892
• Citation: 24 A. 729,19 N.J.E. 306
• Parties: YARD v. OCEAN BEACH ASS'N.
• Court: New Jersey Supreme Court

24 A. 729

19 N.J.E. 306

YARD

v. OCEAN BEACH ASS'N.

Court of Errors and Appeals of New Jersey.

July 25, 1892.

(Syllabus by the Court.)

Appeal from court of chancery.

Bill by the Ocean Beach Association against Henry H. Yard to quiet title to certain land within the bounds of complainant's map of its property of Ocean Beach, comprising a seaside village. From a decree advised for complainant, defendant appeals. Modified.

For opinion of the court of chancery, see 20 Atl. Rep. 763.

John R. Emery, for appellant.

Cortlandt Parker and Barker Gummere, for respondents.

DEPUE, J. This is a bill to quiet title, tiled under the act of March 2, 1870, (Revision, 1189.) The lands in controversy are within the bounds of the map of Ocean Beach. The tract owned by the Ocean Beach Association comprises a seaside village. In 1879 the defendant, then being a member of the Ocean Beach Association, made for the association a map of its property, which was lithographed, and is called the "Map of Dedication." This map delineated the tract owned by the association as lying south and east of Shark river, and extending southerly to a line which would embrace the lands in controversy, and eastwardly to the Atlantic ocean. On this map the tract was laid out into lots, with the streets delineated upon it. Along the ocean front a strip of land about 200 feet wide was left between the lots and the ocean, marked on the map, "Ocean Bluff." The streets were delineated on the map as extending eastwardly towards the ocean, and leading into the Ocean bluff, which is a space of ground intended for the common use of the owners of lots and the public, for recreation and access to the ocean. The lands in controversy consist of detached pieces in the streets, marked on the dedicating map, and a strip on the bluff extending along the entire ocean front. The premises are set out in the complainant's bill as consisting of four parcels. The vice chancellor described the lauds claimed by the complainant as bounded on the north by Shark river, on the south by Three-Cornered pond, on the west by lands of other parties, and on the east by the Atlantic ocean. Nearly equidistant between Shark river and Three-Cornered pond is another body of water, called "Silver Lake," or "West Pond." The land claimed by the defendant the vice chancellor described as consisting of two different parcels, one lying north of West pond, adjoining the Atlantic ocean, containing 31,857 acres; the other lying south of West pond, and north of Three-Cornered pond, and near to, although not bounded by, the waters of the Atlantic ocean, containing S.48 acres. The last of these parcels purports to be a strip of land between what are called the "Brinley Survey," for 183.25 acres, dated December 2, 1861, and the "Corlies Survey," made August 30, 1870, and returned and approved November 1, 1872. These surveys will presently be referred to with particularity.

The vice chancellor considers first the title to the parcel lying north of West pond, and between that pond and Shark river. To this parcel the complainant claims title by divers mesne conveyances, under a conveyance made by Joseph Waddell to John Lippell White, bearing date September 1, 1800, acknowledged December 31, 1800, and recorded January 28, 1801. The premises conveyed by this deed consist of a tract of 600 acres, lying between Shark river and the Three-Cornered pond. John Lippell White died in June, 1831, devising this tract to his two sons, Peter and Richard. Richard released to Peter that part of the tract which lies between West pond and Shark river, containing 230 acres. Peter conveyed this parcel November 1, 1872, to Joseph B. Yard, who is not the defendant. Joseph B. Yard also acquired of Richard White an adjoining lot of 14.33 acres next to West pond. By a deed dated May 26, 1873, Joseph B. Yard conveyed these two tracts to the Ocean Beach Association, which gave the association title to the parcel lying between West pond and Shark river. To this parcel the vise chancellor adjudged title in the complainant by adverse possession.

The statute of limitations applies as well to the board of proprietors as to individuals, and an adverse possession of lands for 20 years will bar a right of entry or recovery under title derived from that source. Cornelius v. Giberson, 25 N. J. Law, 1. Nor is there any difference between the character of the evidence or the degree of proof required to sustain title by adverse possession against the board of proprietors and that which is required to sustain such title against an individual owner. The board not being excepted from the operation of the statute, possession such as would bar the claim of the rightful owner, if he be an individual, will be equally efficacious against the proprietors. The Waddell deed to White was made in September, 1800, and recorded January, 1801. The tract conveyed consisted of upland and sedge meadows and a sandy beach along the river and the sea. In the deed it is described as "situate, lying, and being on the south side of Shark river, with two sedge banks near the mouth of said river, being included within the following bounds: Bounded northerly by Shark river, easterly by the sea, southerly by a pond called 'Three-Cornered Pond,' and westerly by the upland of," etc. The descriptive words contained in the deed comprised premises extending to and bounded upon the ocean. The survey made by the defendant, under which he claims title, was located on the easterly side of a fence along the upland, and extending from thence to the ocean. At the time the Waddell deed was made there was a farmhouse on the tract, which was rebuilt in 1810. From the making of the conveyance to White the tract was occupied and cultivated by those holding under the Waddell conveyance, and their possession and occupation was under color of title at least. The evidence clearly shows that White and those who succeeded to his title always claimed title to the ocean, and that their right as riparian owners was generally, if not universally, recognized in the neighborhood. The general rule is that, in a controversy in which title by adverse possession is set up, possession of the principal tract is regarded as possession of adjoining waste and un-inclosed pieces of land held under the same title and used in connection therewith. Sedg. & W. Tr. Tit. Land, § 774. In this case it appears that the grantee of Waddell, and those succeeding him in title, used the sedge meadows outside of the fence inclosing the upland for pasturing cattle, and erected fences to the ocean, to prevent cattle straying or trespassing, and cartedoff seaweed and drift wood and fragments of wrecks thrown upon the beach. In Lord Advocate v. Young, 12 App. Cas. 544-553, Lord Watson, speaking of a claim of title to the foreshore by prescription as against the crown, said: "It is practically impossible to lay down any precise rule in regard to the character and amount of possession necessary to give a riparian proprietor a prescriptive right to the foreshore. Each case must depend upon its own circumstances. * * * In estimating the character and extent of his possession it must always be kept in view that possession of the foreshore, in its natural state, can never be, in the strict sense of the terra, exclusive. The proprietor cannot exclude the public from it at any time; and it is practically impossible to prevent occasional encroachments on his right, because the cost of preventive measures would be altogether disproportionate to the value of the subject." These remarks, though relating to title by prescription to the foreshore, which is crown property, apply with equal force to waste land lying between the upland and the waters of the ocean, which is covered by sedge grass, and at times overflowed by tides, making cultivation and inclosure by fences impracticable. In the present case it appears clearly by the evidence that the owners of the Waddell title exercised acts of ownership and dominion continuously over the sedge meadows and beach down to the water's edge, of such nature and character as the condition and situation of the premises permitted, and so far as was practicable. The evidence touching their possession was such as was held by this court in Foulke v. Bond, 41 N. J. Law, 527, to be competent evidence of an adverse possession. The proof on this subject is plenary, and I agree with the vice chancellor that the evidence is most conclusive of an actual, open, continued, and hostile possession, under the Waddell title, of the strip of land in controversy for more than three quarters of a century.

To the second of the parcels in controversy—that lying south of West pond— the defendant's claim of title depends upon the location of two prior surveys,—the one to Brinley, made December 2, 1861, for 183.25 acres; the other by Corlies for himself, made August 30, 1870, for a tract of 34.90 acres. In both these surveys the lands are described as lying between the Three-Cornered pond and West pond. The defendant's survey also describes the lands surveyed by him as a tract of unappropriated land lying between West pond and the Three-Cornered pond. The defendant's title, in virtue of his survey, which was made October 30, 1880, depends upon the fact of there being unappropriated lands...