Opinion
05-28-1904
BRADLEY v. McPHERSON.
G. A. Bourgeois, for complainant. Thompson & Cole, for defendant.
Action by Thomas Bradley against James B. McPherson. Judgment for plaintiff.
G. A. Bourgeois, for complainant.
Thompson & Cole, for defendant.
REED, V. C. It appears that one John McClees was from 1860 to 1897 the owner of a tract of land in Atlantic City. Mr. McClees, by a deed made March 9, 1897, sold the said tract to the Atlantic City Beach Front Improvement Company. The Atlantic City Beach Front Improvement Company on August 20, 1899, sold from this tract of land a lot to John G. Vogler. The dimensions of this lot were 100 by 60 feet. After the improvement company sold this lot to Vogler, it, on November —, 1899, sold all the remaining portion of the tract which it had bought from McClees to Charles G. Henderson, Jr., and two others—Messrs. Moss and Hancock. On August 6, 1900, Mr. Vogler sold to John McPherson the 60 by 100 feet lot above mentioned, and McPherson's title is now owned by the defendant. On December 27, 1900. the riparian commissioners made a grant to John McPherson as riparian owner. On October 21, 1901, the same board made a grant to Henderson, Jr., Moss, and Hancock, as riparian owners. The two grants included the same area, and the second grant—the one to Henderson and others—is made subject to the rights, if any, acquired by McPherson in his grant of December 27. 1900.
The question tried at the hearing was whether on August 26, 1899, when the Atlantic City Beach Front Improvement Company sold the 60 by 100 feet lot to Vogler, the line of ordinary high water of the ocean and inlet touched that lot. This point or time was adopted, rather than that of December 27, 1900, when the riparian grant was actually made to McPherson, upon the doctrine laid down in Ocean City Association v. Shriver, 64 N. J. Law, 550, 46 Atl. 690, 51 L. R. A. 425. Counsel for the defendant, however, challenged the right of this court to consider the testimony respecting the location of the line of ordinary high-water mark, because of an alleged lack of jurisdiction. The lack of jurisdiction, as it is alleged, arises from the absence of peaceable possession of the complainant at the time when the bill was filed. That the complainant had possession of a part of the premises included within the riparian grant is proved. The presence of the store, and the fact that the complainant has rented it, aside from the presence of the jetties, are sufficient proof ofpossession. It is insisted, however, that this possession was not peaceable. There is some evidence that there was a dispute between a Mr. Dick, the owner of a triangular piece of property within the riparian grant, and the Hendersons, who had disputed about the erection of the jetty. Proof is also proffered of the existence of injunction suits, to which Dick and Henderson, and to one of which McPherson, was a party. The answer, however, admits that there is no suit now pending to try the title to this property. Nor would the contest between Dick and Henderson have any relevancy upon the question of peaceable possession. The doctrine laid down in this court is that the peaceable possession required by the statute is not a possession which is peaceable as to third parties, but only peaceable as to the defendant; and, as to the defendant, that it is a possession undisturbed by any act of the defendant in or upon the locus in quo, for which act the defendant would be suable in an action by which the title to the property could be determined. Mere words denying the right of the complainant to possession, which afford the complainant no right to test the substance of such claims by an action at law, do not destroy the peaceableness of complainant's possession. The doctrine that the peaceable possession under the statute means peaceable possession as against the defendant, and not against third parties, is laid down in Allair v. Ketcbam, 55 N. J. Eq. 169, 35 Atl. 900, and De Hanne v. Bryant, 61 N. J. Eq. 141, 48 Atl. 220. Now, the only feature in the case relied upon to show an interference by the defendant with the complainant's peaceable possession is the placing of a jetty outside of the bulkhead surrounding the defendant's lot, and the filling in between the jetty and the bulkhead with stone. This piling was put in, so far as appears, soon after the bulkhead was built, and so seems to have been placed before the riparian grant was made to either of the parties. Since these grants were made there is no evidence of any act by McPherson upon the locus in quo which disturbed the possession of the complainant or his grantors. So I am of the opinion that this court has jurisdiction.
Recurring then to the question tried, namely, whether the ordinary line of high water of the inlet reached the Vogler-McPherson lot on August 26, 1899, I am of the opinion that the probability is that it did not, and that it did not when Mr. McPherson got his riparian grant. It is quite clear that before this point of time, as well as after, the ordinary high-water line was some distance oceanward from the borders of the rectangular lot sold to Vogler. While it is true that in 1889 and 1890 the storm tides and the extra high tides swept over a corner of the lot, I do not think that the ordinary tides reached it. Such was the conclusion of Mr. Shinn, who went upon the ground and measured the lot at the time it was sold to Vogler. He says, "We determined that there was a little more ground than we had agreed to sell to Mr. Vogler; that there was a little more landward of high water than we had agreed to sell to Mr. Vogler." Mr. Shinn then explains why certain language respecting the overflow of the tides was incorporated in the deed. If this was the condition of fact, as I am inclined to believe it was, then the riparian grant to the complainant is good, and the grant to the defendant is a nullity. According to the testimony of defendant's witnesses, the ordinary high tides reached only the southeasterly corner of the Vogler lot, leaving land belonging to the complainant lying along both the east and the south sides of that lot. Now, the right to a riparian grant, like the right to wharf out, must be exercised by keeping within side lines, at right angles with the high-water line, if that is straight, and, if the high-water line is curved or irregular, then within side lines which divide the fore shore proportionately among the littoral owners. Upon this theory, neither of these grants was accurately made, if the defendant's witnesses are assumed to state the facts correctly.
It is to be further observed that the deed to Vogler contained the following provision: "Subject to the overflow of the ocean tides, and upon condition that the grantee herein, his heirs or assigns, acquire no right to accretion or riparian grant." Why future accretions may not be the subject of a bargain which equity will enforce, I am unable to see. Inasmuch, however, as this clause was not argued by the counsel for the defendant, I will leave the case standing upon the grounds already indicated.
I will advise a decree in accordance with the prayer of the bill.