Opinion
01-19-1897
STOCKTON, Atty. Gen., v. AMERICAN LUCOL CO.
George L. Record, for complainant. Albert C. Wall, for defendant.
Information by John P. Stockton, attorney general, against the American Lucol Company to establish a purpresture, and to compel its removal by mandatory injunction. Heard on information, answer, and stipulated facts. Decree for informant.
George L. Record, for complainant.
Albert C. Wall, for defendant.
EMERY, V. C. This is an information filed by the attorney general of the state for the purpose of obtaining a decree that a wharf or dock erected by the defendant in front of its lands on the Arthur Kill or Staten Island Sound is a purpresture, and to compel its removalby mandatory injunction. The case is heard upon information, answer, and written stipulation of facts, and the principal question involved is the construction and effect of an act of the legislature relating to the rights of the state and riparian owners in lands under water, which was approved on March 20, 1891, to take effect on July 1, 1891. By the wharf act of 1851 (Revision, p. 1240; 3 Gen. St. p. 3753) the riparian owner was authorized to build docks or wharves upon the shore (the land between ordinary high and low water, section 1) in front of his lands, and in any other way to improve same. The riparian owner was also authorized (section 2) to build docks, wharves, and piers in front of his land, beyond the limits of ordinary low water, upon obtaining a license as provided by the act. The act does not give any authority for any reclamation or improvement beyond the line of low water, by license or otherwise, except for the building of docks, wharves, and piers. This license to build a dock, wharf, or pier to extend beyond low water is to be obtained (section 3) from the board of freeholders of the county, and (section 5) is to specify the limits of such improvement, and shall (section 5) "authorize and empower the said applicant to erect the dock, wharf, or pier at any time within five years from the date thereof; and said docks, wharves, or piers, or so much thereof as may be erected within said five years, shall be vested in said shore owner, in the same manner," and for the same estate, etc., as his uplands. In reference to the control of the legislature over the operation of the act, it is further expressly provided (section 8): "And nothing herein contained shall, before any improvement be actually made by virtue thereof, prevent the state from appropriating to public use the lands lying under water, in the same manner as could be done before the passage of this act." By the act of April 11, 1864, a board of riparian commissioners was appointed (P. L. 1864, p. 681; Revision, p. 980; 3 Gen. St. p. 2785), with authority, among other things, to cause surveys to be made of the lands lying under the waters of Arthur Kill, and to establish an exterior pier line therein, and the board were directed to report to the legislature. Nothing in this act appears to affect directly the wharf act of 1851, but on March 31, 1869, a supplement to the riparian act of 1864 was approved (P. L. 1869, p. 1017; Revision, p. 982; 3 Gen. St. p. 3753), and this supplement (section 3) repealed the act of 1851 as to the tide waters of the Hudson river, New York Bay, and Kill von Kull, but did not repeal it as to other waters. By the act approved March 20, 1891, now in question, this repealing section, the third of the act of 1869, was amended so as to read as follows (omitting provisions which do not seem material): "Sec. 3. And be it enacted, that the act entitled 'An act to authorize the owners of lands upon tide waters to build wharves in front of the same,' approved March 18, 1851, be and the same is hereby repealed as to the tide waters of this state below the line of the mean high tide; * * * and without the grant or permission of said commissioners no person * * * shall fill in, build upon or make any erection on or reclaim any of the lands under the tide waters of this state; and in case any person or corporation so offending shall be guilty of purpresture, which shall be abated at the cost and expense of such person or corporation, on application of the attorney general, under decree of the court of chancery or by indictment: * * * provided, however, that neither this section, nor any provision in this act contained, shall in any wise repeal or impair any grant of land under water, or right to reclaim made directly by legislative act or grant or license, * * * and as to any revocable license given by the board of chosen freeholders of a county before this act goes into effect to build docks, wharves, or piers, or to fill in or reclaim any lands under water in this state, the same shall be irrevocable so far as the land under water has been or shall be lawfully reclaimed or built upon under any such license issued prior to July first, eighteen hundred and ninety-one, provided such reclamation or building under such license shall be completed prior to January first, eighteen hundred and ninety-two; but as to the future such revocable license, if the said lands covered by the license have not been wholly or in part lawfully reclaimed or built upon, is hereby revoked, and no occupation or reclamation of land under water, without such legislative act or revocable license, shall divest the title of the state or confer any rights upon the party who has reclaimed or who is in possession of the same." By section 2 of the amending act of March 20, 1891, it was provided "that all acts and parts of acts inconsistent herewith are hereby repealed, and this act shall take effect on the first day of July next."
After the approval of this act of 1891, but before it took effect, one Thomas Sawyer, a riparian owner, under whom defendant claims, applied to the freeholders of Middlesex county for a license to build a dock, wharf, and pier in front of his uplands, and a license in writing was duly granted to Sawyer on June 6, 1891, and bearing that date by which the board of freeholders granted to Sawyer and his heirs and assigns "license irrevocably to build a dock, wharf, and pier in front of his property situate on the waters of Arthur Kill or Staten Island Sound, in the township of Woodbridge," etc. The location and dimensions of this dock, wharf, and pier were specified in the license, as required by the act of 1851, being 1,500 feet in width along the shore line, extending beyond the shore line and low water, 220 feet on the south and 215 feet on the north, to the exterior pier headline approved by the ripariancommissioners, or the pier headline approved by the secretary of war March 4, 1890. The width of the pier, wharf, or dock on this exterior line was fixed at 1,546 feet. After obtaining this license, and before July 1, 1891, the date when the act of 1891 took effect, Sawyer inclosed a portion of the tract mentioned in the license by building two lines of piles on the north and south lines of the tract, extending 100 feet from the shore, and by building an exterior line of piles on a line connecting the two side lines of piling, this exterior line being 1,546 feet long, and parallel with the exterior line named in the license. The piles were placed 10 feet apart, and connected by string pieces. No further building or improvement was made by Sawyer previous to his conveyance of the uplands to defendant on November 23, 1893. The defendant, between January 1, 1894, and May 1, 1894, built a wharf on a portion of the lands included in the license, the wharf being 40 feet in width and 100 feet in length, and extending from the shore line to the exterior line of piling put down by Sawyer in 1891, and the defendant used in the construction of its wharf a number of the piles already driven in the exterior line of piling, without removing the same from their original places. Prior to June 1, 1894, a large number of the piles originally driven, except those incorporated in the wharf, were not standing. The defendant erected its wharf without any license from the riparian commissioners, as provided by the act of 1891, and on May 28, 1895, this information was filed by the attorney general to compel the removal of the wharf erected by defendant as a wrongful encroachment upon the lands of the state under water.
The defendant claims that, as the license was granted and the piles inclosing the tract were driven before July 1, 1891, the date when the act of 1891 took effect, and when the wharf act of 1851 was repealed, the license obtained by Sawyer on June 6, 1891, before the repeal of the wharf act, gave him an irrevocable license under the act of 1851. This latter act, as above stated, provides (section 5) that the license under it shall authorize and empower the licensee to erect the dock, etc., at any time within five years from the date of the license, and the docks, etc., or so much of them as may be erected within said five years, shall be vested in the shore owner. The inclosure of this tract by piling is also claimed to be a reclamation of the lands under water. But it is to be observed that, while the act of 1851 (section 1) gives a right of building docks, and of reclamation, or improvement in any other way, to the shore owner, in respect to the lands upon the shore between high and low water, the rights beyond low water are less extensive. On these lands he gets nothing lawfully under the act but a license to build docks, wharves, and piers, and does not get the right to reclaim generally, or for other purposes. And conceding, for the purposes of argument, that the judgment of the freeholders is conclusive as to whether the application is really for a dock, rather than an application to reclaim lands under water, it seems to me clear that, under this act of 1851, the license granted by the state contemplated the actual erection of a dock or wharf, useful for the purposes of navigation, on the lands beyond low water, and that the mere inclosure of the tract by piling is not sufficient under this act to vest a title therein under the act. If the inclosure, by piling, of the land included in the license for a wharf, is a sufficient erection of the wharf to vest the title, then it must follow, I think, that the title to the lands inclosed, having once vested under the act, cannot be divested; and if the piling should be allowed to disappear, as was largely the case here, then, without the actual construction of any wharf at all, the licensee, who has obtained a grant of lands for the public use of a wharf, and on the condition of building a wharf, has become vested with the title to the lands on which the wharf was to be built, without complying with the spirit or letter of the license upon which it was granted. So far, therefore, as the inclosure by piling is claimed in this case to be an actual erection of the dock under the license, my opinion is that it cannot be so considered. And as to the portion of the piles erected before July, 1891, which were afterwards incorporated as they stood in the wharf built in 1894, it does not seem to me that the fact of such subsequent incorporation made this piling part of a wharf erected before January 1, 1892. There being, then, in my view, no actual erection of the wharf licensed, or any part thereof, before January 1, 1892, the time limited by the act of 1891, the right of defendant to maintain its structures must depend upon the validity of the second claim made, viz., that under its license it has the right to build the wharf within five years from the date of the license, as provided by the act of 1851, and that the repeal of the act does not affect this right. Against the application of this act it is urged: First, that the license granted by the freeholders became irrevocable by the erection of the piling under the authority of the license granted while the wharf act was still in force, and before the act of 1891 took effect; and, secondly, that by the erection of the piling the land covered by the license has been wholly or in part reclaimed or built upon, and the license is therefore, by the terms of the proviso in the act of 1891, saved from the effect of the repeal.
The first contention cannot prevail. The right conferred by the license is, as has been well settled, a license to build upon lands of the state under water, revocable before execution. Stevens v. Railroad Co., 34 N. J. Law, 532, 548. The mere inclosure of the whole tract included in the license by pilingcannot be considered as, of itself, such a sufficient execution of a license to build a wharf that the state was thereby prevented from further limiting the time for the completion of the wharf, which was the sole object of the license. The act of 1851 provides for a license by the state, or under its authority, to make certain specified improvements on its lands under water, which improvements are only wharves, docks, and piers. These are useful for the purposes of navigation and commerce. No estate in the lands covered by the license is vested in the licensee by the act, except upon the condition and to the extent of the erection of a wharf, not upon the condition of an inclosure of the lands upon which the wharf is to be erected. So far as the license is not executed by the erection of a wharf, the state may exercise the power of revocation. Limiting the time for erection to a period within that fixed by the original act is an exercise of such power of revocation pro tanto, and, if the period for completion of the unexecuted license is not unreasonable, there is certainly no interference with any vested rights of the licensee. There can be no question of unreasonable restriction of time in this case, because the license was obtained after passage of the act, and with full notice, before the license was received, that the act limiting the time for completion of the wharf to January 1, 1892, would take effect on July 1, 1891. It is claimed on behalf of the attorney general that the repeal of the act of 1851 and the transfer of the control over the lands under water to the riparian commissioners was an exercise of the right of the state to appropriate the lands to public use before any improvement was made, and that this right was expressly reserved by the eighth section of the act of 1851 authorizing the license. If this is such appropriation, the license is of course taken subject to its exercise; but I am inclined to think that the transfer of the power to license to another body is not, of itself, an appropriation to public use, within the eighth section of the act. I therefore base my opinion on this branch of the case Upon the ground that, as matter of fact, the wharf improvement contemplated by the act of 1851 was not in fact erected at the time the act of 1891 took effect, and the license was therefore then unexecuted; that the state had an undoubted right by this subsequent act to limit, within a reasonable period, the time for the completion of wharves under unexecuted licenses granted before the act took effect; and that, so far as the present license was concerned, the limit was reasonable.
The second contention of the defendant is that the proviso of the repealer of 1891 expressly saves the license, because the lands covered by the license have been wholly or in part lawfully reclaimed or built upon under the license. It is contended that inclosing the tract by oiling is a lawful reclamation of the tract inclosed or a lawful building upon it which, under the terms of the proviso, protected it from the repealer. Such construction of the act, however, should not be given, because, as to reclamation of lands, except such lands as are necessarily incident to the building of wharves, the freeholders never had any right to license any reclamation, and, as to the meaning to be placed on the words "building upon the lands" in the proviso of the act of 1891, this must be read in connection with the building of docks, wharves, etc., which is the "building" expressly provided for by the act of 1851. That cannot be a fair or proper reading of the act of 1891 which will construe a proviso which was apparently intended to preserve, for a limited period, rights under an unexecuted license, as practically granting to the licensee an unlimited and irrevocable license, and as giving him such irrevocable license by such a mere inclosure of the lands, this mere inclosure not being, in itself, a right which was conferred at all by the original license. In other words, the right to appropriate the lands by erecting a wharf thereon, which was the only right given under the act of 1851, is not intended by the proviso in the act of 1891 to be changed into a perpetual right to appropriate and reclaim the whole lands covered by a dock license by a mere inclosure of the lands under water covered by the license, without constructing the wharf. The portion of the proviso which saves from the effect of the repeal only in case the building shall be completed prior to January 1, 1892, shows, also, that it is the completed wharf which is meant to be protected, and not a "building upon" the lands, by way of inclosure only. My opinion is that the erection of the dock in question was not authorized by the Sawyer license, and that the attorney general is entitled to a decree declaring the wharf a purpeture, and for its removal.