USA > New Jersey > Hudson County > Paper read before the historical society of Hudson County. 1908 > Part 14
Note: The text from this book was generated using artificial intelligence so there may be some errors. The full pages can be found on Archive.org (link on the Part 1 page).
Part 1 | Part 2 | Part 3 | Part 4 | Part 5 | Part 6 | Part 7 | Part 8 | Part 9 | Part 10 | Part 11 | Part 12 | Part 13 | Part 14 | Part 15 | Part 16 | Part 17 | Part 18 | Part 19 | Part 20 | Part 21 | Part 22 | Part 23 | Part 24 | Part 25 | Part 26 | Part 27 | Part 28 | Part 29 | Part 30 | Part 31
In 1864 (P. L. 1864, P. 781) the Legislature appointed a Commission to look into the subject of the riparian rights of the State, and in 1865, this Commission made a report. In 1869 (P. L. 1869, p. 1017), the act was passed creating the Riparian Commission and repealing the Wharf Act as to the Hudson River, New York Bay and Kill von Kull. In 1891 (P. L. 1891, P. 216), the Wharf Act was repealed as to the rest of the tidal waters of the State and thereafter the Riparian Commission was the only source through which riparian grants were made.
The fact of the absolute ownership of the State in these lands under water was not acquiesced in by all of the legal authorities :
In 1864, when the Legislature was questioning the more methodical administration of these lands, the opinion of legal authorities was sought as to the rights of the State; and while most of the authorities agreed that the State's title was abso- lute, Honorable F. T. Frelinghuysen, Attorney General of the State, in an opinion given to the Senate on the question as to whether the State had a right to dispose of the lands under water adjoining the shore to other than riparian owners, after areful reasoning and citing of cases, concludes:
20
"That the State cannot authorize another than the ripari- an owner to interpose between him and tide water and cannot take the shore between high and low water mark for public use without giving compensation."
The present rule and practice is that the State may con- sider the application of a non riparian owner after the riparian owner has had six months' time within which to make the ap- plication himself; but the act of March 31st, 1869, provides that a grantee who is not the owner of the ripa
"shall not fill up or improve said lands under water until the rights and interest of the riparian owner in said lands under water (if any he has) shall be extinguished",
and this is followed by the method of procedure to conserve his rights.
The act of March 20th, 1891, however, provides that the owner of the ripa shall have six months' notice of the applica- tion of a non riparian owner, but makes no mention of the "rights and interest (if any he has)" in the lands under water applied for.
It would seem as though the owner of lands fronting or bounding on a tidal stream had some rights of access to and use of the water, which he could not be deprived of without due process and compensation. Governor Marcus L. Ward, on April 11th, 1864 (Legal Doc's 1867, p. 25) in filing, without his approval, a bill granting certain lands under water in the "South Cove" to Mathiessen and Wiechers, Sugar Refining Company, on the ground that the company were not the owners of the ripa, used the following language:
"It appears to me that the owners of lands adjacent to tide waters have a better right to those waters for certain pur- poses than other citizens of the nation. It would create consternation among the owners of such lands through (sic) the State, to learn that no respect whatever was to be paid to the advantages derived from their adjacency to tide water."
This inherent right in the upland or shore owner is recog- nized by the State of Pennsylvania: By act approved June 8th, 1907, a "Board of Commissioners of Navigation for the River Delaware and its navigable tributaries", was established, and the law and pratice of the State is expressed by the board as follows:
"It has never been the practice in Pennsylvania to dis-
21
tinguish riparian rights from other rights connected with the land: owning to the water line, the owner has the use of the water, just as the owner of land abutting on a street has the use of a street."
The contrary view seems to be supported by a decision of the Court of Errors and Appeals in this State in the case of Stevens vs. The Paterson and Newark Railroad Co., (5 Vroom, 532), but a writer in a report to the Legislature of New Jersey, in 1883, furnishes the following interesting statement of fact and citation of cases, in relation to the ground for this decision :
"We desire it understood that we should not assume to sit in review upon any decision of that Court if we conceived that the Court itself would still adhere to the decision then made, but the circumstances are such as to lead to the inevitable con- clusion that the Court which decided the Stevens case would overrule that decision were the opportunity to present itself. That case was decided in the year eighteen hundred and seven- ty, and the point was determined upon legal authorities cited by the learned chief justice who delivered the majority opinion. Reference was made to the case of Gould vs. Hudson River R. R. Co. N. Y. 2 Seld. 522, and so far as the Court was controlled by the American decisions it is safe to say that it made the case of Gould a leading authority. But it is perfectly clear that the Court sought to ascertain and determined to declare in favor of the English rule of law, upon the point as to the right of the shore owner. In ascertaining the rule of law upon that point as applied by the English Courts, our Courts cited and mainly re- lied upon the case of Buccleuch vs. The Metropolitan Board of Works, decided by the English Court of Exchequer, the decision of which came to hand while our Court was considering of its decision in the Stevens case. That decision of the Exchequer Court was adverse to the right of the shore owner, and being then unreversed was treated by our Court as properly stating the English rule of law upon that point; and upon this the Ste- vens case was decided adversely to the right of the shore owner. Chancilor Zabriskie who took part, however, rendered a very elaborate dissenting opinion in which he held that the riparian proprietor had a right to the natural privileges conferred on his land of which he could not be deprived even by the State without due compensation.
"After the decision of the Stevens case by our Court upon the strength of the case of Buccleuch vs. The Metropolitan Board of Works, as determined in the Court of Exchequer, an appeal was taken in the latter case to the House of Lords, and after elab- orate argument the decision of the Exchequer Court was on April thirty, eighteen hundred and seventy-two, reversed and the right of the shore owner established by the highest court
22
of England. Law reports 5 (House of Lords) 418. It may be well for us to see just what the House of Lords there decided. The case arose as follows: The Duke of Buccleuch was the owner of a lease and in possession of Montagu House which had an ornamental garden in its rear which adjoined the river Thames, and the natural flow of the water at high tide brought it up to his garden wall-the frontage of the garden on the river was one hundred and forty-five feet. The Metropolitan Board of Works under authority of Parliament constructed an embankment along the river Thames which cut off the flow of the water to the Duke's Garden. We now cite some of the propositions stated by the Judges in the House of Lords :
" "The Duke was entitled as riparian owner to the regular flow of the water all along the extremity of his garden.' .
'Now, the deprivation of the water right is clearly an injurious affecting of the premises to which it is annexed within the proper meaning of the term.
" 'No doubt has been entertained by any of the judges who have had to consider this case that the plaintiff is entitled to compensation in respect to the taking of his causeway and the consequent injury to his property by depriving it of the di- rect access which that afforded to the Thames.' 'The plaintiff, as owner of land abutting on a navigable river was entitled to a right of access to the stream along his whole front- age, and not merely at the spot where his jetty projected.' 'The Duke had the land constituting the residence Montagu House, with the court yard, offices, and garden at- tached and had annexed and appurtenant to it the jetty or land- ing place, and although he had not the bed of the river he had the easement, or right, or privilege by whatever name it may be called, of the flow of the river Thames in its natural chan- nel up to his garden wall. He had one entire thing! He had not the land alone, or the jetty alone, or the right of the flow of the water of the river alone; he had all combined together ; and if any one had done an act injurious to the land or the jetty, or to the right to the flow of the water, he would have had a legal right of action against him. If the owner of the soil of the bed of the river, or anyone else had constructed an embank- ment and roadway upon the jetty or landing place, so as to shut out the Duke's premises from the river, he could have maintained an action against him for two causes: first, for des- troying his jetty; secondly, for depriving him of his riparian
right.' . 'The property of the plaintiff in error in this case was what is commonly called riparian property. The meaning of that is, that it had a water frontage. The mean- ing of its having a water frontage was this, that it had a right to the undisturbed flow of the river, which passed along the whole frontage of the property in the form in which it had been formerly accustomed to pass, that being the state of
23
things, this water frontage with these rights which the plaintiff in error possessed, were taken for the purposes of the act. Be- yond all doubt, the water right was a property belonging to the plaintiff, for which compensation was to be made!'"
And the writer goes on to cite other English cases to the same effect, and states that the American rule as determined by the Supreme Court of the United States, is in full accord with the principles laid down in the English cases cited, follow- ing this assertion with references to a great number of adjudi- cated cases, and concludes as follows: The conclusion is, that these decisions of the highest tribunals both in England and in this country have wholly subverted the rule laid down in the Stevens case, and affirmed that the shore owner has such a vested right to have the water flow to his ripa as he cannot be divested of by the State without the exercise of eminent do- main.
I am bound to admit, however, that the decision in the case of the Mayor and Council of the City of Hoboken vs Pennsyl- vania R. R. Co. (124 U. S., P. 656) is rather disconcerting to this view. The syllabus in this case holds, generally, that:
The act of March 31, 1869, is not objectionable under the State Constitution on account of its title; that the interest of the State in the riparian lands is a distinct and separate estate, and that a State's grantee holds the exclusive title against the adverse claim of right of way by a municipality by virture of an original dedication to high water mark.
Although there have been cases in New Jersey where application has been made to the State by a non-riparian owner. the question of the equity of the riparian owner has never been passed on by the Riparian Commission, for the reason that in some of these cases, the application has been made with the consent of the riparian owner, and in others the riparian owner has, before the expiration of the six months, availed himself of his right and presented his own application, so that the question of the rights or equity of the shore owner has not arisen.
Honorables Abraham Browning, Cortland Parker and George M. Robeson, agreed practically that the State had the right to dispose of these lands under water without regard to the owner of the upland in front of which they were situated; and yet, running through the reasoning and decision of all these men is a recognition that, up to 1851, the shore owner,
24
under what was called the "common law", had certain cour- tesies or rights, and these rights have been recognized in the decisions of the courts to the extent that any reclamation of lands under water between high and low water line, made pre- vious to the year 1869, vested the title to such lands in the ri- parian owner.
This custom or principle was affirmed in the great case of the Trustees of the School Fund and the Lehigh Valley Rail- road vs. The Central Railroad Company of New Jersey, in the following manner:
About the year 1863, the Central Railroad Company bought the fringe of the shore, or a strip three feet in width, all the way from about where the old abattoir stood on the shore at Lafayette around, to and across the mouth of Mill Creek, to about Warren Street in Jersey City, and under this ownership, as well as under a claim of right through its charter proceeded to construct, by building on a trestle, a railroad which is still the line of the Central Railroad, to the Central Railroad Ferry, and also proceeded to fill in a considerable part of what is known as the South Cove or Communipaw Bay.
In 1865, the Commission appointed to examine into the subject of riparian rights and to submit maps, submitted a map showing certain basins and lines for improvements in these same waters. The Central Railroad Company, disregarding these lines, proceeded with improvements and developed and filled in large areas.
In 1872 the Riparian Commission, by direction of the Leg- islature, granted to the New Jersey West Line Railroad Com- pany, to whose title and charter the Lehigh Valley Railroad Company had succeeded, a block of land some five hundred feet in width by about four thousand feet in length, running through the heart or axis of the lands under water afterward granted to the Central Railroad Company, about one-half the area of which had been, up to that time, bulkheaded and filled in by the Central Railroad Company.
Now this block of land five hundred feet wide by four thousand feet long, was in front of upland to which the New Jersey West Line Railroad Company neither had, nor claimed to have, any title, but was granted on the assumption that the State was the absolute owner of its lands under water, and without the courtesy of the six months' notice provided for in
25
the act of 1869; but I have an impression that the rights or claims of the Van Horne family, who owned most of the upland in front of which this land under water lay, were satisfied or quieted.
The Central Railroad Company, which had been requested and pressed by the State authorities to either desist from filling in these lands under water or to apply to the State for a prop- er grant for the same, did apply in 1874, and a grant was made in that year to the Central Railroad Company for $300,000, of all the lands under water in Communipaw Cove and New York Bay, as well as in some other waters of minor importance, in front of upland owned by the Company, with the exception of the land granted to the New Jersey West Line Railroad Com- pany and some others not germane to this phase of the question.
No attempt was made by the New Jersey West Line Rail- road Company to occupy or use the land and land under water granted by the State in 1872; but the Lehigh Valley Railroad Company, having succeeded to the rights of the New Jersey West Line Railroad Company, with the cooperation of the Trustees for the support of Public Schools, who were interested in the question, proceeded, by suit in ejectment, to establish its title to the land in question, and succeeded in this suit as to the entire area covered by the grant, with the exception of a very small portion lying between the original high water line, which had been filled in by the Central Railroad Company previous to the year 1869; thus affirming, in a case of stupen- dous importance and financial magnitude, the principle above set down that previous to 1869 reclamations made between the high and low water line became the property of the adjacent shore owner, and also that the State was the absolute owner of the lands under water and could, with the possible limitations above suggested, convey the same to anyone, regardless of the shore or upland owner.
There is an idea or an impression prevalent, even among lawyers, that adverse possession does not operate or run against the State ; that is to say, that the rule that ordinarily applies to an individual having had adverse possession of lands for the period of twenty years, vests title to the same in such possessor, does not apply to the State of New Jersey. This is, however, not true.
A general statute of the State of New Jersey, which will
26
be found in No. 2 of the Revision, page 1978, Section 27, pro- vides :
"That no person or persons, bodies politic or corporate, shall be sued or impleaded by the State of New Jersey for any lands, tenements or hereditaments, or for any rents, revenues, issues or profits thereof, but within twenty years after the right, title or cause of action to the same accrue, and not after."
But this fact, while it would, no doubt, vest title in lands filled in below high water line, if the State did not assert its title within twenty years of the time the encroachment was made, the rights of the State to the lands under water in front of the same would not in any way be impaired or changed.
So that the practice, founded on law and subsequent legis- lation and decisions of the court is, that a person owning land fronting on the navigable water at mean high tide is entitled to apply to the properly constituted agent of the State for title to the lands under water out to such line or lines for improve- ments as may be fixed by the State through these agents, and thereafter to attach all the rights and emoluments incident to the navigable waters in question, such as the right to fill in and build upon and exercise the ordinary property rights as well as to collect wharfage and such rights as are incident to navigation.
The practical application of these doctrines and of the ad- ministration of these interests of the State is that the Commis- sion or authority having it in charge make an examination of the waters under contemplation and decide where the line for solid filling and the line for piers may be placed, which shall at once make the shore attractive and useful for commercial de- velopment and convenient of approach by vessels, and at the same time conserve and not encroach upon or interfere with the general navigation by the public of the waters in question.
Upon receipt of an application for such water rights by the owner of the shore or ripa (and in the case of a non-riparian owner the proceeding is only delayed six months), the Commis- sion having previously fixed the lines above referred to and filed a map showing the same, in the office of the Secretary of State, proceeds to acquaint itself with the value of the lands in question, or rather, to fix such a price as will adequately com- pensate the State for its equity in these lands, at the same time seeking not to embarrass or discourage the location of com- mercial industries or enterprises desiring the rights.
2 7
When this price has been fixed and agreed to by the appli- cant, the question of his title is submitted to the legal advisor of the board and upon approval of the same a description and formal grant conveying the rights of the State is prepared, is signed by the Commissioners, is submitted to the Governor for his consideration and signature, if approved, has then the State Seal attached and attested by the Secretary of State, and is then ready for delivery upon receipt of the consideration. This consideration, when received, is paid into the State Treasury, and is then invested and the proceeds devoted to the support of free public schools.
A number of interesting questions arise in the administra- tion of this trust, which, while perhaps of particular interest to the legal profession, are of interest to every thoughtful mind, as a part of the administration of the great water front of our county and State.
The question as to the location and direction the lines of these lands under water shall take is an interesting one: what is known as the Massachusetts Rule has been generally followed in this particular, and, briefly stated, it is that where a shore line is continuously straight, or practically so, for any consid- erable distance, the lines of the lands under water are said to run at right angles to this shore line, and the only limitation to this principle is, how much of the shore shall be considered in the application of this rule.
In the practice in our own tide waters, before the creation of the Riparian Commission, a shore owner at Edgewater in Bergen County, in 1866 procured from the freeholders, under the Wharf Act of 1851, a license to build a dock, and the de- scription in this license illustrates one of the phases of this branch of the subject:
The license in question was issued under the act of 1851, and the description is as follows:
"License to build such dock, wharf or pier in front of his said lands, in the Township of Hackensack, in the County of Bergen, beyond the limits of ordinary low water mark in Hud- son River:
"Beginning at the northeasterly corner of the lands owned by the licensee, where the northerly boundary line of said land terminates at low water mark on said river" (you will note the presumption is that the licensee already had the right to go out to low water mark) "and running thence easterly and perpen-
28
dicular to the stream or currents of said river about 500 feet"; (it is not difficult to apprehend the confusion that would arise from making all of the grants along an ordinary river perpen- dicular to the stream or currents of the same); "thence south- erly along and parallel with said stream or current, about 100 feet; thence westerly, on a line perpendicular to said stream or current, about 500 feet to low water mark; thence along low water mark northerly 100 feet to the place of beginning."
And this license is signed by G. G. Ackerman, Director, and witnessed by M. M. Wygant, Clerk, and is proved by the said clerk before Manning M. Knapp, Master in Chancery, March 12th, 1866.
But when the Riparian Commission, in 1869, fixed exterior lines for solid filling and piers, they took in a much longer section of shore front than that contemplated by the free- holders, and the consequence was that the line for solid filling fixed for the section considered by the Riparian Commissioners, was not parallel to the smaller section previously considered by the freeholders, and a line at right angles to the line fixed by the Commission was not parallel to or coincident with the line fixed by the freeholders for the license in question.
The licensee in this case, after 1869, when the Wharf Act was repealed as to the Hudson River, continued the work of constructing this dock for which he had the license in 1866, and was stopped by the State of New Jersey on the ground that his rights had expired, or had become forfeited under the repeal of the act, and he was obliged to take out the rights, to con- tinue his work, from the State, which he did in 1875, and when this grant was made by the State, through its Riparian Com- missioners, it was made on the broader principle of lines per- pendicular to an exterior line that should parallel a greater ex- tent of shore front than that contemplated by the freeholders in 1865; the result being that a section of land under water, in the form of a trapezoid, was left ungranted by the State, and was afterwards added to the grant made in 1875.
Again, the Massachusetts Rule provides that where there is a pronounced cove, with jutting capes on either end, causing a less frontage on the exterior line than on the shore, it be- comes necessary to apportion the frontage on the exterior line proportionally to the frontage on the shore ; and a pronounced example of this condition is the New York Bay shore, between Caven Point and Constable's Hook.
29
The principle laid down was equitable and in our State be- came legal, for in a suit in ejectment to try the question of title to lands on the Passaic River, over which there was a conflict arising, from a difference of opinion as to the direction these lines should take, the rule above set forth was affirmed by the court in the case of the Delaware, Lockawanna & Western Rail- road Company. vs. Cornelius Hannon, in 1875, reported in 8th Vroom, p. 276.
Still another development or modification of this question of the bounds of the lands under water arises from the legal proposition that accretions made and joining to the upland in- ure to and become the property of the owner of such upland ; but the direction of the side lines of such upland owner across this accretion to the new high water line was the subject of dispute until adjudicated upon by the courts.
One can readily see, in the case of an owner fronting on the shore, the side lines of whose land approach the shore rap- idly converging and leaving but a limited frontage on the high water line, if this high water line is extended by land formed in front by accretion, that the continuation in straight lines of these original land lines might very easily meet before the new high water line was reached and the owner be deprived of any frontage whatever on the water; or on the other hand, where these land lines in question diverge as they approach the shore, to continue them in straight lines would unduly increase the frontage of such owner by the time they reached the water.
Need help finding more records? Try our genealogical records directory which has more than 1 million sources to help you more easily locate the available records.