USA > New Jersey > Hudson County > Paper read before the historical society of Hudson County. 1908 > Part 15
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Another very interesting development of the law of accre- tions was very thoroughly shown in a case some twenty-five years ago in which the owners or successors in title of the Highlands of Navesink sought to eject the Central Railroad Company and others from the occupation and use of the pres- ent strip of land running between the ocean and the Shrews- bury River, between Sandy Hook and Long Branch.
The title to the locality now known as the Highlands, just south of Sandy Hook in Monmouth County, on which the con- spicuous Twin Light Houses stand, was vested in the Harts- horne family in 1761, and the Highlands were divided into two equal parts by a line running very nearly east and west. This partition line began at a point back in the country and came down in very nearly a straight line by definite courses and dis- tances to the "sea".
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About twenty-five years ago the successors to the Harts- horne title began suit to eject the Central Railroad Company and others from the use and occupation of the strip of land running between the ocean and the river, in front of the Highlands, on the ground that their title ran to the "sea". Their claim was that their title went across the river and across this strip of sand to the present ocean or "sea".
An examination of the very ancient maps in the possession of the government in the Congressional Library at Washington, as well as the reading of history, disclosed the fact that at the time of this deed in 1761, the "sea" did actually wash up against the foot of the Highlands; there was no strip of sand intervening between the river and the "sea" and Sandy Hook joined on the Highlands, at what would be the northeast part of the same. The surveys also demonstrated that the distance measured from the original starting point ended at the foot of the Highlands, west of the River, and did not carry across the river to the present shore of the ocean. The government maps and history also showed that this strip of sand had grown up and joined by accretion to the extension northward of Long Branch and Monmouth Beach, and after a very carefully con- ducted suit, in which the late Chancellor Williamson and Mr. Robert W. De Forrest appeared for the Railroad Company, and the present Judge William H. Vredenbergh appeared for the successors in title to the Hartshorne family, the courts de- cided that the lands in question were formed by accretion, joining on to the land to the south, and the Railroad Company and others, having taken title through this source, were right- fully in possession.
Dr. Cornelius Brett, in his very valuable paper read before this Society March 27th, 1908, entitled "The Dutch Settle- ments in Hudson County", laying the foundation for a series of historical papers, on page 3, says:
"On certain old maps, immediately after Verrazano's voy- age in 1527, there began to appear the name of 'Norumbega.' The maps were, of course, rude suggestions of the outlines of sea and shore, without any attempt at measurement or triangu- lation."
I have with me this evening a fac simile reproduction of a map of this locality, made about the year 1615, which agrees almost exactly with Dr. Brett's description of the map of 1527,
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and where it differs, it is a tribute to the Doctor's delightfully literary and yet discriminating reading and knowledge of maps.
The Doctor says of the maps of 1527:
"The maps were of course, rude suggestions of the out- lines of sea and shore, without any attempt at measurement or triangulation."
This was literally true and describes the map of 1615 I have before me, except in this map, nearly one hundred years later, some attempt has been made to suggest measurement and triangulation, for the degrees of latitude are shown.
The writer of this paper has in his possession copies he made in 1882, at the Congressional Library in Washington, of maps of this locality made in 1680 and 1776, which, with the map of 1615, form an interesting exhibit of the progress of cartography in one hundred and sixty years. These maps show plainly that, at the time there was no strip of sand, as now, forming the Shrewsbury River, but that the sea or ocean washed up against the Highlands, and the inlet described by Cooper is very clearly snown on the interesting United States Coast Survey Chart, published about the year 1844.
I know of no more attractive and truthful description of this locality than that contained in Fenimore Cooper's "The Water Witch". He is leading up to the dramatic disappear- ance of the beautiful niece of Alderman Van Beverout. The worthy Alderman saw no sin in pushing commerce a step be- yond the limits of the law, and after a bargaining conference with Master Seadrift, of the Brigantine Water Witch, who seemed to divide his time between smuggling and love-making, the niece disappeared. Shortly afterward, during a storm, the Water Witch also disappeared, and the gallant English cap- tain, Ludlow, of her Majesty, Queen Anne's Frigate Coquette, in love with the niece as well, was much puzzled to account for her disappearance. He found, upon sounding the inlet the next day, that there were two fathoms of water at high tide, thus explaining the disappearance of the Water Witch.
Cooper's description of this locality, however, agrees so closely with the conditions of the coast in his day, as shown by the United States government charts, I am impressed with the thought that the graceful author used them as the mise en scene for his story of happenings back in good Queen Anne's time-he says:
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"A happy mixture of land and water, seen by a bright moon, and beneath the sky of the fortieth degree of latitude, cannot fail to make a pleasing picture. Such was the landscape which the reader must now endeavor to present to his mind.
"The wide estuary of Raritan is shut in from the winds and billows of the open sea by a long, low, and narrow cape, or point, which, by a medley of the Dutch and English lan- guages, that is by no means rare in the names of places that lie within the former territories of the united provinces of Hol- land, is known by the name of Sandy Hook. This tongue of land appears to have been made by the unremitting and oppos- ing actions of the waves on one side, and the currents of the different rivers that empty their waters into the bay, on the other. It is commonly connected with the low coast of New Jersey, to the south ; but there are periods of many years in succession, during which there exists an inlet from the sea, be- tween what may be termed the inner end of the cape and the mainland. During these periods, Sandy Hook, of course, be- comes an island. Such was the fact at the time of which it is our business to write."
On the subject of maps, I want here to pay tribute to the accuracy of the maps of the United States Coast and Geodetic Survey. It would require a paper in itself to give any idea of the devotion and fidelity of the United States Government Engineers to this vitally important work from the selection and measurement of the base line, an operation as delicate as the most delicate surgical operation; the determination of the Pri- mary triangulation, with its development into the Secondary and Tertiary ; to the filling in of the minutest details, the ex- tent and enormous importance of the Hydrographic work to the commerce of the world, as well as to the lives of the mil- lions of human beings coming to and leaving our shores, is too little understood and therefore too little appreciated; but I want, here, after an acquaintance with and professional use of the Coast Survey Charts of our Government, extending over thirty years, to testify that I have found them minutely and absolutely accurate and reliable; and I regard the United States Coast Survey Department second to none in importance in its administration of the affairs of our great nation.
An interesting decision affecting the law of accretion was given in what is known as the "Shriver Case".
On July 17th, 1897, William Shriver made application, in due form, and complied with all the requirements of the board in furnishing an accurate survey of the lands in front of which
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the riparian rights were desired, abstract of title, &c., and after consideration of the application and action thereon, the board on August 31st, 1897, executed the grant and delivered the same. The grant in question covered a strip of land under water the width of the lot owned by Shriver, and within the side lines of the same, extended from the high water line as it existed at the time of the grant, about one thousand feet into the Atlantic Ocean, said grant stating that it was conditional upon Shriver being the riparian owner.
Subsequent to the time of the grant by the State the action of the ocean was such as to make up or form land in front of the high water line as it existed at the time of the grant, and upon Shriver taking possession of this accretion, the Ocean City Association, in the Supreme Court, brought suit in eject- ment against Shriver to recover possession of the land, and judgment was rendered against said association. Upon the case being carried to the Court of Errors and Appeals, however, the judgment of the Supreme Court was reversed and judgment given the Ocean City Association.
The following is a brief statement of the case as presented to the Courts:
The plaintiff, the Ocean City Association, in 1880, pur- chased a tract containing several thousand acres of wholly un- improved land, known as Pecks Beach, in Cape May County, and lying between the Atlantic Ocean and Great Egg Harbor Bay. On this tract a summer resort, known as Ocean City, has grown up. In 1883 the association caused a map to be made, showing a part of the above tract laid out into streets, and blocks divided into lots. On this map Ocean Avenue was delineated, practically parallel with and distant some 250 feet inland from the high water line of the Atlantic Ocean, and the space so intervening was undivided. By deed bearing date October 29th, 1884, the Association conveyed lot No. 849 to one Henry B. Howell. This lot is on the westerly side of Ocean Avenue, between 9th and 10th Streets. It had between it and the Atlantic Ocean, Ocean Avenue and the strip of undivided beach above referred to, and was simply described as a lot 50 x 135, lying between Ocean Avenue on the east and a 15 foot alley on the west. Howell, by deed dated April 21, 1895, con- veyed this lot by the same description to William Shriver, the defendant in this suit. There was evidence that the ocean,
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after 1880, gradually worked inland, carrying away the undi- vided beach and Ocean Avenue, or the greater part of said Avenue in front of the lot in question, and that in 1895 the or- dinary high water came up to this lot. In 1897 the ocean began to recede, and the grant of the Riparian Commissioners to Shriver in 1897 indicates a high water line in Ocean Avenue and west of the centre line of the same. The grant by the Riparian Commissioners to William Shriver of August 3rd, 1897, covered in terms a tract of land under water, at mean high tide, the width of his lot, and within the side lines of the same, extended from the high water line as it existed at the time of the grant 985 feet into the Atlantic Ocean to the Commissioners' exterior line.
The syllabus of the opinion of the Court of Errors and Appeals, written by Depue, C. J., and dissented from by Magie, Ch., and Dixon and Collins, J. J., is as follows:
"Held that if the plaintiff (The Ocean City Association) was the owner of the land on the line of ordinary high water in front of this lot, at the time of its deed to defendant's grantor, it is the owner of the land obtained by accretion, since the ri- parian owner is entitled to all alluvial increase, and defendant did not become the owner of the land conveyed by the riparian grant, and therefore, an instruction that, if the high water line in 1895 advanced to this lot, it became a riparian lot, and what- ever alluvial increase the ocean, in its advance, brought to and in front of the lot belongs to the defendant was erroneous."
From the reasoning of the Court in this case, it would seem that if land is carried away by erosion of the ocean, the title to the land so carried away is not lost, but if the ocean recedes, and the land reappears and the original ownership is capable of indentification, the subject does not lose his property.
And this principle is set forth in the famous treatise "de jure maris et brachiorum ejusdem," ascribed to Lord Chief Justice Hale, the acknowledged authority on this branch of the law, in the following quaint language:
"If a subject hath land adjoining the sea, and the violence of the sea swallow it up, but so that there be reasonable marks to continue the notice of it, or though the marks be defaced, yet if by situation and extent of quantity and bounding upon the firm land, the same can be known, though the sea leave this land again, or it be by art or industry regained, the subject doth not lose his propriety."
Under this case and adjudication it is of importance for us
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all, in acquiring riparian rights, either as adjuncts to our bus- iness enterprises or as part of our sea-shore homes, to learn what the position or location of the high water line was at the time our title originated.
A very ancient exercise of the ownership of the State over these lands under water took the form of granting to persons the right of fishery, and as early as 1783 this right was exercised by the State and has continued down to the present time. I believe such a fishery right existed in front of the Van Buskirk Farm on New York Bay at Constable's Hook.
These fishery rights consisted of a grant of the right to use the shore between high water mark and low water mark for the purpose of drawing seines or nets that were used for the best known and popular purpose of catching shad, and those who have witnessed the extensive operations of the shad fish- eries on the Delaware will have some idea of the extent and value of these rights. These rights are held paramount to the rights of the upland owner to acquire the land under water for commercial purposes and must be reckoned with or extinguished before they can be disregarded.
These rights are not so valuable now as they were formerly, for the reason that they are not so productive, the shad being not nearly so plentiful and in some cases having almost disap- peared. It will be a surprise to most of us that the catching of whales was ever a New Jersey industry, and nothing indi- cates in so marked a way the natural changes that take place in the course of years as a reference to an act passed by the As- sembly of New Jersey in 1693, which recites as follows:
"Whalery in the Delaware River has been in so great a measure invaded by strangers and foreigners" &c and enacting.
"That all persons now residing within the precincts of this province or within the province of Pennsylvania who shall kill or bring on shore any whale or whales within Delaware Bay or elsewhere within the boundaries of this Government, to pay one-tenth of the oyl to the Governor."
In the very interesting paper read by Mr. Daniel Van Winkle, President of this Society, under the title "The Dutch Under English Rule, 1674-1775", reference is made on page 12, as follows:
"Van Vorst's possessions were separated from the main-' land by the Mill Creek: a stream of goodly size that wound its
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tortuous way from the bay at about the present intersection of Johnston Avenue and Phillips Street, and thence in a northerly direction crossing present Grand Street, about 150 feet east of Pacific Avenue, continuing thence still northerly through the marsh to the Point of Rocks, the present site of the Pennsyl- vania Railroad roundhouse, and along the base of the hill, around back of Aharsimus Cove, meeting the waters of a creek emptying into the bay at Hoboken.
"This stream was of great advantage to the old Dutch res- idents for readily transporting their farm products to the markets of New York. A favorite landing place was at New- ark Avenue where the West Shore freighthouse now stands, and also at the bridge that crossed the stream near Prior's Mill, that stood about the present junction of Freemont Street and Railroad Avenue. Perhaps we may better realize the importance of this stream by inserting the following ad. :
" 'IIth October, 1770, to be sold .- A large white wood periagua 5 years old, now in good order, with a new suit of sails. She is 32 feet long and 7 feet wide. Suitable for a miller or farmer. She now lies at Prior's Mill, in Bergen, where any person may view her.' "
This graphic and interesting description leaves in our minds a delightful picture of a quiet stream that rose and fell with the tides of New York Bay and Hudson River, washing the shores of Communipaw and "Mill Creek John Van Horn's farm" and on whose bosom floated the commerce of that an- cient time, stopping at the busy shipping ports of Prior's Mill and others along its line; but the facts to-day are that the Creek in question is nearly obliterated. Some sections of it remain as the axis of a swamp, but the greater part of it has been filled in and is covered by buildings either for dwelling or commercial uses.
Still, the title of the State to the lands originally flowed by this ancient stream, so graphically portrayed, remains; and even to-day, when property is transferred, any part of which occupies the site of the now obliterated Mill Creek,-this"stream of goodly size",-it is necesary, before the title companies will guarantee and insure the title, for the State to release, by deed signed by the Governor and sealed with the Great Seal of the State, attested by the Secretary of State, its ancient rights in the premises.
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It must have been with some surprise, and, it may be, in- dignation, that our neigbors, the Stratfords, in the course of the formation of a company in the development of their im- portant paper industry on Cornelison Avenue, just south of Montgomery Street, as recently as 1905, found it necesary to secure the State's title to the lands anciently flowed by Oyster Creek, which lazily meandered, a tributary to Mill Creek. We can hardly imagine such a thing as taking oysters from this locality.
In considering the development of the water front of our County, we shall find that our early legislators found it neces- sary to remonstrate and protest against the actions and attitude of our neighbors across the Hudson. This question is not a sentimental one as regards the interest and history of Hudson County's water front:
Previous to August 11th, 1880, the matter of fixing exter- ior lines for docks, etc., on the waters of New York Bay and waters tributary thereto, was left largely in the hands of the municipalities interested, and resulted in encroachments on the waterways that were viewed with alarm by students of the subject. I think, without doubt, both New York and New Jersey were open to criticism ; but in a report made by a com- mission appointed by our Legislature in 1848 to ascertain the extent and value of the lands under water in Hudson County, reference is made to the boundary line agreement of 1834, as follows:
"The boundary line between the States of New York and New Jersey, . . . shall be the middle of said river," &c. "Since the date of this agreement, very extensive alterations of the New York shore, &c., have been made, &c., and yet larger ex- tensions are in serious agitation. It is respectfully submitted that measures should be adopted to ascertain and locate this boundary line by survey monuments, &c., before it is involved in incertitude and possible dispute," &c.
This suggestion was not adopted and the very result pre- dicted followed. It was not until 1888, forty years after, that the boundary line was definitely fixed, and it was necessary to resurrect and reconstruct the maps of the shore line of 1834 in order properly to do so.
This report of the Commissioners in 1848 is a most inter- esting one and will repay careful reading in its entirety; but I will give some extracts which I think will interest you:
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The report states that the Commissioners met in Jersey City on June 6th, 1848, and at subsequent times; that they had a map prepared to exhibit the water line of the County of Hud- son; that the map was prepared "in a manner entirely satis- factory by Andrew Clerk, Esq., of Jersey City;" and a series of thirteen written questions were submitted to the corporation of Jersey City and others, "and full and explicit replies ob- tained."
The Commissioners make graceful acknowledgment in the following language:
"The Commissioners desire to make grateful acknowledg- ment for these and other facilities, and, indeed, for a kind and courteous reception on the part of all with whom they came in contact in the prosecution of their enquiries."
Then follows an interesting description of the shore line of Hudson County and a reference to the ancient grants and laws affecting the subject.
I shall refer here to only a few of the questions and an- swers above referred to:
"Fourth: To what purpose or uses are or may the lands between high water line and the channel or New York line, be applied?"
Answer by Jersey City:
"Some of the lands below high water line on the east side of Hudson County, are occupied for piers and wharves; a por- tion of said lands have been reclaimed and applied to streets, building lots, &c. ; nearly all the flats on the east side of the County may be advantageously applied to the same and kindred purposes."
"Sixth: To what uses are such lands applied which lie south of Jersey City, and to what further uses may they be ap- plied, if reclaimed, under the authority of the State, now and prospectively?"
Answer by Jersey City :
"The lands flowed by the tides south of Jersey City, are all natural oyster beds, and furnish subsistence to a large num- ber of fishermen. If reclaimed, these lands would be valuable as building lots."
"Eighth: How much of the lands formerly covered by water has been reclaimed within the limits of Jersey City? how reclaimed and to what uses put?"
Answer by Jersey City :
"About ten acres of land, formerly covered by water, have been reclaimed in Jersey City, by filling in with earth to raise
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it above high water; it is used for streets and building lots, and is worth at least two hundred thousand dollars. The entire profits of the speculation have been received by the "Associates of the Jersey Company," who, as pretended owners, either re- claimed the land and then sold it in building lots to others; or as in most cases, sold . .. the submerged land in its natural State, to be filled up by the purchaser. A small portion of the reclaimed land is held by lessees of the Associates for a coal depot and landing place for the Cunard steamers."
"Tenth: What was the extent of the projected improve- ment north of Jersey City?"
Answer by Jersey City :
"The projected 'improvement' so called, is believed to embrace at least twelve acres."
These answers will cause us to smile as we contemplate the present development of the water front of our County.
This same series of questions was propounded to H. South- mayd, Esquire, and I give his answer to the eighth question, as it gives so intelligent a description of the conditions in lower Jersey City at that time :
"Question 8th : How much of the lands formerly covered by water has been reclaimed within the limits of Jersey City? How reclaimed, and to what uses put?"
"'Answer: Jersey City, in the year 1804, contained seventy- three acres, three rods and thirty links, as will appear by a map of Richard Outwater, made about that time. When the Associates bought, Mangin's Map was made and laid out all of Jersey City, containing seventy three acres as before stated, including twenty-three acres of land under water unreclaimed, lying around the city. Eleven acres of this twenty-three are still under water and unreclaimed. Nearly four acres of the land reclaimed have been reclaimed by the New Jersey Rail- road for their depot, and for the depot of the Hudson River Railroad Company, for which they paid but a nominal considera- tion to the Associates of the Jersey Company, nearly two acres, or a block of thirty-two lots, by the Morris Canal Company, also paying a nominal consideration-the remainder being one hun- dred and four lots, or about six and a half acres by the Associ- ates of the Jersey Company and their grantees. Besides this, the Associates, thirty or forty years since, reclaimed a strip of land east of Hudson Street, of about twenty feet wide, be- ginning at Essex Street, and extending to York, about one thousand feet; and recently the land now used by the Cunard Line of Mail Steamers between Jersey City and Liverpool, was reclaimed by the Assosiates, containing about thirty lots, exclusive of wharves and streets. The uses for which the property thus reclaimed has been put, have been stated, to
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