Petition for Writ of Certiorari — Bay Head Improvement Ass'n v. Matthews

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ViliLe - Supra ik

88-1799

FILED

MAY 2 1984

No. 83- ALEXANDER L. STEVAS.

IN THE

Supreme Court of the United States

OCTOBER TERM, 1983

BAY HEAD IMPROVEMENT ASSOCIATION,

Petitioner,

Vv.

VIRGINIA MATTHEWS and STANLEY VAN NESS,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF NEW JERSEY

CLYDE A. SZUCH

Pitney, Hardin, Kipp & Szuch

163 Madison Avenue, CN 1945

Morristown, New Jersey 07960

(201) 267-3333

HAROLD A. SCHUMAN

Schuman & Butz

1130 Hooper Avenue

Toms River, New Jersey 08753

(201) 349-4400

Attorneys for Petitioner,

Bay Head Improvement Association

On the Brief:

CLYDE A. SZUCH

PATRICIA A. PICKREL

May 2, 1984

Questions Presented For Review

1. May a state court, consistently with the Fifth and Four-

teenth Amendments, without compensation, expand the “public

trust doctrine” to grant the general public a right of “recrea-

tional use” of dry sand beach property when the court and the

parties below agreed that the state had previously protected the

property as private?

2. May a state court deprive private property of the pro-

tections of the Fifth and Fourteenth Amendments by holding, as

a matter of first impression, that the property is “quasi-public”

because it is owned or leased by a voluntary non-profit associa-

tion whose members have contracted for the joint maintenance,

supervision, use and policing of its and their property and which,

like other non-profit groups, has received some benefits from the

municipality?’

‘The petitioner, Bay Head Improvement Association, has no corporate

affiliates. The parties to the proceedings in the Supreme Court of New Jersey,

in addition to Petitioner and Respondents, were: Philip D. Reed, Jr.; Paul E.

Parker and Catherine Parker, H/W; James L. Tyson and David O. Tyson;

John Bowman Delaney; Robert L. Johnson and Roberta Johnson, H/W; Helen

Loblein; Martha L.Van Emburgh; H. Corbin Day; Carol C. Schmitz; Benja-

min Barnett and Catherine, H/W; Katherine W. Fortenbaugh; George P.

Egbert; Lester D. Egbert; George O. Nodyne; Andrew H. Campbell; Joseph

Shelby and Miriam Rohrer Shelby; Bruce B. Swenson and »'ancy T. Swenson,

H/W; Ferdinand W. Roebling, III; Dorothy Anderson and Clifford O.

Anderson; Estate of Eileen Rucker; Mary G. Hill; Robert S. Corbin; John A.

Brown; George R. Schultz; Edward McGrath and Elizabeth McGrath, H/W;

Walter H. Brown and Catherine Brown, H/W; Alfred E. Johnson, Jr; Edward

F. and Joan Van Johnson, H/W; John Magee and Elizabeth Magee, H/W;

Frank J. O’Brien; Edith Wells Pardoe,; George H. and Estelle M. Sands, H/W;

Clyde A. Szuch; Joseph Decibus and Hazel Decibus, H/W; Frederick Mellor;

William De Bray and Vilma DeBray, H/W; Elizabeth M. Heath, F. W. Clark

and Lucille Clark, H/W; Henry Thuman; Elizabeth Matthews; Paul Samborn;

Howard McClintic; Donald Lusardi; Henry C. Day; M. Dickinson; Margaret

B. Dunn; Dick Zuver and Jean Zuver, H/W; Albert Robert Johnson; Andrew

Conte; Richard Otto and Judith Otto, H/W; Gordon A. Willspangh, Elizabeth

Hanus; Rebekah Collins; Maria A. Carmichael; Herbert J. Garmbow; Carolyn

L. Ottley; Frank E. Curran, Jr.; Darwin James, Jr; William H. Nimick, III;

Clark Estate; Marian R. Reichel; Lawrence Bathgate and Pamela Bathgate,

H/W; Ricardo Mestres; Beverly Robertson; William Spofford; Austin

Starkey; Henry Gibson; Henry Smith; Barr Elizabeth Loizeaux; Albert

Dittman; Tristina Johnson; Quail Hill Estates; Ash Association; Malvern C.

“*

Burroughs; Herb and Ann Draesel, H/W; Florence Eberhardt; Peter

Hausmann; Thomas Jones and Vera Jones, H/W; James W. Kelley; Morgan

Macom and Mary Macom, H/W; John F. Moore; Donald A. Pickering and

Dorothy Pickering, H/W: Elizabeth A. Strecch; Zorlas, James and Barbara,

H/W; Walter and Marion Braun, H/W; David and Shirley Gaesford, H/W;:

Herbgmarth-Taylor Ross and Amy Wright, H/W; Marx and Guiliana

Renzulli, H/W; Mrs. Paul Hay; Edward H. Hein; Harold L. Herbert; Robert

King; Herman Schmitz; Christine Wilder; Samuel B. Fortenbaugh, Jr.;

Gregory Gibson; Ann F. Mestres; Dorothy L. Corbin; Max Habernickel, III

and Gael S. Habernickel, H/W; J. Stuart Hill; Ricardo A. Mestres, Jr.; Anne

K. Nodyne and Elizabeth B. Reed.

iii

TABLE OF CONTENTS

PAGE

EE Se Ae aE i

EE iv

Reference to the Opinion Below....................... l

I l

Constitutional and Statutory Provisions ................ 2

EE ee 2

pS ra 2

ee 4

sy ale kc va'e'v'v's halve sees 5

The Opinion of the New Jersey Supreme Court ...... 6

meneune for tevamnme te Writ. ..........2............ 9

The Decision Below Raises Significant and Recurring

Constitutional Issues Affecting the Rights of Property

Owners and the Constitutional Reach of the Public

Ne eT ee ci awn os boc wen 9

Pyeeenery DOMOUNNOME 5s... ke... 9

The Property Owned by the Association and its

Members is Constitutionaiiy Protected Private

I Pe LE eA a ww icinpiahs e's bb ve doce a 12

ee oy kab si avsascbcrvacd 19

TABLE OF AUTHORITIES

PAGE

Cases:

Abbott v. Beth Israel Cemetery Ass’n., 13 N.J. 528, 100

Ri Se OEE aioe wks een aa aN ace 9n

Ackerman v. Shelp, 8 N.J.L. 125 (Sup. Ct. 1825) ....... 17n

Albright v. Cortright, 64 N.J.L. 330, 45 A. 634 (E.& A.

EPS ere cry eT a Te Tree 17n

Arnold v. Mundy, 6 N.J.L. 1 (Sup. Ct. 1821) .......... 7

Bailey v. Driscoll, 19 N.J. 363, 117 A.2d 265 (1955) .... 13m

Baker v. Normanoch Ass’n., 25 N.J. 407, 136 A.2d 645

is ROE Ore ee noe eT besarte ae 17n

Bell v. Gough, 23 N.J.L. 624 (E. & A. 1852) ........... 13n

Bergen County Sewer Authority v. Borough of Little

Ferry, 5 N.J. 548, 76 A.2d 680 (1950) ............--. 9n

Blundell v. Catterall, 106 Eng. Rep. 1190, 5 B. & Ald.

BAINES ooh wes kane caer ta times deeb nye es 12n

Borough of Neptune City v. Borough of Avon-by-the-

Sea, 61 N.J. 296, 294 A.2d 47 (1972) ............5.. 6, 15

Borough of Wildwood Crest v. Masciarella, 51 N.J. 352,

pO ie De. eee ee ee ee 13n

Burkhard v. H.I. Heinz Co., 71 N.J.L. 562, 60 A. 191 (E.

es eae ees ehar a mak ass aE? 13n

Camp Clearwater, Inc. v. Plock. 52 N.J. Super. 583, 146

A. 2d 527 (Ch. Div. 1958), aff'd, 59 N.J. Super. 1, 157

pee ee A ne Pee eee 17n

Department of Natural Resources v. Cropper, 274 Md.

p Be PS ere rr. ee 14n

Department of Natural Resources v. Ocean City, 274 Md.

eS eT . os | Se nae eee Tne eS. k a aes

Ettor v. Tacoma, 228 U.S. 148 (1913) ................

Fidelity Union Trust Co. v. Cochrane, 116 N.J. Eq. 190,

eo Ee ee ae eee

George Van Tassel’s Community Funeral Home, Inc. v.

Town of Bloomfield, 8 N.J. Super. 524, 73 A. 2d 636

1 ne be: £oinkk beh tiene ald s Peas Bk is

Gewirtz v. City of Long Beach, 69 Misc. 2d 763, 330

N.Y.S. 2d 495 (Sup. Ct. 1972), aff'd, 45 A.D. 2d 841,

POORER Te RTE OED 6 cv ones bce wee cheek

Gion v. City of Santa Cruz, 2 Cal.3d 29, 465 P. 2d 50, 84

Ch. Feet See Ce ah ik eres rs es

Hughes v. Washington, 389 U.S. 290 (1967) ...........

Illinois Cent. R.R. v. Illinois, 146 U.S. 387 (1892) ......

In re Opinion of the Justices, 365 Mass. 681, 313 N.E. 2d

Pee AMON kl Hid Foe eC ee REED LY oe aes

Kaiser Aetna v. United States, 444 U.S. 164 (1979) .....

Leabo v. Leninski, 182 Conn. 611, 438 A. 2d 1153

(Feed bore. Sat chee Sea ee eh a

Lloyd Corp. v. Tanner, 407 U.S. 551 (1972) ...........

Loretto v. Teleprompter Manhattan CATV Corp., 458

as WE etc a etc eccre we cece ke

Lusard v. Curtis Point Property Owners Ass’.n, 86 N.J.

Be Fg OO ee Oe RE Pach bcviesihne suia ck ii arene

Mannillo v. Gorski, 54 N.J. 378, 255 A. 2d 258

Rss sit Gee te oa eS eer gg

Martin v. Waddell’s Lessee, 41 U.S. (16 Pet.) 367

GUN Ev bac scitead re eueeews Votes Deere sarue Bae

PAGE

Matthews v. Bay Head Improvement Ass'n, 95 N.J. 306,

O71 ABEDSS CGE i i osc kicas OOM ao passim

Mayor of Hoboken v. Pennsylvania R.R. Co., 124 US.

G56 Ch dn 04 BS Hie Oa ee ee 13

Moose Lodge No. 107 v. Irvis, 407 U.S. 163 (1972) ..... 16

O'Neill v. State Highway Dep’t., 50 N.J. 307, 235 A. 2d |

CLOGT Eo Oe Fa es hae in Cae METRE eo Cp 13

Plaza v. Flak, 7 N.J. 215,81 A. 2d 137 (1951) ......... 17n

Portsmouth Harbor Land & Hotel Co. v. United States,

LEE. Be ed Gy | ee en re eee eerie ae a 17n-

18n

Pruneyard Shopping Center v. Robins, 447 U.S. 74

CIs. « o:yb cw keepin as aan oe elds AUR < ees 17n

Rendell-Baker v. Kohn, 457 U.S. 830 (1982)........... 16

Robinson v. Ariyoshi, 441 F. Supp. 559 (D. Hawaii

DOF TE 5 kc civ arses SACRA RG SEEK EERE Re ee 18n

Ross v. Mayor of Edgewater, 115 N.J.L. 477, 180 A. 866

(Sup. Ct. 1935) aff'd per curiam, 116 N.J.L. 447, 184

A. 810 (E. & A.), cert. denied, 299 U.S. 543 (1936) ... 13

Schultz v. Wilson, 44 N.J. Super, 591, 131 A. 2d 415

(App. Div.), certif. denied, 24 N.J. 546, 133 A. 2d 595

1, Se eee oe Perey pg ear eee, eee l4n

Shively v. Bowlby, 152 U.S. 1 (1894) ................. 12n

Smith v. Bruce, 24i Ga. 133, 244S.E. 2d 559 (1978) .... 14n

Sotomura v. County of Hawaii, 460 F. Supp. 473 (D.

SURO BF TOE Bax. bi ave t ihc abe duds bor hdend Ve) l4n

Spiegle v. Borough of Beach Haven, 116 N.J. Super. 148,

281 A. 26 STEARNS, PETE) io ects Fe es 16,

17n

vil

PAGE

State v. Beach Co., 271 S.C. 425, 248 S.E. 2d 115

Uo cod ai BA hig Want Sinden sk Edd oie oko a ces l4n

State by McLean v. Lanza, 27 N.J. 516, 143 A. 2d 571

(1958), appeal dismissed, sub nom., Lanza v. New Jer-

i, a EN on ee ia voce ce bicaeens 9n

State by State Hwy. Comm'r. v. Maas & Waldstein Co..,

83 N.J. Super. 211, 199 A.2d 248 (App. Div. 1964) i3n-14n

State ex rel. Haman v. Fox, 100 Idaho 140, 594 P. 2d

PN eer ie reves eels bebe ci ce aes ban l4n

State ex rel. Thornton v. Hay, 254 Or. 584, 462 P. 2d 671

ae AR a hiatal oy. 04 du k'w-a we loch 6b ele ws du pate l4n

United States v. Causby, 328 U.S. 256 (1946) .......... 17n

United States v. Chandler-Dunbar Water Powe; “o., 229

Ries ee Pk LI HAGA Uo Sees Rade fads 18n

United States v. Chicago, M., St. P. & P. R. Co., 312

La eR NE OIes. a. oi Dette odauel ac. i8n

United States v. 50 Foot Right cf Way, 337 F.2d 956 (3d

GRE TR ae Seer ei ad fee ee peat es 14n,

18n

United States v. Kansas City Life Insurance Co., 339 US.

SP ald We 6h 6 hod eatotewherd cts Kaen bu. 18,

18n

United States v. Twin City Power Co., 350 U.S. 222

RES ¢ SBIGL ss. oN pa oe oh as ecm 8 one ONE Ond ss 18n

United States v. Willow River Power Co., 324 U.S. 499

ROUPN Sis a kk OP ERS Cees ates Cat ee re bea! 18n

Van Ness v. Borough of Deal, 78 N.J. 174, 393 A. 2d 571

SN ied Fie Ah Sa aes 5 6G 5 Oh aK aw oa be ROASTS 15

Webb's Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S.

ee ee ee ee eta 12

laa |

Vill

PAGE

Law Reviews:

Note, “Public Access to Beaches,” 22 Stanford L. Rev.

py enue Mae a a Lae RA OF OR AS 5 Soh oa 2p Ste lln,

l4n

Note, “Public Access to Beaches: Common Law Doc-

trines and Constitutional Challenges,” 48,N.Y.U.L.

NG 8 TRESS Peer ents a Ae eee ane lln,

15n

Note, “The Public Trust in Tidal Areas: A Sometimes

Submerged Traditional Doctrine,” 79 Yale L.J. 762

on Sean TELS Ss Foe ears etary a een L1n,

12n, 14n

Note, “Water Law—Public Trust Doctrine Bars Discrim-

inatory Fees to Non-Residents for Use of Municipal

Beaches,” 26 Rutgers L- Rev..180:(1972)............ 15n

Sax, “The Public Trust Doctrine in Natural Resource

Law: Effective Judicial Intervention,” 68 Mich. L. Rev.

Pe le as bc ncn te 481s Ske ee aS lin

Taylor, “The Seashore and the People,” 10 Cornell L.Q.

307 (1926) &. d. certs dentiad 299 455.543.4145 Gd +.<% 12n

Travis, “Assault on the Beaches: ‘Taking’ Public Recrea-

tional Rights to Private Property,’ 60 Boston L. Rev.

EE 285 0 bv es eee E eS Rarer os eae lin

Reports:

New Jersey Beach Access Study Commission, “Public

Access to the Oceanfront Beaches: A Report to the

Governor and Legislature of New Jersey” (1977) ..... 1Sn

New Jersey Department of Environmental Protection,

Public Access to the New Jersey Shore (1983) ....... 15n

PAGE

Statutes: Federal

16 US.C., § 1451 et seg. (West Supp. 1984) ........... l4n

Pease CEES a we BEAL en ee l4n

Judicial Code, 28 U.S.C., § 1257(3) (1966) ............ l

Statutes: State

N.J. Stat. Ann.

I a 8. ase 2 sk Saw due leew ees 16

ee Ch ig VL idole ay, 16

rk oo. ) a a ae a are es oe os 13n

eee oo U ) 13n

S 1 3pA-l-e8 sea. (West 1979) ................... 14n

§ 40:48-1(9)(West 967) -o5. See Set... 13n

ec cas sues ueecece 13n

he Bt Ree ey eee 13n

Open Lands Management Act, L. 1983 c. 560

RO ey IG F00 LOOsUtUUOna Neen, e.g Fate 15n

Regulations: Federal

Bie 8 eg 8) nen 15n

Regulations: State

N.J. Admin. Code

SM isa u evi abs Ga eaa she ss 14n

Rules:

i ay l

PAGE

Treatises:

Angell on Watercourses (Perkins Ed. 1869)............ 12n

Coulson and Forbes, The Law of Waters (2d Ed. 1902) . 12n

Hale, | De Jure Maris (Hargrave Ed. 1787) ......... i2n

Other Authorities:

Halsbury, Laws of England (1914) .................. i2n

Justinian, /nstitutes (Sandars Ed. 1876)............... 12n

oe | RE By - aee e e eeee 12n

U.S. CONST.:

RE 2s ois ke a waoace nat dwowe URS tues eee ra

15, 18

I i oa ia aan s w enhellt r a

12, 15, 18

IN THE

Supreme Court of the United States

OcTOBER TERM, 1983

Bay HEAD IMPROVEMENT ASSOCIATION,

Petitioner,

Vv.

VIRGINIA MATTHEWS AND STANLEY VAN NESS,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF NEW JERSEY

Reference to the Opinion Below

The decision of the Supreme Court of the State of New Jersey

was filed on February 2, 1984 and is reported at 95 N.J. 306,

471 A.2d 355 (1984). The opinion, which is reproduced in the

appendix to this petition, commencing with page la, constitutes

the judgment of the New Jersey Supreme Court, and nv other

judgment or mandate is required. N.~ Ct. R., R.2:11-3(b).

Jurisdictional Statement

The judgment of the Supreme Court below was entered on

February 2, 1984. This Court’s jurisdiction is invoked pursuant

to 28 U.S.C. § 1257(3)(1966), upon the grounds that the Peti-

tioner claims a right under the United States Constitution not to

have its property taken without due process of law and without

just compensation.

Constitutional and Statutory Provisions

The principal issues in this case are whether the application

and interpretation of the “public trust” doctrine by the court

below and its interpretation of the phrase “private property” vio-

late the Due Process Clause of the Fourteenth Amendment —

*.. nor shall any State deprive any person of . . . property, with-

out due process of law ...”; and the Taking Clause of the Fifth

Amendment — “... nor shall private property be taken for pub-

lic use, without just compensation.”

Statement of the Case

The result of the decision below is to take dry sand’ beach

front property owned by the Petitioner, a private non-profit

membership corporation of property owners, as well as property

owned by its members, and to open it to public use for recreation

without compensation. Although the decisional and statutory

law of New Jersey has always protected private ownership of dry

sand beachfront property, the New Jersey Supreme Court failed

to recognize that its judicially-ordered right of public recreation

on private property violates the Fourteenth and Fifth Amend-

ments. Instead, the court avoided the issue by finding that the

Petitioner, the Bay Head Improvement , ‘sociation (“‘Associa-

tion’) is “quasi-public.” In addition, the court ordered it to

assume the responsibilities of a public agency.

The Property Involved

The Borough of Bay Head is a residential community in

Ocean County, New Jersey, which, at the time of the decision

had a population of less than 6,500 during the summer months.

*The land “covered by tidal waters” is generally referred to as the “wet”

sand area or the area between the high tide and low tide marks. It was also, in

the British tracts, referred to as “the foreshore” and “the sea-shore.” The

beach landward of the high tide mark continuing to a seawall, bulk! ‘ad or

vegetation line is generally referred to as the “dry” sand area or the “uplands.”

See 3a n.1.

9a. The Bay Head beach, which borders the Atlantic Ocean, is

approximately 6,600 feet in length, and is cortiguous with a

public beach in an adjacent community. Sa, 7a.

During the nineteenth century and the beginning of this cen-

tury, the State of New Jersey conveyed riparian grants for more

than one-third of the Bay Head beach to private owners. Under

the express terms of those grants, the owners, and their succes-

sors in title, have the exclusive right to use and possess t'ieir

beachfront property, including the land extending 1,000 feet sea-

ward of the high water mark and into the Atlantic Ocean. 6a;

PA 2’. The deeds for the other beachfront property in Bay Head

generally provide for use and possession at least from the high

water mark landward. DA194-96.

The Bay Head beachfront property is owned by private own-

ers, a portion by the Association and the balance by individual

private owners, some but not all of whom are members of the

Association. The Association is a non-profit membership corpo-

ration with its principal purpose “the improving and beautify-

ing... cleaning, policing and otherwise making attractive and

safe the bathing beaches .. . and the doing of any act... for the

greater convenience, comfort and enjoyment of the residents.”

5a. The members incorporated the Association in 1932 in order

to protect and to maintain the privacy of their property and, to

that end, the Association acquired beach property abutting the

street-ends “for control.” PA 264.

Over the years, the Association also acquired the title to some

beachfront property. In addition, leases were obtained from

some owners of oceanfront property for the land seaward of their

bulkheads in return for the Association’s agreement to clean,

maintain and police that part of the beach during the summer.

The leases were revocable upon 30 days’ notice. Sa-6a; PA 526.

Property owners in Bay Head, who were approved by the

membership committee, and who paid the registration dues,

*The record below is designated by reference to the Plaintiffs’ Appendix

(“PA”) and Defendants’ Appendix (“DA”) filed with the New Jersey

Supreme Court.

were entitled to become members of the Association, as were the

other members of their household, guests of property owners,

including hotel guests, and lessees of cottages in Bay Head. 6a;

PA 513 and 516. Members of the Association and their guests

received badges which signified their right to enter on the beach

portion of the property of the Association. The Association

maintained personnel on streets ending in the beaches to en-

sure that only those wearing badges entered onto the beach.

6a; PA 402-405.‘ Excluded members of the public, however,

could gain access to the wet sand area from adjoining public

beaches and wet sand areas north and south of the Bay Head

beaches. 7a.

The Borough of Bay Head has not owned nor claimed juris-

diction over the beach and has never supplied facilities for those

who use it. PA 4. Instead, the expenses for mainiaining the

beach were shared by the Association’s members through assess-

ment of membership dues. 6a; PA 312-13. The private property

owners, for example, paid the costs for constructing the seawalls.

PA 318. Its members paid property taxes, and the Association

did as well, at least since 1975. PA 325, 468. The Association,

like many other groups such as the Girl Scouts, was permitted to

use the Borough Hall. 22a; DA 224. In addition, it received from

the Borough $600 annually between 1936 and 1941, and $1,000

in 1969. 22a. The state, county, and borough shared the expense

of constructing six groins (stone jetties) to guard against beach

erosion after extensive storm damage in 1962. Id.

The Proceedings Below

This action was commenced on April |, 1974 in the New Jer-

sey Superior Court, County of Ocean, by the Borough of Point

Pleasant against the Borough of Bay Head and the Petitioner

Bay Head Improvement Association. PA 15. Thereafer, Virginia

Matthews (a resident of neighboring Point Pleasant) and

‘From Labor Day to Memorial Day, the Association did not provide

lifeguard services, clean the beaches, or employ security personnel. PA 304,

397-98.

a ee ame Oe

Stanley Van Ness (as Public Advocate’) intervened as plaintiffs.

PA 45. In their complaints, they sought to obtain, on behalf of

the public, a “right of access to and use of” the property fronting

the ocean in Bay Head. PA 52. The complaint was eventually

amended to include more than 100 individuals as defendants

who owned an interest in beachfront property in Bay Head. PA

53-59. Ultimately, the Borough of Point Pleasant ceased to pros-

ecute the case and the Borough of Bay Head was dismissed as a

defendant because it did not own or operate the beach. 3a--4a.

Depositions were taken and answers to interrogatories and

requests to admit were filed with the trial court. On that record,

summary judgment with prejudice was granted for all the

defendants, the individual owners and the Association, PA13;

and the Superior Court, Appellate Division, affirmed the judg-

ment. The plaintiffs appealed to the New Jersey Supreme Court

as of right and also filed a petition for certification which was

granted.

In an unanimous opinion, with one justice abstaining, the New

Jersey Supreme Court affirmed the judgment of dismissal of the

individual prope.., owners, but, “without prejudice,” and

reversed the judgment as to the Association.

The Relief Granted

The relief granted against the Association is to require,

effective June 1, 1984, that “membership in the Association . . .

be open to ihe public at large... [for] access to the common

beach property during the hours of 10:00 a.m. to 5:30 p.m.

between mid-June and September, where they may exercise

their right to swim and bathe and to use the Association’s dry

sand area incident to those activities” and that “the Associa-

tion... also make available a reasonable quantity of daily as

well as seasonal badges to the nonresident public.” 24a.

‘The Public Advocate is a state-funded office which institutes legal proceed-

ings on behalf of what it perceives to be the public interest.

Although the judgment below purports to directly burden only

the Association’s property (owned and leased from its members),

it adversely affects also all of the comparable property owned by

individual residents of Bay Head who are not members of the

Association. The Appellate Division had dismissed the com-

plaint as to such individual property owners with prejudice. The

Supreme Court altered that protective ruling and made the dis-

missal to be without prejudice.

Unmistakably, the court’s purpose in doing so was to keep the

individual property holdings of owners who were not members of

the Association exposed to the risk of an uncompensated taking

upon the expansion of the public’s needs at some future time:

We have decided that the Association’s membership and

thereby its beach must be open to the public. That area

might reasonably satisfy the public need at this time. We

are aware that the Association possessed, as of the initiation

of this litigation, about 42 upland sand lots under leases

revocable on 30 days’ notice. If any of these leases have

been or are to be terminated, or if the Association were to

sell all or part of its property, it may necessitate further

adjudication of the public’s claims in favor of the public

trust on part or all of these or other privately-owned upland

dry sand lands depending upon the circumstances. How-

ever, we see no necessity to have those issues resolved judi-

cially at this time since the beach under the Association’s

control will be open to the public and may be adequate to

satisfy the public trust interests.

25a (emphasis supplied). The present erosive effect of this cloud

upon the value of the private owners’ property is not quantified

in the record nor an issue in the present proceedings, but it is

manifest upon the face of things.

The Opinion of the New Jersey Supreme Court

The court below acknowledged the novelty of its reasoning

and result. First, its fairly recent decision dealing with

municipally-owned land, Borough of Neptune City v. Borough

of Avon-by-the-Sea, 61 N.J. 296, 294 A.2d 47 (1972) itself rep-

resented, in the court’s view, an “extension” of the public trust

doctrine which “historically” included rights to navigation and

fishing to include also “recreational uses, including bathing,

swimming and other shore uses” upon municipal beach land.

12a

—13a. The court, moreover, recognized that in New Jersey

sovereign title “for the public use” to tidelands had not been

exclusively exercised or preserved subsequent to the 1821 deci-

sion in Arnold v. Mundy, 6 N.J.L. 1, which established the

rights of fishing and navigation in this state’s tidewaters.

lla

-12a n.5.°

Next, said the court:

Archaic judicial responses are not an answer to a modern

social problem. Rather, we perceive the public trust doc-

trine not to be “fixed or static,” but one to “be molded and

extended to meet changing conditions and needs of the pub-

lic it was created to benefit.” Avon, 61 N.J. at 309.

* * *

Today, recognizing the increasing demand for our State’s

beaches and the dynamic nature of the public trust doc-

trine, we find that the public must be given both access to

and use of privately-owned dry sand areas as reasonably

necessary.

18a.

In the present proceeding the court significantly extended the

public trust doctrine by explicitly holding that dry sand property

*The court said:

Despite the language in Arnold v. Mundy, there developed the notion that

a shoreowner could obtain unrestricted ownership rights in the tidelands.

See Gough v. Bell, 22 N.J.L. 441 (Sup. Ct. 1850), aff'd, 23 N.J.L. 624 (E.

& A. 1852); see also Ross v. Mayor of Edgewater, 115 N.J.L. 477, 485

(Sup. Ct. 1935), affd o.b., 116 N.J.L. 447 (E. & A.), cert. denied, 229

U.S. 543, 57 S. Ct. 37, 81 L. Ed. 420 (1936)... The Legislature, at least

up to the 1860's, granted corporate charters that included powers to

occupy, possess and enjoy tide flowed land. See, e.g., L. 1833 p. 92. In

addition, the Legislature had from time to time made direct grants of

riparian lands.

owned by private parties is burdened both by a right of public

passage and by public recreational use:

The bather’s right in the upland sands is not limited to

passage. Reasonable enjoyment of the foreshore and the sea

cannot be realized unless some enjoyment of the dry sand

area is also allowed. The complete pleasure of swimming

must be accompanied by intermittent periods of rest and

relaxation beyond the water’s edge.... We see no reason

why rights under the public trust doctrine to use of the

upland dry sand area should be limited to municipally-

owned property. It is true that the private owner » ..\terest

in the upland dry sand area is not identical to that of a

municipality. Nonetheless, where use of dry sand is essen-

tial or reasonably necessary for enjoyment of the ocean, the

doctrine warrants the public’s use of the upland dry sand

area subject to an accommodation of the interests of the

owner.

17a (citation and footnote omitted).

As to the land owned by or leased to the Association itself, the

court reasoned that “[t]he Association’s activities paralleled

those of a municipality in its operation of the beachfront,” 22a,

and that “[i]f the residents of every municipality bordering the

Jersey shore were to adopt the Bay Head policy, the public

would be prevented from exercising its right to enjoy the

foreshore.”’ 24a. At the same time, the court acknowledged that

“only four of the forty-eight municipalities have no publicly-

owned dry beach,” id. at n.10, and that the Bay Head beach is

located alongside a public beach. See 7a.

The Court concluded by recognizing that the purpose and

effect of its decision was to appoint the Association and its mem-

bers agents for the public. It left to the Association the task of

issuing appropriate regulations and determining the steps neces-

sary to implement its decision:

Although such membership rights to the use of the beach

may be broader than the rights necessary for enjoyment of

the public trust, opening the Association’s membership to

all, nonresidents and residents, should lead to a substantial

satisfaction of the public trust doctrine. However, the Asso-

ciation shall also make available a reasonable quantity of

daily as well as seasonal badges to the nonresident public.

Its decision with respect to the number of daily and sea-

sonal badges to be afforded to nonresidents should take into

account all relevant matters, such as the public demand and

the number of bathers and swimmers that may be safely

and reasonably accommodated on the Association’s prop-

erty, whether owned or leased.

24a—25a.

REASONS FOR GRANTING THE WRIT

The Decision Below Raises Significant and Recurring Consti-

tutional Issues Affecting the Rights of Property Owners and The

Constitutional Reach of the Public Trust Doctrine

Preliminary Statement

It is well to begin with a short description of what this case

does not involve. First, this is not a case where the court

fashioned its right of access by resort to traditional doctrines of

property ownership, such as “easements by prescription” or

“easements by dedication.” Indeed, it could not do so because

these claims were abandoned by the plaintiffs below and are not

applicable here. 4a; PA 142; see n.21, infra.

Second, this is not a case where the court interpreted and

applied a legislative enactment, which is the exclusive means

available under New Jersey’s doctrine of separation of powers

for the exercise of the power of eminent domain.’

‘State by McLean v. Lanza, 27 N.J. 516, 529-30, 143 A.2d 571 (1958).

appeal dismissed, sub nom., Lanza v. New Jersey, 358 U.S. 333 (1959);

Abbott v. Beth Israel Cemetery Ass'n, 13 N.J. 528, 543-44, 100 A.2d 532

(1953); Bergen County Sewer Authority v. Borough of Little Ferry, 5 N.J.

548, 552, 76 A.2d 680 (1950).

What this case does concern is a super-legislative act by a

state court to provide for what it views as increased public

demand for beaches which “must be accompanied by intermit-

tent periods of rest and relaxation beyond the water’s edge.”

This is to be accomplished at the expense of private property

owners and not the public at large.

The vehicle chosen by the court to implement its decision is

both novel and, we submit, compels review of the decision below.

By the simple expedient of attaching the “quasi-public” label to

the Association, the court converted the property of its members

into a public recreational site and evaded the requirements of

New Jersey property law and the United States Constitution.

The effect on the immediate parties is obvious: henceforth the

Association and its members must admit segments of the public

onto their property and they must, presumably, assume all of the

burdens of regulation and supervision which that entails. In

addition, they must, presumptively, suffer the comsequences of lost

privacy and diminution in property value, a matter of no small

consequence, particularly to the owners who had every good rea-

son to expect that their land would remain private property.

There are additional and equally troublesome aspects of the

court’s decision beyond its impact on these parties. The idea that

because an association receives some benefits from a commu-

nity, its property is not “private” and that a court may foist on it

duties and responsibilities to the public at large, could have seri-

ous consequences for a number of private organizations. The

notion, moreover, that the public’s demand for recreation

justifies usurping private property rights raises vexing questions

about the reach of the decision. Horseback riding, skiing,

skating, swimming, fishing, boating upon inland lakes, baseball

and even hot air ballooning, are all increasingly popular and

common recreations conducted on public park land. If the pub-

lic’s enjoyment of tidal waters may be extended onto adjacent

private land merely because it is adjacent, as the opinion below

concludes, there is no reason why the horseback rider or skier

should respect the boundaries between the park land and adja-

cent private land, or that the canoeist should not picnic upon the

lawn of a lake-front cottage.

These are all problems, of course, best dealt with by legisla-

tures and those agencies to which the state assembly has dele-

gated public responsibilities. Here, however, by ipse dixi. the

court below transformed “private” property into “public” prop-

erty, thereby usurping the authority of the State legislature and

the public officials appointed by it to acquire recreational

resources for the use of the public.’ From this extraordinary

decision, those whose property rights were taken have no

recourse except in this Court.

In Hughes v. Washington, 389 U.S. 290 (1967), as here, the

guiding principle is this:

[T]o the extent [the decision] constitutes a sudden change

in state law, unpredictable in terms of the relevant prece-

dents, no... deference would be appropriate. For a State

cannot be permitted to defeat the constitutional prohibition

against taking property without due process of law by the

simple device of asserting retroactively that the property it

has taken never existed at all. Whether the decision here

worked an unpredictable change in state law thus inevitably

presents a federal question for the determination of this

Court.

Id. at 296-97 (Stewart, J. concurring).

"For a description of relevant New Jersey and federal legislation which pro-

vides for purchase and/or condemnation by eminent domain of beachfront

rights for public recreation, see n. 18, infra.

*This case is one in an ever-expanding line of state court decisions not

infrequently characterized as based on “fiction” and prompted by the state

courts’ views that the legislatures have gone too far in protecting private prop-

erty rights to the detriment of “public” desires. Note, “Public Access to .

Beaches,” 22 Stanford L. Rev. 564, 577 (1970). See also, Note, “The Public

Trust in Tidal Areas: A Sometimes Submerged Traditional Doctrine,” 79 Yale

L.J. 162, 775-76 (1970); Sax, “The Public Trust Doctrine in Natural Resource

Law: Effective Judicial Intervention,” 68 Mich. L. Rev. 473, 557-59 (1970);

Note, “Public Access to Beaches: Common Law Doctrines and Constitutional

Challenges,” 48 N.Y.U. L. Rev. 369 (1973); Travis, “Assault on the Beaches:

‘Taking’ Public Recreational Rights to Private Property,” 60 Boston L. Rev.

933 (1980).

The Property Owned by the Association and its Members is

Constitutionally Protected Private Property

It goes without saying that the Fourteenth Amendment pro-

tects settled expectations derived from state property law from

disruption by the government in the absence of fair compensa-

tion. Webb’s Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S.

155, 164 (1980); Kaiser Aetna v. United States, 444 U.S. 164,

179 (1979); Ettor v. Tacoma, 228 U.S. 148, 156 (1913). Here,

as noted above, the court itself conceded that its decision went

beyond the bounds of prior law, and the plaintiffs in the court

below repeatedly urged that the result would be “precedent set-

ting.’”’ Indeed, the state of New Jersey has always, including to

the present session of the state legislature, protected the prop-

erty rights of dry sand beachowners."'

When New Jersey became a state, it expressly adopted the

common law of England,'* which forbade swimming by the pub-

lic if a trespass was committed on private property to reach the

sea. The British public trust doctrine always held that only the

rights to the water itself for navigation and fishing, and not the

shoreland, were common rights.'* New Jersey has consistently

"E.g. Appellant's Brief p. 21.

'' Justinian, quoted by the court below at length, held that the public did not

have any navigational or fishing rights, or any rights at all, beyond the highest

high water mark: “The sea-shore, that is, the shore as far as the waves go

furthest, was considered to belong to all men.” Justinian, Institutes 2.1.1.

(Sandars Ed. 1876 at p. 158) (emphasis supplied).

See also, Shively v. Bowlby, 152 U.S. 1, 21-23 (1894); Illinois Cent. R.R. v.

Illinois, 146 U.S. 387, 452 (1892); Martin v. Waddell’s Lessee, 41 U.S. (16

Pet.) 367, 412-13 (1842).

"N.J. CONST. of 1776 art. 22.

“Note, supra, 79 Yale L.J. at 781-85; see Hale, | De Jure Maris 17-25

(Hargrave Ed. 1787); Angell on Watercourses, § 551 (Perkins Ed. 1869);

Taylor, “The Seashore and the People,” 10 Cornell L.Q. 307-08 (1925);

Halsbury, 28 Laws of England 372-73(1914); Coulson and Forbes, The Law of

Waters 14-15, 46-47 (2d. Ed. 1902). In Blundell v. Catterall, 106 Eng. Rep.

1190, 5 B. & Ald. 268 (1821), the dissent to which is quoted by the court, Lord

Chief Judge Abbott actually held that there was no common law right to swim

enacted statutes compatible with the British doctrine" and the

courts of New Jersey have protected property rights not only in

the dry sand but even in the wet sand areas under express grants

of the state or under acts of appropriation by private persons. In

Ross v. Mayor of Edgewater, 115 N.J.L. 477, 483-84, 180 A.

866, 870, (Sup. Ct. 1935), aff'd per curiam, 116 N.J.L. 447, 184

A. 810 (E. & A.) cert. denied, 299 U.S. 543 (1936), the

Supreme Court of New Jersey, following the British rule, stated

that only navigable waters are held by the sovereign in trust for

the people; the public’s title to the underlying wetlands, where it

existed at all, is “strictly proprietary” and absolutely defeasible.

This Court has recognized the rule as applicable in New Jersey

in Mayor of Hoboken v. Pennsylvania R. R. Co., 124 US. 656,

689 (1888)."

Thereafter, various lands below the high water mark acquired

by riparian owners pursuant to doctrines of local custom were

held to be protected. O'Neill v. State Highway Dep't, 50 N.J.

307, 325, 235 A. 2d 1, 10 (1967). Although the state’s title to

tidelands could not be lost by adverse possession or prescription,

id. at 320, 235 A.2d at 8, the courts continued to uphold the

rights of express grantees of the state, and the rights of all own-

ers to the beach landward of the high water mark."

and that access across a privately owned shore for this purpose could amount to

a trespass.

"See N.J. Stat. Ann. § 40:48-1(9) (West 1967) (“The governing body of

every municipality may make and enforce ordinances to... (a) Regulate or

prohibit swimming or bathing in the waters of, in, or bounding the municipal-

ity,” L. 1927 c. 130 N.J. Stat. Ann. 58: 8-1 (West 1982), repealed in 1977 as

part of an act relating to contamination of water (“It shall be lawful to bathe

or swim in any of the fresh waters of this State; provided, that in so doing no

trespass is committed); N.J. Stat. Ann. § 40:61-1 (West 1967) (“The gov-

erning body of any municipality may... a. Acquire... beaches, water fronts

and places for public resort and recreation ... in fee or less estate... by gift,

devise, purchase or condemnation”); N.J. Stat. Ann. § 12:3-7, 12:3-9 (West

1979) (providing for payment in the event riparian rights of state grantees of

lands under water are extinguished).

"See also, Burkhard v. H.1. Heinz Co., 71 N.J.L. 562, 60 A. 191 (E. &.A.

1905); Bell v. Gough, 23 N.J.L. 624, 657, 661-65 (E. & A. 1852).

“Borough of Wildwood Crest v. Masciarella, 51 N.J. 352, 357, 240 A. 2d

665, 667 (1968); Bailey v. Driscoll, 19 N.J. 363, 367, 117 A. 2d 265, 267

(1955); State by State Hwy. Comm'r. v. Maas & Waldstein Co., 83 N.J.

The court’s finding that the property belonging to the Associ-

ation and its members is not private property, moreover, belies

the common law doctrines previously applied in New Jersey,

which strictly define the circumstances in which private property

may be subject to public use. These principles were inapplicable

to the plaintiffs here—and they reaffirmed as much when they

consented to summary judgment dismissing their claims of pre-

scriptive easement and public dedication.” The common law

restrictions on the public trust have been recognized by the legis-

lature as recently as 1984."* Moreover, a special commission of

Super. 211, 220, 199 A. 2d 248, 252 (App. Div. 1964); Schultz v. Wilson, 44

N.J. Super. 591, 597-98, 131 A.2d 415, 417-18 (App. Div.), certif. denied 24

N.J. 546, 133 A. 2d 395 (1957); United States v. 50 Foot Right of Way, 337

F.2d 956, 960 (3d Cir. 1964).

"We are unaware of any other state court decision extending to the public

the use of privately owned beach property absent cither a purported finding of

a prescriptive easement, dedication to the public or customary public usage

from “time immemorial.” See Gion v. City of Santa Cruz, 2 Cal. 3d 29, 465 P.

2d 50, 84 Cal Rptr. 162 (1970); Leabo v. Leninski, 182 Conn. 611, 438 A.2d

1153 (1981): Smith v. Bruce, 241 Ga. 133, 244 S.E. 2d. 559 (1978); State ex

rel. Haman v. Fox, 100 Idaho 140, 594 P.2d 1093 (1979); In re Opinion of the

Justices, 365 Mass. 681, 313 N-E. 2d 561 (1974); Department of Natural

Resources v. Ocean City, 274 Md. 1, 332 A.2d 630 (1975); Department of

Natural Resources v. Cropper, 274 Md. 25, 332 A.2d 644 (1975); Gewirtz v.

City of Long Beach, 69 Misc. 2d 763, 330 N.Y.S. 2d 495 (Sup. Ct. 1972),

aff'd, 45 A.D. 2d 841, 358 N.Y.S. 2d 957 (1974); State ex rel. Thornton v.

Hay, 254 Or. 584, 462 P. 2d 671 (1969); State v. Beach Co., 271 S.C. 425, 248

S.E. 2d 115 (1978): see also, Sotomura v. County of Hawaii, 460 F. Supp. 473

(D. Hawaii 1978); Note, supra, 79 Yale L.J. at 786 (1970) (“It is a rare court

that would admit to using such a vague criterion as the ‘public interest’ to

determine foreshore disputes. This is a job best left to the legislature.”); Note

supra, 22 Stanford L. Rev. at 580 (1970) (“Even the great public need for

beach recreation is not in itself sufficient reason to take beaches from their

owners”’).

“Comprehensive federal and state legislation and accompanying administra-

tive regulations were adopted in New Jersey between 1961 and 1984, all of

which provide for acquisition by purchase or condemnation by eminent domain

of property and access rights for recreational use by the public, including beach

front property. See New Jersey Green Acres Land Acquisition Act of 1961,

N.J. Stat. Ann. § 13:8A-1 et seg. (West 1979); N.J. Admin. Code tit. 7

§ 36-6.12(b) (1979); Coastal Zone Managemen Act, 16 US.C. § 1451,

1452(2)(D) (West Supp. 1984). In April 1977, a legislative commission

recommended that the Depa: nt of Environmental Protection “ideniify

where privately-owned property olocks the general public frorn access to the

beach over excessively long stretches and purchase selected access ways to the

the New Jersey Legislature on access to beaches and the rele-

vant state agencies have construed the public trust doctrine as

inapplicable “to the dry sand beaches which are owned by either

local, state or federal government, or by private indiv‘duals or

associations.””*

Prior to the decision at hand, the New Jersey Supreme

Court’s most expansive view of the public’s “right to recreation”

on littoral property was expressed in two opinions, both of which

post-date the Association’s acquisition of its property and both

of which dealt solely with municipally-owned land, not private

property. Borough of Neptune City v. Borough of Avon-by-the-

Sea, supra; Van Ness v. Borough of Deal, 78 N.J. 174, 393 A.2d

571 (1979). In Lusardi v. Curtis Point Property Owners Ass’n.,

86 N.J. 217, 228, 430 A. 2d 881, 886 (1981), the court again

emphasized that the public trust doctrine developed by it until

that time extended only to wet sand areas except those of

municipally-owned public beaches, as the court indeed again

reiterated in its opinion here. 13a.”

This is a case, therefore, where there should have be-n no

doubt that the property of the Association and its members is

and always has been “private property” as the term is used in

the Fifth and Fourteenth Amendments.

beach with State Green Acres and Federal Coastal Zone Management

shorefront access funds.” New Jersey Beach Access Study Commission, “Pub-

lic Access to the Oceanfront Beaches: A Report to the Governor and Legisla-

ture of New Jersey,” 11 (1977) (hereafter “Access Study”); DA 254; see also,

15 C.F.R. § 920.17 (1983). On January 17, 1984, the Governor of New Jersey

signed the Open Lands Management Act, L. 1983 c. 560, which appropriated

$250,000 to administer a voluntary program designed to provide private land-

owners with financial assistance and in-kind service for projects designed to

develop and maintain that land for recreational purposes, in exchange for a

guarantee, in the form of an access covenant, that the public be permitted rec-

reational use of their property.

"New Jersey Department of Environmental Protection, Public Access to the

New Jersey Shore, p. | (1983); Access Study, supra at 1; DA 244.

“Even those commentators shocked by the decisions in Avon and Deal

opined that it was unlikely the court would go any further. Note, “Water

Law—Public Trust Doctrine Bars Discriminatory Fees to Non-Residents for

Use of Municipal Beach,” 26 Rutgers L. Rev. 180, 185 (1972); see also, Note,

supra, 48 N.Y.U.L. Rev. at 381-85.

Nevertheless, the Supreme Court, relying on state action doc-

trines, erroneously converted the property of the Association and

its members from private to “quasi-public.” None of the factors

relied upon by the court, taken separately or together, is

sufficient to find governmental action even against competing

constitutional rights, let alone “recreational” claims.

First, the court below asserted that “[t]he lifeguards per-

formed the functions characteristic of those on a public beach.” |

22a. New Jersey law, however, expressly contemplated that pri-

vate firms and corporations could maintain seashore bathing

pavilions and required that such enterprises retain lifeguards.

N.J. Stat. Ann. § 5:1-2, 5:1-4 (West 1973). Their employment,

as well as the employment of security guards and maintenance

crews to protect and maintain the privacy of the members’ prop-

erty, is consonant with private, as opposed to public, ownership.

Here, no one seriously claimed that the Association and its

members were “performing the full spectrum of municipal pow-

ers and stood in the shoes of the state.” Lloyd Corporation v.

Tanner, 407 U.S. 551, 569 (1972). Use of the Borough Hall

alongside of other civic groups and the receipt of some commu-

nity benefits cannot convert the property of the Association and

its members to public use. Rendell-Baker v. Kohn, 457 U.S. 830,

841-43 (1982); Moose Lodge No. 107 v. Irvis, 407 U.S. 163,

173-75 (1972).

Prior to the decision in this case, the courts in New Jersey had

explicitly held that the activities of a borough in cleaning and in

protecting a beach by building groins “were not of such a nature

as to destroy any property rights in the property owner,” Spiegle

v. Borough of Beach Haven, 116 N.J. Super. 148, 161, 281 A.2d

377 (App. Div. 1971); nor were they sufficient “to create a pre-

scriptive easement for beach purposes in the public through the

borough’s activities.” Jd.”

“In New Jersey, dedication requires an unequivocal act manifesting an

intent to dedicate. George Van Tassel’s Community Funeral Home, Inc. v.

Town of Bloomfield, 8 N.J. Super. 524, 528, 73 A.2d 636, 637 (Ch. Div.

1950). The record in this case-—indeed the facts prompting the instant litiga-

tion—makes it clear that the Association and its members intended to protect

and maintain their property for their own use. Equally well settled in New

ee ee Te

There can be no question but that a government-mandated

right in the public to recreational use of private residential prop-

erty constitutes a “taking” within the protective ambit of the

Fifth Amendment. The point of departure, then, is whether the

court’s implication that prior state grants and decisions wrongly

gave up the “public trust” should have given way to the

“number of expectancies embodied in the concept of

‘property —expectancies that, if sufficiently important, the Gov-

ernment must condemn and pay for.” Kaiser Aetna v. United

States, supra, 444 U.S. at 179.

As this and other courts have time and again affirmed, an

individual’s right to exclude the general public from his property

is an essential attribute of private ownership. In Kaiser, Justice

Rehnquist wrote that “one of the most essential sticks in the

bundle of rights that are commonly characterized as property

[is] the right to exclude others.” 444 U.S. at 176. In that case,

the plaintiffs urged that the public had the right to use a private

marina with access to the sea because it was navigable; this

Court held that such action would constitute a physical invasion

of the property for which the owner must be compensated. /d. at

180.”

Jersey is the principle that the public cannot acquire rights to the use of prop-

erty of others by prescription. Albright v. Cortright, 64 N.J.L. 330, 333, 45 A.

634, 635 (E. & A. 1900); Camp Clearwater, Inc. v. Plock, 52 N.J. Super. 583,

602, 146 A.2d 527 (Ch. Div. 1958), aff'd. 59 N.J. Super. 1, 157 A.2d 15 (App.

Div. 1959); Fidelity Union Trust Co. v. Cochrane, 116 N.J. Eq. 190, 192, 172

A. 800 (Ch. 1934); Ackerman v. Shelp, 8 N.J.L. 125 (Sup. Ct. 1825). More-

over, a private claimant to a prescriptive easement must demonstrate an entry

and persistent possession which has been exclusive, continuous, uninterrupted,

visible and notorious, under a claim of right for the requisite period of time, in

this case sixty years. Plaza v. Flak, 7 N.J. 215, 220, 81 A.2d 137 (1951):

Baker v. Normanoch Ass'n., Inc., 25 N.J. 407, 419, 136 A. 2d 645 (1957):

Mannillo v. Gorski, 54 N.J. 378, 386. 255 A.2d 258 (1969). The use of the

beach during the summer months by the Association was by permission of the

member property owners and therefore negated any “claim of right” necessary

to establish possession or a prescriptive easement in the beach by the Associa-

tion or anyone who used the beach with the permission of the Association.

Spiegle v. Beach Haven, supra.

“See also Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419

(1982); Pruneyard Shopping Center v. Robins, 447 U.S. 74, 80 (1980); United

States v. Causby, 328 U.S. 256 (1946); Portsmouth Harbor Land & Hotel Co.

Furthermore, this Court, in a long line of decisions involving

activity by the United States, has limited the power of the gov-

ernment to damage or invade riparian and littoral property with-

out compensating the owner. This has been permitted only in

situations where the activity is in furtherance of navigation or

commerce and where the land above the high water mark is not

invaded—factors which are not here present.” The consistent

theme of these decisions is that the navigational servitude cre-

ates “ample notice over the years that such property is subject to

a dominant public interest.” Accordingly, the rule must be “to

deny compensation where the claimant’s private title is burdened

with this servitude but to award compensation where his title is

not so burdened.” United States v. Kansas City Life Insurance

Co., 339 U.S. 799, 808 (1950) (footnote omitted).

Here, the titles to the land owned by the Association and its

members were never burdened by a servitude in favor of the pub-

lic’s interest in beach recreation. Nor had the state legislature

and the agencies it designated to acquire beachfront property

exercised their power of eminent domain. Instead, the court

usurped the roles of the legislature and extended the public trust

doctrine to permit public use of the Bay Head beachfront.

In sum, the New Jersey Supreme Court addressed the rights

of private property owners against claims that the public has a

“recreational” right to use their property and found, for the first

t#me, that the demands of the public permit a wholesale denial of

the right to exclude others. This intrusion onto the property of

the Association and its members, without payment of just com-

pensation, violates the Fourteenth and Fifth Amendments of the

United States Constitution.

v. United States, 260 U.S. 327 (1922); Robinson v. Ariyoshi, 441 F. Supp. 559

(D. Hawaii 1977).

“United States v. Twin City Power Co., 350 U.S. 222, 224-25 (1956);

United States v. Kansas City Life Insurance Co., 339 U.S. 799, 806-808

(1950); United States v. Willow River Power Co., 324 U.S. 499, 508 (1945);

United States v. Chicago, M., St. P. & P. R. Co., 312 U.S. 592 (1941); United

States v. Chandler-Dunbar Water Power Co., 229 U.S. 53 (1913); United

States v. 50 Foot Right of Way, supra.

CONCLUSION

For the reasons set forth above, it is respectfully submitted

that a writ of certiorari should be issued to review the judgment

of the Supreme Court of New Jersey.

Respectfully submitted,

CLYDE A. SZUCH

Pitney, Hardin, Kipp & Szuch

163 Madison Avenue

CN 1945

Morristown, New Jersey 07960

(201) 267-3333

HAROLD A. SCHUMAN

Schuman & Butz

1130 Hooper Avenue

Toms River, New Jersey 08753

(201) 349-4400

Attorneys for Petitioner,

Bay Head Improvement Association

On the brief:

CLYDE A. SZUCH

PATRICIA A. PICKREL

Dated: May 2, 1984

OPINION OF THE SUPREME COURT

NEW JERSEY

SUPREME COURT OF NEW JERSEY, 1984.

Matthews v. Bay Head Imp. Ass'n. 95 N.J.

Cite as, 95 N.J. 306

VIRGINIA MATTHEWS, PLAINTIFF-APPELLANT, AND

STANLEY C. VAN NESS, PUBLIC ADVOCATE OF

THE STATE OF NEW JERSEY, PLANTIFF-INTER-

VENOR-APPELLANT, v. BAY HEAD IMPROVEMENT

ASSOCIATION, A NON-PROFIT CORPORATION

OF THE STATE OF NEW JERSEY, et al.

Argued May 10, 1983—-Decided February 2, 1984.

SYNOPSIS

Suit was brought against nonprofit association which

controlled access to municipal beachfront and owners and others

who had interest in properties located on beachfront, asserting

that defendants denied general public its right of access to public

trust lands on the beaches in municipality and its right to use

private property fronting on the ocean incidental to public’s

right under the public trust doctrine. The Superior Court

granted defendants’ motions for summary judgment, and plain-

tiffs appealed. The Superior Court, Appellate Division,

affirmed. After granting plaintiffs’ petition for certification, the

Supreme Court, Schreiber, J., held that; (1) public must be

given both access to and use of privately owned dry sand areas as

reasonably necessary under public trust doctrine; (2) nonprofit

corporation which had virtual monopoly over beachfront was a

quasi-public association, considering its purposes, relationship

with municipality, communal characteristic and activities; and

(3) by limiting membership only to residents of municipality and

foreclosing the public, association was acting in conflict with

strong public policy in favor of encouraging and expanding pub-

lic access to and use of shoreline areas and was frustrating pub-

lic’s right under the public trust doctrine, and thus association

would be required to open membership to public at large.

Affirmed in part; reversed in part.

SUPREME COURT OF NEW JERSEY, 1984.

95 N.J. Matthews v. Bay Head Imp. Ass'n.

Cite as, 95 N.J. 306

Sandra T. Ayres, Deputy Public Advocate, Division of Pub-

lic Interest Advocacy, argued the cause for appellants (Joseph

H. Rodriguez, Public Advocate, attorney).

Alvin Weiss argued the cause for respondents Clifford O.

Anderson & Dorothy Anderson; Benjamin & Catherine Barnett,

h/w; John A. Brown; Walter H. Brown & Catherine Brown,

h/w; Andrew H. Campbell; H. Corbin Day; Samuel B.

Fortenbaugh, Jr. & Katherine W. Fortenbaugh, h/w; Gregory

Gibson; Mrs. Paul Hay; Edward H. Hein; Harold L. Herbert;

Edward F. & Joan Van Johnson, h/w; Robert King; Edward

McGrath & Elizabeth McGrath, h/w; Ann F. Mestres; Paul E.

Parker & Catherine Parker, h/w; Philip D. Reed, Jr.; Estate of

Eileen Rucker; George H. & Estelle M. Sands, h/w; Herman

Schmitz; Joseph Shelby & Miriam Rohrer Shelby; David O.

Tyson; James L. Tyson and Christine Wilder (Riker, Danzig,

Scherer & Hyland, attorneys; Glenn Clark and Andrew

Manshel, on the brief).

John R. Weigel argued the cause for respondents John A.

Brown; Robert S. Corbin & Dorothy L. Corbin, h/w; Samuel B.

Fortenbaugh, Jr., & Katherine W. Fortenbaugh, h/w; Max

Habernickel, III & Gael S. Habernickel, h/w; J. Stuart Hill &

Mary G. Hill, h/w; Ricardo A. Mestres, Jr.; George O. Nodyne

& Anne K. Nodyie, h/w; Philip D. Reed, Jr. & Elizabeth B.

Reed, h/w; Ferdinand W. Roebling, III; Carol C. Schmitz;

George R. Schultz and Bruce B. Swenson & Nancy T. Swenson,

h/w (John R. Weigel and Joseph M. Clayton, Jr. attorneys;

Joseph M. Clayton Jr. on the brief).

Richard H. Woods argued the cause for respondents Bay

Head Improvement Association, etc; John Bowman Delaney;

George P. Egbert; Lester D. Egbert; Alfred E. Johnson, Jr.;

Robert L. Johnson and Roberta Johnson, h/w; Helen Loblein;

John Magee & Elizabeth Magee, h/w; Edith Wells Pardoe and

Martha L. Van Emburgh (Schuman & Butz, attorneys).

SUPREME COURT OF NEW JERSEY, 1984.

Matthews v. Bay Head Imp. Ass'n. 95 N.J.

Cite as, 95 N.J. 306

Frank J. O’Brien submitted a letter brief, pro se.

Clyde A. Szuch submitted briefs, pro se (Clyde A. Szuch,

attorney; J. Michael Nolan, Jr., Jeri E. Ruscoll and Peter A.

Scarpato, on the briefs).

The opinion of the Court was delivered by

SCHREIBER, J.

The public trust doctrine acknowledges that the ownership,

dominion and sovereignty over land flowed by tidal waters,

which extend to the mean high water mark, is vested in the State

in trust for the people. The public’s right to use the tidal lands

and water encompasses navigation, fishing and recreational uses,

including bathing, swimming and other shore activities. Borough

of Neptune City v. Borough of Avon-by-the-Sea, 61 N.J. 296,

309 (1972). In Avon we held that the public trust applied to the

municipally-owned dry sand beach immediately landward of the

high water mark.’ The major issue in this case is whether, ancil-

lary to the public’s right to enjoy the tidal lands, the public has a

right to gain access through and to use the dry sand area not

owned by a municipality but by a quasi-public body.

The Borough of Point Pleasant instituted this suit against the

Borough of Bay Head and the Bay Head Improvement Associa-

tion (Association), generally asserting that the defendants pre-

vented Point Pleasant inhabitants from gaining access to the

Atlantic Ocean and the beachfront in Bay Head. The proceeding

was dismissed as to the Borough of Bay Head because it did not

own or control the beach. Subsequently, Virginia Matthews, a

'The dry sand area is generally defined as the land west (landward) of the

high water mark to the vegetation line or where there is no vegetation to a

seawall, road, parking lot or boardwalk. New Jersey Beach Access Study Com-

mission, Public Access to the Oceanfront Beaches: A Report to the Governor

and Legislature of New Jersey 2 (1977).

SUPREME COURT OF NEW JERSEY, 1984.

95 N.J. Matthews v. Bay Head Imp. Ass’n.

Cite as, 95 N.J. 306

resident of Point Pleasant who desired to swim and bathe at the

Bay Head beach, joined as a party plaintiff, and Stanley Van

Ness, as Public Advocate, joined as plaintiff-intervenor. When

the Borough of Point Pleasant ceased pursuing the litigation, the

Public Advocate became the primary moving party. The Public

Advocate asserted that the defendants had denied the general

public its right of access during the summer bathing season to

public trust lands along the beaches in Bay Head and its right to

use private property fronting on the ocean incidental to the pub-

lic’s right under the public trust doctrine. The complaint was

amended on several occasions, eliminating the Borough of Point

Pleasant as plaintiff and adding more than 100 individuals, who

were owners or had interests in properties located on the

oceanfront in Bay Head, as defendants.

Both sides moved for summary judgment. The trial court

granted the defendants’ motions except with respect to the

plaintiff's claim that the public had acquired rights in the dry

sand beach resulting from an implied dedication or prescriptive

easement prior to 1932. When the plaintiff abandoned these

claims, the trial court entered a final judgment in favor of the

defendants. Upon plaintiff's appeal, the Appellate Division

affirmed, one judge dissenting. Plaintiff appealed as of right, R.

2:2-1(a), and also filed a petition for certification, which we

granted. 91 N.J. 559, 453 A.2d 873 (1982).

The facts as gleaned from the record consisting of depositions,

answers to interrogatories, admissions’ and the pleadings are

substantially undisputed.

*Individual defendants claim that a co-defendant’s admissions may not be

used against them on a summary judgment motion. We do not agree. For the

purpose of the motion, admissions are similar to an affidavit of a person other

than the party to the motion. We perceive of no reason why these admissions

are not available for this purpose.

SUPREME COURT OF NEW JERSEY, 1984.

Matthews v. Bay Head Imp. Ass’n. 95 N.J.

Cite as, 95 N.J. 306

Facts

The Borough of Bay Head (Bay Head) borders the Atlantic

Ocean. Adjacent to it on the north is the Borough of Point Pleas-

ant Beach, on the south the Borough of Mantoloking, and on the

west Barnegat Bay. Bay Head consists of a fairly narrow strip of

land, 6,667 feet long (about 1% miles). A beach runs along its

entire length adjacent to the Atlantic Ocean. There are 76 sepa-

rated parcels of land that border the beach. All except six are

owned by private individuals. Title to those six is vested in the

Association.

The Association was founded in 1910 and incorporated as a

nonprofit corporation in 1932. Its certificate of incorporation

States that its purposes are

the improving and beautifying of the Borough of Bay Head, New Jersey,

cleaning, policing and otherwise making attractive and safe the bathing

teaches in said Borough, and the doing of any act which may be found nec-

essary or desirable for the greater convenience, comfort and enjoyment of

the residents.

Its constitution delineates the Association’s object to promote

the best interest of the Borough and “in so doing to own prop-

erty, operate bathing beaches, hire life guards, beach cleaners

and policemen... .”

Nine streets in the Borough, which are perpendicular to the

beach, end at the dry sand. The association owns the land

commencing at the end of seven of these streets for the width of

each street and extending through the upper dry sand to the

mean high water line, the beginning of the wet sand area or

foreshore. In addition, the Association owns the fee in six shore

front properties, three of which are contiguous and have a

frontage aggregating 310 feet. Many owners of beachfront prop-

erty executed and delivered to the Association leases of the

upper dry sand area. These leases are revocable by either party

lil

TNT

SUPREME COURT OF NEW JERSEY, 1984.

95 NJ. Matthews v. Bay Head Imp. Ass'n.

Cite as, 95 NJ. 306

to the lease on thirty days’ notice. Some owners have not exe-

cuted such leases and have not permitted the Association to use

their beaches. Some also have acquired riparian grants from the

State extending approximately 1000 feet east of the high water

line.

The Association controls and supervises its beach property

between the third week in June and Labor Day. It engages about

40 employees who serve as lifeguards, beach police and beach

cleaners. Lifeguards, stationed at five operating beaches, indi-

cate by use of flags whether the ocean condition is dangerous

(red), requires caution (yellow), or is satisfactory (green). In

addition to observing and, if need be, assisting those in the

water, when called upon lifeguards render first aid. Beach clean-

ers are engaged to rake and keep the beach clean of debris.

Beach police are stationed at the entrances to the beaches where

the public streets lead into the beach to ensure that only Associ-

ation members or their guests enter. Some beach police patrol

the beaches to enforce its membership rules.

Membership is generally limited to residents of Bay Head.

Class A members are property owners. Class B are non-owners.

Large families (six or more) pay $90 per year and small families

pay $60 per year. Upon application residents are routinely

accepted. Membership is evidenced by badges that signify per-

mission to use the beaches. Members, which include local hotels,

motels and inns, can also acquire badges for guests. The charge

for each guest badge is $12. Members of the Bay Head Fire

Company, Bay Head Borough employees, and teachers in the

municipality’s school system have been issued beach badges

irrespective of residency.

Except for fishermen, who are permitted to walk through the

upper dry sand area to the foreshore, only the membership may

use the beach between 10:00 a.m. and 5:30 p.m. during the sum-

mer season. The public is permitted to use the Association’s

SUPREME COURT OF NEW JERSEY, 1984.

Matthews v. Bay Head Imp. Ass'n. 95 NJ.

Cite as, 95 N.J. 306

beach from 5:30 p.m. to 10:00 a.m. during the summer and, with

no hourly restrictions, between Labor Day and mid-June.

No attempt has ever been made to stop anyone from occu-

pying the terrain east of the high water mark. During certain

parts of the day, when the tide is low, the foreshore could consist

of about 50 feet of sand not being flowed by the water. The pub-

lic could gain access to the foreshore by coming from the Bor-

ough of Point Pleasant Beach on the north or from the Borough

of Mantoloking on the south.

Association membership totals between 4,800 to 5,000. The

Association President testified during depositions that its restric-

tive policy, in existence since 1932, was due to limited parking

facilities and to the overcrowding of the beaches. The Associa-

tion’s avowed purpose was to provide the beach for the residents

of Bay Head.

There is also a public boardwalk, about one-third of a mile

long, parallel to the ocean on the westerly side of the dry sand

area. The boardwalk is owned and maintained by the municipality.

The trial court held that the Association was not an arm of the

Borough of Bay Head, that the Association was not a municipal

agency, and that nothing in the record justified a finding that

public privileges could attach to the private properties owned or

leased by the Association. A divided Appellate Division

affirmed. The majority agreed with the trial court that the Asso-

ciation was not a public agency or a public entity and that the

action of the private owners through the Association established

no general right in the public to the use of the beaches.

Judge Greenberg dissented. He argued that the Association’s

beaches are de facto public to a limited extent, being public to

resider*s and visitors who stay in hotels. They are private to

everyone else. He reasoned that Bay Head residents have the

advantage of living in a municipality with public beaches, but

are not troubled by having their beaches made available to out-

SUPREME COURT OF NEW JERSEY, 1984.

95 NJ. Matthews v. Bay Head Imp. Ass’n.

Cite as, 95 N.J. 306

siders. Judge Greenberg concluded that the Association’s

beaches must be open to all members of the public. However, he

would not preclude any lessor from terminating his lease with

the Association and thereby eliminating the public right of

access to that part of the beach.

The Public Trust

In Borough of Neptune City v. Borough of Avon-by-the-Sea, 61

N.J. 296, 303 (1972), Justice Hall alluded to the ancient princi-

ple “that land covered by tidal waters belonged to the sovereign,

but for the common use of all the people.” The genesis of this

principle is found in Roman jurisprudence, which held that

“[b]y the law of nature” “the air, running water, the sea, and

consequently the shores of the sea,” were “common to

mankind.” Justinian, Institutes 2.1.1 (T. Sandars trans. Ist Am.

ed. 1876). No one was forbidden access to the sea, and everyone

could use the seashore’ “to dry his nets there, and haul them

from the sea....” /d., 2.1.5. The seashore was not private prop-

erty, but “subject to the same law as the sea itself, and the sand

or ground beneath it.” /d. This underlying concept was applied

in New Jersey in Arnold v. Mundy, 6 N.J.L. 1 (Sup. Ct. 1821).

The defendant in Arnold tested the plaintiff's claim of an

exclusive right to harvest oysters by taking some oysters that the

plaintiff had planted in beds in the Raritan River adjacent to his

farm in Perth Amboy. The oyster beds extended about 150 feet

below the ordinary low water mark. The tide ebbed and flowed

over it. The defendant’s motion for a nonsuit was granted. The

Supreme Court denied the plaintiff's subsequent motion to set

aside the nonsuit.

*The seashore extended to the limit of the highest winter flood, Justinian,

supra, 2.1.3, and not the mean high water mark.

SUPREME COURT OF NEW JERSEY, 1984.

Matthews v. Bay Head Imp. Ass'n. 95 N.J.

Cite as, 95 N.J. 306

Chief Justice Kirkpatrick, in an extensive opinion, referred to

the grant by Charles II of the land comprising New Jersey with

“all rivers, harbors, waters, fishings, etc., and of all other royal-

ties, so far as the king had estate, right, title or interest therein”

to the Duke of York. 6 N.J.L. at 85 (2d ed. 1875) (emphasis

deleted). The duke had been delegated the same power as the

king with respect to the land, and by virtue of the charter could

divide and grant only those properties and interests that the king

could. The Chief Justice’s analysis then turned to the power of

the English king. According to English law, public property

consisted of two classes. Some was necessary for the state’s use,

and the remainder was common property available to all citi-

zens. Chief Justice Kirkpatrick wrote that “[o]f this latter kind,

according to the writers upon the law of nature and of nations,

and upon the civil law, are the air, the running water, the sea,

the fish and the wild beasts.” Jd. at 86. He argued that “though

this title, strictly speaking, is in the sovereign, yet the use is com-

mon to all the people.” /d. He pointed out the significant

difference between public property necessary for the state and

common property:

The title of both these, for the greater order, and, perhaps, of necessity, is

placed in the hands of the sovereign power, but it is placed there for different

purposes. The citizen cannot enter upon the domain of the crown and apply

it, or any part of it, to his immediate use. He cannot go into the king’s forests

and fall and carry away the trees, though it is the public property; it is placed

in the hands of the king for a different purpose; it is the domain of the crown,

a source of revenue; so neither can the king intrude upon the common prop-

erty, thus understood, and appropriate it to himself, or to the fiscal pur-

poses of the nation, the enjoyment of it is a natural right which cannot be

infringed or taken away, unless by arbitrary power; and that, in theory at

least, could not exist in a free government, such as England has always

claimed to be. /Id. at 87-88 (emphasis supplied). |]

The Chief Justice traced the use of common property by the

kings and concluded that appropriation of common property by

William the Conqueror and his successors was questionable and

that the Magna Charta rectified the prior improper conduct by

SUPREME COURT OF NEW JERSEY, 1984.

95 N.J. Matthews v. Bay Head Imp. Ass’n.

Cite as, 95 N.J. 306

providing “that where the banks of rivers had first been

defended in his time, (that is, when they had first been fenced

in, and shut against the common use, in his time) they should be

from thenceforth laid open.” Id. at 88. A charter of Henry III

confirmed this principle at least to the extent that only grants of

common property made before the reign of Henry II were valid.

Id at 89.

Chief Justice Kirkpatrick concluded that all navigable rivers

in which the tide ebbs and flows and the coasts of the sea,

including the water and land under the water, are “common to

all the citizens, and that each [citizen] has a right to use them

according to his necessities, subject only to the laws which regu-

late that use... .” Jd. at 93. Regulation included erecting docks,

harbors and wharves, and improving fishery and oyster beds.

This common property had passed from Charles II to the Duke

of York. Upon surrender of all rights of government in 1702, the

common property reverted to the Crown of England, and upon

the Revolution these royal rights became vested in the people of

New Jersey. Id. at 94. See also J. Angell, A Treatise on the

Right of Property in Tidewaters and in the Soil and Shores

Thereof 42-43 (2d ed. 1847); D. Ducsik, Shoreline for the Pub-

lic 89-91 (1974). Later in //linois Central R.R. v. Illinois, 146

‘Chief Justice Taney in Martin v. Waddell’s Lessee, 41 U.S. (16 Pet.) 367,

410, 10 L.Ed. 997, 1013 (1842), came to substantially the same conclusion

that Chief Justice Kirkpatrick did, and wrote:

The question is not free from doubt, and the authorities referred to in the

English books cannot, perhaps, be altogether reconciled. But . . . the question

must be regarded as settled in England against the right of the king since

Magna Charta to make such a grant [of a portion of the soil covered by

navigable waters].

It is doubtful whether the sections of the Magna Charta upon which the

Chief Justices relied support the proposition that the crown could not make

grants involving the tidal waters. See Note, “The Public Trust in Tida! Areas:

A Sometime Submerged Traditional Doctrine,” 79 Yale L.J. 762 (1970).

10a

SUPREME COURT OF NEW JERSEY, 1984.

Matthews v. Bay Head Imp. Ass'n. 95 NJ.

Cite as, 95 N.J. 306

U.S. 387, 453, 13 S.Ct. 110, 118, 36 L.Ed. 1018, 1043 (1892),

the Supreme Court, in referring to the common property, stated

that “[t]he State can no more abdicate its trust over property in

which the whole people are interested. ... than it can abdicate

its police powers... .”

*Despite the language in Arnold v. Mundy, there developed the notion that a

shoreowner could obtain unrestricted ownership rights in the tidelands. See

Gough v. Bell, 22 N.J.L. 441 (Sup.Ct.1850), aff'd, 23 N.J.L. 624 (E.& A.

1852); see also Ross v. Mayor of Edgewater, 115 N.J.L. 477, 485 (Sup.Ct.

1935), aff'd o.b., 116 N.J.L. 477 (E. & A.), cert. denied, 299 U.S. 543, 57 S.Ct.

37, 81 L.Ed. 420 (1936) (noting that owner of upland contiguous to the shore

could appropriate the land between high and low water marks, provided he did

not injuriously interfere with paramount right of navigation and that upon

appropriation the owner had an “exclusive and indefeasible right of property”’).

This principle exists despite the fact that the State’s title in tidelands cannot be

lost by adverse possession or prescription. O'Neill v. State Hwy. Dept, 50 N.J.

307, 320 (1967). The Legislature, at least up to the 1860's, granted corporate

charters that included powers to occupy, possess and enjoy tide flowed land.

See, e.g., L. 1833, p. 92. In addition, the Legislature had from time to time

made direct grants of riparian lands. No gencral supervision or control seems

to have been exercised by the State until 1851, when the Legislature enacted

the Wharf Act, which authorized counties to grant licenses to riparian owners

to construct wharves in tidal waters. L. 1851, p. 335.

The Wharf Act was modified in 1869 to exclude the Hudson River, New

York Bay and Kill Von Kull. L. 1869, c. 383, § 3. It was repealed in 1891, and

the Riparian Commission was authorized to sell riparian grants. L. 1891, c.

124, § 3; N.J.S.A. 12:3-4. The Commission's administration was extremely lax

and it frequently sold or leased in perpetuity riparian rights for inadequate

amounts. See 1873 Report of the Riparian Commissioners 5, which states that

“(t]he Commissioners, in all cases, favor a liberal arrangement with shore

owners, and deem that it is for the mutual interest and advantage of the ripar-

ian owners and of the State, to fix a valuation where the lands under tidal

water along the whole frontage of the riparian owner are taken at one time, at

such reasonable rates as will enable such owners, for a moderate sum which

will not be burdensome, to acquire the ownership and control of such lands,

and also secure an immediate return therefor to the State treasury.” See Report

of the New Jersey Committee to Investigate Granting of Riparian Lands by

the State, Etc. (1907); see also Platt, “With Rivers and Harbors Unsurpassed:

New Jersey and Her Tidelands, 1860-1870,” 99 N.J. Hist. 145 (1981). One

commentator states that decisional law post-Arnold acquiesced in legislative

lla

SUPREME COURT OF NEW JERSEY, 1984.

95 N.J. Matthews v. Bay Head Imp. Ass’n.

Cite as, 95 N.J. 306

In Avon, Justice Hall reaffirmed the public’s right to use the

waterfront as announced in Arnold v. Mundy. He observed that

the public has a right to use the land below the mean average

high water mark® where the tide ebbs and flows. These uses have

historically included navigation and fishing. In Avon

the public’s rights were extended “to recreational uses, includ-

and private derogation of the common rights so that by 1973 the “legal and

equitable tidalwater resource title had, practically, been squeezed from the citi-

zenry.” Jaffee, “The Public Trust Doctrine Is Alive and Kicking in New Jersey

Tidalwaters: Neptune City v. Avon-By-The-Sea—A Case of Happy Ata-

vism?,” 14 Nat. Resources J. 309, 310 (1974).

We are not unmindful of the principle that proceeds received by the State

from the sale of property lying under water constitute a part of the permanent

school fund. N.J.S.A. 18A:56-—5, -6; see N.J. Const. (1947), Art. VIII, § IV,

par. 2; N.J. Const. (1844), Art. IV, § VII, par. 6. The fact that compensation

has been paid for grants and leases may not eliminate per se the public’s right

to some use of the common property for a public purpose. Compare Schultz v.

Wilson, 44 N.J. Super. 591, 597 (App. Div.), certif. denied, 24 NJ. 546

(1957), which stated that “[t]he Legislature has the power. absolute and lim-

ited, to regulate, abridge or vacate public rights in tidal waters except in the

field reserved to Congress by the Federal Constitution,” with Borough of Nep-

tune City v. Borough of Avon-by-the-Sea, 61 N.J. 296, 308 (1972), asserting

that the Legislature may not have had unlimited power to convey trust lands or

“at least that they are impliedly impressed with certain obligations on the

grantee to use the conveyed lands only consistently with the public rights

therein. For example, the conveyance of tide-flowed lands bordered by an

ocean dry sand area in private ownership to the owner thereof may well be

subject to the right of the public to use the ocean waters.” See also N.J. Sports

& Exposition Authority v. McCrane, 61 N.J. 1, 67-68, 292 A.2d 545 (Hall, J.,

concurring in part and dissenting in part) (stating that the public trust doctrine

does not prohibit all alienation by the state of riparian lands, but that convey-

ances are subject to use by the public depending on the nature of the land),

appeal dismissed sub nom. Borough of East Rutherford v. N.J. Sports &

Exposition Authority, 409 U.S. 943, 93 S.Ct. 270, 34 L.Ed.2d 215 (1972). The

leasing and granting of foreshore and ocean beach property by the state not

inconsistent with the public interest are unquestionably valid.

*The high water mark is the “line formed by the intersection of the tidal

plane of mean high tide with the shore.” O'Neill v. State Hwy. Dep't, 50 N.J.

12a

SUPREME COURT OF NEW JERSEY, 1984.

Matthews v. Bay Head Imp. Ass'n. 95 NJ.

Cite as, 95 N.J. 306

ing bathing, swimming and other shore activities.” 61 N.J. at

309. Compare Blundell v. Catterall, 5 B. & Ald. 268, 106

Eng.Rep. 1190 (K.B.1821) (holding no right to swim in common

property) with Martin v. Waddell’s Lessee, 41 U.S. (16 Pet.)

367, 10 L.Ed. 997 (1842) (indicating right to bathe in navigable

waters). The Florida Supreme Court has held:

The constant enjoyment of this privilege [bathing in salt waters] of thus

using the ocean and its fore-shore for ages without dispute should prove

sufficient to establish it as an American common law right, similar to that

of fishing in the sea, even if this right had not come down to us as a part of

the English common law, which it undoubtedly has. /White v. Hughes, 139

Fla. 54, 59, 190 So. 446, 449 (1939).]

It has been said that “[h]ealth, recreation and sports are encom-

passed in and intimately related to the general welfare of a well-

balanced state.” N.J. Sports & Exposition Authority v.

McCrane, 119 N.J.Super. 457, 488 (Law Div.1971), aff'd, 61

N.J. 1, appeal dismissed sub nom. Borough of East Rutherford

v. N.J. Sports & Exposition Authority, 409 U.S. 943, 93 S.Ct.

270, 34 L.Ed.2d 215 (1972). Extension of the public trust doc-

trine to include bathing, swimming and other shore activities is

consonant with and furthers the general welfare. The public’s

right to enjoy these privileges must be respected.

In order to exercise these rights guaranteed by the public trust

doctrine, the public must have access to municipally-owned dry

sand areas as well as the foreshore. The extension of the public

trust doctrine to include municipally-owned dry sand areas was

necessitated by our conclusion that enjoyment of rights in the

foreshore is inseparable from use of dry sand beaches. See

Lusardi v. Curtis Point Property Owners Ass’n, 86 N.J. 217,

228 (1981). In Avon we struck down a municipal ordinance that

required nonresidents to pay a higher fee than resi-

307, 323 (1967). The mean or ordinary high tide is a mean of all high tides over

a period of 18.6 years. Id. at 324: see also Borax Consolidated, Lid. v. City of

Los Angeles, 296 U.S. 10, 26-27, 56 S. Ct. 23, 31, 80 L.Ed. 9, 20 (1935).

l3a

SUPREME COURT OF NEW JERSEY, 1984.

95 N.J. Matthews v. Bay Head Imp. Ass'n.

Cite as, 95 N.J. 306

dents for the use of the beach. We held that where a municipal

beach is dedicated to public use, the public trust doctrine “dic-

tates that the beach and the ocean waters must be open to all on

equal terms and without preference and that any contrary state

or municipal action is impermissible.” 61 N.J. at 309. The Court

was not relying on the legal theory of dedication, although dedi-

cation alone would have entitled the public to the full enjoyment

of the dry sand. Instead the Court depended on the public trust

doctrine, impliedly holding that full enjoyment of the foreshore

necessitated some use of the upper sand, so that the latter came

under the umbrella of the public trust.

In Van Ness v. Borough of Deal, 78 N.J. 174 (1978), we

stated that the public’s right to use municipally-owned beaches

was not dependent upon the municipality’s dedication of its

beaches to use by the general public. The Borough of Deal had

dedicated a portion of such beach for use by its residents only.

We found such limited dedication “immaterial” given the public

trust doctrine’s requirement that the public be afforded the right

to enjoy all dry sand beaches owned by a municipality. 78 NJ.

at 179-80.

II}

Public Rights in Privately-Owned Dry Sand Beaches

In Avon and Deal our finding of public rights in dry sand

areas was specifically and appropriately limited to those beaches

owned by a municipality. We now address the extent of the pub-

lic’s interest in privately-owned dry sand beaches. This interest

may take one of two forms. First, the public may have a right to

cross privately owned dry sand beaches in order to gain access to

the foreshore. Second, this interest may be of the sort enjoyed by

the public in municipal beaches under Avon and Deal, namely,

the right to sunbathe and generally enjoy recreational activities.

l4a

SUPREME COURT OF NEW JERSEY, 1984.

Matthews v. Bay Head — Ass'n. 95 N.J.

Cite as, 95 N.J. 3

Beaches are a unique resource and are irrepl: ble. The pub-

lic demand for beaches has increased with the growth of popula-

tion and improvement of transportation facilities. Furthermore

the projected demand for salt water swimming will not be met

“unless the existing swimming capacities of the four coastal

counties are expanded.” Department of Environmental Protec-

tion, Statewide Comprehensive Outdoor Recreation Plan 200

(1977). The DEP estimates that, compared to 1976, the State’s

salt water swimming areas “must accommodate 764,812 more

persons by 1985 and 1,021,112 persons by 1995.” Jd. See also

Note, “Public Access to Beaches: Common Law Doctrines and

Constitutional Challenges,” 48 N.Y.U.L. Rev. 369 (1973). Sen-

sitivity to the increased demand and limited supply was voiced

by Justice Pashman in Lusardi v. Curtis Point Property Owners

Ass'n, 86 N.J. 217, 227-28 (1981), when he wrote:

Oceanfront property is uniquely suitable for bathing and other recrea-

tional activities. Because it is unique and highly in demand, there is growing

concern about the reduced “availability to the public of its priceless beach

areas,” Van Ness v. Borough of Deal, 78 N.J. 174, 180 (1978). This concern

is reflected in a statewide policy of encouraging, consonant with environmen-

tal demands, greater access to ocean beaches for recreational purposes.

Expressions of this policy can be found in three sources: the decisions of this

Court concerning the public trust doctrine, Van Ness v. Borough of Deal,

supra; Hyland v. Borough of Allenhurst, 78 N.J. 190 (1978); Borough of

Neptune City v. Borough of Avon-by-the-Sea, supra, \egislation such as the

Beaches and Harbors Bond Act of 1977, L.1977, c. 208, and the Coastal

Resource and Development Policies promulgated by the Department of

Environmental Protection, N.J.A.C. 7:7E-1.1 to -9.23.

Exercise of the public’s right to swim and bathe below the

mean high water mark may depend upon a right to pass across

the upland beach. Without some means of access the public

right to use the foreshore would be meaningless. To say that the

public trust doctrine entitles the public to swim in the ocean and

to use the foreshore in connection therewith without assuring the

public of a feasible access route would serious!y impinge on, if

1Sa

SUPREME COURT OF NEW JERSEY, 1984.

95 NJ. Matthews v. Bay Head Imp. Asv'n.

Cite as, 95 N.J. 306

not effectively eliminate, the rights of the public trust doctrine.

This does not mean the public has an unrestricied right to cross

at will over any and all property bordering on the common prop-

erty. The public interest is satisfied so long as there is reasonable

access to the sea.

Judge Best, in his dissent in Blundell v. Catterall, 5 B. & Ald.

268, 275, 106 Eng. Rep. 1190, 1193 (K.B. 1821), stated that

passage to the seashore was essential to the exercise of that

right. He believed that bathing in the tidal waters was an essen-

ticl right similar to that of navigation and served the general

welfare by promoting health and the ability to swim. 5 B. & Ald.

at 278-79, 106 Eng.Rep. at 1194. (Best, J., dissenting). Though

respecting the interest of the private owner, Judge Best observed

that the greatest part of the seashore had been barren and

therefore had not become exclusive property. “It is useful only

as a boundary and an approach to the sea; and therefore, ever

has been, and ever should continue common to all who have

occasion to resort to the sea.” /d. at 283-84; 106 Eng.Rep. at

1196. Judge Best would have held on principles of public policy

“that the interruption of free access to the sea is a public nui-

sance.... The principle of exclusive appropriation must not be

carried beyond things capable of improvement by the indusiry of

man. If it be extended so far as to touch the right of walking

over these barren sands, it will take from the people what is

essential to their welfare, whilst it will give to individuals only

the hateful privilege of vexing their neighbours.” /d. at 287, 106

Eng.Rep. at 1197.

The touchstone of Judge Best’s reasoning is that the particular

circumstances must be considered and examined before arriving

at a solution that will accommodate the public’s right and the

private interests involved. Thus an undeveloped segment of the

shore may have been available and used for access so as to estab-

lish a public right-of-way to the wet sand. Or there may be

l6a

SUPREME COURT OF NEW JERSEY, 1984.

Matthews v. Bay Head Imp. Ass’n. 95 NJ.

Cite as, 95 N.J. 306

publicly-owned property, such as in Avon, which is suitable. Or,

as in this case, the public streets and adjacent upland sand area

might serve as a proper means of entry. The test is whether those

means are reasonably satisfactory so that the public’s right to

use the beachfront can be satisfied.

The bather’s right in the upland sands is not limited to

passage. Reasonable enjoyment of the foreshore and the sea can-

not be realized unless some enjoyment of the dry sand area is

also allowed.’ The complete pleasure of swimming must be

accompanied by intermittent periods of rest and relaxation

beyond the water’s edge. See State ex rel. Thornton v. Hay, 254

Or. 584, 599-602, 462 P.2d 671, 678-79 (1969) (Denecke, J.,

concurring). The unavailability of the physical situs for such rest

and relaxation would seriously curtail and in many situations

eliminate the right to the recreational use of the ocean. This was

a principal reason why in Avon and Deal we held that

municipally-owned dry sand beaches “must be open to ail on

equal terms....” Avon, 61 N.J. at 308. We see no reason why

rights under the public trust doctrine to use of the upland dry

sand area should be limited to municipally-owned property. It is

true that the private owner’s interest in the upland dry sand area

is not identical to that of a municipality. Nonetheless, where use

of dry sand is essential or reasonably necessary for enjoyment of

the ocean, the doctrine warrants the public’s use of the upland

dry sand area subject to an accommodation of the interests of

the owner.*

"Some historica! support for this proposition may be found in an analogous

situation where fishermen, in exercising the right of public fishery in tidal

waters, were permitted to draw nets on the beach above the ordinary high

water mark in the act of fishing. S. Moore & H. Moore, The History and Law

of Fisheries 96 (1903).

*The Coastal Resource and Development Policies of the Department of Envi-

ronmental Protection espouse a similar goal. N.J.A.C. 7:7E-3.21(c) states:

“Unrestricted access [to the beaches, the area landward from the mean high

17a

SUPREME COURT OF NEW JERSEY, 1984.

95 NJ. Matthews v. Bay Head Imp. Ass’n.

Cite as, 95 N.J. 306

We perceive no need to attempt to apply notions of prescrip-

tion, City of Daytona Beach v. Tona-Rama, Inc., 294 So. 2d 73

(Fla. 1974), dedication, Gion v. City of Santa Cruz, 2 Cal.3d 29,

465 P.2d 50, 84 Cal. Rptr. 162 (1970), or custom, State ex rel.

Thornton v. Hay, 254 Or. 584, 462 P.2d 671 (1969), as an

alternative to application of the public trust doctrine. Archaic

judicial responses are not an answer to a modern social problem.

Rather, we perceive the public trust doctiine not to be “fixed or

Static,” but one to “be molded and extended to meet changing

conditions and needs of the public it was created to benefit.”

Avon, 61 N.J. at 309.

Precisely what privately-owned upland sand area will be avail-

able and required to satisfy the public’s rights under the public

trust doctrine will depend on the circumstances. Location of the

dry sand area in relation to the foreshore, extent and availability

of publicly-owned upland sand area, nature and extent of the

public demand, and usage of the upland sand land by the owner

are all factors to be weighed and considered in fixing the con-

tours of the usage of the upper sand.

Today, recognizing the increasing demand for our

State’s beaches and the dynamic nature of the public trust doc-

trine, we find that the public must be given both access to and

use of privately-owned dry sand areas as reasonably necessary.

While the public’s rights in private beaches are not co-extensive

with the rights enjoyed in municipal beaches, private landowners

may not in all instances prevent the public from exercising its

rights under the public trust doctrine. The public must be

afforded reasonable access to the foreshore as well as a suitable

area for recreation on the dry sand.

water line] for recreational purposes is desirable so that the beaches can be

enjoyed by all residents and visitors of the state.”

18a

SUPREME COURT OF NEW JERSEY, 1984.

Matthews v. Bay Head Imp. Ass'n. 95 N.J.

Cite as, 95 N.J. 306

The Beaches of Bay Head

The Bay Head Improvement Association, which services the

needs of all residents of the Borough for swimming and bathing

in the public trust property, owns the street-wide strip of dry

sand area at the foot of seven public streets that extends to the

mean high water line. It also owns the fee in six other upland

sand properties connected or adjacent to the tracts it owns at the

end of two streets. In addition, it holds leases to approximately

42 tracts of upland sand area. The question that we must

address is whether the dry sand area that the Association owns

or leases should be open io the public to satisfy the public

rights under the public trust doctrine. Our analysis turns upon

whether the Association may restrict its membership to Bay

Head residents and thereby preclude public use of the dry sand

area.

The general rule is that courts will not compel admission to a

voluntary association. See Rutledge v. Gulian, 93 N.J. 113, 118

(1983); Higgins v. American Society of Clinical Pathologists,

S51 N.J. 191, 199 (1968). Ordinarily, a society or association

may set its own membership qualifications and restrictions.

However, that is not an inexorable rule. Where an organization

is quasi-public, its power to exclude must be reasonably and

lawfully exercised in furtherance of the public welfare related to

its public characteristics. See Guerrero v. Burlington Cty.

Memorial Hospital, 70 N.J. 344, 358 (1976).

In Greisman v. Newcomb Hospital, 40 N.J. 389 (1963),

plaintiff, holder of a degree of osteopathy and licensed to prac-

tice medicine and surgery, sought to be admitted to the courtesy

staff of the defendant hospital. The defendant hospital refused to

permit the plaintiff to file an application. The defendant con-

tended that it was a private hospital and that its actions were not

19a

SUPREME COURT OF NEW JERSEY, 1984.

9S NJ. Matthews v. Bay Head — Ass'n.

Cite as, 95 N.J. 306

reviewable by a court. Justice Jacobs, writing for the Court,

responded:

They are private in the sense that they are nongovernmental but they are

hardly private in other senses. Newcomb | Hospital] is a nonprofit organiza-

tion dedicated by its certificate of incorporation to the vital public use of

serving the sick and injured, its funds are in good measure received from

public sources and through public solicitation, and its tax benefits are

received because of its nonprofit and non-private aspects. Cf, Fairmount

Hospital, Inc. v. State Board of Tax Appeals, 122 N.J.L. 8, 11 (Sup. Ct.

1939), affd 123 N.J.L. 201 (E. & A. 1939), It constitutes a virtual monop-

oly in the area in which it functions and it is in no position to claim immunity

from public supervision and contre! because of its allegedly private nature.

Indeed, in the development of the law, activities much less public than the

hospital activities of Newcomb, have commonly been subjected to judicial

(as well as legislative) supervision and control to the extent necessary to

satisfy the felt needs of the times. [/d., 40 N.J. at 396.]

In considering the public interest, Justice Jacobs noted that

the defendant hospital was the only available hospital where the

plaintiff practiced and that the hospital was operated not for pri-

vaie ends but for the benefit of the public. Justice Jacobs con-

cluded that “courts would indeed be remiss if they declined to

intervene where ... the [hospital’s] powers were invoked at the

threshold to preciude an application for staff membership, not

because of any lack of individual merit, but for a reason

unrelated to sound hospital standards and not in furtherance of

the common good.” /d. at 404.

In Falcone v. Middlesex Cty. Medical Society, 34 N.J. 582

(1961), plaintiff, a doctor of osteopathy licensed to practice

medicine and surgery, was refused membership in the defendant

County Medical Society. The effect of the refusal was that the

plaintiff could not obtain staff privileges at any hospital in the

area. Recognizing the judiciary’s reluctance to interfere with the

internal affairs of membership associations, the Court staied

that it would do so “in particular situations, where considera-

tions of policy and justice were sufficiently compelling. ...” Jd.

at 590. Noting that the Medical Society was not simply a social

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SUPREME COURT OF NEW JERSEY, 1984.

Matthews v. Bay Head Imp. Assn. 95 NJ.

Cite as, 95 NJ. 306

organization, the Court viewed membership as an economic

necessity and asserted that courts “must be particularly alert to

the need for truly protecting the public welfare and advancing

the interest of justice by reasonably safeguarding the individu-

al’s opportunity for earning a livelihood while not impairing the

proper standards and objectives of the organization.” /d. at 592.

A principle that may be distilled fron. Greisman and Falcone

is that a nonprofit association that is authorized and endeavors

to carry out a purpose serving the general welfare of the commu-

nity and is a quasi-public institution holds in trust its powers of

exclusive control in the areas of vital public concern. See also

Marjorie Webster Jr. College v. Middle States Ass'n of

Colleges and Secondary Schools, Inc., 302 F.Supp. 459, 469

(D.D.C. 1969) (stating that court may be forced to intervene in

affairs of a volutary association where the association “enjoys

monopoly power in an area of vital public concern’’), rev'd on

other grounds, 432 F.2d 650 (D.C. Cir.), cert. denied, 400 U.S.

965, 91 S.Ct. 367, 27 L.Ed.2d 384 (1970). When a nonprofit

association rejects a membership application for reasons unre-

lated to its purposes and contrary to the general welfare, courts

have “broad judicial authority to insure that exclusionary poli-

cies are lawful and are not applied arbitrarily or discriminately.”

Greisman, 40 N.J. at 395; see also Oates v. Eastern Bergen

County Multiple Listing Service, Inc., 113 N.J. Super. 371,

387-89 (Ch. Div. 1971); Davis v. Morristown Memorial Hospi-

tal, 106 N.J. Super. 33, 42 (Ch. Div. 1969). That is the situation

here.

Bay Head Improvement Association is a non-profit corpora-

tion whose primary purpose as stated in its certificate of incorpo-

ration is the “cleaning, policing and otherwise making attractive

and safe the bathing beaches” in the Borough of Bay Head “and

the doing of any act which may be found necessary or desirable

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SUPREME COURT OF NEW JERSEY, 1984.

95 NJ. Matthews v. Bay Head Imp. Ass'n.

Cite as, 95 N.J. 306

for the greater convenience, comfort and enjoyment of the resi-

dents.” Its constitution states:

The objects of this corporation shall be to promote the best interests of the

Borough of Bay Head and in so doing to own property, operate bathing

beaches, hire life guards, beach cleaners and policemen and do any and all

things which, in the judgment of their Executive Committee, may be in the

best interests of the Borough of Bay Head... .

Shortly after the Association was incorporated and had estab-

lished a plan to operate beaches that would be open to all resi-

dents of Bay Head, the Bay Head Borough Council, after

discussion with the Association’s members, adopted resolutions

approving the plan and agreeing to cooperate with the Associa-

tion in carrying out this plan “insofar as it lies within the power

of the Council so to do.” The municipality evidenced its

cooperation thereafter in a number of ways. It provided office

space without charge in the Borough Hall between 1934 and

1973. Until 1975 seven parcels that ran from public streets to

the mean high tide, all owned by the Association, were not

assessed and the Association paid no realty taxes for those prop-

erties. The Borough’s blanket liability insurance policies in

effect between 1962 and 1968 covered the Association’s activi-

ties on the beach area. The Borough appropriated public funds

for the Association’s benefit, $600 annually between 1936 and

1941, and $1,000 in 1969. Six groins (stone jetties) have been

installed on the beach. The Borough paid one quarter of their

cost; Ocean County, one quarter; and the State, one half.

The Association’s activities paralleled those of a municipality

in its operation of the beachfront. The size of the beach was so

great that it stationed lifeguards at five separate locations. The

beach serviced about 5,000 members. The lifeguards performed

the functions characteristic of those on a public beach. They

posted warnings with respect to the safety of swimming. They

stood ready to render assistance to anyone in need of aid. These

guards were available daily throughout the summer months. The

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SUPREME COURT OF NEW JERSEY, 1984.

Matthews v. Bay Head Imp. Ass'n. 95 NJ.

Cite as, 95 N.J. 306

beach was maintained and kept clean by crews who worked each

day. These crews cleaned the beach from end-to-end, including

properties not leased to the Association. Membership badges

were sold and guards were stationed at entrances to the beach to

make certain that only those licensed could gain admittance.

Further, some guards patrolled the beach to make certain that

members and guests complied with the Association’s rules and

regulations. When viewed in its totality—its purposes, relation-

ship with the municipality, communal characteristic, activities,

and virtual monopoly over the Bay Head beachfront-—the quasi-

public nature of the Association is apparent. The Association

makes available to the Bay Head public access to the common

tidal property for swimming and bathing and to the upland dry

sand area for use incidental thereto, preserving the residents’

interests in a fashion similar to Avon.”

*There are nine public streets, which run in an east-west direction, that ter-

minate at the upper dry sands of the oceanfront. With respect to seven of these

streets, the Association owns the strip of dry sand stretching from the ends of

these streets to the wet sands where the public has a right to bathe and swim.

The Association acquired those properties to enable all Bay Head residents to

enjoy the public’s common interest in the beach—both swimming and bathing

in the water and incidental uses in the dry sand adjacent thereto. The munici-

pality extended its public streets, which run in an east-west direction, into the

upper dry sand area in order to give the public a means of access to the beach.

That this was its probable intent becomes apparent when noting the location of

the terminals of these streets. The east-west streets run beyond East Avenue,

which runs parallel to the ocean and is the most easterly highway running

north-south in the borough, to the upland sands. The land beyond is barren.

The only apparent purpose in extending these streets to the upper sands was to

provide a means of ingress to and egress from the beach.

Because of our holding herein, we need not decide whether the public

streets may be deemed to extend to the foreshore or whether the public's

right of way from the public streets to the foreshore exists because of an

easement by necessity, dedication, or prescription: It has been contended

that “trespass actions will not lie against New Jersey citizens who, without

injuring improvements, traverse upland beach abutting a public road or

street to reach foreshore.” Jaffee, supra n. 4, at 316. See Mayor of Jersey

City v. Morris Canal and Banking Co., 12 N.J. Eq. 545 (E. & A. 1859)

23a

SUPREME COURT OF NEW JERSEY, 1984.

95 N.J. Matthews v. Bay Head Imp. Ass'n.

Cite as, 95 N.J. 306

There is no public beach in the Borough of Bay Head. If the

residents of every municipality bordering the Jersey shore were

to adopt the Bay Head policy, the public would be prevented

from exercising its right to enjoy the foreshore. The Bay Head

residents may not frustrate the public’s right in this manner."°

By limiting membership only to residents and foreclosing the

public, the Association is acting in conflict with the public good

and contrary to the strong public policy “in favor of encouraging

and expanding public access to and use of shoreline areas.” Gion

v. City of Santa Cruz, 2 Cal.3d 29, 43, 465 P.2d 50, 59, 84

Cal.Rptr. 162, 171 (1970). Indeed, the Association is frustrating

the public’s right under the public trust doctrine. It should not

be permitted to do so.

Accordingly, membership in the Association must be open to

the public at large. In this manner the public will be assured

access to the common beach property during the hours of 10:00

a.m. to 5:30 p.m. between mid-June and September, where they

may exercise their right to swim and bathe and to use the Asso-

ciation’s dry sand area incidental to those activities. Although

such membership rights to the use of the beach may be broader

than the rights necessary for enjoyment of the public trust, open-

ing the Association’s membership to all, nonresidents and resi-

dents, should lead to a substantial satisfaction of the public trust

doctrine. However, the Association shall also make available a

reasonable quantity of daily as well as seasonal badges to the

nonresident public. Its decision with respect to the number of

daily and seasonal badges to be afforded to nonresidents should

take into account all relevant matters, such as the public

(holding that public was entitled to an extension of the street to tide water

over land filled in by shore owner in front of terminus of the street as if land

filled in were an alluvion).

“According to a report of the New Jersey Beach Access Study Commission,

supra n. |, at 21-22, app. 5, only four of the forty-eight municipalities have no

publicly-owned dry beach.

24a

SUPREME COURT OF NEW JERSEY, 1984.

Matthews v. Bay Head Imp. Ass'n. 95 N.J.

Cite as, 95 N.J. 306

demand and the number of bathers and swimmers that may be

safely and reasonably accommodated on the Association’s prop-

erty, whether owned or leased. The Association may continue to

charge reasonable fees to cover its costs of lifeguards, beach

cleaners, patrols, equipment, insurance, and administrative

expenses. The fees fixed may not discriminate in any respect

between residents and nonresidents. The Association may con-

tinue to enforce its regulations regarding cleanliness, safety, and

other reasonable measures concerning the public use of the

beach. In this connection, it would be entirely appropriate, in the

formulation and adoption of such reasonable regulations con-

cerning the public’s use of the beaches, to encourage the partici-

pation and cooperation of all private beachfront property own-

ers, regardless of their membership in or affiliation with the

Association.

The Public Advocate has urged that all the privately-owned

beachfront property likewise must be opened to the public.

Nothing has been developed on this record to justify that conclu-

sion. We have decided that the Association’s membership and

thereby its beach must be open to the public. That area might

reasonably satisfy the public need at this time. We are aware

that the Association possessed, as of the initiation of this litiga-

tion, about 42 upland sand lots under leases revocable on 30

days’ notice. If any of these leases have been or are to be termi-

nated, or if the Association were to sell all or part of its property,

it may necessitate further adjudication of the public’s claims in

favor of the public trust on part or all of these or other privately-

owned upland dry sand lands depending upon the circumstances.

However, we see no necessity to have those issues resolved judi-

cially at this time since the beach under the Association’s control

will be open to the pblic and may be adequate to satisfy the

public trust interests. We believe that the Association and prop-

erty owners will act in good faith and to the satisfaction of the

Public Advocate. Indeed, we are of the opinion that all parties

25a

ieeaamaaaa aaa aii ai

SUPREME COURT OF NEW JERSEY, 1984.

95 N.J. Matthews v. Bay Head Imp. Ass’n.

Cite as, 95 N.J. 306

will benefit by our terminating this prolonged litigatiun at this

time.

The record in this case makes it clear that a right of access to

the beach is available over the quasi-public lands owned by the

Association, as well as the right to use the Association’s upland

dry sand. It is not necessary for us to determine under what cir-

cumstances and to what extent there will be a need to use the

dry sand of private owners who either now or in the future may

have no leases with the Association. Resolution of the competing

interests, private ownership and the public trust, may in some

cases be simple, but in many it may be most complex. In any

event, resolution would depend upon the specific facts in

controversy.

None of the foregoing matters were fully argued or briefed,

the disputes concerning rights in and to private beaches having

been most general. All we decide here is that private land is not

immune from a possible right of access to the foreshore for

swimming or bathing purposes, nor is it immune from the possi-

bility that some of the dry sand may be used by the public inci-

dental to the right of bathing and swimming.

We realize that considerable uncertainty will continue to sur-

round the question of the public’s right to cross private land and

to use a portion of the dry sand as discussed above. Where the

parties are unable to agree as to the application of the principles

enunciated herein, the claim of the private owner shall be hon-

ored until the contrary is established.

The modifications in the membership and daily badge practice

we have decided upon here shall be made effective for the next

summer season commencing June 1, 1984.

The judgment of the Appellate Division is reversed in part and

affirmed in part. Judgment is entered for the plaintiff against

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SUPREME COURT OF NEW JERSEY, 1984.

Matthews v. Bay Head Imp. Ass'n. 95 N.J.

Cite as, 95 N.J. 306

the Association. Judgment of dismissal against the individual

property owners is affirmed without prejudice. No costs.

For reversal in part; affirmance in part—Chief Justice

WILENTZ and Justices CLIFFORD, SCHREIBER, HAN-

DLER, POLLOCK and O HERN—4.

Opposed—None.

27a

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