Appendix — Stevens v. Arnold

a SEM

EXCERPTS FROM AN ACT ENTITLED ‘‘AN

ACT TO COMPEL THE DETERMINATION

OF CLAIMS TO REAL ESTATE IN CER-

TAIN CASES, AND TO QUIET THE TITLE

TO THE SAME.’’

4 Compiled Statutes of New Jersey, page 5399.

**1. Suit to quiet title by person in posses-

sion; persons presumed to be in possession of

wild lands, ete. That when any person is in

peaceable possession of lands in this State,

claiming to own the same and his title thereto

or to any part thereof is denied or disputed, or

any other person claims or is claimed to own

the same or any part thereof, or any interest

therein, or to hold any lien or incumbrance

thereon, and no suit shall be pending to enforce

or test the validity of such title, claim or in-

cumbrance, it shall be lawful for such person

so in possession to bring and maintain a suit

in chancery to settle the title of said lands, and

to clear up all doubts and disputes concerning

the same; the bill of complaint in such suit

shall describe the lands with certainty, and

shall name the person who claims, or is claimed

or reputed to have such title or interest in or

incumbrance on said lands, and shall call upon

such person to set forth and specify his title,

claim or ineumbrance, and how and by what

instrument the same is derived or created; and

whenever any lands within this State shall not,

by reason of their extent or by reason of such

lands being wild or wood or waste or unin-

closed or unimproved lands, be in the actual

peaceable possession of the owner or person

claiming to own the same, the owner or per-

PDS aN VBE Ip sne DAP PLE LSE ABE ENO SOS LIIIR BIS SEES ERIS

Selo LRTI IRE ROT SO RS ROE TS Wee ale hd oe Ne aie ene ® aa ound

Ps

2a

7 ad 2S ee eee eae eee ee = poe ty

Appendix

son claiming to own the same in fee under a

deed or other instrument, duly recorded within

this State, who shall have paid the taxes upon

such lands and to whom or to whose grantors

the taxes upon such lands shall have been as-

sessed for five consecutive years immediately

prior to the commencement of suit, shall be

presumed to be in peaceable possession of such

lands within the meaning of this Act; provided,

no other person be in possession thereof; and

it shall be lawful for such person so presumed

to be in possession to bring and maintain a

suit in chancery to settle the title of said lands

and to clear up all doubts and disputes con-

cerning the same, and such person so presumed

to be in possession shall be entitled to all the

benefits of and subject to all the provisions of

this Act. (Rev. 1877, p. 1189, as amended P.

L. 1901, p. 587.)”’

‘“*4. Answer of defendant claiming any es-

tate; specification of title, ete. That if any de-

fendant shall answer claiming any estate, or

interest in, or ineumbrance on said lands or

any part thereof, he shall in such answer

specify and set forth the estate, interest or in-

cumbrance so claimed, and if not claimed in

or upon the whole of said lands, he shall

specify and describe the part in or upon which

the same is claimed, and shall set out the man-

ner in which, and the sources through which

such title or incumbranee is claimed to be de-

rived. (Rev. 1877, p. 119U.)”’

**5. Issue at law may be directed on appli-

cation of either party. That upon application

of either party, an issue at law shall be di-

rected to try the validity of such claim, or to

settle the facts, or any specified portion of the

iA EEO hi ye a A Fn a nl Ras cle

Appendix

facts upon which the same depends, and the

Court of Chancery shall be bound by the re-

sult of such issue, but may, for sufficient rea-

sons, order a new trial thereof, according to the

practice in such cases; and when such issue is

not requested, or as to the facts for which the

same is not requested, the Court of Chancery

shall proceed to inquire into and determine

such claims, interest and estate, according to

the course and practice of that court; and shall,

upon the finding of such issue, or upon such

inquiry and determination, finally settle and

adjudge whether the defendant has any estate,

interest or right in, or ineumbrance upon said

lands, or any part thereof, and what such in-

terest, estate, right or incumbrance is, and in

or upon what part of said lands the same ex-

ists. (Ree. 1877, p. 1190.)””

**6. Deeree to settle rights of all parties and

to be conclusive. That the final determination

and decree in such suit, shall fix and settle the

rights of the parties in said lands, and the same

shall be binding and conclusive on all parties

to the suit; but if any defendant to such suit,

shall, either at the time of the decree pro con-

fesso against him, or at the final decree, be an

infant or non compos mentis, such party, his

heirs or assigns, at any time within two years

after the termination of such disability, may

appear in said suit, and apply for a rehearing,

and thereupon such decree shall be opened as

against such party, and the cause may proceed

as if no decree had been made in the same

against him. (Rev. 1877, p. 1190.)*’

MERON TAA LIP LOE ELLIE FORE TIE IE OLE DES SSO NS

4a Appendix

EXCERPT FROM RECORD IN DEWEY LAND

CO. V. STEVENS.

IN CHANCERY OF NEW JERSEY.

Between

Dewey Lanp Company, et al.,

Complainants,

On Bill, ete.

and

Henry KH. Srevens, Jr., et ai.,

Defendants.

TESTIMONY.

Transcript of testimony taken in the above-en-

titled cause, before Hox. Kpwix Rosperr Waker,

Vice-Chancellor, at the Camden County Court

House, on the second day of February, nineteen

hundred and twelve, at eleven o’elock A. M.

APPEARANCES—GEorGE A. Bourcerotis, Ese., for the

complainants; Harvey F. Carr, Ese., for the defen-

dants.

Mr. Bourgeois: Mr. Carr is willing that the bill

of complaint shall be amended, as follows, so that

the bill will read:

—

Appendix 5a

After the words ‘‘bounded and described as fol-

lows,’’ at the end of the first paragraph and before

the word ‘‘beginning,”’ interline the following:

‘Beginning at a point in the easterly line of

New Hampshire Avenue, 240 feet southwest-

erly from Pacifie Avenue, said point being the

southeast corner of New Hampshire Avenue

and Dewey Place; thence extending (1) east-

wardly parallel with Pacifie Avenue and along

the south line of Dewey Place, 190 feet; thence

southwardly parallel with New Hampshire

Avenue to the high water-line of the Atlantic

Ocean as it existed in 1852; thence (3) south-

erly along the high water-line of the Atlantie

Ocean as it existed in 1852 to the easterly line

of New Hampshire Avenue, extended; thence

(4) northwardly along said line of New Hamp-

shire Avenue to the place of beginning; con-

veyed to complainants by various deeds of con-

veyance.’’

Strike out the two paragraphs after the words in

the first paragraph on the second page of said bill,

which reads as follows: ‘‘In Book 313 of Deeds,

page 363’’—the part stricken out beginning as fol-

lows: ‘‘and that by reason of the ‘as’ ”’ and ending

‘“‘more or less to the place of beginning.’’ All on

page 2 of said bill.

Mr. Carr: That will make necessary an amend-

ment to our answer, because a greater portion of the

lands are now claimed by the complainants than

were claimed in the original bill, and we want to

make our answer cover the increased territory now

claimed by the complainants; and I also want to

add to our claim of title, which is based upon a ri-

parian grant, a claim by accretions, as well as the

riparian title,

Spee Ne EES ee, La Ee ea

REPL EEE EDN i NOM LEEPER BR ER de 8 RS ay

6a Appendix

Mr. Bourgeois: There is no objection to that. We

will make the formal amendments later.

Mr. Bourgeois opens the case to the Court.

Mr. Bourgeois: I want first to offer in evidence

a certified copy of a map of dedication of Atlantic

City, and ask that it be marked Exhibit C1; this is

a reproduction of it.

OPINION OF VICE-CHANCELLOR WALKER,

DEWEY LAND CO. V. STEVENS.

Opinion of Vice-Chancellor Walker in Dewey

Land Company against Stevens, pages 108, 109,

110, 111.

IN CHANCERY OF NEW JERSEY.

Between

Dewey Lanp Company, et als.,

Complainants, ;

On Bill, ete.

and —

Henry E. Srevens, Jr, et al,

Defendants.

MEMORANDUM.

On final hearing on pleading and proofs.

Mr. Roperr H. Ineersott and Mr. Georce A.

Bourcgois, for complainants.

Messrs. Witson anp Carr, for defendants.

PSY SPE ERG ETN Die HT per BEI ee MIRAE SRE TAO GE OPENER ty EN PURI te REINS

Appendix Ta

Wa ker, C.

The bill in this cause is one to quiet title. The

complainants acquired a lot of land in Atlantic City

fronting upon the ocean, by deed dated December

19th, 1904. The southerly line of the lot bounded

upon high-water line of the Atlantic Ocean.

The allegations of the complainants are, that by

reason of aceretions in front of their tract by allu-

vial deposits, the high-water line has been projected

out into the ocean a considerable distance, and that,

by the law of this State they are entitled to the land

this made oceanward of the original high-water line.

As a legal proposition this is correct. Ocean City

Association v. Schriver, 64 N. J. L. (35 Vr.) 550,

But, in this ease title to part of the land thus made

is claimed by the defendants in virtue of a riparian

grant by the State, made June 28th, 1900, which

antedates the complainant’s conveyance.

New Hampshire Avenue in Atlantic City runs

nearly north and south. On this avenue, on oppo-

site sides and opposite to each other, are the lands

of the complainants and defendants, those of the

complainants on the easterly and those of the de-

fendants on the westerly side. At the time of the

riparian grant to the defendants’ predecessors in

title, June 28th, 1900, high-water mark in the At-

lantic Ocean eut across New Hampshire Avenue

and the adjacent lands, on both sides of the avenue,

from northeast to southwest, which presented a

shore front line in the Bartletts (predecessors in

title of defendants) which passed southwestwardly

instead of nearly westwardly, and which, extended

from the southeasterly corner at right angles from

the high-water line of May, 1900, as established by

the riparian commissioners, ran obliquely to the

southeast across the line of the complainant’s prem-

ises, extended rectangularly in a southerly direc-

= : — BEL ME) BOM Mtg OME A abs Babee BAAR Tn a a a

8a Appendix

tion. This was the situation when the riparian com-

missioners made to the Bartletts the riparian grant,

which extends out into the ocean, to an exterior line

established by themselves.

Alluvial deposits have been made all along the

ocean at the point in dispute, and have made fast

land in front of the complainants’ lot far oceanward

of the high-water line to which their conveyance

runs by metes and bounds, and which fast land is

well within a large portion of the defendants’ ri-

parian grant, also now largely fast land by reason

of accretions. That is to say, their lines now cross

each other on the same fast land.

It should be remarked that a portion of the north-

easterly line of the defendants’ riparian grant

crosses, and includes within it, a portion of the land

conveyed by metes and bounds to the complainants

by their deed above mentioned. This occurs by rea-

son of the fact that when the riparian grant was

made in 1900, that part of the land granted to the

Bartletts, and which was within the lines of the

complainants’ description as just mentioned, was

under water and therefore was the proper subject

of a riparian grant. This was in 1900, but in 1904,

when the complainants received their deed running

to high-water line as a monument, the line had then

extended a considerable distance eastward, and the

westerly line of complainants’ deed therefore inter-

sects and runs over for a considerable distance the

northeasterly line of the defendants’ grant.

The jurisidictional facts of peaceable possession

in complainants and no suit pending, are present.

The defendants admit that the complainants’

claim of ownership of the lands made by accretions

is disputed, and they deny that the complainants

have any title thereto within the lines of the tract

acquired from the Bartletts by deed dated April 25th,

= Ci MAMA Pig lg ast de at Lads Se

Appendix 9a

1905 (which includes the riparian grant), and that

such portion of the lands so conveyed as laid below

the high-water line of the Atlantic Ocean as that

line existed in May, 1900, was conveyed by the State

to the Bartletts, under whom they claim, in the ri-

parian grant of June 28th, 1900. In this position

they are correct in point of fact, and are also en-

titled to prevail as matter of law.

As was held in Sooy Oyster Co. v. Gaskill, 69

Atl. Rep. 1084, on the question of the force and ef-

fect of a riparian grant:

‘Where plaintiff shows ownership under an

absolute grant executed by the riparian com-

missioners, the complainant must be regarded

as the undisputed owner of the locus in quo, for

the grant is from the sovereign power, and is

protected from collateral attack, except through

false suggestions appedting on the fact of the

grant; and the fact that the grant is void,—

cannot be shown by affidavits, and the validity

of complainant’s grant on the ground stated

can only be determined by a direct proceeding

for that purpose brought in the name of the

Attorney-General.”’

The case of Attorney-General v. Morris & Cum-

mings Dredge Co., 64 N. J. Kq. (19 Dick.) 555; af-

firmed, 69 N. J. Eq. (3 Robb.) 829, is an illustration

of such a proceeding as Vice-Chancellor Leaming

mentions in Sooy Oyster Co. v. Gaskill. See also

Attorney-General v. Sooy Oyster ie, 78 MI. 1,

(49 Vr.) 394, at pp. 407-8 & 9.

The complainants’ bill must be dismissed, with

costs.

— SLOT als ERA (Rah A Te RRS LE NAR ete MELT RN ae —

10a Appendix

EXCERPTS FROM RIPARIAN STATUTES.

RIPARIAN RIGHTS.

Excerpts from the Riparian Rights, Statutes New

Jersey, 4 Compiled Statutes of New Jersey, page

4382.

15. ‘‘Grant of lands under water, Sec. 8. That if

any person or persons, corporation or corporations,

or associations, shall desire to obtain a grant for

lands under water which have not been improved,

and are not authorized to be improved, under any

grant or license protected by the provisions of this

act, it shall be lawful for any two of the said com-

missioners concurring, together with the governor

and attorney-general of the state, upon application

to them, to designate what lands under water for

which a grant is desired lie within the exterior lines,

and to fix such price, reasonable compensation, or

annual rentals for so much of said lands as lie be-

low high water mark, as are to be included in the

grant or lease for whieh such application shall be

made, and to certify the boundaries, and the price,

compensation or annual rentals to be paid for the

same, under their hands, which shall be filed in the

office of the secretary of state; and upon the pay-

ment of such price or compensation or annual ren-

tals, or securing the same to be paid to the treasurer

of this state, by such applicant, it shall be lawful

for such applicant to apply to the commissioners

for a conveyance, assuring to the grantee, his or

her heirs and assigns, if to an individual, or to its

suecessors and assigns, if to a corporation, the land

under water so described in said certificate; and the

said commissioners shall, in the name of the state,

and under the great seal of the state, grant the

Appendix lla

said lands in manner last aforesaid, and said con-

veyance shall be subscribed by the governor and at-

tested by the attorney-general and secretary of state,

and shall be prepared under the direction of the

attorney-general, to whom the grantee ‘shall pay

the expense of such preparation, and upon the de-

livery of such conveyance, the grantee may reclaim,

improve and appropriate to his and their own use,

the lands contained and described in the said cer-

tificate; subject, however, to the regulations and pro-

visions of the first and second sections of this act,

and such lands shall thereupon vest in said appli-

cant; provided, that no grant or license shall be

granted to any other than a riparian proprietor,

until six calendar months after the riparian pro-

prietors shall have been personally notified in writ-

ing by the applicant for such grant or license, and

shall have neglected to apply for the grant or li-

cense, and neglected to pay, or secured to be paid,

the price that said commission shall have fixed; the

notice in the ease of a minor shall be given to the

guardian, and in case of a corporation to any officer

doing the duties incumbent upon president, seere-

tary, treasurer or director, and in ease of a non-

resident, the notice may be by publication for four

weeks successively in a daily newspaper published

in Hudson County, and in a daily newspaper pub-

lished in New York City (Rev. 1877, p. 984).

20. ‘Grant to person other than riparian owner;

rights of riparian owner; how extinguished ; appeal.

See. 13. That in any case where a grant of the

lands of the state under water is made by the com-

missioners, to any person other than the riparian

owner that the state’s grantee shall not fill up or

improve said lands under water until the rights and

interest of the riparian owner in said lands under

water (if any he has) shall be extinguished, as fol-

Sri MeN n Rea ageY

PES S cin siondlitee ata yet es see

12a Appendix

lows: the said commissioners shall fix the amount

to be paid to said riparian owner for his yghts and

interest therein (if any he has), and said riparian

owner shall have the right, within twenty days af-

ter . has been notified of said amount, to accept

said sum in full extinguishment of all his rights, or

if he is dissatisfied with said award he may apply

to the Supreme Court at the next term thereafter

for a struck jury to try the question in such place

as may be designated by said Court, and said jury

may increase or diminish the amount to be paid the

said riparian owner, and their verdict shall be final

as to said amount, and on the payment or tender by

the state’s grantee to the riparian owner of the

amount fixed by said jury all the rights and inter-

ests of said riparian owner in the lands of the state

under water in front of his land shall be extin-

guished; that the costs of the trial shall be paid as

follows: if the verdict of the jury is greater than

the award of the commissioners then the state shall

pay the costs of the trial, if the verdict is the same

as the award or less than the award of the commis-

sioners then the riparian owner shall pay the costs

(Rev. 1877, p. 985).’’

21. ‘‘Riparian owners; application to commis-

sioners for lease or conveyance. Sec. 1. That any

riparian owner on tide waters in this state who is

desirous to obtain a lease, grant or conveyance from

the State of New Jersey of any lands under water

in front of his lands, may apply to the commis-

sioners, appointed under the act to which this is a

supplement and the supplements thereto, who may

make such lease, grant or conveyance with due re-

gard to the interests of navigation, upon such com-

pensation therefor. to be paid to the State of New

Jersey, as shall be determined by said commis-

sioners, which lease, conveyance or grant shall be

PAS ON ARO eT ewes ome EEE SES

Appendix 18a

executed as directed in the act to which this is a

supplement and the supplements thereto, and shall

vest all the rights of the state in said lands in

said lessee or grantee (Rev. 1877, p. 985).”’

26. ‘*Commissioners may fix purchase money or

rentals for lands below tide water; conveyances,

Sec. 1. That from and after the passage of this

act it shall be lawful for the riparian commissioners,

or any three of them therein concurring, together

with the governor of this state, to fix and determine,

within the limits prescribed by law, the price or

purchase money, or annual rental to be paid by any

applicant for so much of lands below high water

mark, or lands formerly under tide water belonging

to this state as may be described in any application

therefor duly made according to law; and the said

commissioners, or any three of them therein acting

and coneurring, with the approval ot the governor,

shall in the name and under the great seal of the

state, grant or lease said lands to such applicant ac-

cordingly; and all sueh conveyances or leases shall

be prepared by the said commissioners or their

agents at the cost and expense of the grantee or

lessee therein, and shall be subscribed by the gover-

nor, and at least three of said commissioners, and

attested by the secretary of state (Rev. 1877, p.

986).’?

39. **Sale or lease of lands below mean high

water mark. See. 4. That the riparian commis-

sioners, or a majority of them, together with the

governor, shall not hereafter be required to give

leases for lands of the state under water, convert-

ible into grants upon payment of the principal sum

mentioned therein, but may sell or let any of the

lands of the state below mean high water mark,

upon such terms as to purchase money or rental,

and under such conditions and restrictions as to

14a Appendia

time and manner of payment, the duration and re-

moval of any lease, the occupation and use of the

land sold or leased, and such other conditions and

restrictions as the interest of the state may re-

quire, as may be fixed and determined by said ri-

parian commissioners, or a majority of them, to-

gether with the governor (P. L. 1891, p. 215).

(Inconsistent laws repealed.)

Cited: Improvement Co. v. Railroad Co., 72 L.

137, 60 A. 44.

Preamble. Whereas, the Palisades situate in this

state are liable to be irreparably injured or de-

stroyed, unless measures be adopted for the preser-

vation thereof; and whereas, by the insertion or

imposition of proper and appropriate terms, con-

ditions, restrictions and limitations in leases, grants

and conveyances of the lands lving under water ad-

jacent to or in front of the Palisades, the threatened

injury or destruction thereof may, in a great de-

gree, be averted.’’

et es Sh oat nate RTPID ES Ow ay eee ae ON NN TMS AY SLE AAR: &

No. 598.

IN THE

UNITED STATES SUPREME COURT

October Term, 1921.

HENRY E. STEVENS, JR.,

Petitioner,

v.

ARTHUR S. ARNOLD, ABRAM L. ERLANGER,

and REAL ESTATE TITLE INSURANCE

AND TRUST COMPANY OF PHILADEL-

PHIA, Executors, &e.

On Writ of Certiorari to the United States Circuit

Court of Appeals for the Third Circuit.

INDEX

PAGE %

GL Men Cees inne uh La chs he une he sy WAS oaks 1 ¢

ie haste seh hans wei eek van edne teak 4 a

The Decree of the New Jersey Court no Bar...... 5 b

American Dock & Improvement Co. v. Trustees

for the Support of Publie Schools.......... 46 dy

i Gs ie atvewbugy seh enew 33 ,

EME cates vee h vaca desxehccvenbex 14 3

ett ee 28 &

Blakeman v. Bourgeois................0.es000- 17 a

IE i Nog koe e dau Wanveaswanyns 28 i

0 8 Sern ae 21 .

il INDEX

PAGE

Chandley v. Robinson.......... 060052 e seer eee 14

City of Paterson v. Baker.............++++55 38, 41

Clark Thread Co. v. William Clark Co. ....... 39, 41

Claron v. Thommessen...........0:eeeeeeeeeee 17

Cromwell v. The County of Sac..........+55. 34, 40

Fittichauer v. Metropolitan Fireproofing Co. ...14, 19

Graham vy. Railroad Company............+.+: 33

Haskell v. Kansas Natural Gas Co. ..........+4- 33

Hughes v. The United States.............555 31, 32

Jersey City v. Lembeck...........--eeeeeeeees 15

McCullough v. Absecon Beach & Land Co. ..... 14

McGrath v. Norcross. .........cesccscecssveoes 7

Mercer County Traction Co. v. The United New

Jersey Railroad and Canal Co. ........... 40

New Jersey Franklinite Co. v. Adams.......... 28

Nirdlinger v. Stevens (83 N. J. Eq. 314). .5, 23, 25, 44

PER: Bi PI ic on kn 63 0s) ob 65 Kok dee er dnd 45

North River Meadow Co. v. Shrewsbury Church 41

OCheren LORE CO. ¥. CDWRM. ona ces icccccccess 21, 34

Ocean View Land Co. v. Loudenslager......... 14,18

| ere eee 29

BOPRARRE ¥. TORRROOR. 005s wc ccc ccissecnsecnn 33

NW Fess oka ca kas edGenstestoncasas 45

Ae | RT eee er ETT eT ere Teer 32

Sooy Oyster Company v. Gaskill.............. 23

a ee eT re eer Te cree eee eee 19

Ue Fi, Tis vans sadn teaserasa cee 17, 20

Wee Te I ion oss circ ic vnecrcess 17

Vicksburg v. Vicksburg Water Works........... 33

EE Us. Es hha xd ea dcnudee deaese ine 33

Ee Ee WON EAA a de wed keen densteness 32

ACCRETIONS :

BITE W. WHONE GW. wiv psd s von viedarcivessunee 69

Attorney-General v. Boston Wharf Co. ........ 69

SY We SR io. ca es awie Re kO¥ 004550 bake 66

INDEX

Commonwealth v. City of Roxbury.............

ee Hi Sas 65 css Weds ABAAS bool kee cas

PUAESAL CHOC ECS OD EE ES ES SS

ee eee ee ee ee ee we ie

Hottie tt tte eee eon eee © oe eon Se ee ee

tee eee ee ee ee ee ee er

eo ee ee ee ne i ee ee ee ee

ee ee eee ee a ee i ee ee ee ee oe

ee ee ee ee ee a ee ee

eceeoereeneseeseeseseseseesece

ee ee ee ee ne ees

SS POECEDAD OAD DOP OG 0 8S OSS ES

Riparian GRant Was INEFFECTIVE:

Adams v. Frothingham....................... 82

Camden & Atlantic Land Co. v. Lippincott... .79, 82

Delancey v. Piepgrass..................0000.

Delanesy v. Wellbrock...........500ccccesess

Dewey Land Company v. Stevens..............

NS ir PI hu ks ou neaccuuveeasecsac

CROAT EYEE O OS 6D OKA SES OS

NN UN a Weg vecakcarecdaucitaan 82, 83

SE ali ccd et ne kee abakovamecuuee

Phear on Waters, 12-43.................0ccee

i I ek cc awaknshuhscaceuscdedeie

Iv INDEX

PAGE

> I es caceke se aaeieuapeeneee 78, 83

eee eee ee 86

ee eer 78, 79, 82, 85

Stevens v. Paterson & Newark R. R. ........... 87

I Oia oh 04 64 Voda ¥t odessa ce adh ane 85

oe ee ee ee 83

Quia TIMET:

~ American Dock & Improvement Co. v. Trustees

for the Support of Publie Schools......... 90

PAL I 4 eS at Aa SAA a ee 89

No. 598.

IN THE

UNITED STATES SUPREME COURT

October Term, 1921.

Henry FE. Srevens, Jr.,

Petitioner,

v.

Artuur S. Arnoup, Aspram L. Mruancer and Reau

Estate Tite Insurance anp Trust Company

or Puiabevpuia, Executors, &e.

On Writ or Certiorart to tHe Unirep States Ctr-

cuir Court or Apreats ror THE THIRD Crrcurrt.

FACTS.

The defendants-in-error are the executors and

trustees of Samuel F. Nirdlinger, the complaint

below (who has died during the progress of the

case). The bill of complaint was filed by him in the

District Court of the United States for the District

of New Jersey, with a two-fold aspect: first, under

the New Jersey statute to quiet his title; and, sec-

ond, under the general equitable jurisdiction of the

Court to remove a cloud thereon. The premises in

question border on the Atlantic Ocean at Atlantic

2 Brief of Respondents

City, New Jersey, and are specifically described in

paragraph 1 of the bill of complaint as amended

(Record, p. 47).

The bill specifically alleges in accordance with

the requirements of the statute (4 New Jersey Com-

piled Statutes, p. 5399) :

(a) The complainant’s possession of the locus;

(b) Under a claim of title or ownership; and

(c) The assertion of a claim to or interest in the

same by the defendant Stevens;

and calls upon the defendant to assert and specify

such claim and interest.

With reference to this feature of the bill, the de-

fendant (Record, p. 12, pars. 4d and 4e) claims title

to a part of the land described in the bill, admitting

the complainant’s ownership of the remainder, and

that part so claimed, is shown by hatching on the

following sketch adopted by the Court below (262

Fed. Rep. 595). The broken line has been added to

display the boundaries of the entire tract. /#

The answer (p. 12) claims that the determina-

tion of a previous suit in the state courts of New

Jersey (a copy of the record in which is attached to

the answer) (p. 15), between Stevens and Nirdlinger

and the Dewey Land Company, which has since con-

veyed its interest to Nirdlinger is res adjudicata of

the question.

On the 9th of October, 1915, an amendment to the

bill of complaint was permitted (p. 34), giving the

chain of title of the complainant to the locus, and

showing (p. 39) that the complainant has ever since

he acquired the interest in the premises described

by the deeds referred to, paid the taxes, assessments

and other charges imposed thereon. ‘There is no

contradiction of this.

The second aspect of the bill is found in para-

Brief of Respondents 3

graph 6 (p. 7) and paragraph 7 of the bill as

amended (p. 33) and alleges briefly the obtaining of

a grant by Stevens’ grantors from the Riparian

Commissioners of New Jersey of certain described

property, including the locus shown on said sketch)

and claiming that said grant was and is illegal and

void for the reasons stated.

The answer denies these allegations (p. 14) and

sets up a counter-claim to the lJocus in the nature

of a cross-bill, seeking to have his alleged title to the

premises confirmed and asking that the complainant

be enjoined from continuing to assert title thereto.

To this counter-claim the complainant filed an an-

swer (p. 41) taking issue thereon, and again setting

up his claim of title.

Considerable evidence was taken and Judge

Haight filed an opinion (p. 175), reported in 262

Fed. Rep. 591, in which every question is carefully

considered, overruling the defense of res adjudi-

cata and determining that the complainant is en-

titled to the premises, and that Stevens has no right

to or interest therein. From the decree (p. 191)

based upon that opinion an appeal wis taken to the

Cireuit Court of Appeals for the Third Circuit,

which unanimously affirmed the decision for the rea-

sons given by Judge Haight (p. 223).

The case is here by certiorari from this Court, and

will be discussed under the following heads: Res Ad-

judicata, Accretions, Riparian Grant and Quia

Timet.

eT mer Na nt ie NTRP AN END i ITT NAY roe rae tee gw

4 Brief of Respondents

RES ADJUDICATA.

Derenpant, BY His Pieapinc, Has Estoprep Him-

SELF FROM URGING THE Previous ADJUDICATION

as A Bar To THIS Sulit.

Plaintiff’s bill seeks to have his title to the locus

in quo fixed and determined, pages 5 and 34. De-

fendant answered, page 9, and in addition thereto,

pages 14 and 15, interposed a counter-claim in the

nature of a cross-bill against the plaintiff, in which

he prayed affirmative relief, claiming that complain-

ant’s title to that portion of the land embraced in

the riparian grant, made by the State of New Jersey

to Bartletts, and conveyed by Bartletts to myself

(defendant) (to wit, the locus in quo), injuriously

affects his title thereto, ete., and prays that it may

be adjudicated in this suit that his title in said

lands is paramount, ete., and prayed an answer

without oath. To this counter-claim, plaintiff filed

a reply, page 41, denying the allegations in said

counter-claim, setting up title in plaintiff. The mat-

ter was fully heard by the Court upon this counter-

claim of defendant’s and plaintiff’s answer thereto,

and the Court determined that issue upon its merits.

Having submitted himself to the jurisdiction of

the Court, and having prayed that the Court deter-

mine the matter, and the Court having determined

it, defendant cannot, in the face of his pleadings,

which is an admission against him, claim that the f

plaintiff is not entitled to the benefit of the adjudi- 4

cation in the present suit because of the trial there- :

of in the New Jersey Chancery Court.

PPcain i“ 2 Uo 23 bak 7 ¢

Kee ere ore -¥ Kheher #2 Sa ot AGI~ 90!

Brief of Respondents

THE DecrEE oF THE NEw JERSEY CouRTS IN THE CASE

or Dewey Lanp Co. v. Srevens Is No Bar To THIS

Sulit.

About 1910 a bill to quiet title under the New

Jersey statute was filed on behalf of Dewey Land

Company and Nirdlinger against Stevens, who

claimed title to the triangular tract of land in dis-

pute. This bill was based upon a claim of accretions,

alleging that the high-water mark had moved ocean-

ward. The answer admitted that the high-water

mark had moved outward but made no claim to the

title by reason of accretions, and based his claim

upon a riparian grant made by the State of New

Jersey. After the filing of the answer, no claim

being set up except under the riparian grant, the

bill was amended eliminating the subject of accre-

tions and setting up title under two quit-claim deeds

extending into the ocean to the original high-water

line of 1852. In this trial in chancery, a portion of

the land described in defendant’s answer, to wit,

the locus in quo was shown to be hand above the

high-water mark, to which the riparian grant could

give no title. Upon final hearing the bill was dis-

missed, the Court of Chancery being of the opinion

that the proceedings, to attack a riparian grant

made by the State, must be in the name of the at-

torney-general of the State. An order was there-

upon entered dismissing the bill in the following

language:

‘“‘This matter coming on to be heard on the

second day of February, 1912, in the presence

of Robert H. Ingersoll and George A. Bour-

geois, of counsel with the complainants, and of

Wilson & Carr, of counsel with the defendants,

and the Court having heard and considered the

™

Sek ts SPRL EN ett —— sre Sa? Seed Sl as 2

6 Brief of Respondents

proofs and the arguments of respective counsel,

and it appearing to the satisfaction of the Court

that the complainants are not entitled to any

relief whatsoever by reason of the matters and

things in their bill of complaint contained and

set forth, and that said bill ought to be dis-

missed with costs;

IT IS THEREUPON, on this seventh day of

September, 1912, on motion of Wilson & Carr,

solicitors for and of counsel with the defen-

dants, ORDERED that the complainants’ bill

of complaint be and the same is hereby dis-

missed with costs.

IT IS FURTHER ORDERED that a fee of

$150.00 be and the same is hereby allowed to

the solicitors of the defendant, the same to be

taxed as part of the costs of this suit and to be

collectible therewith.

E. R. Walker,

Cc.”

(Exhibit E, page 52.)

To this order dismissing the bill of complaint an

appeal was prosecuted to the Court of Errors and

Appeals, which Court held that the Court of Chan-

cery erred in holding that the proceeding must be

prosecuted by the attorney-general, and also held

that complainants acquired no title by virtue of the

two quit-claim deeds, mentioning the fact that the

bill had been amended excluding the question of

accretions from the ease, and affirmed the decree of

the Court of Chancery in the following language:

‘“‘This cause having been brought to a hear-

ing on appeal from the Court of Chancery at

the June Term, 1913, of this court, and Bour-

geois & Coulomb, of counsel with the appel-

lants, and Wilson & Carr, of counsel with the re-

Brief of Respondents 7

spondents, having been heard, and the questions

brought up by the said appeal having been duly

considered ;

IT IS, on this fifteenth day of June, 1914, OR-

DERED, ADJUDGED AND DECREED that

the decree of the Court of Chancery, made on

the seventh day of September, 1912, which is

appealed from by the appellants, be and the

same is hereby in all things affirmed with costs

in this court, and in the Court of Chancery, to

be paid by the appellants, and that the petition

of appeal be dismissed.’’ (Exhibit F, page 53.)

In the latter part of November, 1915, defendant

realizing that the Court of Chancery had not deter-

mined the matter filed a petition in the Court of

Chancery praying to have the decree of dismissal

amended. The petition setting up the final decree

in the Court of Chancery, and the decree of affirm-

ance in the Court of Errors and Appeals, alleging

that the complainant had no right, title or interest

in the lands described, prayed that the final decree

entered in the Court of Chancery be amended to

read that the complainant had no title to the lands,

and the defendant had, a copy of which petition is

found on page 211. This petition was dismissed

on an opinion by Vice-Chancellor Backes, which is

reported in 96 Atl. Rep. at page 362, advising the

dismissal of the petition to amend in the following

language:

‘Moreover, looking into the opinion of the

Court of Errors and Appeals, in the present

ease, I find that the judgment of that Court,

dismissing the bill, was rested entirely upon the

untenability of the complainants’ claim to title,

and in no aspect was the defendant’s title pre-

tended to be examined and confirmed. In such

= = a es —— ba saccade Wchad Mi GO See alee a.

8 Brief of Respondents

circumstances, this Court, in its determination

of the cause, would not have awarded the relief

the defendant now seeks on this motion.’”’

The order being as follows:

‘‘This matter coming on to be heard in the

presence of Harvey F. Carr, Esq., for the mo-

tion, and George A. Bourgeois, Esq., contra, and

the Court having heard and considered the argu-

ments of counsel thereon, and being of the opin-

ion that the motion should be denied;

IT IS, THEREFORE, on this thirteenth day

of December, 1915, on motion of Bourgeois &

Coulomb, solicitors for and of counsel with the

complainants, ORDERED that the petition to

amend the decree in said cause be and the same

is hereby dismissed, and the motion denied with

costs.

EK. R. Walker,

C.

Respectfully advised

John H. Backes,

ig

Judge Haight’s opinion was filed on December 26,

1919, and about the first of June, 1920, defendant

made an effort to have the remittitur in the Court of

Errors and Appeals amended so as to decree that

complainant had no title but that defendant had

title to the locus and gave notice of a motion before

the Court of Errors and Appeals to amend the re-

mittitur filed in the case of Dewey Land Company,

et als., v. Stevens, which notice was in the following

language:

‘*To Bourgeois & Coulomb, Esquires,

Solicitors for Complainants-Appellants.

Take notice that we shall apply to the Court

RAO EY TRITON EE EI SR GEST ES POO EIS tv

Brief of Respondents 9

of Errors and Appeals on Tuesday, the fifteenth

day of June, nineteen hundred and twenty, at

eleven A. M., on said day, or as soon thereafter

as counsel can be heard thereon, at the State

House in the City of Trenton, for an order

amending the remittitur heretofore entered

herein, so as to make the remittitur comply with

the opinion of this Court, and so as to direct the

Court of Chancery to enter a decree adjudging

that the complainants have no estate, interest in,

or encumbrance upon any of the lands herein-

after particularly described, and so far as re-

lates to any claim thereon by or on behalf of the

above-named complainants, the title of the de-

fendants in and to the same and every part

thereof is hereby determined, fixed and settled,

and declared to be good; and for such further

and other order as may be necessary to make the

remittitur fully comply with the opinion of the

court.

DESCRIPTION OF LANDS REFERRED TO.

ALL those certain tracts or parcels of land

and premises situate in the City of Atlantic

City, County of Atlantic and State of New Jer-

sey, bounded and described as follows:

Tract No.1. BEGINNING at the intersection

of the fourth course of the description contained

in the riparian grant from the State of New

Jersey by Foster M. Voorhees, Governor, Wil-

lard C. Fisk, William Kloke, John I. Holt, and

John J. Farrell, Riparian Commissioners, to

William B. Bartlett and Elwood S. Bartlett,

bearing date the 28th day of June, 1900, re-

corded in the office of the Riparian Commis-

sioners of the State of New Jersey in Liber N,

Folio 245, ete., also in the office of the Clerk of

Atlantic County, New Jersey, in Book 248 of

10

Reccihideitica nies i

Brief of Respondents

Deeds, page 475, ete., with the easterly line of

New Hampshire Avenue; thence southeasterly

in and along the said fourth course of said deed

to the high-water mark of the Atlantic Ocean;

thence southwesterly in and along the high-

water mark of the Atlantic Ocean to the easterly

line of New Hampshire Avenue; thence north-

erly in and along the easterly line of New

Hampshire Avenue to the place of beginning.

Tract No. 2. BEGINNING at a point where

the high-water mark of the Atlantic Ocean in-

tersects the fourth course of the description in

the riparian grant from the State of New Jer-

sey by Foster M. Voorhees, Governor, Willard

C. Fisk, William Kloke, John I. Holt and John

J. Farrell, Riparian Commissioners, to William

H. Bartlett and Elwood S. Bartlett, bearing

date the 28th day of June, 1900, recorded in

the office of the Riparian Commissioners of the

State of New Jersey in Liber N, Folio 245, ete.,

also in the office of the Clerk of Atlantic County,

New Jersey, in Book 248 of Deeds, page 475,

ete., thence southeasterly in and along the said

fourth course to the exterior line established by

the Riparian Commissioners; thence westerly

along the said exterior line curving to the right

on a radius of 4000 feet to where the said ex-

terior line intersects the extended easterly line

of New Hampshire Avenue; thence northerly in

and along the said extended easterly line of

New Hampshire Avenue to the high-water mark

of the Atlantic Ocean; thence easterly along the

said high-water mark to the place of beginning.

Wilson & Carr

Solicitors for Defendants-

Respondents.’’

oo— hie li aS ta ae ARE STNG A LAB Sn 6K GDL V RAE RG aE ha aa He

Brief of Respondents 11

The application was denied, the Court entering

the following order:

‘“‘This matter being opened to the Court by

Harvey F. Carr, of the firm of Wilson & Carr,

of Counsel with the defendants, in the presence

of Bourgeois & Coulomb, and Robert H. Me-

Carter, Esq., of Counsel with the complainants;

and it appearing that notice was duly served of

an application to amend the remittitur entered

in the above stated cause at the June Term,

1913, so as to direct the Court of Chancery to

enter a decree adjudging that the complainants

have no estate, interest in or encumbrance upon

any of the lands hereinafter particularly de-

seribed, and so far as relates to any claim there-

on by or on behalf of the above named defen-

dants the title of the defendants in and to the

same and every part thereof is hereby deter-

mined, fixed, settled and declared good; and for

such further and other order as may be neces-

sary to make the remittitur fully comply with

the opinion of the court.

DESCRIPTION OF LANDS REFERRED

TO:

ALL those certain tracts or parcels of land

and premises situate in the City of Atlantic

City, County of Atlantic and State of New Jer-

sey, bounded and described as follows:

Tract No. 1. BEGINNING at the intersec-

tion of the fourth course of the description con-

tained in the riparian grant from the State of

New Jersey by Foster M. Voorhees, Governor,

Willard C. Fisk, William Kloke, John I. Holt

and John J. Farrell, Riparian Commissioners,

to William H. Bartlett and Elwood S. Bartlett,

bearing date the 28th day of June, 1900, re-

corded in the office of the Riparian Commis-

12

Brief of Respondents

sioners of the State of New Jersey in Liber N,

Folio 245 &c., also in the office of the Clerk of

Atlantic County, New Jersey, in Book 248 of

Deeds, page 475 &c., with the easterly line of

New Hampshire Avenue; thence southeasterly

in and along the said fourth course of said deed

to the high-water mark of the Atlantic Ocean;

thence southwesterly in and along the said high-

water mark of the Atlantic Ocean to the easterly

line of New Hampshire Avenue; thence north-

erly in and along the easterly line of New

Hampshire Avenue to the place of beginning.

Tract No. 2. BEGINNING at a point where

the high-water mark of the Atlantic Ocean inter-

sects the fourth course of the description in the

riparian grant from the State of New Jersey by

Foster M. Voorhees, Governor, Willard C. Fisk,

William Kloke, John I. Holt, and John J. Far-

rell, Riparian Commissioners, to William H.

Bartlett and Elwood S. Bartlett bearing date

the 28th day of June, 1900, recorded in the office

of the Riparian Commissioners of the State of

New Jersey in Liber N, Folio 245, ete., also in

the office of the Clerk of Atlantic County, New

Jersey, in Book 248 of Deeds, page 4795, etc.,

thence southeasterly in and along the said

fourth course to the exterior line established by

the Riparian Commissioners; thence westerly

along the said exterior line curving to the right

on a radius of 4000 feet to where the said ex-

terior line intersects the extended easterly line

of New Hampshire Avenue; thence northerly in

and along the said extended easterly line of

New Hampshire Avenue to the high-water mark

of the Atlantic Ocean; thence easterly along the

said high-water mark to the place of beginning.

—— At SA Ee A ta SSS

Brief of Respondents 13

And the Court being of the opinion that de-

fendants are not entitled to have such amend-

ment, the same is, on the fifteenth day of June,

A. D. 1920, denied.

Entered this twenty-sixth day of June, A. D.

1920, on motion of

Bourgeois & Coulomb,

Solicitors for Complainants.’’

We shall now proceed to demonstrate that there

has been no adjudication upon the merits of the Pd

questions here involved, for of course we recognize id

the fact that were the situation otherwise, the com- i

plainant would be foreclosed from seeking a recon-

sideration of the questions.

In order intelligently to comprehend the exact

force and effect of the decree in the other suit which

is relied on by the defendant herein, it is necessary

to consider the character of the other suit. It was

a proceeding commenced, conducted and concluded

under the New Jersey statute (4 C. S. of New Jer-

sey, page 5399) entitled ‘‘An act to compel the de-

termination of claims to real estate in certain cases "

and to quiet title to the same.’’ The object of this 4

act, which is analogous to but not identical with acts

having a similar purpose prevailing in other States,

is to enable a person in the undisputed possession

of land and claiming to own the same to compel an-

other who claims to have some interest in or lien

upon such lands to assert such claim, the theory be-

ing that without this remedy the position of such a

| possessor of land is both embarrassing and remedi-

less. He cannot eject, for he is in possession, and

| so the statute enables him to require the claimant to

fly his flag. The whole proceeding is statutory and

the statute defines what the bill shall allege; what d

shall occur if the defendant makes or abandons his q

14 Brief of Respondents

claim; or if, on the other hand, he relies thereon how

he shall specify it; and in either of these events what

decree shall be entered, if a proper case is presented.

In suits of this character it has been frequently

held that the burden of proving the adverse claims

whose validity is thus called into question is upon

the defendant asserting it and that the normal posi-

tion of the parties complainant and defendant in an

equity suit is reversed, the defendant sustaining the

burden of proof. Ocean View Land Company v.

Loudenslager, 78 N. J. Eq. 572; Beale v. Black, 45

Id. 668; McCullough v. Absecon Beach & Land Co.,

48 Id. 170.

In the case of Chandley v. Robinson, 75 Atl. Rep.

180, which was a bill filed under this act, Vice-Chan-

cellor Garrison held:

‘The bill having charged and the answer of

the defendant having conceded that the com-

plainants at the time of the filing of the bill

were in peaceable possession of the land im

question, claiming to own the same, the burden

is then upon the answering defendant to set up

and prove such title in himself as he claims he

has.’’

In Fittichauer v. Metropolitan Fireproofing Co.,

70 N. J. Eq. 429-430, Vice-Chancellor Stevenson,

speaking of this statute, says:

“‘The point to be kept in mind in examining

this peculiar statute is that its main object is

expressed in the first clause of its title, viz., to

compel the determination of claims to real es-

tate in certain cases. The ‘certain cases’ are

those cases of hardship where the defendant

out of possession makes a claim while the com-

plainant in possession has no means of com-

pelling the defendant, either at law or in equity,

Brief of Respondents 15

to submit his claim for determination, and thus

have it either established as valid or finally de-

clared void. The great object of the statute is

not to afford the complainant a new means of

asserting and establishing his title, but to af-

ford the complainant a means of compelling the

defendant to either abandon or establish his

title, or have it decreed invalid. * * *

‘*T think that great confusion has been made

by this persistent effort of the complainant to

state unnecessarily in his bill the claim which

the defendant has made or is ‘reputed’ to have

in respect of the land in question. If the com- is

plainant prove the jurisdictional facts the result

is that the defendant is called upon affirmatively

to set forth and maintain by proofs any adverse

title or claim which he holds. The pleading of

the defendant, if it sets forth a legal title, may

be in effect a declaration in ejectment and if it

sets forth an equitable title, it may be in effect a

bill in chaneery. This complainant is under no

obligation even to exhibit his own title after the

defendant has shown title. All that the com-

plainant is obliged to show in the first instance

is that he is in peaceable possession, and that no

suit is pending in which the defendant’s claim,

whatever it may be, may be tested, and also,

that he, the complainant, is unable to bring an

action at law in which the test can be applied,

Jersey City v. Lembeck, supra, and also, I

think, that he, the complainant, is unable, except

under the statute, to bring any suit in equity in

which such test can be applied.’’ * * *

a s WAS ie Fee re ast as Mt ra FEO 7 ie “fp <

Ee tans pee ESR IPC oe ee OE Tg

He further states:

‘‘Tf the affirmative pleading of the defendant

which the statute prescribes sets forth a legal

‘a Sy erers Flt iA Bie REAR NA AR Nel BRS as

16 Brief of Respondents

claim, and neither party applies for an issue at

law, or if such affirmative pleadings sets forth

an equitable claim, then the court of chancery is

to proceed with the suit on the part of the de-

fendant which it thus brought. The statute

leaves no doubt as to the course of procedure.

It provides that: ‘When such issue is not re-

quested or as to the facts for which the same is

not requested, the court of chancery shall pro-

ceed to inquire into and determine such claims,

interest and estate according to the course and

practice of that court.’ What is the ‘course and

practice’ of a court of equity where a party

comes forward as the actor asserting affirma-

tively his title or interest in real estate for the

purpose of having such title or interest deter-

mined? The complainant, as we have seen, is

not obliged to exhibit his own title in his bill,

and ought not, in my opinion, notwithstanding

the practice which has prevailed, to unneces-

sarily undertake to set forth in detail the de-

fendant’s claim. A court of equity, ‘according

to the course and practice’ which courts of

equity have uniformly followed, ought to re-

quire the complainant to file a pleading joining

issue with the defendant. It is immaterial

whether this pleading be called a special repli-

cation, a statement (see rule 221 regulating in-

terpleader suits) or a bill of particulars. Where

the defendant sets forth an equitable claim, in

large numbers of cases the pleading of the com-

plainant in reply thereto would be in effect an

answer to a bill in chancery.”’

He adds:

‘‘T strongly incline to think that it is bad

practice for the complainant to undertake to

Pe ee ee ee

Phat eee Ra Aarti ndSoiryn el brnabes a ase Wl RBS SN th Re att gh NS STING

Brief of Respondents 17

specify the character, nature or extent of the

claim of any of the defendants. Such practice

is inconsistent with the fundamental theory of

this statute, which is that the complainant is to

compel the defendant affirmatively to set forth

and maintain his own claim and to allow the de-

fendant to set up any title or claim which he

sees fit to set up.”’

If, upon the assertion of such a claim, the parties

desire it, they are, by the fifth section, entitled to

have an issue framed to have a jury pass upon the

matter and in such a case the defendant is made the

plaintiff in the issue, except when the proceeding is

under an amendment to the act which in ease of wild

and unimproved lands permits the filing of a bill

by the complainant without the assertion or proof of

possession. McGrath v. Norcross, 73 N. J. Eq. 274.

There are three preliminary questions that con-

stitute a sine qua non to the right of the plaintiffs

successfully to prosecute such a suit and to require

the defendant to disclose and assert his claim to the

plaintiff, namely (a) that the plaintiff is in the

peaceable possession of the locus in quo; (b) that

he claims to own the same; and (c) that no suit is

pending to enforce or test the validity of the defen-

dant’s claim. Blakeman v. Bourgeois, 59 N. J. Kq.

473; and these questions being jurisdictional facts,

if denied, must be settled as a preliminary question.

Steelman v. Blackman, 72 N. J. Eq. 330.

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In the ease of Claron v. Thommessen, which was a :

; suit to quiet title under the statutes, filed in the New :

Jersey Court of Chancery, and determined on Sep- :

tember 20th, 1922, the Court found that the bill of

complaint should not have been filed under the stat- ie

ute to quiet title, and dismissed the bill, on the au- .

thority of VanClave v. MacGregor (72 Kq. 218). The

18

Claron case was carried to the Court of Errors and

Dio Pildk

ahi aetieeatied heeenlan oath tenaie aaah eee ee ee

Brief of Respondents

Appeals, and the decree of the Court of Chancery

affirmed at the March Term of that court, 1923. As

yet unreported.

The appellant studiously and persistently refuses

to recognize the important element of a claim of

ownership on the part of the plaintiff in a suit of

this character.

‘“‘And this notwithstanding the statements

from various opinions of the Court of last re-

sort of New Jersey cited by him on page 12 of

his brief in this court. For example, note the

quotation from the opinion of the Court of Er-

rors and Appeals in Ocean View Land Company

v. Loudenslager, 78 N. J. Equity, 571:

‘Where, under a bill to quiet title (Gen. Stat.

p. 3486), the complainant has established, to

the satisfaction of the Court of Chancery, that

he is in peaceable possession of the lands de-

scribed in his bill of complaint claiming to own

the same, and that his title is denied or dis-

puted, and no suit is pending to test the validity

of such hostile claim, the burden of establish-

ing such adverse claim is upon the person set-

ting it up, in which case the Court of Chancery

may order that, in a feigned issue, framed to

test the validity of such claim, the defendant, or

party setting it up, sustains the issue as plain-

tiff.’’

‘‘The purpose of the act is to relieve, not

persons who have the power to test the hostile

claim by a direct proceeding in the usual mode,

but to aid persons whose situation afford them

no such opportunity. * * * It lends its aid to one

in peaceable possession under claim of owner-

ship to compel an adverse claimant to establish

his claim; he may do so in equity or at law, but

—ETE_E_—_—_—_—_— OBE Lad de Noli chee! Feira ta ane Pe TES th a cee eo tet ee Ae end oe

Brief of Respondents 19

in either case he is asserting a hostile claim

against one in peaceable possession, which he

must proceed to establish or abandon.’’

The statute is perfectly plain upon the subject

that the plaintiff must not only allege possession,

but that he is there under a claim of ownership. In

Stark v. Starrs, 6 Wall. 402-410, the Court said:

‘*We do not, however, understand that the

mere naked possession of the plaintiff is suffi-

cient to authorize him to institute the suit, and

require an exhibition of the estate of the adverse

claimant, though the language of ihe statute is

that ‘any person in possession, by himself or his

tenant, may maintain’ the suit. His possession

must be accompanied with a claim of right, that

is, must be founded upon title, legal or equitable,

and such claim or title must be exhibited by the

proofs, and, perhaps, in the pleadings also, be-

fore the adverse claimant can be required to

produce the evidence upon which he rests his

claim of an adverse estate or interest.’’

Perhaps some confusion exists in the New Jersey

eases upon this feature of the jurisdictional pre-req-

uisites because of the oft repeated statement by our

equity Judges that it is unnecessary for the plaintiff

in a bill of this character to set out the sources of

his title entitling him to make his claim of owner-

ship. In the opinion of Vice-Chancellor Stevenson

in the case above quoted (Fittichauer v. Metropoli-

tan Fireproofing Company) he doubts the propriety

of making such a disclosure, indicating that in his

opinion the preliminary pre-requisite is sufficiently

stated by the naked averment of a claim on the part

of the plaintiff to own the property of which he is in

possession. In the Dewey Land case the plaintiff,

20 Brief of Respondents

whether necessarily or not, set out in his amended

bill, omitting the accretions, the Leeds’ and McClees’

deeds as the basis of his claim of ownership. Hav-

ing done this, perhaps unnecessarily, the Court in-

spected them and found that the claim of ownership

by reason thereof was altogether frivolous as the

quit-claim deeds conveyed no title whatever.

If there is no question raised as to these jurisdic-

tional pre-requisites the statute then imposes upon

the defendant the duty either to disclaim or to as-

sert his claim, in which latter event the fifth section

imposes upon the Court the duty to

‘‘Finally settle and adjudge whether the de-

fendant has any estate, interest or right in, or

encumbrance upon the said lands or any part

thereof, and what such interest, estate, right or

encumbrance is, and in or upon what part of

said lands the same exists.’’

In the ease at bar, the jurisdictional facts not he-

ing in issue, the defendant at the outset of the hear-

ing, assumed the burden and offered his proofs (p.

87).

The next section (6) characterizes the effect of

such determination as follows:

‘<The final determination and decree in such

suit shall fix and settle the rights of the parties

in said lands, and the same shall be binding and

conclusive on all parties to the suit.’

This being the function and object of the suit and

the duty of the Court in the premises, suppose, for

any reason, the Court is unable to reach a deter-

mination; what must happen to the suit? Obviously

the bill must be dismissed. This is exactly what oc-

curred in Steelman v. Blackman, supra, but no one

would have the hardihood to contend that the com-

.

—— Race neve

Brief of Respondents 21

plainant in that suit, having later acquired peaceable

possession of the land under a claim of ownership

could not have filed a bill and required a meritorious

decision. Another example is Oberon Land Com-

pany v. Dunn, 60 N. J. Eq. 280, where, pending the

trial (here an issue of law was had as permitted by

the statute) it transpired that, both the complainant

and defendant had parted with their respective in-

terests in the locus in quo, and the Vice-Chancellor

said:

‘‘In the admitted present condition of this

controversy each party has by deed parted with

all interest in the subject-matter of the suit.

Their grantee is a stranger who cannot be bound

by any decree made therein. By the statute the

decree ‘shall fix and settle the rights of the par-

ties in the said lands,’ &e. Gen. Stat. p. 3487,

Sec. 6. But the undisputed proof is that neither

party has any rights in any of the said lands to

be bound by any decree.

“‘The suggestion for further proceedings on

this bill to quiet title, which, so far as the par-

ties to the suit are concerned, is already quieted

by their own acts, is an invitation to the Court

to hear argument upon a purely hypothetical

question and to make a decree which will be

wholly inoperative. That is not the purpose for

which courts hear causes. The parties have

themselves, in a binding way, settled the whole

controversy.

‘‘No question of costs even remains to be de-

cided. It is well established that where the

parties settle their differences out of court with-

out reference to the costs, each party shall pay

his own costs. Bruce v. Gale, 2 Beas. 211, and

cases there cited.

OD ADAP eA TE Fe aE SEES Cre ES as Taal

22 Brief of Respondents

‘¢The bill of complaint and proceedings there-

on should be dismissed, without costs allowed to

either party against the other.’’

The record in the earlier suit discloses (page 15)

that the complainants filed their original bill setting

up their possession of an original tract of land and

claiming that by accretions thereto they had become

entitled to and were in possession of the accreted

territory, which they particularly described, posses-

sion of which under a claim of ownership by accre-

tions as aforesaid they averred in themselves and

then asserted that the defendant had some claim or

interest therein which they called upon him to as-

sert and as to which they asked the judgment of the

Court. This bill was later amended (page 18) in

which their possession was again asserted of the

same territory but their claim of ownership thereof,

instead of having been asserted to arise by reason of

accretions was based wholly upon two deeds which

they had obtained from former owners, being deed

from John McClees dated November Ist, 1911 (two

years after the filing of the original bill) and the

other from Horace M. Leeds dated the first of Feb-

ruary, 1912. The amended bill, after reciting these

two deeds averred:

‘That the said deeds are in your orators’

possession, and ready to be produced and

proved as may be directed; and that your or-

ators have ever since the recording of said

deeds respectively, been in the peaceable posses-

sion of the land therein and above described,

and that at the time of purchasing said lands,

and taking said deeds, your orators believed

and yet believe that they and each of them

bought and acquired a good title to said lands,

and of the said equal undivided one-half part

Brief of Respondents 23

thereof, and they have always claimed, and do

now claim to own the same accordingly.’’

These undisputed facts are the foundation for the

statement in the opinion of Mr. Justice Swayze in

the other case, 83 N. J. Eq. 314:

‘‘The bill heretofore filed claimed title by ac-

eretion. This claim was abandoned and, by an

amended bill, the complainants set up title by

deeds from former owners.”’

Before this amendment to the bill was made, the

land was described as extending to the high water

line, thence to the exterior line established by the

Riparian Commissioners. The defendant had filed

his answer to the original bill, p. 22, setting up title

to a portion of the land above high water mark,

which constitutes the locus in quo, as well as land

under water, under a riparian grant, and not other-

wise, stating paragraph 2:

‘‘This defendant admits that the shore line of

the said tract of land has been extended by al-

luvial deposits and that the high-water line of

the Atlantic Ocean has been carried out, but as

to the exact extent thereof this defendant is ig-

norant and leaves complainant to prove the

same,”’

and when the case came on for hearing no other or

further answer was filed to the amended bill. The

statute requires no reply on behalf of the complain-

ant to the answer and so none was filed.

The issues, as thus framed, came on for hearing

before the Court, testimony was taken, and the

Court filed a short, unreported memorandum direct-

ing that the bill be dismissed, following, as he sup-

posed, the case of Sooy Oyster Company v. Gaskill,

69 Atlantic Rep. 1084, to the effect that as the defen-

“thi 7 Di ined RT YK hd SEALER ARH nal te SEO MEK MAES Ee Lid SWIG NR ae

24 Brief of Respondents

dant claimed title to the locus under a riparian

grant from the State, it was impossible to attack

that grant in a collateral proceeding which the

Court deemed it was the plaintiff’s effort to do. In

the case last referred to Vice-Chancellor Leaming,

on an application for injunction to restrain certain

oystermen from taking oysters from land granted to

the defendant by the riparian commissioners, in ad-

vising a decree in favor of the company said:

‘*T cannot refrain from expressing a regret

that I am compelled to arrive at the conclusion

stated. The affidavits filed disclose that the land

in controversy is probably natural oyster beds,

and as such is land which the riparian commis-

sioners had no power to convey. Defendants

desire to adjudicate upon the validity of the

grant, and I regret my inability to afford them

such an adjudication in this case. If complain-

ant’s title is to be adjudicated, it must be by a

direct proceeding in the name of the attorney-

general, and I entertain no doubt but that if

defendants will cause the data now before this

court to be properly placed before the attorney-

general, accompanied with a bond to secure the

State against costs, leave will be granted for the

necessary ‘proceedings to raise the issue

sought.”’

This is the case to which the Court of Chancery re-

ferred in dismissing the bill in the Dewey Land case.

The question of accretions as a basis for the com-

plainant’s claim of title having been eliminated, and

the Vice-Chancellor, evidently, being of opinion that

the quit-claim deeds conveyed no title in the upland

to the complainant because the testimony showed

that the land was the result of accretions, in view

of the well-settled rule hereafter referred to in this

series PEAR NEI ven SD IE NAD Dea t pi nee dt i eyo mic

Brief of Respondents 25

brief of the ambulatory character of a riparian

grant; and being, apparently, further of the opin-

ion that as to the lands under water the complainant

could’ not maintain his suit in his individual name,

but must seek the name and aid of the attorney-

general, dismissed the bill, whereupon the decree al-

ready quoted, reciting that the complainants appear-

ing not to be entitled to any relief by reason of the

matters and things in the bill of complaint contained

(i. e. having no right to attack as an individual the

riparian grant under which alone the defendant

claimed), it was ordered that the bill be dismissed.

No mention was made concerning plaintiff’s claim of

title, nor was it considered.

The complainants then appealed and the Court of

Errors delivered two opinions, that by Mr. Justice

Swayze, 83 N. J. Eq. 314, and one by Judge White,

Id. page 656. The result of this appeal was an

affrmance of Vice-Chancellor Walker’s decree but

not for the reasons set forth in the Vice-Chancellor’s

memorandum. On the contrary, the Court was

unanimously of the view that there were circum-

stances that permit complainants to question the

validity of the title asserted by defendants under a

riparian grant, and that the present case was not

within the reason of the cases cited and relied upon

by the Vice-Chancellor to prevent what he called a

collateral attack upon a riparian grant. Justice

Swayze’s opinion, after showing the original title to

all of the territory surrounding the locus and the

fact that the complainants had acquired the Leeds

and McClees deeds to the locus, and taking pains to

state

‘*Tnasmuch as all claim by accretion is waived

the complainants amended bill must fall unless

they acquire title from the Leeds heirs or Me-

Clees,’’

a ——

26 Brief of Respondents

reached the conclusion that as the title thus derived

is no title whatever, the complainants’ bill must be

dismissed, obviously upon the basis of a failure of

the necessary jurisdictional pre-requisite of a claim

not only a possession but of a claim of ownership.

Thereupon the original decree of affirmance here-

inabove quoted was entered. It is perfectly obvious

that no adjudication whatever has yet been made

upon the validity of the defendants’ claim to the

locus in quo—the only object of the New Jersey suit

__and hence we contend that upon familiar and fun-

damental principles the defense of res adjudicata is

unavailable. Attention in this brief has already been

directed to the fact that the defendants, in evident

appreciation of this idea, and long after they filed

their answer in this suit, applied to the Court of

Chancery for leave to amend the decree in the other

suit so that it would, on its face, purport to have dis-

posed meritoriously of the question. This applica-

tion, as we have seen, was denied by the Court of

Chancery ; and after Judge Haight wrote his opinion

in the case at bar, a similar application was made,

as we have already seen, to the Court of Errors and

Appeals, to amend its deeree in the old case, but

without avail. The Court of Errors and Appeals,

in the earlier case, realizing that the defendant’s

riparian grant gave him no title to the land above

the high-water mark, declined to decree that the

defendant had title thereto, and, speaking of the

locus in quo said:

‘Tf the land belonged to the State at the time

of the grant by reason of then being under tide

water but has reverted to its former owners by

matters arising after the grant, the complain-

ants are not in the position of questioning the

grant but of conceding its validity and claiming

— ne newts

Brief of Respondents 27

that the title thereby granted has ceased to be

effective.’’

That language is inconsistent with any notion of

a final determination of title to these accreted lands

adverse to the complainant. The Court of Errors

did hold that as to the lands under water covered by

the riparian grant, and as to which complainant

holds only quit-claim deeds from the heirs of Me-

Clees and Leeds, the complainant derived no title

| thereby and that as to the lands under water com-

| plainant had no other title because the deeds from

7 the Atlantic City Beach Front Improvement Com-

pany, by the terms thereof, stop at the high-water

mark, and hence, concluding that the complainants

essential jurisdictional averment that it was in pos-

session of the land under a claim of title, was un-

true, dismissed the bill. All that the New Jersey

Court of Errors and Appeals undertook to decide

and did decide (beyond expressing their disapproval

of the Vice-Chancellor’s view that under no circum-

stances could the riparian grant be collaterally at-

tacked) was that the complainant did not have a

good title by virtue of the Leeds and McClees deeds

set out in the amended bill. The decree of affirmance

of the dismissal of the bill by the Court of Chancery

was intentional. The Judges of that court are thor-

oughly familiar with the provisions of the act under

which that bill was filed; they knew that when a case

comes before them if it is ripe for determination

the statute requires them to determine the rights

of the parties therein, and inasmuch as the case

went off upon a lack of jurisdiction the decree of

affrmance of the dismissal of the bill in Chancery

was no oversight but plainly and obviously correct.

It is well known that the Court of Errors and Ap-

28 Brief of Respondents

peals of our State has no original jurisdiction and

was without power in law to fix and determine by

decree the rights of the parties to the locus in quo.

Its authority was only to affirm, reverse or send the

cause back with the direction that the Court of

Chancery should render a decree in accordance with

the opinion of the Court of Errors and Appeals. New

Jersey Franklinite Co. v. Ames, 12 N. J. Eq. 507;

Black v. Del. & Raritan, 24 N. J. Eq. 455-482.

Its affirmance of the decree in the Court of Chan-

cery of a dismissal of the bill, when considered in

connection with the statute requiring the Court to

fix and determine the rights of the parties in the

land, had only such effect as a non-suit would have

had at common law, because if the Court of Errors

and Appeals had intended to fix the rights of the

parties to the lands in question, it would have re-

mitted the record to the Court of Chancery with a

direction to enter such decree as it indicated, and

would not have simply affirmed the dismissal of the

Court below.

In the ease of Blatchford v. Conover, 40 N. J.

Eq. 205-218, our Court of Errors and Appeals,

speaking by Mr. Justice Depue, said:

‘‘The complainant’s bill having been filed un-

der the act to compel the determination of

claims to real estate in certain cases and to

quiet the title to the same, the decree in this suit

must fix and settle the rights of the parties in

the premises. So much of the decree appealed

from as determines that Conover’s title is su-

perior to that of Blatchford’s should be re-

versed and a decree be entered declaring Blatch-

ford’s title under his deed superior to that of

Conover’s under his sheriff’s deed, with costs

to be taxed against the complainant.’’

Brief of Respondents 29

The riparian grant to Stevens was made under

the Act of 1871 (4 N. J. Compiled Statutes, p. 4383),

and in language is precisely similar to the grant

made in the leading case of Polhemus v. Bateman,

60 N. J. Law, 163-167, wherein it was held that a

riparian grant under the Act of 1871, confers upon

the grantee only the right to reclaim the lands under

water and that until the lands have been reclaimed

the grantee has no exclusive rights therein.

In the case above mentioned the Court said:

‘*So it may be admitted that the deed to Bate-

man under the Act of 1871, in the absence of any

language limiting its operation and effect, would

have passed to him all the rights of the State in

the lands under water, but the deed contains the

proviso that he is to have the right, liberty,

privilege and franchise of excluding the tide

water from so much of the land as lies under

tide water by filling in or otherwise improving

the same, and to appropriate the lands to his ex-

clusive use. This language restricts the grant,

and nothing in excess of it passes to the grantee.

His rights under it must be interpreted by the

words of the conveyance. He may fill in and

otherwise improve the same and appropriate

the lands so improved to his exclusive use. If

he is permitted to appropriate the lands to his

exclusive private use without filling in or im-

proving, no effect is given to the previous lan-

guage, and the deed will be given the same ef-

fect as if it contained only the proviso that he

could appropriate the lands to his own exclusive

private use. Such a construction of the deed,

under the well-settled rules of interpretation, is

inadmissible. The State made the grant and

Bateman accepted it in this form, and it cannot

Ie RTT NE Te ee et ee re en i,

30 Brief of Respondents

be enlarged beyond the clear meaning of the

words used. Bateman acquired no title to the

exclusive use of any portion of the land under

water until he filled in and reclaimed or im-

proved it. The grant was only for the purpose

of reclamation.”’

Under these circumstances, what final decree, if

any, could have been made in favor of the defen-

dant? He was not entitled to the upland by virtue

of his riparian grant, and he was not entitled to any

exclusive use of the land under water. He could

only become entitled to such exclusive use of the land

under water by reclaiming it, which he had not done,

but which as to the land then under water he might

do in the future. The Court could not have decreed

that he was vested with the title to the land under

water because he would not become so entitled until

reclamation, and he might never reclaim. The Court

could not decree that he had no rights in the lands

under water because he had the right of future rec-

lamation. So that as to the land above high water,

he had no rights whatever, and as to the lands under

water he had only a contingent interest, which ac-

counts for the affirmance of the deeree of dismissal.

The sixth section of the Act To Quiet Titles pro-

vides that the final determination and decree in such

suit shall fix and settle the rights of the parties in

said lands, and it is respectfully submitted that no

decree in a case under the statute which fails to fix

and deter mine the title of the parties in the lands

is a final decree. In other words, under this statute

the parties can litigate and re-litigate until the

Court by its final decree fixes and determines the

rights of the parties in the lands.

In Section 682 of Black on Judgments, the law is

stated:

RRR

aes abe —= Poe eee . a

Brief of Respondents 31

‘‘A verdict without a judgment entered there-

on is of no validity either as an estoppel or as

evidence.’’

In this case the decree of the Court of Errors and

Appeals did not attempt to fix or determine the

rights of the parties in the locus in quo. It ordered,

adjudged and decreed that the decree of the Court of

Chancery made on the 7th day of September, 1912,

which is appealed from by the appellants, be and the

same is hereby in all things affirmed with costs in

this suit and the Court of Chancery to be paid by

the appellants, and that the petition of appeal be

dismissed.

The principle underlying the plea of res adjudi-

cata is familiar. In Hughes v. The United States, 4

Wall. 232, Mr. Justice Field in referring to a claim

that the disposition of a previous action constituted

the present suit res adjudicata said:

‘‘The second case was a petitory action,

brought by Sewall and Hudson, claimants under

Goodbee, having for its object the vacation of

the patent, the annulment of the above judgment

against Sewall, then pending on appeal in the

Supreme Court of the State, the recovery of

damages, and the obtaining of an injunction. No

judgment was passed upon the merits of any

matter alleged. The petition was dismissed for

want of jurisdiction and the absence of proper

parties, so far as it related to the special re-

lief sought by this suit—the vacation and sur-

render of the patent—and it was dismissed gen-

erally on the ground that it was ‘defective, un-

certain, and insufficient in the statement of the

cause of action.’

“It requires no argument to show that judg-

ments like these are no bar to the present suit.

32

Brief of Respondents

In order that a judgment may constitute a bar

to another suit, it must be rendered in a pro-

ceeding between the same parties or their priv-

ies, and the point of controversy must be the

same in both cases, and must be determined on

its merits. If the first suit was dismissed for

defect of pkeadings, or parties, or a misconcep-

tion of the form of proceeding, or the want of

jurisdiction, it was disposed of on any ground

which did not go to the merits of the action,

the judgment rendered will prove no bar to, an-

other suit.’’

In Smith v. McNeal, 109 U.S. 426, a suit had been

begun for the recovery of the land which had been

dismissed for want of jurisdiction by reason of the

omission in the pleadings of a jurisdictional fact,

and the question arose as to the effect of that dis-

missal upon the present action. Mr. Justice Woods,

after citing Hughes United States, supra, and Wal-

den v. Bodley, 12 Peters, 156, in which the Supreme

Court said:

‘*A decree dismissing a bill generally may be

set up in bar of a second bill having the same

object in view, but when the bill has been dis-

missed on the ground that the Court had no

jurisdiction, which shows that the merits were

not heard, the dismissal is not a bar to the sec-

ond suit.’’

says:

eit ii aoe ole SRNR ak oa Eee ya ee

‘‘The cases would seem to settle the question

against the defendant-in-error for they decide

that the dismissal of a suit for want of jurisdic-

tion is upon a ground not coneluding the right

of action.’’

as TSU

Brief of Respondents 33

In Vicksburg v. Henson, 231 U. S. 259-269, the

Supreme Court said:

‘It is well settled, however, that a decree is

to be construed with reference to the issues it

was meant to decide. Graham v. Railroad Com-

pany, 3 Wall. 704, 710; Reynolds v. Stockton,

140 U. S. 254; Vicksburg v. Vicksburg Water

Works Co., 206 U. S. 496, 507; Haskell v. Kan-

sas Natural Gas Co., 224 U. S. 217, 223; In

Barnes v. Chicago, M. & St. P. Ry. Co., 122 U.

S. 1, this court, speaking by Mr. Chief Justice

Waite, said (p. 14):

‘“«*Kivery decree in a suit in equity must be

considered in connection with the pleadings, &.

and, if its language is broader than is required,

it will be limited by construction so that its ef-

fect shall be such, and such only, as is needed :

for the purposes of the case that has been made

and the issues that have been decided.’ ”’

Inasmuch as the land in dispute is above the high

water line, and the answer of defendant in the

previous case limited its scope to land under the

riparian deed, which gave the right of reclamation

only, which had not been exercised, and admitted

that the high water line had been carried out, thus

leaving the locus in quo above the high water line,

the subject matter of defendant’s answer was dif-

ferent from the subject-matter in this suit.

Inasmuch as the decree in the other suit was a

dismissal of the complainant’s bill without deter-

mining the rights of any of the parties in the con-

troversy those rights still remain undetermined. It

is apparent, therefore, that the record in decree in

the New Jersey suit is no more effective as an estop-

pel or as res adjudicata against the present com-

plainants, who have since acquired the title of the

34 Brief of Respondents

Dewey Land Company to the locus in quo than the

decree dismissing the bill in the case of the Oberon

Land Company v. Dunn, supra, where, pendente

lite, the parties complainant and defendant had sold

out their respective interests in the locus in quo.

The conclusion of the opinion of Justice Swayze,

83 N. J. Eq. 317, was

‘We think the complainants fail to establish

the title set up in the amended bill; the decree

of dismissal must, therefore, be affirmed with

costs.’’

It is, however, urged that the complainant in the

other case might have relied upon his title by accre-

tions as a basis or foundation for his suit. The an-

swer to this claim, however, is obvious. A judgment

or decree is res adjudicata or conclusive upon a mat-

ter that might have been litigated as well as one that

was litigated only in situations where the cause of

action is the same. The leading case making this

distinction is Cromwell v. The County of Sac, 94

U. 8. 351, where Mr. Justice Field said:

‘«The questions presented for our determina-

tion relate to the operation of this judgment as

an estoppel against the prosecution of the pres-

ent action, and the admissibility of the evidence

to connect the present plaintiff with the former

action as a real party in interest.

‘‘In considering the operation of this judg-

ment, it should be borne in mind, as stated by

counsel, that there is a difference between the

effect of a judgment as a bar or estoppel against

the prosecution of a second action upon the

same claim or demand, and its effect as an es-

toppel in another action between the same par-

ties upon a different claim or cause of action.

In the former case, the judgment, if rendered

Eo om att D Ee et CEE BAL El Se a tA OD map hm Na re ce ae

Brief of Respondents 35

upon the merits, constitutes an absolute bar to a

subsequent action. It is a finality as to the

claim or demand in controversy, concluding par-

ties and those in, privity with them, not only as

to every matter which was offered and received

to sustain or defeat the claim or demand, but

as to any other admissible matter which might

have been offered for that purpose. Thus, for

example, a judgment rendered upon a promis-

sory note is conclusive as to the validity of the

instrument and the amount due upon it, al-

though it be subsequently alleged that perfect

defense actually existed, of which no proof was

offered, such as forgery, want of consideration,

or payment. If such defense were not presented

in the action, and established by competent evi-

dence, the subsequent allegation of their exis-

tence is of no legal consequence. The judgment

is as conclusive, so far as future proceedings at E-

law are concerned, as though the defences never ‘

existed. The language, therefore, which is so

often used, that a judgment estops not only as

to every ground of recovery, but also as to

every ground which might have been presented,

is strictly accurate, when applied to the demand

or claim in controversy. Such demand or claim,

having passed into judgment, cannot again be

brought into litigation between the parties in

proceedings at law upon any ground whatever.

‘‘But where the second action between the

same parties is upon a different claim or de-

mand, the judgment in the prior action operates

as an estoppel only as to those matters in issue

or points controverted, upon the determination

of which the finding or verdict was rendered. In

all cases, therefore, where it is sought to apply

the estoppel of a judgment rendered upon one

i

E.

:

&

a

ae

OO ee ee

Brief of Respondents

cause of action to matters arising in a suit upon

a different cause of action, the inquiry must al-

ways be as to the point or question actually liti-

gated and determined in the original action,

not what might have been thus litigated and de-

termined. Only upon such matters is the judg-

ment conclusive in another action.

‘‘The difference in the operation of a judg-

ment in the two classes of cases mentioned is

seen through all the leading adjudications upon

the doctrine of estoppel. Thus, in the case of

Outram v. Morewood, 3 East. 346, the defen-

dants were held estopped from averring title to

a mine, in an action of trespass for digging coal

from it, because, in a previous action for a sim-

ilar trespass, they had set up the same title,

and it had been determined against them. In

commenting upon a decision cited in that case,

Lord Ellenbrough, in his elaborate opinion,

said: ‘It is not the recovery, but the matter al-

leged by the party, and upon which the recovery

proceeds, which creates the estoppel. The re-

covery of itself in an action of trespass is only

a bar to the future recovery of damages for the

same injury; but the estoppel precludes parties

and privies. from contending to the contrary of

that point or matter of fact, which, having been

once distinctly put in issue by them, or by

those to whom they are privy in estate or law,

has been, on such issue, solemnly found against

them.’ And in the case of Gardner v. Buck-

bee, 3 Cowen, 120, it was held by the Supreme

Court of New York, that a verdict and judg-

ment in the Marine Court of the City of New

York, upon one of two notes given upon a sale

of a vessel, that the sale was fraudulent, the

vessel being at the time unseaworthy, were con-

ee ee

Brief of Respondents 37

clusive upon the question of the character of

the sale in an action upon the other note be-

tween the same parties in the Court of Com-

mon Pleas. The rule laid down in the cele-

brated opinion in the case of the Duchess of

Kingston was cited, and followed: ‘That the

judgment of a court of concurrent jurisdiction

directly upon the point is as a plea at bar, or

as evidence conclusive between the same par-

ties upon the same matter directly in question

in another court.’

‘*These cases, usually cited in support of the

doctrine that the determination of a question

directly involved in one action is conclusive as

to that question in a second suit between the

same parties upon a different cause of action,

negative the proposition that the estoppel can

extend beyond the point actually litigated and

determined. The argument in these cases, that

a particular point was necessarily involved in

the finding in the original action, proceeded

upon the theory that, if not thus involved, the

judgment would be inoperative as an estoppel.

In the case of Miles vy. Caldwell, reported in

the 2nd of Wallace, a judgment in ejectment in

Missouri, where actions of that kind stand, with

respect to the operation of a recovery therein

as a bar or estoppel, in the same position as

other actions, was held by this court conclusive,

in a subsequent suit in equity between the par-

ties respecting the title, upon the question of

the satisfaction of the mortgage under which the

plaintiff claimed title to the premises in the

ejectment, and the question as to the fraudulent

character of the mortgage under which the de-

fendant claimed, because these questions had

been submitted to the jury in that action, and

Fe Sew

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38

sas eens nae ge ee —

Brief of Respondents

had been passed upon by them. The Court held,

after full consideration, that in cases of tort,

equally as in those arising upon contract, where

the form of the issue was so vague as not to

show the questions of fact submitted to the jury,

it was competent to prove by parol testimony

what question or questions of fact were thus

submitted and necessarily passed upon by them;

and by inevitable implication also held that, in

the absence of proof in such eases, the verdict

and judgment were inconclusive, except as to

the particular trespass alleged, whatever pos-

sible questions might have been raised and de-

termined. * * *

‘*It is not believed that there are any cases

going to the extent that because in the prior

action a different question from that actually

determined might have arisen and been liti-

gated, therefore such possible question is to be

considered as excluded from consideration in

a second action between the same parties on a

different demand, although loose remarks look-

ing in that direction may be found in some opin-

ions. On principle, a point not in litigation in

one action cannot be received as conclusively

settled in any subsequent action upon a differ-

ent cause, because it might have been deter-

mined in the first action.”’

The rule is settled with the same firmness in New

Jersey, City of Paterson v. Baker, 51 N. J. Eq. 49,

where it is held:

‘There is a difference between the effect of

a judgment when it is set up in a second action

founded on the same claim or demand on which

the first action was founded, and when it is set

up in a second action founded on a different

a at ia capa pill it Na rb rhe Ag: a wh 2 Ra eh meat ds nba a ae

Brief of Respondents 39

claim or demand from that on which the first ac-

tion was founded. When the second action is

founded on the same claim or demand the judg-

ment is conclusive not only as to all matters

which were actually litigated and decided, but

as to all which might have been; but when the

second action is founded on a different claim or

demand the judgment is conclusive only as to

such matters as were actually litigated and de-

termined.’’

In Clark Thread Co. v. William Clark Co., 55 N.

J. Kq., 658-662, Vice-Chancellor Reed says:

‘*In respect to the first phase in which the

question of estoppel presents itself, it is en-

tirely settled that after one judicial determina-

tion by a court of competent jurisdiction, a sec-

ond suit for the same matter, between the same

parties or their privies, cannot be litigated in

the same or any other court. Nor does it mat-

ter that, in the first suit, evidence existed which

was withheld or undiscovered, or that the law

was'misconceived by the Court, or left uncited

by counsel, or that no defense was made and

judgment went by default, or that only one of

several defences was interposed by the defen-

dant; in spite of any of these defects in the pros-

ecution or defence of the action, the judgment

stands as an absolute bar against a second liti-

gation of the same cause of action.

‘*When, however, a second suit is brought not

for the same demand, but for a cause which was

a part of the same matter, but was not included

in the first action, the estoppel is not so sweep-

ing. In such instances only those issues which

are common to both suits, and which had to be

or were actually decided in the first suit, are

- SCARE ANN SRSA o Kees NR Re “Sebhe ied Cait ‘ LC Sa

40 Brief of Respondents

regarded as res adjudicata in the second. This

distinetion between the two kinds of estoppel

is lucidly stated by Mr. Justice Field in Crom-

well v. Sae County, 94 U. S. 351. In that ease

there has been an action upon certain county

bonds, in which action the county succeeded. In

a subsequent action by substantially the same

parties, upon other coupons on the same bonds,

the previous judgment was set up as an estop-

pel. Mr. Justice Field, after speaking of the

absolute estoppel as to every ground which

might have been presented in the proceeding

case, When a second action is brought for the

same cause, goes on to say: ‘When a second

action is upon a different claim, the judgment

in the prior action operates as an estoppel only

as to those matter in issue or points contro-

verted upon the determination of which, the

finding of the verdict was rendered. In all

cases, therefore, when it is sought to apply the

estoppel of a judgment in one case to matters

arising in a suit upon a different cause of ac-

tion, the inquiry must always be as to the point

or question actually litigated and determined in

the original action, not what might have been

litigated or determined.’ ”’

In Mercer County Traction Co. v. The United

New Jersey Railroad and Canal Company, 64 N. J.

Kq. 588, a petition was filed by the traction com-

pany, to secure from the Court a method of crossing

the railroad tracks of the Pennsylvania Railroad

Company, and in opposition the want of the neces-

sary consents to enable the trolley company to be

properly constructed was raised. To meet this the

petitioner offered the record of a certiorari proceed-

ing by the railroad company against the petitioner,

Brief of Respondents 41

brought to review the ordinance passed by the Town-

ship of Hamilton giving the petitioner permission to

lay its road upon the highway. The certiorari had

been dismissed, and hence it was urged that inas-

much as the want of consents could have been al-

leged therein the judgment on the certiorari was an

estoppel in this proceedings. It was, however, held:

‘This judgment would conclude the two par-

ties mentioned in any proceeding brought di-

rectly to test the validity of that ordinance. The

doctrine of res judicata, however, differs when

applied to a new proceeding for the same, or

part of the same, cause of action, and when ap-

plied to a different cause of action. In the for-

mer instance, everything that could have made

for the plaintiff or for the defendant is settled

by the first judgment. In the latter instance,

only those issues actually presented and de-

cided are concluded. City of Paterson v.

Baker, 6 Dick. Ch. Rep. 50; Clark Thread Co.

v. William Clark Co., 10 Dick. Ch. Rep. 658,

662. The present proceeding must be regarded,

not as a direct attempt to litigate the validity

of the ordinance, but as a new proceeding in

which the validity of the ordinance and the

existence of certain conditions essential to the

validity of the ordinance comes into question.

Therefore the only point upon which the Penn-

sylvania Railroad Company is estopped are

those actually litigated in the certiorari pro-

ceedings. The issue actually tried in that pro-

ceeding was whether the ordinance was good as

against the reasons filed for its vacation.

‘“‘In North River Meadow Co. v. Shrewsbury

Church, 2 Zab. 424, an action of debt was

brought to collect an assessment imposed upon

lands belonging to the church. The meadow

42 Brief of Respondents

company, in support of the assessment, put in

evidence the record of a proceeding in certio-

rari, prosecuted by the chureh, to test the legal-

ity of the assessment. In this proceeding the

assessment had been, held to be legal. The Su-

preme Court held that, in the subsequent action

to collect the assessment, the church was

estopped from asserting that the assessment

was invalid. It was so held upon the ground

that the rensons assigned by the church for va-

cating the assessment in the cert iorari proceed-

ing embraced all the points suggested on the

trial of the later action. It is true that, in the

certiorari proceedings brought to test the or-

dinance in this case, general, as well as special,

reasons were assigned for its vacation; but the

Court was not obliged and, under its practice,

would not notice the former, and, in facet, did

not. do so.

‘‘Tnasmuch as the want of filed consents by

the abutting owners was not assigned as

grounds of objection to the ordinance, the Penn-

sylvania Railroad Company is not estopped

from now setting up this objection.”’

The effect of these decisions is this: Assuming

that the New Jersey case is res judicata of any-

thing all that it does determine is that the title of

the complainants’ predecessor to the locus in quo,

arising by virtue of the Leeds’ and McClees’ deeds,

is invalid. The effect of that adjudication is (if

it amounts to anything) to estop the complainant

from hereafter asserting in any proceeding any

right by virtue of those deeds. He cannot in any

proceeding claim that there was something in con-

nection with the deeds which was overlooked and not

brought to the Court’s attention, and that there-

Brief of Respondents 43

fore he is entitled to again litigate their effective-

ness. In a word, the complainant’s mouth is for-

ever closed from making any claim to the locus in

quo by virtue of those deeds, whether the particular

point with reference to the deeds was or was not

considered in the New Jersey case, but no estoppel

exists with reference to the entirely distinct and

new claim not litigated in the New Jersey suit, aris-

ing from the accretion. Here is a distinct muniment

of title; just as distinct as if the complainant was

relying upon other deeds, and the plea or claim of

res adjudicata is, therefore, ineffectual. It is for

this reason that Judge White, in his opinion, re-

ported in 83 N. J. Eq. at p. 664, says:

‘*Whether, under this view, the state’s grant

to Bartlett is valid, in so far as it includes land

on the opposite side of New Hampshire Avenue

from the location of the grantee’s high land at

the time the grant was made, is not before the

court, because complainant sets up no title

thereto except the recent McClees’ and Leeds’

heirs deeds, and these, obviously, conveyed

nothing. If complainants have any title'to the

locus in quo, it must be by virtue of its being an

accretion to their high land on the east side of

New Hampshire Avenue. * * *”’’

It must be remembered that the statute—and this

is wholly a statutory proceeding—makes no provi-

sion for a reply or counter-plea by the complainant

to the claim which the defendant in his answer sets

up. If the complainant can successfully bridge over

the preliminary jurisdictional questions then the de-

fendant oceupies the position of actor or plaintiff

and must establish the validity of the claim he has

in his answer specified. The only purpose served

by the complainant’s allegation of the ground of his

Ee LNT he ie ELA A CERIN ND at Ue RAE aI NT AA 2 Eee A Ne that Ml ve re ae - ae

44 Brief of Respondents

claim of title, is to satisfy the Court that such claim

is not merely frivolous. The Court of Errors in the

New Jersey case concluded, inasmuch as the two

quit-claim deeds of Leeds and MeClees conveyed

no title whatever that the claim was frivolous, and

hence found that the plaintiff in that action was in

no position to call upon the defendant to assert and

prove his claim. There is nothing that required com-

plainant in that action to manifest every claim that

he had or might possess with reference to the land

as a foundation upon which to fasten upon the de-

fendant the duty of asserting his claim thereto. If

the bridge had been crossed, then it would have been

the duty of the Court to have settled the respective

rights of the parties to the locus with reference to

the claim thereto asserted by the defendant.

If defendant’s theory is correct that the suit of

Dewey Land Company v. Stevens is res adjudicata,

then we have this anomaly: Of course, if it is res

adjudicata against us, it would be in a suit instituted

by defendant res adjudicata against the defendant,

as that principle of law is mutual. Therefore, if his

contention be true and we cannot maintain this suit

because of the previous decision, and realizing that

it is true that in the previous case the Court did not

determine the rights of the parties, the situation is

as follows: We are in peaceable possession of the

land.

Defendants have a cloud upon that title which we

desire to have quieted. We cannot have the title

quieted because the previous suit is res adjudicata.

Defendant cannot eject us because the suit of Dewey

Land Company v. Stevens is res adjudicata, there-

fore defendant can never secure possession of the

land and we can never remove his claim. The title

must forever remain imperfect and with that im-

perfect title his possession is forever secure.

eae,

Brief of Respondents 45

The other aspect of the bill, presented by virtue of

the new equity rules, is asserted in the sixth and

seventh paragraphs of the bill, and is entirely in-

dependent of the New Jersey statute referred to,

and is an appeal to the original equitable jurisdic-

tion of the Court quia timet seeking to remove from

the title of the complainants to the locus in quo, the

cloud thereon arising by virtue of the riparian grant,

which is alleged to be void and of no avail against

the complainants. There is no pretense that this

issue was raised in the New Jersey case.

The distinction between these two causes of action

is noted in Nixon v. Walter, 41 Hq. 103, wherein a

tract of land bounding on the high-water mark of

Delaware Bay and Morris River Cove, having a

width of six rods, was conveyed to one person and

the land more remote from the bay was conveyed to

another person, having for one of its boundaries

the inward line of the six rod strip previously con-

veyed. The waters of the bay and cove gradually

submerged the six acre tract, which at the time of

the conveyance was high land, whereupon the owner

of that tract made claim that he was entitled to a

moveable freehold, citing the ease of Scratton v.

Brown, and the owner of the more inland tract filed

a bill to quiet title under the statute, but failed to

maintain it as such bill beeause he was unable to

prove peaceable possession, which had been denied

by the defendant. He was permitted to maintain

the bill as a bill quia timet, and obtained a decree

in his favor, the Court holding that the six rod strip

of upland was a fixed freehold, and as that strip

was eaten away by erosion, the owner thereof lost

just as in the event of accretions he would have

gained by the action of the waters. The right to

maintain a bill quia timet is further shown by the

following cases: Sheppard v. Nixon, 43 Id. 627;

46 Brief of Respondents

American Dock & Improvement Co. v. Trustees for

the Support of Public Schools, 39 N. J. Eq. 409.

There are, therefore, two distinctions between the

suit at bar and the New Jersey case, the decree in

which is claimed to be res adjudicata of this issue.

First: Assuming, which we deny, that the New

Jersey case decided anything and is res adjudicata

of any thing, it simply held that we have no title

by virtue of the Leeds’ and McClees’ deeds. Here

we are claiming both possession and title by virtue

of accretion, an entirely distinct thing as appears

from the opinion of Mr. Justice Swayze.

Second: We assert an independent claim under

the general equitable jurisdiction of the Court, to

have the cloud arising from the riparian grant re-

moved, and our right to this relief is based not upon

the statute, but upon equitable principles quia timet.

It is, therefore, obvious that, attributing to the New

Jersey case the dignity of an adjudication (which

it does not deserve), neither one of the issues here

raised was raised there.

Indeed it is believed that the argument in the

opinion of Judge Haight upon this subject is un-

answerable and leaves little to be added.

The distinction between the statutory action quia

timet and the general jurisdiction of a Court of

Equity quia timet is obvious, and plainly appears in

the article entitled ‘‘Quieting Title’? in 32 Cyc. p.

1305 and 1387 in which the effect of a decree in the

one case is shown to be very different from that in

the other.

Appellant’s brief (p. 19) would indicate that the

prayers of the two bills are the only distinguishing

marks between them, ignoring the additional aver-

ment (p. 7, §6 and p. 33, §7), in the stating part

Rae —

Brief of Respondents 47

of the bill in the new suit setting up this new feature

as a further and distinet cause of action.

It is therefore plain that the complainant under

this second ground of jurisdiction has the right to

have the Court adjudge that the cloud which the

riparian grant of the defendant creates upon the

locus, as well, since the amendment to his answer,

as that created by his claim for accretions, should

be adjudged of no avail. We have already indi-

cated the consequences of leaving the matter as the

defendant would have it. Our possession could not

be disturbed; and, on the other hand, we could in

no way have the Court pass upon the validity of

these two claims upon the locus that the defendant

persists in asserting,

Under the New Jersey Statute, in a proper case,

the Court of Chancery is required to fix and deter-

mine the title of the parties. In the ease at hand,

if this suit is res adjudicata as to one of the parties,

it is res adjudicata as to the other, and if res ad-

judicata as to the plaintiff, there is a cloud upon

the title of plaintiff which he cannot have removed,

because the Court failed to fix the title in plaintiff,

and the defendant can never question plaintiff’s

possession or title in another suit, because title to

land being in question and the previous suit being

res adjudicata touching title, the Court not finding

title in the defendant, is forever estopped from as-

serting title or possession against plaintiff. The

result would be that the title of plaintiff must, there-

fore, forever remain under a cloud, but with that

clouded title, his possession is forever secure.

The property is excessively valuable and to per-

mit the complainant to be placed in this anomalous

situation by a mere surmise as to what was intended

in the other suit would be, as Judge Haight in his

opinion suggests, the height of folly and injustice.

= 1 —— —— 3 F

Peat W Gan ak ane dine OF 2a ED ORS aie

48 Brief of Respondents

ACCRETIONS.

In the trial of this cause, defendant specifically

stated to the Court that he was making no claim to

accretions, but claiming under his riparian grant

(see discussion, pages 84, 35 and 86), and the fol-

lowing conclusion :

‘The Court: Well, I don’t understand that

that was his point, I take it—I may be entirely

wrong, what his point is that at the time of the

grant by the riparian commissioners the high-

water line was at a point about where the

ground begins to go eastward or towards the

ocean and that therefore that was all land un-

der water that was covered by the grant, and

therefore that he had a right to it, isn’t that

. bd 9? y

sour pine pee oy Shar

Atlantic City ‘was incorporated as a city in 1854,

but two years previous thereto a survey was made

of the high-water line by Mr. Rowland, which water

line thus surveyed was utilized by the owners of the

soil in making the dedication map of Atlantic City, —

which is offered in evidence in this case and is

marked Exhibit C9. Streets were laid out, those

running in the same direction as the general contour

of the ocean being named after the oceans, to wit,

Pacitie Avenue, Atlantic Avenue and Arctic Avenue,

and thos: running at right angles to the ocean being

named after the states, beginning at the Inlet or

east end of the island with Maine Avenue, then New

Hampshire, Vermont, Rhode Island, Massachusetts,

Connecticut, and so on toward the west. At the time

of the plotting of the map of 1952, New Hamp-

shire Avenue was mapped and laid out from the hay

to the ocean. ‘The distance from Pacifie Avenne

Brief of Respondents 49

along New Hampshire Avenue to the ocean as sched-

uled on the map was 1450 feet.

The land involved in this suit formed part of a

much larger tract which was owned by the Leeds’

heirs, and finally vested in Robert B. Leeds, who in

July of 1856 conveyed it to John McClees (Exhibit

P8).

John McClees, in March of 1858, conveyed a small

portion of said lands to Jonah Wootton, described

as follows:

BEGINNING in the Westerly side of New

Hampshire Avenue 150 feet South from the

South line of Pacifie Avenue; thence (1) West,

parallel with Pacifie Avenue, 160 feet; (2)

South, parallel with New Hampshire Avenue,

100 feet; (8) East, parallel with Pacifie Avenue,

160 feet to the West line of New Hampshire Ave-

nue; (4) North, in and along the West line of

New Hampshire Avenue, 100 feet to the begin-

ning. (Exhibit P9.)

McClees’ original line began at a point in Pacific

Avenue easterly of Vermont Avenue and ran to the

ocean, not parallel with Vermont Avenue but deflect-

ing towards the north.

The land lying westerly of McClees’ land was

owned by Jacob R. Eby, and in January of 1860 Me-

Clees and Eby cxchanged quit-claim deeds, MeClees

quit-claiming to Eby a triangular tract beginning in

the southerly side of Pacific Avenue and extending

from MeClees’ beginning corner to a point 175 feet

distant easterly from Vermont Avenue, which was

the middle of the block, said blocks being 350 feet

between streets; thence southerly, parallel with New

Hampshire Avenue to a point in the line between

McClees’ and Eby’s property. Eby conveyed to

McClees a triangular strip beginning in said divi-

50 Brief of Respondents

sion line of their properties 175 feet easterly of

Vermont Avenue, and extending thence parallel with

Vermont Avenue to the ocean; thence along the ocean

line to McClees’ westerly line; thence to the place of

beginning.

The effect of these two quit-claim deeds was to

vest title in McClees to the land beginning 150 feet

easterly of Vermont Avenue and running southerly,

parallel with Vermont and New Hampshire Avenues

to the ocean, and vesting a like strip of land in Eby.

The object, of course, was to square their properties

so that their division line thereafter should run par-

allel to the street system (Exhibit P10).

Exhibits P13 and 14 were for the same lands as

mentioned in Exhibit 10.

Between the date of the Eby deed and 1876, the

ocean during a succession of storms, washed away

the point of the beach and up along the Inlet until

the high-water line threatened the United States

Government Lighthouse erected on the southerly

half of the block bounded by Vermont Avenue on the

east, Rhode Island Avenue on the west, and Pacific

Avenue on the south. The water encroaching upon

that lot at the corner of the east side of Vermont

Avenue with the north side of Pacific Avenue. Maine

Avenue was entirely submerged. There was no

Pacific Avenue easterly of Vermont Avenue, and no

lands lying southerly of Pacifie Avenue and easterly

of Vermont Avenue, and only a small portion of the

land lying southerly of Pacific Avenue eastwardly

of Maryland Avenue. In fact, the ocean washed all

this land away, leaving the contour a circle with a

very great radius.

The manner in which the lands were swallowed up

was as follows: The northeast storms would carry

the surface waters of the ocean high up on the beach,

Brief of Respondents

the tendency of the wind being to hold it there. The

waters thus driven up by reason of the strong wind

on the surface, would return at the bottom and thus

carry the sand into the ocean with them. This un-

dercurrent which cuts away the beach is called the

undertow. This process would wash away the lands

until it would reach the sand hills, when it would

undermine them and the top part would fall into the

ocean and it with the rest would be carried away.

Each of these storms would wash away 75 to 100, and

at times more than 100 feet, of the land, pp. 184-136.

After the wind had changed to the west or northwest,

the converse became true. The wind would blow the

waters away from the beach, which would return at

the bottom, and these waters would carry sand with

them, which would be deposited on the beach, and

gradually make it up. The storms, however, up to

1875 or 1880 were so severe that all the point of the

beach was carried away. After 1880 the storms

seemed to become less severe, and the beach was

made up and has continued to make up until now it

is practically where it was in 1852.

After this beach land made up, in March of 1897

McClees conveyed to the Atlantie City Beach Front

Improvement Company all his remaining lands by

the following deseription:

BEGINNING in the South side of Pacific

Avenue 175 feet East of Vermont Avenue,

thence extending (1) Fast 746 feet more or less

to line of Camden and Atlantic Land Company;

(2) South, 4414 degrees East by said line 336

feet to Absecon Inlet; (3) South by the high

water mark 1024 fect to a point 175 feet East of

Vermont Avenue measured at right angles there-

to; (4) North, parallel with Vermont Avenue,

650 feet to the beginning.

ae Rtade ie SE see SIG =e ou. ene re

= Iie etait. A iti are is a bah hana Bs Bt Sheba Sa a

52 Brief of Respondents

Excepting the following:

BEGINNING in the West side of New Hamp-

shire Avenue 150 feet South of the South line

of Pacific Avenue: (1) West, parallel with Paci-

fic Avenue, 160 feet; (2) South, parallel with

New Hampshire Avenue, 100 feet; (3) Kast,

parallel with Pacific Avenue, 160 feet to the

West line of New Hampshire Avenue; (4)

North, in and along said West line of New

Hampshire Avenue, 100 feet to beginning,

which land had been previously conveyed to Wootton

(Exhibit P15).

In November of 1889, Atlantic City Beach Front

Improvement Company conveyed to Henderson,

Moss and Hancock a portion of the above-described

land, described as follows:

BEGINNING in the South line of Pacific

Avenue, 280 feet East of New Hampshire Ave-

nue: (1) East along the South line of Pacific

Avenue to the line of lands of the Camden and

Atlantic Land Company; (2) South, 44% de-

grees East by said line 336 feet to the edge of

the Absecon Inlet or Atlantic Ocean; (3) South

by the high-water mark to a point 90 feet Kast

of the East line of New Hampshire Avenue if

the same were extended; (4) North, parallel

with New Hampshire Avenue, crossing Oriental

Avenue and Dewey Place to a point 100 feet

South of the South line of Pacific Avenue; (5)

East, parallei with Pacific Avenue, 190 feet; (6)

North, parallel with New Hampshire Avenue,

100 feet to the place of beginning (Exhibit P16).

Henderson, Moss and Hancock, in April of 1903,

conveyed a portion of said lands to Roland Conrow

by the following description:

> Gna a a AA ET ARATE hic ae SRY, PNAS lahat d hoe

.

Brief of Respondents 53

BEGINNING in the South line of Pacific Ave-

nue 280 feet East of New Hampshire Avenue:

(1) East, along the South line of Pacific Ave-

nue, 120 feet to the West line of Maine Avenue;

(2) South, along the West line of Maine Avenue,

460 feet to high-water mark; (3) Extending in

line of Maine Avenue extended to a point in the

line of high-water mark as it existed in 1856;

(4) South, along said line of high-water mark as

it existed in 1856 to a point 90 feet East of the

| East line of New Hampshire Avenue; (5) North,

| parallel with New Hampshire Avenue, and 90 +

feet therefrom, to the South line of Dewey ;

Place; (6) East, along the South line of Dewey %

Place 190 feet. (7) North, parallel with Maine

Avenue, crossing Dewey Place, 240 feet to be-

Spe:

| einning (Exhibit P18). ge

| €

| Roland Conrow in April of 1903 conveyed to the 3

| States Avenue Land Company the following tract a

of land: :

BEGINNING in the South line of Dewey ig

Place 90 feet East of New Hampshire Avenue: &

(1) East, in front or width along Dewey Place, he

100 feet; (2) by a length South between par-

allel lines parallel with New Hampshire Ave-

j nue at right angles to Dewey Place 350 feet

more or less to high-water mark; (3) still ex-

tending oceanward between parallel lines to the

high-water mark as the same existed in 1856

(Exhibit P19).

- ICR

Atlantic City Beach Front Improvement Com-

pany, in May of 1900, conveyed to States Avenue

Land Company the following:

Ra RR ane SRE RNA tine a

54 Brief of Respondents

BEGINNING in the East line of New Hamp-

shire Avenue 240 feet South of Pacific Avenue,

being the Southeast corner of a 50 foot street

known as Dewey Place: (1) South, along the

East line of New Hampshire Avenue, 160 feet

to high-water mark; (2) Hast, by the same to a

point 90 feet East of the Hast line of New

Hampshire Avenue; (3) North, parallel with

New Hampshire Avenue, 160 feet more or less

to Dewey Place; (4) along the South line of

Dewey Place 90 feet to the East line of New

Hampshire Avenue (Exhibit P17).

These two conveyances vested in the States Ave-

nue Land Company a tract of land beginning in the

east line of New Hampshire Avenue and extending

easterly at right angles thereto 190 feet, and of that

width throughout southerly, parallel with New

Hampshire Avenue and in and along the east line

thereof to the ocean.

The States Avenue Land Company in December

of 1904 conveyed to the Dewey Land Company said

tract of land by the following description:

BEGINNING in the East line of New Hamp-

shire Avenue 240 feet South of Pacific Avenue:

(1) East, parallel with Pacifie Avenue, along

the South line of Dewey Place 190 feet; (2)

South, parallel with New Hampshire Avenue,

294 feet more or less to the high-water mark of

the Atlantic Ocean; (3) Southwest along the

high-water line to the East line of New Hamp-

shire Avenue; (4) North, along said line of New

Hampshire Avenue 438 feet to the beginning

(Exhibit P20).

Dewey Land Company in December of 1907 con-

veyed to Samuel F. Nirdlinger an undivided one-

fourth part as follows:

Brief of Respondents 55

BEGINNING at a point in the East line of

New Hampshire Avenue 240 feet South of Paci-

fic Avenue: (1) East, parallel with Pacific Ave-

nue, 190 feet; (2) South, parallel with New

Hampshire Avenue, 294 feet to high-water line;

(3) Southwest, along the high-water line to the

Kast line of New Hampshire Avenue; (4) North,

along said line of New Hampshire Avenue 438

feet more or less to beginning (Exhibit P21).

Dewey Land Company, in January of 1909, con-

veyed an undivided one-half interest to Samuel F.

Nirdlinger as follows:

BEGINNING in the East line of New Hamp-

shire Avenue 240 feet South of Pacific Avenue:

(1) Kast, parallel with Pacific Avenue, 190 feet ;

(2) South, parallel with New Hampshire Ave-

nue, 294 feet to the high-water line; (3) South-

west, along the high-water line to the East line

of New Hampshire Avenue; (4) North, along

the East line of New Hampshire Avenue, 438

feet more or less to the beginning (Exhibit

P22).

Dewey Land Company, in February of 1909, con-

veyed to Nirdlinger an equal undivided one-sixth

part as follows:

BEGINNING at a point in the East line of

New Hampshire Avenue 240 feet South of Paci-

fie Avenue: (1) East, parallel with Pacifie Ave-

nue, along Dewey Place, 190 feet; (2) South,

parallel with New Hampshire Avenue 294 feet

to the high-water line; (3) Southwest, along the

high-water line to the East line of New Hamp-

shire Avenue; (4) North, along the East line of

New Hampshire Avenue 438 feet to the begin-

ning (Exhibit P23).

56 Brief of Respondents

Dewey Land Company, in July of 1912, conveyed

its remaining lands to Louis E. Stern by the same de-

seription (Exhibit P24).

Samuel F. Nirdlinger, in July of 1912, likewise

conveyed to Louis E. Stern all his interest in said

lands by the same description (Exhibit P25).

Louis E. Stern, in July of 1912, conveyed to Sam-

uel F. Nirdlinger an undivided one-half interest in

said lands by the same description (Exhibit P26).

Louis E. Stern, in July of 1912, conveyed to Dewey

Land Company an undivided one-half interest in

said lands by the same description (Exhibit P27).

Dewey Land Company, in February of 1914, con-

veyed to Samuel F. Nirdlinger its one-half interest

in said lands by the same description (Exhibit P28).

Defendant’s title is founded upon two convey-

ances from Atlantic City Beach Front Improvement

Company to William H. Burkhard, dated November,

1898, and the land is described as follows:

BEGINNING at the Northwest corner of New

Hampshire and Oriental Avenues, said point

being 400 feet South from the Southwest corner

of New Hampshire and Pacific Avenues: (1)

West, in the North line of Oriental Avenue, 175

feet; (2) North, parallel with New Hampshire

Avenue, 150 feet; (3) East, parallel with Orien-

tal Avenue, 175 feet to the West line of New

Hampshire Avenue; (4) South, along the West

line of New Hampshire Avenue, 150 feet to the

beginning.

BEGINNING at the Southwest corner of New

Hampshire and Oriental Avenues; thence (1)

West, by Oriental Avenue, 175 feet; (2) South,

at right angles to Oriental Avenue, 50 feet more

or less to the high-water mark of the Atlantic

Ocean; (3) East, by the same, 188 feet to the

_ pitas Pca Cua . dent Rd Mn hanes DA tS IS ie al od ND aR rN oe ORE we .

2, ee ———eororrrrmrrmr

Brief of Respondents 5

West line of New Hampshire Avenue; (4) North

by the same 24 feet more or less to the begin-

ning (Exhibits D4, also D1, pages 91 and 92).

William H. Burkhard conveyed the lands to Wil-

liam H. Bartlett and Elwood S. Bartlett in Novem-

ber, 1899, by the same description, calling for New

Hampshire Avenue as a boundary.

Bartlett conveyed to Stevens in April of 1905 by

the following description:

BEGINNING in the West line of New Hamp-

shire Avenue 250 feet South of Pacifie Avenue;

(1) parallel with Pacific Avenue, 160 feet; (2)

north, parallel with New Hampshire Avenue,

100 feet; (3) West, parallel with Pacific Ave-

nue, 15 feet ; (4) South, parallel with New Hamp-

shire Avenue and Vermont Avenue, 250 feet to

the North line of Oriental Avenue; (5) parallel

with New Hampshire Avenue and Vermont Ave-

nue, crossing Oriental Avenue and the high-

water line to the exterior line of commissioners;

(6) then following the riparian grant to the

place of beginning (Exhibit D6).

The locus in quo consists of a triangular tract of

land lying on the easterly side of New Hampshire

Avenue, in front of the fast land of plaintiff, lying on

the said Seskcrly side of New Hampshire Avenue.

It is claimed by the defendant as accretions to his

land, whose fast land lies upon the Westerly side

of the same avenue. The hatched portion of the fol-

lowing map, copied from the opinion of Judge

PAE dN cand AX i b Re Watt cad ad NORRIE ir a EA EE ERO ER wy Rely ea DE |

r

58 Brief of Respondents

Haight in the United States District Court (262 Fed.

page 595) shows the land in dispute.

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ATLANTIC

Ali the regained land, inchiding the iands here

inabove described were sold by MeClees and by the

purchasers, has been divided into lots with the lines

running parallel to the streets, and sold to numerous

persons, a large part of which land has been mort-

gaged by similar descriptions, there being on record

for the lands lying southerly of Pacifie Avenue and

easterly of New Hampshire Avenue 106 conveyances.

There are of record for the lands lying southerly of

Pacific Avenue and between New Hampshire Ave-

Roa a

geben ie a tRNA Tl OS Sv BREN Tt Lee RB Laie RS BSBA Deere races

Brief of Respondents 59

nue and Vermont Avenue at least 200 conveyances,

all of which conveyances excepting three or four are

deseribed as running parallel to the street system.

Of these three or four, two are accounted for by the

quit-claim deeds between MeClees and Eby, and one

by the riparian grant to Stevens.

On the portion of land lying southerly of Pacific

Avenue and easterly of New Hampshire Avenue,

touching which there are 106 conveyances of record,

there are 70 mortgages; and on the tract of land

between Vermont and New Hampshire Avenues ly-

ing southerly of Oriental Avenue there are 85 mort-

gages. The aggregate amount of the 70 mortgages

covering the land south of Pacific Avenue and east

of New Hampshire Avenue is $573,957.00. On the

block of land lving easterly of New Hampshire Ave-

nue and northerly of Pacific Avenue there are 102

conveyances of record, and since 1900, mortgages

have been placed on that land aggregating $1,430,-

000.00, and the value of the real estate covered by

the mortgages is much greater,

From the Inlet to Albany Avenue southerly of

Pacific Avenue, the boundary lines of practically all

of the conveyances run at right angles to the street

system. All of the large beach front hotels and hun-

dreds of cottages and stores lying easterly of South

Carolina Avenue are built upon lands that have been

made by aceretieon. These hotels include the Chal-

font» and Haddon Hall at the ocean end of North

Carolina Avenue, the Strand and Seaside at the

ocean end of Pennsylvania Avenue, the St. Charles

at the ocean end of St. Charles Place, the Breakers

at the ocean end of New Jersey Avenue, and the

Royal Palace at the ocean or inlet end of Pacific

Avenue. p. 166.

The high-water line of the Atlantie Ocean did not

SODAS LAD FO boats ay

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Brief of Respondents

run parallel with Pacific Avenue, and the property

lines if extended at right angles to the high-water

line would all deflect from the course of the streets

running to the ocean.

Defendant claims that the locus in quo is accre-

tion to defendant’s lands, and that the easterly boun-

dary line thereof should run obliquely to and across

New Hampshire Avenue and across the lands on the

easterly side thereof, basing his argument either

upon the dictum of Judge White in the Dewey Land

Company case, or else upon the common law theory

that accretions should be apportioned by drawing a

line at right angles from the thread of the stream

to the side boundary lines of the owner’s fast land.

As to the first contention, it is sufficient to say

that the Riparian Commissioners of the State of

New Jersey have no authority over lands, or to fix

the boundary lines of lands, above the high water

mark. They have an absolute authority to fix the

lines of lands granted or leased by them under water,

but their authority terminates with the high water

mark. New Jersey Statute and Polhemus v. Bate-

man (60 L. 163).

The second contention is said to be based upon

equity, to wit, that the man owning lands bounded

by navigable waters, being always in danger of los-

ing them by the action of the waters, shall, as com-

pensation, have the lands gained by accretion.

The inequity of the present case is found in two

facts—first, the defendant claims not his land that

was lost by erosion or avulsion, but the land of his

neighbor. His fast land lies upon the westerly side

of New Hampshire Avenue, and because the high

water line at that point happens to curve to the left

or north, he claims that he is entitled to extend his

lines across New Hampshire Avenue to the easterly

EE IRE AI SMa ONLI AE! Os A oe eA a Fh Ad Lb CT el ER APT Pe mera ong ey wl URS a

Brief of Respondents 61

side thereof, and take as his accretions, land lying in

front of plaintiff’s land lying on the easterly side

of that avenue.

The second erroneous contention is admitting the

common law rule applied in some of the cases, that

the accretions should be apportioned by drawing a

line at right angles from the thread of the stream

to the side line of the owner’s fast land. Nobody

in this ease has determined the course of the thread

of the stream. The thread of the stream means the

channel. This land lies along the Atlantic Ocean.

Which one of the hundreds of channels or currents

in the ocean does defendant adopt? The trial Court

found none, and it is respectfully submitted that no

Court will determine which of the hundreds of cur-

rents constitutes the current or the channel, without

evidence touching the matter.

Plaintiff contends that the accretions are the lands

made up by the action of the ocean within the side

lines of the respective properties, and that the ac-

cretions of plaintiff in the case at hand are those

lands that have been added by the imperceptible de-

posit of the ocean between the extended side lines

of plaintiff’s property, to wit, the easterly line of

New Hampshire Avenue, on the one side, and a line

parallel thereto and 190 feet easterly therefrom, on

the other.

Piaintiff claims the locus in quo is accretion to

its lands upon the theorv that aceretions are divided

on an equitable basis, and nothing can indicate more

clearly how inequitable it would be to divide them

upon the basis of defendant’s claim, than is shown

by the map of the locus in quo.

A reference to the map will show that by reason

of the ownership of a triangular strip of land, hav-

ing its apex in the westerly line of New Hampshire

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62 Brief of Respondents

Avenue, a width parallel with Pacific Avenue of 175

feet and a depth parallel with New Hampshire Ave-

nue on one side of 50 feet, defendant contends he is

entitled to the accretions of practically the whole of

the land lying within the lines of his original grant

extended parallel with the westerly side of New

Hampshire Avenue to the ocean, and in addition

thereto to practically one-half of the lands of Nird-

linger, being 190 feet on Dewey Place and of that

width extending to the ocean, and in addition

thereto to a portion of the lands lying easterly of the

Nirdlinger lands.

If the Court should hold that the line of accre-

tions should take this oblique course, then neither

complainant nor defendant have title to the fast

lands on which they base their right to accretions.

The undisputed testimony shows that about 1875 the

Atlantic Ocean had washed in and over all of the

lands now in question and up to the intersection of

Vermont and Pacific Avenues. All the lands of Me-

Clees at that time were submerged lands, and if

the title to the new lands formed by accretion is to

be run obliquely, then there is no evidence of title

in MeClees nor in either complainant or defendant.

The testimony of Walter Somers, page 75, is as

follows :

“OQ. Mr. Somers, these northeast storms,

these are what do damage to the beach?

A. Yes, sir.

Q. They cut it in how much sometimes at a

time?

A. Well. late vears it don’t wear away very

much heeause they have these jetties all along

there.

Q. T don’t mean that, T mean in former years

when it was way up there so far, it was cut in

— Re eT I ne

Brief of Respondents 63

how much, 100 feet, 200 feet at a time, wouldn’t

it?

A. I couldn’t tell exactly but I know some

mornings we would get up and the beach all

washed away in one night.’’

At page 101 Joab Higbee testified:

‘‘Q. And heavy storms make great inroads 7

in them, don’t they? ;

A. Yes, sir. 3

Q. Sometimes cut away 100 or 200 feet in one 4

storm? 4

A. I have saw it cut away 50 or 75 feet in a a

storm. Sat there and looked at it and see the .

easterly tide, when a swell come in there, cut g

the sand, roll down there—it would roll down i

in twenty-five carloads to one sea (wave). 5

—

eee

Q. And the next swell came in, just took that

out to sea and that’s the last you ever saw it? x

A. Washed it right down this way, to the 4

southwards all the time.”’ :

At page 112, James Mills testified: te

‘*Q. Captain, the timber that grew on Absecon x

Beach was red cedar, wasn’t it? x

A. Yes, sir, red cedars, hollies, briars and b

everything. f

Q. And it was the common thing to set houses ®

on red cedar piling, wasn’t it? 3

A. They did. ‘

Q. And red cedar was a good deal easier to i

get down there than brick? i

A. Well, there wasn’t so many of them till 3

you got down to the beach.

Q. There were plenty on Absecon Beach?

A. Down towards Longport, yes.

ot watbies. Ober. Ceci Dictate, GTI E EF —

Brief of Respondents

Q. Well, there were some, weren’t there, up at

Vermont Avenue?

A. Well, I will tell you how many cedars at

Vermont Avenue, tell you where they started

from.

Q. How many were there?

A. Well, I tell you, there was two hills,

you understand. One ran from Vermont and

Railroad Avenue and the other ran from Ver-

mont and Atlantic down what they call Sharp’s

—Mr.—was talking about the hills washing

away and the cedar trees falling. I stood there

a day and seen them falling myself.

Q. That was during severe storms you would

see them fall down?

A. Why, yes, sir, a northeast storm would cut

them down, yes, sir.

Q. And, of course, would cut the other part

of the beach as well, didn’t just stop right

there?

A. Washed it away, yes, sir.

Q. I think that’s all, Captain.”’

At pages 98 and 99, Alfred Smith testified :

‘«Q. How much have you known these storms

to cut in the beach either on Absecon Beach or on

Brigantine Beach, a single storm there, how

many feet have you known to be washed away?

A. That would depend on places; where high

hills were up I have known it to cut in there

quite a distance, probably ten or twenty feet, un-

dermine the hill, then it would drop down.

Q. And you could see that when it was cut—

you could see the hills fall in and see it wash

out?

A. Yes, sir.

er aad SB atch STR ne a NEG lc

Brief of Respondents 65

Q. Now, have you ever seen the storms un-

dermine the trees on Absecon Beach?

A. I never did see it, I know it has been

done.”’

At pages 93 and 94 Thomas Horner testified :

“<Q. Do you remember when what is now the

point of the beach, the land below Pacific Avenue

and easterly of New Hampshire Avenue, was

wood?

A. There used to be high cedar trees there, a

big bluff.

Q. Now, were you ever there when there was

a storm and saw those trees fall in?

A. I have seen them after they have fell in.

Q. After they have fallen in?

A. Yes.

_ Q. Have you ever been there when there was

a storm and seen the sand hills fall in?

A. Oh, ves, lots of times.

Q. Captain, wonld that he occasioned by the

water cutting in under them?

A. That come in under the beach, under-

mined the trees and they would fall over into

the surf.

Q. But vou couldn’t see the cutting process?

A. No, von eonldn’t see that.

Q. That’s all.’’

Whether the Court wil! find that this land was lost

by avulsion or whether it finds it was lost by ero-

sion, in our opinion leads to the same ultimate re-

sult, only npon different theories. Tf it was lost by

avulsion, then plaintiff’s predecessor in title never

entirely lost his interest in the land, even though it

was for a time covered by the Atlantic Ocean. It

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66 Brief of Respondents

is admitted and stipulated that it was regained by

accretion. If it were lost by erosion, then all title

to plaintiff’s predecessor in title to the land under

water vested in the state. If it was lost by avul-

sion, plaintiff’s predecessor in title did not lose his

entire interest in the land, but when it reappeared

by accretion, it became his land, according to the

original boundaries. In re: City of Buffalo (206 N.

Y. 319—99 N. E. 850); Mulrey v. Norton (100 N.

Y. 424—20 Law Ed. 939); Shriver v. Ocean City

Assn. (64 N. J. L. 550); DeLancy v. Wellbrock (113

Fed. Rep. 103-105); Stockley v. Cissna (119 Fed.

812).

If the land was lost by avulsion, plaintiff’s prede-

cessors in title not having lost his entire interest

in the land under water, when he made a conveyance

of the land above water, bounding it by the high

water mark, conveyed all his interest under the high

water mark within the side lines of such convey-

anee. Banks v. Ogden (2 Wall. 57—17 L. Ed. 818),

wherein Chief Justice Chase said:

‘‘That a grant of land bordering on a road or

river carries the title to the center of the river

or road, unless the terms or circumstances of

the grant indicate a limitation of its extent to

the exterior line.’’ Salter v. Jones (39 N. J.

L. 469).

If the land was lost by erosion, and the title there-

upon vested in the state, when the accretions ap-

peared, if they are apportioned as hereinafter con-

tended for by us, and as the District Court and Cir-

cuit Court of Appeals found, then plaintiff would

be entitled to the accretions within his side lines, ex-

tended precisely as in the ease if the lands were

lost by avulsion.

Ch eee . ai ii

Brief of Respondents 67

In the case of Jefferis v. East Omaha, dc. (134

U. S. 178—33 L. Ed. 872), in which the United

States Government made survey of land to a pat-

entee lying on the southerly side of the Missouri

River, and after the survey had been made, but be-

fore the patent was granted, considerable land was

made by acerction, this Court held that the lands

made by accretion would be included in the patent

within the original side lines to the southerly line of

the Missouri River. The Court in conclusion saying:

‘*But we think that in all the deeds, the ac-

erection passed by the description of the land as

lot 4. In making every deed, the grantor de-

scribed the land simply as lot 4, and did not,

by his deed, nor does it appear that he has since

or otherwise, set up any claim to any accretion.

It must be held, therefore, that each grantor, by

his deed, conveyed all claim not only to what

was originally lot 4, but to all aceretion thereto.

When McCoid, in 1854, conveyed his interest in

the premises by the description of lot 4, as he

had taken a deed of the undivided half of the

premises by the same description from Joseph

I. Town, in September, 1857, and had title there-

hy up to the river, his north line was the river,

which was gradually adding land to his land.

‘¢These views result in the conclusion that the

side lines of lot 4 are to be extended to the river,

not as the river ran at the time of the survey

in 1851, but as it ran at the date of the patent

in 1855, and that all the land which existed at

the latter date, between the side lines so ex-

tended and between the line of the lot on the

south and the river on the north, was conveyed

by the patent.”’

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68 Brief of Respondents

After the lands reappeared, McClees repossessed

himself of them, and to this day no person has ever

questioned his title thereof.

McClees conveyed his title to the Atlantie City

Beach Front Improvement Company, with the ex-

ception of one tract previously conveyed to Woot-

ton, and by successive conveyances his title to the

fast lands has passed to complainant and defendant

through respective deeds, both being bounded by

New Hampshire Avenue.

New Hampshire Avenue was laid out on the map

in 1852 or 1854, at which time the land now in ques-

tion was high, fast land, and as early as 1958 a con-

veyance was made by McClees to Wootton of a tract

of land bounded on the east by New Hampshire Ave-

nue. All the conveyances by the respective owners

of the lands on either side of that avenue have been

conveyed with respect to that avenue as one of the

boundaries, so that the avenue has been recognized

as a division line between property for the past

sixty-five vears theoretically, and for the past fifty

nine vears by actual convevance (Plaintiff’s Ex-

hibits 9 to 28; Defendant’s Fixhibits 1, 4, 6).

Tf the locus in quo he considered as lands formerly

above the high water lost by avulsion that were for

a time submerged and have again reappeared, then

the conveyance to the defendant having New Hamp.

shire Avenue as its boundary, and the conveyance

to the complainant having New Hampshire Avenue

for one of its boundaries, New Hampshire Avenue

will continue the dividing line between those prop-

erties.

Tf, on the other hand, the lands be considered as

accretions, then there has been such a manifestation

of intention by the owners to constitute New Hamp-

shire Avenue a division line between them that it

—— ae eet nee ne en ae ee ei eh tC Oo. mmr ee eS

Brief of Respondents 69

would now be inequitable for the Court to fail to

give it effect.

In this connection the following observations of

Judge White in the Dewey Land case are important.

He says:

‘‘If complainants have any title to the locus

in quo, it must be by virtue of its being an ac-

eretion to their high land on the east side of

New Hampshire Avenue, and the efficacy of such

a claim of title would necessarily depend upon

whether the owner of the former fast land, as

it existed in 1853, in then dedicating and open-

ing a public street, New Hampshire Avenue,

across the same, to and at right angles to the

ocean, had so divided his land into two parts,

and fixed the natural side lines of accretion

gains for those parts respectively as to have

rendered it inequitable for the state to have

disregarded the lines so fixed in making its sub-

sequent survey and grant. Valentine v. Piper,

99 Pick. 95. But, as before stated, that ques-

tion is not in my judgment involved in and is

therefore not decided by this case.’’

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This principle is brought out with great force in

Valentine v. Piper, 22 Pick. 85, and is reaffirmed in

Piper v. Richardson, 9 Metealf, 155, and Drake v. ‘

Curtis, 9 Cush. 446, where the doctrine of the prev- ‘

ious cases that the owner had previously laid out

the property with reference to the lines of a street,

was held to be sufficient reason for extending the

lines of the lots on either side of the street parallel

thereto. See also Commonwealth v. City of Rox-

bury, in the note to 9 Gray, 523, as well as Gerish v.

Gary, 120 Mass. 132; Adams v. Wharf Co., 76 Mass.

521, and Attorney-General v. Boston Wharf Co., 78

Mass. 553.

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70 Brief of Respondents

The testimony shows all of the land in this vicin-

ity to be of the same character as the locus in quo,

and if it be considered as accretion, there have been

more than three hundred conveyances all running

parallel with or at right angles to the street system.

In all these conveyances not a single owner has as-

serted claim to title except in front of his property,

that is, within the limits of the side lines of his lot

extended.

This accreted land, and the buildings erected

thereon, from the evidence must be of the value of

several millions of dollars.

In addition to the successive conveyances from

grantor to grantee, of all of those lands during all

the past forty or more years, there have been prac-

tically two hundred mortgage liens created on this

same land. All of these liens have likewise been for

tracts of land running parallel to or at right angles

to the street system, and the present amount of these

mortgages, according to the testimony, exceeds

$2,000,000. So that in every conveyance by grantor

to grantee, or from mortgagor to mortgagee, the

parties have dealt with these accretions as though

the accretions were formed in front of their lots

within the side lines of their lots extended. Their

suecessive eonvevanees and mortgages show con-

clusively their intention as to the manner in which

these aceretions should be divided.

In the ease of Dawes v. Prentice, 33 Mass. 435,

the intention was gathered from one of the courses

in the deed, as was the case in Smith v. Smith, 100

Mass. 302, and Stockham v. Browning, 18 N. J. Eq.

390. In the present case such intention is to be

all the grantors for all the land in this vicinity, hence

ecémplainant contends that the Court will award

drawn from the courses in the suecessive deeds of

Ee \ 7 ee me ier te eet Te fo

Brief of Respondents 71

this accreted land in the same manner that all these

owners have dealt with it. To make a different de-

cree will mean to unsettle all the real estate and

mortgage titles to all the land in this vicinity, and

elsewhere along the Atlantie City ocean front, in-

cluding the land on which is erected the Royal Palace

Hotel, the Breakers, the St. Charles, the Seaside,

the Strand, the Chalfonte and Haddon Hall (page

166).

To decree that these accretions are to be appor-

tioned obliquely would mean to cast a cloud upon

every title and upon every mortgage not only in

the section of Atlantie City where the locus im quo

is situate, but also upon all the ocean front prop-

erties in Atlantie City, as there is evidence to show

that all the land along the ocean front is accretion

(page 166), and that the high-water mark did not

run parallel with Pacifie Avenue or at right angles

to the cross streets, and that all the conveyances and

morteages have been made either at right angles

or parallel to the street system (page 261, line 10).

Not only should the title be apportioned in con-

formity with the conveyances made by the owners of

the pronerty, but it is contended as a matter of law

that aceretions can never cross a street where there

is a private owner on both sides of it.

In the opinion of Judge White it was suggested

that » Court might follow the line of the riparian

grant in apportioning aceretions. The opinion was

not necessary to the case, in fact it was not even a

dictum heeause aceretions were not involved in that

ease, and both oninions rendered in the case ex-

presslv exelnde the aceretions therefrom.

Tn answer to defendant’s like eentention. it will

ho reealled that the rinarian commissioners have no

authority exeent such as is conferred upon them by

SERA i eR RR IT nats

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ig LL ee as ian eer eRe ea naces a re eer

72 Brief of Respondents

the acts of the legislature concerning riparian

grants. Their duties are confined to lands covered

by water. hey have no authority over lands above

the high-water mark. In other words, the riparian

commissioners have no jurisdiction over accretions,

and by no possibility could their determination, if

they attempted one, have any binding force upon a

court.

An examination of the record in the case of Dewey

Land Company v. Stevens, which is in evidence,

will disclose the fact that there is nothing in it what-

ever to justify the statements in this part of Judge

White’s opinion, to the effect that the riparian com-

mission have adopted any system, equitable or other-

wise, in making their grants, or forming a basis for

tlie conclusion he reaches that there should be equi-

tably some similarity between the lines run by them

in attempting to make their grants, and the lines

to be established for accretion. In fact, the very

grant made by the commissioners in this, as in all

other eases, is expressly bottomed upon the assumed

ownership of the upland in the applicant as con-

tiguous to the granted territory in the direction in-

dicated in the grant.

The right of accretion is not a mere illusory right,

but a real one.

Under our Act of 1869 it is provided that a grant

may be made to a person other than the owner, pro-

vided six months previous notice be given to the

owner of thu ripa. As a means of testing the state-

ment of Judge White, suppose A, being the riparian

owner, and under the Act of 1869, a riparian grant

be made to B, in front of A’s land; on A’s riparian

grant he gets no exclusive right of possession unless

he reclaimed the land. Suppose he does not reclaim

the lands and accretions form within the limits of

_ * * sid on > ond A - " eA m s rd err pote tpl iPS

:

Brief of Respondents 73

the riparian grant, yet in front of A’s land. There

can be no question but that those accretions would 5

be the property of A, and yet under Judge White’s iy

suggestion, B would have title to them by virtue of f

the bounds of his riparian grant. §

In fact, in the riparian grant to Bartlett, the E

riparian commissioners recognized the course run-

ning parallel with the street in the Burkhard and |

Bartlett deeds for the upland. The record shows e

that Burkhard aequired title by two deeds: One run- 3

ning from Dewey Place to Oriental Avenue; the

other for lands northerly of Dewey Place, and con-

veyed to Bartlett. After acquiring this title, al-

most the entire tract first above mentioned became

submerged and was submerged at the time of the F

making of the grant, yet the riparian commissioners

ran their first course along the original westerly line

of the Burkhard or Bartlett land, the first course in

the riparian grant being as follows: ‘‘And from

said beginning point south parallel with Vermont

Avenue, 175 feet east at right angles from the east

line of the same, 185 feet to a point in the east line

of lands under water;’’ thenee southeast in a

straight line.

If the riparian commissioners intended to estab-

lish a rule that the line should be at right angles to

the shore line, then the first course of the Bartlett

grant should have been laid southeast from the be- A

ginning, and they should not have gone 185 feet par- &

allel with Vermont Avenue before adopting the

southeast course, so that the riparian commissioners

have not followed what defendant contends should

be the rule.

Tf title to the accretions was dependent upon the

courses of the riparian grant, then by the act of the

riparian commissioners in starting their first course

EP SMBE LE VIE OEE

ERSTE ELLE

74 Brief of Respondents

at right angles to the shore line from the beginning

corner, would deprive the adjoining owner on the

west of a considerable amount of accretions, be-

cause a line drawn southeast from a point 185 feet

south of the beginning corner and 175 feet westerly

of Vermont Avenue would be very much further

west than a line drawn from the beginning corner

southeast to the exterior line.

RIPARIAN GRANT WAS INEFFECTIVE.

Defendant showed title from a common grantor to

a parcel of upland lying on the westerly side of

New Hampshire Avenue, produced a riparian grant

under the great seal of the state covering the locus

in quo, and then by his brief contends that he has

made out a prima facie case.

The defendant, however, did not in the trial of

the case stop with the offering of his two deeds, but

offered eight or more witnesses who testified that

the ordinary high-water mark of the Atlantic Ocean

about 1875 was very much further inland than at the

present time, their testimony placing the high-water

mark at or near the intersection of Vermont and Pa-

cifie Avenues, their testimony being to the effect

that all easterly of that location, which included all

the lands of complainant and of defendant, were then

under the waters of the Atlantic Ocean. His wit-

nesses, on cross-examination, uniformly testified

that the ocean during sevevs storms made inroads

upon the beach, washing it away from fifty to

seventy-five feet during a single storm, and after

the storm subsided the land would gradually reform,

but before the regained land would equal the amount

that had been previously carried away by the storm,

PER BER heey | Sn ye he

Brief of Respondents 75

another storm would appear and make still further

inroads into the beach; that this continued until after

1875.

There is undisputed testimony that in 1874 and

1375 a jetty was built into Absecon Inlet, called the

Government Jetty, and soon thereafter the gains be-

came more lasting. One of the witnesses, named

Horner, testified that no gains were made, however,

to the beach until three or four years after the jetty

had been built; that for two or three years thereafter

the beach continued to cut away.

The only fair inference to be drawn from the un-

disputed testimony concerning this jetty is that the

building of the jetty had a tendency to divert the eur-

rent from its previous channel. This could not be

done all at one time but was done gradually, and as

this current was diverted from its previous channel

and formed a new channel further towards the north,

it gave nature an opportunity to reform the beach.

The process of formation was clearly stated by

Barclay Bullock, who testified that the heavy north-

east storms dashing against the beach loosened the

sand, and the weight of the wind on the water forced

the water ahead of it up on the beach, and as the

water must go some place and would not go back

against the wind, it went to the bottom forming an

opposite current from that above, and the bottom

current being away from the beach, carried the

loosened sand with it, thus making the inroads as

above stated of anywhere from one to three hundred

feet during a single storm. When these northeast

storms would die down and the wind wenld blow

from the west or northwest, the weight of the wind

would carry the water out to the ocean, and the

water being bound to find its level, caused an under-

current to set in the opposite direction towards the

oo Sneath et SEES,

EE OE RR EIN EN PLT AL I PHT RA

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pA eae hl Tote ‘i PRL AY Mel ah Bs BU na all A a Dnt Ea a

76 Brief of Respondents

beach, and this undercurrent carried the loose sand

with it, depositing it upon the shores of the beach,

and thus forming the accretions that admittedly

have been formed in this section.

During the course of the trial it was agreed by

both complainant and defendant that the lands made

up were made by the gradual increase from the

ocean, and were accretions. Admitting then that de-

fendants were in possession of the upland portion of

their lots at the time the riparian grant was made,

and admitting, without conceding, that the riparian

grant was a valid grant at that time, it conclusively

appears that since that time the accretions have

formed and a considerable portion of the original

grant, to wit, the locus in quo, has been covered by

accretions, so that these lands now lie above the high-

water mark, and on the opposite side of the street

from that on which defendant’s fast lands are lo-

cated, and belong either to the plaintiff or defendant.

It is contended by the complainant that as these

lands are now above the high-water mark and were

formed by accretions, that defendant retains no title

thereto by virtue of his riparian grant. It is further

contended that the lands are accretions to complain-

ant’s lands in front thereof, and are entirely free

from defendant’s riparian grant. In other words, it

is contended by complainant that the inland line of

a riparian grant is ambulatory, and just as land

makes up by accretions and excludes the water there-

from, just so is the land conveyed by such a riparian

grant lessened in quantity and lost to the holder

thereof.

It was said in the case of Dewey Land Company

v. Stevens, 83 N. J. Ka. 314, that notwithstanding

this riparian grant, if at the time it was made

“‘the land did not belong to the state, its errant

was ineffective; if the land belonged to the state

pea Shas eo A eS ee —

SRR 6 NE wt De POT ke Se Sie When Da oh ah fail lpend sete y Abie —F

*

Brief of Respondents 77

at the time of the grant by reason of then being

under tide water, but has reverted to its former

owners by matters arising after the grant, the

complainants are not in a position of question-

ing the grant, but of conceding its validity, and

claiming that the title thereby granted has

ceased to be effeetive.’’

This is precisely the position of the plaintiff. As-

suming, but not coneeding, that the riparian grant

was properly described and legally made, our con- d

tention is that the only title the state could give e

when it made the grant was such title as it possessed é

and owned, which was the title to land under water, 5

the inland boundary of which was ambulatory. In €

other words, the title of the state insofar as it is i

bounded by the high-water mark is subject to the

y)

a

:

shifting and changes occurring by the slow process

of aceretion and its correlative reliction. The right

of the state to the lands under tide waters up to high-

water mark is the precise equivalent of the right of

the Crown in England to the same kind of property,

and it is perfectly well settled in both England and

this country, that as between the Crown, or the

state, and the private owner, the rights of the

former in case of gradual and imperceptible reces-

sion or aceretion are shifting and will be delimited

by the high-water mark. This familiar rule is thus

expressed in Gould on Waters, Section 105:

**Land formed by alluvion, or the gradual and

imperceptible aceretion from the water, and

land gained by reliction, or the gradual and im-

perceptible recession of the water, belong to the

owner of the contiguous land to which the addi-

tion is made. There is no distinction in this re-

spect between soil gained by accretions and that

ee ee ee — eretts «: as SNA RIE eA Leal AP Cae SEN BAB Le PE LALA LEIS a

78 Brief of Respondents

uncovered by reliction. The change is imper-

ceptible when it is not discernible in its prog-

ress, though the fact that there has been an

increase may be percep

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