# Appendix — Stevens v. Arnold > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386005_0274%3A4 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1923 - **Citation:** 262 U.S. 266 ## Text 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 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. lL a AVENU Lor O4aN 4 * whet Kon 3 2 . > z : 714° : s) 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 ROY 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 perceptible year by year, or at shorter intervals. Conversely, land gradually encroached upon by navigable waters ceases to belong to the former owner. The external bounds of estates situated upon the shore of the sea or navigable rivers may thus gradually shift as the water recedes or encroaches, although the right to the shore itself of course remains in the Crown or state.”’ The title of the state to high-water mark being thus a shifting one, dependent upon the gradual change in the position of high-water mark due to aceretion, any one who takes title from the state to land under water of course takes sueh title sub- ject to the same contingency of change or shifting in the boundary line. The state can give nothing more than it owns. The situation is characteristically described by Judge Depue, delivering the opinion in the Court of Errors and Appeals in Ocean City Association v. Shriver, 35 Vr. 550-553, where he states: ‘“‘The avenue as delineated on the map is a fixed monument in the description in the deed and in that respect it differs from a boundary on the ocean, where, by force of the description itself, the title of the grantee will advance or recede as the line of the high water changes from time to time, and he will hold by the same boundary, including the accumulated soil that has arisen from alluvial formations. Seratton v. Brown, 4 Barn. & C. 485; Rex v. Yarbor- ough, 3 Id. 91; S. C. H. L. sub nom. Gifford v. iieemeeane A na Brief of Respondents 79 Yarborough, 5 Bing. 163; Camden & Atlantic Land Co. v. Lippincott, 16 Vr. 405.’’ The ease of Scratton v. Brown, 4 B. & C. 485, is directly in point. It was an action of trespass brought by the owner of shore lands, claiming under a grant from the Crown, against persons who had taken stone therefrom. The grant in question was between high and low-water mark as it existed in September, 1773. Since the date of the grant there had been a shift by imperceptibly slow changes in the location of low-water mark, and the question in E the case was whether the title derived from the grant : f & between high and low-water mark was only to such territory as lay between those points in 1773, when the grant was made, or whether the fact of accretion, or its correlative, was to change the location of the property to the land between low and high-water mark as at present existing. It was argued: ‘“‘Then assuming that the deed conveyed a right of soil in the shore, it conveyed such right in that portion of land which from time to time should constitute the seashore, and not merely in that portion of land which constituted the scashore in 1773. It has been said that there cannot be such a thing as a movable freehold, and that this grant is void for uncertainty. But in Co. Litt. 48 b. it is laid down that where a person has a movable estate of inheritance in thirteen acres of land, parcel of a meadow of eighty aeres, he may convey it by the descrip- tion of thirteen acres lying within the meadow of eighty acres. That is an authority, there- fore, to show that there may be a movable free- hold, and that the description in the present case is sufficiently certain. The uncertainty in the JB wee. ee ee ee eS a ea 80 Brief of Respondents description, if any, arises wholly from the uncer- tainty of the subject-matter granted. Then, if there may be a movable freehold, and it is suffi- ciently described, the question is what was in- tended to pass. Now, it is clear, from the whole deed, that the grantor intended to part with all his interest in the shore which he himself had de- rived from the Crown. According to the late case of The King v. Lord Yardborough, 3 B. & C. 91, and the passages from Lord Hale’s treatise De Jure Maris, there cited, it is established that land formed by the sea, by slow, gradual, and imperceptible accretion, prima facie belong to the Crown, as the shore, or the space between high and low-water mark, has been slowly and imperceptibly altered by the encroachment of the sea, the shore so altered would belong to the Crown, and of course to its grantee, and, there- fore, now belongs to those who claim under the deed of 1773.’’ Upon this point Judge Bayley said: ‘*There is no dispute as to the limits on the east and west, but merely as to those on the north and south. It has been contended on the part of the plaintiff, that it does not convey that soil which from time to time is bounded by the high and low-water marks, but only that soil which at the time when the deed was executed was bounded by the then high and low-water marks. Now the passage cited from the 1st inst. 48 b., shows that there may be a movable free- hold. It does not apply specifically to this case, because the case put there is of a given quantity of land fixed in situation, of which part from time to time may be vested in A and the other Brief of Respondents 81 part vested in B. The question here is, whether there may be a certain quantity of land shifting in situation and vesting in the same person at different times? That must be the case of land fronting the sea or a river, where, from time to time, the sea or river encroaches or retires. If the sea leaves a parcel of land, the piece left be- longs to the person to whom the shore there be- longs. The land between high and low-water marks originally belonged to the Crown, and can only vest in a subject as the grantee of the Crown. The Crown by a grant of the seashore would convey, vot that which at the time of the grant is between the high and low-water marks, hut that which from time to time shall be be- tween these two termini. Where the grantee has a freehold in that which the Crown grants, his freehold shifts as the sea recedes or encroaches. Then what was the object?) Then what was the object of the partics to the deed «f 1773?) To grant the land within certain limits? Those to the east and west were ascertained, but those 4 on the north and south were to be ascertained by the high and low-water marks. I think that those words must be construed with reference to the rules of the common law upon the subject of accretion, and that as the high and low-water marks shift, the property conveyed by the deed also shifts. For these reasons T am of opinion that the plaintiff was not entitled to recover in ' respect of any part of the stones which were proved to have been taken between high and low-water marks.’’ CASS SAN CN Na ate RAF LOG LENE PEED IL RAN LENG LD TE MY ee SE PE NY PO It was because of the distinction between a slow and gradual growth by accretion rather than by sud- PS ee eee ee ee 82 Brief of Respondents den avulsion that the verdict was sustained in the leading case of King v. Yarborough, 3 B. & C. 91. Attention is direeted to the very able argument of Phillips that precedes the opinion in the case, where he thus expresses the idea: ‘