Camden & Atlantic Land Co. v. Lippincott

The opinion of the court was delivered by Depue, J. The increase of laud at the place in question is land acquired by alluvion, in its legal sense. Mr. Morris, who went to Atlantic City in June, 1853, says these increases were made by storm-tides, and were sometimes greater than at other times; that the increase was fluctuating and gradual —the land sometimes made out and sometimes made in — that the increase at some places was two or three feet, at others a little more, and at others one hundred or one hundred and fifty feet; and that these changes were so gradual as not to be perceptible from day to day. He also says that these accretions began between 1853 and 1855, and continued up to within a few years. The jury finds, I think on the weight of the evidence, that the accretion in question in this suit formed between 1856 and 1880. The. agreement between the land company and Miles of February 8th, 1856, is the most conclusive evidence that in 1856, when the Miles deed was made, the fast land had not been extended, either by alluvion or artificial means, beyond the line of the sand hills. The increase of land adjacent to the seashore, derived from alluvial deposits, happening so gradually that the increase could not be observed while actually going on, although a visible increase took place from year to year, belongs to the owner of the land bounded upon the sea. Rex v. Lord Yarborough, 3 B. & C. 91; S. C. in H. of L., 5 Bing. 163; County of St. Glair v. Lovingston, 23 Wall. 46. — 411 — In the conveyance from Waterman to the land company, the premises are described as bounded upon low-water mark of the Atlantic ocean. The title of the company, by force of this description, extended to ordinary high-water mark. Arnold v. Mundy, 1 Halst. 1; Gough v. Bell, 2 Zab. 441; 3 Id. 624; Attorney-General v. Chambers, 4 De G., M. & G. 206. As between the state and the riparian owner, the alluvial increment would have belonged to the land company. The merits of this case, as now presented, depend, therefore, upon the construction aud legal effect of the deed made by the company to Miles February 8th, 1856. The Miles deed calls for a boundary to and along “the storm-tide mark of the Atlantic ocean.” The proof is that at the time this deed was made there was a row of sand hills, which formed a barrier against the overflow of the sea in times of storms, and that the storm-tides reached up against these hills. The jury, by its verdict,, has found that in 1856 the line of ordinary high tide also reached to this row of sand hills. If the'finding of the jury in this respect is sustained by the evidence, the owner of the Miles title will be entitled to the alluvial increase, even though the line of sand hills had been called for as a monument in the description of the lands conveyed, and was regarded as a fixed boundary; for in that event, the company, in fact, parted with all the land it owned, down to the line of the public right, and retained no land to which the alluvial increase could attach. Storer v. Freeman, 6 Mass. 435-441; Saulet v. Shepherd, 4 Wall. 502. The beach at Atlantic City in 1856 was a sloping beach. Mr. Osborne, from the Rowan map, calculated the slope to be two degrees and thirty-four minutes, and that, on a perpendicular rise of water of four feet, the water-line would be carried up on the beach from eighty-three to eighty-five feet, indicating a change in the position of the line of water on the beach of one foot and nine inches for each inch of rise in the waters of the ocean. The tides at Atlantic City rise from four to five feet. The sand hills, which were the barriers against the influx of the sea, were a series of small hills, — 412 — irregular in form and in line, with breaks occurring at intervals, through which the storm-tides would run inland, and were liable to be cut away and crumbled by extremely high water and to be replaced by the sand brought in by favorable winds. These sand hills have long since disappeared. Their removal began in 1857. The fast land of 1856 has been extended more than twelve hundred feet by alluvial deposits; the avenues have been extended over this acquired land to the new line of the water; a large summer hotel has been built upon it, and it has been otherwise improved. Considering the constant cha'nges that occur on the seashore by deposits of sand, brought on by one tide and removed or shifted by succeeding tides, and the variation in the height of tides, due to temporary causes, the disappearance of the sand hills and the altered condition of the beach, it is not surprising that in 1882 the evidence should be conflicting touching the line of ordinary high water relatively to the line of sand hills in 1856 — twenty-six years before the trial. In the view we take of this case, it will not be necessary to examine critically the evidence on this subject. The line of sand hills is not called for as a boundary or a monument in the Miles deed. It will also be observed that the Rowan map, which is the only map on which the line of sand hills is delineated, is not, by reference, made part of the Miles deed. On that map the lands are not divided into lots, and the Rowan map was not recorded or filed or deposited in the clerk’s office when the Miles deed was made. It was first placed in the clerk’s office for record on the 24th of October, 1882. It appears also that lithographed copies of the Morris map were in the clerk’s office as early as 1860. Mr. Izard, who was clerk from 1860 to 1865, says that he found them there when he went into office. Mr. Rape, who was clerk from 1870 to 1875, says they were passed over to him by Mr. Risley, his predecessor, and that he left them in the office at the expiration of his term. The only map in existence in 1856, when the Miles deed was made, on which the company’s lands were divided into lots, was the Morris map and — 413 — the lithographed copies of it. These maps were made by the directions of the company for the purpose of selling lots, and were used for that purpose. The numbers of the lots conveyed to Miles, mentioned in his deed, correspond with the numbers marked on these maps; and it is clear from the evidence that the lithographed copies of the Morris map were intended by the reference in the Miles deed to a map recorded in the clerk’s office. On these maps the line of sand hills is not delineated. At all events, no map is produced or shown in evidence to have been on file or of record in the clerk’s office in 1856 which exhibited on it the line of sand hills. That line is not in any way made part of the description of the premises conveyed, and therefore cannot affect or control the legal construction of the deed. Hoboken Land Imp. Co. v. Kerrigen, 2 Vroom 13-17; Negbauer v. Smith, 15 Id. 672. The boundary to the seaward called for in the Miles deed is “the storm-tide mark of the Atlantic ocean.” Such a description in deeds is unusual, though the expression “storm-tides” seems to be pretty well understood alongshore. Mr. Osborne, a witness called by the plaintiff, and much relied on, says that the storm-tide line would be where the ordinary storm drives the ordinary tide, and that those extraordinary storms in which the tide runs over everything would not be considered as establishing the storm tide mark; that for a considerable period after the storm-tide occurs there are evident marks of the height to which it has run — the small materials the tide carries with it are deposited there, and there is an abrasion of the sand there; that the line which is marked by the drift; and by the abrasion of the sand might very well be taken as the line, and that it is plain to see where the extreme storm-tide has reached for a month afterwards at least. This witness also says that the height of the tide varies with the force and direction of the wind — that it would be less with an off-shore than with an ordinary on-shore wind. In answer to the question whether of two storms in the same year, the one more severe than the other, he would say that the storm-tide mark was fixed by the one or the other, he — 414 — savs that if he were taking that before a jury or any one else, he would say what the height of each was and leave them to judge what was the height of the storm-tide. • Albert Conover, another of the plaintiff’s witnesses, says that in time of a storm the second tide would be the highest, except when there is a wind blowing against it; that each different tide would come to a different height; that sometimes two or three would come alike; that these storm-tides would' leave a mark with the “sea trash or something that drifts”.on the shore, and mark how high the tide is along the upland shore; that there is no fixed line along which these different tides will, deposit their débris, but it varies according to the slant of the shore and the height of the water. Mark Adams, a witness also called by the plaintiff, says that these storm-tides leave a mark upon the shore; that there is a drift of some kind, and the waves and action of the wind will drive it up on shore and leave it there; that when the water recedes the mark would be visible along the shore; that how long such a mark would last would be owing to how much exposed it was; probably it would cover up in a day or two; probably it would be obliterated ; portions might be seen for months; it would last until it ’was covered up. He also says that each one of these tides fixes a line for itself, arid each one in a different place. IMr. Leeds, another of the plaintiff’s witnesses, testifies that st'orm-tides vary very much; that he has seen some that would be considered storm-tides that did not come up to the hills at all; that every one has its own mark. And being interrogated with respect to the mark left by storm-tides, he says that the point where the tide runs up to shows where the point is; it will stay there till the wind blows over it, or until another storm-tide comes and makes another mark. Mr. Eichards, the president of the company, speaking of the mark on the storm-tide bank, said that the water would back up and leave a mark, and shells would be thrown on the bank by the force of the waves; that he has frequently seen these shells embedded in the bank above the level of the sand at the foot of the hill; that the storm-tide line changed with the — 415 — violence of the storm, advanced or receded as the water was impelled further up or. lower on the beach, and that it was a mark that changed with each recurring storm, and was fixed, more or less, by the violent character of the storm. All the witnesses speak in the same manner of the variableness of the storm-tides in height and the evanescent character of the mark each one would leave. A more uncertain and vacillating boundary than that adopted for the seaward line in the Miles deed could not be devised. It cannot be taken as an absolute — a fixed — boundary. It must be treated as relative, and as having relation to the condition of things as they are from time to time. Seratton v. Brown, 4 B. & C. 485, is the leading case on this subject. The plaintiff sued the defendant in trespass for taking stones from the seashore adjoining the plaintiff’s manor. The plaintiff was the owner of the shore between high and low-water mark. The defendant justified under one Taylor, in whom was vested an interest in the shore conveyed by the plaintiff by a deed of lease and release, dated September, 1773.' The deed described the premises granted as extending from the south at low-water mark, to the north at high-water mark. It appeared at the trial that since the date of the deed the sea had gradually encroached upon the land twelve or fifteen feet or more, and consequently the high and low-water mark had advanced in the same degree inland since that time. The defendant contended that the deed of 1773 conveyed to the grantees the soil of the shore between high and low-water marks, wherever those marks might be. The plaintiff insisted that the deed conveyed only that part of the shore which, in the year 1773, lay between high and low-water mark, and consequently that he was entitled to recover for any stones taken by the defendant higher up on the shore than the high-water mark reached at that time. The court sustained the defendant’s contention, and held that by the deed the right of soil in that portion of land which from time to time lay between high and low-water mark passed to the grantee, and that as the high and low-water mark shifted, — 416 — the property conveyed by the deed also shifted. The same rule of construction was adopted by Alderson, B., In re Hull and Selby Railroad Co., 5 Mees. & W. 327. He said: “ Suppose the crown, being the owner of the foreshore — that is, the space between high and low-water mark— grants the adjoining soil to an individual, * * * in that case, the right of the grantee of the crown would go forward with the change. On the other hand, if the sea gradually covered the land so granted, the crown would be the gainer of the land.” In Dunlop v. Stetson, A Mason 349, one Budge became entitled to lands lying on the Penobscot river, together with the flats in front of the land to low-water mark. He conveyed thereout to one McGrathry a lot bounded, and described as beginning at “a stake on the west bank of the Penobscot; * * * thence to a stake and stones on the bank of the same river; * * * thence running on the western bank of said river to high-water mark.” In a controversy between the representatives of Budge and the grantees of McGrathry, the court construed the grant to the latter as being only to the front brne of the bank, excluding the flats. It- was suggested that since the period of the grant to McGrathry there h.ad been an encroachment by the gradual wear of the river, and Mr. Justice Story, citing Scratton v. Brown, held that if that be so, the grantees of McGrathry must be confined to the bank as it actually existed, and that they had no legal or equitable title to such portion of the flats as stood in the place of so much of the bank as had been washed away. The Supreme Court of Massachusetts applied the same principle of construction to a grant of flats where the river had receded from the shore, and by that means the flats had been considerably increased in extent after the grant had been made. Adams v. Frothingham, 3 Mass. 352. The same court also held that the grantees of the privilege of taking seaweed from the beach below certain land conveyed, were not affected by the gradual shifting of the boundaries of the beach by the action of the sea, but were entitled to take seaweed from the beach wherever the beach might be below — 417 — the land conveyed, and that it mattered not whether the sea had gained upon the land or had receded. Phillips v. Rhodes, 7 Metc. 322. The prinpiple on which these cases were decided is that in grants of lands lying along the seashore, the parties act with a knowledge of the variety of changes to which all parts of the shore are subject. The grantee takes no fixed freehold but one that shifts with the changes that gradually take place. The proprietor of lands having such a boundary is obliged to accept the alteration of his boundary by the gradual changes to which the shore is subject. He is subject to loss by the same means that may add to his territory; and as he is without remedy for his loss, so he is entitled to the gain which may arise from alluvial formations, and he will, in such case, hold by the same boundary, including the accumulated soil. Tyler on Bound. 40; Phear on Waters 12-43; 3 Kent 435; New Orleans v. United States, 10 Pet. 662-717. He takes his title, as was said by Mr. Justice Story, in Dun-lop v. Stetson, subject to those common incidents which may increase or diminish the extent of his boundaries. This principle applies as well to a boundary by the storm-tide mark as to a boundary by the high-water mark or by the low-water mark. Such a boundary will leave in the grantor, that space of the beach which lies between the ordinary high-water mark and the fast land, and is subject to be washed ovér by unusual tides so frequently as to be waste and unprofitable for use; but the title of the grantee will advance or recede as the line of storm-tide changes from time to time. This construction of the Miles deed has been acted upon by the parties. When the Miles deed was made, the line of sand hills against which the storm-tides beat was three hundred and thirteen feet from Pacific avenue, at North Carolina avenue. By the agreement of February 8th, 1856, the company gave Miles a license to fill up in front of his land between North Carolina and Pennsylvania avenues, “ outside of the line of sand hills or storm-tide mark, so that the line between the corners of said avenues might be straight.” By — 418 — filling in under this license the grantee extended the bank out several feet — Mr. Osborne says thirty-six feet — along his premises. The agreement contained no actual grant of the land so to be acquired. It was assumed that the license being executed, the grantee would hold the land obtained by these means under the( description in his deed. ■ It, appears also that, as the bank was gradually carried out by alluvial deposits, and the acquired land became fit for occupation, it was inclosed, occupied, improved and conveyed in parcels by those who assumed to hold under the Miles title. These acts were done from time to time, openly and without dissent or objection on the part of the company, until October, 1877. If the words of a grant be ambiguous, the court will call in aid the acts done under it as a clue to the intention of parties. Tyler on Bound. 124; Adams v. Frothingham, 3 Mass. 362; Stone v. Clark, 1 Metc. 378 ; Lovejoy v. Lovett, 124 Mass 270; Livingston v. Ten Broeck, 16 Johns. 14-23; Dunn v. English, 3 Zab. 126; Jackson v. Perrine, 6 Vroom 137; 1 Greenl. on Ev., § 293. The object the company had in view in adopting in its conveyances such a boundary for lands lying along the sea is apparent. It was a company formed for the purpose of building a city, as a place of summer resort. The use of the strip of waste land lying between the fast shore and ordinary high water for a promenade, or for boatiDg and bathing, by residents in the city, and persons w.ho might resort there for pleasure or health, would add greatly to the success of the enterprise. The company seems to have exercised some control in that respect over the. beach. Mr. Richards, the president of the company, says that it was a universal assurance given verbally to purchasers of lots, that they should have the privilege of putting bath-houses on the beach for bathing purposes. We think that, under the description in the Miles deed, the seaward boundary was on the line of the storm-tide, as that line was advanced towards the ocean by alluvial deposits. The proof is that, at the time this suit was brought, the line — 419 — of the storm-tides was considerably seaward of the lands in controversy, arid consequently the defendant has the legal title to the premises in dispute. But we cannot order judgment in his favor on this special verdict. The jury has found, in the face of the evidence, that the agreement of February 8th, 1856, was not executed by Miles. The verdict, therefore, must be set aside, and a new trial be ordered. The costs of this trial should abide the event of the suit.