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New Jersey Presentation

© 2016 All Rights Reserved

Kristopher M. Kline, P.L.S., G.S.I. kkline@buncombe.main.nc.us

All litigated cases must be decided according to law, either statutory or the common law. Where the legislature has enacted statutes within the proper field of legislation and not violative of the provisions of the federal and state constitutions, its edicts are supreme, and they cannot be interfered with by the courts;

…and where legal principles have been laid down by the courts in the proper exercise of their judicial functions and have continued in force for such a period as to create vested rights, such principles are clothed with a force possessed by a statutory enactment, and should be recognized and applied until the law-making body sees fit either to abrogate or modify them.

Public Trust Doctrine

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And upon this I am of opinion, that by the law of nature, which is the only true foundation of all the social rights, that by the civil law, which formerly governed almost all the civilized world,

I say I am of opinion, that, by all these, the navigable rivers, where the tide ebbs and flows, the ports, the bays, the coasts of the sea, including both the water and the land under the water, for the purposes of passing and repassing, navigation…

are common to all the people, and that each has a right to use them according to his pleasure, subject only to the laws which regulate that use;

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I am of opinion, that this great principle of common law, in process of time, was gradually encroached upon and broken down; that the powerful barons, in some instances, appropriated to themselves those common rights; that the kings also in some instances during the same period, granted them out to their courtiers and favourites;

…a grant of land to a subject or citizen, bounded upon a fresh water stream or river, where the tide neither ebbs nor flows, extends to the middle of the channel of such river;

but that a grant bounded upon a navigable river, or other water, where the tide does ebb or flow, extends to the edge of the water only, that is to say, to high water mark, when the tide is high, and to low water mark, when the tide is low, but it extends no farther.

The intermediate space, however, between the high water and low water mark, may be exclusively appropriated by the owner of the adjacent land, by building thereon docks, wharves, storehouses

The distinction in the books between salt water rivers, navigable rivers, and rivers in which the tide ebbs and flows,…

… and fresh water rivers not navigable rivers, and rivers in which the tide does not ebb and flow, for they are different expressions for the same thing, is local, and arises altogether from the nature of the rivers in England.

There all their rivers, so far as the tide ebbs and flows, are salt, and so far navigable; and those in which the tide does not ebb and flow are fresh, and not navigable.

That is not so here. The Delaware, Susquehanna, Schuylkill, &c. and in fact all our great rivers, are navigable beyond the influence of the tide and the salt waters.

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For when the Revolution took place, the people of each state became themselves sovereign; and in that character hold the absolute right to all their navigable waters and the soils under them for their own common use, subject only to the rights since surrendered by the Constitution to the general government.

The dominion and property in navigable waters, and in the lands under them, being held by the king…

…as a public trust, the grant to an individual of an exclusive fishery in any portion of it, is so much taken from the common fund intrusted to his care for the common benefit.

In such cases, whatever does not pass by the grant, still remains in the crown

…for the benefit and advantage of the whole community. Grants of that description are therefore construed strictly

although the king is the owner of this great coast, and, as a consequent of his propriety, hath the primary right of fishing in the sea and creeks, and arms thereof,

yet the common people of England have regularly a liberty of fishing in the sea, or creeks, or arms thereof, as a public common of piscary, and may not, without injury to their right, be restrained of it, unless in such places, creeks, or navigable rivers, where either the king or some particular subject hath gained a propriety exclusive of that common liberty."

In the case of the Royal Fishery in the River Banne, Davies' R. 149, it was resolved by the court that nothing passed by implication against the King, and that mere general words did not extend the grant beyond the land itself.

And in Storer v. Freeman, 6 Mass. 435, 436-8, Parsons, Ch. J., held, that a grant "to the shore, thence by the shore," or "to a heap of stones at the shore, thence by the shore," did not include the flats or lands under water.

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In the first place those rights extend directly only to high-water mark, according to the principles of the common law; and not to low-water mark, as would seem to be the doctrine in Massachusetts, Maine, and perhaps some other States, by virtue of some old ordinances or statutory provisions…

… the land under navigable rivers and bays being originally held by the proprietors as part of the common property in trust for the public, and surrendered to Queen Anne in 1702, vested by the Revolution in the sovereignty of the State…

The question, therefore, to be considered is whether the legislature was competent to thus deprive the State of its ownership of the submerged lands in the harbor of Chicago, and of the consequent control of its waters; or, in other words, whether the railroad corporation can hold the lands and control the waters by the grant, against any future exercise of power over them by the State.

But in this country the case is different. Some of our rivers are navigable for great distances above the flow of the tide; indeed, for hundreds of miles, by the largest vessels used in commerce. As said in the case cited: "There is certainly nothing in the ebb and flow of the tide that makes the waters peculiarly suitable for admiralty jurisdiction, nor anything in the absence of a tide that renders it unfit. If it is a public navigable water, on which commerce is carried on between different States or nations, the reason for the jurisdiction is precisely the same.

That the State holds the title to the lands under the navigable waters of Lake Michigan, within its limits, in the same manner that the State holds title to soils under tide water, by the common law, we have already shown,

…But it is a title different in character from that which the State holds in lands intended for sale. It is different from the title which the United States hold in the public lands which are open to preemption and sale. It is a title held in trust for the people of the State that they may enjoy the navigation of the waters, carry on commerce over them, and have liberty of fishing therein freed from the obstruction or interference of private parties.

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But the decisions are numerous which declare that such property is held by the State, by virtue of its sovereignty, in trust for the public. The ownership of the navigable waters of the harbor and of the lands under them is a subject of public concern to the whole people of the State.

The trust with which they are held, therefore, is govern-mental and cannot be alienated, except in those instances mentioned of parcels used in the improvement of the interest thus held, or when parcels can be disposed of without detriment to the public interest in the lands and waters remaining.

In The Genesee Chief, (1851,) 12 How. 443, in which this court, overruling its earlier decisions, held that the admiralty and maritime jurisdiction of the courts of the United States extended to all public navigable waters, although above the flow of the tide from the sea…

Mr. Justice Catron, indeed, in delivering the opinion, spoke of the rule of the common law, that " all grants of land bounded by fresh water rivers, where the expressions designating the water line are general, confer the proprietorship on the grantee to the middle thread of the stream and entitle him to the accretions,"

The rule, everywhere admitted, that where the land encroaches upon the water by gradual and imperceptible degrees, the accretion or alluvion belongs to the owner of the land, is equally applicable to lands bounding on tide waters or on fresh waters, and to the King or the State as to private persons; and is independent of the law governing the title in the soil covered by the water.

"It appears to be the settled law of that State that the title of the riparian proprietors on the banks of the Mississippi extends only to ordinary high water mark, and that the shore between high and low water mark, as well as the bed of the river, belongs to the State.

This is also the common law with regard to navigable waters; although, in England, no waters are deemed navigable except those in which the tide ebbs and flows.

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And since this court, in the case of The Genesee Chief, 12 How. 443, has declared that the Great Lakes and other navigable waters of the country, above as well as below the flow of the tide, are, in the strictest sense, entitled to the denomination of navigable waters, and amenable to the admiralty jurisdiction…

The question as to whether the fee of the plaintiff, as a riparian proprietor on the Mississippi River, extends to the middle thread of the stream, or only to the water's edge, is a question in regard to a rule of property, which is governed by the local law of Illinois." …"the Supreme Court of Illinois has established … that the fee of the riparian owner of lands in Illinois bordering on the Mississippi River extends to the middle line of the main channel of that river," that it was decided that a deed of land in Illinois, bounded by the Mississippi River, passed the title in fee in the bed of the river to the middle line of the main channel,

"In Ill. Cent. R. Co. v. Illinois, 146 U.S. 387, 36 L. Ed. 1018, 13 S. Ct. 110, it was held, among other things, that 'riparian rights are incident to riparian ownership, and existing with it, and passing with the transfer of the land. The land must not only be contiguous to the water, but in contact with it.

That proximity without contact is insufficient. The riparian right attaches to land on the border of navigable water, without any declaration to that effect from the former owner, and its designation in a conveyance by him would be surplusage.'

…under the decisions of this court can only be justified upon the ground that it promotes public health, then the shores of Lake Michigan can be changed when it becomes necessary, to realize a vast enterprise purely public in its nature, designed to aid and promote navigation and commerce, which lies at the very foundation of the trust theory in this and other states.

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In 1892 the state of Illinois, one of the states bordering upon Lake Michigan, was confronted with a situation similar to that which is now before us. It was in that year that the opinion of the supreme court of the United States was rendered in the case of Ill. Cent. R. Co. v. Illinois, 146 U.S. 387, 13 S. Ct. 110, 36 L. Ed. 1018. The opinion in that case is conceded to be the leading expression of the highest court in the land upon the right of a state to grant portions of the submerged lands bordering upon the Great Lakes to a railroad corporation…

"It is the settled law of this country that the ownership of and dominion and sovereignty over lands covered by tide waters, within the limits of the several states, belong to the respective states within which they are found, with the consequent right to use or dispose of any portion thereof, when that can be done without substantial impairment of the interest of the public in the waters, and subject always to the paramount right of Congress to control their navigation so far as may be necessary for the regulation of commerce with foreign nations and among the states.

But underlying the project as a whole is the necessity of acquiring part of the Steel Company's property so that the municipal harbor may be constructed in aid of navigation; and right here we must not lose sight of the findings of the legislature and of the court that the fill which the city is required to make in the plot represented by the quadrangular area will protect from the action of the waves and water, to a large extent, the municipal harbor, and will therefore be an aid to public navigation.

It is not the law, as we view it, that the State, represented by its legislature, must forever be quiescent in the administration of the trust doctrine, to the extent of leaving the shores of Lake Michigan in all instances in the same condition and contour as they existed prior to the advent of the white civilization in the territorial area of Wisconsin.

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Significance of Fall Line

State Interpretations of

the Public Trust Doctrine

In pursuance of this policy, by the common law all waters are divided into public waters and private waters.

In the former, the proprietorship is in the sovereign; in the latter, in the individual proprietor.

The title of the sovereign being in trust for the benefit of the public-the use, which includes the right of fishing and of navigation, is common.

The title of the individual being personal in him, is exclusive - subject only to a servitude to the public for purposes of navigation, if the waters are navigable in fact.

The test by which to determine whether waters are public or private, is the ebb and flow of the tide. Waters in which the tide ebbs and flows - so far only as the sea flows and reflows, are public waters; and those in which there is no ebb and flow of the tide, are private waters.

And all the cases in which waters above the ebb and flow of the tide, such as the great inland lakes and the larger rivers of the country, are held to be public in any other sense than as being subjected to a servitude to the public for purposes of navigation, are confessedly a departure from the common law.

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The criterion suggested on the argument, of holding all rivers which are navigable in fact to be public rivers, and those which are not navigable in fact to be private rivers, is wanting in that accuracy and certainty at which the law aims.

It can only be made certain by the addition of some arbitrary rule, such as depth of water, quantity of tonnage, or the like, and even then is still open to the objection that no man can tell whether he is exercising a public right, or trespassing upon a private right, without entering upon an investigation,

Valuable interests--such as the rights of fishery, to the soil in the bed of the stream, and of mines and minerals that may be therein, and of having a boundary, if on a private river, and consequently the ownership carried "ad medium filum aquoe," instead of the precarious right of mere adjacency, depend upon this system. By it navigation is adequately protected, for all waters, whether public or private, if navigable in fact, to that extent are subjected to public use;

Unlike some of our sister states, we have no large inland lakes, which are, in fact, inland seas, upon which an extensive commerce is carried on, or which are the boundaries with a foreign nation. None of our inland lakes have been required for the purpose of commerce, and only one-Lake Hopatcong, through which the Morris canal runs-has been used for navigation.

It was held by the crown lawyers, at a very early period, (August 5th, 1721,) that no part of the Delaware river, or the islands lying therein, were comprised within the grant to the Duke of York.

And by certain grants and concessions made by the proprietors, in 1676, the liberty of fishing in the Delaware was granted to all the inhabitants of the province, …under which grant, probably to this day, the right of fishing in the body of the stream is exercised.

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There is no necessity for considering, at this time, the extent of the rights of riparian owners in the waters of the Delaware above tide-water.

The legal status of that river is peculiar, and whatever rights in it may be supposed to be in the state above the ebb and flow of the tide, beyond those connected with navigation, seem to be based upon a question as to the original boundary of the province.

By the eleventh section of that act, (Acts 1824, p. 165,) it is enacted,

…"that it shall be lawful for the said company to raise the waters in the Green Pond, and Lake Hopatcong, commonly called the Great Pond, by damming the same, and to use the surplus waters thus saved, and so much water of said ponds as shall be necessary, for said canal, and to take and convey said waters into said canal…

This distinct legislative recognition of the right of private ownership in this pond, renders superfluous further research and inquiry.

Indeed, we find the various alternatives for delineating the boundaries of public trust tidelands offered by petitioners and their supporting amici to be unpersuasive and unsatisfactory.

As the State suggested at argument, … and as recognized on several previous occasions, the ebb-and-flow rule has the benefit of "uniformity and certainty, and . . . eas[e] of application." See, e. g., Cobb v. Davenport, 32 N. J. L. 369, 379 (1867).

We are unwilling, after its lengthy history at common law, in this Court, and in many state courts, to abandon the ebb-and-flow rule now, and seek to fashion a new test to govern the limits of public trust tidelands.

Consequently, we hold that the lands at issue in this case were within those given to Mississippi when the State was admitted to the Union.

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The State claims that upon the separation of the colonies from England, Delaware acquired (except to the extent William Penn or his successors or agents had previously conveyed away) the title to all lands situate within the…

… 12 mile circle of New Castle, including the Delaware River and subaqueous soil thereunder to the low water mark on the New Jersey side.

This claim includes the lands situate easterly of the natural high water mark and westerly of the natural low water mark of the Delaware River on the Delaware side, comprising the foreshore here in question.

The Railroad denies the State's title to the foreshore

The fundamental question raised on this appeal is whether, under the law of this State, a riparian owner holds title to the low water mark of a navigable river and, therefore, holds the foreshore lying between the line of high tide and the line of low tide.

The Trial Court discussed this question at length [228 A.2d 596-600] and concluded that in Delaware a riparian owner of land fronting on navigable water holds title to the low water mark and, therefore, owns the foreshore.

We agree.

In 1851, in Bickel v. Polk, 5 Harr. 325, Chief Justice Booth, speaking for the Delaware Superior Court, recognized that the title of an owner of land adjoining tide water "runs to low water mark."

Three years later, the Delaware Court of General Sessions stated in State v. Reybold, 5 Harr. 484 (1854), that "a riparian proprietor, or owner of land fronting on a navigable river, holds to the law water mark."

These early decisions of the various Trial Courts of our State have been neither criticized in any later decision nor challenged by appeal over the years,

The State attempts to demonstrate that the rule announced in Bickel, Reybold, and Harlan is dictum; that it is historically and legally contrary to the common law of England and colonial Delaware; and that it is not the majority rule prevailing elsewhere.

We do not enter into a discussion of these interesting historical and legal questions. Assuming, arguendo, that the State's contentions are technically and historically correct, our conclusion is unchanged.

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Appellant John W. Groves has appealed a decision of the Environmental Appeals Board ("Board") affirming a decision of the Secretary of the Department of Natural Resources and Environmental Control …

…("DNREC" or "Department") issuing a permit to Victorine S. Mertes to install rip-rap revetment on her bayfront property. This is the Court's decision on the appealed issues.

In support of their position, these parties have cited the New Jersey case of Matthews v. Bay Head Improvement Assoc., N.J. Supr., 95 N.J. 306, 471 A.2d 355 (1984).

This case is not authority for the position that such is the law in Delaware. This is because, as noted in the case itself, in New Jersey, the state owns the foreshore.

The Court has ample authority in Delaware on the public trust doctrine.

Although the private landowner owns the foreshore, the public does have certain limited rights superior to those of the private owners.

These rights are what constitute the public trust doctrine.

They are the right to navigate and fish over the foreshore and the State's police power, including the protection of life, health, comfort, and property or the promotion of public order, morals, safety, and welfare. State v. Pennsylvania Railroad Company, Del. Super., 237 A.2d 579, 580 (1967), aff'd., State ex rel. Buckson v. Pennsylvania Railroad Co., supra; State v. Pennsylvania Railroad Company, supra, 228 A.2d at 604; Bickel v. Polk, Del. Super., 5 Harr. 325 (1851)

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There does not and never has existed, as a part of this doctrine in Delaware, a right of the public superior to the landowner to access to the foreshore for walking and/or recreational activities. The private rights of ownership may not be taken absent just compensation as mandated by the United States and Delaware constitutions.

If the Court or Legislature recognizes this right of the public superior to the landowner to access to the foreshore for walking and/or recreational activities, then the State will have to compensate the affected landowners for a takings.

The Court is aware that in 7 Del. C. § 6810, the public right to sunbathe is recognized.

The existence of that recognition does not make the extension of the public trust doctrine constitutional, and it does not affect the Court's decision in this matter.

"The navigable waterways within Maryland's boundaries and the lands beneath them generally are 'held' by the State for the benefit of the inhabitants of Maryland."

Under the public trust doctrine, therefore, the State acts as a "'quasi trustee for the public benefit and to support the rights of navigation and fishery to which the entire public are entitled therein.‘

In its role as "quasi trustee" over the navigable waters, the State has the authority to regulate the use of those waters.

At the conclusion of the hearing, the trial judge asked for written closing arguments from each party and held the matter sub curia.

In its closing argument, the Association alleged that an easement existed as a result of implied dedication, custom, prescription, and an expansion of the public trust doctrine.

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Both parties recognize that the State of Maryland owns in public trust, for the benefit of its citizens, the navigable water of the Magothy River surrounding Dobbins Island and the subject beach up to the mean high water line.

"The navigable waterways within Maryland's boundaries and the lands beneath them generally are 'held' by the State for the benefit of the inhabitants of Maryland."

Land bordering on the sea …or on a tidal river, and lying above ordinary low watermark, but below ordinary high watermark, is known as the [fore]shore, and this, like the land beyond low watermark, belongs prima facie to the state

…the theory being that it is land not capable of ordinary cultivation or occupation, and so is in the nature of unappropriated soil.").

Therefore, the mean high water line marks the division between state and private ownership of the shoreline.

Appellants admit that "a significant part of the historic public use of Dobbins Island is protected by the public trust doctrine.

The public is guaranteed the right to anchor in the cove, swim in the waters, pull kayaks, canoes and other small boats onto the shore, and sit on the sandy beach that lies below mean high tide."

Accordingly, Appellees assert a right to use the area above mean high tide, the dry sand portion of the beach, currently fenced off by the Clickners.

This area is not subsumed by the public trust doctrine, and has been privately owned since the original grant of the property.

stating that the public trust doctrine "protects the public in the use of the foreshore only . . ." and that a public right to use the dry sand portion of the beach, therefore, "must find support elsewhere,"

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Expansion of the

Public Trust Doctrine

And the question is whether the plaintiffs, by virtue of their boundary of the creek, hold to the centre of the stream of Mahoning creek, (called, in the patent, Big Beaver run,) or only to low water mark.

The court below charged the jury, that the plaintiffs are not entitled to go to the centre of the creek; that from the birch on the bank, following the meanders of the creek, they have title to low water mark; and that the defendants, under their patent for lot No. 1816, cross the creek, and have title to low water mark.

It is to be observed, that the Mahoning creek here referred to, was not, at the time of these grants, declared a public highway, …

…though it has been since declared so by an act of the legislature.

Being then considered as a stream not navigable, it is a settled principle that a grant, from the state, of vacant land, bounded by such a stream and following its courses, passes the right to the centre of the stream.

The basic definition, of course, is that of the celebrated body of Spanish law known as Las Siete Partidas, which was evidently

written in the 13th century and promulgated some three centuries later, and of which the critical portion of Partida 3, Title 28, Law 4 A rather literal translation

…and all that place is called shore of the sea insomuch as it is covered by the water of the latter, however most it grows in all the year, be it in time of winter or of summer."

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Chief Justice Kirkpatrick concluded that all navigable rivers in which the tide ebbs and flows and the coasts of the sea, including the water and land under the water, are "common to all the citizens, and that each [citizen] has a right to use them according to his necessities, subject only to the laws which regulate that use…

Later, in Illinois Central R.R. v. Illinois, 146 U.S. 387, 453, 13 S.Ct. 110, 118, 36 L.Ed. 1018, 1043 (1892), the Supreme Court, in referring to the common property, stated that "[t]he State can no more abdicate its trust over property in which the whole people are interested . . . than it can abdicate its police powers …"

He observed that the public has a right to use the land below the mean average high water mark where the tide ebbs and flows. These uses have historically included navigation and fishing. In Avon the public's rights were extended "to recreational uses, including bathing, swimming and other shore activities… with Martin v. Waddell's Lessee… (1842) (indicating right to bathe in navigable waters). The Florida Supreme Court has held:

The constant enjoyment of this privilege [bathing in salt waters] of thus using the ocean and its fore-shore for ages without dispute should prove sufficient to establish it as an American common law right,

Extension of the public trust doctrine to include bathing, swimming and other shore activities is consonant with and furthers the general welfare. The public's right to enjoy these privileges must be respected.

The mean or ordinary high tide is a mean of all high tides over a period of 18.6 years.

…to exercise these rights guaranteed by the public trust doctrine, the public must have access to municipally-owned dry sand areas as well as the foreshore. The extension of the public trust doctrine to include municipally-owned dry sand areas was necessitated by our conclusion that enjoyment of rights in the foreshore is inseparable from use of dry sand beaches.

In Avon we struck down a municipal ordinance that required nonresidents to pay a higher fee than residents for the use of the beach. We held that where a municipal beach is dedicated to public use, the public trust doctrine "dictates that the beach and the ocean waters must be open to all on equal terms and without preference and that any contrary state or municipal action is impermissible."

… the Court depended on the public trust doctrine, impliedly holding that full enjoyment of the foreshore necessitated some use of the upper sand, so that the latter came under the umbrella of the public trust.

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In Avon and Deal our finding of public rights in dry sand areas was specifically and appropriately limited to those beaches owned by a municipality.

We now address the extent of the public's interest in privately-owned dry sand beaches. This interest may take one of two forms. First, the public may have a right to cross privately owned dry sand beaches in order to gain access to the foreshore.

Second, this interest may be of the sort enjoyed by the public in municipal beaches under Avon and Deal, namely, the right to sunbathe and generally enjoy recreational activities.

Exercise of the public's right to swim and bathe below the mean high water mark may depend upon a right to pass across the upland beach.

Without some means of access the public right to use the foreshore would be meaningless.

To say that the public trust doctrine entitles the public to swim in the ocean and to use the foreshore in connection therewith without assuring the public of a feasible access route would seriously impinge on, if not effectively eliminate, the rights of the public trust doctrine.

This does not mean the public has an unrestricted right to cross at will over any and all property bordering on the common property. The public interest is satisfied so long as there is reasonable access to the sea.

The bather's right in the upland sands is not limited to passage.

Reasonable enjoyment of the foreshore and the sea cannot be realized unless some enjoyment of the dry sand area is also allowed. The complete pleasure of swimming must be accompanied by intermittent periods of rest and relaxation beyond the water's edge.

Archaic judicial responses are not an answer to a modern social problem.

Rather, we perceive the public trust doctrine not to be "fixed or static," but

...one to "be molded and extended to meet changing conditions and needs of the public it was created to benefit.“

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Today, recognizing the increasing demand for our State's beaches and the dynamic nature of the public trust doctrine,

…we find that the public must be given both access to and use of privately-owned dry sand areas as reasonably necessary. While the public's rights in private beaches are not co-extensive with the rights enjoyed in municipal beaches, private landowners may not in all instances prevent the public from exercising its rights under the public trust doctrine. The public must be afforded reasonable access to the foreshore as well as a suitable area for recreation on the dry sand.

Kassin bought an oceanfront property in the Village of Loch Arbour that the previous owners had operated as a commercial beach club. This property has approximately 650 feet of frontage along the Atlantic Ocean and is approximately 300 feet in depth, with a total area of slightly less than five acres.

The remainder of the oceanfront in Loch Arbour, which has approximately 350 feet of frontage along the Atlantic Ocean, is a public beach owned and operated by the municipality, which has restrooms, changing facilities and a refreshment stand. During the summer season, a beach badge is required to use this facility.

Plaintiff Sophie Bubis is the owner of a single-family residence located directly to the west of the Kassins' property, across a public street called Ocean Place.

Mrs. Bubis has engaged in protracted litigation with the Kassins over the last thirteen years with respect to both her right to an ocean view from her residence and her right of access to the beach across the Kassins' property.

This litigation has resulted in three published opinions

On June 27, 2004, Mrs. Bubis walked with a beach chair and umbrella from her home to the beach by means of this pathway.

She then walked along the beach below the mean high water line to a location in front of one of the Kassins' tiki beach huts and sat down on her beach chair.

A lifeguard employed by the Kassins asked her to move but she refused. Mr. Kassin then summoned the police, who also advised Mrs. Bubis that she had to move because "she [was] on private property."

However, Mrs. Bubis again refused.

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Based on this evidence, the trial court issued a lengthy written opinion upholding the Kassins' position that …

…Mrs. Bubis and other members of the public have only a limited right under the public trust doctrine to use the Kassins' private oceanfront property and the adjoining land below the mean high water mark.

…Kassins are not obligated to provide any public access to the area of their property above the mean high water mark beyond the access already provided

Based on these conclusions, the trial court imposed significant limitations on the public's use of both the upland sand area owned by the Kassins and the adjoining area below the mean high water mark

In addition, the court concluded that members of the public should not be allowed even to stop for rest in a 200-foot area directly in front of the Kassins' cabana building, which the court designated as the "no rest zone":

We conclude that the trial court erred in imposing significant limitations upon the public's right to use the area below the mean high water mark adjoining the Kassins' property.

However, we also conclude that the public trust doctrine does not extend to a right of public access to a private oceanfront property, such as the Kassins' property, which is not devoted to public use.

Accordingly, we reverse the part of the judgment that imposes limitations upon the public's use of the beach below the mean high water mark, but affirm the part of the judgment limiting the public's use of the upland sand area.

Initially, we note that the property of an owner of oceanfront property only extends to the high water mark. The property below that line is owned by the State in trust for its citizens.

Moreover, the public's right to use oceanfront property held in trust by the State extends to "recreational uses, including bathing, swimming and other shore activities."

These rights of public use of the land below the mean high mark are not dependent upon whether the upland sand area is owned by a municipality or a private party.

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We have no doubt that an owner of private property adjoining land below the mean high water mark who assumes responsibility for public safety in that area may enforce reasonable regulations for this purpose.

Thus, private property owners such as the Kassins can prohibit persons using the area below the mean high water mark from standing or placing a beach chair in a location that would obstruct their lifeguards' observations of swimmers.

However, owners of private property adjoining property held by the State under the public trust doctrine may not impose limitations upon the public's use of that property simply to enhance the enjoyment of their own property.

We turn next to Mrs. Bubis' claimed right to use a portion of the upland sand area on the Kassins' property.

The determination of this claim requires us to analyze the Supreme Court's decisions in Matthews, supra, 95 N.J. 306, 471 A.2d 355,

"When viewed in its totality--its purposes, relationship with the municipality, communal characteristics, activities, and virtual monopoly over the Bay Head beachfront--the quasi-public nature of the Association is apparent.“

Although the issue in Matthews was the right of public access to an upland sand area occupied by a quasi-public body with close ties to the municipality in which it was located, the Court posed the issue more broadly, as involving the right of public access to "privately-owned dry sand areas."

Court articulated a general test for determining when a right of public access to such an area may be required under the public trust doctrine:

Precisely what privately-owned upland sand area will be available and required to satisfy the public's rights under the public trust doctrine will depend on the circumstances. Location of the dry sand area in relation to the foreshore, extent and availability of publicly-owned upland sand area, nature and extent of the public demand, and usage of the upland sand land by the owner are all factors to be weighed and considered in fixing the contours of the usage of the upper sand.

22

However, the Court declined to decide whether all privately owned upland sand area must be open to the public to the same extent as the beach of a quasi-public association…

Resolution of the competing interests, private ownership and the public trust, may in some cases be simple, but in many it may be most complex. In any event, resolution would depend upon the specific facts in controversy.

In Raleigh Avenue, the Court applied the principles set forth in Matthews to an upland sand area owned by a private beach club operated as a commercial business enterprise.

…"[a]lthough decided on narrow grounds, Matthews established the framework for application of the public trust doctrine to privately-owned upland sand beaches."

The Court then considered each of the four factors it had identified in Matthews--that is, the "location of the dry sand area in relation to the foreshore," the "extent and availability of publicly-owned upland sand area," the "nature and extent of the public demand"

We conclude that the factors the Court relied upon in Raleigh Avenue do not support a right of public access to the up-land sand area on the Kassins' property.

We recognize that the Kassins' property was formerly owned by a commercial private beach club similar to the club involved in Raleigh Avenue. Consequently, there is some history of "public access to and use of the [Kassins'] beach."

However, unlike the municipality in which the private club involved in Raleigh Avenue was located, Loch Arbour has a publicly-owned beach.

Most significantly, the Kassins do not use their property to conduct a "business enterprise."

Rather, they use the property solely for their own private enjoyment and the entertainment of family, friends and other invited guests.

Our law has long recognized that property owners who use their land to conduct a commercial business enterprise assume certain legal obligations regarding unrestricted public access to that land.

23

if the general public were entitled to access to a portion of the Kassins' beach under the public trust doctrine, the Kassins would be placed in the position of operating what probably would be the only free beach in Monmouth County.

We recognize that members of the public who use the property below the mean high water mark adjoining the Kassins' property also may take advantage of certain services provided by the Kassins, such as lifeguards, without paying any fee, which may add to the Kassins' costs of operation of their beachfront property.

However, …the Kassins do not own or have any other property interest in the land below the mean high water mark. Therefore, any additional costs the Kassins may incur as a result of members of the public taking advantage of the services they provide in that area may be viewed as simply a quid pro quo for their own opportunity to use that State-owned public trust land without payment of any fee.

Following an extensive survey of this Court's prior cases, the English common law, and various cases from the state courts, the Court concluded:

"At common law, the title and dominion in lands flowed by the tide water were in the King for the benefit of the nation.

Upon the American Revolution, these rights, charged with a like trust, were vested in the original States within their respective borders, subject to the rights surrendered by the Constitution of the United States.

"The new States admitted into the Union since the adoption of the Constitution have the same rights as the original States in the tide waters, and in the lands under them,

But it has been long established that the individual States have the authority to define the limits of the lands held in public trust and to recognize private rights in such lands as they see fit. Shively v. Bowlby,

…Some of the original States, for example, did recognize more private interests in tidelands than did others of the 13 -- more private interests than were recognized at common law, or in the dictates of our public trusts cases.

24

That States own freshwater river bottoms as far as the rivers are navigable, however, does not indicate that navigability is or was the prevailing test for state dominion over tidelands.

Rather, this rule represents the American decision to depart from what it understood to be the English rule limiting Crown ownership to the soil under tidal waters

…the Court stated that Barney v. Keokuk, supra, had "extended the doctrine to waters which were nontidal but nevertheless navigable, consistent with [the Court's] earlier extension of admiralty jurisdiction."

The public trust doctrine has its roots in English common law. Traditionally, all navigable waterways in England were by law common highways for the public.

…Furthermore, the King held title to the soil beneath the sea and the arms of the sea, "where the sea flows and reflows."

Unfortunately, English cases of the late 18th and early 19th centuries did not directly address whether the King held title to lands underlying tidally influenced, nonnavigable waters.

Interesting applications of

Public Trust Doctrine

DCNR also argues the public trust doctrine, recognized by this Court in Payne v. Kassab, 468 Pa. 226, 361 A.2d 263, 272-73 (1976), applies; the doctrine provides that certain natural resources are impressed with a trust for the public's benefit, outweighing private interests. Chartiers "clearly recognized the difficult balancing that must take place to protect the rights of the owners of various estates in the land[,]" and DCNR contends the Commonwealth Court failed to address its role in determining what constitutes reasonable use.

25

Central to this dispute is the issue of ownership of land that was flooded to create Smith Mountain Lake, an artificial lake formed when the Appalachian Power Company (APCO) constructed a dam on the Roanoke River as part of a hydroelectric project.

Before the land adjacent to the Roanoke River and its tributaries was flooded to create the Lake, certain parcels of land were condemned and APCO obtained flowage easements over other parcels from their respective landowners extending to the 800-foot elevation contour of the proposed Lake.

The chancellor held that, under Code § 28.2-1200, the general public is permitted to use all land underlying the surface of Smith Mountain Lake, absent evidence of a special grant or compact. Based on this authority, the chancellor concluded that the Commonwealth owned the partially submerged property at issue, and that the Ramakers were entitled to build a dock over that property.

The chancellor concluded that the Ramakers' riparian rights should be fixed in accordance with the principles set forth in Langley v. Meredith, 237 Va. 55, 376 S.E.2d 519 (1989), and Groner v. Foster, 94 Va. 650, 27 S.E. 493 (1897). In applying the Groner formula, the chancellor used the 795-foot elevation contour as the shoreline or mean low-water mark,

even though the court made no finding that this line was the location of actual mean low water.

The Yacht Club argues on appeal that the Commonwealth does not own the partially submerged property at issue, and that the chancellor erred in reaching this conclusion, which was based on his incorrect application of Code § 28.2-1200.

This statute specifically enumerates the categories of bodies of water that are subject to its provisions. The precise words of the statute do not include "lakes" within the listed categories. …the mention of a specific item in a statute implies that other omitted items were not intended to be included within the scope of the statute.

26

Thus, we conclude that Code § 28.2-1200 does not apply to Smith Mountain Lake because the General Assembly chose not to include "lakes" in its designation of bodies of water whose beds remain the property of the Commonwealth…

We disagree with the Ramakers' argument that Smith Mountain Lake is included within the scope of Code § 28.2-1200 because the Lake is navigable. This argument effectively asks us to add words to the statute, since its plain language does not include any type of lake and makes no exception for lakes that are navigable.

The Ramakers contend,…that Code § 62.1-81 supports…

The term "waters of the Commonwealth" as used in this chapter shall mean . . . those parts of streams or other bodies of water in this Commonwealth which either in their natural or improved condition …are used or suitable for use for the transportation of persons or property in interstate or foreign commerce …

The Ramakers assert that since Smith Mountain Lake is part of a hydroelectric generation project, the operation of which affects interstate commerce, … the waters of the Lake belong to the Commonwealth.

We find no merit in this argument.

After the chancellor erroneously concluded that the Commonwealth owns the partially submerged property pursuant to Code § 28.2-1200, he determined that the Ramakers had riparian rights…

After observing that the mean low-water mark had not been determined in this case, the chancellor substituted in its place the 795-foot elevation contour for the purpose of fixing the Ramaker's riparian rights.

The chancellor's designation of a riparian zone permitting construction of a dock extending from the Ramakers' property is contrary to the law because the dock would have to cross the Yacht Club's partially submerged property to reach the dock's designated terminus point in the water.

27

Thus, we hold that a property owner may not build a pier or dock extending into a watercourse across the property of another without that owner's permission.

Since the Yacht Club did not give the Ramakers permission to build a dock across the Club's property to reach the navigable part of the watercourse, the chancellor's determination allowing the construction of such a dock is plainly wrong.

Other categories of

“Public Trust” Lands

Appellant, Joseph Pilchesky, …challenges the sale by the Redevelopment Authority of the City of Scranton (Authority) of the William T. Schmidt Sports Complex to the University of Scranton (University), a private institution.

The facility is a 10.8-acre recreational facility located in the City of Scranton (the City) and more commonly referred to by local residents as the South Side Sports Complex (South Side). South Side's development was completed through use of HUDand Project 70 funds

The petition asserted that Act 52 is ultra vires by virtue the common law doctrine set forth by the Pennsylvania Supreme Court in Board of Trustees of Philadelphia Museum v. Trustees of the University of Pennsylvania, 251 Pa. 115, 96 A. 123 (1915),

…referred to as the Public Trust Doctrine of 1915.

The Commonwealth Court sustained the preliminary objections of the Commonwealth Defendants finding that the Public Trust Doctrine of 1915 did not apply in light of the legislative enactments concerning the complex.

28

The exercise of the governmental power at issue in this case is solely that to convey a former public street bed.

An incorporated municipality, like Easton, invested with legislative powers under § 2 (b) (24), holds property in trust for the public in a general sense, but not in a way creating a special relationship relative to the public at large. This "public trust" does not create a fiduciary relationship.

Likewise, other states "almost universally" hold that when a street is closed in another block from the complaining property owner, the complaining property owner has not suffered sufficient special damages greater than that suffered by the general public.

This is true even when it can be shown that the diversion of travel depreciates the value of property or the new route is less convenient.

At common law, municipalities had no inherent power to convey property used for governmental purposes, absent legislative approval from the General Assembly.

The second issue is the authority of a municipal corporation to close permanently a public street. Home Rule empowers municipal corporations with the authority to close streets. Md. Const. Art. XI-E, § 3; Art. 23A, § 1. The authority to close public streets is limited to circumstances where the closure, and subsequent transfer, of the public street does not benefit solely a private interest because the streets of a municipal corporation are held in trust for the benefit of the general public, "the closing of a street, and the conveyance of the [municipality's] interest in the street solely for the private benefit of another, is not within the legislative body's power...

Instead, SENA contends that Amended Ordinance No. 466 violates the Town's statutory authority because Adkins Avenue was an actively used public street. It believes that the authority to convey or sell public property under § 2 (b) (24) may be exercised only after a finding of non-use. In other words, any contemporaneous or actual public use would preclude the Town from conveying the street bed.

Even if § 2 (b) (24) disallowed expressly a balancing test, it allows a legislative body to convey property when that body determines the property is no longer needed.

29

Doctrine of Merger and Unwritten Rights

The fence, which runs in a north-south direction, is located at the western boundary of the Terry Tract and at the eastern boundary of that portion of the Salazar Tract. The deeds transferring both tracts of land consistently have referred to the government subdivision lines and not the fence as the boundary.

survey revealed that the deviation between the government subdivision lines and the fence varies anywhere from 100 to 160 feet along her property's western boundary. By Terry's reckoning, the fence is east of the government subdivision lines and is located inside the Terry Tract.

In response, Salazar claimed adverse possession and asserted a counterclaim that the fence line was acquiesced in and recognized by the parties or their predecessors in title for twenty years under the terms of section 38-44-109, 16A C.R.S. (1982).

…between November 3, 1977, and November 18, 1977, Mills Ranches owned both the Salazar and Terry Tracts simultaneously for fifteen days. During this fifteen-day period, Jerry Mills, as sole stockholder and principal of Mills Ranches, was the common owner of both tracts. As mentioned above, all these conveyances refer to the government subdivision lines.

When a common owner acquires title to adjoining tracts, any agreement as to division that had previously been made while the ownership was in two different persons ceases to exist or be effective. . . .

Moreover, a division fence between two properties loses its legal significance when separate ownership of the parcels is merged in one owner. . . .

Consequently, the common ownership acquired by Mills Ranches in 1977 nullified any significance the fence had previously been accorded as a boundary between separately held parcels. Mills Ranches as a subsequent grantor could therefore freely describe its conveyance by boundaries making no reference to the fence.

30

The common ownership of the two tracts of land eradicated the significance of any acquiescence as to the legal boundary existing prior to the period of common ownership as a matter of law.

In practical effect, once the common ownership destroyed the prior acquiescence of the fence as boundary, the twenty-year clock, for purposes of the acquiescence statute, started ticking anew. See § 38-44-109, 16A C.R.S. (1982). Similarly, the eighteen-year clock, for purposes of adverse possession, also began again. See § 38-41-101(1), 16A C.R.S. (1982).

Our conclusion is reinforced by the doctrine of merger as it applies to extinguishment of easements.

Easements, such as a "right of way," burden one estate to the benefit of the other estate. The burdened estate is servient to the dominant estate which benefits from the easement.

When the dominant and servient estates come under common ownership, the need for the easement is destroyed.

Specifically, "if the owner of an easement in gross comes into ownership of an estate in the servient tenement, the easement terminates to the extent that the ownership of that estate permits the uses authorized by the easement."

see also Breliant v. Preferred Equities Corp., 109 Nev. 842, 858 P.2d 1258, 1261 (Nev. 1993)

("When one party acquires present possessory fee simple title to both the servient and dominant tenements, the easement merges into the fee of the servient tenement and is terminated.");

Witt v. Reavis, 284 Ore. 503, 587 P.2d 1005, 1008 (Or. 1978)

("if at any time the owner in fee of the dominant parcel acquires the fee in the servient parcel not subject to any other outstanding estate, the easement is then extinguished by merger") (emphasis in original).

Furthermore, the easement will not revive if the estates are separated once again "without the same type of action required to bring an easement into existence in the first place."

… ("upon severance, a new easement authorizing a use corresponding to the use authorized by the extinguished easement may arise;" however, it arises only "because it was newly created at the time of the severance").

31

It is undisputed that during the time Benjamin Newman owned the west forty and Rice owned the east forty, Benjamin Newman owned and maintained the south half of this fence as appurtenant to the west forty.

When he acquired title also to the east forty, and thus became the owner of the whole eighty-acre tract, the two portions of this fence ceased to be appurtenant to any particular parts of the tract, and …

…any agreement and division that had theretofore been made while the ownership of the two forties was in different persons ceased to exist or to be effective.

Our holding above essentially disposes of this claim. It is true that common ownership of adjoining properties, even for a brief season, restarts the clock for determining boundary by acquiescence.

See Salazar v. Terry, 911 P.2d 1086, 1089 (Colo. 1992) (en banc) (holding that two weeks of joint ownership was sufficient to disrupt the acquiescence [**11] time period).

But in addition to all this, there is one fact in this case that completely dispels all shadow of title by limitation in the defendant, to-wit:

In 1883 Remelius became the owner of both tracts, and the evidence shows that when some question arose thereafter as to the location of the survey line, he said it made no difference, inasmuch as he owned all the land on both sides of the line, wherever it might be.

[KK-continued]

So that even if the possession of Kennedy had been hostile to Remelius, and …

…even if Kennedy had intended to claim to the line established as the survey line by Banister, without regard to whether that was the true line or not, and…

...even if Kennedy and Remelius had agreed upon the line established by Banister, nevertheless…

when Remelius became the owner of both tracts of land, all such questions became immaterial;

32

…there was no adverse holding thereafter by Remelius as the owner of one tract against himself as the owner of the other tract, and there was no longer any question of any agreed line dividing the two tracts. For as Remelius said those matters had become immaterial by reason of his ownership of both tracts.

And so the matter remained for the five or six years that Remelius lived after he became the owner of both tracts, and so they remained during all the time his heirs owned the land.

Doctrine of Merger and Record Easements

Has there been a true merger – is the nature of ownership coextensive?

Are the properties in questions undersized or irregular lots in a residential or urban setting?

Are there local ordinances which control?

Is the existence of an easement the primary issue?

Are there other circumstances which might affect the boundary prior to the merger?

There was never such unity of title and interest as could effect merger.

See Lacy v. Seegers, 445 So.2d 400, 404 (Fla.App. 5 Dist.1984) (no merger where some lots owned individually and some as a tenant by the entirety); Myers v. Salin [*392] , 13 Mass.App. 127, 431 N.E.2d 233, 242 (1982) (no merger where some owned individually and some as tenant by the entirety); also Hurley v. A'Hearn, 338 Mass. 695, 157 N.E.2d 223 (1959) (no merger where tenant in common and holder of lease); also Kaufman v. 666 North Water Building Corporation, 130 Ill.App.2d 785, 267 N.E.2d 345, 348 (1971); 5 Restatement of Property, Servitudes § 497 comment b and caveat (1944).

33

Certain requirements must be met to find merger. First, there must be unity of ownership of the dominant and servient estates. The ownership of the two estates must be co-extensive and equal in validity, quality, and all other circumstances of right. 25 Am.Jur.2d Easements and Licenses § 108.

This rule has been construed to mean that in order to extinguish a right-of-way, there must be unity of ownership between the servient estate and every dominant state. …Additionally, unity of title has been defined as unity of valid title, title in the name of the same person, and, of course, simultaneous ownership. 28 C.J.S. Easements § 57.

Moreover, we agree with the trial judge that under the circumstances in this case, if the limited commonality of ownership of lots 19 and 31 had merged the easement, the subsequent severance would have revived it.

In Niestat, supra, Justice (then Judge) Jacobs noted that while no easement can exist while there is unity of ownership, "no persuasive reason is advanced to prevent its arising immediately upon severance."

Turning to the extinguishment-by-merger issue, we find the absence of a required element necessary for its application. Specifically, there was no requisite unity of title of the dominant and servient estates subsequent to creation of the easement.

The June 20, 1966 conveyance …did not merge the dominant and servient estates into a single ownership; i.e., none of the Section One Riverfields Estates lots were the subject of the June 20, 1966 deed.

Accordingly, the blanket easement contained in the June 1, 1962 deed of easement was not extinguished through operation of the doctrine of merger.

Dagit Brothers argues that joining its property with McGowan's property in common ownership of Longport Manor caused any easement or rights to cease because one cannot hold an easement in or rights against his own property. …

Longport Manor, however, retained common ownership of the two properties only for twenty days. It then conveyed title in McGowan's lot to a Margaret Harris, who conveyed it to Joseph O'Byrne two months later.

34

In Pochinski Realty Assoc. v. Puzio,…we held that an easement that had merged for a limited time into common ownership of the dominant and subservient estates could be revived upon severance of the properties.

Whether the easement had been revived depended on the facts of the particular case and the intention of the parties in making the conveyances.

we had posited that a "quasi-easement" can exist despite unity of ownership where one part of the land is used for the benefit of another part. In such circumstances, severance of the two parts can create an easement corresponding to the quasi-easement.

When the appellee acquired the McIntosh lot, and the one acre lot, he owned all the lots which bounded on the right of way, and as thenceforth no one else could use that right of way without trespassing on the property of others to get to it, it was lawful for Greenway to discontinue it altogether, if he saw fit to do so.

He became the owner of the dominant and servient estates, and, there being no one else entitled to either, they were merged, and the mere easement was extinguished.

"An owner of land cannot have an easement in his own estate in fee, for the plain and obvious reason that in having the jus disponendi, the full and unlimited right and power to make any and every possible use of the land, all subordinate and inferior derivative rights are necessarily merged and lost in the higher right."

"For a man cannot subject one part of his property to another by an easement, because he cannot have an easement in his own property, as the same object is obtained by him through the exercise of the general right of property."

In Capron v. Greenway, 74 Md. 289, 22 A. 269, we held…

The individual defendants have allegedly persisted in crossing plaintiffs' lots in order to reach and learn their residence by short cut on the basis of a once existing easement, …

…which easement was admittedly extinguished under the doctrine of merger when the defendants acquired title to both lots 2 and 3 of Green View Development, but which defendants have continued to use on the basis of a claimed prescriptive right or implied grant.

35

Defendants admit that the extinguishment of such former easement has come to pass as a result of the unification, as noted above, of the dominant and servient domains here involved, …

…but that while they concede that a formal easement over plaintiffs' lots no longer exists, now take the position that they have the right to continue to sue such former easement on the basis of prescription or by implied grant.

There must also be evidence that the grantor used one part of his lands to benefit the other part of his lands, and that the use continued through to the time of severance.

Because the grantor, having unity of ownership, could not actually hold an easement over his own lands, the use is deemed a "quasi-easement".

It is elementary…that an easement consists of two separate estates: the dominant estate which has the benefit of the easement and to which it is attached, and the servient estate on which the easement is imposed or rests.

The plaintiffs have title to the servient estate, while the Divvers still retain title to the dominant estate. The mere acquisition of title to the entire servient estate by the plaintiffs does not effect a merger of title sufficient to extinguish the easement.

Ownership of the dominant and servient estate has remained separate and no unity of ownership of these interests which is essential to the termination of an easement by merger has occurred. Sargent v. Gagne, Vt. Supr., 121 Vt. 1, 147 A.2d 892, 901 (1958). See also Obringer v. Minnotte Bros. Co., Pa. Supr., 352 Pa. 188, 42 A.2d 413 (1945); 25 AM. JUR.2d, Easements and Licenses § 108.

36

It is claimed by appellant that although the easement created by laying out the twelve feet wide alley in 1830 may have become merged in the fee, when Samuel Sillyman became the owner of both in 1846, nevertheless, when Sillyman's title was divested by the sheriff's sale, and the purchaser sold various portions of the land to different persons, the easement was revived and inured to the benefit of all portions of the original tract, including appellant's property.

But when both the dominant and servient estates became vested in the same person, they merged, and the easement was extinguished.

Sillyman being then the owner of the entire estate, without its being subject to any easement or servitude, made a division of it into lots, as he had a perfect right to do, …

…but whether or not he provided for any alley leading from Mahantongo street does not appear, as the plan itself has not been found. The sheriff sold according to this plan, without mentioning any alley

Neither Sillyman nor Hughes ever did anything which indicated an intention to revive the right to the twelve feet wide alley mentioned in the deed to Gaius Moore.

"Where there is a union of an absolute title to and possession of the dominant and servient estates in the same person, it operates to extinguish any such easement absolutely and forever …

…for the single reason that no man can have an easement in his own land:"

"The effect of again separating the ownership of these estates in reviving these easements varies essentially according to the nature and character of these easements.

In some cases the law, in order to give effect to a grant, restores the former easement to the estate granted, while in others this can only be done by express terms in the deed.

And whether an easement shall revive or not upon the alienation of one of the estates, may depend upon the act of the owner while holding both:"

37

The same author … considers at length the effect of conveying one of two estates in reviving former easements. His conclusion is…

that the easement is not revived, unless it is natural, like the flow of water in a natural stream, or "necessary to the enjoyment of the one parcel or the other, as in the case of ways; …

though by making the new grant in such a case, it is rather the creation of a new right of way by implication, than the reviving of a former one, and ways thus created are appurtenant only so long as the necessity continues."

A conservation easement is a non-possessory interest of a holder in real property, whether easement appurtenant or in gross a purpose of which is to preserve the historical, architectural and archeological aspects of real property. Va. Code Ann. § 10.1-1009. An easement in gross is an easement with a servient estate, but no dominant estate. It is an easement personal to the grantee.

It is evident from the discussion in Blackman that such easements are not subject to the typical common law analysis of merger as would be appropriate to rights of way between two adjoining tracts.

Here, there never was the relationship of a servient to a dominant tract. The clear intent of the parties was the creation of a detailed conservation easement in perpetuity, so as to protect the scenic value of the real estate for the general public.

A man cannot have a right of way through his own land, independent of his right to the land.

He may have a way through his own land at any place he may choose, and may vary it from time to time, or abandon it, as he may please, but such a way is not an easement. It is not a private way, within the proper and legal acceptation of the term, but a mere path or cart way. Clark v. The Boston, Concord and Montreal Railroad, 24 N.H. 114, 118 (1851).

This rule remains unchanged to the present day. See Blaisdell v. Raab, 132 N.H. 711, 718, 571 A.2d 261 (1990) (stating that "a landowner cannot have an easement over his or her own property independent from the ownership of it").

38

The phrase "subject to all easements" in a conveyance means "subject to all valid easements." Von Meding v. Strahl, 319 Mich. 598, 30 N.W.2d 363, 369

No man can have an easement in his own land. If the dominant and servient tenements are the property of the same owner, the exercise of the right, …is, during the continuance of his ownership, one of the ordinary rights of property only, which he may vary or determine at pleasure, without in any way increasing or diminishing those rights. The dominant and servient tenements must, therefore, belong to different persons; immediately they become the property of one person, the inferior right of easement is merged in the higher title of ownership. Stevens v. Dennett, 51 N.H. 324, 330 (1872).

An easement destroyed by merger occurring when ownership of the servient and the dominant tenements comes into the same hands is not revived when the original tenements are later severed."

"[T]he mere reference to an extinguished easement in a deed is insufficient, as a matter of law, to revive the easement."

As the Oregon Supreme Court has explained, "Generally, once an easement is extinguished, it is gone forever."

When dominant and servient estates having merged are later severed, "a new easement may arise upon such severance by express provision or by implication."

"The fundamental issue is whether [this] language was sufficient to bring ... easement[s] into existence or whether the language merely acknowledge[s] the easement[s] as ... previously existing right[s]"

"a mistaken belief cannot substitute for the requirement that the language evidence an affirmative intent to create new rights."

…"We look to what the words express, not what the grantor may have intended to express."

39

As we have explained before, "[o]nce the title to the adjoining properties vested ... , the right-of-way was extinguished by the unity of ownership and possession."

…;"[T]he merger or unity of ownership of both the benefitted and burdened lands extinguishes the covenant ... .").

…All benefited land -- plaintiffs' and the Plouffe's -- merged with the Town's burdened land, Plouffe Lane, and any existing covenants were thus extinguished. To preserve a covenant on the lane would have required the parties to include language in the conveyances of 1996 -- a step they chose not to take.

"It is fundamental that where the title in fee to both the dominant and servient tenements becomes vested in one person, an easement [or restrictive covenant] is extinguished [by merger]" ( Castle Assocs. v Schwartz, 63 AD2d 481, 486; see also, Riccio v De Marco, 188 AD2d 847).

In such a circumstance, the easement or covenant terminates because the party in whom the interests coincide may freely utilize the servient tenement as its owner. Therefore, the easement or restriction no longer serves any function

Slander of Title

This case involves the disputed ownership of real property. George C. Greene, III and Molly F. Greene sought to prove they owned a disputed tract of land and that Jack W. Griffith had slandered the title to their property by causing a plat to be recorded that showed Griffith as the disputed tract’s owner.

40

In 1984, the Greenes purchased a lot known as 134 East Edgewater Park Drive in Charleston County by deed from Inez R. Bradham.

In 1997, Griffith commissioned BBBB to perform a survey of the Marsh Island property. BBBB prepared a plat (BBBB Plat) that showed a strip of highland extending from the northeastern corner of Marsh Island across the northern property line of the Greenes’ lot, suggesting that a narrow twelve-foot strip of land on the eastern edge of the Greenes’ lot was actually owned by Griffith. The BBBB Plat was recorded.

In South Carolina, slander of title has been recognized as a common law cause of action. See Huff v. Jennings, 319 S.C. 142, 148, 459 S.E.2d 886, 890 (Ct. App. 1995)

…(holding that, although the court was directly addressing a claim for slander of title for the first time in South Carolina jurisprudence, “South Carolina law, through its incorporation of the common law of England, recognizes a cause of action for slander of title”).

To maintain a claim for slander of title, our courts have held “the plaintiff must establish

(1) the publication

(2) with malice

(3) of a false statement

(4) that is derogatory to plaintiff’s title and

(5) causes special damages

(6) as a result of diminished value in the eyes of third parties.”

This court held in Huff v. Jennings that “[i]n slander of title actions, the malice requirement may be satisfied by showing the publication was made in reckless or wanton disregard of the rights of another, or without legal justification.”

Significantly, we note Griffith admitted at trial that he owns no interest in the disputed strip of land and that he never thought he held any interest in that land.

41

Despite this admission, Griffith testified that he instructed BBBB to prepare the plat and stated, “I told [BBBB] that the tax office said I owned [the strip of land in question].”

BBBB testified that, when he prepared the plat, he had no evidence that Griffith had any ownership interest in the disputed strip.

On this point the allegation of the bill is:

"That at the time and place at which said sale was advertised, Edward S. Savage, an attorney-at-law of the state, who is a director of said Carteret Realty Company, and the attorney acting for said company in selling said lands under said execution, although his name does not appear as attorney of record,

stated to the sheriff and those present, in opposing an adjournment, that your orator had no title to said tract of land, and was not the owner thereof, and that an adjournment should not be granted because his interest in said tract by possession was not worth anything,

Statements such as those in the bill and affidavits are more than a mere recital of an alleged claim of the defendant; they amount to an expression of opinion as to the title of the judgment debtor, and an affirmance that he is without any legal right whatever.

To state facts cannot injure; to express an opinion upon the facts, or without stating the facts, may be oppressive and prejudicial. It is certainly inequitable.

It is undoubtedly within the right of a person claiming to have an interest in the land being sold at a judicial sale, whether such person be the judgment creditor or otherwise, …

…to state any facts as to the property about to be sold, when such facts relate to the title, possession or the alleged right of possession thereof.

Such statements can in no sense be deemed inequitable or oppressive, or as a slander of the title.

42

This case centers in the oil and gas development rights to 1,002.74 acres in McDowell County known as the "Blevins Tract."

TXO approached Mr. Robinson with a much better offer. TXO offered to pay all of the drilling costs, pay 22 percent in royalties, and pay Alliance $ 20 per acre for its interest in the Blevins Tract. Mr. Robinson accepted what he considered to be such a "phenomenal offer."

The pertinent parts of the 2 April 1985 agreement state:

Assignor hereby warrants title to the extent that in the event of conducting title examination of the assigned acreage, Assignee's examining attorney determines that title has failed to all or any part of the assigned acreage, Assignor will reimburse to Assignee the consideration paid to it for any such lands to which title is determined to have failed.

TXO then retained the Ripley law firm of Skeen and Skeen to examine the title to the Blevins Tract. According to the title report prepared by the Skeens, there was a problem with a 1958 deed from Tug Fork to Leo J. Signaigo, Jr.

TXO's agent, Duncan Wood, then contacted Mr. Signaigo who told him that the 1958 deed did not include the transfer from Tug Fork to Mr. Signaigo of rights to the oil and gas.

Nevertheless, shortly thereafter Mr. Wood approached Mr. Signaigo with a pre-printed affidavit for Mr. Signaigo to sign. The affidavit falsely stated that Mr. Signaigo could not say whether the oil and gas rights were included in the 1958 deed. The complete contents of the tendered affidavit are as follows:

43

…However, there was no specific agreement on the part of myself or Tug Fork Land Company as to whether or not the oil and gas would be reserved by Tug Fork Land Company in the attached deed, other than in the Pocahontas No. 3 and No. 4 coal seams. Therefore, I did not know whether or not the oil and gas was included in the conveyance to me…

Because the affidavit was false, Mr. Signaigo refused to sign it.

…It is understood and agreed that there is excepted and reserved to the party of the first part, its successors, assigns and lessees, the right to mine and remove all of said No. 3 and No. 4 Pocahontas seams of coal, together with the right to bore for and remove all the oil and gas underlying said tracts, such rights, however, to be used in common with the party of the second part and so as to interfere as little as possible with the mining operations of the party of the second part.

TXO argues that there is no action for slander of title in West Virginia. Although there is no West Virginia case on record directly recognizing an action for slander of title, the West Virginia Constitution, Article VIII, Section 13, provides:

Except as otherwise provided in this article, such parts of the common law, and of the laws of this State as are in force on the effective date of this article and are not repugnant thereto, shall be and continue the law of this State until altered or repealed by the legislature.

Slander of title long has been recognized as a common law cause of action. Indeed, the slander of title cause of action was especially important 400 years ago

…when many transfers of land were oral transfers (i.e., feoffment with livery of seisin), and when, the Domesday Book notwithstanding, land records were much less complete than they are today.

44

Later, in the 5th year of James I (c. 1608) the King's Bench also found for a plaintiff on a slander of title claim in Earl of Northumberland against Byrt, …the defendant falsely said that the previous owner of the land in question had made a lease of it before his death. The defendant also claimed that the lease had then been conveyed to him.

The court found this actionable as slander of title and held for the plaintiff. Examining these cases, it is clear that an action for slander of title has been a part of English common law for at least 400 years.

A distinction between claiming title in oneself and claiming title in another arises for a logical reason. Although we want to discourage people from slandering the title of others, we do not want to discourage people from making legitimate (though possibly weak) claims of their own.

Therefore, we also distinguish between cases in which the claimant legitimately raises questions of title in himself and cases in which the claimant raises his own claim without any reasonable grounds.

From the Restatement, we can deduce the elements of slander of title:

1. publication of

2. a false statement

3. derogatory to plaintiff's title

4. with malice

5. causing special damages

6. as a result of diminished value in the eyes of third parties.

To establish slander of title, a party must allege and prove that the defendant, with legal malice, published disparaging words about the plaintiff's title to property that were false and resulted in the loss of a specific sale. …

…For purposes of slander of title, malice means deliberate conduct without reasonable cause.

The refusal to release a lien created by an abstracted judgment on a homestead which results in a loss of a sale can constitute slander of title.

45

In the complaint, the plaintiffs allege that the defendants maliciously published a plat of an inaccurate survey and that its publication caused the plaintiffs to suffer special damages.

Slander of title is a form of the tort of injurious falsehood, which subjects a person to liability for publishing with malice or with reckless disregard a statement disparaging of another's property interest.

It appears that the state Supreme Court has yet to fully address the elements of slander of title, although the tort is recognized by the law of Virginia. The elements, according to that Court, that a plaintiff must prove to succeed on a claim of slander of title are:

"(1) that the defendant maliciously published false words,

(2) that the false words disparaged plaintiff's property,

(3) and that the publication caused plaintiff to suffer special damages."

Instead, the alleged realized pecuniary loss consists solely of "the expense of measures, including the expense of this litigation, taken to counteract the publication of the . . . Survey and to remove the cloud on title."

The majority of states that have decided this issue conclude as did the Maryland Court of Appeals that, consistent with the Restatement, supra, § 633, expenses incurred in clearing title do constitute special damages in a slander of title

The difficulty with the majority position, although sound and, perhaps, preferable, is that Virginia's Supreme Court has not construed the ordinary expenses of litigation as special damages in similar actions where one party's tortious conduct necessitated litigation by the other party.

The Court is therefore compelled by existing Virginia precedent to sustain the demurrer, allowing the plaintiffs leave to amend their complaint if the plaintiffs deem an amendment proper.

46

To unravel its complexities, this case on its face would seem to require the services of a "Philadelphia lawyer," …

The cross-appellees, Hornings, filed a cross claim against the Martins, from whom they had purchased the lots in question, seeking damages based on the special warranty recited in their deed.

…they sought compensatory and punitive damages for malicious interference with the contracts between the Hornings and various purchasers of homes erected by the Hornings on the disputed lots, as well as damages for slander of title.

Judge Macgill, who presided at the five day trial in this matter, personally viewed the property in question, walked the boundary lines as surveyed, and prepared a detailed opinion showing the title history of the general area and specifically the area in dispute.

We must commend the trial court for a remarkably thorough and expert analysis of the ownership of the lots claimed by the contesting parties in this suit.

the Hardings purchased the property here involved from the Martins in August of 1973. Later that month Albert R. Hardy, one of the appellees, communicated with an agent of the Hornings and advised him that the Hardys claimed ownership to a portion of the land purchased from the Martins.

The Hornings immediately employed a surveying firm which after studying the property boundaries reported that the disputed land was owned by the Martins at the time of conveyance to the Hornings.

In the interim, the Hardys had employed a surveying firm which reported that four of the five houses being constructed by the Hornings were on land owned by the Hardys.

On the day of settlement, while the adjustments were being calculated, the lending institution and purchasers received a phone call from the Hardys' attorney advising them that a suit claiming ownership of the disputed land had been filed the preceding day.

The Hornings contend that the Hardy's claim was false and amounted to a slander of their title …

47

Prosser, Law of Torts, § 128 (4th Ed., 1971) suggests that the tort we are here discussing has been incorrectly designated as "slander of title." Such nomenclature derives from the earliest cases -- decided before 1600 -- where it applied primarily to oral aspersions on the plaintiff's ownership of land, which aspersions prevented the owner from leasing or selling the land.

As the years progressed, the tort was expanded to include written aspersions on property, whether land or personalty, and the disparagement of the quality of property.

The Court of Appeals has had before it only two cases involving "slander of title."

A much more valuable contribution to the clarification of the tort in Maryland was made by Judge Wilson K. Barnes in the case of Beane v. McMullen, 265 Md. 585, 291 A. 2d 37 (1972). Quoting extensively from Prosser, Judge Barnes said:

"Injurious falsehood or disparagement, then, may consist of the publication of matter derogatory to the plaintiff's title to his property, or its quality, or to his business in general, or even to some element of his personal affairs, of a kind calculated to prevent others from dealing with him, or otherwise to interfere with his relations with others to his disadvantage.

The falsehood must be communicated to a third person, since the tort consists of interference with the relation with such persons.

But the plaintiff must plead and prove not only the publication and its disparaging innuendo, as in defamation, but something more. There is no presumption, as in the case of personal slander, that the disparaging statement is false, and the plaintiff must establish its falsity as a part of his cause of action. Although it has been contended that there is no essential reason against liability where even the truth is published for the purpose of doing harm, the policy of the courts has been to encourage the publication of the truth, regardless of motive.

48

The first and apparently only case in Maryland involving the slander of title to real property is Gent v. Lynch, 23 Md. 58 (1865). In Gent, the plaintiff owner of the land had offered it for sale at public auction.

The defendant, claiming that he owned the land as a result of a sale by a constable, stopped the plaintiff's sale at public auction. Defendant stated that his counsel had advised him that he owned the property, the sale by the constable to the defendant having been reported to the court and ratified.

This information was untrue as counsel for the defendant later discovered by an examination of the court papers.

Counsel told the defendant of the true state of the case and the defendant stated that "he had been altogether misinformed, but admitted he had never paid the purchase money."

The Court held that the lower court was correct in submitting the question of malice and bona fides to the jury on the part of the defendant which was done by the eighth prayer granted by consent.

The Court did not find it necessary to discuss the elements of the tort of slander of title

The claim of wrongful interference with a contract arose from the cancellation by BTR Realty, Inc. of an agreement whereby it was to purchase certain property from Lake Shore.

Rite Aid claimed that a portion of this property was subject to its alleged lease with Lake Shore.

Because of Rite Aid's claim, BTR Realty, Inc. insisted on a clause in the purchase agreement to the effect that it could withdraw from the agreement if Lake Shore did not furnish a written release from Rite Aid.

When the release was not forthcoming, BTR Realty, Inc. withdrew from the contract.

None of the opinions of the two appellate courts has expressly addressed or definitively answered the question now before us, namely, how the damages recoverable under the two torts are to be measured.

The law does not presume that damages occur as a necessary result of an act of slandering one's title to real or personal property.

It is also well established as a corollary to this principle that mental distress or anguish is not within the range of special damages proximately resulting from a slander of title action, a principle supported by some, and disputed by none, of the cases

49

in this case, Petitioners' Count XIII alleges an action for intentional slander of title. Petitioners have alleged no duty of care or any breach thereof on the part of Respondents, and there is no contention by Respondents that duty of care or breach thereof is an element of a claim for slander of title.

To support a claim for slander of title, a plaintiff must plead facts sufficient to show (1) a false statement, (2) that the false statement was communicated to someone else (publication), (3) malice, and (4) special damages.

Essentially, Petitioners in this case allege that AAAAA were involved with BBBBB in a scheme to erase Farm Road. Petitioners specifically set forth facts related to the alleged falsity of the survey documents, and that AAAAA had knowledge of the falsity when the documents were created and submitted to the Commission.

Petitioners allege that the false survey documents were submitted to and approved by the Commission, and filed in the land records.

Finally, Petitioners allege that the publication of the false surveys has affected the marketability of their title, such that they have been unable to list their properties for sale, thus alleging pecuniary damages.

We conclude that these allegations are sufficient to survive a motion to dismiss on grounds that AAAAA owed no duty of care to Petitioners.

The plaintiffs also seek summary judgment against Hyman and Steven on their claim of slander of title.

The elements of a slander of title claim are:

"(1) the malicious (2) publication of

(3) false matter concerning the state of title of property which

(4) causes special damages."

Because there exist genuine issues of material fact, the record at this stage precludes summary judgment.

50

ABC filed its initial Complaint against Schreppler, William B. Wilgus, and Susan M. Wilgus on February 27, 2008, alleging interference with quiet enjoyment of ABC's property, slander of title, and tortious interference with contractual relations. ABC also asserted a count for declaratory relief and for a preliminary injunction.

On March 25, 2008, Schreppler filed an answer to the Complaint and asserted counterclaims for adverse possession and slander of title. At the outset, the parties' disputes involved approximately 36 acres of land that ABC claimed to own.

The controversy in this case revolves around the conflicting conclusions reached by two expert surveyors, Smith, commissioned by ABC, and Jones, commissioned by Schreppler, as to the boundary lines at the northwest corner of a large tract of land owned by ABC. The two experts, and their respective surveys, fundamentally disagree about which of two nineteenth-century surveys controls as more accurate and reliable.

"The elements of [an action for slander of title] include the (1) malicious (2) publication of (3) false matter concerning the state of title of property which (4) causes special damages.")

Although the cases in Delaware regarding "slander of title" are rare, it is the case virtually everywhere that in order to recover damages for an injurious falsehood regarding title to land, the claimant must be able to show "special damages" in the form of pecuniary loss and not general damages.

Generally, slander of title is defined as a false and malicious statement made in disparagement of a person's title to real or personal property, causing injury.

New Jersey defines the tort of slander of title as a publication of a false assertion concerning plaintiff's title, causing plaintiff special damages. Andrew v. Deshler, 45 N.J.L. 167, 169-172 (E. & A.1883).

Another element is malice, which has to be either express or implied.

Malice is defined as the intentional commission of a wrongful act without just cause or excuse.

51

Even though New Jersey recognizes slander of title as a viable cause of action, the question presented is whether defendant enjoys immunity.

It is well established that statements, written or oral, made by judges, attorneys, witnesses, parties or jurors in the course of judicial proceedings, which have some relation thereto, are absolutely privileged from slander or defamation actions, even if the statements are made with malice.

Plaintiff sued to collect money allegedly due for the replacement of a well. Plaintiff lost at trial and now appeals from the judgment dismissing its complaint and awarding compensatory and punitive damages for slander of title on the counterclaim.

…plaintiff falsified the bill to alter the amount due from $ 385 to $ 1,385. Defendant claimed that, upon inquiring about the falsification of the bill,

…Peters had padded it to recover monies defendant owed to a relative. Defendant alleged that in filing the lawsuit plaintiff acted maliciously, caused unnecessary legal expenses and slandered him.

Peters claimed that the entire document was prepared on the same date, although the bottom portion was not placed on the document until after Hanzula signed it. This, he explained, was also why the writing was done with different colored pens.

…filed a mechanic's notice of intention at the Monmouth County Courthouse in plaintiff's name against the property owned by defendants.

The tort of slander of title has been defined in New Jersey as "a publication of a false assertion concerning plaintiff's title, causing plaintiff special damages." Lone v. Brown, 199 N.J.Super. 420, 426, 489 A.2d 1192 (App.Div.1985)

52

Plaintiff next urges that the filing of a mechanic's notice of intention is absolutely privileged and cannot form the basis for a slander of title action. We disagree, with regard to the facts of this particular case.

Plaintiff relies principally upon Lone v. Brown, 199 N.J.Super. at 428, 489 A.2d 1192,

…where we held that the filing of a lis pendens was absolutely privileged and could not form the predicate for a slander of title action.

Even though New Jersey recognizes slander of title as a viable cause of action, the question presented is whether defendant enjoys immunity.

It is well established that statements, written or oral, made by judges, attorneys, witnesses, parties or jurors in the course of judicial proceedings, which have some relation thereto, are absolutely privileged from slander or defamation actions, even if the statements are made with malice.

By analogy, plaintiff here urges that a mechanic's notice of intention is also privileged, although plaintiff gives no authoritative support for this contention.

No New Jersey cases have ruled on whether the filing of a mechanic's notice of intention is immune from a claim for slander of title.

Nor have any New Jersey cases upheld an award of damages for slander of title based upon the filing of a mechanic's lien.

This is a case of first impression.

…the filing of a civil complaint to enforce a mechanic's lien is regarded as a part of a judicial proceeding and thus its contents are absolutely privileged from slander or defamation actions, even if the statements are made with malice.

The question here is whether the filing of a notice of intention alone enjoys that same status.

We hold that under the facts presented in this case, the notice was not filed as a prelude to or a part of a judicial proceeding and therefore does not enjoy immunity.

53

In the case before us, plaintiff did not perfect its claim. It only filed a notice of intention, which, as the judge found, was based on a fraudulent billing for work not performed.

We conclude that simply filing a fraudulent mechanic's notice of intention is not absolutely privileged as part of a judicial proceeding. This fraudulent gesture did not rise to the level of a judicial proceeding.