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Yard v. Ocean Beach Association.

26th, 1873, Joseph B. Yard conveyed these two tracts to the Ocean Beach Association, which gave the association title to the parcel lying between West pond and Shark river. To this parcel the vice-chancellor adjudged title in the complainant by adverse possession.

The statute of limitations applies as well to the Board of Proprietors as to individuals, and an adverse possession of lands for twenty years will bar a right of entry or recovery under title derived from that source. Cornelius v. Giberson, 1 Dutch. 1. Nor is there any difference between the character of the evidence or the degree of proof required to sustain title by adverse possession against the Board of Proprietors and that which is required to sustain such title against an individual owner. The board not being excepted from the operation of the statute, possession such as would bar the claim of the rightful owner, if he be an individual, will be equally efficacious against the proprietors.

The Waddell deed to White was made in September, 1800, and recorded January, 1801. The tract conveyed consisted of upland and sedge meadows and a sandy beach along the river and the sea. In the deed it is described as situate, lying and being on the south side of Shark river, with two sedge banks near the mouth of said river, being included within the following bounds: Bounded northerly by Shark river, easterly by the sea, southerly by a pond called Three-Cornered pond, and westerly by the upland of &c. The descriptive words contained in the deed comprised premises extending to and bounded. upon the ocean. The survey made by the defendant, under which he claims title, was located on the easterly side of a fence along the upland and extending from thence to the ocean.

At the time the Waddell deed was made there was a farmhouse on the tract, which was rebuilt in 1810. From the making of the conveyance to White, the tract was occupied and cultivated by those holding under the Waddell conveyance, and their possession and occupation was under color of title at least. The evidence clearly shows that White and those who succeeded to his title always claimed title to the ocean, and that their right

Yard v. Ocean Beach Association.

as riparian owners was generally, if not universally, recognized in the neighborhood.

The general rule is that, in a controversy in which title by adverse possession is set up, possession of the principal tract is regarded as possession of adjoining waste and unenclosed pieces of land held under the same title and used in connection there

with. Sedgw. Trial of Titles § 774. In this case, it appears that the grantee of Waddell, and those succeeding him in title, used the sedge meadows outside of the fence enclosing the upland for pasturing cattle, and erected fences to the ocean to prevent eattle straying or trespassing, and carted off seaweed and drift. wood and fragments of wrecks thrown upon the beach. In Lord Advocate v. Young, 12 App. Cas. 544, 553, Lord Watson, speaking of a claim of title to the foreshore by prescription as against the Crown, said: "It is practically impossible to lay down any precise rule in regard to the character and amount of possession necessary to give a riparian proprietor a prescriptive right to the foreshore. Each case must depend upon its own In estimating the character and extent of his possession, it must always be kept in view that possession of the foreshore, in its natural state, can never be, in the strict sense of the term, exclusive. The proprietor cannot exclude the public from it at any time, and it is practically impossible to prevent occasional encroachments on his right, because the cost of preventive measures would be altogether disproportionable to the value of the subject."

circumstances.

These remarks, though relating to title by prescription to the foreshore, which is Crown property, apply with equal force to waste land lying between the upland and the waters of the ocean, which is covered by sedge grass and at times overflowed by tides, making cultivation and enclosure by fences impracticable. In the present case, it appears clearly by the evidence that the owners of the Waddell title exercised acts of ownership and dominion continuously over the sedge meadows and beach down to the water's edge, of such a nature and character as the condition and situation of the premises permitted and so far as was practicable, The evidence touching their possession was such as was held by

Yard v. Ocean Beach Association.

this court in Foulke v. Bond, 12 Vr. 527, to be competent evidence of an adverse possession. The proof on this subject is plenary, and I agree with the vice-chancellor that the evidence is most conclusive of an actual, open, continued and hostile possession, under the Waddell title, of the strip of land in controversy for more than three-quarters of a century.

To the second of the parcels in controversy, that lying south of West pond, the defendant's claim of title depends upon the location of two prior surveys-the one to Brinley, made December 2d, 1861, for one hundred and eighty-three and twenty-five hundredths acres; the other by Corlies for himself, made August 30th, 1870, for a tract of thirty-four and ninety hundredths acres. In both these surveys the lands are described as lying between the Three-Cornered pond and West pond. The defendant's survey also describes the lands surveyed by him as a tract of unappropriated land lying between West pond and the ThreeCornered pond. The defendant's title, in virtue of his survey, which was made October 30th, 1880, depends upon the fact of there being unappropriated lands between the two surveys above mentioned.

The running of lines, the fixing of boundaries and the whole location of proprietary rights, are done by the Board of Proprietors, by their own agents, the deputy surveyors and the surveyor-general, the appointees of the board. The board allows no one, who applies for a survey, to select his own surveyor or an indifferent person to make his survey. He must employ the agents of the board, and no surveys will be approved unless made by such agents. Lippincott v. Souder, 3 Halst. 161, 164; Scott v. Yard, 1 Dick. Ch. Rep. 79, 88. About 1786 an order was made by the board requiring its surveyors, in making surveys, to establish a beginning corner, and then confine themselves to strict courses and distances. Elmer's note to Nix. Dig. (4th ed.) 936. This order adopted the most unreliable indicia of location and boundaries known to conveyancers, and the courts, in locating these surveys, will resort to every kind of evidence that is competent to establish a disputed boundary. Scott v. Yard, 1 Dick. Ch. Rep. 79, 83.

Yard v. Ocean Beach Association.

The Corlies survey for his tract of thirty-four and ninety hundredths acres describes the premises "as adjoining the ocean between Three-Cornered pond and West pond," and as

"beginning at the southwest corner of the tract of 183 25 acres returned to E Brinley, Book S 23, p. 56 &c., it being also at the southwest corner of a tract of land, containing 91 acres and ninety-six hundredths, conveyed by Edward Brinley to John Brown and others, by deed dated December 12, 1861, and recorded in the Monmouth County Clerk's office &c., in Book 161 of Deeds, p. 225;"

thence by courses and distances to the beginning, "being bounded on all sides by prior locations and the ocean."

The description in the Corlies survey of the tract surveyed, as adjoining the ocean, and the call for a boundary on the ocean, fixes his easterly line at the line of ordinary high water, which is also the limit of the title of the Board of Proprietors. The word "adjoining" implies a closer relation than "adjacent." The latter word, uncontrolled by the context or subject-matter, is not inconsistent with the idea of something intervening. But the primary meaning of the word "adjoining" is to lie next to, to be in contact with, excluding the idea of any intervening space. Johnson v. District of Columbia, 9 Cent. Rep. 653, 655; People v. Schemerhorn, 19 Barb. 540, 556; In re Ward, 52 N. Y. 395; Akers v. N. R. R. and C. Co., 14 Vr. 110. In State v. Brown, 3 Dutch. 13, the supreme court, in construing the words "lands adjoining the shore line" of tidal waters, held that these words signified lands reaching to the edge of the water at ordinary high water. The description of the premises in the Corlies survey, with the superadded words, "bounded on the ocean," and the map accompanying the recorded survey indicating a line on the ocean, conclusively establish the easterly line of the Corlies survey upon the line of ordinary high water in the ocean. Under such a description, title is conveyed to ordinary high-water mark, with all the incidents of riparian ownership.

Nor does the evidence admit of any doubt that the westerly line of the Corlies survey, with its projections at the northerly and southerly ends, join upon the Brinley survey.

Yard v. Ocean Beach Association.

Corlies was deputy surveyor for the Board of Proprietors, and in 1861 made the survey of the Brinley tract. Brinley's survey was recorded in Book S 23 p. 56. Brinley, by a deed dated December 12th, 1861, conveyed to John Brown and six others a tract of ninety-one and ninety-six hundredths acres. That deed was recorded in the Monmouth county clerk's office, in Book 161 of Deeds p. 656. The particularity with which Corlies, in his survey for the thirty-four and ninety hundredths acres, recites these two instruments, of itself indicates that he ascertained that these two tracts had a common boundary at the beginning point of his survey. There is a plain mistake, probably a clerical error, in the statement in the Corlies survey that the corner of the Brinley survey, at which Corlies's beginning corner was located, was the southwest corner of the former survey, the extreme southwest corner of that survey being a considerable distance further west, near the head of the Three-Cornered pond. But this erroneous statement becomes entirely immaterial, on a comparison of other calls in both surveys and in adjoining locations. The Brinley map has disappeared from the records of the Board of Proprietors, and a copy duly proved was put in evidence. By this map it appears that the tract of ninety-one and ninety-six hundredths acres, conveyed by Brinley to Brown and others, is included in the Brinley survey for the one hundred and eighty-three and twenty-five hundredths acres, and comprises the entire easterly part of that survey, the whole distance from Three-Cornered pond to West pond, with its northerly, easterly and southerly lines coincident with the corresponding lines of the survey for one hundred and eightythree and twenty-five hundredths acres. Corlies testified that when he made his survey he fitted it to Brinley's ninety-one acre tract, which then belonged to Brown and others, and again, in his cross-examination, he said he fitted his tract fast to the Brinley survey for the one hundred and eighty-three acres, and the map annexed to his survey has inscribed upon it along the westerly boundary of his tract, as follows: "183 25/100, return to Edward Brinley, Dec. 2, 1861; recorded in Book S 23 p. 56." And the call in his survey for a boundary on all sides,

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