PITNEY, V. C. This is a bill to quiet title, filed under the act of March 2, 1870, (Revision, p 1189.) The complainant alleges peaceable possession of the land in controversy, and in addition sets out his title founded upon a deed dated February 14, 1854, made by Somers, Lake, and Adams, commissioners in partition appointed by the orphans' court of Atlantic county, to one Overshine, and by mesne conveyances from Overshine to him, for a tract which is described by metes and bounds, and said to contain 214 acres. The defendant corporation answers, and by its answer deduces its title by an unbroken line of conveyances from the proprietors, to-wit, for 121-144 undivided parts, or about five-sixths of the tract in question. The other defendants, representing the remaining 23-144, have not answered, and require no further mention or notice. The defendant admits that the complainant's title to the tract described in the commissioners' deed is good, and that the parties to the partition proceedings upon which it was founded were the owners of the tract in question at the date of those proceedings. It in facts claims title from those parties, and limits its claim to land not included in the conveyance to Overshine, under which the complainant claims, and asserts that it does not include or cover the land here actually in controversy; and that is the sole question in dispute in the cause, viz., does the commissioners' deed above referred to cover and include, by proper description, the land in controversy?

The defendant, however, further denies the jurisdiction of the court, because, as it says, the complainant was not in peaceable possession. But I think that on that question the facts are clearly with the complainant.

The land in controversy comprises the extreme south-west end or point of Absecon beach. It contains about 150 acres of land; is bounded on the south-east by the Atlantic ocean; on the south-west by Great Egg Harbor inlet; on the northwest by an inland sound called "Beach Thoroughfare;" and on the north-east by lands owned confessedly by the complainant; and it has been laid out on paper into streets, and is called "Longport." Several years ago the complainant erected a farm-house, with some outbuildings, in about the middle of the tract now in controversy, and it has been occupied ever since by a tenant under him, who has kept cows and cattle, which ranged over and depastured upon the whole tract. The complainant, and his predecessor in title, Mr. Long, has also paid taxes upon it, and the riparian commissioners granted to Mr. Long a strip of land under water, surrounding the same. The complainant has also for a long time been in undisputed possession of the lands lying immediately north-easterly of the disputed premises, which comprise a portion of Longport, and which have been actually laid out into streets and built upon. These circumstances, I think, show actual possession sufficient to satisfy the demands of the statute, and establish the jurisdiction of the court. No action at law

is pending or could be brought by complainant to test the title.

The complainant being in possession, the burden is cast upon the defendant of showing its title, and that it is superior to the complainant's. It becomes the actor. Beale v. Blake, 45 N. J. Eq. 668, 18 Atl. Rep. 300. Indeed, as I interpret the act, the complainant need not have set out his title in his bill. He has, however, done so, giving the same description as that contained in the commissioners' deed, with a distinct allegation that it includes the land in question. This allegation defendant denies in its answer. The description contained in the commissioners' deed to Overshine of February 14, 1854, and repeated in all the subsequent conveyances constituting the complainant's claim of title, is as follows: "All that certain tract of land situate on said beach, (it being lot No. 32 in the report of said sale,) bounded as follows: Beginning at a stake and at low-water mark or the surf and at the south corner of lot No. 31; and runs (1st) along by low-water mark south, fortyeight degrees west, about thirty-five and a half chains, to a stake; thence second, (2) south, sixty-one degrees west, nineteen chains and three-quarters; thence (3) south, eighty-nine degrees west, seven and a half chains, adjoining to the Egg Harbor inlet; thence (4) north, thirty-nine and three-quarter degrees west, thirty and one-quarter chains, to the mouth of the Beach Thoroughfare; thence up the same, (5) north, forty degrees east, sixteen and a quarter chains; thence (6) north, fiftynine degrees east, about thirty-eight chains and seventy-five links, to the line of lot No. 31; thence, (7) in the line of lot No. 31, south, forty-five degrees east, about thirty-eight and a quarter chains, to the place of beginning,-containing two hundred and fourteen acres, more or less."

The lot No. 31, to which reference is here made, is one of 32 lots into which the orphans' court commissioners before mentioned divided the whole tract for the purposes of sale, and lot No. 32 is the one above described. The whole tract, as shown by their map, which has been preserved, is about five miles long, and from a half to a mile wide, and lot No. 32 was the most south-westerly. The whole tract was bounded on the south-east, for about half its length, commencing at the northeast end, by a narrow tidal stream (now filled up) called "Inside Thoroughfare," which then divided the main Absecon beach diagonally, and for the other half by the ocean; on the south-west by Great Egg Harbor inlet; and on the north-west by an inland sound called "Beach Thoroughfare." (This is an inland navigable sound, reaching from Absecon inlet to Egg Harbor inlet.) Monuments still in existence render the beginning corner of the lot in question reasonably certain, and there is no dispute but that a survey of the tract according to course and distance fails at this time to reach Great Egg Harbor inlet, and falls so far short as to leave about 150 acres of land at the extreme point outside its boundaries. The com. plainant contends, nevertheless, that in

terpreted by the circumstances as they existed at the time, with the aid of the words found in the third and fourth courses, viz., "adjoining the Egg Harbor inlet, and 'the mouth of Beach Thoroughfare," the description must be construed as going to Egg Harbor inlet, upon the principle that courses and distances must yield to monuments. The defendant makes two an swers to this position: First, it says that that rule has not strength enough to carry this survey so far-about half a mile-as to include the land in question; and, second, that as a matter of fact, at the time the partition was made, there actually existed an inlet of water, leading from the Atlantic ocean to Beach Thoroughfare, substantially coincident with the fourth course of the commissioners' deed, which at that time answered the call for Egg Harbor inlet, and hence there is no occasion to stretch the survey so violently as complainant's contention requires.

The undisputed facts are that, previous to 1831. Absecon beach-the south-west part of which was called "Sand Hill Beach," and the part separated from the sea by Inside Thoroughfare was called "Inside Beach"-was, as now, substantially an unbroken beach, leading from Absecon inlet to Great Egg Harbor inlet; that in the year 1831, in a violent storm, the sea broke across the beach about three-quarters of a mile north-east of the south-west point, and formed a new inlet from the ocean to Beach Thoroughfare, or, as it was sometimes called at that point, "Risley's Channel;" that the new inlet remained open and was navigable for light draught vessels up to the year 1853, when, or shortly before which date, it began to shoal, and in 1854 became entirely closed, and since then no signs of it have existed. In the mean time, Great Egg Harbor inlet retained its original width,-about a mile, -depth, and appearance. The effect, however, of the breaking through of the new inlet was to form a sand-bar or shallow place at the mouth of Beach Thoroughfare, being the point of junction of that sound with Great Egg Harbor inlet, so as to confine the navigation at that point to very small vessels, and most of the seagoing vessels that traded up Beach Thoroughfare, and the waters to which it led, were obliged to go in and out of this new inlet, so that there was substantially no navigation for vessels of ordinary size from Great Egg Harbor bay and its waters to the ocean through the new inlet of 1831; and, in point of fact, it never was known as "Egg Harbor Inlet," but always as "New Iulet" or "Risley's Channel Inlet." The land now in dispute, or so much of it as was then above water, was from 1831 to 1854, and at the time of the proceedings in partition which culminated in the commissioners' deed, an island. Its size and its height above sea level was a matter of serious dispute, and about which much contradictory evidence was given on both sides.

In or about the year 1841 the federal government made a survey of those waters, which resulted in an official map, which has been put in evidence. That map shows the island to be comparatively

small, of irregular shape, and not at all like the present point of Absecon beach, and it also shows the new inlet to be nearly three-fourths of a mile in width; and when the plot of lot No. 32, as described in the commissioners' deed, is placed upon the government map, it would appear that nearly the whole of it was under water in 1841. The evidence as to the width of this new inlet at high and low tide, in 1853 and 1854, as given by living witnesses, is quite indefinite and unsatisfactory. They fix the location of the navigable channel by a small tidal stream, which entered Beach Thoroughfare from the north-west, and they say that the channel was directly south-west of the mouth of this stream. It is here to be observed that the survey made by the commissioners for the purpose of division into lots and sale was to low-water mark in all cases, and such I understand in those days was the universal custom in West Jersey; it being understood there that the private titles ran to low-water mark, and were not limited by high-water mark. But taking the new inlet as the evidence shows that it appeared at low water, and locating it as well as it can be done from the uncertain evidence of witnesses, it seems to me sufficiently clear, from the weight of the evidence, that the fourth course of lot No. 32 was not coincident with low-water mark on the north-east side of the new inlet, but that, in point of fact, the description of that lot laid on the ground according to strict course and distance, with a correction in one of the courses to make the survey close, would include the whole or a greater part of the new inlet as it then existed, and would probably touch the north-east end of the island, as shown on the government map. But, independent of that aspect, I am unable to follow the defendant's counsel to the conclusion he aims at, viz., that the new inlet answers the call in the deed of "Egg Harbor Inlet." It was well said by the counsel of the complainant that Egg Harbor inlet, as a monument, was as notorious as could be well imagined, and that it would require very strong proof to lead to the conclusion that the commissioners could have called the new inlet "Egg Harbor Inlet." They were all men living in the neighborhood, thoroughly acquainted with its geography and the nomenclature of its waters, and of the 70 or more witnesses, mariners and fishermen, who were sworn on account of their famil iarity with the neighborhood, not one, so far as I now recollect, swore that this new inlet was ever called "Egg Harbor Inlet." Nor do I think it could properly have been so called, for the reason before stated, viz., that owing to the bar which formed across the mouth of Beach Thoroughfare there could be no navigation by sea-going vessels from the Atlantic ocean through the new inlet into Great Egg Harbor Bay and waters. Besides, looking at the map of the neighborhood published by the state geologist, there appears to the north-east of Great Egg har bor two inland bays, called "Scull's Bay" and "Lake's Bay, "-the latter a large sheet of water, upon which is an im

that it included only the Somers survey, and not the Verree survey. In confirmation of this, counsel relies on the further circumstance that the title of the Verree 59-acre survey was united with that of the Somers survey by deed from Joseph E. West, executor of George West, deceased, to Baker and Tilton, dated December 8, 1829, but not recorded until December 21, 1880. From this circumstance defendant argues that Collins, Ireland, and Baker, petitioners in the partition proceedings, did not know that they owned the land covered by the Verree survey, and did not apply for its partition, and that its partition or sale was not ordered or confirmed by the orphans' court.

*

To this argument complainant makes the following answer: The chain of title set out by defendant's answer contains several conveyances of the premises made prior to the date of the West deed to Baker and Tilton, and of the opening of the new inlet. The earliest of these put in evidence is a deed from Benjamin Wilkins, sheriff, to Baker, Cook, and Tilton, dated November 16, 1821, in which the premises are described as follows: "All that certain or several tracts of land and marsh situate, lying, and being in the township of Egg Harbour, * being an island generally known by the name of Inside Beach' and 'Sand Hill Beach,' and is bounded on the south-west by Great Egg Harbourinlet, on the south-east from Great Egg harbour by the ocean to the Little inlet, and from thence, by the waters that separate it from the Absecon beach, by the north-east, and north-west by the Beach Thoroughfare, (so called,)—within which bounds is said to contain five hundred and fifty acres, more or less. The deed from Isaac Cooper to the heirs of the said Hasadiah Samson conveys only such part as lies within the following boundaries, viz.: Beginning at John Somers' line (so called) a little to the south of the Great Hammock, where a ditch is cut as a line across said beach, a division line between John and Lemers Somers; thence from said ditch to the south-west, bounded on the northwest of the Beach Thoroughfare, to Great Egg Harbour inlet; on the south-west by the ocean to the Little inlet; from thence, by the waters that separate it from the Absecon beach, the several courses thereof to the above-mentioned ditch, which is considered to contain the whole of the beach and marsh to the south-west side of said ditch from Beach Thoroughfare to the main ocean, to the south-west of Great Egg harbour, above inlet." The Little inlet-long since closed-mentioned in this description was situated about three miles north-east of Egg Harbor inlet, and must not be confounded with the New inlet of 1831. It opened from the ocean to the inland water called "Inside Thoroughfare," (before referred to,) which divided the main beach diagonally, and all to the north-east of it was called, par excellence,

Absecon Beach," and the part that lay to the south-west of it was called "Inside Beach" and "Sand Hill Beach," being in fact all one beach; but so much as was separated from Absecon beach by the Inside Thoroughfare was called "Inside

Beach," and so much as was washed by the ocean was called "Sand Hill Beach. In the deed from Richman to Wilson dated March 14, 1825, also found in defendant's chain of title, it is described as follows: "Being an island generally known by the name of the 'Inside Beach' and 'Sand Hill Beach,' and is bounded on the south-west by Great Egg Harbour inlet; on the south-east, from Great Egg Harbour inlet, by the ocean to the Little inlet; from thence, by the waters that separated it from Absecon beach by the north-east; and north-west by the Beach Thoroughfare, (so called,)-within which bounds is said to contain five hundred and fifty acres of land marsh," etc., "be the same more or less." This last description is repeated in a deed, also in defendant's chain, from Wilson to Hilyard, dated May 9, 1834, two years and more after the new inlet was formed, and again in a deed from Hilyard to Mark Ware, dated July 15, 1835, and again in a deed from Ware to Baker and Tilton, dated May 9, 1837. Baker and Tilton already had title to the Verree survey by deed from West, but the language of the description in the orphans' court petition was evidently taken by the counsel or surrogate who prepared it from the deed from Ware to Baker and Tilton, which manifestly included all the land to the Great Egg Harbor inlet under the name of "Inside Beach" and "Sand Hill Beach," and within the quantity of 550 acres, and in addition to this is the reference to the ownership by Baker and Tilton. This, as it seems to me, is a complete answer to the contention that the partition proceeding did not deal with the land here in controversy. The argument from the quantity-550 acres-mentioned would exclude the 564 acres addition surveyed for Somers, as well as the 59 acres surveyed to Verree, and thus is shown to reach too far. The fact is that it must have been well known that the tract included much more than 550 acres.

Again, both Collins and Ireland knew the true situation at and near the inlet. They acquired title to the share they held by four several conveyances,-two dated Dec mber 8, 1849, one dated January 15, 1850, and the other dated January 22, 1850, -all from the Tilton heirs. In those of December 8, 1849, the tract is described as follows: Beginning at the mouth of the creek called the 'Big Shell Creek,' which empties into Beach Thoroughfare, and near where said thoroughfare empties into Broad Thoroughfare; thence along the middle of said Shell Bed creek, a southeast direction, to a ditch; thence along said ditch, a south-east direction, to the waters of what was formerly called 'Little Inlet;' thence along said Little inlet, a south-west direction, to the head thereof; from thence, a south-east direction, to the sea-side at low-water mark; thence, binding the sea-side at low-water mark, a south-west direction, crossing the New inlet to Great Egg Harbour inlet; thence, a north-westerly direction, by Gt. Egg Harbour inlet to Ladd's Hammocks; thence by the same and the waters of the New inlet, a north-easterly direction, to the mouth of Beach Thoroughfare, being the

south-west mouth of said thoroughfare | where it empties into Risley's channel; thence binding the various courses and distances of the said Beach Thoroughfare to the place of beginning,-containing three thousand acres, be the same more orless, and in which is included Inside and Sand Hill beaches, with the Sand flats, salt, and low sedge marsh adjacent thereto.' And in those of January, 1850, it is described as follows: "Beginning at the south-west mouth of Beach Thoroughfare, and from thence north-easterly, the various courses and distances of the said Beach Thoroughfare to the mouth of the Big Shell Bed creek, which creek puts out of the aforesaid thoroughfare near the north-east mouth thereof, from thence binding up said creek by the middle thereof, and adjoining lands of Jeremiah Risley south-easterly, till it comes to a line ditch; thence, binding said ditch still south-easterly, to the Little inlet, as use to be called; thence binding the Little inlet south-westerly, to the head-waters thereof; thence south-easterly to the sea-side at low-water mark; thence binding the sea-side at low-water mark south-westerly, crossing the New inlet to Great Egg Harbour inlet; thence north-westerly, binding the lastnamed inlet, to Ladd's Hammocks; thence binding the same and the waters of the New inlet to the place of beginning,-containing three thousand acres, be the same more or less. Two thirty-fifths is hereby conveyed, or intended so to be, and in which is included Inside and Sand Hill beaches, with the sand flats, salt, and low sedge marsh adjacent thereto."

The originals of these last two deeds were produced, and are both in the handwriting of Daniel L. Collins. A comparison of the description in the deeds of December, 1849, with that of those of January, 1850, shows that they are substantially the same. The first commences at the extreme northerly point of the tract, five miles distant from Egg Harbor inlet, and runs thence by Inside Thoroughfare to the ocean, and thence to the Great Egg Harbor inlet, and thence, by Risley's channel and Beach Thoroughfare, to the beginning. The last commences two and a half miles from Egg Harbor inlet, at the junction of Beach Thoroughfare and Risley's channel, that being, as I have before pointed out, the true mouth of Beach Thoroughfare, and runs thence north-easterly, and so onward to the beginning. The matter to be remarked of these descriptions is that they all expressly notice the new inlet, and cross it, and expressly include the land in question.

Now, the complainant argues from this, and I think with some force, that Collins and Ireland were the actors in the proceedings which they procured to be instituted for the purpose of having their shares in these lands either set off to them in severalty or its equivalent in money, and it is not probable that they would intentional. ly omit any part of them from the proceedings, especially after taking so much pains to include all the conveyances by which they acquired their interests. A circumstance much relied upon by the complainant in this connection is the advertisement

made by the commissioners. The record shows this to have been in The West Jerseyman, a newspaper published at Camden, and its files of that date have been preserved, and the description found in it is as follows: "The following described real estate, situate on the Sand Hill beach, or what some call 'Inside Beach,' late the property of John Tilton and Daniel Baker, Esquires, deceased, and is bounded as follows: On the north-west by the Beach Thoroughfare, and on the south-west by Egg Harbor inlet, on the south-east by the ocean, and on the north and east by Absceon beach, and contains twenty hundred acres, be the same more or less." The next matter relied upon by the defendants is a map made by Mr. Somers, one of the commissioners, who was a surveyor, showing the actual divisions by which the lots were sold, and which was used by the commissioners at the sale which took place on the ground in November, 1853. It is proven that certain cedar stakes, driven deep in the ground, still remain upon the division lines shown on this map, and hence it must be inferred that those division lines were actually surveyed on the ground. The map also shows the lines of the north-west shore of the tract bordering on Beach Thoroughfare, with indentations and with substantial accuracy, and it also shows a matter which I deem of considerable importance, viz., the lines of the opposite shore of Beach Thoroughfare, but without any of its creeks or indentations, not even the mouth of Risley's channel; also the lines of both sides of the Inside Thoroughfare above mentioned, which divides it from what was then called "Absecon Beach" proper. The thoroughfares and indentations are colored green, and so is a wide strip for the ocean on the south-east side; also one at the south-west end, along the fourth course of lot No. 32, which is thereby shown to be bounded on water,whether the new inlet or old is the question. This map is on a scale of 10 chains to the inch. The shape of lot No. 32 is an oblong square, about 35 chains wide and 55 chains long, with the south and west corners slightly rounded. Beach Thoroughfare is so marked, and the ocean is marked "surf," but no designation is put upon the waters of the inlet. Beach Thoroughfare is laid down as about oneeighth of a mile wide, making about one inch on the map, except at its mouth, where it is spread to more than twice that width. Inside Thoroughfare is laid down about one-quarter of an inch wide. The strip of green along the surf side is about two inches wide on the map, equal to half a mile, and continues of that width around the end of the beach, and along where the water of the inlet is intended to be shown. The margin of blank space left on the south-west end of the map opposite the fourth course of lot No. 32, and which occupies the place of the inlet, is three inches, equal to three-eighths of a mile. I have already shown that a plot of lot No. 32, properly placed upon the government map, makes the fourth or south-west course almost reach or touch the north-east end of the island shown by the government map