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New Jersey Supreme Court Rules on Tidelands Licensing and Pierhead Line Authority

Month: March 2026

New Jersey Supreme Court Rules on Tidelands Licensing and Pierhead Line Authority

Posted on by Jessica Haspel

What You Need to Know

  • The Court held that the Tidelands Resource Council can set or modify a pierhead line in the context of reviewing an application for a tidelands license.
  • Under the Tidelands Act, the TRC is authorized to "from time to time, fix and establish" pierhead lines and is not mandated to establish one uniform pierhead line around each island, but may establish a pierhead line in front of an individual property.
  • Owners of property adjacent to tidelands have added flexibility in obtaining dock permits, as long as they have approval from all requisite government agencies, including the NJDEP, the TRC, and the Army Corps of Engineers.

On March 18, 2026, the New Jersey Supreme Court found that the State’s Tidelands Resource Council can set or modify a pierhead line in the context of reviewing an application for a tidelands license in a unanimous opinion In re P.T. Jibsail Family Ltd. P'ship Tidelands License No. 1515-06-0012.1 Tdi 190001., 2026 N.J. LEXIS 184 (Mar. 18, 2026).

The Tidelands Resource Council and Pierhead Lines

“Tidelands” are fee simple. See O’Neil v. State Highway Dep’t, 50 N.J. 307, 323-24 (1967); see also N.J.S.A. 12-3-1 et. seq. (the “Tidelands Act”).  The Tidelands Act authorized the Tidelands Resource Council (“TRC”) to manage, lease, license or sell these lands.

Among its duties, the TRC is authorized to “fix and establish” pierhead lines – the line “beyond which no pier, wharf, bulkhead, erection, or permanent obstruction of any kind shall be maintained – “around or in front of all islands.”  N.J.S.A, 12:3-19.

At issue in this litigation was whether the TRC was required to establish pierhead lines around all New Jersey islands prospectively or whether it could set or modify the pierhead line in response to an individual application.

The Dispute Over the Length of Jibsail’s Dock

P.T. Jibsail Family Limited Partnership (“Jibsail”) purchased 83 Pershing Boulevard, a waterfront property on West Point Island in 2012.  Its predecessor had a waterfront development permit from the New Jersey Department of Environmental Protection (the “NJDEP”) and a seven-year license from the TRC to build a 128-foot dock. Upon application, the TRC granted Jibsail a ten-year license.

In March 2017, Jibsail applied to the NJDEP for a waterfront development permit and to the TRC for a modified tidelands license for a 185-foot dock. Jibsail’s neighbor, Janine Morris Trust (“JMT”), who has a 100-foot dock on its property, objected, arguing the extension endangered boaters and residents. The NJDEP granted e as well as the permit from the Army Corps of Engineers.  After the dock was built, the Army Corps of Engineers determined the dock was 1.7 feet south of the permitted location.  After Jibsail applied for a modified waterfront permit, both the Army Corps of Engineers and the NJDEP approved Jibsail’s application.

Next, in April 2019, Jibsail applied to the TRC for a modified tidelands license for the as-built dock and JMT opposed and requested an adjudicatory hearing on the original 2017 license and the proposed 2019 modification.  The NJDEP denied the request.

In May 2019, JMT then sent letters to the NJDEP, Army Corps of Engineers and the TRC arguing the extension created navigational hazards and impacted its right to use its own deck.  At a March 4, 2020 hearing on the license, JMT proffered testimony in support of the letter.  Other members of the public also expressed concerns about the dock’s impact on the environment, navigation and safety.

Jibsail countered that the length and shape of the dock extension was required by the NJDEP subaquatic vegetation rules, which required the dock to extend to four feet of water and that other neighbors had docks of similar size.

Both Jibsail and JMT submitted legal briefs to the TRC, which took the matter under consideration after the hearing.

In August 2022, JMT filed a Verified Complaint and Order to Show Cause seeking either a decision on the modified license or a second hearing.  On September 14, 2022, the TRC had a second public hearing and approved the license.

The Appellate Division Finds the TRC’s Decision to Be Reasonable

JMT appealed the TRC’s decision on both licenses. The Appellate Division affirmed the TRC’s decision finding it was not arbitrary, capricious or unreasonable.  Critical to the Court’s ruling was first that the TRC consider the prior approvals of the NJDEP and Army Corps of Engineers as well as conducting its own review of all hearing evidence before concluding “JMT’s concerns over the ability to safely navigate to and from its dock were without merit.”  It also noted that what was being granted was only tidelands licenses, not a grant which would have bestowed fee simple to the tidelands to Jibsail.  Finally, relying on Section 19 of the Tidelands Act, it rejected JMT’s argument that the TRC could not establish or modify pierhead lines through individual licenses.

In finding for the TRC, the Court focused on Section 19’s language that the TRC “shall from time to time, fix or establish, around or in front of all islands . . . exterior lines in said waters, beyond which no pier . . . shall be made or maintained.”

The New Jersey Supreme Court Confirms the TRC’s Authority to Modify Pierhead Lines Through Individual License

Justice Wainer Apter wrote the Opinion for the Court holding that the TRC could modify or establish pierhead lines around a New Jersey island in the context of reviewing an application for a tidelands license.  In doing so, Justice Wainer Apter conducted an extensive review of the legislative history of the Tidelands Act and authority bestowed on the TRC by it.

Justice Wainer Apter first focused on Section 12 of the Tidelands Act which “authorizes the TRC, at its discretion, to grant or lease tidelands ‘lying between what was, at any time heretofore, the original high-water line and the seawards jurisdiction of the State. i.e. up to three miles offshore.”  N.J.S.A. 12:3-12.  The TRC is charged to ensure the grant is in the public’s interest and the applicant pays fair market value for the grant and the grant or license must be approved by the NJDEP Commissioner and the Attorney General.

Justice Wainer Apter then turned to Section 19 of the Tidelands Act, which was the critical section for both parties’ arguments.  Section 19 provides that:

The Tidelands Resource Council, with the approval of the Commissioner of Environmental Protection and after consultation with the Army Corps of Engineers, shall, from time to time, fix and establish, around or in front of all islands, reefs and shoals situate in the tidal waters of this State, exterior lines in said waters, beyond which no pier, wharf, bulkhead, erection or permanent obstruction of any kind shall be made or maintained, and also the interior lines for solid filling in said waters, beyond which no permanent obstruction shall be made or maintained other than wharves and piers and erections thereon for commercial uses; provided, however, that no exterior line around or in front of any such island, reef or shoal shall be fixed and established in front of any riparian grant which was made prior to February tenth, one thousand eight hundred and ninety-one, unless such exterior line shall be fixed and established, after consultation with the Army Corps of Engineers, at such distance as will, in the judgment of the Tidelands Resource Council, leave sufficient waterway in front of said grants for navigation, and when the council shall have so fixed and established said lines after consultation as aforesaid, it shall file a survey and map thereof in the Office of the Secretary of State, showing the lines for piers and solid filling so fixed and established.

N.J.S.A. 12:3-19 (emphasis added)

Justice Wainer Apter began her analysis of Section 19 by turning to its bestowal of authority to the TRC to “from time to time, fix and establish, around or in front of all islands . . . exterior lines in said waters . . . beyond which no pier . . . of any kind shall be maintained.” Relying on common dictionary definitions, the Justice emphasized first the phrase “from time to time” means “occasionally” and thus the TRC is authorized to establish pierhead lines as it sees fit.  Next, the phrase “or in front of all islands” means the TRC is not mandated to establish one uniform pierhead line around each island and can establish a pierhead line in front of an individual property.

As to the petitioners’ argument that Section 19’s requirement that the TRC file a survey and map of all pierhead lines with the Secretary of State, the Justice noted that requirement was a section of Section 19 separated by a semi-colon and which began with the words “provided, however.”  That means that the requirement to file a survey and map creates one exception to the general rule that the TRC can draw pierhead lines as it sees fit. The proviso ends “and when the [TRC] shall have so fixed and established said lines after consultation as aforesaid, it shall file a survey and map thereof with the Secretary of State, showing the lines.”  Thus, the Court noted, Section 19 simply provides that the “TRC cannot place a pierhead line in front of any riparian grant made on or before February 10, 1891 [the date of the Tidelands Act}, unless it first consults with the Army Corps and determines the pierhead lines ‘leaves[s] sufficient waterway in front of said grant[ ] for navigation.’”  Here, there was no pre-1891 grant or license at issue.  The Court also relied on the fact that the TRC does not set pierhead lines prospectively and that the Legislature has never acted on the TRC’s failure to do so.

The Court then reaffirmed that its precedent in Bailey v. Driscoll, 19 N.J. 363 (1955) and Bailey v. Council, Division of Planning & Development, 22 N.J. 366 (1956) and the Appellate Division’s Opinion in Schultz v. Wilson, 44 N.J. Super 591 (App. Div. 1957) all supported the TRC’s ability to establish and modify pierhead lines in response to an individual license request.  In doing so, Justice Wainer Apter rejected the petitioners’ argument.  The repeal of N.J.S.A. 12:3-17 meant Schultz, in particular, was no longer good law.  The Justice then found Section 17, relied on in Schultz, never expressly approved the TRC setting pierhead lines; instead, it allowed upland owners to request surveys and maps of the tidelands adjoining the property and for the State to charge for such maps.  Thus, its repeal had no impact on the TRC’s authority to set pierhead lines.

Finally, the Court rejected the petitioner’s arguments that its interpretation of Section 19 of the Tidelands Act rendered other sections of the Act as inoperative as without merit.

Takeaways

This Opinion provides a thorough review of legislative history of New Jersey’s Tidelands Act and interpretation thereof.  Importantly,  it allows owners of a property adjacent to tidelands added flexibility in obtaining dock permits as long as they have approval from all requisite government agencies.

For a copy of the decision, please contact Michael O’Donnell at modonnell@riker.com.

Pennsylvania Federal Court Reinforces the Importance of Obtaining a Survey When Buying Property

Posted on by Jessica Haspel

What You Need to Know:

  • The survey exception in a title policy bars coverage when property boundary issues would have been revealed by an accurate survey prior to closing.
  • Courts will enforce the survey exception in standard title insurance policies, emphasizing that purchasers must perform due diligence before acquiring real estate.
  • Obtaining a survey and purchasing a survey endorsement helps to avoid this risk, as the endorsement provides coverage for the accuracy of the survey.
  • Contract-based claims cannot be reframed as tort claims under Pennsylvania’s gist-of-the-action doctrine.

In Messersmith v. CATIC Title Insurance Company, 2025 WL 3530275 (M.D. Pa. 2025), the United States District Court for the Middle District of Pennsylvania granted a title insurer’s motion to dismiss based on the survey exception present in the standard title policy, which precludes coverage for “[a]ny variation in location of lines or dimensions or other matters which any accurate survey would disclose.” Namely, the Court found because the insured opted not to obtain a survey, she was not covered when the house that she was living in was on a neighbor’s property.

Background of the Messersmith v. CATIC Title Insurance Dispute

Whitney Messersmith (“Plaintiff”) filed suit against CATIC Title Insurance Company after being notified the house she was living in was on her neighbor’s property. Plaintiff filed a title claim with defendant CATIC Title Insurance Company (“Defendant” or “CATIC”) and was told a survey was needed. After the survey was done, however, it revealed that the home was on the neighbor’s property. CATIC then denied the claim as Plaintiff had not obtained a survey prior to closing on the property and the home was not located on the insured property. In that vein, the standard Title Policy has what is commonly known in the industry as the Survey Exception.  The Survey Exception precludes coverage for “[a]ny variation in location of lines or dimensions or other matters which any accurate survey would disclose.”  To avoid this exception, the insured can obtain a survey and purchase a survey endorsement that insures the accuracy of the survey.

Plaintiff sued CATIC in the Pennsylvania Court of Common Pleas. CATIC removed the matter to the United States District Court for the Middle District of Pennsylvania.  CATIC then filed a motion to dismiss. Messersmith filed a cross-motion to remand. The Court first addressed the remand motion to confirm jurisdiction and then the motion to dismiss.

Federal Court Rejects “Direct Action” Argument and Confirms Jurisdiction

In the remand motion, Plaintiff argues that there was no diversity of citizenship required under 28 U.S.C. 1332 because this matter was a direct action against an insurer and in those actions, the insurer is deemed to have the same citizenship of the insurer. 28 U.S.C. 1332(c)(1)(a). The Court summarily rejected the argument. Relying on Third Circuit precedent, it found a direct action does not exist unless the cause of action is one where the liability to be imposed is one that could be imposed on the insured. That was not the case here. 

The Survey Exception Triumphs

As to the merits of the claim, Plaintiff argued that the subject policy’s Covered Risk 31 controlled, which provided coverage for “[t]he residence with the property address shown in Schedule A is not located on the land at the date of the policy.” CATIC argued the survey exception applied as an accurate survey would have shown that the land was not on the insured property. Thus CATIC argued that there was no coverage. Plaintiff countered that argument essentially reading Covered Risk 31 out of the policy.

The Court first noted that the title documents did show the house was located on the neighbor’s property and that meant the house was not on the property covered by the title policy. As such, the Court found the survey exception was applicable.  It noted that the exception was designed to “discourage homeowners from neglecting their due diligence when purchasing property – such as foregoing a survey or other matter to validate the purchase – simply because they have obtained a title policy.”  An accurate survey would have revealed that the home was on the neighbor’s land and that there was no coverage. The Court then also dismissed Plaintiff’s unjust enrichment and negligence claims as Pennsylvania’s “gist of action doctrine prevents purely contractual duty from serving the basis of a tort claim.”

Key Takeaways on Purchasing Property and Surveys

This decision is a powerful reminder of the importance of obtaining a survey in any purchase of real estate. The unfortunate circumstances of this case could have been eliminated if the insured had obtained a survey and had a survey endorsement added to the Title Policy. A survey endorsement to a title policy provides coverage for that survey’s accuracy in defining the insured property.

For a copy of the decision, please contact Michael O’Donnell at modonnell@riker.com.

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