27 Fla. 276 | Fla. | 1891
On the 23d of October, 1890, the State of Florida tiled its bill of complaint in equity in the circuit court for Clay county against the Black River Phosphate Company, a corporation organized under the law's of Florida-. The allegations and prayers of said bill, omitting its formal parts, are in the words following :
“(1.) The said company has for a year or more wrongfully, wilfully and unlawfully entered upon the bed of Black river, also known as 'Black Creek’ and has wrongfully, unlawfully and willfully dug,
“(2.) The bed of said river from which said phosphate rock and phosphatic- deposit was so taken, and is so being taken, is about one mile below Middleburg, in said county. The said river is at this point-, and above and below it, navigable, and is of depth sufficient for boats drawing three feet and more of water, and is capable, in its ordinary volume of water, of transporting the products of the forests and fields along its bank to market; and the said stream, at, above, and below the places in the bed thereof from which said phosphate rock and phosphatic deposit have been and are being so taken, is in fact used in its ordinary condition as a highway of commerce, upon which the products of the country have been and are transported to market, and said stream, at above, and below said points, is of sufficient depth and capacity for valuable floatage.
“ (3.) The said defendant company has so dug,
“(4.) Your orator is not advised of the proportion of said rook and deposit which said defendant has been and is taking from the bed of said river underlying the waters embraced between the ordinary water-mark on either side of said river, as distinguished from that taken from the bed underlying the channel thereof, but your orator avers that said defendant has been and is trespassing upon, digging, mining, removing, and appropriating said rook and deposit wrongfully, indiscriminately, from the entire bed covered by the water of said river at its ordinary volume.
“ (5.) Your orator has no information of the precise, quantity of said rock and deposit so dug, mined, removed, appropriated and sold, nor of the disposition made by the said defendant thereof, nor the price obtained therefor, as to all of which your orator avers
“(6.) And your orator further shows that said defendant threatens, and will, unless restrained by the order of this honorable court, continue to trespass and enter upon the bed of said river, and so dig, mine, remove, and appropriate said rock and deposit in the bed of said river, and that your orator is remediless, except in and by the process of this honorable court, to restrain and prevent the said trespassing and entering and digging, mining, removing and appropriation by said defendant company of said rock and deposit.
“And your orator prays that the said defendant, its officers, agents, employees, and servants, may be presently enjoined and restrained from trespassing and entering upon, the bed of said Black river, and from digging and mining therein, and from removing and from appropriating said phosphate rock and phosphat-ic deposit therein, and that at the hearing hereof the said defendant, its officers, agents, employees, and servants, be perpetually enjoined and restrained from trespassing and entering upon the bed of said Black river, and from digging and mining therein, and from removing therefrom, and from appropriating said rock and deposit therein; that it be referred to a master of this court to take and state an account, under the directions and instructions of this
To this bill the defendant below interposed a demurrer, assigning therein as grounds of demurrer the following:
“(1.) The allegations of said bill are too uncertain, vague and indefinite.
“(2.) The bill does not set out with sufficient certainty the claim of complainant in the subject-matter of the suit.
“(3.) The bill does not sufficiently set out title of complainant in the subject-matter of suit.
“(4.) The bill does not set out with sufficient certainty to what portion of the stream mentioned, or bed thereof, complainant’s claim extends.
“(5.) Complainant does not allege that said stream
'•(/).) And for other grounds appearing on the face of bill.”
Upon the.hearing of this demurrer the court below made the following order:
“This cause came on to be heard upon the demurrer to the bill filed herein, and was argued by counsel. Upon consideration thereof, the court is of opinion that Chapter 791 of the Laws of Florida vested in the riparian proprietors the feo in all lands covered by water lying in front of any tract of land owned by any citizen of the United States situated upon any navigable stream as far as the edge of the channel. While the act is entitled ‘ An act for the benefit of commerce,’ and the Legislature deemed it for the interest of commerce that all submerged land and water privileges should be improved, they granted the full title, to the same to the riparian proprietors, to induce them to incur the. expense of making the improvements which the legislature deemed important for the benefit of commerce. This seems to be the view entertained by the Supreme Court of this State in so far as it has expressed any opinion on the subject. Entertaining this view of the law, the court, does not deem it necessary to express any opinion upon the question as to whether
Prom this order sustaining the demurrer the complainant appeals to this court.
'It will be observed from these pleadings that no where therein does it- appear that the defendant in the bill, or any one else, owns, possesses, controls or claims any land bordering upon the margin of the stream mentioned, so as to give the defendant the status or rights of a riparian proprietor, whatever such rights may be found to be upon thorough judicial inquiry. And it nowhere appears in the pleadings or record that the alleged operations and trespasses of the defendant have been carried on or committed under or by virtue of any claim of light as riparian proprietor or otherwise, yet the court below, in passing upon this demurrer, seems to have based his ruling thereon upon the theory or supposition that the defendant is a riparian proprietor upon the stream in question, and that under the provisions of Chapter 791, Laws Florida, (sections 1, 2, pp. 689, 690, McClel. Dig.,) the fee in the bed of the stream in question, as far as the edge of the chan
The importance of a direct averment of a- present title or ownership in the State to the bed of the
. It follows that the order of the court below sustaining the demurrer to the bill must be affirmed, not, however, upon the grounds or for the reasons stated in the ojpinion of the court below sustaining the demurrer, but because of the insufficiency, uncertainty and vagueness of the allegations of the bill. The order appealed from is affirmed.