32 Fla. 82 | Fla. | 1893
The appellee, the Black River Phosphate Company, a body corporate under our laws, has been taking-phosphate from the bed of Black creek, or, as it is also called, Black river,. The company claims to be the owner of lands extending .to the water of that stream, which is both tidal and navigable in fact, and founds its claim of title to, or right of property in, such phosphate, as against the State, upon such riparian ownership and the act of December 27th, 1856, entitled, “An act to benefit commerce,” and commonly known as “The riparian act of 1856” (Sections 454, 455 Revised Statutes). The first section of this statute after reciting: “Whereas it is for the benefit of commerce, that wharves be built and warehouses erected for facilitating the landing and storage of goods; and -whereas, the State being the proprietor of all submerged lands and water privileges, within its boundaries, which prevents the riparian owners from improving their water lots: therefore,” enacts, “thatthe State of Florida for the considerations above mentioned, divest themselves of all right, title and interest to all lands covered by water lying in front of any tract of land, owned by a citizen of the United States or by the United States, for public purposes, lying upon any navigable stream, or bay of the sea, or harbor, as far as the edge of the channel, and hereby vest the full title to the same in and unto the riparian proprietors, giving them full right and privilege, to build wharves into streams or waters of the bay ' or harbor as far as
The cases in which the act has come before this court for consideration are, Geiger et al. vs. Filor et al., 8 Fla., 325; Alden et ux. vs. Pinney, 12 Fla., 348; Rivas and Koopman vs. Solary, 18 Fla., 122; Sullivan vs. Moreno, 19 Fla., 200; Ruge vs. Apalachicola O. C. & E. Co., 25 Fla., 656, 6 South. Rep., 480.
In Geiger vs. Filor, decided in 1859, the court having stated that by the laws of Spain, andEngland, the sovereign of neither country could have alienated the land covered by the water, then observes that the question is not raised “as to the power of the State to alienate, but whether the State has actually transfer
In Alden et ux. vs. Pinney (decided in 1869), it was found that a street intervened between the land of complainants and high water mark, and consequently that the complainants were not riparian proprietors, and that any full discussion of the effect of the statute was improper. It is, however, observed in connection with
In Rivas and Koopman vs. Solary (A. D. 1881), the opinion, after stating that ‘‘the question presented is, who has the better right to the wharf and to the submerged land beneath it,” asserts that Williams (under whom both parties claimed), as owner of lot 19, had all the interest which followed from the act of 1856, “which was all the right, title and interest of the State to the land covered by the water lying in front of his lot, subject to the trust that it was to be used for the purposes of commerce, as stated in the statute;” that this title was,attended with no other restrictions than those contained in the act, and that there was nothing in the act prohibiting his transfer subject to the same conditions that he held it on. That the effect of deeds to plaintiffs could not be extended so as to make them
Sullivan vs. Moreno (A. D. 1882), is, like Alden vs. Pinney, a case in which the court found that Moreno, who was seeking to enjoin Sullivan from constructing a wharf in front of his holding, did not show title to land extending to high water mark. The opinion
There is nothing in Ruge vs. Apalachicola O. C. & F. Co. that calls for any notice, at least at this point, further than that in the opinion of Maxwell, C. J., after remarking that in view of previous conclusions it was scarcely necessary to consider the effect of the riparian act, it is observed that if the Promenado Garden, a park dedicated to the public for health, recreation and amusement, really went to the shore, there may be a question whether the act vests any right to the water front as a public park; and that the use of it, meaning the submerged land, for such a purpose, meaning that of a park, is not within the contemplation of the act, and either the State holds it, or, if it goes to the promenade, it goes divested of the character of a park, and if used at all must be used for the benefit of commerce in the erection of wharves, warehouses and other buildings.
It is necessary to a proper solution of the question before us to ascertain the character of the title or holding of the State to the lands under navigable waters
In Commonwealth vs. Alger, 7 Cush., 65, it is said that by the common law of England, as it stood long-before the settlement of the colony of Massachusetts, the title to the land on property in the soil under the sea, and over which the tide waters ebbed and flowed, including flats on the sea shore lying between high and low water mark, was in the king as the representative of the sovereign power of the country. But it was held by a rule equally well settled that this right of property was held by the king in trust for public uses established by ancient custom or regulated by law, the' principal of which were for Ashing and navigation. These uses were held to be public, not only for the king’s subjects, but for foreigners, being subjects of states at peace with England, and coming to the ports and harbors of England with their ships and vessels for the piu-poses of trade and commerce. Again, it is observed in the same opinion: In this holding by the crown, two distinct rights are regarded: 1. The jus privatiom, or right of property in the soil which the king may grant and which may be held by a subject, and the grant of which will confer on the grantee such privileges and benefits as can be enjoyed therein subject to the jus publicum-, 2. The jus publicum, the royal perogative, by which the king holds such shores and navigable rivers for the common use and benefit of all the subjects, and indeed of all persons oC all nations at peace with England, who may have occasion to use them for the purposes of trade. This royal right, or jus publicum is held by the crown in trust for such common use and benefit, and can not be transferred to a subject or alienated, limited or restrained, by mere royal grant, without an act of parliament.
The specific nature of the trust in favor of all the ¡subjects of the realm, upon which in England the sovereign held the domain of navigable waters and shores, .and the soil thereunder, was that those subjects should have the free use of such waters and shores. The waters, though the domain over and right of property in them were in the crown, were of common right public for every subject to navigate upon and fish in without interruption; and though the right of property in the soil to high water mark was likewise in the king, yet the shore was also of common right public. The use of each was in the subjects for the inherent privileges of passage and navigation and fishing, as public rights, and since Magna Charter the king has had no power to obstruct navigation or grant an exclusive privilege of fishing; and the right of the people in this respect can not be restrained or counteracted by the sovereign as the legal and sole proxmetor. Any grant of the soil by the king is always subservient in the hands of the grantee to the public rights mentioned, .and is void in so far as it conflicts with these rights. Angell on Tide Waters, Chapter 1; Attorney-General vs. Parmeter, 10 Price, 378, 411; Attorney-General vs. Burridge, 10 Price, 360, 377; Duke of Somerset vs. Fogwell, 5 Barn. & Cress., 883, 884; Blundell vs. Catterall, 5 Barn. & Ald., 268; Martin vs. Waddell, 16 Peters, 367. In England the right of property in navigable waters, as stated above, being in the king, .he -could abate at his pleasure every purpresture or en
But when the revolution took place, says the Supreme Court of the United States, in Martin vs. Waddell, 16 Peters, 410, the people of each State became themselves sovereign, and in that character held 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; and a grant made by their authority must therefore be tried and determined by different principles from those which'apply to grants of the British crown when the title is held by a single-individual in trust for the whole nation. Commonwealth vs. Alger, 7 Cush., 53, 90, 92, 93.
And subsequently, in Pollard’s Lessee vs. Hagan. 3 How., 219, the Supreme Court decided that the shores of the navigable waters and the soils under them were not ceded by the original states through the Constitution to the United States, but were reserved by the states, subject however, to the power of the general government, under Section 8 of Article I of the Constitution, to -“regulate commerce with foreign nations and among the several states;” and further, that new states admitted into the Union on equal
■ As tending to illustrate the nature of the tenure of these waters and the lands under them, including the shore, and the use for which the same are intended, it may be remarked that the right of property of the general government in other-lands and waters, i. e. the uplands and non-navigable waters and the lands under the same — in the new states, and those in the original states granted by them to the United States, Pollard’s Lessee vs. Hagan (3 How., p. 224), was not affected by the attainment of statehood. Section 2 of Article IV of the Constitution of the United States; Pollard’s Lessee vs. Hagan, 3 How., p. 224. The reason of this distinction is, that this class of land and waters, when not held for forts, magazines, arsenals, dock-yards, or other needful buildings (Art. I, cl. 8, Section 17, Constitution), or for public parks or similar purposes, is not held for use as such by either the government or the people, but rather to the end that they shall finally become the subject of individual or several ownership
In Galveston City Surf Bathing Co. vs. Heindenheimer, 63 Texas, 563, it is held that there the Gulf shore and surf belong to the public; that every citizen has the same rights there as every other citizen, and none have the right to the exclusive use of this public property; and that any citizen of the state has the the right to erect a bath house in the surf, so that it is not made a nuisance, or so constructed or used as to materially interfere with the - rights of the public to the enjoyment of the waters and the shores of the Gulf.
In Weber vs. Harbor Commissioners, 18 Wall., 57, a case in which the the Harbor Commissioners of San Francisco, acting under a statute of California authorizing them to improve the harbor of that port, had caused piling, with capping and planking, to be put on both sides of a wharf which Weber had erected, and which extended into the navigable waters of the bay, such piling preventing any approach to the wharf by vessels, it is said, that by the common law the title to the shore of the sea and of the arms of the sea and in the soils under tide waters is, .in this country, in the State; and that any erection thereon without license is therefore deemed an encroachment upon the property of the sovereign, or as it is termed in the language of the law, a purpresture which he may re
In McCready vs. Virginia, 94 U. S., 391, which affirmed the validity of a statute of Virginiaprohibiting citizens of other states from planting oysters in the soil of that state covered by tide waters, the doctrine of the opinion is that each state owns the beds of all tide waters within its jurisdiction, unless the same have been granted away; and that in like manner it owns the tide waters themselves and the fish in them so far as they are capable of ownership while running; and that for the purpose of such ownership the state represents the people in their united sovereignty, the title thus held being subject to the paramount right of navigation, the regulation of which in respect to foreign and interstate commerce has been granted to the United States, there being, however, no such grant of power over fisheries. “The fisheries,” says the opinion, “remain under the exclusive control of the state, which has consquently the right, in its discretion, to
In Illinois Central Railroad Company vs. Illinois, 146 U. S., 387, it was held to be the well 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 several 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. And in this opinion it is said: That, by the common law, the doctrine of the dominion over and ownership by the crown of lands within the realm of England under tide waters 'was not founded upon the existence of the tide over the lands, but on the fact that the waters were navigable, tide waters and navigable waters being used as synonymous terms in England. That the public being interested in the use of such waters, the possession by private individuals of lands under them could not be permitted except by license of the crown, which could alone exercise such dominion over the'waters as would
Though the language of these decisions from the Supreme Court of the United States is broader or less restrained in the two former cases than in the last, yet, as intimated in the last, there is' no conflict of view in them, where the general expressions of the former are construed with reference to their respective ' facts — a point- beyond which the general observations of an opinion can not properly be carried or relied on. Of the facts of the second of them, McCready vs. Virginia, it is unnecessary to say more than is stated a' ove. In Weber vs. Harbor Commissioners, the legislature of California, by an act of March 26th, 1851, granted to the city of San Francisco, for ninety-nine years, the use and occupation of portions of the lands lying in front of the city and within a certain designated line, and declared that this line should be and remain a permanent water front of the city. It also provided that the city authorities should keep the space beyond the line, to the distance of five hundred yards, free
The facts in the case of the Illinois Central R. R. Co. vs. Illinois were, in short, and so far as they need be stated, that the railroad company constructed its roadway two hundred feet in width along the water front of the city of Chicago, on Lake Michigan, with tracks thereon and with guards against danger in its approach and crossings and a breakwater on the east beyond the tracks, and necessary works for the protection of the shore on the west, such works being constructed pursuant to the requirements of an ordinance of the city, under authority of law, as a condition of the city’s consent to the location by the company of its road within the corporate limits. As to these works,
It is entirely (dear that there is nothing in the Virginia and California cases that either called for or justified a precise definition of the nature of the tenure or trusts upon which lands below low water mark are held, or of the powers of the legislature, as the representative of the people, to dispose of them. The general assertions made in them were entirely sufficient-for the purposes of the cases under adjudication, and are not authority beyond the issues made therein. The power of the legislature of California to grant to San Francisco, as against the people of California, or even any one else, the submerged land out to the permanent water front, was not questioned in the California case, nor do the state or people of Virginia question the validity of that state’s oyster legislation
Excluding, as immaterial to the question before us, all rights growing out of interstate and foreign commerce under the Constitution of the United States, the result of these authorities is, that at the time of the passage of our riparian act the navigable waters of the State and the soil beneath them, including the shore or space between high and low water marks, were the property of the State, or of the people of the State in their united or sovereign capacity, and were held not for the purposes of sale or conversion into other values, or reduction into several or individual ownership, but for the use and enjoyment of the same by all the people of the State for, at least, the purposes of navigation and Ashing, and other implied purposes; and the law-making branch of the government of the-State considered as the fiduciary or representative of the people, were, when dealing with such lands and waters, limited in their powers by the real nature and purposes of the tenure of the same, and must be held to have acted with a due regard for the preservation of such lands and waters to the -uses for which they were held.
In construing this act not only are we to keep in view the real nature of the subject-matter, but it is to be judged in the light of the rule applicable to all grants by the government, which is that they are to-
The decision in Hoboken vs. Pennsylvania R. Co., 124 U. S., 656, is not in conflict’ with the above conclusions; and what was expressly stated in the legislation there as to benefits arising when the improvements should be made, is with equal force implied here to the extent stated above.
That such limited use of the lands was intended by the Legislature, is also shown by the last clause of the second section of the act, which clause reads: “also confirming to the riparian proprietors all improvements which may have heretofore been -made upon submerged lands, for the purposes within mentioned. ’ ’ Construing it as meaning to confirm to such proprietors only such improvements as had been made for the special purpose of facilitating the landing and storage of goods, or benefit of commerce, or as intending to confirm for the advancement of the purposes of the act
The only remaining provision of the act necessary to be discussed, under the facts of this case, is that giving to riparian proprietors the right to prevent encroachments of any other person upon all such submerged land in the direction of their lines continued to the channel, by bill in chancery or at law, and to have and maintain action of trespass in any court of competent jurisdiction in the State for any interference with such property. This provision is not, and .was not intended as, a grant of any property right, and can not be invoked as such. It is simply remedial in its nature, and gives nothing which would not flow to the riparian owner by implication from other parts of the statute. We must look to the rights granted by the act to ascertain what can be
Whether we should hold the word channel to mean merely the point of practical navigation, or give it an interpretation more favorable to the riparian owner, we are satisfied that the grant, construed as it is. above, is valid, but we can not admit that a disposition of the land under the entire water front of our actually navigable streams, bays and harbors on terms less favorable to the public would be so.
In interpreting this statute, we do not think we have given any effect to the preamble that the purview of the act does not itself sustain (Potter’s Dwarris, 267, 269); or have ignored or treated as surplusage any of the words of the statute, nor given too much force to any of them and .thereby given the law a meaning different from the intent shown by it as a whole; and the intent and purpose which we have as-scnbed to the law makers is founded upon the meaning of the words of the act considered as a whole and with reference to its subject-matter. So considered, the act in our judgment, does not import a broader meaning or different intent than we have given it. Potter’s Dwarris, 175, 194 and notes.
The decisions on the Massachusetts Colonial Ordi- ' nance are worthy of consideration in this connection. The ordinance as adopted in the year 1641 was: “Every inhabitant that is an house holder shall have free fishing and fowling in any great ponds and bayes, coves and rivers, so farre as the sea ebbes and flowes. within the precincts of the towne where they dwell,
Limited as is the right of the riparian proprietor under the Massachussetts ordinance, construed as it has-been in the light of the common law as to the right of the public in navigable waters and the lands thereunder, still we think there is a manifest distinction be- • tween that grant and our riparian act. There it was the manifest purpose to grant all that property in the shore that could be granted not inconsistent with the-right of passage, navigation and fishing referred to. The saving of the public rights there are to be found in the declaration as to free fishing and the proviso as to the passage of boats and vessels, and the common law principles above referred to. Here the right of " the public is not founded on a mere declaration, an exception or proviso, or saving clause, or application of the designated principles of law to a general grant, but in the fact that the beneficial right granted to the-riparian owner is special and limited, and carefully defined, manifesting the legislative intent that all that is not clearly carried by it should remain in the-public; and to this residuum of the public interest, the-legal title held by the riparian proprietor is as much subject as it would be if it remained in the State, charged with the same beneficial interest in his favor-which has been given to him by the statute. Granting that our riparian owners may maintain trespass against those who dig and carry away a part of the-soil, as it was held in Porter vs. Shehan, 7 Gray, 475, that the Massachusetts owner could where there was a. taking of “muscle-bed,” it must be upon the theory that such a trespass damages or impairs the right tc#> make improvements contemplated by the statute. Ex--
The statute of June 7th, 1887, Chapter 8826, pp. 280-1, pamphlet laws of that year, was full notice to the appellees of the policy of the State with reference to the phosphate deposits in her navigable waters; and that no one was to be permitted to take them except upon the terms therein prescribed. The provision of the first section of this statute, to the effect that the persons named in it should not in any way interfere with the free navigation of the navigable streams and waters of the State, or the private rights of any citizen residing upon or owning the lands upon the banks of said navigable rivers and waters of the State, can not be invoked as recognizing the right of a riparian owner to take the phosphates in such waters. He had no such right, nor does this act, taken as a whole, recognize any such right as existing in him. The subsequent legislation on this subject, in 1891, Chapter 4043 Revised Statutes, pp. 981-983, pp. 74-77 acts of 1891, as held by us in State ex rel. vs. Board of Phosphate Commissioners, 31 Fla., 558, 12 South. Rep., 913, clearly asserts the right of the State to these deposits as against the riparian owner; yet there is no ground for saying that our opinion there pretends to decide anything as to the controversy between the State and the riparian owner as to the ownership of such phosphates. Parties taking phosphates during the operations of either of such acts should pay for them at the prices fixed therein.
The oyster legislation of the years 1881, 1885 and 1887, tobe found in Sections 468 to 473, 2447, 2771, Rev. Stat-., is not antagonistic to these conclusions. The
We find in the opinions of our own court outside of one or two general expressions nothing that can be regarded as hostile to the conclusion we have reached, ■and certainly nothing that in view of the facts of ■ these cases can be taken as committing the court, as then constituted, to a contrary view. It is moreover :-a fact that in some of the opinions there are expressions which indicate a tendency to the views we have here announced, as in Rivas and Koopman vs. Solary, where it is said that the interest of the State which passed under the riparian act was “subject to the trust that it was to be used for the purpose of-commerce as stated in the statute;” and in Apalachicola Park case, where it was said by Judge Maxwell that -“if used at all it must be used for the benefit of commerce in the erection of wharves, warehouses a,nd -•other buildings.” And when it is said in Rivas, and Koopman vs. Solary that the right to build wharves •“was an incident to the proprietorship,” the meaning of the court was that the right to build appertained to the ownership of the part of the submerged land on which it might be proposed to build, and ■could not exist independent of that ownership, or in -The owner of the highland, or of any other part of the
The facts of this case, in that the riparian owner is taking phosphate in front of its own lands, render entirely unnecessary any' decision of the question which might arise if permission had been given under the the phosphate act of 1891, to one not a riparian owner, .and the owner claiming the benefit of. the riparian act was opposing the former’s exercise of the right in front ■of his lands. Jlere the riparian owner is not exercising-any right given him by the riparian statute, but is doing what he is not permitted to do without the consent ■of the State, and is moreover refusing to comply with the terms prescribed by the State as a condition precedent to his doing it.
As to the contention that the lands of appellee do not extend to “low water mark,” and hence áre not within the beneficial purposes of the statute, our conclusion, without further defining the last clause of the .second section of the riparian act, is that these lands are dry lands lying on the bank of the usual bed of
The view we have taken of the case relieves us from settling what is meant by the term channel, as used in the riparian act, and from saying whether ,or not the statute extends its benefits simply to. those who were riparian owners when it became a law, or also includes those who have subsequently become such by acquisition from the State or United States of lands bordering on navigable waters; and from construing the term £‘low water mark” used an the. second section further than is done above.
The objection that the supplemental bill, which is brought in the name of the State suing by its Attorney-General, as was the original bill, is not properly brought because of certain provisions of the phosphate act of 1891, is untenable. That act gives the Board of Phosphate Commissioners the control and management of the phosphate interests of the State, in the beds of her navigable waters, and of all the phosphate therein which may be dug, mined and removed therefrom, to the extent of the State’s interest, and also, inter alia, authorizes the board to institute all suits and legal proceedings in the name of the State, which may be necessary to protect the rights and interests of the State and to enforce the collection of all moneys due, or. which may become due to it on account of phosphate dug, mined or removed from her navigable waters, giving them authority to employ counsel at such reasonable compensation as in their opinion is right and proper. Conceding for the purpose of this
The decree will be reversed, and the cause remanded for proceedings not inconsistent with this opinion.
There are views expressed in the opinion of the court prepared by the Chief Justice in construing the riparian act of 1856 in which I am unable to concur. The theory of construction as applied to the act does not seem to me to be the correct one. That this act is valid is conceded. It has been recognized as valid in several decisions of this court, and in one— Rivas and Koopman vs. Solary, 18 Fla., 122—it has to some extent been construed on a state of facts making a construction proper. Conceding that the respondent, the Black River Phosphate Company, is entitled to the benefit of this act
It is unquestionably true that the grant should receive a strict construction as against the grantees, and nothing should be held to pass from the State that is not clearly within the meaning and terms of the grant. This is the general rule of construction applicable to the usual grants from the sovereign, and the nature of the property which is the subject of the grant under consideration, as will be further seen, makes the rule strictly applicable here. That the State of Florida in her sovereign capacity was, at the date of the act of 1856, the owner of the land mentioned in the act is beyond question. Judge Westcott says in Sullivan vs. Moreno, 19 Fla., 200: “Anterior to the act of 1856, Chapter 791, laws of this State, the title to the soil of navigable tide waters to the line of ordinary high tides was in the State of Florida, subject to the powers of Congress in the matter of regulating commerce under the Constitution of the United States. This, as a legal proposition, has been admitted as settled since the case of Pollard’s Lessee vs. Hagan, 3 How., 299.” This title, it is admitted, as shown by ample authority is not held by the same character of tenure that the State holds her ownership in the lands that constitute a part of the public domain, but it is held in trust for certain public purposes. These public purposes or uses for which the land covered by water and the shores bounding the same, are held, so far as I can ascertain from the decisions of the courts, grow out of the use of the water. These public rights are mentioned as relating to commerce and the rights of navigation, fishing and bathing, and they appertain to the
The title of the act is to benefit commerce. The inducements for the grant, or the ends to be accomplished by it, are expressed in a preamble to the act, and they are as follows: “Whereas it is for the benefit of commerce that wharves be built and warehouses erected for facilitating the landing and storage of goods; and whereas the State being the proprietor of all submerged lands and water privileges within its boundaries, which prevents the riparian owners from improving
After granting or vesting the full title in the riparian proprietors as above stated, and in the same connection with the granting words, this further language is used: “Giving them the full right and privilege to build wharves into streams or waters of the bay or harbor as far as may be necessary to effect the purposes described, and to fill up from the shore, bank or beach as far as may be desired, not obstructing the channel, but leaving full space for the requirements of commerce, and upon lands so filled in to erect warehouses or other buildings.” The right of the riparian proprietor to prevent encroachments by other persons upon the land granted, by bill in equity, or at law, and to maintain trespass for any interference with such property, and the confirmation to such proprietor of all improvements which had been made before the passage of the act upon submerged lands for the purposes therein mentioned, are also provided for in the act. As to this provision it can not of course be contended that because a remedy is given to prevent encroach-
Does the above quoted language of the grant limit of itself either the title or use of the land already granted? The vesting of the legal title to the lands covered by water in an individual, as has been stated, would not alone authorize him to replace the water, or do anything else in the water that did not belong of right to each individual of the community. The State’s title was held in trust and subordinate to the public rights in the water, which -we have seen are rights of commerce, navigation and fishing, and the bare transfer of the legal title to the citizen, would still leave him powerless to invade the navigable waters covering his land in such a way as to impair the rights of the public. To do this he would have to have legislative authority, and to the extent that the Legislature has power to replace tha jus publicum, it majr be conferred upon the citizen. It would then seem that the quoted language above, and referred to as limiting the use of the land granted, giving the grantees full right and privilege to construct wharves into the water and to fill up from the shore as far as may be desired, not obstructing the channel, but leaving full space for the requirements of commerce, confers additional rights than those given by the grant of the title. It authorizes the grantee of the legal title to invade the jus 'publicum, even to the extent of converting the space occupied by water into solid ground, and upon it to construct warehouses and other buildings. It seems to me that it is clear that this language was employed to confer this further
So long as the lands granted remain submerged, the trust character of the title attaches, and the gov
My view of the case calls for a consideration of what is the channel of Black river, and- whether or not the-appellee dug any phosphate out of it prior to the passage of the act of 1891, and also whether or not the State has any status in this case by filing the-supplemental bill demanding an account for phosphatt dug since the act of 1891 went into effect, but I do noe deem it necessary to go into these questions. The-opinion does not undertake to deal with, them, and no difference of opinion would probably exist in reference to them.