75 Fla. 28 | Fla. | 1917
Lead Opinion
In an action to recover damages for filling in from the shore line towards the channel opposite plaintiff’s land upon the waters of Pensacola Bay in Esambia County, Florida, the court directed a verdict for the defendants and the plaintiff took writ of error to the final judgment for the defendants.
The statute under which the action is brought is as follows:
“643. An act entitled ‘An act to benefit commerce, approved December 27, 1856, and the grants therein made shall remain in force, which act is as follows:
“ ‘Whereas it is for the benefit of commerce that wharves be built and warehouses erected for facilitating the landing and storing 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,
“ ‘The State of Florida, for the consideration above mentioned, divests itself 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
“644. Nothing in this article contained shall be so construed as to release the title of the State of Florida, or any of its grantees, to any of the swamp or overflowed lands within the limits of the same, but the grants herein contained shall be limited to those persons and bodies corporate owning lands actually bounded by, and extending to low water mark, on such navigable streams, bays and harbors.” Secs. 643, 644 Gen. Stats. 1906, Compiled Laws 1914.
Without objection on the part of the defendants, the plaintiff offered in evidence a written conveyance by Spanish authority dated December 31, 1813, covering “One Lot known by the number 369 (three hundred and sixty-nine) containing ninety-five feet front by one hun
It appears that a Lot numbered 368 lies north of Lot 369, which Lot 368 extends north to Zarragossa Street. It also appears that a“dumxxxy” railroad track now exists between the water axxd the uplands of Lot. 369. In the plaintiff’s chain of title the description is “East half of •lots three hundred and sixty-eight and three hundred
Frank Caro testified on behalf of plaintiff: “I have known that property since 1882. There was a fence running east and west, but there was a lot run down to the bay.” “There was no fence to the south. In fact it was open to the bay.”
Another witness, C. P. Bobe, whose grandfather had owned the lot, testified that “This lot came down pretty close to the water or to the beach, before the wharf or the terminal track was built. My recollection is that
Mr. ' Albert Riera testified on. re-direct: “I cannot state whether or not this lot ran down to the ordinary high water.” This testimony, as well as that of other witnesses, does not show that Lot 369 actually extended to the waters of the Bay. There is testimony that the plaintiff and his predecessors in occupancy of Lot 369 used the submerged lands in front of the lot, with wharves, &c., but this use does not confer riparian rights under the statute. The lot must be actually bounded by and extended to low water mark of the navigable bay for the riparian rights under the statute to attach. The maps put in evidence by both' parties indicate that the lot did not extend to the waters of the bay.
In 1892 the predecessor in title of the plaintiff executed to The Pensacola Terminal Company a lease of “a right of way fifteen feet in width along and across the water front of the Bay of Pensacola, City of Pensacola, said State and County, now owned by the party of the first part, south of the premises now owned, occupied and under enclosure by the party of the first part, known and described as the East one-half of Lot number three hundred and sixty-nine (369) in Block number one (1), according to the plan of the Old City of Pensacola, in said State and County, fronting forty-seven (47) feet front on the Bay, of Pensacola to the edge of the channel of said Bay, the said right of way to extend from the Eastern to the Western boundaries of the said described property of the party of the first part.” This description is not of a lot actually bounded by and
The plaintiff’s claim is predicated upon the grant of riparian rights contained in Chapter 791 Acts of December 27, 1856, entitled “An Act to Benefit Commerce,” Sections 643, 644 General Statutes of Florida, 1906, Florida Compiled Laws, 1914; and the defendants’ claim is based on Chapter 4802 Acts of 1889, entitled “An Act to Grant the Water Front of the City of Pensacola.”
While a verdict should not be directed for one party when there is evidence on which the jury may lawfully find for the opposite party, yet where the burden is on the plaintiff to prove all the essential elements to sustain
Judgment affirmed.
Dissenting Opinion
dissenting. — I regret that I cannot concur in the decision in this case, but I am too firmly convinced by the evidence, both documentary and paro!, that the lot in question extended to and was bounded by the Bay, and that Thiesen was a riparian owner, to do olherwise. The earliest deed introduced in evidence iu support of plaintiff’s title was one from Lorenzo Vitrain, syndic, to Antonio Montero dated December 31st, 1813, and contained this description: “One lot known by the number 369 (three hundred and sixty-nine) containing ninety-five feet front, by one hundred and thirty-one feet three inches in depth, fronting on the Bay.”
The majority of the court hold that “Taken alone the words ‘fronting on the Bay,’ certainly cannot be held to be sufficient to show that the land was actually bounded by, and extended to the waters of a navigable Bay.”
In view of the testimony as to the south boundary of
The description which was thus construed to mean fronting on tide water and carrying with it certain riparian rights, did not say as description in the instant case says, that the land fronted on the water, but merely said “Front thirty rod,” and the court held that as there was no road for it to front on, and as land is not usually described as fronting on land, and as the Mills lot evidently fronted on something, found that that something was Fore River. There is no necessity for me. to resort to such fine reasoning to reach the conclusion that the lot in controversy fronted on the Bay, for the deed states so specifically, and the Mills case cited supra abundantly supports my position that the words “fronting on the Bay” carry with them the right to the lowlands lying between the upland and the waters of the Bay, and the riparian rights thereto attaching.
A very strong and well reasoned case, copiously supported by authorities’, on the question involved in the one under consideration, is that of Morgan v. Livingston, 6 Martin, O. S. (La.) 19. It is instructive in that it gives the Spanish and French terms used in descriptions in deeds and their translations, and their force and purport when expressed in English. The original deed unon which Thiesen’s title is predicated was in Spanish, and was executed while Florida was a Spanish possession, and the words used in the description should be given the meaning which was intended by them. If the Spaniards used the expression “Frente al Bayou” to designate a lot bounded by the Bay, we should not defeat that purpose and say they meant aspect and not boundary, because they did not use our more labored
In none of the cases which I have cited have the descriptive words been as strong and clear as in the instant case. One uses the term “front thirty rod,” another “front to the river,” but in both cases it was held that these words conveyed a riparious estate. Had
So far I have discussed only the proposition advanced by the majority of-the court, that “Talien alone the words ‘fronting on the Bay’ certainly cannot be held to be sufficient to show that the land was ‘actually bounded by, and extended to, the waters of the navigable Bay.’ ” But, as I said in the opening part of this opinion, this description need not, and should.not, be “taken alone,” but must be taken in connection with the evidence in the case. The Superior Court of the Territory of Florida considered that the lot extended to the Bay, because in the U. S. Marshal’s deed to Francis Bobe dated August 31st, 1841, it is described as “the Eastern half of said lots, numbered three hundred and sixty-eight, and three hundred and sixty-nine, situated in the City of Pensacola, and containing forty-seven and a half feet front on Zarragosa Street, and extending back two hundred and sixty-one feet and three inches to the Bay of Pensacola, and fronting thereon forty feet.”
In 1875 Francis W. Bobe sold the lot to Elias Lee, and in 1878, Elias and Mary Lee reconveyed it to Bobe, and in both deeds the land was described as “extending back two hundred and sixty-one feet and three inches to the Bay of Pensacola and fronting thereon * * * be the said fronts and depths more or less.” Beginning with the deed from Bobe to Lee, we find in all the descriptions to this lot the words “be the front and depth more or less,” a clear recognition that since the earlier deeds there had been an accretion to this lot. The adminis
The Commissioners in making a deed to Walters returned to the paper dimensions of the lot, but fised the significant words “be the front and depth more or less.”
In 1892, Walters, a predecessor in title of Thiesen, leased “a right of way 15 feet in width along and across the water front of the Bay of Pensacola, City of Pensacola, said State and County, now owned by * * * fronting 47 feet on the Bay of Pensacola to the edge of the channel of said bay * * * and the said party of the second part especially agrees not to interfere with the water front and the riparian rights of the party of the first part south of the said right of way to the edge of the channel of the Bay of Pensacola all of which riparian
The deed from Walters to Thiesen changed the phraseology of the description a bit, but did not alter its i i port. It reads: “running through to Pensacola Bay, being two hundred and sixty-one 1-4 feet, and having a frontage on said bay of forty-seven and a half feet.” In ail the descriptions in the various documents from Vitrian’s deed to Walters, I find an effort to convey a lot fronting on the Bay, — and I use the term “fronting on the Bay,” advisedly, as I am satisfied that theoretically, philologically and legally it describes a lot “actually bounded by and extending to the Bay,” in the absence of anything to show a contrary intent.
I take it, that the natural meaning of the words “fronting on the Bay,” and “fronting on the street,” mean boundary and not aspect and consequently whoever contends for the unusual constructions, assumes the burden of proof, and until he meets the requirement, the natural, obvious, common sense, everyday meaning of the words should be accepted.
I pass now to another phase of the case. Assuming there was doubt about the boundaries of this lot, it was a question of fact to have been decided by the jury. It is a settled rule in this State that “When there is room for a differnce of opinion between reasonable men as to the proof of facts from which an ultimate fact is sought to be established, or when there is room for such differences as to the inferences which might be drawn from conceded
The testimony of old and reliable citizens like Mr. Albert Riera and others who testify for the plaintiff as to the ancient boundary of the lot, was as specific as possible on the question of, whether the land owned by the predecesssor in title to the plaintiff, was originally bound by and extended to the waters of the navigable bay. The extensive fills which have been made for miles, along the water front of Pensacola in the last thirty or forty years have, caused the shore line of the unfilled lots to recede, so- that a lot which an hundred years ago extended one hundred and thirty-one feet to the waters of the bay, may now extend much farther by reason of such recissions.
“The rule governing additions made to land, bounded by a river, lake, or sea, has been much discussed and variously settled by usage and by positive law. Almost all jurists and legislators, however, both ancient and modern, have agreed that the owner of the land, thus bounded, is entitled to these additions. By some, the rule has been vindicated on the principle of natural justice, that he who sustains the burden of losses and of repairs, imposed by the contiguity of waters, ought to. receive whatever benefits they may bring by accretion; by others, it is derived from the principle of public policy, that it is the interest of the community that all land should have an owner, and most convenient, that insensible additions to the shore should follow the title to the shore itself.” Banks v. Ogden, 2 Wall. (U.S.) 57, text 67.
Charles P. Bobe testified: “I do not think the lot went quite to the water after the wharf was built. Walters
William Cline testified that 38 years ago there was a wharf and bath houses on the property and that he had seen boats landed there. “The lot went out in the water, fishermen brought the boats there and loaded them there when they were going to sea.” He had seen fish boats land there more than thirty years ago. “The wharf was knocked down several times by storms and floating timber, but was built back again.” Describing the south end of the lot he said “The sand that Mr. Bobe put there seeped out and was washed out with every blow and made land. Where there was water before there was land afterwards. It was made land. Boats were pulled right up on the lot from the bay before the road was built there.”
Frank Caro has known the lot since 1882. “The fence ran down to the water, the fence on the western side and the eastern side. The wharfs were maintained there and somtimes the storm would wash the wharf down and he would replace it. Several times. Boats landed there. At high tide the water would go right up in front of the place, pretty near in the yard. In low tide you could walk out. There was a fence running east and west but there was a lot run down to the bay. There was no fence to the south side of it at all. It was open to the bay.”
Mr. Albert Riera is 73 years old, has lived in Pensacola all his life except while in the Confederate Army. He testified: “I knew that lot before the war. The lot on the west side of my father’s was always known as the ‘Bobe lot.’ The lot on the west side of that was the Hernandez lot. There was a fence between my father's and Bobe’s lot. I do not think the back portion of that Bobe
The doctrine of the Anderson case, cited supra, is thus stated in the fourth headnote: “A party in moving for a directed verdict, admits not only the facts stated in the evidence adduced, but also admits every conclusion favorable to the adverse party that a jury might fairly and reasonably infer from the evidence.”
There is no denial that the plaintiff and his predecessor in title had been in actual possession of this lot for upwards of fifty years, living on the dry part of it, and using the water front for the benefit of such commerce as existed at that time and in that locality, and built such wharves as such commerce required. It is true the wharves built by Bobe and Walters and Thiesen were not as large as those built by the railroad which seeks to take from the owner his riparian rights without just compensation, nor was the commerce of that day and locality as great as that now handled by the railroad, but I fail to find in the Act of 1856 a distinction based upon the size
The cases of Alden v. Pinney, 12 Fla. 348, and Sullivan v. Moreno, 19 Fla. 200, hinged, as in this case, on the question of fact whether the- lot in controversy had a water boundary. I quote from the opinion of Judge Westcott in the Alden v. Pinney case: “This leads us to the consideration of the case upon the proofs ,and the first question to be determined is: Has the complainant established that the ‘southern boundary of the lot’ conveyed to Gonzalez on the 19th February, 1827, from whom he derives title,, ‘was the bay,’ or that it extended to the line of ordinary high tides in calm weather at that time? What may be the effect of the reservation of Lot E for a market house and store house, as designated on the plan of the Cabildo, we do not determine, as no point is made of it by defendants, and we treat the case as though an absolute and proprietary right is in the complainant to whatever passed under the deed. The question of boundary here is a fact to be determined by a consideration of the whole evidence.” (Text p. 381.)
In discussing whether certain calls in the deed indicated aspect or boundary Judge Westcott said: “These terms, therefore, must receive that constructioh and signification which is most consistent with the other calls and the evidence in the case.” (Text p. 382.)
In the case of Sullivan v. Moreno a public way, street, or common," lay between the Moreno land and the bay, and the lot was described as bounded “on the south by a street of the Pensacola Bay,” and the question of Moreno’s riparian ownership was decided on the ground that his deed described his south boundary as- “a street on the Pensacola bay.” In neither of these cases was the
Because of the “differences of opinion” between the members of this court, “as to the inferences which might be drawn from conceded facts,” I think I am justified in .saying that “there is room for a difference of opinion between reasonable men,” and the case comes well within the rule of Anderson v. Southern Cotton Oil Co., cited supra, and that the court erred in directing a verdict for the defendant.
Chapter 4802 Laws of Florida, Acts of 1899, which sought to dispose of certain parts of the water front of the City of Pensacola is ineffective to deprive a person of riparian rights, if such existed prior to the passage of the act. The part which it is claimed affects the parties to this suit, is that which provides in effect that if any person claiming riparian rights under the act of 1856, failed to make application for the same within two years before pertain commissioners named in the act, the commissioners should make a deed to the City of Pensacola for all such lots or portion of such lots for which no application was filed. It is contended by defendant in error that because the owner of the land in controversy did not make applicaiton for a deed to the lowlands in front of his lot, the same became forfeited and title thereto passed, to the City of Pensacola.
The act of 1856 imposed the conditions under which a riparian owner could, acquire the right to the use of lands covered by water adjacent to his property; and divested itself of “all rights, title and interest to all lands covered by water lying in front of any tract of land owned by any citizen of the United States .* * * lying upon any
This title is not contingent or dependent upon the erection of wharves or the filling in of the shore, bank or beach.
The State having divested itself of all rights, title and interest in such lands, and granted the same to the riparian proprietors, had no power thereafter to impose new and additional burdens or obligations upon such riparian proprietors. The title to the lands covered by water which the riparian owner derived from the grant of 1856, is as absolute as a title derived from any other source, and the Legislature was without power to impose conditions upon him by which he would be divested of his title upon non-compliance of the same.
Assuming however that the Legislature had the power sought to be exercised by the act of 1899, the method pursued was clearly unconstitutional, in that it undertook to create a Judicial tribunal not authorized by the constitution, and in contravention thereof. Notwithstanding the act of 1899 designated the parties who were to carry into effect the.provisions of the act, “commissioners,” the powers conferred upon them were judicial. They were to receive, file and record claims to real estate and rights appurtenant thereto; they were given power to summon and swear witnesses, to hear testimony and receive evidence, and finally to determine the rights of persons to whom grants were made and such determination was conclusive as to such rights. That it was intended for these acts to be judicial is apparent from Section 7, which refers to the finding of the commissioners as an “adjudication.”
I think the court erred in refusing to permit the plain
In 1826 Congress enacted “That all of the decisions made by the Commissioners, appointed to ascertain claims and titles to lands in the District of West Florida, made in favor of claimants to lands and lots in said District, contained in the Reports, opinions, and Abstracts of the Commissioners, which have been submitted to the Secretary of the Interior, according to law, be and the same are hereby confirmed.”
The parts of the report offered in evidence, objections to which were sustained by the court are as follows, “The lots in Pensacola do not belong to the King but to individuals and their dimensions carry them to the waters edge at high tide.” “The line in front was one of admeasurement, and not entirely a line of boundary and the lot was sold per aversionem, and not ad mensuram; that is, it was disposed of in the gross, and not by the measure, or so much the acre.”
The Supreme Court of the United States has decided that The American State Papers, published under revision of the United States Senate, contained authentic papers which are admissible as evidence without further proof. Bryan v. Forsyth, 19 How. 334; Gregg v. Forsyth, 24 How. 179.
I am very strongly convinced that the judgment in this case should be reversed, not only on account of the error in directing a verdict for the defendants, but on account of the other errors which I have discussed.
Rehearing
ON PETITION FOR REHEARING.
The plaintiff in error filed a petition for
This contention was not distinctly made either in the briefs or the oral argument. The case was argued upon the theory that the cause of action rested upon and the evidence established the ownership by the plaintiff of the submerged lands between high and low water mark in front of the lot which fronted on the bay. The case was decided with reference to that single contention. The court saying, in effect that to acquire any rights under the riparian act of 1856, Laws of Florida, the owner of the land fronting on the bay should own the land to low water mark, and as there was no evidence whatever in the record that the plaintiff in error nor his predecessor in title owned the land to low water mark, he acquired no rights under the act of 1856.
The effect of this decision was to hold that title to the foreshore, that is to land between high and low water mark on bays, harbors or navigable streams cannot be acquired by prescription. The title being in the State for the benefit of the public the statute of limitations does not run.
It is however now insisted in the petition for rehearing that the owner of the lot mentioned in the pleadings claimed a common law right as riparian owner. That is to say the right of ingress and egress over the waters of. the bay to and from his lot and the right to bathe and fish in those waters, and as that right depends merely upon the fronting of the lot on the bay, that is to say, the extension of the lot to high water mark there was evi
With this proposition the court finds no fault, as it is of the opinion now, and was when the case was considered, that “there is room for difference of opinion between reasonable men” as to whether the boundaries of Lot No. 369 extended to the high water mark of the bay. '
We have therefore examined the pleadings as thoroughly as the condition of the record and manner of its makeup permits with the view of ascertaining whether there was any issue resting upon common law rights of riparian ownership.
There are six counts to the declaration. The first two, filed in October, 1914; the third and fourth counts filed in June, 1915; the fifth count on February 7th, 1916, and the sixth count February 18th, 1916. The third and fourth counts went out upon demurrer, and the order was made the basis of the second assignment of error. These two counts were distinctly intended to be framed upon the rights alleged to have accrued to plaintiff's predecessor in title under the act of 1856. The fifth count distinctly asserts ownership in the plaintiff of the submerged lands in front of lot 369 on the bay side, while the sixth count seems to be an effort to allege byway' of inference and innuendo the plaintiff's right, under the act of 1856. It alleges that when the plaintiff acquired the lot he was a citizen of the United States, a condition precedent to the taking effect of the grant; that he exercised the right to construct wharves and other water front rights on the submerged lands, and that he had constructed wharves and docks on the south side of the lot. The plea to this count seem not to have been replied to so that the case apparently went to trial
The second count of the declaration seems to be framed upon the theory that the plaintiff through his predecessors in title had acquired a title by prescription to the submerged land whereby he had the right to build wharves and bathhouses in the waters on the bay side of his lot, and such right had been interfered with by the defendant.
The first count of the declaration by treating certain portions of it as surplusage may be regarded as a declaration upon the common law right of a riparian owner. The first plea to both counts, the plea of not guilty, and the first “further plea” to the first count, seem to have been framed in the view that they would be applicable in case the first count was construed as a declaration on the common law right of a riparian owner.
It is our conviction from the pleadings in this case that the plaintiff’s case was begun and tried upon the theory that he or his predecessors in title acquired rights under the act of 1856 or by prescription, and that the idea of insisting on the common law rights which the plaintiff had if his' land- did actually extend to the waters of the bay occurred at a later time. We did however overlook the fact that the first count of the declaration could by eliminating a large part of it as surplusage, be treated as a declaration upon the common law right of riparian ownership and interference therewith by the defendant, and while the history of the case as disclosed by the record shows that such was not regarded as the basis of the complaint, yet in deference
A rehearing is ordered.
Rehearing
ON REHEARING.
The plaintiff in error brought suit in the Court of Record of Escambia County against the Gulf, Florida & Alabama Railway Company and the Eastern Construction Company for damages which the plaintiff-claimed he had sustained because the defendants had, by filling in the submerged land in front of plaintiff’s lot which he alleged extended to the waters of Pensacola Bay, deprived him of his rights as a riparian owner.
The case came on for trial upon the issues joined, and after. hearing the evidence and argument of counsel the court instructed the jury to find for the defendants. Final .judgment was entered upon the verdict and the plaintiff took a writ of error.
In .an' opinion filed November 3rd, 1917, this court affirmed the judgment upon the theory that the plaintiff having based his action upon the act of 1856 entitled “An Act to benefit commerce,” commonly known in this State as the “Riparian Act,” and having failed to prove that the lot in question was actually bounded by and extended to,low water mark of the bay which Avas essential to sustain his claim for. damages the affirmative charge given by the judge in defendant’s favor was correct.
At common law lands which were bounded by and extended to the high water mark of waters in which the tide ebbed and flowed were riparian or littoral to such waters. See Broward v. Mabry, 58 Fla. 398, 50 South. Rep. 826; Pollard’s Lessees v. Hagan, 3 How. (U. S.) 212, text 219; Sullivan v. Moreno, 19 Fla. 200; State ex rel. Ellis v. Gerbing, 56 Fla. 603, 47 South. Rep. 353; Ferry Pass Inspectors’ & Shippers’ Ass’n v. Whiter River Inspectors’ & Shippers’ Ass’n, 57 Fla. 399, 48 South. Rep. 643; Gould on Water’s, Sec. 148; Lyon v. Fishmongers’ Co., L. R. 1 App. Cas. 662. And applying the common law doctrine to the subject in this State the title to the soil under such waters to the high water mark is in the State of Florida subject to the power's of Congress to regulate commerce. See Sullivan v. Moreno, supra; Broward v. Mabry, supra. The title however is held in trust for the people who have the rights of navigating, fishing, bathing and commerce upon and in the waters.
The first count of the declaration alleges that the plaintiff is the owner in fee simple and has the possession of the East half of Lot 369 of Block One of the Old City of Pensacola and for more than twenty years prior to the acts complained of the lot had a southern boundary upon the waters of Pensacola Bay, and during
This count of the declaration rests upon a right which the plaintiff alleges he has as owner of Lot 369 to have ingress and egress to and from his lot over the waters of the bay and to construct and maintain wharves, piers, docks and bathhouses on the south or shore side of the lot between the lot and the channel of the bay.
In so far as the declaration alleges the right of ingress and egress to and from the lot over the waters of the bay, it states a common law right appertaining to riparian proprietorship. The common law riparian proprietor enjoys this right and that of unobstructed view over the waters and in common with the public the right
The count does not allege that the boundary of plaintiff's lot extended to low water mark, but it does allege rights to exist in the plaintiff which are conferred by the statute of 1856, sections 643 and 644 of the General Statutes, 1906, if at the time of the passage of the act the owner of the lot was a citizen of the United States and the boundaries of the lot extended to low water mark. If tie count should be tested and made to stand or fall by the allegations as to plaintiff's right to build wharves, docks, piers, etc., rights which as stated are secured by the act of 1856, we should be constrained
As a count based solely upon the statute it may have been subject to demurrer for lack of certain material allegations, but as it appears from the pleadings and was stated in the -oral argument by counsel that the parties treated the count as a declaration upon the common law right, we will so treat it here, and consider whether the allegations as to plaintiff’s right to construct and maintain wharves, piers, etc., to the channel should be eliminated as surplusage.
Counsel for plaintiff in error in their last brief say that the right to “construct wharves, piers and docks and exercise other waterfront privileges are rights that belong to riparian owners under the common law,” and “the books are full of cases showing the common law rights and how they have been exercised both in England and this country.” In view of the fact that the declaration is based upon the plaintiff’s asserted right to “construct and maintain wharves and bathhouses and other water front rights” between the “lot and the channel of the bay,” we regret that counsel deemed it unnecessary to cite a single case or text-book supporting • the plaintiff’s declaration if it is construed to be based upon the right in the plaintiff to construct docks, piers and other buildings from the shore beyond low. water mark out to the channel. We have made a diligent search of the books for such a doctrine but have been unable to find a single authority, in support of it.
It is perfectly clear that the legislature of 1856 did not consider the doctrine as announced by plaintiff’s counsel to be so well settled, otherwise Chapter 791 may
If the owners of lots which extended only to high water mark had the right at common law to construct wharves, docks and piers out into the bay to the channel, to “wharf out” as the saying is, the act of 1856 was superfluous. In fact it rather hinders than facilitates the purpose of its enactment by confining the privileges granted to the owners of such lots as were bounded by and extended to low water mark.
The right did not exist at common law. In Hale’s Treatise DeJure Maris, Hargrave, it is stated that the ground between ordinary high water mark and low water mark is owned by the sovereign but not for his exclusive use and profit, but in trust for the common benefit of all his subjects. Any intrusion by the owner of the upland upon the shore between high and low water mark was unlawful and was treated either as a purpresture or a nuisance. See Angell on Tide Waters, Chap. VII; Moore’s History of the Foreshore, 370; 3 American Jurist, 185-190; Respublica v. Caldwell, 1 Dallas Rep. 150. In the case of Dutton v. Strong, 1 Black (U. S.) 22, the Supreme Court of the United States' speaking through Mr. Justice Clifford, said: “Where piers and landing places and wharves are constructed by the riparian pro
Mr. Angell in his work on Tide Waters recognizes the doctrine of the common law that the right of property in tide waters and in the soil thereof is in this country in the State, and the State may abate every intrusion thereon whether the same be a nuisance to the navigation or not. Angell on Tide Waters, Chap. VII. At the same time says he,, “it is well known that in the respective States which lie along the margin of the Atlantic there are many places where the tide ebbs and flows,” and which therefore are public, “that are of no navigable use and in their original condition without the aid of art and industry afford to the public little or no advantage of any kind.” Flats and marshes covered with water only at full tide. In many cases such waste places have been built up, docks or piers run over them to navigable water by the riparian proprietor and the public have been thereby very considerably the gainers. But that condition in no wise affects the common law, but is one which commends itself to the legislatures of the respective states for
The case of Railroad Company v. Schurmeir, 7 Wall. (U. S.) 272, the Supreme Court of the United States again through Mr. Justice Clifford said that riparian proprietors on navigable streams have the right to construct suitable landings and wharves for the convenience of commerce, and cited Dutton v. Strong, supra, in support of the doctrine. In Yates v. Milwaukee, 10 Wall. (U. S.) 497, Mr. Justice Miller speaking for the court said: “But whether the title of the owner of such a lot extends beyond the dry land or not, he is certainly entitled to the rights of a riparian proprietor whose land is bounded by a navigable stream; and among those rights are access to the navigable part of the river from the front of his lot, the right to make a landing, wharf or pier for his own use or for the use of the public, subject to such general rules and regulations as the legislature may see proper to impose for the protection of the rights of the public whatever those may be.” But that case does not recognize the right of the riparian owner to build wharves beyond the low water mark to the channel.
In the case of St. Anthony Falls Water-Power Co. v. St. Paul Water Commissioners, 168 U. S. 349, 18 Sup. Ct. Rep. 157, the court was of the opinion that the property rights of a riparian owner of land on navigable waters are to be measured by the rules and decisions of the State within whose boundaries the particular land lies. In Barney v. Keokuk, 94 U. S. 324, it was recognized as the law that the title and rights of riparian proprietors upon the banks of the Mississippi were to be settled by the states within which the lands were included. That case was cited in St. Anthony Falls Water-Power Co. v. St. Paul Water Commissioners, supra, in support of the doc
This court has several times indicated the extent of the rights of a riparian owner upon navigable streams. In Ferry Pass Inspectors’ and Shippers’ Association v. Whites River Inspectors’ and Shippers’ Association, supra, the court speaking through Mr. Justice Whitfield, said: “Riparian lights are incident to the ownership of lands contiguous to and bordering on navigable waters. The common law rights of riparian owners with reference to the navigable waters are incident to the ownership of the uplands that extend to high water mark.” “Among the common law rights of those who own land bordering on navigable waters apart from rights of alluvion and reliction are the right of access to the- water from the land for navigation and other purposes expressed or implied by law the right to a reasonable use of the water for domestic purposes,” etc., enumerating other uses incident to the waters of a navigable stream. Continuing the court said: “Subject to the superior rights of the public as to navigation and commerce and to the concurrent rights of the public as to fishing and bathing and the like, a riparian owner may erect upon the bed and shores adjacent to his riparian holdings, bath houses, wharves or other structures to facilitate his business or pleasure; but these privileges are subject to the rights of the public to be enforced by proper public authority or by
In-Merrill-Stevens Co. v. Durkee, 62 Fla. 549, 57 South. Rep. 428, the court said: “The owner of land abutting on navigable waters had no exclusive right in the waters below ordinary high water mark or in the lands under the waters except the right of -access to and from the navigable waters and rights in the land growing out of accretion or reliction.”
In this State because of its great coast line and many navigable rivprs and lakes and the number of bays and harbors and lowlands, there are many places where the tide ebbs and flows, or which are covered by ordinary high water that are of no navigable use, but which according to the common law belong to the public, and because of this condition the owners of riparian lands in many instances have exercised the- privilege of constructing wharves or piers to the navigable water's. Such structures however are none the less purprestures in law or nuisances if they amount to a damage to the port or navigation and cannot be considered as a right appurtentant to the upland. The right to build wharves into the streams or waters of the bay or harbor and to fill up from the shore and to build upon the lands so filled in, was granted by- the act of 1856, but the grant was limited to those whose lands were actually bounded by and extended to low water mark. Sections 643 and 644 General Statutes, 1906. We think therefore that so much of the first count of the declaration that alleges a right in the plaintiff to construct and' maintain wharves and bathhouses and other Waterfront rights on the south or shore side of the' lot between it and the channel of the bay, should be eliminated as -surplusage.
The question of title is the next point involved. The declaration alleges in- the first count that the plaintiff
It is -contended' by defendant that there is no evidence that -the title to- the -lot in question ever passed out of the Spanish Government, hence it was acquired by’ the United States Government upon the cession of Florida to the- United • States-, and that there is' no evidence that the title has ever passed out of the United States Government.
If the title to the lot in question passed to the United States Governrrent when Florida was acquired from Spain by the Treaty of 1819, which was the case if the Government of Spain had not before that time conveyed its title to some person, then the plea of defendant denying title in the plaintiff was sustained and there was no error in the peremptory charge for the defendant. If however Spain had divested herself of title by sale or grant prior to the acquisition of the territory of tire United States and such sale or grant was confirmed by the Commissioners of Lands Claims in West Florida, or by Act of Congress or by judgment of a court, then the plea was not sustained so far as this point was involved.
The plaintiff offered in evidence a copy of-the record of a deed from Lorenzo .Vitrian, Sindick to Antonio Montero dated December 31, 1813, conveying Lot No. 369 in Pensacola. The dimensions of the lot are given as ninety-five feet front by one hundréd and-thirty-one feet three- inches in depth “fronting on the bay.” Also a
In 1822 Congress passed an act “for ascertaining claims and titles to land within the territory of Florida.” Under this act Oommisisoners- were- appointed -for the purpose of ascertaining -the claim and titles to lands within the territory of Florida as acquired by the treaty of 1819. . These Commisisoners were a board of inquiry, said Mr. Chief Justice Marshall, and not a court exercising judicial power and deciding finally -on titles. The Commissioners were to examine into and report to Congress such claims as ought to be confirmed. The purpose of the act under which the Commissioners were appointed was to ascertain the claims and their location, preliminary to the sale by the government of public lands. “The refusal of the Commissioners to report a claim for confirmation was not considered as a final
-dieial decision on the claim binding the title of the party, but as a rejection for the purpose of the act.” See United States v. Percheman, 7 Peters (U. S.) 51, 8 L. Ed. 604.
Section 1 of the Act of Congress entitled “An Act to confirm the reports of the Commissioners for ascertaining claims and titles to lands in- West Florida and for other purposes” approved April 22, 1826, confirms all the “decisions n ade by the Commissioners” in favor of claimants to lands and lots- in the district' “contained
The American State Papers, Volume 4, is a publication made under the authority of the Senate of the United States and contains documents, legislative and executive, of the Congress of the United States in relation to public lands. This volume contains the .reports of the Commisisoners appointed under the act approved in 1822, entitled “An Act for ascertaining claims and titles to land within the territory of Florida.” These documents are received in evidence without other proof ,of their authenticity than the published volume. See Sullivan v. Richardson, 33 Fla. 1, 14 South. Rep. 692.
An examination of the reports of the Co rmissioners shows a list of lots sold in Pensacola at public judicial sale by order of the “Superiority” of the town in December, 1813, and January, 1814. Lot No. 369 was adjudged to Don Antonio Montero according to this list. It seems from the reports that a question had arisen as to the authority of the town officials to sell the lots listed because they were laid off upon or contiguous to squares which under the British rule of the territory had been designated in the place of t|he town as public squares. British purchasers of lots fronting upon or contiguous to these squares had as the report shows acquired certain rights with which the replatting of the town interfered. When the Spaniards acquired the territory no alteration of the town plan was thought of for many years until the “mines of Mexico ceased to pour their floods of gold into the coffers of the provincial Government.” Then in 1802 thé first alteration was made. In 1806 Superintendent General Morales disapproved of the project and refused to confirih the titles given by Governor
It is significant that neither in the abstract of claims to lots which were rejected by the Commissioners and listed under the letter “K” above referred to, nor in the abstract of claims to lots which the Commissioners reported to Congress-, pursuant to their conclusion that certain claims should be referred to Congress for settlement and which they listed under the letter “L” does lot numbered 369 appear. It is apparent to us that the Commissioners did not regard lot No. 369 which .was sold
- In view of these facts we think the entry in Schedule “F” No. 47 deals with lot 369 and that the second figure of the number 399 appearing in that entry as the lot number is a typographical - error and the lot number appearing in that entry should-be- 369 instead of 399.
It is unnecessary' to discuss the assignment of' error based upon the court’s ruling' sustaining defendant’s objection to the reading in evidence of the certified copy of the judgment of Bobe v. Hanna and his wife, because as there appeared a break in the chain of plaintiff’s title from- Barrios to M. Hanna and the Widow McPherson the deed -from the United States Marshal to Bobe purporting to convey the lot involved* in this litigation was offered and received in evidence as color of title and there was evidence enough to go to the jury upon the question of plaintiff’s title to', the- lot based upon possession by him and his grantors for more than twenty years. Upon the question of the boundaries óf the'lot we said in the opinion granting a- rehearing in this case that “there is room for difference' of opinion between reasonable men as to whether the boundaries of Lot. No. 369 extended to high water mark of the bay.” A re-examination of the evidence in this case confirms us in this view. In that casé the question should not have been taken from the jury by a .peremptory charge. ' See Anderson v. Southern Cotton Oil Co., 73 Fla. 432, 74 South. Rep. 975, L. R. A. (N. S.) 1917 E. 715.
The defendants pleaded that the submerged land, lying south of the lot, between ordinary high water mark and a point where the waters of the Bay in the direction of the channel reached the pier head line was granted' by the Legislature of Florida to the City of Pensacola and that the city granted the same to' the defendánt railway
The plea rests upon Chapter 4802 Laws of Florida, 1899. The second section of the act purports to grant to the City of Pensacola, except as otherwise provided in the act, the space west of Alcaniz Street and east of Barcelona Street and south of Hickory Street and the spaces included in a map of the water front of the city adopted by the Provisional Municipality to the east of Alcaniz street and to the west of Barcelona street covered by water “exceeding at this time twelve feet in depth, such spaces to be held by the city in perpetual trust for the public and to remain forever open to navigation and free access to the streets and wharves on the streets running north and south and to such other streets as the city may by ordinance lay out in any direction over any part of the space covered by this act from the intersection of any now existing street with the shore line to the southern limit of such space.” Section, one of the act provides that it is the object of the act to dispose of all the land in front of the City of Pensacola embraced within the limits of the map of said waterfront above mentioned “and the grants herein made are of the streets and lots as laid down on said map.” Section 8
This act undertakes to deprive without compensation the owner of lots,’ the boundaries of -which extend to high water mark-of the Bay, lying within-the area covered by the map of the water front referred to in, the act, of their rights under the common -law - as riparian, owners. We have said that the - rights of a riparian owner at
Mr. Farnham in his work on the “Law of Waters and Water Rights” in Volume 1, page 297 says: “It thus appearing from the preceding sections that at common law the riparian owner has a right of access -to the stream which cannot be destroyed even for the improvement of navigation without making compensation to the owner, the right should be much more fully protected in this country where the constitutions prevent the. taking of private property for public use withiut' making compensation. And the general rule is that the rights are protected.” He observes however that a few of the- courts have refused to recognize a right of property in the riparian owner, or have held that it was subordinate to the public right, so that they have permitted the right to be cut off without , any redress or compensation. See Yates v. Milwaukee, supra; Van Dolsen v. Mayor of New York, 21 Blatchf. (U. S.) 453; Myers v. City of St. Louis, 82 Mo. 367; Clark v. Cambridge & A. Irr. & Imp. Co., 45 Neb. 798, 64 N. W. Rep. 239; Clark v. Peckham, 10 R. I. 35.
Mr. Justice Miller in Yates v. Milwaukee, speaking for the Supreme Court of the United States, said: “This riparian right is property and is valuable, and, though it must be enjoyed in due subjection to the rights of the public, it cannot be arbitrarily or capriciously destroyed or impaired. It is a right of which when- once vested, the owner can only be deprived in accordance with established law, and if necessary that it be- ta'ken-for the public good, upon due compensation.” See also Potomac Steam-boat Co. v. Upper Potomac. Steam-boat
Riparian rights -we think are property,' and being so the right to-take it for-public use' without - compensation does not exist. The fronting-of á lot1 upon a navigable stream or bay often constitutes its- chief valué and desirability whether for residence "or business purpose.- The right of access to the property-over the-water, the unob; structed view- of the bay and the- enjoyment of the privileges of: the waters incident to ownership of the bordering land would not in many cases be exchanged for the price of an-inland lot in the same vicinity. In many cases doubtless the riparian rights incident to the ownership of the land were the principal if not sole inducement leading to its purchase by one and the reason -for the price charged by the seller. - :
The owner of land bounded by tide water may maintain an action against a railroad' corporation constructing its road by authority of the legislature so as to cut off his access to the water is held in Williams v. Mayor of New York, 105 N. Y. 419, 11 N. E. Rep. 829; Rumsey v. New York, N. E. R. Co., 133 N. Y. 79, 30 N. E. Rep. 654.
We do nof appreciate the force of the argument that thé State as owner of the submerged land between high and low water mark should not in the event it desires to improve the water front for navigation-be' required to pay to the owner Of the upland a just compensation for injury tó his property incident to such public enterprise. But this- is not such a case. A- railroad company operated by private capital, controlled by private individuals, conducts its business for private gain is seeking- to utilize the water front for its own use but claims immunity
The plea of justification under this statute we think was not good, and the démurrer should therefore have been sustained.
The judgment of the court below is reversed.'
