Daniel F. Sullivan, Appellant, vs. James N. Moreno, Appellee, 19 Fla. 200

Mr. Justice Westcott delivered the opinion of the court. From the preceding very full statement of this case it will be seen that it is one in which the plaintiff, as an alleged riparian proprietor, seeks to enjoin the defendant.from constructing a wharf and from depositing stone, sand and other material immediately in front of property alleged to be his, and, we presume, between it and “ the edge of the channel ” of the bay of Pensacola. 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 power’s 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. In 1856, under

an act of the Legislature, the State of Florida divested 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 lying upon any navigable stream or bay of the. sea or harbor as far as to the edge of the channel, and vested the full title to the same in the ripai’ian proprietors, giving them the full right and privilege to build wdiarves 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 ware-houses or other buildings.

The riparian proprietor was also given 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 this State for any interference with such property.” The act provides further that the grant therein contained shall not 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 grant therein 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.” This statute and the rights resulting to riparian proprietors was, to some extent, considered in the case of Alden and Wife vs.

Pinney, 12 Fla., 348, and the case of Rivas & Koopman vs. Solary, 18 Fla., 122. In the first case we held that the evidence failed to show that the complainant, or those whose title and right he claimed, had a water boundary in 1856, and that it was immaterial to inquire whether the rights granted by the State enured to any other than one, in the words of the statute, “ owning lands 'actually bounded by and extending to low water mark.” In other words, whether the owner to the line of ordinary high tides was embraced in the statute.

In the second case each of the parties claimed through a common source of title, and it was admitted that the parties through whom they claimed held to low water mark.

In the first case we also held that if plaintiff had shown himself a riparian proprietor, there would have been such existing and threatened injuries of a special nature, coupled with other circumstances, that he would have been entitled under the statute to the aid of a court of equity to prevent special injury to himself, but that not having such proprietorship he did not present a case of special injury, independent of riparian ownership, calling for the intervention of a court of equity.

As to the present case, the plaintiff presents it here in two aspects : First, as an alleged riparian proprietor; and, second, as a possessor of the submerged land; either of which, it is claimed, entitles him to the- interference of a court of equity in his behalf.

Looking to the allegations of the bill and the denials and their nature made in the answer, we do not think, under the rules controlling applications for special injunction upon bill and answer to stay irreparable injury in case of repeated trespasses or nuisances, that the Chancellor could porperly have acted upon the hypothesis of riparian ownership in plaintiff, either to ordinary high tides or to low water mark.

What is the rule in such cases ? “ Upon the filing of an injunction bill the defendant may, at his option, immediately put in his answer to prevent the issuing of the writ, and the court is bound to consider such answer and give it due weight if filed before the application for the injunction is disposed of.” The rule, as thus announced, is not very definite, as what constitutes “ due weight ” is a matter still left open for controversy.

After a careful examination of the eases bearing upon the subject we think in cases where the bill justifies an injunction,.the rule is the same, as that which prevails upon motion to dissolve an injunction upon the coming in of the answer. Chancellor Bland discussing this subject in Hall vs.

McPherson, 3 Bland’s Chancery, 532, says : “ If a defendant should hear of such a bill ” (bill for injunction) “ being on its way to the Chancellor it does not seem to me that there can be any sound regulation which should hinder him from following the bill to the tribunal and instantly presenting his answer so as to prevent the imposition of the threatened restriction.

An injunction may be dissolved on the coming in of an answer which positively denies all the facts upon which the equity of the bill is founded; hence it would be strange indeed to refuse to look at such an answer presented together with the bill and to grant an injunction which must soon and inevitably be dissolved. I am, therefore, of the opinion that this answer must be now read and considered.” The rule in cases of motions to dissolve an injunction upon bill and answer has been frequently stated in this State. The leading ease upon the subject is that of Carter vs. Bennett et al., 6 Fla., 236.

In that case the court say: “ We believe it to be the almost universal practice that if the answer fully denies all the circumstances upon which the equity is founded, credit is given to the answer and the injunction dissolved.” This practice, however, is not without exceptions. Chanceller Kent in Roberts vs. Anderson, 2 John. Chy.

Rep., says: “ That even where all the equity of the bill is denied by the answer it is not of course to dissolve the injunction; as the granting and continuing an injunction rests always in the sound discretion of the court to be governed by the nature of the case.” (See also Linton vs. Denham, 6 Fla., 533 ; Allen vs. Hawley, 6 Fla., 142.) We must consider this as the rule now controlling in this State, except to the extent that it is modified by the provisions of

Chapter 1098, laws enacted since the decisions of the cases cited under which the parties are authorized in cases where the “ defendant in his answer shall have denied the statements of the bill or of the accompanying affidavit, either party thereto shall have the right to introduce evidence in support or denial of the bill and accompanying affidavit or answer.” In which case his action must be controlled by the “ weight of the evidence.” For a very extended and able discussion of the matter of receiving and reading affidavits after answer, where an injunction is sought to be dissolved in cases of alleged or irreparable injury, see the opinion of Judge Story in Poor vs.

Carlton, 3 Sum., 70. In this case no such “ evidence ” was introduced. The case stood upon bill and answer and exhibits constituting a part of the bill or answer. At the same time the right of the plaintiff to present such evidence must be remembered, and the non* exercise of this right, if the circumstances called for it, must have its influence. In view of the rule announced, should the Chancellor in this case have acted upon the supposition of riparian proprietorship in the plaintiff ?

Plaintiff alleges that Francisco Moreno, the party through whom he claims title, had for more than thirty years owned and possessed the parcels of land lying on the bay of Pensacola between Barracks street and Adams street, the said Moreno having been for all that time in quiet possession and enjoyment of all the rights of a riparian owner. This is by no means an accurate statement of riparian ownership. This party may have owned lands lying on the bay of Pensacola in the sense of aspect, and he does not say here that the bay was his boundary.

If he owned lands some distance from the line of high tides or “ low water mark,” with no intervening obstacle or structure, it can be said that it was property “ lying ” upon the bay. . What constitutes riparian.proprietorship is a water boundary either at high or low tide as may be the law, and a statement of boundary of such indefinite character, when the matter of boundary is of essential importance and so readily stated, is not sufficient to base an application for an injunction upon.

The claim which the plaintiff makes, viewed in the aspect in which we are now treating it, is based upon title to the locus in quo, and the rule in cases where an injunction' is sought to restrain a nuisance on the ground of special private injury to property is that the bill must set out the title clearly.

Granting injunctions to stay waste upon similar ground of alleged irreparable and continuing injury in cases not arising out of privity of contract or title, but between strangers, is governed by rules not more strict as to the matter of distinct and clear allegations of title than is the granting of injunctions to stay continuing trespasses or injuries to property through a nuisance operating to hinder and defeat the legitimate use of such property by the owner thereof. De Sallis vs. Crosson, 1 B. & Beat., 188 ; Eden on Inj., §233.

In order to obtain injunction to stay waste the particular title must be set out. (Whiteleg vs. Whiteleg, 1 Brown’s Chancery Reports, 57.) Nor will the court entertain a motion for an injunction in the nature of a writ of estressment, (which was a writ issuing from a court of law to stay irreparable injury pending a real action, 1 Bland’s Chancery, 574,) except when the allegation of title is clear and particular. Note to Whiteleg vs. Whiteleg, 1 Brown’s Chancery Reports, 57, and cases there cited ; Davis vs. Leo, 6 Ves., 787 ; Daniell’s Chy. Prac., Cooper’s Ed., 1669.

Eor the reasons given and from careful examination of the cases controlling the subject we think a statement of the ownership of land between two streets which run to the bay, and as lying upon the bay, is not suelda statement of ownership as necessarily imports a water boundary, and that the bill is wanting in particularity in allegation in this respect. Lying upon the bay does not necessarily mean bounded by the bay. Again plaintiff alleges that the party through whom he claims title had for thirty years been in quiet possession and enjoyment of all the rights of a riparian owner.

This upon its face is not an allegation of riparian ownership. It is simply that the rights of such an owner wex-e exex’cised by this party, and this is perfectly consistent with the position of a squatter without color of title exercising the rights of the true owner without being such. An allegation of ownership of lands lying on the bay and enjoyment of all the rights of a riparian owner is not an allegation of ownership of land having a water boundary, either to the line of high tides or to low water mark.

But however this may be, lobking to the rules controlling the matter upon the hearing upon the bill and answer, we cannot doubt that the injunction should have been denied. We have seen that the plaintiff claims title through Erancisco Moreno. He is thus particular and special in stating the source of his title.

The answer not only denies in responsive terms that this party was even a riparian proprietor, but the defendant affirms that Francisco Moreno owned lots I and H, as marked on the Spanish plan of the city; that these lots are the lots as to which complainant asserts riparian proprietorship, and that “ said lots are now and always have been bounded on the south by a public way, street or common lying between the south boundary of said lots and the shore line of Pensacola bay.” What purports to be a copy of the Spanish plan of the city showing the location of the lots is given with the answer, and the statement of the defendant corresponds with the boundaries thus given.

In addition to this defendant produces a certified copy of the deed under which he alleges Francisco Moreno claimed title. The southern boundary is in that given as being “ on the south by the street on Pensacola bay,” and it is apparent from it, and the allegations of the answer in reference to it are, that a street does thus constitute the southern boundary. With a bill thus uncertain in its allegations, and an answer thus explicit and responsive, no action based uponriparian ownership should havebeen taken.

Especially is this true when the plaintiff fails even to respond to all this by an affidavit showing his right. This non-action is almost equivalent to an acquiescence or confession. In this view of the case we think the action of the court, if based upon riparian ownership, was not sustained. What is here said upon the question of nuisance and the allegations of the plaintiff upon that subject may be very properly read in this connection.

It remains only to consider the claim which the plaintiff makes by virtue of his occupancy of a portion of the water front by his wood and coal yard and the wharf which he has constructed a short distance from them out into the water. Plaintiff insists that “ possession alone is title, and he who hath such title can hold against every one but him who hath a title superior to it.” This is unquestionably law, (Seymour & Simpson vs. Creswell, 18 Fla., 39, 40;) but we do not see in this case any interference by defendant with plaintiffs possession of his yard or wharf, or with any right incident to such possession.

Defendant’s structures are some distance in front of the occupancy of plaintiff. A. in possession of one piece of land cannot be said to be interfering with the possession of B. if the land occupied by B. is not the same land. This is not, however, the claim which the plaintiff makes here. What he claims is a right to the use of the water in front of his yard and wharf, and that by -virtue of his occupancy or possession of such yard and wharf.

The title to all this soil from the water line to the edge of the channel, with the right to fill it in with stone or other material, which he may see proper to use in the construction of structures beneficial to commerce, is in the riparian proprietor of 1856 or his grantee, whoever he may be, (Rivas & Koopman vs. Solary, 18 Fla., 126,) and a subsequent simple possession by the plaintiff, even if it be adverse, would not give him any right beyond that of possession of the place actually occupied by him as against one not- having a better title.

Under that act the title to the soil vested in the then riparian proprietor, coupled with the trust to use it for the benefit of commerce, and a subsequent simple occupancy of such portion of the land by another person as gave the original proprietor thé riparian right, would be limited in its effect to rights attending actual occupation of land. Whether as between grantor and grantee, a riparian boundary, in the absence of contrary intention shown, carries by legal presumption the right to-the soil to the edge of the channel, (Valentine vs.

Piper, 2 Pick., 94,) such a presumption as operates in a highway boundary to carry the fee to the centre of the highway, we do not say, for it is not here necessary to decide that-question. What we do say is that simple occupancy and possession of part of the soil between the lines of ordinary high tides and the edge of the channel does not give a right to redress injuries to anything beyond that which is in actual occupation. Here the right to prevent the construction of this wharf is in the riparian proprietor.

It is not in one who is simply occupying a different and other part of the soil between the wharf being constructed and the shore line. The right to prevent the construction of wharves here by a stranger is incident to the ownership of the soil upon which they are to be constructed. As to the matter of nuisance or no nuisance— The plaintiff in his bill alleges generally that the structures and deposits complained of are in the navigable waters of Pensacola bay, but what their relative position is with reference to the edge of the channel is not given.

Nor are there such statements of fact as show their effect upon the general commerce of the port to be injurious. The defendant says in his answer that the wharf extends along the channel in twelve feet water, and that the deflection eastward from the line of Barracks street was necessary for the accommodation of ships and other vessels. The argument here seems based upon the view that the construction of wharves and the placing of sand, ballast and other like material in the navigable waters of a tide-water bay or harbor, is per se a nuisance in this State.

We think this an ei’ror. “ In England the right of property in tide waters and in the soil thereof is by the common law in the King, and the King, or in this country as a general rule the State, may abate every invasion thereon, whether the same be a nuisance to the navigation or not.” Such an intrusion is denominated a purpresture, and while the old, writers say that it might be committed either against the King, the Lord of .the Fee or any other subject, in its ordinary acception at the present day it means any encroachment upon the sovereign, either in highways, rivers or streets or harbors.

Angell on Tide Waters, 199 ; Eden on Injunctions, 259; 2 Inst., 38, 272. A wharf is therefore a purpresture, the construction of which was subject to sovereign control, and the deposit of stone or other like material in navigable waters was subject to like control by the State by virtue of its right to the soil and its duty to protect the commerce of the port or harbor.

The sovereign here, the State of Florida, has declared that the building of wharves is for the benefit of commerce, and has authorized the construction of wharves generally in such ports or harbors and the deposit of proper material to fill up from the shore as far as maybe desired, “ not obstructing the channel, but leaving full space for the requirements of commerce.” The construction of a wharf and the filling up of the space between the shore line and the channel is therefore authorized, and the stoppage of the navigation of the heretofore navigable waters lying between the shore line and the channel becomes legal if it be of such nature as is consistent with the limitation placed by the sovereign upon the authority given.

From this the result follows that a plaintiff makes no case of nuisance by a simple allegation of' the construction of a wharf and the deposit of material in the navigable waters of a bay or harbor, for those acts are authorized by the sovereign,- and they do not become the subject of complaint at the suit, either of the State or any other party, unless they obstruct commerce. True, the riparian proprietor may object; not on the ground of nuisance, however, but by virtue of his right to the soil and his consequent exclusive right to build the wharf and make the deposit himself.

He complains just as he would of any other improper appropriation or use of his property. We think plaintiff fails in the matter of making a case in this view. His allegations are not sufficient. A few words generally upon this subject that the court may be fully understood. Under the legislation of this State the navigation of tide waters of a bay between the line of the shore and the channel is made subordinate to the general commercial requirements of the port or harbor. Indeed it may be generally said that the law is that navigation, while a part of commerce, is subordinate to it.

That which benefits commercee may decrease the facility tor navigation. Filling in from the shore line to the channel on each side of a bay to that extent decreases the navigable area of such bay, but if it be a benefit to commerce by enabling vessels of heavy tonnage to have speedy discharge or otherwise the sovereign has authorized, it and it is lawful. Says Holroyd, Justice, in The King vs.

Russell, 6 Barn. & Cress., 270: “ The right of the public upon the waters of a port or navigable river is not confined to the purposes of passage; trade and commerce are the chief objects, and the right of passage is chiefly subservient to those ends. Unless there are facilities of loading and unloading of shipping and landing much of the benefit of a public port is lost. In the infancy of a port, when it is first applied to the purposes of trade and commerce, unless the water by the shore be deep, the articles must be shipped in shallow water from the shore and landed in shallow water on the shore.

Boats or vessels of small draft must be employed to fetch and carry from and to the shore, and the commodity must pass from boat to ship or from ship to boat. Breakage and pilferage and waste, besides the expense of boating, are some of the probable concomitants of such a mode. As trade advances the inconvenience and mischief of this mode are suspended by the erection of wharves and quays, and what is perhaps an improved species of loading wharf, a staith. The loading or unloading is then immediate from the wharf or staith into the ship or from the ship upon the wharf.

But upon what principle can the erection of a wharf or staith be supported ? It narrows the right of passage. It occupies a space where boats before had navigated. It turns part of the water way into solid ground ; but it advances some of the other purposes, the main purpose of a port, its trade and commerce. “ Is there any other legal principle upon which they can be allowed ? Make an erection for pleasure, for whim, for caprice, and if it interferes in the last degree with the public right of passage it is a nuisance.

Erect it for the pur poses of trade and commerce, and keep it applied to the purposes of trade and commerce, the interests of trade and commerce give it a protection, and it is a justifiable erection, not a nuisance.” It results from what has been said that this case as presented upon the hearing of the bill and answer was not such as would justify awarding an injunction. The plaintiff in the Circuit Court, the respondent here, calls our attention to the rule that appellate tribunals as a general rule are loth to interfere with the exercise of this power by the Chancellor.

In this we agree with him, but it must be obvious to one who understands this case as we do that the failure to exercise the power here would be its practical abdication. The order granting an injunction is reversed and the case is remanded for further proceedings. A staith is defined to be “ the line of rails forming the extremity of a railway, and generally occurring next to navigable waters, being laid on platforms for discharging coal, &c., into vessels.”