Merrill-Stevens Company, a Corporation, Appellant, v. Jay H. Durkee, et al., Appellees, 62 Fla. 549

Whitfield, C. J., (after stating the facts.) — The main question to be determined is whether the allegations of the bill of complaint that are admitted by the demurrer show the encroachments complained of to be upon the exclusive riparian rights of the complainant in the lands under the waters of the navigable stream.

At common law, all navigable waters and the lands thereunder were held by the sovereign for the benefit of the whole people, and 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.

Upon its admission into the Federal Union by Act of Congress of March 3rd, 1845, the State of Florida by virtue of its sovereignty assumed title to and sovereignty over the navigable waters in the State and the lands thereunder. Such title is held not for purposes of sale or conversion into other values, or for reduction into several or individual ownership, but for the use of all the people of the State for purposes of navigation, commerce, fishing and other useful purposes afforded by the waters.

The State may in the interest of the public welfare, grant limited rights in portions of the lands under navigable waters within its borders, or may permit the use thereof, when the rights of the whole people of the State as to navigation and other uses of the waters are not materially impaired.

The rights of the people of the State in the navigable waters and the lands thereunder including the shores or spaces between ordinary high and low water marks, are designed for the public welfare, and the State may regulate such rights and the uses of the waters and the lands thereunder for the benefit of the whole people of the State as circumstances may demand, subject of course to the powers of Congress in the premises.

For the purpose of aiding navigation or commerce, or of encouraging new industries and the development of natural or artificial resources in the interest of all the people, the State may grant reasonable and limited rights and privileges to individuals in the use of lands under navigable waters in the State; but such privileges should not unreasonably impair the rights of the whole people of the State in the use of the waters or the lands thereunder for the purposes implied by law, nor relieve the State of the control and regulation of the uses afforded by the lands and the waters thereon.

The State may fix the exterior lines of a navigable river if the rights of the people to the use of the waters and the shores of the river are not thereby substantially impaired; and rights in the submerged lands not within the reasonably fixed exterior lines of the river may be granted by legislative authority if such grant does not impair the rights of the whole people to the use of the waters for any purpose expressed or implied by law. State ex rel. Ellis v. Gerbing, 56 Fla. 603, 47 South. Rep. 353; Ferry Pass Inspectors’ & Shipper’s Ass’n. v. White River Inspectors’ & Shippers’ Ass’n., 57 Fla. 399, 48 South.

Rep. 643, 22 L. R. A. (N.

S.) 345. • By the statute set out in the statement, the State of Florida in consideration of the benefits to accrue to commerce, vested in the - riparian owner a qualified fee 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 to the edge of the channel, * * * 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, and also the right to prevent encroachments of any other person upon all such submerged lands 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 interference with such property.” State v.

Black River Phosphate Co., 32 Fla. 82, 13 South. Rep. 640, 21 L. R.

A. 189. ”, The proprietary right of the riparian owner of the classes named in the statute extends to “all lands covered'by water lying in front of any tract of land * * lying upon any navigable stream or bay of the sea or har-_ b.dr,'as far as to the-.edge of the channel.” The right of action given to prevent encroachments extends to “all such submerged lands in the direction of their lines continued to the. 'channel.’’: As the grant is of the use of “all lands covered by water, lying in front of” the particular classes of riparian land, “as far as to the edge of the channel,” the right given to prevent encroachments upon “such submerged lands in the direction of their lines continued to the channel” must mean the right to prevent the encroachments upon the land granted “in front of” the shore line, and directly between the shore line and the channel. “In the direction of their lines continued to the channel” means the space between lines drawn at right angles from the shore line “to the edge of the channel.” This is necessarily so as to bodies of water and the channels therein that run parallel or practically so with the shore line, as is apparently the case here.

The right granted by the statute is not to individuals but it is a general grant of right to all who come within the designated classes, the purpose of the grant being -that each member of the designated classes may have the same exclusive rights in front of the shore line of his own lands, but that no one may have by virtue of the grant a right of the kind granted, in submerged lands in front of the shore line of other riparian owners. Delaware, Lackawanna and Western R. R. Co. v. Hannon, 37 N. J. L. 276; Groner v. Foster, 94 Va. 650, 27 S. E. Rep. 493; Wood v. Appal, 63 Pa. St. 210; Clark v.

Campau, 19 Mich. 325; Newell v. Leathers, 50 La. Ann. 162, 23 South. Rep. 243; Gorton v. Rice, 153 Mo. 676, 55 S. W. Rep. 241; 3 Farnham on Waters, § 841 et seq. The rights granted by the riparian statute of 1856 relate to the space between the shore line and the edge of the channel of navigable streams, bays or harbors, and .such rights are not controlled by the direction of lines dividing the uplands. It is encumbent' upon- 'the complainant to show by proper allegations that the encroachments complained of, are upon the lands in which the complainant under'the statute has the exclusive right.

Any ambiguity in allegations will be construed against the complainant in considering the demurrer. The bill of complaint alleged that the lands are on the south side of St. Johns River and that a fence on the line between the lands of complainant and defendants, “continues on a straight ’ line from high water mark of St. Johns River out into the said River for a long distance, to-wit:.40 feet;” that complainant “had wooden pilings driven into the bed of St.

Johns River along the western line of its said submerged lands; that said western line is a continuation of the fence line referred to * * and is a continuation of the line dividing the lands of complainant south of high water mark of St.

Johns River from the lands of defendants south of high water mark of St.'Johns River;” that the defendants have “recently pulled up and carried away all of the said pilings * and has driven a large number of pilings into the said submerged lands of complainant; that the said removal .of said pilings of complainant and the said driving by said defendant of said pilings into the said submerged lands of complainant constitute encroachments' upon the submerged lands of complainant in the direction of its lines continued to the channel.” ' The line between the uplands of complainant and the defendants apparently does not approach the navigable river at right angles or nearly so, but the description of the land line indicates that'it approaches the river at an angle1 of 10 degrees west of north, while the river apparently runs approximately east and west in front of the land.

It does not appear from the allegations of the bill of complaint that the complainant has any rights in the submerged lands “in front of” the lands of the defendants that are included within lines run at right angles from each end of the defendants’ shore line “to the edge of the channel.” Nor does it clearly appear that the encroachments complained of are upon submerged land “in front of” complainant’s shore line or between lines running at right angles from the ends of complainant’s shore line to the edge of the channel.

Even if the conveyance to the complainant in terms covers submerged land in front of the defendants’ land between lines running at right angles from the ends of the defendants’ shore line to the edge of the channel of the navigable river, it does not appear that the complainant’s predecessors in title had any right to make such a conveyance. The pleadings do not show a possessory right of the complainant in the submerged lands between the defendants’ shore line and the edge of the channel of the navigable river.

As the complainant does not make it clearly to appear that the encroachment complained of is upon lands as to which it has the right to the relief sought, the. decree appealed from is affirmed. Taylor, Shackleford and Hocker, J. J., concur; Cockrell, J., .took no part.