Christian Thiesen, Plaintiff in Error, v. Gulf, Florida & Alabama Railway Company, et al., Defendants in Error, 75 Fla. 28

Per Curiam. 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 navigable stream or bay of the sea or harbor, as far as to the edge of tire channel, and hereby vests the full title to the sa' e in and to the riparian proprietors, 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 any interference with such property, also confirming to the riparian proprietors all improvements which may have heretofore been made upon submerged lands, for the • purposes herein mentioned.’ ” “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 hunclrecl and thirty-one- feet three inches in depth fronting on the Bay.” Conceding, -but not deciding, that it sufficiently appears that title to the described land passed by successive conveyances or otherwise to the - plaintiff, yet in order to maintain this action under-

Section 643 General Statutes of 1906, the plaintiff must have shown that the described - land was “actually bounded by and extended to,” the waters of a- “navigable stream or bay of the sea or harbor.”. Sec. 644 Gen. Stats. 1906. This is necessary to give to the plaintiff the statutory rights that under

section 643 of the General Statutes of 1906, accrue to stated- riparian owner’s in and to the “lands covered by water, lying in front of any tract of land * * lying upon any navigable stream or bay of the sea or harbor.” While the. expression “fronting on the Bay,” contained in the above mentioned conveyance may be taken in connection with other circumstances to indicate a boundary, it may also indicate aspect or location with reference to outlook. Alden v.

Pinney, 12 Fla. 348. -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.” This being so, it was incumbent upon the plaintiff to show by evidence that the described, land was “actually bounded by, and extended to”, .the waters of a navigable stream or bay of the sea or harbor. 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 and sixty-nine in block one, containing forty feet front on Zarragossa Street and extending back two hundred and sixty-one 3-12 feet to the Bay of Pensacola and fronting thereon forty-seven 6-12 feet be the front and depth more or less.” The dimensions of lot 368 are not given in the testimony. A map in evidence seems to indicate that lot 368 is 130 feet north and south.

The bill of exceptions sfiows that the plaintiff testified, viz: “I measured the East side of Lot 369 from Zarragossa Street. I measured from Zarragossa 368 and continued through lot 369 to the water. I measured the west side in the same way. I measured one straight line, from Zarragossa Street, practically the middle of the block; the alley way, to the inside of the dummy track, 261 feet. It was 261 feet inside of the dummy track; just inside one rail, between the two rails. It was about 25 or 30 feet from there to the water before the U.

F. & A. filling in was constructed.” This does not show the southern boundary of Lot 369 to be “actually bounded by and extending to” the waters of a navigable bay. The plaintiff offered no direct testimony that in 1856 when the riparian statute was enacted or since then, the lot was in part bounded by and extended to the waters of a navigable bay. 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 the lot did not go clear to the water ® * * about five feet; nearly to the beach.” On re-direct: “I could not say how far the lot went down to the water.

I do not know where the lot line was on the south side.” 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 extending to the waters of the bay.

It may be regarded as defining the location of the property leased to the Terminal Company for its railroad track “south of the premises now .owned” by the lessor.

The conveyance to the plaintiff in 1896 is of the “East half of lots three hundred and sixty-eight (368) and three hundred and sixty-nine (369) in Block one (1) of the Old City of Pensacola containing a frontage of forty (40) feet on Zarragossa Street and running through to Pensacola Bay, being two hundred and sixty-one 1-4 feet and having a irontage on said bay of forty-seven and a halt feet.” This does not define a boundary as extending to the waters of the bay, even if that could avail when the original Spanish grant was of a lot “fronting on the Bay,” which is not shown to have carried title to land “actually bounded by and extending to low water mark” of the navigable bay, as required by the statute quoted above conferring riparian rights.

Private ownership extends ordinarily to high water mark. Merrill-Stevens Co. v. Durkee, 62 Fla. 549, 57 South. Rep. 428; Ker & Co. v. Couden, 223 U. S. 268, 32 Sup. Ct. Rep. 284; United States v. Pacheco, 2 Wall. (U. S.) 587. 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 bis claim to relief, and be fails to make such proof, a verdict may be directed for tbe defendant. In this case tbe burden was on tbe plaintiff to affirmatively show that Lot 369 was actually bounded by and extended tv 'ow water mark of the Bay.

This showing was nor made, and there was no error in directing a verdict for tiie defendant. See Bass v. Ramos, 58 Fla. 161, 50 South. Rep. 945. Judgment affirmed. Taylor, Whitfield, Ellis and West, J. J., concur. Browne, C. J., dissents.