The State of Florida ex rel. Rivers H. Buford, as Attorney General, Appellant, v. City of Tampa and D. P. Davis, Appellees, 88 Fla. 196

Ellis, J. The Legislature, by

Chapter 4883, Laws of 1899, so amended the city charter of the City of Tampa that the Southern boundary line of said city was described by a line extending from a point in Tampa Bay where the

section lines between Sections 29 and 30 and 29 and 32 in Township 29 South, Range 19 East if extended into the Bay would intersect, to the Southwest corner of

Section 36 in Township 29 South, Range 18 East. The Western boundary line, under said act, extends due North from the Southwest corner of

Section 36 ,to the Northwest corner of

Section 13 in said Township and Range. The Legislature, by

Chapter 4882 Laws of 1899, approved June 1st of that year, two days after the approval of

Chapter 4883, undertook to grant to the City of Tampa, in fee simple absolute,' “all lands owned or held by the State of Florida, in trust or otherwise, and lying and being within the corporate limits of said City of Tampa, whether said lands are covered, or partly covered by the tide, or other waters, and including all sawgrass and marsh lands, as well as the bottom of Hillsborough Bay and Hillsborough River.” The second

Section of this A"ct is as follows: ‘1 Sec. 2. That this Act shall be held and construed to be a public act, and all laws and parts of laws in conflict with its provisions be and the same are hereby repealed.” The southern boundary line of the City of Tampa,- as above described, lies wholly in Hillsborough Bay, a navigable body of water; and a large area lying north of that line, with the exception of two small islands, namely: Grassy Island and Depot Key, is submerged lands and constitutes part of the bottom of Hillsborough Bay. A part of the Government Ship Canal which extends from a point on the South boundary line into

Section twenty-four, Township twenty-nine South, Range eighteen East, lies within the city limits as described by

Chapter 4883, supra. In 1913, by

Chapter 6781, the Legislature granted to the City of Tampa, “certain lands and middle ground and over-flowed lands in the Hillsborough River and in Spark-man Bay and in Hillsborough Bay in Hillsborough County” for a period of one thousand years for the purpose of commerce, navigation and municipal docks and terminals for such purposes. It was provided that the improvements of docks and terminals on such lands, or any part thereof, be made within twenty-five years.

The city was granted the right to widen, extend or deepen the channel of the Hillsborough River and Sparkman Bay and Hillsborough Bay, and to “fill in, build up, have, possess, use and own shoals, shallows and middle ground or flats and all overflow lands therein.” It was also provided that the “rights and privileges of navigation now vested in owners of lands abutting on said submerged lands heretofore granted or acquired shall not be impaired.” The Act described the ‘ ‘ certain lands and middle ground and over-flowed lands” by metes and bounds and such lines embrace all the lands and bottoms of Hillsborough Bay and lands covered by the tide, or other waters, granted to the city in 1899 by

Chapter 4882, supra. In 1921, by

Chapter 9095, the Legislature validated an election held in the City of Tampa in 1920 under the provisions of the Act of 1915,

Chapter 6940, entitled “An Act Authorizing Cities and Towns To Amend Their Charters and To Adopt Charters for Their Government.” By that Act,

Chapter 9095, the government of the city was changed to the Commission form of government. There were other acts of the Legislature enacted since 1899 dealing with the powers and properties of the City of Tampa. In 1917, by

Chapter 7304, the Legislature enacted that “The title to all islands, sand bars, shallow banks or small islands made by the process of dredging of the channel by the United States Government located in the tidal waters of the counties in the State of Florida, or similar, of other islands, sand bars and shallow banks upon which the water is not more than three feet deep at high tide and which are separated from the shore by a channel or channels, not less than five feet deep at high tide, or sand bars and shallow banks along the shores of the mainland in which the title is not, at this date, invested in prior parties, is hereby invested in the Trustees of the Internal Improvement Fund of the State of Florida, to be held by the State of Florida, and disposed of as hereinafter provided. ’ ’

Section Two of the Act provided that the Trustees should have the power to sell and convey the islands and submerged lands granted upon such prices and terms as they shall see fit after notice given by publication in a newspaper published in the County Seat of the County in which such lands, or submerged lands are located.

Section Sis repealed all laws and parts of laws in conflict with the Act. In 1921 the Legislature' enacted a law entitled “An Act Granting and Confirming Riparian Rights and Submerged and Filled-in Lands.” The

Chapter is numbered 8537.

Section One provides: “Whereas, It is for the benefit of the State of Florida that water front property be improved and developed; 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 subject to any inaleinable trust under which the State holds said lands, divests itself of all right, title and interest to all lands covered by water lying in front of any tract of land owned by the United State or by any person, natural or artificial, or by any municipality, county or governmental corporation under the laws of Florida, lying upon any navigable stream or bay of the sea or harbor, as far as to the edge of the channel, and hereby vests the full title to the same, subject to said trust in and to the ,1’iparian proprietors, giving them the full í-ight and privilege to build wharves into streams or waters of the bay ox-harbor as far as may be necessary to affect the purposes described, axxd to fill xxp 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, dwellings ox-other bxxildings and also the right to prevent exxcroachments of axxy other person upon all such sxxbmex-ged land in the direction of their lines confirmed to the channel by bill in chancery or at law, and to have and maintain actioix of trespass in any court of competent jurisdiction in the State, fox- any interfex-ence with such property, also confirming to the riparian proprietors all improvements which may have heretofore been made upoix submerged lands. “Provided, .that the graixt hereiix made shall apply to and affect oxxly those submerged laxxds which have beeix, or may be hereinafter actually bulk-headed or filled in or permanently improved continuously from high water mark in the direction of the channel, or as near in the direction of the channel as practicable to equitably distribute the submerged lands, and shall in no wise affect such submerged lands until actually filled in or permanently improved.” The Act was made retroactive so as to take effect from December 27, 1856, and was intended to enlarge the Act of that year entitled “An Act to Benefit Commerce” which was construed in the case of Thiesen v.

Gulf F. & A. R. Co., 75 Fla. 28, 78 South. Rep. 491.

In that, case this court said: “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. * * # * * 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 powers ■of Congress to regulate commerce. * “ * * 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.” Quoting from Hale’s Treatise DeJure Maris, by Hargrave, this court said: ‘ ‘ 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.” Referring to the conditions existing in this State this court quoting from Angelí an Tide Waters said: “ ‘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 adoption of such regulations as may be deemed to be for the best interests of the people.” This language is just as applicable to such places as lie along the margin of the Gulf of Mexico and to shoal tide waters where the depth averages from three inches to three or four feet and which lie near to, or within, the limits of municipal corporations, the centers of industry and commerce. This decision was rendered in 1918 and in 1921 the Legislature declared in

Chapter 8537, supra, that “It is for the benefit of the State of Florida that water front property be improved and developed.” This rather lengthy preliminary statement is made that it may be more clearly understood what the conditions were and what the Legislative purpose seemed to be regarding the State’s control of marsh lands subject to tidal overflow and the shoal waters of bays and inland waterways which may, by the aid of art and industry, be utilized and rendered advantageous to the public, subject always, of course, to the control of the United States Government for purposes of navigation, when the subject of this litigation arose.

In February, 1924, the City of Tampa entered into a contract with D. P. Davis to sell and convey to him all the city’s right, title and interest in and to all'that.portion of the city’s property conveyed to it by the Act of 1899,

Chapter 4882 lying in Sections 24, 25 and 36 in Township 29 South, Range 18 East, and

Section 31 in Township 29, Range 19 East, lying west of the Government Channel and Turning Basin West of Seddon Island in the harbor of Tampa and North of a line drawn from the Southwest corner of said

Section 36 in a Northeasterly direction in a straight line to the Northeast corner of said

Section 31, and East of a line beginning at a point on the South boundary line of said

Section 36, 2253 feet East of the Southwest corner of said Section; run thence North two degrees forty five minutes west to a point on the North boundary of

Section 36, 2000 feet East of the Northwest corner of said

Section 36; thence in a Northeasterly direction to a point on the North boundary line of said

Section 25, 2655 feet East of the Northwest corner of said

Section 25 and South of the Old River Channel and Turning Basin North of Grassy Island. No part of said development on the North to be nearer the mainland than 700 feet. There is an error in the description of the Southern boundary line of the City of Tampa, as it appears in the printed statutes of 1911 and 1913, to which reference has been made.

Section 36 is described as being in Range 19 instead of Range 18. The contract provided, among other things, that Davis should pay two hundred thousand dollars to the city as the purchase price of the property within four years, or within that time to convey to the city a bridge to be built by Davis and to be constructed of certain materials and according to certain specifications, and certain parks to be built upon the property and described in the conveyance.

The agreement stated that the purpose of the transaction was to develop the property into a “high-class residential subdivision” and as part of the development a bridge, fully described, and parks were to be built and conveyed to the city in payment of. the purchase price. The development of the property to be conveyed to Davis is to be accomplished by constructing a concrete wall or bulkhead along the entire Westerly line of sufficient strength and height to support a fill of said premises to a height of not less than seven feet above mean low tide and suitable provisions made for yacht basins and drainage.

The Attorney General in the name of the State of' Florida exhibited his bill in the Circuit Court for Hills-borough County against the City of Tampa and D. P.‘ Davis to declare the contract void and that the defendants be enjoined from proceeding to carry out and execute the same. The defendants answered averring, among other things, that the contract had been ratified by the qualified voters of Tampa; the power of the city to enter into it; that Davis had acquired by purchase from the owners all that portion of Depot Key lying within the territory embraced in the contract which lies in

Section 25, and the city is the owner by purchase of that part of the island lying in

Section 36, and Grassy Island constitutes part of a Government lot surveyed by the United States Government as land; that that part of the property which takes in territory to the North and West of Grassy Island, and West, South and East of Depot Key, and the territory intervening is practically in its entirety land created by the operation of the United States Government in digging and from time to time dredging the Government Channel and has long since ceased to be a part of the waters of Hills-borough Bay; that on approximately one-half of the area embraced in the contract the depth of the water runs from four inches to a maximum depth of five and four tenths feet and a greater portion of the area has a less depth than two feet.

And the said area consists as a whole of mud flaR which almost in their entirety are uncovered by water at very low tide; that said premises have no value for purposes of commerce or navigation and that the filling in of the lands as contemplated bj^ the contract by dredging will, in reality, improve the navigability of Hillsborough Bay and will add to the wealth of the city by removing the mud flats which are uncovered at low tide.

It is also averred that the area embraced in the contract in its present condition is valueless for any purpose and the improvement as contemplated will ultimately add to the taxable value of property in the City.of Tampa by several millions of dollars, and that the contract is in the public interest of Tampa and the State of Florida. 'That in so far as the contract embraces lands not submerged the defendant, Davis, has acquired by purchase from the owners thereof the title to said property with all :such rights as may be accorded to him under the laws of ¡Florida, as a riparian owner to fill in to the Channel, and no part of the premises embraced in the contract constitutes any part of the Channel of Hillsborough Bay and all the filling proposed to be done is such as the said Davis, as riparian owner, is authorized to do under the laws of Florida.

The answer concludes with a prayer that the contract be declared to be valid and within the power of the City of Tampa to make and that the defend: ant Davis upon the delivery to, him of a deed of conveyance to the premises be quieted in his title. The cause was heard upon bill and answer. The Chancellor decreed that the contract was valid, was within the power of the City of Tampa to enter into, that the equities were with the defendant and the bill of complainant was dismissed. The Attorney General took an appeal and the decree is here for review. It is contended in behalf of the appellant that

Chapter 4882 Acts of 1899 and

Chapter 6781 Acts of 1913, under which the City of Tampa claims the right to enter into the contract with the defendant Davis, are ineffectual to vest such right and are void in so far, at least, as they constitute an attempt to dispose of the State’s title to the submerged lands within the area sought to be conveyed, because the Legislature has no power to dispose of such lands and divest itself of the title thereto which it-holds in its sovereign capacity for the benefit of the people for navigation, boating or fishing.

There is no provision in the Constitution of this State expressly or impliedly forbidding the Legislature to dispose of submerged lands lying between high and low water mark, nor declaring any trust in the State in its tidewaters, nor the submerged lands that may be subject to-overflow at high tide. Whatever trust was imposed was that of the common law which the State through its Legislature assumed, and the State accepted with reference to such lands, when it was admitted to the Union.

That portion of the trust, in so far as it affects the right of navigation, was completely taken over by the-National Government under the Commerce Clause of the Constitution. Beyond that the control rests with the .State and the riparian owner. See United States v. Chandler-Dunbar Water Power Co., 229 U. S. 53, 57 L. Ed. 1063, 33 Sup. Ct. Rep. 667. This doctrine is so well settled that it is unnecessary to do more than state it.

That would seem to eliminate the question of whether the waters involved in this controversy are navigable in so far, at least, as the State’s objection to the proposed use of the property may be based upon that consideration, because if the project interferes with the navigation of the Bay the National Government may interfere. In Clement v. Watson, 63 Fla. 109, 58 South. Rep. 25, this court said that the shore of navigable waters which the sovereign holds for public uses is the land which borders on navigable waters and lies between ordinary high and ordinary low water mark.

This does not include lands that do not immediately border on the navigable waters and that are covered by water not capable of navigation for useful public purposes, such as mud flats, shallow inlets and low lands covered more or less by water permanently or at intervals, where the waters thereon are not in their ordinary state useful for public navigation.

Lands not covered by navigable waters and not included in the shore space, between ordinary high and low water marks immediately bordering on navigable waters are' the subject of private ownership, at least when the public rights of navigation are not thereby unlawfully impaired. That, while the lands under navigable waters including the shore space between high and low water marks are held by the State for the purposes of navigation • and other public uses, subject to lawful governmental regulation, the rule is applicable only to such waters as are in fact capable of navigation for useful public purposes.

The answer avers that the waters embraced within the area contracted to be sold are not within this latter class; and that averment is taken as true. But the waters embraced within the area are tidal waters although not navigable according to the averments of the answer. The right of property in such waters and in the soil is in the State. Thiesen v. Gulf, F. & A. R. Co., supra.

That case recognized the doctrine that such waters and lands were held by the State for the use and benefit of the public for boating, fishing and swimming, but also recognized the well established doctrine that the State might part with such title through acts of the Legislature by recognizing the Act of 1856 entitled “An Act to benefit Commerce” and holding that the grant was limited to lands which were actually bounded by and extended to low water mark; and by referring to the conditions existing in this State affecting flats, marshes and places where the tide ebbs and flows, which under the common law was held by the State ■ for the benefit of the general public, and by saying that such lands and places presented a situation which commended itself to the Legislature for the adoption of such regulations as it may deem to be for the best interests of the people.

This court has never held that the State could not by act of the Legislature divest itself of the title to such lands and counsel’s criticism to the contrary, did not so hold in Broward v. Mabry, 58 Fla. 398, 50 South. Rep. 826. The court in that case said: “The trust in which the title to the lands under navigable waters is held is governmental in its nature and cannot be wholly alienated by the States. ’ ’ See 1 Farnham Waters and Water Rights, p. p. 51-212. See also a discussion of the subject in a note to Linthicum v. Shipley, 140 Md. 96, 116 Atl. Rep. 871, also reported in 23 A. L. R. 754, note page 764.

The Legislature, by

Chapter 4882, Acts 1899, granted to the City of Tampa the lands embraced in the area described in the contract to which the State held the title. The Act of 1915, in so far as it was an attempt to limit the grant of 1899, was ineffectual. The policy of the State, as declared by the Act of 1921,

Chapter 8537, supra, is declared to be that it is for the State’s benefit that water front property be improved and benefitted.

The Act provided that subject to any inalienable trust under which it holds any such lands it divests itself of all right, title and interest to all lands covered by water lying in front of any tract of land owned by the United States or by any person, natural or artificial, or by any municipality, county or governmental corporation under the Laws of Florida lying upon any navigable stream or bay of the sea or harbor as far as to the edge of the channel and hereby vests the full title to the same subject to said trust 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 affect 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, dwellings or other buildings and also the right to prevent enroachments of any other person upon all such submerged land in the direction of their lines continued to the channel by bill in chancery or at law, and to have and maintain action of trespass in any court of competent jurisdiction in the State, for any interference with such property, also confirming to the riparian proprietors all improvements which may have heretofore been made upon submerged lands.” We discover no constitutional objection to that Act nor has any been urged.

Indeed it is within the power of the Legislature so to dispose of such lands without any express constitutional authorization therefor. The statute is applicable in this case to the owners of the two islands, who .may, acting under its provisions and within its scope, bulkhead the area and fill in the same within appropriate limits as riparian owners. In this view of the law of the subject our conclusion is that the decree shall be, and is hereby affirmed. Taylor, C. J., and Browne and West, J. J., concur. Whitfield and Terrell, J. J., dissent.