Brickell v. Trammell

• Decision Date: 05 May 1919
• Citation: 77 Fla. 544,82 So. 221
• Parties: BRICKELL v. TRAMMELL, Governor, et al.
• Court: Florida Supreme Court

82 So. 221

77 Fla. 544

BRICKELL v. TRAMMELL, Governor, et al.

Florida Supreme Court

May 5, 1919

Appeal from Circuit Court, Dade County; H. Pierre Branning, Judge.

Bill for injunction by Mary Brickell against Park Trammell Governor, and others, constituting the Board of Trustees of the Internal Improvement Fund of the State of Florida. Demurrer to bill sustained, bill dismissed, and complainant appeals. Affirmed.

Syllabus by the Court

SYLLABUS

Under the common law of England the crown in its sovereign capacity held the title to the beds of navigable or tide waters including the shore or the space between high and low water marks, in trust for the people of the realm who had rights of navigation, commerce, fishing, bathing, and other easements allowed by law in the waters. This rule of the common law was applicable in the English colonies of America.

After the Revolution resulting in the independence of the American states, title to the beds of all waters, navigable in fact whether tide or fresh, was held by the states in which they were located, in trust for all the people of the states respectively.

When the Constitution of the United States became operative, the several states continued to hold the title to the beds of all waters within their respective borders that were navigable in fact without reference to the tides of the sea, not for purposes of disposition to individual ownerships, but such title was held in trust for all the people of the state respectively, for the uses afforded by the waters as allowed by the express or implied provisions of law, subject to the rights surrendered by the states under the federal Constitution.

The rights of the people of the states in the navigable waters and the lands thereunder, including the shore or space between ordinary high and low water marks, relate to navigation, commerce, fishing, bathing, and other easements allowed by law. These rights are designed to promote the general welfare and are subject to lawful regulation by the states and such regulation is subordinate to the powers of Congress as to interstate commerce, navigation, post roads etc., and to the constitutional guarantees of private property rights.

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. For the purpose of enhancing the rights and interests of the whole people, the states may by appropriate means grant to individuals limited privileges in the lands under navigable waters, but not so as to divert them or the waters thereon from their proper uses for the public welfare, or so as to relieve the states respectively of the control and regulation of the uses afforded by the land and the waters, or so as to interfere with the lawful authority of Congress.

New states, including Florida, admitted 'into the Union on equal footing with the original states, in all respects whatsoever,' have the same rights, prerogatives, and duties with respect to the navigable waters and the lands thereunder within their borders as have the original 13 states of the American Union. Among these prerogatives are the right and duty of the states to own and hold the lands under navigable waters for the benefit of the people, as such prerogatives are as essential to the sovereignty, to the complete exercise of the police powers and to the welfare of the people of the new states as of the original states of the Union.

At common law those who own land extending to ordinary high-water mark of navigable waters are riparian holders, who, by implication of law, and in addition to the rights of navigation, commerce, fishing, boating, etc., common to the public, have in general certain special rights in the use of the waters opposite their holdings; among them being the right of access from the water to the riparian land and such other rights as are allowed by law.

The common-law riparian rights that arise by implication of law give no title to the land under navigable waters except such as may be lawfully acquired by accretion, reliction, and other similar rights. These special rights are easements incident to the riparian holdings, and are property rights that may be regulated by law, but may not be taken without just compensation and due process of law.

In addition to the common-law riparian rights in navigable waters, the lawmaking power of the state may grant to riparian proprietors owning to high-water mark on the navigable waters of the state easements in the lands below high-water mark contiguous to the riparian holdings, for the purpose of constructing thereon facilities for reaching navigable water that may be opposite or in front of the uplands, with rights of action to protect the easements granted against unlawful intrusion or trespass by other private parties, provided such facilities do not materially impair the rights of the public in the navigable waters. Like common-law riparian rights, such granted easements, when effective, are secured by organic provisions for the protection of private property rights, subject to the authority of Congress as to navigation. But such granted easements and rights give no title to islands or to lands below high-water mark.

Private ownership of land riparian to navigable waters in this state extends ordinarily to high-water mark. This appears to be the rule of the civil law as well as of the common law.

After the United States acquired by treaty of cession from Spain the territory known as East and West Florida, such territory was held subject to the Constitution and laws of the United States.

A demurrer in equity does not admit legal conclusions asserted in the bill of complaint, or conclusions of fact not justified by the facts alleged, or assertions of ultimate facts that are not sustained by the facts alleged. This is particularly so when the right asserted as a conclusion of law or of fact depends upon unusual provisions of law and proceedings thereunder, and no such provisions and proceedings are made to appear.

Even if in this state lands below high-water mark may be the subject of ownership by private parties, such a right would be a most unusual and extraordinary one that should be particularly shown when claimed in a suit.

Under the Spanish law as well as under the law of this state, private ownership of uplands stops at high-water mark on navigable waters, except, perhaps, under special and particular provisions and action of sovereign governmental authority, and those claiming ownership below high-water mark, must show the sources and muniments of title from competent authority to make such a grant against the rights of the public in the shores and waters of navigable waters in this state.

The Riparian Act of 1856 (Laws 1856, c. 791) confers rights only upon the classes of persons stated therein who own land that is actually bounded by and extends to low-water mark, on navigable streams, bays, and harbors.

An allegation that complainant's upland extends 'to the low-water mark of Biscayne Bay, an arm of the Atlantic Ocean and a navigable body of water,' is not admitted by demurrer when such allegation is contrary to general law and is not sustained by, but is inconsistent with other specific allegations, and the exhibits to the bill of complaint.

In suits for the removal of clouds from title as a general rule, an allegation in the bill that complainant is the owner in fee of the lands in question, and in the actual possession thereof, or that the lands are wild, unimproved, or unoccupied, if such be the case, is sufficient, without setting out in detail the facts showing such ownership, as ownership is the ultimate fact, and the others are mere evidentiary facts. If, however, in addition to an allegation of ownership in fee, the facts which constitute the title, of whatsoever nature they may be, are also set out, and such facts show title not to be in the complainant, a demurrer to the bill will lie.

In suits to remove cloud upon title to real estate or for similar relief, the complainant must show with clearness, accuracy, and certainty the validity of her own title and the invalidity of the claim or act of the opposing party, and she must rest upon the strength of her own title, and not upon the lack of right in the opposing party, and she must show documentary title or title by adverse possession and that she is actually or constructively in possession of the lands, or at least that the opposing party is not in possession.

A mere assertion of ownership of submerged lands, the title to which is held by the state in trust for the people of the state, is insufficient to show such ownership, and such assertion is not admitted by the demurrer when it is inconsistent with the facts alleged and with the law of the case.

The Riparian Act of 1856 gives no title to islands or to lands below high-water mark in navigable waters of the state. Land does not pass as appurtenant to land.

The 'shores' of a navigable river are the spaces between high and low water marks, and the 'bed of the river' includes the shores; and 'tideland' is that which is daily covered and uncovered by water by the ordinary ebb and flow of normal tides.

COUNSEL E. M. Semple, of Miami, and Edward L. Semple, of Jacksonville, for appellant.

Glenn Terrell, of Tallahassee, for appellees.

OPINION

WHITFIELD J.

In a fourth amended bill of complaint filed by the appellant against the trustees of the internal improvement fund of the state of Florida, it is alleged:

That 'she is the owner of and is seized in fee simple in actual possession of the piece of land described as all that part of lot 1 of block 103 lying east of Brickell avenue and Brickell avenue projected...