Axline v. Shaw

• Decision Date: 01 May 1895
• Citation: 35 Fla. 305,17 So. 411
• Parties: AXLINE et al. v. SHAW.
• Court: Florida Supreme Court

17 So. 411

35 Fla. 305

AXLINE et al. v. SHAW.

Florida Supreme Court

May 1, 1895

Appeal from circuit court, Alachua county; J. J. Finley, Judge.

Bill by Jasper Axline, in his own right and as next friend of Rachael A. Axline, his wife, against J. R. Shaw. From a decree dismissing the bill, plaintiffs appeal. Affirmed.

Syllabus by the Court

SYLLABUS

1. The land below high-water mark does not necessarily pass to a grantee of the upland as an incident and appurtenance of the latter, but the submerged land or any part thereof may be reserved upon a sale of the upland, or be made the subject of a separate sale, or be sold with the upland; the question of the intent of the grantor that the submerged land or any part thereof shall or shall not pass with the upland being one the solution of which is to be found in the terms of the deed of conveyance.

2. Our riparian act of December 27, 1856, is by its terms expressly limited to those persons and corporations 'owning lands actually bounded by an extending to low-water mark on such navigable streams.' In order for one to have riparian rights, there must be an actual water boundary of the land in connection with which such rights are claimed.

3. As applied to inland waters, the word 'shore' generally has application only to large bodies of water, as lakes and large rivers, and means the land adjacent thereto.

4. The deed under which riparian rights are claimed in this case extends the complainants' lands 'to the shore of Orange Lake.' Such a boundary upon the 'shore' is not an equivalent term to a boundary upon the lake itself, or the waters thereof. Such a boundary is land, and not water and does not confer riparian rights, under our statute.

5. The submerged lands of Orange Lake, in Alachua county, which were private property at the time of the passage of the riparian act, being included in the grant of the Spanish government to F. M. Arredondo and son, before the cession of Florida to the United States, were not affected by the provisions of that act.

COUNSEL

S. Y. Finley, for appellants.

Thos F. King and W. W. Hampton, for appellee.

OPINION

LIDDON J.

Appellants who were complainants below, filed their bill of complaint against the appellee, defendant below. The bill alleged, among other things, that the complainant Rachael A. Axline was a riparian proprietor of a certain lot of land in Alachua county, which 'is fronted by Orange Lake, which is a navigable stream.' Said bill also alleged that said lot abuts upon the said lake; that said lake adjoins the same; and that said complainant was entitled, as riparian owner, to exclusive water privileges under, upon, and over the waters of the said lake adjoining and in front of her said property; and that said lot was purchased with a view to said water rights and privileges. The bill charged the defendant with erecting a fence and attempting to erect a wharf in front of her land, which prevented access to the channel of the lake, interfered with her use of said water privileges and facilities for navigation, shipping freight, and other purposes.

An injunction was prayed against the keeping, using, repairing, etc., of the fence already built, and from building any other fence, wharf, etc. The building, etc., of the fence, was not sought to be enjoined as a nuisance per se, but the complainants stand strictly upon the statutory riparian rights of Mrs. Axline.

The defendant filed his answer and demurrer in one paper, denying that the complainant Mrs. Axline was a riparian proprietor; that Orange Lake was a navigable stream, in contemplation of the statute; and many other matters unnecessary to state. Voluminous testimony was taken by each party. At the final hearing, the bill of complaint was dismissed, and complainants appealed.

The counsel for both parties have filed lengthy briefs, evincing much labor and research, upon the question as to whether or not Orange Lake, an inland fresh-water lake in Alachua county, is a 'navigable stream,' within the purview of our riparian act of December 27, 1856. The conclusion we reach renders it entirely unnecessary to determine the question, because, in our opinion, if we conceded that said lake is such a navigable stream as is contemplated by the act, we do not think the allegations and proof in the case show that the complainant Mrs. Axline is such a riparian owner as is embraced within the terms of the statute. It appears by the testimony in the case that one T. B. Myers, through whom Mrs. Axline derived title, at the time he sold and conveyed the lots on account of which she claims to be a riparian proprietor, also owned the adjacent submerged lands covered by the waters of Orange Lake. Conceding (only, however, for the purposes of this case) that Orange Lake is a navigable stream, and that the submerged lands over which riparian rights are claimed were included in the statutory grant made by the act of 1856, does the deed of conveyance to Mrs. Axline make her a riparian proprietor? A solution of the question requires an examination of a portion of the act and the deed by which Mrs. Axline holds her title to the property in question. The last section of the act in question is as follows: 'That nothing in this act 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 grant herein contained shall be limited to those per sons and body corporate owning lands actually bounded by, and extending to low-water mark, on such navigable streams, bays and harbors.' Chapter 791, § 2 (McClel. Dig. p. 690, § 2). The description of the land in the deed of Mrs. Axline is as follows: 'Beginning at the northeast corner of section one (1), township twelve (12), south of range twenty-one (21), in the Arredondo grant; thence south, with the east line of said section one (1), a distance of ten chains; thence west, on a line parallel with the north line of said section one (1), about thirty-six and a half chains, to the shore of Orange Lake; thence northwesterly, with said shore of said lake, to the north line of said section one (1); thence, with said north line of said section, about forty chains, to the place of beginning,--containing, by estimation, thirty-eight and 25/100 (38 25/100) acres, and composing lots one (1) and two (2) on the map of Kennedy's survey of said section, or of the land of Theodorus Bailey Myers and wife.'

A principle applicable to the construction of this deed is stated in State v. Phosphate Co., 32 Fla. 82 (text 90), 13 So. 640 (text, 643), in summarizing the effect of the decision in Rivas v. Solary, 18 Fla. 122, as follows: 'The land below high-water mark does not necessarily pass to a grantee of the upland as an incident and appurtenance of the latter, but the submerged land or any part thereof may be reserved upon a sale of the upland, or be made the subject of separate sale, or be sold with the upland; the question of the intent of the grantor that the submerged land or any part thereof shall or shall not pass with the upland being one of which the solution is to be found in the terms of the deed of conveyance.' Numerous authorities are cited in support of the proposition asserted. Some of these are referred to and quoted in the further course of this opinion. This court has also laid down the proposition that, in a suit to enjoin trespass upon riparian rights, the allegations of the bill must be clear and precise as to the title upon which relief is prayed. These requirements of clearness and precision have especial application to statements as to boundaries of the land upon the ownership of which riparian rights are claimed. Sullivan v. Moreno, 19 Fla. 200 (text, 223). The act, in terms, is expressly limited to those persons and corporations 'owning lands actually bounded by and extending to low-water mark on such navigable streams.' In order for one to have riparian rights, there must be an actual water boundary...