Broward v. Mabry

• Decision Date: 16 November 1909
• Parties: BROWARD et al. v. MABRY.
• Court: Florida Supreme Court

50 So. 826

58 Fla. 398

BROWARD et al. v. MABRY.

Florida Supreme Court, Division A.

November 16, 1909

Appeal from Circuit Court, Leon County; J. W. Malone, Judge.

Action by Elbert N. Mabry against N. B. Broward and others, as Trustees of the Internal Improvement Fund of the State of Florida. Decree for plaintiff, and defendants appeal. Affirmed in part, and reversed in part.

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 states 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 right 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 guaranties 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 the title to limited portions of the lands under navigable waters, or may give limited privileges therein, but not so as to divert them 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 thirteen 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 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.

The provision in Act Cong. March 3, 1845, c. 48, 5 Stat. 742 admitting Florida into the Union 'on the express condition that (the state) shall never interfere with the primary disposal of the public lands lying within' the state, has reference to lands within the territorial limits of the state, the title to which was in the United States for its own purposes, as distinguished from lands held in trust for the people, such as lands under navigable waters, which passed to the state in its sovereign capacity to be held by it in trust for the people thereof, for the public purposes authorized by law subject to the power of Congress under the federal Constitution.

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. Upon its admission into the Union, Florida has the same rights and duties of sovereignty that the original states of the Union have.

Whether a stream or body of water is navigable for useful public purposes is to be determined by the application of existing provisions and principles of law to particular facts of separate cases.

Where a stream or body of water is permanent in character, and in its ordinary natural state is in fact navigable for useful purposes, and is of sufficient size and so situated and conditioned that it may be used for purposes common to the public in the locality where it is located, such water may be regarded as being of a public character, and the title to the land thereunder, including the shore or space between ordinary high and low water marks, when not included in the valid terms of a grant or conveyance to private ownership, is held by the state in its sovereign capacity in trust for the lawful uses of all the people of the state in the water and the land, subject to lawful governmental regulation of such uses.

Capacity for navigation, not usage for that purpose, determines the navigable character of waters with reference to the ownership and uses of the land covered by the water.

Grants and conveyances of land bordering on navigable waters carry title in general to ordinary high-water mark when a valid contrary intent does not appear.

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 perhaps other easements allowed by law. 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.

Riparian rights arise by implication of law and give no title to the land under navigable waters except such as may be lawfully acquired by accretion, reliction, and other similar rights.

The trustees of the internal improvement fund, who have the disposal of the swamp and overflowed lands of the state, have no authority to convey the title to the lands under navigable waters that properly belong to the sovereignty of the state.

Where it appears that the waters of an inland lake are in fact navigable for useful public purposes, the title to the lands under such navigable waters is held by the state in trust for all the people of the state for the uses and purposes allowed by law, and, when it appears that the owners of the lands abutting on the lake are entitled to the riparian rights given by law to such owners, a contemplated sale or conveyance of the lands under the waters of the lake by the trustees of the internal improvement fund may be enjoined at the suit of such riparian owners, even though the state in its sovereignty capacity is not specifically made a party to the suit.

COUNSEL W. S. Jennings, L. R. Milton, and Park Trammell, Atty. Gen., for appellants.

Fred T. Myers, for appellee.

OPINION

WHITFIELD C.J.

The appellee filed in the circuit court for Leon county a bill in equity alleging, in brief: That township 2 north, of range 1 west, in Leon county, Fla., was surveyed by James Donelson by direction of the United States government in 1824 according to the system of surveying adopted and then in use by said government; that within said township 2 and township 1 north, of range 1 west, lying to the south of township 2, was a natural lake designated on the plats of the survey as 'Lake Jackson,' by which name it has since been generally known and called; that in surveying said township the sections bordering on said lake were made fractional sections, and the line of the lake, where the said fractional sections border it, was meandered; that said lake was not at the time of the survey, and has never been, a navigable body of water; that sections 26 and 27 of said township 2 are, according to said survey, fractional sections bordering on said lake, and both said sections are shown by the official plat of said survey to be subdivided into lots; that section 27 is shown to comprise but two lots, numbered 1 and 2, which are stated on the plat to contain, respectively, 80 and 100 acres, but only lot 2 is shown to border on the waters of said lake; that section 26 is shown to comprise 7 lots, but only lot 5 of said section, which is stated on said plat to contain 103.50 acres, is shown to border on the waters of said lake; that in 1825 James Dickerson purchased from the United States at private cash entry lots 1 and 2 of section 27, township 2 north, range 1 west; that said lots, according to the official map in the Surveyor General's office, appear to be the whole of said fractional section 27, and patents were issued to Dickerson therefor by the United States in 1826, conveying to him and his heirs the said lands, by the designated lot numbers, according to the official plat of the survey of said lands returned to the Surveyor General's office, and without any reservation as to the submerged lands in front thereof; that likewise William Harris purchased and in 1826 received patents conveying to him and his heirs lot No. 5 of section 26, township 2...