Deering v. Martin

• Decision Date: 14 February 1928
• Citation: 95 Fla. 224,116 So. 54
• Parties: DEERING et al. v. MARTIN, Governor, et al.
• Court: Florida Supreme Court

116 So. 54

95 Fla. 224

DEERING et al. v. MARTIN, Governor, et al.

Florida Supreme Court

February 14, 1928

En Banc.

Suit by Charles Deering and others against John W. Martin, Governor and others, as trustees of the State Internal Improvement Fund, and another in his own right, for an injunction. From a decree of dismissal, complainants appeal.

Reversed with directions.

Syllabus by the Court

SYLLABUS

Navigable waters and lands thereunder, including shore and spaces between high and low water marks, are property of people of state in united and sovereign capacity; lands under navigable waters, including shore and spaces between high and low water marks, are property of state, for use in navigation commerce, fishing, and other purposes. 'The navigable waters in the state and the lands under such waters including the shore and spaces between high and low water marks, are the property of the people of the state, in their united and soverign capacity. Such lands are not held for the purpose of sale or conversion into other values, or for reduction into several or individual ownership, but for the use of all the people of the state, for the purpose of navigation, commerce, fishing, and other useful purposes afforded by the waters thereon.' Ferry Pass Inspectors, etc., Ass'n v. Whites River Inspectors' etc., Ass'n, 57 Fla. 399, 48 So. 643, 22 L. R. A (N. S.) 345.

State may make limited disposition of, or permit use of, land under navigable waters, when people's rights as to navigation and other uses are not necessarily impaired. 'The state may in the interest of the public welfare, make limited disposition of portions of the lands under navigable waters within its borders, or may permit the use thereof, when the rights of the whole people of the state as to navigation and other uses of the waters are not materially impaired.' State ex rel. Ellis v. Gerbing, 56 Fla. 603, 47 So. 353, 22 L. R. A. (N. S.) 337.

State cannot abdicate gengeral control over lands under navigable waters within state. 'The state cannot abdicate general control over the lands under navigable waters within the state, since such abdication would be inconsistent with the implied legal duty of the state to preserve and control such lands and the waters thereon and the use of them for the public good.' State ex rel. Ellis v. Gerbing, supra.

To aid navigation or commerce, encourage new industries, or develop resources, state may grant reasonable and limited rights and privileges in use of lands under navigable waters; privilege to use lands under navigable waters granted to individuals should not unreasonably impair rights of public nor relieve state of control and regulation. 'For the purpose of aiding navigation or commerce, or of encouraging new industries and the development of natural or artificial resources in the interest of all the people, the state may grant reasonable and limited rights and privileges to individuals in the use of lands under navigable waters * * *, but such privileges should not unreasonably impair the rights of the whole people * * * in the use of the waters or the lands thereunder for the purposes implied by law, nor relieve the state of the control and regulation of the uses afforded by the lands and the waters thereon.' State ex rel. Ellis v. Gerbing, supra.

Unlawful transfer of public property will be enjoined; taxpayer or private citizen suffering special injury may sue to enjoin unlawful transfer of public property. The unlawful transfer of public property will be enjoined, and such suit may be brought by a taxpayer, or by a private citizen when he suffers special injury.

If public nuisance causes injury to individual different from that to public substantial in nature, individual may have civil remedy; if individual's legal remedy for public nuisance causing peculiar injury to him is insufficient, equity will relieve. 'If a public nuisance causes special or peculiar injury to an individual different in kind and not merely in degree from the injury to the public at large, and the injury is substantial in its nature, the individual may have his civil remedy. If the remedy at law is inadequate, equity will afford appropriate relief.' Brown v. Florida Chautauqua Ass'n, 59 Fla. 447, 52 So. 802.

Placing, or threatening to place, unlawful obstruction on sovereignty lands causing special injury differing from injury to public, authorizes enjoining sale of lands by trustees of internal improvement fund. The placing of an unlawful obstruction, or the threatened construction of an unlawful obstruction, upon sovereignty lands, which causes, or will cause, special injury to an individual, group of individuals, or firm or corporation, differing in kind from the public at large, is sufficient to authorize such individual, firm, or corporation to file a bill in equity to enjoin the sale by the trustees of the internal improvement fund of such sovereignty land, when it is alleged that said sale is unauthorized under the laws of Florida.

Statute held not to authorize trustees of internal improvement fund to sell certain land covered by water deeper than designated therein (Rev. Gen. St. 1920, § 1061 et seq.). Assuming that section 1061 et seq., Revised General Statutes of Florida 1920, authorize the sale and conveyance by the trustees of the interal improvement fund, of submerged lands situated as are the lands involved in this proceeding, it does not authorize the sale of 'islands, sand bars, and shallow banks' upon which there is more than three feet of water at high tide, and separated from the mainland by a channel or channels, where the depth of water is less than five feet at high tide.

Description in deed of submerged state lands held too vague and uncertain to constitute valid conveyance (Rev. Gen. St. 1920, § 1061). A deed executed by the trustees of the internal improvement fund of the state of Florida, undertaking, under section 1061, Revised General Statutes of Florida, to convey submerged lands, in the preamble of the description, of certain tracts numbered 1 and 2, limits the lands conveyed to those lands 'upon which the water is not more than 3 feet at high tide, and which are separated from the shores by a channel or channels not less than 5 feet at high tide.' Tract No. 1 is then described by certain metes and bounds, and concludes with the following: 'Containing after excluding therefrom depressions and deep places where the water is more than 3 feet at high tide, an area of 364 acres more or less * * * and all such rights to bulkhead and fill in all lands upon which the water is not more than 3 feet at high tide, which said trustees have, and/or can convey to purchaser'; tract No. 2 also being described by certain metes and bounds, and concluding with the following: 'Containing after excluding therefrom depressions and deep places where the water is more than 3 feet deep at high tide, an area of 459 acres more or less, as marked and indicated on the chart or plat hereto attached as a part hereof, and all such rights to bulkhead and fill in all lands upon which the water is not more than 3 feet at high tide which the trustees have and/or can lawfully convey to the purchaser,' the record failing to show a chart or plat attached to the deed. Held, that such description alone is too vague and uncertain to constitute a valid conveyance of submerged lands coming within the requirements of the statute.

Legislature could not, by direct act, or through trustees of internal improvement fund, grant lands under water navigable in fact to private individual or corporation for private purposes (Rev. Gen. St. 1920, § 1061 et seq.). There may be many stretches of submerged lands in the numberous bays, sounds, and inlets of the tidal waters in this state upon which the water is not more than three feet deep at high tide, and which are separated from the shore by channels not less than five feet deep at high tide, which are in fact navigable for many useful purposes, and valuable for fishing and other purposes, and which the Legislature could not, either by a direct act or through the trustees of the internal improvement fund, grant to any private individual or corporation for private purposes, without violating the trust under which it holds such lands for the benefit of the people of the state for the purposes of navigation, fishing, boating, bathing, etc.

Legislature's statement in effect that water not more than three feet deep at high tide is not navigable so as to authorize grant to private person of land thereunder does not necessarily make it so; navigability of water is to some extent fact question (Rev. Gen. St. 1920, § 1061 et seq.). The mere fact that the Legislature may say, in effect, that water not more than three feet deep at high tide is not navigable does not necessarily make it so. Navigability is to some extent a question of fact.

Federal control of navigable waters is limited, and leaves much of state's authority untouched; trust doctrine still applies to state's ownership of lands under navigable waters. Federal control of navigable waters is limited in its scope, and leaves much of the authority of the states thereover untouched. The trust doctrine still applies.

If sale of submerged lands would interfere with rights of riparian owners, or seriously impede navigation or public fisheries trustees of internal improvement fund should not sell lands, even without formal objection (Rev. Gen. St. 1920, §§ 1061, 1062). Section 1062, Rev. Gen. Stats., indicates that the power vested by section 1061 should not be exercised on objection made when it would interfere 'with the rights granted to riparian owners by the laws of Florida, or would be a serious impediment to navigation or public fisheries.' In...