Ferry Pass Inspectors' & Shippers' Ass'n v. White's River Inspectors' & Shippers' Ass'n

• Decision Date: 02 February 1909
• Citation: 48 So. 643,57 Fla. 399
• Parties: FERRY PASS INSPECTORS' & SHIPPERS' ASS'N v. WHITE'S RIVER INSPECTORS' & SHIPPERS' ASS'N.
• Court: Florida Supreme Court

48 So. 643

57 Fla. 399

FERRY PASS INSPECTORS' & SHIPPERS' ASS'N v. WHITE'S RIVER INSPECTORS' & SHIPPERS' ASS'N.

Florida Supreme Court, Division A.

February 2, 1909

Appeal from Circuit Court, Escambia County; J. Emmet Wolfe, Judge.

Bill by the Ferry Pass Inspectors' & Shippers' Association against the White's River Inspectors' & Shippers' Association. Decree for defendant, and complainant appeals. Reversed and remanded.

Syllabus by the Court

SYLLABUS

The state by virtue of its sovereignty holds in trust for all the inhabitants of the state the title to the lands under the navigable waters within the state, including the shore or space between high and low water marks.

The common-law rights of riparian owners with reference to navigable waters are incident to the ownership of the uplands that extend to high-water mark.

Riparian owners have no exclusive right to navigation in or commerce upon a navigable stream opposite the riparian holdings, and have no right to so use the water or land under it as to obstruct or unreasonably impede lawful navigation and commerce by others, or so as to unlawfully burden or monopolize navigation or commerce. The exclusive rights of a riparian owner are such as are necessary for the use and enjoyment of his abutting property and the business lawfully conducted thereon; and these rights may not be so exercised as to injure others in their lawful rights.

The rights of the public in navigable streams for purposes of navigation are to use the waters and the shores to high-water mark in a proper manner for transporting persons and property thereon subject to controlling provisions and principles of law. The right of navigation should be so exercised as not to infringe upon the lawful rights of others.

A riparian owner may use the navigable waters and the lands thereunder opposite his land for purposes of navigation and of conducting commerce or business thereon, but such right is only concurrent with that of other inhabitants of the state and must be exercised subject to the rights of others.

A riparian owner has a right to enjoin in a proper proceeding the unlawful use of the public waters or the land thereunder including the shore which is a part of the bed, when such unlawful use operates as a special injury to such riparian owner in the use and enjoyment of his riparian lands.

Where the waters of a navigable river are so used as to deprive a riparian holder of all access to the river from the land or to the land from the river, or so as to injure the benefits and enjoyment of the riparian land or the business thereon such use may be enjoined.

COUNSEL

Blount & Blount & Carter, for appellant.

Maxwell & Reeves, for appellee.

OPINION

WHITFIELD C.J.

The bill of complaint alleges that the appellant is the holder of certain described lands fronting on, extending to, and bounded by a certain navigable river in this state; that complainant is engaged in the business, in and on said river and its shores, of inspecting timber and logs and shipping timber, and in said business employs the use of long stretches of the shore of said river for the purpose of tying logs and timber, in order to handle, boom, preserve, and inspect the same; that the defendant is conducting a like business, and has, without the permission or license of the complainant, taken and retains possession of all the river front opposite the described lands, and has stretched and stretches along the whole of the said river front and the shores thereof timbers held by it for booming and inspection and has thus deprived the complainant of all access to the said river front from the river, and of access to the river from said river front, and of all opportunity of conducting its business by the use of the river and river front and shores mentioned; that defendant asserts that it has a right to use the said river front and shores as long as it may please without the permission or consent of the complainant, and announces that it will continue to use them as aforesaid, and to deprive the complainant of access to the river and the shores at and along the said front and shores, and thus injure its business aforesaid. The prayer is that the court may declare that the complainant has the right of access for the conduct of its business aforesaid to the said river front, to the shores of said river from the river, and to the river from the said front and shores, and to use the said front and shores for its said business, and to enjoin and restrain the defendant, its servants, agents, and employés from in anywise hindering, impeding, or preventing such access and use, and for general relief. An answer in which was incorporated a demurrer was presented. On hearing the demurrer was sustained and complainant given 10 days to amend, in default of which the bill stands dismissed. On appeal the order sustaining the demurrer is assigned as error.

It appears that both the complainant and the defendant were incorporated to do business in and on the stated river and its shores by inspecting and shipping timber and logs floated down the stream on the way to market. This authority does not empower either corporation to engage in an unlawful business or to invade the rights of each other or of any one else. The right to engage in the designated business is contingent upon the business being lawfully authorized and lawfully conducted with reference to the rights of all parties affected by the business. See State v. Tampa Waterworks Co., 56 Fla. ----, 47 So. 358.

The state by virtue of its sovereignty holds in trust for all the inhabitants of the state the title to the lands under the navigable waters within the state including the shore or space between high and low water marks. State v. Gerbing, 56 Fla. ----, 47 So. 353. It is not claimed by either party that the state has in any way granted the rights asserted in this proceeding, even if such a grant may lawfully be made by the state. No question is presented as to the authority of Congress in the use of the navigable streams.

Riparian rights are incident to the ownership of lands contiguous to and bordering on navigable waters. The common-law rights of riparian owners with reference to the navigable waters are incident to the ownership of the uplands that extend to high-water mark. The shore or space between high and low water mark is a part of the bed of navigable waters, the title to which is in the state in trust for the public. If the owner of land has title to high-water mark, his land borders on the water, since the shore to high-water mark is a part of the bed of the waters; and, if it is a navigable waterway, he has as incident to such title the riparian rights accorded by the common law to such an owner. Mitchell v. Lea Lumber Co., 43 Wash. 195, 86 P. 405, 9 L. R. A. (N. S.) 900; 10 Am. & Eng. Ann. Cas. 231; Mobile Dry-Docks Co. v. City of Mobile, 146 Ala. 198, 40 So. 205, 3 L. R. A. (N. S.) 822, 9 Am. & Eng. Ann. Cas. 1229, and authorities cited; State ex rel. Denny v. Bridges, 19 Wash. 44, 52 P. 326, 40 L. R. A. 593, and authorities cited; 1 Farnham on Waters, p. 178 et seq.; Yates v. Milwaukee, 10 Wall. 497, 19 L.Ed. 984, 1 Am. & Eng. Ann. Cas. 184, note.

Among the common-law rights of those who own land bordering on navigable waters apart from rights of alluvion and dereliction are the right of...