Silver Springs Paradise Co. v. Ray

• Decision Date: 06 July 1931
• Docket Number: No. 6120.,6120.
• Citation: 50 F.2d 356
• Parties: SILVER SPRINGS PARADISE CO. v. RAY et al.
• Court: U.S. Court of Appeals — Fifth Circuit

50 F.2d 356 (1931)

SILVER SPRINGS PARADISE CO. v. RAY et al.

No. 6120.

Circuit Court of Appeals, Fifth Circuit.

June 1, 1931.

Rehearing Denied July 6, 1931.

Henry P. Adair, of Jacksonville, Fla., Robert L. Anderson, Jr., of Ocala, Fla., and John M. McNatt, of Jacksonville, Fla. (R. L. Anderson, Jr., of Ocala, Fla., H. P. Adair, of Jacksonville, Fla., Anderson & Anderson, of Ocala, Fla., and Knight, Adair, Cooper & Osborne, of Jacksonville, Fla., on the brief), for appellant.

H. L. Anderson, of Jacksonville, Fla., and H. M. Hampton, of Ocala, Fla., for appellees.

Before FOSTER, HUTCHESON, and WALKER, Circuit Judges.

WALKER, Circuit Judge.

By this suit the appellees asserted the claims that, by reason of their ownership of land beneath the waters of Silver Springs, a body of water located in Marion county, Fla., and of an established business of operating glass-bottom boats for the purpose of carrying persons for hire over those waters and showing the waters and bed of Silver Springs, they have the exclusive right to operate such boats over those waters for hire and for the purpose mentioned, and the right to prevent the appellant, which owns a tract of land on Silver Springs river or run, the outlet of Silver Springs, about three-fourths of a mile east or southeast of the head of Silver Springs, on which is located appellant's place of business, called Paradise, from maintaining at the intersection of the Ocala and Daytona Highway with the road leading to the place known as Paradise, signboards or signs containing the word or words "Silver Spring" or "Silver Springs," and from using the name "Silver Springs" as a part of its name in advertising its place of business at Paradise. Following a hearing on the bill, answer, and exhibits, affidavits, photographs, and other documents, on application of appellees for a temporary injunction, the court sustained the above-mentioned claims asserted by the appellees by a decree granting such an injunction, and by a decree denying a motion to dissolve that injunction. The case is before us on appeals from those decrees.

There is no dispute as to the facts which we consider to be controlling in the determination of the questions raised by the record. At the above-mentioned location in Marion county, Fla., there is a large natural basin containing a number of springs which create the body of water called Silver Springs, which discharges through Silver Springs run or river into the Oklawaha river, a tributary of the St. Johns river, which discharges into the Atlantic Ocean. The stream so formed in its natural and ordinary condition is susceptible of being used for commerce, over which trade or travel may be conducted in the customary modes of trade and travel on water from its head or source as a highway by water craft of all kinds having not exceeding six feet draft, and continuously has been susceptible of being so used. The water over the springs which feed that body of water called Silver Springs varies in depth up to eighty feet, and that water is clear, transparent, and beautiful. The bed of that body of water, the caverns and crevices from which the contributing springs issue, the rock formations in the bed, the vegetation growing thereon, and living creatures clearly visible in the waters, are beautiful and interesting, with a result that the place is attractive to visitors. Pursuant to provisions of an act of Congress passed in 1823 (3 Stat. 754), public lands including the territory in which Silver Springs is located were surveyed and opened to sale. That act contained the provision: "That all the navigable rivers and waters in the districts of East and West Florida shall be, and forever remain, public highways." Section 12. Under the survey and plat made of public lands, Silver Springs is partly in the northeast quarter of the southeast quarter of section 6, in township 15 south of range 23 east, in the district of land which was subject to sale at Newnansville, Fla., and partly in the southeast quarter of that quarter section, and the two land subdivisions which include Silver Springs contain seventy-nine acres and one-hundredth of an acre. About ten acres included in those two subdivisions are permanently covered by the waters of Silver Springs, the flow from which amounts to more than three hundred millions gallons of water a day.

On February 24, 1845, while Florida was a territory, James Rogers made a cash entry of the above-mentioned subdivisions of land and paid therefor the sum of $98.75 for seventy-nine acres and one-hundredth of an acre at $1.25 per acre, and received the receiver's receipt showing such payment for that land. On July 1, 1848, after Florida became a state, a patent for that land was issued to James Rogers. By mesne conveyances appellees succeeded to the title so acquired by James Rogers. For many years appellees' predecessors in title and appellees have paid taxes on the land described in said patent including the part thereof which is beneath the waters of Silver Springs. For many years appellees and their predecessors in title have operated glass-bottom boats over Silver Springs, by means of which Silver Springs and what is beneath the surface of that body of water, including the living creatures therein, are displayed for hire. Appellees have extensively advertised that business, and derive a substantial profit from it. A short time before the date of the filing of the bill in this case, the appellant acquired the above-mentioned tract of land on which it located its place of business called Paradise, and began the operation of a rival glass-bottom boat business, showing for hire Silver Springs and part of the stream into which the waters of Silver Springs are discharged and what is beneath the surface of those waters. For many years prior to 1925 boats carrying passengers and freight were operated from and to points on the Oklawaha and St. Johns rivers to and from the head of Silver Springs, where there were warehousing and docking facilities. At or near the head of Silver Springs is a settlement, also called Silver Springs, at which the United States maintains the Silver Springs post office.

Under above-indicated undisputed evidence it is not open to question, and it is conceded by counsel for appellees, that the body of water called Silver Springs, including the water which submerges part of the land included in the description contained in the land patent under which appellees deraign title, is navigable from its head or source. United States v. Holt State Bank, 270 U. S. 49, 56, 46 S. Ct. 197, 70 L. Ed. 465; United States v. Utah, 51 S. Ct. 438, 497, 75 L. Ed. ___, April 13, 1931. The parties advance conflicting contentions as to whether the appellees, as successors in title to James Rogers, the patentee, did or did not acquire any title to that part of the land included in the description contained in the patent which is submerged by the waters of Silver Springs; it being contended in behalf of the appellees that the patent was effective to convey title to all the land included by the description contained therein, and counsel for the appellant contending that, because, at the time of the entry and purchase in pursuance of which that patent was issued, the United States held in trust for the state to be created the title to the beds of all navigable waters within the territory which became the state of Florida, the patent was not effective to convey to the patentee, an ordinary purchaser of public land for private use, any title to or estate in that part of the land described in the patent which is under the navigable waters of Silver Springs. United States v. Holt State Bank, supra; Shively v. Bowlby, 152 U. S. 1, 47, 48, 14 S. Ct. 548, 38 L. Ed. 331. The United States, at the time of the patentee's entry and payment for the land described in the patent, being vested, as to that land, with the rights and power of both sovereign and proprietor, it seems that the patent conveyed to the patentee some title to or right of ownership in the part of that land which is covered by navigable water. Goodtitle v. Kibbe, 9 How. 471, 478, 13 L. Ed. 220; Shively v. Bowlby, supra; Brewer-Elliott Oil & Gas Co. v. United States, 260 U. S. 77, 43 S. Ct. 60, 67 L. Ed. 140; United States v. Holt State Bank, supra; Kneeland v. Korter, 40 Wash. 359, 82 P. 608, 1 L. R. A. (N. S.) 745; Hewitt-Lea Lumber Co. v. King...