State v. Gerbing

• Decision Date: 14 July 1908
• Citation: 47 So. 353,56 Fla. 603
• Parties: STATE ex rel. ELLIS, Atty. Gen. v. GERBING.
• Court: Florida Supreme Court

47 So. 353

56 Fla. 603

STATE ex rel. ELLIS, Atty. Gen. v. GERBING.

Florida Supreme Court, Division A.

July 14, 1908

Error to Circuit Court, Nassau County; D. U. Fletcher, Referee.

Quo warranto by the state, on relation of William H. Ellis Attorney General, against Gustay Gerbing. Judgment for defendant, and relator brings error. Reversed and remanded.

Syllabus by the Court

SYLLABUS

The navigable waters in the state and the lands under such waters including the shore or spaces between ordinary high and low water marks, are the property of the state, or of the people of the state, in their united or sovereign capacity. Such lands are not held for purposes 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 purposes of navigation, commerce, fishing, and other useful purposes afforded by the waters thereon.

The title to lands under navigable waters in the state, including the shore or space between high and low water marks, is held by the state in trust for the use of its inhabitants; such title being essential to the sovereignty of the state, to the proper exercise of the police power, and to the welfare of the people of the state.

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 others uses of the waters are not materially impaired.

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.

The rights of the people of the state in the navigable waters and the lands thereunder, including the shores or spaces between ordinary high and low water marks, are designed for the public welfare, and the state may regulate such rights and the uses of the waters and the lands thereunder for the benefit of the whole people of the state as circumstances may demand, subject, of course, to the powers of Congress in the premises.

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 in the state; but such privileges should not unreasonably impair the rights of the whole people of the state 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.

Gen St. 1906, ss 646-651, providing for limited privileges to individuals to plant oysters in the public waters of the state, do not authorize the conveying of title to the land and the statute expressly enacts that the privileges acquired under the act shall not obstruct or interfere with navigation, and that all existing natural or maternal oyster beds shall remain for the free use of the citizens of this state.

The protraction of lines of survey over the bed of a navigable river and the issue of patents therefor do not change the character of the title by which the lands under the river are held by the state.

The state may fix the exterior lines of a navigable river, if the rights of the people to the use of the waters and the shores of the river are not thereby substantially impaired; and submerged lands, not within the exterior lines of the river, may be disposed of by legislative authority, if such disposition does not impair the rights of the whole people to the use thereof for any purpose expressed or implied by law.

Act Cong. Sept. 28, 1850 (9 Stat. 519, c. 84), granting swamp and overflowed lands to the state for purposes of drainage and reclamation, does not cover or include tide lands, or lands under navigable waters, including the shores or spaces between ordinary high and low water marks, in the state.

The 'shores of a navigable river' are the spaces between high and low water marks, and the 'bed of the river' includes the shores. 'Tide land' is that which is daily covered and uncovered by water by the ordinary ebb and flow of normal tides.

'Swamp lands,' as distinguished from 'overflowed lands,' are such as require drainage to dispose of needless water or moisture on or in the lands, in order to make them fit for successful and useful cultivation.

'Overflowed lands' are those that are covered by nonnavigable waters, or are subject to such periodical or frequent overflows of water, salt or fresh (not including lands between ordinary high and low water marks of navagable waters), as to require drainage or levees or embankments to keep out the waters and thereby render the lands suitable for successful cultivation.

Lands in this state belonging to the United States, that were not covered by navigable waters at ordinary high-water mark and that required drainage or leveeing to render them suitable for the ordinary purposes of husbandry at the date of passage of Act Cong. Sept. 28, 1850 (9 Stat. 519, c. 84), granting swamp and overflowed lands to the state, were included in the act, and title thereto passed to the state under the provisions of the act.

The trustees of the internal improvement fund are not authorized to convey the title to lands under navigable waters below ordinary high-water mark.

COUNSEL

Fleming & Fleming, for plaintiff in error.

H. J. & H. J. Baker, for defendant in error.

OPINION

WHITFIELD J.

Stated briefly, this is a quo warranto proceeding, brought in the circuit court for Nassau county by the Attorney General to ascertain by what warrant or authority Gustav Gerbing has marked and staked off certain portions of the bed of Amelia river, a navigable stream in Nassau county, Fla., and claims and usurps the exclusive right to the use, benefit, and enjoyment of natural or maternal oyster beds upon the designated land below high-water mark and extending to the channel of said navigable river.

By answer the respondent denies that he has staked off a portion of the bed of Amelia river below high-water mark, and avers that the only lands marked and staked off by respondent are certain salt marsh lands, known and designated as lots and parts of sections; that the salt marsh lands near the rivers, inlets, and bays in the state of Florida were never treated and considered by the United States or the state of Florida as a part of the beds of the navigable streams, inlets, and bays in said state, which vested in the state by virtue of its sovereignty, but were treated and considered by the state and the United States as part of the swamp and overflowed lands which belonged to the United States, and were granted to the state by Act Cong. Sept. 28, 1850, c. 84, 9 Stat. 519; that the lands marked and staked by respondent and planted by him with oysters are owned by him in fee simple by virtue of a chain of title, to wit: (1) The act of Congress of 1850, granting to the state the swamp and overflowed lands; (2) a selection by the state of these lands as part of the lands inuring to the state under said act of Congress; (3) a patent from the United States to the state of Florida; (4) a deed from the state by the trustees of the internal improvement fund to Samuel A. Swann, and a deed from said Swann to respondent; that the lands, being marsh, were not surveyed in the original survey made by the United States, but by request of the state the lines of surveys were by the United States authorities protracted over said lands as marsh lands, and said marsh lands were patented to the state as swamp and overflowed land; that the lands staked by respondent do not extend to the channel of Amelia river; that respondent has not without authority or warrant of law claimed and usurped the exclusive right to the use, benefit, and enjoyment of any natural and maternal oyster beds within the bed of Amelia river, but has only claimed the exclusive right to the use and benefit of the oyster beds planted by him on lands owned by him as aforesaid; that respondent received from the county commissioners under the statute the exclusive right to plant oysters in such places along the Amelia river where the lands of respondent border on said river, but the lands so marked, staked, and planted by respondent were upon the lands owned by respondent as before stated.

The court sustained a demurrer to a replication, and the relator joined issue on the respondent's answer.

The cause was by agreement tried by Hon. D. U. Fletcher, a practicing attorney, as referee, who found that the respondent claims to own the lands described, or at least that portion thereof not in the channel of Amelia river, and has run a line of stakes along the easterly edge of the navigable portion of Amelia river within the lines protracted over the lands; that most of the stakes are set below low-water mark, but are not in the channel of Amelia river that there are natural or maternal oyster beds along the edge of the navigable portion of Amelia river, where some of the stakes extend below low-water mark, and some such oyster beds are between the stakes and high-water mark; that the land is marsh or mud flats, extending between the channel and shore of Amelia river, all of which is usually covered with water at high tide, and exposed, or not covered, except to a limited extent, at low tide; that the respondent has planted oysters above the stakes, and has forbidden any one to go upon or to get oysters from the...