Thiesen v. Gulf, F. & A. Ry. Co.

• Decision Date: 03 November 1917
• Citation: 78 So. 491,75 Fla. 28
• Parties: THIESEN v. GULF, F. & A. RY. CO. et al.
• Court: Florida Supreme Court

78 So. 491

75 Fla. 28

THIESEN v. GULF, F. & A. RY. CO. et al.

Florida Supreme Court

November 3, 1917

On Petition for Rehearing, Jan. 14, 1918.

On Rehearing, February 21, 1918.

Further Rehearing Denied April 19, 1918.

Error to Court of Record, Escambia County; Kirke Monroe, Judge.

Action by Christian Thiesen against the Gulf, Florida & Alabama Railway Company and others. From a directed verdict for defendants, plaintiff brings error. Reversed.

Syllabus by the Court

SYLLABUS

Private ownership of land riparian to navigable waters in this state extends ordinarily to high-water mark.

While a verdict should not be directed for one party when there is evidence on which the jury may lawfully find for the opposite party, yet where the burden is on the plaintiff to prove all the elements essential to sustain his claim to relief, and he fails to make such proof, a verdict may by directed for the defendant. Browne, C.J., dissenting.

On Rehearing.

At common law lands which were bounded by and extended to the high-water mark of waters in which the tide ebbed and flowed were riparian or littoral to such waters.

The title to the soil under the waters where the tide ebbs and flows and in this state all navigable waters, between high and low water mark is in the state of Florida subject to the powers of Congress to regulate commerce. The title to such land, however, is held by the state in trust for the people who have the rights of navigation, fishing, bathing, and commerce upon and in the waters.

At common law a riparian proprietor whose land extends to high-water mark of tide waters had the right of ingress and egress to and from the lot over the waters upon which his land bordered. In this state he enjoys such right and that of unobstructed view over the waters and in common with the public the right of navigation, bathing, and fishing in such waters.

A riparian owner of lands that are bounded by or extend to the high-water mark of tide waters or navigable streams and lakes has no right, without consent of the state, to erect or build any structure upon the submerged land between the ordinary high and low water marks of such waters.

A declaration, in an action for damages for interfering with one's rights as a common-law riparian owner of land on a bay, which declaration alleges a right in the aboutting landowner to build wharves, piers, and docks upon the submerged land to the channel of the bay, may be tereated as a valid declaration by eliminating the allegations as to the right to build wharves, docks, and piers to the channel as surplusage.

The American State Papers are received in evidence without other proof of their authenticity than the published volume.

The rights of a riparian owner at common law constitute property of which such owner cannot be deprived by the state under the Constitution, without just compensation.

Chapter 4802, Laws of Florida, 1899, entitled 'An act to grant the water front of the city of Pensacola,' is ineffectual to justify a railroad company under a grant from the city of the submerged land between high and low water mark lying in front of the land of a riparian owner, in depriving such riparian owner of his common-law rights as such without just compensation.

COUNSEL Sullivan & Sullivan and John S. Beard, all of Pensacola, for plaintiff in error.

Blount & Blount & Carter and Philip D. Beall, all of Pensacola, for defendants in error.

OPINION

PER CURIAM.

In an action to recover damages for filling in from the shore line towards the channel opposite plaintiff's land upon the waters of Pensacola Bay in Escambia county, Fla., the court directed a verdict for the defendants, and the plaintiff took writ of error to the final judgment for the defendants.

The statute under which the action is brought is as follows:

'643. An act entitled 'An act to benefit commerce,' approved December 27, 1856, and the grants therein made shall remain in force, which act is as follows:

"Whereas it is for the benefit of commerce that wharves be built and warehouses erected for facilitating the landing and storing of goods; and whereas, the state being the proprietor of all submerged lands and water privileges within its boundaries, which prevents the riparian owners from improving their water lots; therefore,

"The state of Florida, for the consideration above mentioned divests itself of all right, title and interest to all lands covered by water, lying in front of any tract of land owned by a citizen of the United States, or by the United States for public purposes, lying upon any navigable stream or bay of the sea or harbor, as far as to the edge of the channel, and hereby vests the full title to the same in and to the riparian proprietors, giving them the full right and privilege to build wharves into streams or waters of the bay or harbor as far as may be necessary to effect the purposes described, and to fill up from the shore, bank or beach as far as may be desired, not obstructing the channel, but leaving full space for the requirements of commerce, and upon lands so filled in, to erect warehouses or other buildings, and also the right to prevent encroachments of any other person upon all such submerged lands in the direction of their lines continued to the channel, by bill in chancery, or at law, and to have and maintain action of trespass in any court of competent jurisdiction in the state, for any interference with such property, also confirming to the riparian proprietors all improvements which may have heretofore been made upon submerged lands, for the purposes herein mentioned.'

'644. Nothing in this article contained shall be so construed as to release the title of the state of Florida, or any of its grantees, to any of the swamp or overflowed lands within the limits of the same, but the grant herein contained shall be limited to those persons and bodies corporate owning lands actually bounded by, and extending to low-water mark, on such navigable streams, bays and harbors.'

Sections 643, 644, Gen. Stats. 1906, Compiled Laws 1914.

Without objection on the part of the defendants, the plaintiff offered in evidence a written conveyance by Spanish authority dated December 31, 1813, covering 'one lot known by the number 369 (three hundred and sixty-nine) containing ninety-five feet front, by one hundred and thirty-one feet three inches in depth fronting on the bay.' Conceding, but not deciding, that it sufficiently appears that title to the described land passed by successive conveyances or otherwise to the plaintiff, yet in order ot maintain this action under section 643, General Statutes of 1906, the plaintiff must have shown that the described land was 'actually bounded by and extended to,' the waters of a 'navigable stream or bay of the sea or harbor.' Section 644, Gen. Stats. 1906. This is necessary to give to the plaintiff the statutory rights that under section 643 of the General Statutes of 1906 accure to stated riparian owners in and to the 'lands covered by water, lying in front of any tract of land * * * lying upon any navigable stream or bay of the sea or harbor.' While the expression 'fronting on the bay,' contained in the above-mentioned conveyance, may be taken in connection with other circumstances to indicate a boundary, it may also indicate aspect or location with reference to outlook. Alden v. Pinney, 12 Fla. 348. Taken alone, the words 'fronting on the bay' certainly cannot be held to be sufficient to show that the land was 'actually bounded by, and extended to' the waters of a navigable 'bay.' This being so, it was incumbent upon the plaintiff to show by evidence that the described land was 'actually bounded by, and extended to' the waters of a navigable stream or bay of the sea or harbor.'

It appears that a lot numbered 368 lies north of lot 369, which lot 368 extends north to Zarragossa street. It also appears that a 'dummy' railroad track now exists between the water and the uplands of lot 369. In the plaintiff's chain of title the description is 'east half of lots three hundred and sixtyeight and three hundred and sixty-nine in block one, containing forty feet front on Zarragossa street and extending back two hundred and sixty-one 3/12 feet to the Bay of Pensacola and fronting thereon forty-seven 6/12 feet be the front and depth more or less.' The dimensions of lot 368 are not given in the testimony. A map in evidence seems to indicate that lot 368 is 130 feet north and south. The bill of exceptions shows that the plaintiff testified, viz.:

'I measured the east side of lot 369 from Zarragossa street. I measured from Zarragossa 368 and continued through lot 369 to the water. I measured the west side in the same way. I measured one straight line, from Zarragossa street, practically the middle of the block; the alleyway, to the inside of the dummy track, 261 feet. It was 261 feet inside of the dummy track; just inside one rail, between the two rails. It was about 25 or 30 feet from there to the water before the Gulf, Florida & Alabama filling in was constructed.'

This does not show the southern boundary of lot 369 to be 'actually bounded by and extending to' the waters of a navigable bay. The plaintiff offered no direct testimony that in 1856, when the riparian statute was enacted, or since then, the lot was in part bounded by and extended to the waters of a navigable bay.

Frank Caro testified on behalf of plaintiff:

'I have known that property since 1882. There was a fence rnning east and west. but there was a lot run down to the bay.' 'There was no fence to the south. In fact it was open to the bay.'

Another witness, C. P. Bobe, whose grandfather had owned the lot, testified that:

'This lot camm down pretty close to the...