BLACK RIVER PHOSPHATE CO.
(Supreme Court of Florida. July 19, 1893.)
(Syllabus by the Court.)
Appeal from circuit court, Clay county; W. B. Young, Judge.
Bill by the state of Florida against the Black River Phosphate Company. Defendant had decree, and plaintiff appeals. Reversed.
The act of June 7, 1887, referred to in the opinions, grants to H. S. Greeno and others, and such other persons as may associate with them, the right to dig and remove, for 25 years, from the beds of the navigable waters within the jurisdiction of the state, the phosphate rocks and phosphatic deposits: "Provided, that the persons named and other associates shall not in any way interfere with the free navigation of the navigable streams and waters of the state, or the private rights of any citizen or citizens residing upon or owning the lands upon the banks of" such navigable rivers and waters. The grant is made on the express condition that the grantees shall pay $1 per ton for every ton of such phosphate dug and removed. It requires the execution of a bond of specified penalty and condition for making true returns of the quantity of phosphate mined and removed, and for making payment annually for the same; and also that their books shall be open for inspection by the comptroller or his duly-appointed agent, and provides that nothing in the act shall be so construed as to grant to the persons named exclusive rights. The statute also enacts: "That any other persons who may Incorporate under the laws of the state of Florida shall have the same rights, privileges, and franchises granted to said persons by this act, upon their complying with the requirements provided for in this act."
W. B. Lamar and A. W. Cockrell & Son, for the State. Cooper & Cooper, for appellee.
RANEY, C. J. The appellee, the Black River Phosphate Company, a body corporate under our laws, has been taking phosphate from the bed of Black creek, or, as it is also called, Black river. The company claims to be the owner of lands extending to the water of that stream, which Is both tidal and navigable In fact, and founds its claim of title to or right of property in such phosphate, as against the state, upon such riparian ownership and the act of December 27, 1856, entitled "An act to benefit commerce," and commonly known as "The Riparian Act of 1856," (sections 454, 455, Rev. St.) The first section of this statute, alter reciting:
"Whereas It is for the benefit of commerce, that wharves be built and warehouses erected for facilitating the landing and storage 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," enacts "that the state of Florida for the considerations above mentioned, divest themselves 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 vest the full title to the same in and unto the riparian proprietors, giving them full light 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, hank or beach, as far as may be desired, not obstructing the channel, but leaving full space for the requirements of commerce; and upon the 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 laud 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 within mentioned." The second, or remaining, section enacts "that nothing, in this act 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 body corporate, owning lands actually, bounded by, and extending to low-water mark, on such navigable streams bays and harbors."
The cases in which the act has come before this court for consideration are Geiger v. Filor, 8 Fla. 325; Alden v. Pinney, 12 Fla. 348; Rivas v. Solary, 18 Fla. 122; Sullivan v. Moreno, 19 Fla. 200; Ruge v. Apalachicola Oyster Canning & Fish Co., 25 Fla. 656, 6 South. Rep. 489.
In Geiger v. Filor (decided in 1859) the court, having stated that by the laws of Spain and England the sovereign of neither country could have alienated the land covered by the water, then observes that the question is not raised "as to the power of the state to alienate, but whether the state has actually transferred to complainants or to the proprietor from whom they derive title;" and afterwards, remarking that the avowed object of the law is to give to the riparian owners "the right and interest of the state in and to the land covered by water as far as the edge of the channel, and to owners who were prevented by the state's title from improving lots so situated between them and the water," it says that, If the complainants are such owners in contemplation of law, their case is made out; but it finds that "they, as assignees of the reserved fee of the original proprietors or dedicators of the streets, are not riparian owners within the meaning of the statute * * * There are no water lots at the ends of the streets held by them, and they are not the riparian proprietors prevented from improving any lots there claimed by them. * * * Neither the complainants nor the original proprietor of the lots derived title to the land between high and low water mark at the end of the streets from this law, and their claim on this ground is unsustainable." We also understand the view of the court to have been that, as between the city and riparian owners of lots which also abut on a street, the city would be entitled to the benefits of the act as to land opposite the end of the street, as long as the street continued to exist as such, and such lot owners afterwards; and, further, that the city was authorized by statute, apart from the riparian act, to construct and maintain wharves at the foot of its streets.
In Alden v. Pinney (decided in 1869) it was found that a street intervened between the land of complainants and high-water mark, and consequently that the complainants were not riparian proprietors, and that any full discussion of tile effect of the statute was improper. It is, however, observed in connection with the subject of the equitable jurisdiction invoked that riparian proprietors, too, under the act of 1856, "have a title coupled with a trust for the benefit of the public;" and it is said in another connection that wherever the title to this soilthat from the street to the channel is, whether in the city or the heirs of Pintado or in the state, it cannot under existing laws, be used in any event to obstruct navigation or commerce. If the grantees of the state hold it, It is coupled with this trust: and if it is put to such use, or such use is threatened, there are circumstances under which complainants can properly seek a court of law or equity to redress injuries. if this ice house, or any other structure which defendants intend to construct, will be an obstruction to navigation, a hindrance to commerce, or impede or transgress the rights of the public in this respect, the remedy to correct this public evil while It exists in the state courts Is not at the suit of an individual citizen, except in case of special damage to himself.
In Rivas v. Solary (A. D. 1881) the opinion, after stating that "the question presented is, who has the better right to the wharf and to the submerged land beneath it?" asserts that Williams, (under whom both parties claimed,) as owner of lot 19, had all the interest which followed from the act of 1856, "which was all the right, title, and Interest of the state to the land covered by the water lying in front of his lot, subject to the trust that It was to be used for the purposes of commerce, as stated in the statute;" that this title was attended with no other restrictions than those contained in the act, and that there was nothing In the act prohibiting his transfer subject to the same conditions that he held it on. That the effect of deeds to plaintiffs could not be extended so as to make them convey land not embraced within the boundaries or descriptions given by them. That what was granted by the state through the riparian act was in terms something more than the ordinary right which the proprietor of lands on a navigable stream had to its use; and the right to use for commercial purposes, after the act, was an incident to the ownership of the land, which the state gave to the riparian proprietor. That, anterior to the act, Williams* title as riparian proprietor did not extend beyond high water, but afterwards it extended to the channel, the act, in its terms, vesting the full title in him who owns land actually bounded by and extending to "low-water mark;" and that no ground could be seen by the court for holding "that it was simply appurtenant to the adjacent lands." That the state had the absolute proprietary interest in the land, and could grant it to the then riparian owner. It is further said that plaintiffs contend that the right to build a wharf passed as appurtenant to the land granted to them, but this could not be so for the reason that Williams' estate in the "land to the channel" was an estate in the land, and the right to build wharves was an incident to that proprietorship; and that plaintiffs' deed did not include this land, nor does land pass as appurtenant to land. The conclusion was that under the facts of the case Williams' deeds to Miss Wightman and others who had conveyed to complainants did not carry the land subsequently conveyed by him to Solary, and that the order dismissing the bill was proper.
Sullivan v. Moreno (A. D. 1882) is, like Alden v. Pinney, a case in which the court found that Moreno, who was seeking to enjoin Sullivan from constructing a wharf in front of his holding, did not show title to land extending to high-water mark. The opinion states that prior to the riparian act the state was the owner of the title to the soil of navigable tide waters to the line of ordinary high tide, "subject to the powers of congress in the matter of regulating commerce under the constitution of the United States;" and, farther, that by the statute the state divested herself of the submerged lands specified therein as far as to the edge of the channel, and, using the language of the statute, "vested the full title to the same in 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 ho 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 the lands so filled in to erect warehouses or other buildings;" and giving the right to prevent encroachments as specified In the act. In the opinion it Is also said that it was held in Alden v. Pinney that the evidence there failed to show that the complainants, or those whose title and right they claimed, had a water boundary in 1856, and that it was immaterial to inquire whether the rights granted by the state inured to any one other than one "owning lands actually bounded by and extending to low-water mark;" and also that, if the plaintiff there "had shown himself a riparian proprietor, there would have been such existing and threatened injuries of a special nature, coupled with other circumstances, that he would have been entitled under the statute to the aid of a court of equity to prevent special injury to himself. And of Rivas v. Solary it is observed that there "each of the parties claimed through a common source of title, and it was admitted that the parties through whom they claimed held to low-water mark;" and also that "what constitutes riparian proprietorship Is a water boundary, either at high or low tide, as may be the law;" and in considering the plaintiffs case as one founded on occupancy of a portion of the water front independent of any riparian ownership, but as a wood and coal yard, and a wharf which he had constructed in front of them out into the water, It is said: "The title to all this soil from the water line to the edge of the channel, with the right to fill it in with stone or other material which he may see proper to use in the construction of structures beneficial to commerce, is in the riparian proprietor of 1856, or his grantee, whoever he may be. * * * Under that act the title to the soil vested In the then riparian proprietor, coupled with the trust to use it for the benefit of commerce. Here the right to prevent the construction of this wharf is in the riparian proprietor."
There is nothing in Ruge v. Apalachicola Oyster Canning & Fish Co. that calls for any notice, at least at this point, further than that, in the opinion of Maxwell, J., after remarking that, in view of previous conclusions, it was scarcely necessary to consider the effect of the riparian act, it is observed that, if the Promenade Garden a park dedicated to the public for health, recreation, and amusementreally went to the shore, there may be a question whether the act vests any right to the water front as a public park; and that the use of it (meaning the submerged land) for such a purpose (meaning that of a park) is not within the contemplation of the act, and either the state holds It, or, if it goes to the Promenade, it goes divested of the character of a park, and, if used at all, must be used for the benefit of commerce in the erection of wharves, warehouses, and other buildings.
It is entirely clear that in no one of these opinions is it undertaken to fully define the relative status of the riparian owners on the one hand and of the public or state on the other, under the riparian act. The case of Rivas v. Solary Is the only one whose facts rendered necessary any expression as to the effect or intent of that law; and it, in view of the fact that the court acted upon the admission of both parties that the original proprietorship of Williams extended to low-water mark, cannot be held to have been Intended as finally committing the court to any further view of the statute than (1) that it was a valid grant to the extent of vesting in a riparian owner, holding to low-water mark, the legal title, without defining the trusts and uses upon and for which it was to be held and applied; and (2) that the land below high-water mark does not necessarily pass to a grantee of the upland as an incident and appurtenance of the latter, but the submerged land, or any part thereof, may be reserved upon a sale of the upland, or be made the subject of separate sale, or be sold with the upland; the question of the intent of the grantor that the submerged land, or any part thereof, shall or shall not pass with the upland being one of which the solution Is to be found in the terms of the deed of conveyance. Codman v. Winslow, 10 Mass. 146; Storer v. Freeman, 6 Mass. 435; Mayhew v. Norton. 17 Pick. 357; Niles v. Patch, 13 Gray, 254; Valentine v. Solomon, 22 Pick. 85; Green v. Chelsea, 24 Pick. 71; Parker v. Taylor, 7 Or. 435; Parker v. Rogers, 8 Or. 183; Deerrig v. Long Wharf, 25 Me. 51.
It is necessary to a proper solution of the question before us to ascertain the character of the title or holding of the state to the lands under navigable waters at the time of the enactment of our riparian statute. Potter, Dwar. St. 177, 178.
In Com. v. Alger, 7 Cush. 65, It Is said that by the common law of England as It stood long before the settlement of the colony of Massachusetts the title to the land or property in the soil under the sea, and over which the tide waters ebbed and flowed, including flats on the seashore lying between high and low water mark, was In the king as the representative of the sovereign power of the country. But it was held by a rule equally well settled that this right of property was held by the king in trust for public uses established by ancient custom or regulated by law, the principal of which Were for fishing and navigation. These uses were held to be public, not only for the king's subjects, but for foreigners, being subjects of states at peace with England, and coming to the ports and harbors of England with their ships and vessels for the purposes of trade and commerce. Again, It is observed In the same opinion: In this holding by the crown two distinct rights are regarded: (1) The ins privatum, or right of property in the soil, which the king may grant, and which may be held by a subject, and the grant of which will confer on the grantee such privileges and benefits as can be enjoyed therein subject to the jus publicum; (2) the jus publicum, the royal prerogative by which the king holds such shores and navigable rivers for the common use and benefit of all the subjects, and, indeed, of all persons of all nations at peace with England, who may have occasion to use them for the purposes of trade. This royal right, or jus publicum, Is held by the crown in trust for such common use and benefit, and cannot be transferred to a subject, or alienated, limited, or restrained, by mere royal grant, without an act of parliament. The king's grant, therefore, although it may vest the right of soil In a subject, will not justify the grantee in erecting such permanent structures thereon as to disturb the common rights of navigation; and such obstruction, notwithstanding such grant, Is held to be a public or private nuisance, as the case may be.
The specific nature of the trust in favor of all the subjects of the realm upon which in England the sovereign held the domain of navigable waters and shores, and the soil thereunder, was that those subjects should have the free use of such waters and shores. The waters, though the domain over and right of property in them were in the crown, were of common right, public for every subject to navigate upon and fish in without interruption; and, though the right of property in the soil to high-water mark was likewise in the king, yet the shore was also of common right public. The use of each was in the subjects for the inherent privileges of passage and navigation and fishing, as public rights, and since Magna Charta the king has had no power to obstruct navigation or grant an exclusive privilege of fishing; and the right of the people in this respect cannot be restrained or counteracted by the sovereign as the legal and sole proprietor. Any grant of the soil by the king Is always subservient, in the hands of the grantee, to the public right mentioned, and Is void in so far as it conflicts with these rights. Ang. Tide Waters, c. 1; Attorney General v. Parmeter, 10 Price, 378, 411; Attorney General v. Burridge, Id. 350, 377; Duke of Somerset v. Fogwell, 5 Barn. & C. 883, 884; Blundell v. Catterall, 5 Barn. & Aid. 208; Martin v. Waddell, 16 Pet 367. In England, the right of property in navigable waters, as stated above, being in the king, he could abate at his pleasure every purpresture or encroachment thereon that made several to the author of It that which ought to be common to all, whether such encroachment was a nuisance or not; nor could he license anything that was a nuisance to such common right. Whether or not a particular encroachment was a nuisance was always a question of fact, and not one merely of law. Though an erection below high-water mark, or even below low-water mark, be a purpresture, and abatable at the king's pleasure, It was not necessarily a nuisance. Ang. Tide Waters, 196204; Weber v. Commissioners, 18 Wall. 57; Alden v. Pinney, supra.
But when the Revolution took place, says the supreme court of the United States in Martin v. Waddell, 16 Pet 410, the people of each state became themselves sovereign, and in that character held the absolute right to all their navigable waters and the soils under them for their own common use, subject only to the rights since surrendered by the constitution to the general government; and a grant made by their authority must therefore be tried and determined by different principles from those which apply to grants of the British crown when the title is held by a single individual in trust for the whole nation. Com. v. Alger, 7 Cush. 53, 90, 92, 93.
And subsequently, in Pollard's Lessee v. Hagan, 3 How. 219, the supreme court decided that the shores of the navigable waters and the soils under them were not ceded by the original states through the constitution to the United States, but were reserved by the states, subject, however, to the power of the general government, under section 8, art. 1, of the constitution, to "regulate commerce with foreign nations and among the several states;" and, further, that new states admitted into the Union on equal footing with the original states have the same rights. sovereignty, and jurisdiction over all such lands within their borders. By the express provision of the act of congress of March 3, 1845, Florida was "admitted into the Union on equal footing with the original states in all respects whatsoever." These lands must be regarded as having been withheld by the original states as essential to their sovereignty, and as having passed from the United States to the new states upon the same principle; and in Pollard's Lessee v. Hagan, supra. it is also said that to give to the United States the right to transfer to a citizen the title to the shores and the soil under the navigable waters would be placing in their hands a weapon which might deprive the states of the power to exercise a numerous and important class of police powers.
As tending to Illustrate the nature of the tenure of these waters and the lands under them, including the shore, and the use for which the same are intended, It may be remarked that the right of property of the general government in other lands and waters, i. e. the uplands and nonnavigable waters and the lands under the same, in the new states, and those in the original states granted by them to the United States, (Pollard's Lessee v. Hagan, 3 How. 224,) was not affected by the attainment of statehood. Section 2, art. 4, Const. U. 8.; Pollard's Lessee v. Hagan, 3 How. 224. The reason of this distinction Is that this class of lands and waters, when not held for forts, magazines. arsenals, dock yards, or other needful buildings, (article 1, 8, cl. 17, Const.,) or for public parks or similar purposes, is not held for use as such by either the government or the people, but rather to the end that they shall finally become the subject of individual or several ownership, under such processes of disposition as congress may from time to time adopt; the proceeds, In case of sale, to be used for the common welfare, according to the will of the lawmaking power. In the case, however, of navigable waters and the lands thereunder, including the shore, the chief end and purpose of their tenure is the use of such waters, lands, and shore themselves, by each and all of the people as their common property.
In Bathing Co. v. Heidenheimer, 63 Tex. 563, it Is held that there the gulf shore and surf belong to the public; that every citizen has the same rights there as every other citizen, and none have the right to the exclusive use of this public property; and that any citizen of the state has the right to erect a bathhouse in the surf, so that it is not made a nuisance, or so constructed or used as to materially interfere with the rights of the public to the enjoyment of the waters and the shores of the gulf.
In Weber v. Commissioners, 18 Wall. 57, a case in which the harbor commissioners of San Francisco, acting under a statute of California authorizing them to Improve the harbor of that port, had caused piling, with capping and planking, to be put on both sides of a wharf which Weber had erected, and which extended into the navigable waters of the bay, such piling preventing any approach to the wharf by vessels, it is said that by the common law the title to the shore of the sea and of the arms of the sea and in the soils under tide waters is, in this country, in the state; and that any erection thereon without license is therefore deemed an encroachment upon the property of the sovereign, or, as it is termed in the language of the law, a purpresture, which he may remove at pleasure, whether It tend to obstruct navigation or otherwise; and, further, that although the title to the soil under the tide waters of the bay was acquired by the United States by cession from Mexico equally with the title to the upland, they held It only in trust for the future state, and that upon the admission of California into the Union upon equal footing with the original states absolute property in and dominion and sovereignty over all soils under the tide waters within her limits passed to the state. with the consequent right to dispose of the title to any part of said soils in such manner as she might deem proper, subject only to the paramount right of navigation over the waters so far as such navigation might be required by the necessities of commerce with foreign nations or among the several states, the regulation of which was vested in the general government.
In McCready v. Virginia. 04 U. S. 391, which affirmed the validity of a statute of Virginia prohibiting citizens of other states from planting oysters in the soil of that state covered by tide waters, the doctrine of the opinion Is that each state owns the beds of all tide waters within Its jurisdiction, unless the same have been granted away; and that in like manner it owns the tide waters themselves, and the fish In them, so far as they are capable of ownership while running; and that for the purpose of such ownership the state represents the people In their united sovereignty, the title thus held being subject to the paramount right of navigation. the regulation of which, in respect to foreign and interstate commerce, has been granted to the United States, there being, however, no such grant of power over fisheries. "The fisheries," says the opinion, "remain under the exclusive control of the state, which has consequently the right, in Its discretion, to appropriate Its tidal waters and their beds to be used by Its people as a convenience for taking and cultivating fish, so far as it may be done without obstructing navigation. Such an appropriation is, In effect, nothing more than a regulation of the use by the- people of their common property. The right which the people of the state thus acquire comes not from their citizenship alone, but from their citizenship and property combined. It Is in fact a property right, and not a mere privilege or Immunity of citizenship."
In Illinois Cent R. Co. v. Illinois, 146 U. S. 387, L3 Sup. Ct. Rep. 110, It was held to be the settled law of this country that the ownership of and dominion and sovereignty over lands covered by tide waters within the limits of the several states belong to the several states within which they are found, with the consequent right to use or dispose of any portion thereof when that can be done without substantial Impairment of the interest of the public in the waters, and subject always to the paramount right of congress to control their navigation so far as may be necessary for the regulation of commerce with foreign nations and among the states. And in this opinion It Is said: "By the common law the doctrine of the dominion over and ownership by the crown of lands within the realm of England under tide waters was not founded upon the existence of the tide over the lands, but on the fact that the waters were navigable, tide waters and navigable waters being used as synonymous terms in England. That the public being Interested In the use of such waters, the possession by private Individuals of lands under them could not be permitted, except by license of the crown, which could alone exercise such dominion over the waters as would insure freedom in their use so far as consistent with the public Interest; this doctrine being founded upon the necessity of preserving to the public the use of navigable waters from private interruption, a reason as applicable to navigable fresh waters as to those moved by the tide. * * * That the state holds the title to the lands under the navigable waters of Lake Michigan, within Its limits, in the same manner that the state holds title to soil under tide water by the common law; * * * and that title necessarily carries with It control over the waters above them, whenever the lands are subjected to use. But It Is a title different in character from that which the state holds in lands intended for sale. It is different from the title which the United States hold In the public lands which are open to preemption and sale. It Is a title held In trust for the people of the state that they may enjoy the navigation of the waters, carry on commerce over them, and have liberty of fishing therein freed from obstruction or Interference of private parties. The interest of the people in the navigation of the waters and in commerce over them may be improved In many Instances by the erection of wharves, docks, and piers therein, for which purpose the state may grant parcels of the submerged lands; and so long as their disposition is made for such purpose no valid objections can be made to the grants. It Is grants of parcels of lands under navigable waters that may afford foundations for wharves, piers, and other structures in aid of commerce, and grants of parcels which, being occupied, do not substantially Impair the public interest in the lands and waters remaining, that are chiefly considered and sustained in the adjudged cases as a valid exercise of legislative power consistently with the trust to the public upon which such lands are held by the state. But that Is a very different doctrine from the one which would sanction the abdication of the general control of the state over lands under the navigable waters of an entire harbor or bay, or of a sea or lake. Such abdication Is not consistent with the exercise of that trust which requires the government of the state to preserve such waters for the use of the public. The trust devolving upon the state for the use of the public, and which can only be discharged by the management and control of property in which the public has an Interest, cannot be relinquished by a transfer of the property. The control of the state for the purpose of the trust can never be lost, except as to such parcels as are used In promoting the Interests of the public therein, or can be disposed of without any substantial Impairment of the public interest in the lands and waters remaining. It Is only by observing the distinction between a grant of such parcels for the Improvement of the public interest, or which, when occupied, do not substantially Impair the public interests In the lands and waters remaining, and a grant of the whole property In which the public Is interested, that the language of the adjudged cases can be reconciled. General language sometimes found in the opinions of the courts, expressive of absolute ownership and control by the state of lands under navigable waters, irrespective of any trust as to their use and disposition, must be read and construed with reference to the special facts of the particular case. A grant of all the lands under the navigable waters of a state has never been adjudged to be within the legislative power; and any attempted grant of the kind would be held, If not absolutely void on its face, as subject to revocation. The state can no more abdicate its trust over property In which the whole people are interested, like navigable waters and soils under them, so as to leave them entirely under the use and control of private parties, except in the Instances of parcels mentioned for the improvement of the navigation and use of the waters, or when parcels can be disposed of without impairment of the public interest in what remains, than It can abdicate its police power in the administration of government and the preservation of the peace. In the administration of government the use of such powers may for a limited period be delegated to a municipality or other body, but there always remains in the state the right to revoke those powers, and exercise them in a more direct manner, and one more conformable to its wishes. So with trusts connected with public property, or property of a special character, like lands under navigable waters, they cannot be placed entirely beyond the direction and control of the state. * * * The ownership of the navigable waters of the harbor [that of Chicago] and of the lands under them is a subject of public concern to the whole people of the state. The decisions are numerous which declare that such property is held by the state, by virtue of its sovereignty, in trust for the public. The trust with which they are held, therefore, Is governmental, and cannot he alienated except in those Instances mentioned of parcels used In the improvement of the interests thus held, or when parcels can be disposed of without detriment to the public interest in the lands and waters remaining. This follows necessarily from the public character of the property being held by the whole people for purposes in which the whole people are Interested. * * * Necessarily must the control of the waters of a state over all lands under them pass when the lands are conveyed in fee to private parties, and are by them subjected to use. * * * The soil under navigable waters being held by the people of the state in trust for the common use and as a portion of their inherent sovereignty, any act of legislation concerning their use affects the public welfare. It Is therefore appropriately within the exercise of the police power of the state. * * * The legislature could not give away nor sell the discretion of Its successors in respect to matters the government of which, from the very nature of things, must vary with varying circumstances. The legislation which may be needed one day for the harbor may be different from the legislation that may be required at another day. Every legislature must, at the time of Its existence, exercise the power of the state In the execution of the trust devolved upon It."
Though the language of these decisions from the supreme court of the United States is broader or less restrained In the two former cases than in the last, yet, as Intimated in the last, there Is no conflict of view in them, when the general expressions of the former are construed with reference to their respective facts,a point beyond which the general observations of an opinion cannot properly be carried or relied on. Of the facts of the second of them McCready v. Virginiait Is unnecessary to say more than Is stated above. In Weber v. Commissioners the legislature of California, by an act of March 26, 1851, grant. ed to the city of San Francisco, for 99 years, the use and occupation of portions of the lands lying in front of the city and within a certain designated line, and declared that this line should be and remain a permanent water front of the city. It also provided that the city authorities should keep the space beyond the line, to the distance of 500 yards, free and clear from nil obstructions whatever, and reserved to the state the right to regulate the construction of wharves and other Improvements so that they should not Interfere with the shipping and commercial interests of the bay and harbor. Another statute, enacted about a month later, authorized the city to construct wharves at the end of all the streets commencing with the bay, the wharves to be made by extending the streets Into the bay not more than 200 yards beyond the above-mentioned water-front line, and provided that the space between the wharves, when extended, should remain free from obstructions, and used as public slips for the accommodation and benefit of the general commerce of the city and state. In 1858 the predecessors of Weber acquired the title of the city to certain lots, about 120 feet In extent, lying along the stated water front; and In 1854 they built a platform along this front, the whole length of the lots, and then constructed from the center thereof into the bay a wharf 54 feet long and 50 feet wide, leaving a space on each side for the approach and dockage of vessels. The permanent water front, as established, was In many places, Including the one In question, at a great distance from the line of the shore of the bay as that shore existed when the state was admitted Into the Union. Ships of the largest size then floated at the lowest tide along this line. From the construction of the wharf until the interference of the harbor commissioners, who were acting under a statute of 1863, the owners and their successors continued In the uninterrupted possession of the same, and collected tolls and wharfage. The decision of the court was that Weber took whatever Interest he obtained subordinate to the control by the city over the space Immediately beyond the line of the water front, and the right of the state to regulate the construction of wharves and other Improvements, and that he was not a riparian proprietor having a right to wharf out Into the bay; and that the erection of the wharf was an Interference with the rightful control of the city over the space occupied by It, and an encroachment upon the soil of the state, which she could remove at pleasure; and that, having the power of removal, the state could, without regard to the existence of the wharf, authorize Improvements In the harbor, by the construction of which the use of the wharf !would necessarily be destroyed. The legislation of 18(33, whose purpose was the protection of the harbor and the convenience of shipping and promotion of commerce, was clearly within the provisions of that of 1551, as to keeping the space beyond the line clear and free from obstruction, and that that between the wharves at the end of streets should remain for use as slips, and also within the designated reservation In favor of the state; subject to which earlier legislation the predecessors of Weber took whatever interest they obtained.
The facts In the case of Illinois Cent. R. Co. v. Illinois were, In short, and so far as they need be stated, that the railroad company constructed Its roadway 200 feet In width along the water front of the city of Chicago, on Lake Michigan, with tracks thereon, and with guards against danger In Its approach and crossings, and a breakwater on the east beyond the tracks, and necessary works for the protection of the shore on the west, such works being constructed pursuant to the requirements of an ordinance of the city, under authority of law, as a condition of the city*s consent to the location by the company of Its road within the corporate limits. As to these works, Including the roadway, extending as they did out into the water, It was held that they did not as a matter of fact Interfere with any useful freedom In the use of the waters of Lake Michigan for commerce, either foreign, Interstate, or domestic; and, being authorized by law, they could not be held to be such an encroachment upon the domain of the state as to require the Interposition of the court for their removal, or for any restraint in their use. And it was also decided that the company did not by Its reclamation from the waters of the lake of the land upon which its tracks were laid, or the construction of the road and works connected therewith, acquire an absolute fee In the tract reclaimed, with a consequent right to dispose of the same to other. parties, or to use it for other than railroad purposes; nor did It, by constructing such roads and works, acquire a right as riparian owner to reclaim additional lands from the water for Its use or for the construction of piers, docks, and wharves in furtherance of Its business, the extent to which the company could reclaim being limited by the conditions of the ordinance both as to the width to which reclamation could be made and the works to be constructed. The company also acquired the fee In certain lots on the lake front and reclaimed land, and built piers and slips In front of the same; and It was held that It had the right to use In Its business such reclaimed land and slips, unless It should be found on further examination upon remanding the cause that the piers as constructed extended beyond the point of "practicable navigability" In the waters of the lake. But It was also decided that the construction of a pier or the extension of any land into navigable waters by one not the owner of the riparian land does not give such person, whether an individual or a corporation, any riparian rights. Some years subsequently (A. D. 1869) the legislature passed an act granting to the company all the right and title of the state In and to the submerged land constituting the bed of the lake, and lying east of the tracks and breakwater of the company, for the distance of one mile, the fee of such land to be held In perpetuity by the company, without power to grunt, sell, or convey the same; and It was decided that this act not only could not be invoked to extend the riparian rights of the company resulting from Its ownership of the lots referred to, but also that, as to the remaining submerged lands covered by the terms of the act, it was not competent for the legislature to thus deprive the state or people of the ownership of the submerged lands in the harbor of Chicago, and of the consequent control of Its waters, and that the cession was inoperative to affect, modify, or In any respect control the sovereignty and dominion of the state over the lands, or the ownership thereof, and that the act of 1869 was annulled by a repealing act of 1873.
It Is entirely clear that there is nothing in the Virginia and California cases that either called for or justified a precise definition of the nature of the tenure or trusts upon which lands below low-water mark are held, or of the powers of the legislature, as the representative of the people, to dispose of them. The general assertations made in them were entirely sufficient for the purposes of the cases under adjudication, and are not authority beyond the issues made therein. The power of the legislature of California to grant to San Francisco, as against the people of California, or even any one else, the submerged land out to the permanent water front, was not questioned in the California case; nor do the state or people of Virginia question the validity of that state*s oyster legislation in the McCready Case. The issues in the Illinois case are, however, altogether different, and required the full adjudication and exposition there made, and we have found nowhere any authority that Is in conflict with the conclusions presented by it. Attorney General v. Parmeter, 10 Price, 378. We are sure that the case of Hoboken v. Railroad Co., 124 U. 5. 656, 8 Sup. Ct. Rep. 643, presents no such conflict, end do not feel that it Is necessary to say more of it.
Excluding as Immaterial to the question before us all rights growing out of interstate and foreign commerce under the constitution of the United States, the result of these authorities is that at the time of the passage of our riparian act the navigable waters of the state and the soil beneath them, including the shore or space between high and low water marks, were the property of the state, or of the people of the state in their united or sovereign capacity, and were held, not for the purposes of sale or conversion into other values, or reduction into several or individual ownership, but for the use and enjoyment of the same by all the people of the state for at least the purposes of navigation and fishing and other implied purposes; and the lawmaking branch of the government of the state, considered as the fiduciary or representative of the people, were, when dealing with such lands and waters, limited in their powers by the real nature and purposes of the tenure of the same, and must be held to have acted with a due regard for the preservation of such lands and waters to the uses for which they were held.
In construing this act, not only are we to keep in view the real nature of Its subject matter, but It Is to be judged In the light of the rule applicable to all grants by the government, which Is that they are to be strictly construed, or be taken most beneficially in favor of the state or public, and against the grantee. Potter, Dwar. St. 171; Gould, Waters, 23, 36; Britain v. Canal Co., 3 Barn. & AId. 130; Proprietors of Stowbridge Canal v. Wheeley, 2 Barn. & Adol. 792; Feather v. Queen, 6 Best & S. 257; McManus v. Carmichael, 3 Iowa, 1; Commissioners v. Water Power Co., 104 Mass. 446; Minturn v. Larue, 1 McAll. 370; Northwestern Fertilizing Co. v. Hyde Park, 70 Ill. 634. It will not be presumed that anything was intended to pass that Is not denoted by clear and special words. Martin v. Waddell. 16 Pet. 411. "As a general rule," says the supreme court of Massachusetts in Com. v. City of Roxbury, 9 Gray, 451, 492, 493, a case similar in Its nature to this, --- "in all grants from the government to the subject the terms of the grant are to be taken most strongly against the grantee and in favor of the grantor. * * * But this rule applies, a fortiori, to a case where such grant by a government to individual proprietors is claimed to be not merely a conveyance of title to land, but also a portion of that public domain which the government held in a fiduciary relation for general and public use. * * * But where a body like the colonial government holds two distinct powers,one for granting and distributing lands to parties entitled, for settlement in perpetuity, and of which power It Is in the habitual and constant exercise as one of the ordinary and prominent purposes of its establishment, and at the same time has a fiduciary interest and authority over the public domain. the grant, while It conveys the land, will not be held to Include any portion of such public right, unless It is included in Its terms by express words or necessary implication." See, also, Stevens v. Railroad Co., 34 N. J. Law, 532, 553.
The Intent and effect of this grant are to be ascertained from a consideration of all Its parts. We have before us no simple transfer to the riparian owners of the title of the public or people in their sovereign capacity to the soil from high-water mark to the edge of the channel. The effect of such a grant, considering the fiduciary nature of the holding, would be nothing more than a transfer of the title subject to the public trusts; and whether or not such a transfer would create any beneficial right in the contents of the soil beneath the sea, in so far as such contents could be used or availed of without impairing the public use of such waters, and of the rights incident thereto, Is immaterial to decide, and for the reason that, In our judgment, the same conclusion as to the meaning and effect of the act, as It Is, follows whichever of these hypotheses we assume. If such simple grant would be to carry the property right contended for by the appellee, the additional terms of the act must. have been Intended to limit what would have been the effect of such a grant; whereas, If an unqualified grant would not have given it, the added language Is insufficient to do so. Ignoring both the title and the preamble, considered merely as such, there is still apparent in its body, or enacting part, the distinct public purpose of connecting the shore and banks of bays, harbors, and streams with the channel of navigable waters. Instead of being an absolute and unqualified gift to Individual proprietors of land intervening the shore or banks and the channel, it is, so long as the water shall not be converted Into land by filling in, a grant for a particular end and specially defined use, and one In which the terms used, considered with reference to the subject-matter, show that the public trust upon which the property was held was not lost sight of, but its preservation and promotion intended. This purpose, in so far as Is shown by the enacting part of. the statute, (outside of the words, "for the considerations above mentioned" which mean, "to the end indicated by the preamble,") is to be found in the words, "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 tip 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;" the words "purposes described," used in this connection, referring to that of facilitating the landing and storage of goods as stated in the preamble, by the means indicated in the act; and they in effect incorporate the preamble into the body of the statute, and make it a part thereof. Nowhere in the statute can anything be found that is inconsistent with the intent indicated. The language of the title and that of the preamble and the remainder or body of the statute are in fullest accord with it, and there is no inconsistency between the title and preamble and the remainder of time act. The people of the state being the proprietors of all the navigable streams, bays, and harbors, and of the land beneath them, (Attorney General v. Chambers, 4 De Gex, M. & G. 205; Stevens v. Railroad Co., 34 N. J. Law, 533,) and the legislature, their representative, deeming it to be for the public good and the promotion of commerce that wherever wharves were required to bring together the shore and the channel or the former and the vessels navigating such waters, wharves should be built and warehouses erected for facilitating the landing and storage of goods which might be the subject of conveyance on any of such navigable waters, and recognizing that such ownership of the state and its consequent powers were a bar to the riparian owner building such wharves or improving their riparian lets in any of the ways permitted by the statute, and the public or state not being prepared to undertake the work of building such wharves or filling in the water, it determined to encourage the riparian owners to do what the state alone could do of itself, or authorize another to do, without possibility of any interference that would cause a less to such riparian proprietor. The plan of the act is that the title of the submerged land should be vested in the riparian owner for these uses and purposes. The state, "for the considerations above mentioned," divests herself and invests the riparian owner with the title to the land. These "considerations" are for the purpose and end that commerce may be benefited in the manner described by the statute; and that the grant is one of the class in which the purpose that the submerged land, which is the subject of the grant, shall, as long as it Is of that character, be used or applied for the benefit of commerce, is apparent and controlling. Admitting that It vested the full title sole and would seem It did,still the uses the purposes of exclusive benefit to himself for which it was vested are those declared in the act, and necessarily implied in the same. As the holder of such title, he was to have the right and privilege to build wharves into the stream or waters of the bay or harbor as far as may be necessary to effect the purpose of landing and storing goods which at any time are to become or be the commerce of such stream or other waters, not obstructing the channel, but leaving full space for time requirements of commerce. He also has the right to fill up the water from the shore, bank, or beach as far as he may desire, not obstructing the channel; being thus allowed to extend the shore from the original high-water mark towards time edge of the channel by supplanting the water by earth, converting pro tanto the natural water way into earth; and with the farther /right and privilege, in the latter case, of erecting warehouses or other buildings "upon lands so tilled in." Though the act secures to the riparian owner the right of such beneficial improvement of the submerged land, and consequent improvement of his riparian lot, and though the improvements contemplated by the act, when made, can be used for all proper purposes by the owner in the same way that similar properties, however obtained, may be used, yet it never was the purpose of the act that any beneficial use of the submerged land or bed of the waters distinct from that appertaining to any other member of the public should vest In the riparian owner, or be enjoyed by him, except and until there has been an application of the submerged land to the designated purposes of the statute by making improvements of the character indicated. Until this is done none of the exclusive privileges offered by or flowing from the statute, as Incident to such improvements, arise. The making of these improvements are contingencies upon which the legislature intended that the exclusive rights necessary to time enjoyment of the same should arise. It never was its intention that the general rights of the public as to the use of the land or water should be impaired, or in any manner affected, so long as the riparian owner did not see fit to avail himself of the special privileges of the act; to hold that it was would be to convert into an obstacle to commerce, and curtailment of the rights of the public, that which was intended as a promoter of both in a specially prescribed manner, and would give without consideration special privileges which It was not in tended should accrue except upon the performance of what are the purposes of the act, and must have been deemed an essential to their enjoyment. The statute vests him with the title, or annexes to the title to the riparian land the ownership, of the* land granted by it out to the channel, but the beneficial use by him of this title and land are so limited by the other words and general purposes of the act that as against the public, the state, or any citizen of the state, he has outside of the right to improve, and thereby secure, the consequential rights Incident thereto, and the remedies for protecting such right to improve, no other or greater right or privilege than any other citizen of the state has. As long as he does not avail himself of this right, he is the holder of the legal title, but without certain powers, always incident to sovereignty, in connection with such lands and waters, and subject to the power and duty of the state to restrain the use of such land to the purposes of the grant New Orleans v. U. S., 10 Pet. 662, 737. Of course, he, in the absence of subsequent constitutional or valid legislation, can protect his exclusive right to improve from invasion by "any other person," but, except for the purposes of making such improvements, he, until he does make them, has no more right to land upon, to traverse, to fish for either floating or swimming or shell fish, or to dig in or use such lands below high-water mark, or the waters above them, than any other citizen has. The terms of the statute, other than those which merely vest the title, limit the use of the land, the subject of that title, just the same, and even more, under the strict rules of construction obtaining in cases of public grants, as the same clauses, in the usual form of an habendum, may limit the ordinary granting words of a deed of conveyance. 2 Bi. Comm. 298; 3 Washb. Real Prop. 437440; Watters v. Bredin, 70 Pa. St. 235; Nightingale v. Hidden, 7 R. I. 115, 118. These words cannot be ignored. They were put there to limit and qualify the right of the riparian owner, and preserve to the public every right not clearly expressed by them, or necessarily implied by their meaning, as given to such owner. The use of these lands, and the waters over them, in the digging and removing of phosphates or other substances on or beneath their surface for gain Is not within either the expression or the Implication of these terms, or the purpose or intent of the statute. Before the act any citizen of the state had the right to go upon these waters, including the shore when the tide is down below high-water mark, and to take fish from such waters and shore, and neither these nor any other of the uses to which they were subject then have been taken away by the statute so long as the riparian owner has omitted to make any of the improvements contemplated by the statute; but he could not go there and dig up the soil Independent of the control and regulation of the state, and convert it to his own use or gain, nor can he do so now, nor has the statute given the riparian owner the right to do so. Gould, Waters, 24. Grant that his right to improve, and thereby secure benefits contemplated by the act as the result of such improvements, if he chooses to exercise it, may prevent the state from, permitting any one else to go there and take phosphates, and defeat his right to so improve, and believing, as we do, that the exercise of the right, secured by the statute, to convert water into land by filling In, results in the ownership of such land as any other, or as land relieved of nil the trusts of its former submerged condition, still the act grants to the riparian proprietor no such right as to or in the land in its natural condition, and the state has not parted with its power, as the representative of the people, to prevent any use of the land which is not authorized by the statute. New Orleans v. U. S., 10 Pet 662, 737. Conceding that the legislature may be limited, by the nature of the people's tenure of such lands explained above, in its powers as to the manner in which phosphates may be authorized to be taken, even by a riparian owner, still, in the absence from the statute of any authority to take them from the beds of navigable waters, he cannot do so except by the consent of the state duly given by the lawmaking power, and upon such terms and conditions as It may prescribe.
The decision in Hoboken v. Railroad Co., 124 U. 5. 656, 8 Sup. Ct. Rep. 643, is not in conflict with the above conclusions; and what was expressly stated in the legislation there as to benefits arising when the improvements should be made is with equal force implied here to the extent stated above.
That such limited use of the lands was intended by the legislature Is also shown by the last clause of the second section of the act, which clause reads: "Also confirming to the riparian proprietors all Improvements which may have heretofore been made upon submerged lands, for the purposes within mentioned." Construing it as meaning to confirm to such proprietors only such improvements as had been made for the special pm-pose of facilitating the landing and storage of goods, or benefit of commerce, or as intending to confirm for the advancement of the purposes of the act all improvements of whatever nature, it is still clear that the use of the land and such improvements for such purposes of commerce was the end which the legislature had in view. The intent to limit the use of the land in Its natural state is further shown by the fact that no authority is given to erect warehouses or other buildings" except on land which may be "filled in," the idea evidently being that, until the water was made land, only wharves, a known instrument of commerce, should be built on the submerged land; or, in other words, that, 50 long as any land granted by the act remained submerged, such land should only be used for purposes of commerce. Of course, as soon as It became land by being filled In, there was no more reason why It should not be built upon than other land adjacent to the water. It is entirely relieved of the trust attached to lands submerged by navigable waters, just as if it had become land by accretion or sudden upheaval.
The only. remaining provision of the act necessary to be discussed under the facts of this case is that giving to riparian proprietors the right to prevent encroachments of any other person upon all such submerged land 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. This provision is not, and was not intended as, a grant of any property right, and cannot be invoked as such. It is simply remedial in Its nature, and gives nothing which would not flow to the riparian owner by implication from other parts of the statute. We must look to the rights granted by the act to ascertain what can be held to be "encroachments by another person upon nil such submerged land," or "an interference with such property," as against the riparian owner. We have stated several things which would not be, and stated a class of things that might he. No such encroachments or interference are shown by this record.
Whether we should hold the word "channel" to mean merely the "point of practical navigation," or give It an interpretation more favorable to the riparian owner, we are satisfied that the grant, construed as It Is above, is valid; but we cannot admit that a disposition of the land under the entire water front of our actually navigable streams, bays, and harbors, on terms less favorable to the public, would be so.
In interpreting this statute we do not think we have given any effect to the preamble that the purview of the act does not Itself sustain, (Potter, Dwar. St 267-269,) or have Ignored or treated as surplusage any of the Words of the statute, nor given too much force to any of them, and thereby given the law a meaning different from the intent shown by It as a whole; and the intent and purpose which we have ascribed to the lawmakers Is founded upon the meaning of the words of the act considered as a whole, and with reference to Its subject-matter. So considered, the act, in our judgment, does not import a broader meaning or different Intent than we have given it. Id. 175194, and notes.
The decisions on the Massachusetts Colonial Ordinance are worthy of consideration In this connection. The ordinance, as adopted In the year 1641, was: "Every inhabitant that Is an householder shall have free fishing and fowling in any great ponds and bayes, coves and rivers, so farre as the sea ebbes and flowes within the precincts of the towne where they dwell, unless the free men of the same towne or the general court have otherwise appropriated them; provided that this shall not be extended to give leave to any man to come upon others' propertie without there leave." In 1647 it was amended thus "The which dearly to determine; It is declared that in all creeks, coves and other places about and upon salt Water, where the sea ebbs and flows, the proprietor of the land adjoining shall have propertie to the low-water mark, where the sea doth not ebbe above a hundred rods and not more wheresoever it ebbs further; provided, that such proprietor shall not by this libertie have power to stop or hinder the passage of boats or other vessels, in or through any sea, creeks or coves, to other men's houses or lands." Vide note to Com. v. City of Roxbury, 9 Gray, 465; Com. v. Alger, 7 Cush. 67. In Com. v. Charlestown, 1 Pick. 150, an indictment for a nuisance in not repairing bridges which the court of sessions had established over a navigable stream, the opinion (pages 183, 184) having observed that the government, to encourage the building of wharves, quays, and piers, and to prevent disputes and litigation, transferred its property In the shore of all creeks, coves, and other places upon the salt water, where the sea ebbs and flows, says: "Those who thus acquired the property of the shore were restricted from such a use of it as would impair the public right of passing over the water, in boats or other vessels, through any sea, creeks, or coves, to other men's houses or lands, by which it was intended to reserve a free passage over the water in such places, in the same manner as it existed before the public property In the shore was transferred. The ordinance of 1641 has therefore made no alterations in the use of places therein described while they are covered with water, and they remain free for all the citizens of the commonwealth; so that even the proprietor of the flats cannot lawfully erect anything upon them which will obstruct or hinder such passage, though he may build wharves extending towards the sea to the distance of one hundred rods, provided he do not thereby straiten or interrupt the passage over the water in such manner as to constitute a public nuisance." The case of Com. v. Alger, 7 Cush. 53, cited supra, is one where the defendant was in 1849, and had been for more than 30 years, a riparian owner fronting on the harbor of Boston. In 1837 a statute relating to encroachments upon such harbor was passed, the first and second sections of which established a line designated by local objects. The third section enacted that no wharf, pier, building, or incumbrance of any kind shall ever be extended beyond such line into or over the tide water in the harbor; and the fourth, that no person shall enlarge or extend any such structure, which is now erected on the inner side of said line, further towards such line than such structure now stands, or than the same might have been lawfully enlarged or extended before the passage of this act, without leave first obtained from the legislature; and the fifth section, that no person shall in any other part of the harbor belonging to the commonwealth erect or cause to be erected any wharf or pier, or begin to erect any wharf or pier therein, or place any stone, wood, or other materials in said harbor, or dig down or remove any of the land covered with water at low tide, with intent to erect any wharf or pier therein, or to enlarge or extend any wharf or pier now erected: provided, however, that nothing herein contained shall be construed to restrain or control the lawful rights of the owners of any lands or flats in said harbor. The sixth section made any violation of the act a misdemeanor, punishable by fine, and provided for the removal of any such offending structure as a nuisance. Acts of 1840, 1841, and 1847 provided for changes of the line, the acts of 1840 and 1847 containing similar provisions to those of sections 3, 4, 5, and 6 of the act of 1837, except that they omitted the proviso to the fifth section. Alger was indicted under the act of 1847. In 1843 he began to build a wharf on his flats, and constructed the northerly wall thereof from his upland nearly to the channel, and then filled in and constructed the wharf, but did not complete it until the line had been established pursuant to the act of 1847, after which he built a triangular pier, complained of in the indictment, which pier forms part of the wharf as originally commenced by him. This pier was beyond the line of 1847, but on defendant's flats, and not 100 rods from the upland. nor below low-water mark, was no injury to navigation, and was not so far beyond the commissioners' line or so near the channel as the northerly wall of the wharf was built In 1843. There was verdict of guilty, and the supreme court of Massachusetts, In affirming the same, passed upon the nature and effect of the and the question of the invalidity of the statute of 1847, as impairing the rights vest ed by such ordinance in riparian proprietors. As to the ordinance it was held that it vested in the riparian owner the fee of the flats as land, and not as an incorporeal hereditament; and the further views on this point are best explained by the following extracts from the opinion: "Again, the construction which has been put upon this act in all the judicial decisions which have been made upon it, has been that, notwithstanding the act vests a fee In the soil in the riparian proprietor, analogous to the jus privatum, or right of property, which at the common law the crown could grant to a subject, yet that the land between high water and low water, until It was inclosed, built upon, or so occupied by the riparian proprietor, so far partook of its original character that whilst covered by the tide water the public and all persons might lawfully use It, might sail over it, anchor upon It, fish upon it, and by so doing no person should be held to commit a trespass, or disseise the owner, or take adverse possession. The public used only a common right by so using these lands when covered with tide water. * * * Looking at the terms of this law, and the purposes for which it was intended, the object seems to have been to secure to riparian proprietors in general, without special grant, a property in the land, with full power to erect such wharves, embankments, and warehouses thereon, as would be usually required for purposes of commerce, subordinate only to a reasonable use of the same by other individual riparian proprietors and the public, for the purposes of navigation, through any sea, creeks, or coves, with their boats and vessels." As to the act of 1847, the decision was that the legislature had power to establish lines in the harbor, beyond which no wharf should be extended or maintained, and to declare any wharf extended or maintained beyond such lines a public nuisance; and that statutes doing this take away the right of proprietors of fiats in the harbor beyond the lines to build wharves therein, even when they would be no actual injury to navigation. That such statutes were not unconstitutional on account of making no provision for compensation to the owner, nor as impairing the obligation of the grant made by the colonial ordinance; but that such statutes could not affect wharves erected before their passage. In Com. v. Tewksbury, 11 Metc. (Mass.) 55, it was held that a statute which imposed a penalty on any person who should take, carry away, or remove any stones, gravel, or sand from any of the beaches in the town of Chelsea, was passed for the purpose of protecting the harbor of Boston, and extended as well to the owners of the soil as to strangers; and that the statute did not constitute such a taking of private property and appropriating it to private use, within the meaning of the usual constitutional provision, as to render the statute void, although no compensation to the owner was provided for in it. Another case illustrating the effect of this colonial ordinance is that of Weston v. Sampson, 8 Cush. 347, decided in the same year, yet subsequently to Com. v. Alger, supra. It was an action of trespass quare clausum, by the plaintiffs against defendants, who went in their boat upon plaintiffs' flats, between high and low water mark, and within 100 rods of the shore, and there at low water dug clams, and carried them away in their boat It was held that the common-law right of fishing extended to shell fish, us well those embedded in the soil as those which lie on the surface. That this right of fishing extended to the people of Massachusetts, and has not been taken away by the colonial ordinance. That, though under it the riparian owner "has an Interest in the soil, it Is not an absolute and unqualified ownership; but so long as flats so situated are left open, unoccupied by a wharf, dock, or other inclosure, so long as the tide ebbs and flows over them, they so far retain their original character and remain public, * * * The rule, established by usage and judicial decision, has been that, although the ordinance transfers the fee to the riparian owner, yet, until it is so used, built upon, or occupied by the owner as to exclude boats and vessels, the right of the public to use it is not taken away, but that whilst open to the natural ebb and flow of the tide the public may use it, may sail over It, anchor upon it, fish upon it; and by so doing commit no trespass, and do not disseise the owner." Drake v. Curtis, 1 Cush. 413. In Lakeman v. Burnham, 7 Gray, 437, the action was in tort for breaking and entering the plaintiff's dose, and taking dams, and there was verdict for defendant, who pleaded the right of free fishing in all the citizens of the commonwealth. The decision sustained the verdict A part of the testimony in this case was that for 62 years plaintiff, or his father before--him, had claimed the exclusive right to dig clams on that part of the beach, including the premises, and had been in the habit every year of selling rights to other persons to do so, and had always driven away persons who came to dig without their leave, and had often prosecuted and recovered judgment against them before a justice of the peace; and that for more than 20 years plaintiff had taken pains to cultivate clams on these flats by transplanting and propagating them; and that before the publication in 1S54 of the decision in Weston v. Sampson no one ever claimed a right to dig clams on these fiats, and that since that time plaintiff had gone with a number of men and dug a ditch around the fiats where he had planted clams and put down stakes, but they were pulled up by persons who came to dig. Procter v. Wells, 103 Mass. 216. In Packard v. Ryder, 144 Mass. 440, 11 N. E. Rep. 578, the decision was that a person may, from a boat, enter upon and walk along the uninclosed flats of another, between high and low water mark, and within 100 yards of the upland, for the purpose of fishing in the sea, and may so fish while on such flats.
Limited as is the right of the riparian proprietor under the Massachusetts ordinance, construed as it has been in the light of the common law as to the right of the public in navigable waters and the lands thereunder, still we think there Is a manifest distinction between that grant and our riparian act There It was the manifest purpose to grant all that property in the shore that could be granted not inconsistent with the right of passage, navigation, and fishing referred to. The saving of the public rights there are to be found in the declaration as to free fishing, and the proviso as to the passage of boats and vessels, and the common-law principles above referred to. Here the right of the public Is not founded on a mere declaration, an exception or proviso or saving clause, or application of the designated principles of law to a general grant, but In the fact that the beneficial right granted to the riparian owner is special and limited, and carefully defined, manifesting the legislative intent that all that is not clearly carried by It should remain in the public; and to this residuum of the public interest the legal title held by the riparian proprietor is as much subject as it would be If it remained in the state, charged with the same beneficial interest in his favor which has been given to him by the statute. Granting that our riparian owners may maintain trespass against those who dig and carry away a part of the soil, as It was held in Porter v. Shehan, 7 Gray, 435, that the Massachusetts owner could where there was a taking of "muscle bed," it must be upon the theory that such a trespass damages or impairs the right to make improvements contemplated by the statute. Except for the purpose of such improvement, he has neither under the statute nor independent of it no more or other right of action for or in restraint of such a taking than any other citizen has.
The statute of June 7, 1887, (chapter 3826, pp. 280, 281, Pamphlet Laws of that year, was full notice to the appellees of the policy of the state with reference to the phosphate deposits in her navigable waters, and that no one was to be permitted to take them except upon the terms therein prescribed. The provision of the first section of this statute, to the effect that the persons named in it should not in any way interfere with the free navigation of the navigable streams and waters of the state, or the private rights of any citizen residing upon or owning the lands upon the banks of said navigable rivers and waters of the state, cannot be invoked as recognizing the right of a riparian owner to take the phosphates in such waters. He had no such right, nor does this act, taken as a whole, recognize any such right as existing in him. The subsequent legislation on this subject in 1891, (chapter 4043, Rev. St pp. 981-983; pages 74-77, Acts 1891,) as held by us in State v. Board of Phosphate Com'rs 31 Fla. , 12 South. Rep. 913, clearly asserts the right of the state to these deposits as against the riparian owner; yet there is no ground for saying that our opinion there pretends to decide anything as to the controversy between the state and the riparian owner as to the ownership of such phosphates. Parties taking phosphates during the operations of either of such acts should pay for them at the prices fixed for therein.
The oyster legislation of the years 1881, 1885, and 1887, to be found in sections 468--473, 2447, 2771, Rev. St, Is not antagonistic to these conclusions. The sole extent to which It recognizes an exclusive beneficial ownership or right of use in submerged lands under public waters In the riparian proprietor Is "erecting wharves, warehouses, or other permanent improvements thereon;" and the natural construction to be given this general language, which is to be found in section 471, is that It was intended as referring to and meant to preserve the rights conferred by the riparian act as therein defined. This section, as it now stands, was passed in the year 1887 as an amendment and substitute for a section of the act of 1881, which original section was to the effect that the act of 1881 should give no exclusive right or privilege to plant oysters in front of land then owned by another person, and fronting on any of the waters of the state, without the consent of the owner of such land; and that the exclusive privilege conferred by the operation of the act should not extend beyond the purchase or entry and occupation of the land in front of which any such oyster bed may have been located. Outside of the use of the words "bays and harbors" in the amendatory section, there is practically no difference in the two sections. Each was Intended to preserve riparian rights under the act of 1856, and nothing more. The later, or amendatory, section is more specific in its language, but not more effectual. As against all other rights, the right to plant in front of private riparian lands Is as exclusive against the owner as against any one else, and as fully protected by the penal clauses of the statute. It may also be remarked here that It Is clear from section 470 that the location of stakes and buoys to mark the beds, and the act of planting of oysters Itself, were regarded by the lawmaking power as not beings trespass upon the riparian owner*s rights or an interference with them, if they did not actually disturb his making Improvements under the riparian act; and, in our judgment, so long as he forbears to thus Improve, he has no ground for complaining, and is not encroached upon or injured, although he will not, as against the oyster planter, estop himself to improve at his pleasure, except by his own consent, duly and clearly given. There Is, moreover, In the act regulating the deposit of materials In tide waters, (section 986, Rev. St,) no recognition of any greater right in the riparian owner than we have conceded to him.
We find in the opinions of our own court, outside of one or two general expressions, nothing that can be regarded as hostile to the conclusion we have reached, and certainly nothing that, in view of the facts of these cases, can be taken as committing the court, as then constituted, to a contrary view. It is, moreover, a fact that in some of the opinions there are expressions which Indicate a tendency to the views we have here announced; as in Rivas v. Solary, where it Is said that the interest of the state which passed under the riparian act was "subject to the trust that it was to be used for the purposes of commerce as stated In the statute;" and in Apalachicola Oyster Canning & Fish Co. Case, where it was said by Judge Maxwell that "If used at all, It must be used for the benefit of commerce In the erection of wharves, warehouses, and other buildings." And when it is said in Rivas v. Solary that the right to build wharves "was an incident to the proprietorship," the meaning of the court was that the right to build appertained to the ownership of the part of the submerged land on which it might be proposed to build, and could not exist independent of that ownership, or in the owner of the high land, or of any other part of the submerged land; but it was not meant that this use of the submerged land was not the use to which the statute had limited the ownership of the land granted so long as It remained submerged. It was never intended that these submerged lands should be used for the erection of hotels, or opera houses, or mere stores of trade, nor in many other ways that might be designated, but only that they, while in their natural state, should be used in the manner specially defined by that statute. No warrant or authority for any other use Is to be found In the act, and the view that any other use is permissible Is entirely irreconcilable with the rule controlling in all cases of public grants, that the public cannot be held to have parted with any right that is not expressly granted, or of which a grant is dearly implied.
The facts of this case, in that the riparian owner Is taking phosphate In front of its own lands, render entirely unnecessary any decision of the question which might arise if permission had been given under the phosphate act of 1891, to one not a riparian owner, and the owner claiming the benefit of the riparian act was opposing the former*s exercise of the right in front of his lands. Here the riparian owner Is not exercising any right given him by the riparian statute, hut is doing what he is not permitted to do without the consent of the state, and Is, moreover, refusing to comply with the terms prescribed by the state as a condition precedent to his doing it.
As to the contention that the lands of appellee do not extend to "low-water mark," and hence are not within the beneficial purposes of the statute, our conclusion, without further defining the last clause of the second section of the riparian act, Is that these lands are dry lands, lying on the bank of the usual bed of the navigable waters of the stream, washed by the flow of its waters at their ordinary stage, and extending down to such waters at such stage; and that the company is within the statute, at least as to all such lands of which there was private ownership at the time of the approval of the riparian statute.
The view we have taken of the case relieves us from setting what Is meant by the term "channel," as used in the riparian act, and from saying whether or not the statute extends its benefits simply to those who were riparian owners when it became a law, or also includes those who have subsequently become such by acquisition from the state or United States of lands bordering on navigable waters; and from construing the term "low-water mark," used in the second section, further than is done above.
The objection that the supplemental bill, which is brought in the name of the state suing by its attorney general, as was the original bill, is not properly brought, because of certain provisions of the phosphate act of 1891, is untenable. That act gives the board of phosphate commissioners the control and management of the phosphate interests of the state in the beds of her navigable waters, and of all the phosphate therein which may be dug, mined, and removed therefrom, to the extent of the state's interest, and also, inter alia, authorizes the board to institute all suits and legal proceedings in the name of the state which may be necessary to protect the rights and interests of the state, and to enforce the collection of all moneys due or which may become due to it on account of phosphate dug, mined, or removed from her navigable waters, giving them authority to employ counsel at such reasonable compensation as in their opinion is right and proper. Conceding for the purposes of this case that its further enforcement became subject to the discretion of the board upon their appointment under the act of 1891, we fail to see anything in the act requiring an affirmative showing that it is continued with their consent, or according to their will, or rendering Its form improper, even as an original proceeding by them. It is the state's suit, brought originally by her attorney general, and the record affirmatively shows that he and his associate counsel have been assisted in Its practical procedure by the inspector of phosphates, an appointee of the board, and its "executive officer." We, moreover, do not think the supplemental bill introduces a new subject-matter of suit, but merely the continuation of the same trespassing since the commencement of the suit in the bed of Black creek.
The decree will be reversed, and the cause remanded for proceedings not inconsistent with this opinion.
MABRY, J., (dissenting.) There are views expressed in the opinion of the court prepared by the chief justice in construing the riparian act of 1856 in which I am unable to concur. The theory of construction as applied to the act does not seem to me to be the correct one. That this act Is valid is conceded. It has been recognized as valid in several decisions of this court, and In one ---Rivas v. Solary, 18 Fla. 122 --- it has to some extent been construed on a state of facts making a construction proper. Conceding that the respondent, the Black River Phosphate Company, is entitled to the benefit of this act, -- that Is, that Its proprietorship of lands bordering on Black river, a navigable tide water stream, brings It within the benefits of the act,a consideration of the act becomes proper.
It is unquestionably true that the grant should receive a strict construction as against the grantees, and nothing should be held to pass from the state that is not clearly within the meaning and terms of the grant This Is the general rule of construction applicable to the usual grants from the sovereign; and the nature of the property which is the subject of the grant under consideration, as will be further seen, makes the rule strictly applicable here. That the state of Florida, in her sovereign capacity, was, at the date of the act of 1856, the owner of the lands mentioned in the act, Is beyond question. Justice Westcott says in Sullivan v. Moreno, 19 Fla. 200: "Anterior to the act of 1836 (chapter 791, Laws of this state) the title to the soil of navigable tide waters to the line of ordinary high tides was in the state of Florida, subject to the powers of congress in the matter of regulating commerce under the constitution of the United States. This, as a legal proposition, has been admitted as settled since the case of Pollard's Lessee v. Hagan, 3 How. 229." This title, it is admitted, as shown by ample authority, is not held by the same character of tenure that the state holds her ownership in the lands that constitute a part of the public domain, but it Is held In trust for certain public purposes. These public purposes or uses for which the land covered by water, and the shores bounding the same, are held, so far as I can ascertain from the decisions of the courts, grow out of the use of the water. These public rights are mentioned as relating to commerce and the rights of navigation, fishing, and bathing, and they appertain to the water, and belong to the public generally without discrimination. The title to the shores and beds of navigable waters, being held in trust for the public uses mentioned, is subservient to and subordinate to such uses. The legislature cannot destroy or take away such rights by simply divesting the state of the legal title to the lands covered by water. They would still exist as long as the water of the navigable stream remained. While it is true that the title to the shores and beds of navigable waters, whether held by the state or an individual citizen, is subservient to and subordinate to the public rights of commerce, navigation; and fishing, the authorities also sustain the view that the state in her sovereign capacity can vest in the citizen absolute ownership of parcels of such trust property; and authorize him to that extent to replace the jus publicum, when the parcels can be granted without detriment to the public Interest In the waters amid lands remaining. The cases of Hoboken v. Railroad Co., 124 U. S. 656, 8 Sup. Ct. Rep. 643, and Illinois Cent R, Co. v. Illinois, 146 U, S. 387, 13 Sup, Ot. Rep. 110, are decisions bearing on this point. This reference Is not made in support of the validity of the grant under consideration, for, as already stated, that is conceded, but for the purposes of stating all the existing conditions of the state's title at the time of the grant.
The title of the act is to benefit commerce. The inducements for the grant, or the ends to be accomplished by it, are expressed in a preamble to the act, and they are as follows: "Whereas it is for the benefit of commerce that wharves be built and warehouses erected for facilitating the landing and storage 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" for these considerations the grant is made. Giving due consideration to all the language we find in this act, as we must do, it seems to me that the legislature had two ends in view as an inducement to the grant These ends are clearly expressed to he the construction of wharves and warehouses to facilitate the landing and storage of goods, and to encourage riparian owners in improving their water lots. The one is as much within the legislative contemplation as the other. How these ends are to be accomplished, or the improvements arc to be made, will further appear upon a consideration of the terms of the grant itself. The language of the granting part of the act contained in the first section is exceedingly bread, and indicates of itself no purpose on the part of the legislature to impose any limitations upon the title granted otherwise than by those implied limitations that attach to such a grant on account of the trust character of the land granted. The granting terms are that the people of the state "divest themselves of all right, title, and interest" to the lands mentioned, "as far as to the edge of the channel, and thereby vest the whole title to the same" in the riparian proprietors named. So far there can be no reasonable ground for contention that there is anything in the granting language itself to indicate a purpose to limit the title granted, or even the uses of the land, the title to which is vested in the riparian proprietors. The state held the lands granted, however, in trust for the public purposes of commerce and the right of navigation and fishing in the waters covered by the lands, and these rights, so long as the water remains, are superior to the title to the lands thus granted. The broad grant of the full title given by the language of the act referred to above, if nothing more was said, would then be subject to limitations, but they would be such as are implied from time nature of the estate granted, and which must not be disregarded in construing the statute. These implied limitations are referred to in this connection in order that they may never be lost sight of in construing the language of this grant Down to the language of the grant above quoted, Including the granting words, there is nothing to show that the legislature designed to limit the grant by anything in the granting terms used; and, unless something is found in the subsequent part of the act to have this effect, the granting words must have their proper and legitimate meaning and effect, subject only to the limitations, whatever they may be, arising out of the trust nature of the estate granted.
After granting or vesting the full title in the riparian proprietors, as above stated, and in the same connection with the granting words, this further language is used: "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." The right of the riparian proprietor to prevent encroachments by other persons upon the land granted, by bill in equity or at law, and to maintain trespass for any interference with such property, and the confirmation to such proprietor of all improvements which had been made before the passage of the act upon submerged lands for the purposes therein mentioned, are also provided for in the act. As to this provision, it cannot, of course, be contended that, because a remedy is given to prevent encroachments upon and interference with the land granted, this will operate as a limitation upon the grant itself. The natural inference from this language is that the legislature not only conveyed the title, but provided a remedy to protect it.
Does the above-quoted language of the grant limit of itself either the title or use of the land already granted? The vesting of the legal title to the lands covered by water in an individual, as has been stated, would not alone authorize him to replace the water, or do anything else in the water that did not belong of right to each individual of the community. The slate's title was held in trust and subordinate to the public rights in the water, which we have seen are rights of commerce, navigation, and fishing, and the bare transfer of the legal title to the citizen would still leave him powerless to invade the navigable waters covering his land in such a way as to impair the rights of the public. To do this he would have to have legislative authority, and to the extent that the legislature has power to replace the jus publicum it may be conferred upon the citizen. It would then seem that the quoted language above. and referred to as limiting the use of the land granted, giving the grantees full right and privilege to construct wharves into the water, and to fill up from the shore as far as may be desired, not obstructing the channel, but leaving full space for the requirements of commerce, confers additional rights than those given by the grant of the title. It authorizes the grantee of the legal title to invade the jus publicum, even to the extent of converting the space occupied by water into solid ground, and upon It to construct warehouses and other buildings. It seems to me that it is clear that this language was employed to confer this further right to build wharves and fill in dirt Into the water, and this is the right upon which it operates. The grant of one right coupled with a grant of another and different right is not limited by the latter. But is it correct to hold that the use of the land granted is limited by the language giving the riparian owner the privilege to build wharves, and fill in into the navigable waters mentioned In the act? To construe this language as a limitation upon the title vested in the riparian owner, or his use of the land granted to him, it seems to me, would be to admit that, without this language, other uses of the lands granted equally as destructive of the jus publicum as those given by it would exist. If it operates as a limitation upon other uses of the lands than those given, then such uses, without the limiting terms, must exist upon which it can operate. But it is certain, I think, that, so far as the right to till in, and thereby completely destroy the public uses in the water, is concerned, the riparian proprietor, though vested with the title to the land covered by the water, in the absence of the language giving such right, would not have it The grant of the privilege to the riparian owner contained in the language under consideration was something in addition to the grant of the legal title, and was employed by the legislature for this purpose. So that view of the opinion that the terms of the statute other than those vesting the title were put there to limit and qualify the rights of the riparian owner, and preserve to the public every right not clearly expressed by them or necessarily implied by their meaning, is more than I am willing to accept. The effect of this grant was, I think, to vest the legal title in the riparian proprietors, subject to the public trusts attaching to such a title, coupled with the privilege of building wharves into streams or waters of the bay or harbor as far as may he necessary to effect the purposes of landing and storage of goods; and also 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. The title is given by the statute, and, when the water Is replaced by the improvements authorized by the statute, the estate is absolute, and relieved of any servitude to the public. It is true, in my judgment, that the riparian owner has no more right to disturb or invade the water covering his land, except for the purposes mentioned in the statute, than any other individual of the community; but this is not because the legislature has limited him to such rights by granting to him the privilege of building wharves into the waters of navigable streams, and filling in from the shore so far as not to interfere with commerce. It results from the nature of the estate which he holds, which, as above stated, so long as the water remains over it, is subject to the public uses of navigation, fishing, bathing, etc. My view is that, under the act of 1856 alone, the state is in no condition to call upon a riparian owner to account for phosphate taken out of the beds of navigable streams out to the edge of the channel. The legal title in the soil covered by the water to the edge of the channel is undoubtedly in the riparian owner, and, however limited may be his legitimate use of time water, or the soil thereof, so long as the full title as expressed in the act is in the abutting owner, the state is without a proper status in court, and cannot successfully claim to be the proprietor of the phosphate which is a part of the soil in the bed of the stream. The state might, on proper showing, enjoin the riparian owner from disturbing the public rights in the water in the way or for purposes not authorized by the statute; but the theory of the state*s case here is that the riparian owner shall account for the phosphate taken from the entire bed of the stream in the part to the edge of the channel, as well as in the channel. We have held in the case of State v. Board of Phosphate Com'rs, 31 Fla. 12 South. Rep. 913, that by the act of 1891 (chapter 4048) the state has unmistakably asserted a right to the phosphatic deposits in the beds of navigable streams and waters of the state, even as against the riparian owner. I believe that since the act of 1891 the state can demand and collect, even from riparian owners, the tonnage required by that act for the privilege of digging for phosphate and phosphatic deposits in the entire beds of navigable streams. I do not believe the slate would have such right under the act of 1887, (chapter 3826.) This is an act granting to H. S. Greeno and his associates the right to dig and remove from the beds of the navigable streams and waters In the state, for a certain period, and for a certain compensation, the phosphate rocks and phosphatic deposits therein, provided they shall not in any way interfere with the free navigation of the navigable streams, or the private rights of any citizen residing upon or owning the lands upon the bank-s of said streams and waters. The legislature did not, in my judgment, intend by this act to assert any such rights to the phosphate deposits in the beds of navigable streams, as against the riparian owner, as to authorize a suit for them; and the proviso in the first section of this act relieves its language from such effect, if it would have such without the proviso.
So long as the land granted remains submerged, the trust character of the title attaches, and the governmental control over it is not lost In the exercise of such control the legislation of 1891 over the beds of navigable streams will, I think, place the state in the position to demand the tonnage there prescribed for digging in the beds of navigable streams and waters in this state.
My view of the case calls for a consideration of what is the channel of Black river, and whether or not the appellee dug any phosphate out of it prior to the passage of the act of 1891, and also whether or not the state has any status in this case by filing the supplemental bill demanding an account for phosphate dug since the act of 1891 went into effect, but I do not deem it necessary to go into these questions. The opinion does not undertake to deal with them, and no difference of opinion would probably exist in reference to them.
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