CHRISTIAN THIESEN, Plaintiff in Error,

v.

GULF, FLORIDA & ALABAMA RAILWAY COMPANY, et al., Defendants in Error

SUPREME COURT OF FLORIDA

75 Fla. 28; 78 So. 491

November 3, 1917 ; Petition for rehearing granted January 14, 1918


Sullivan & Sullivan and John S. Beard, for Plaintiff in Error;

Blount & Blount & Carter and Philip D. Beall, for Defendants in Error.


TAYLOR, WHITFIELD, ELLIS AND WEST, J. J., concur; BROWNE, C. J., dissents

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

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

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

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

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

"644. Nothing in this article contained shall be so construed as to release the title of the State of Florida, or any of it grantees, to any of the swamp or overflowed lands within the limits of the same, but the grants herein contained shall be limited to those persons and bodies corporate owning lands actually bounded by , and extending to low water mark, on such navigable streams, bays and harbors." Secs. 643, 644 Gen. Stats. 1906, Compiled Laws 1914.

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

It appears that a Lot numbered 368 lies north of Lot 369, which Lot 368 extends north to Zarragossa Street . It also appears that a "dummy" railroad track now exists between the water and the uplands of Lot . 369. In the plaintiff's chain of title the description is "East half of lots three hundred and sixty-eight and three hundred and sixty-nine in block one, containing forty feet front on Zarragossa Street and extending back two hundred and sixty-one 3-12 feet to the Bay of Pensacola and affronting thereon forty-seven 6-12 feet be the front and depth more or less." The dimensions of lot 368 are not given in the testimony. A map in evidence seems to indicate that lot 368 is 130 feet north and south. The bill of exceptions shows that the plaintiff testified, viz: "I measured the East side of lot 369 from Zarragossa Street . I measured from Zarragossa 368 and continued through lot 369 to the water. I measured the west side in the same way. I measured one straight line, from Zarragossa Street , practically the middle of the block; the alley way, to the inside of the dummy track, 261 feet. It was 261 feet inside of the dummy track; just inside one rail, between the two rails. It was about 25 or 30 feet from there to the water before the G.F. & A. filling in was constructed." This does not show the southern boundary of Lot 369 to be "actually bounded by and extending to" the waters of a navigable bay. The plaintiff offered no direct testimony that in 1856 when the riparian statute was enacted or since then, the lot was in part bounded by and extended to the waters of a navigable bay.

Frank Caro testified on behalf of plaintiff: "I have known that property since 1882. There was a fence running east and west, but there was a lot run down to the bay." "There was no fence to the south. In fact it was open to the bay."

Another witness, C. P. Bobe, whose grandfather had owned the lot, testified that "This lot came down pretty close to the water or to the beach, before the wharf or the terminal track was built. My recollection is that the lot did not go clear to the water * * * about five feet; nearly to the beach." On re-direct: "I could not say how far the lot went down to the water. I do not know where the lot line was on the south side."

Mr. Albert Riera testified on re-direct: "I cannot state whether or not this lot ran down to the ordinary high water." This testimony, as well as that of other witnesses, does not show that Lot 369 actually extended to the waters of the Bay. There is testimony that the plaintiff and his predecessors in occupancy of Lot 369 used the submerged lands in front of the lot with wharves, &c., but this use does not confer riparian rights under the statute. The lot must be actually bounded by and extended to low water mark of the navigable bay for the riparian rights under the statute to attach. The maps put in evidence by both parties indicate that the lot did not extent to the waters of the bay.

In 1892 the predecessor in title of the plaintiff executed to The Pensacola Terminal Company a lease of "a right of way fifteen feet in width along and across the water front of the Bay of Pensacola, City of Pensacola, said State and County, now owned by the party of the first part, south of the premises now owned, occupied and under enclosure by the party of the first part, known and described as the East one-half of Lot number three hundred and sixty-nine (369) in Block number one (1), according to the plan of the Old City of Pensacola, in said State and County, affronting forty-seven (47) feet front on the Bay of Pensacola to the edge of the channel of said Bay, the said right of way to extend from the Eastern to the Western boundaries of the said described property of the party of the first part." This description is not of a lot actually bounded by and extending to the waters of the bay. It may be regarded as defining the location of the property leased to the Terminal Company for its railroad track "south of premises now owned" by the lessor. The conveyance to the plaintiff in 1896 is of the "East half of lots three hundred and sixty-eight (368) and three hundred and sixty-nine (369) in Block one (1) of the Old City of Pensacola containing a frontage of forty (40) feet on Zarragossa Street and running through to Pensacola Bay, being two hundred and sixty-one 14 feet and having a frontage on said bay of forty-seven and a half feet." This does not define a boundary as extending to the waters of the bay, even if that could avail when the original Spanish grant was of a lot "affronting on the Bay," which is not shown to have carried title to land "actually bounded by and extending to low water mark" of the navigable bay, as required by the statute quoted above conferring riparian rights. Private ownership extends ordinarily to high water mark. Merrill-Stevens Co. v. Durkee, 62 Fla. 549, 57 South. Rep. 428; Ker & Co. v. Couden, 223 U.S. 268, 32 Sup. Ct. Rep. 284; United States v. Pacheco, 2 Wall. ( U.S. ) 587.

The plaintiff's claim is predicated upon the grant of riparian rights contained in Chapter 791 Acts of December 27, 1856, entitled "An Act to Benefit Commerce," Sections 643, 644 General Statutes of Florida, 1906, Florida Compiled Laws, 1914; and the defendant's claim is based on Chapter 4802 Acts of 1889, entitled "An Act to grant the Water Front of the City of Pensacola."

 While a verdict should not be directed for one party when there is evidence on which the jury may lawfully find for the opposite party, yet where the burden is on the plaintiff to prove all the essential elements to sustain his claim to relief, and he fails to make such proof, a verdict may be directed for the defendant. In this case the burden was on the plaintiff to affirmatively show that Lot 369 was actually bounded by and extended to low water mark of the Bay. This showing was not made, and there was no error in directing a verdict for the defendant. See Bass v. Ramos, 58 Fla. 161, 50 South. Rep. 945.

Judgment affirmed.

TAYLOR, WHITFIELD, ELLIS AND WEST, J.J., concur.

BROWNE, C. J., dissents.


BROWNE

DISSENT: BROWNE, C. J., dissenting. -- I regret that I cannot concur in the decision in this case, but I am too firmly convinced by the evidence, both documentary and parol, that the lot in question extended to and was bounded by the Bay, and that Thiesen was a riparian owner, to do otherwise. The earliest deed introduced in evidence in support of plaintiff's title was one from Lorenzo Vitrain, syndic, to Antonio Montero dated December 31st, 1813, and contained this description: "One lot known by the number 369 (three hundred and sixty-nine) containing ninety-five feet front, by one hundred and thirty-one feet three inches in depth, affronting on the Bay."

The majority of the court hold that "Taken alone the words 'affronting on the Bay,' certainly cannot be held to be sufficient to show that the land was actually bounded by, and extended to the waters of a navigable Bay."

In view of the testimony as to the south boundary of this lot, which to my mind clearly proves that the lot was actually bounded by and extended to the waters of the Bay, I cannot see why we should discuss the effect of the description when "taken alone." Nevertheless, I contend, that even "taken alone," the language used fully describes a lot bounded by and extending to the waters of the Bay. "Having a front on" or "affronting on," are apt terms to describe the boundaries to real estate. Thus, a lot described as "having a front on," or "affronting on" Monroe Street , means a lot extending to and bounded by such street. The natural, common sense meaning of these words is boundary and not aspect, and before we change the common sense meaning of words, and give them a strained and unusual one, it should plainly appear from the instrument itself that such was the intention, or from facts and circumstances which irresistibly force the latter construction. Where a deed conveys "one lot known by the number 369 (three hundred and sixty-nine) containing ninety-five feet front, by one hundred and thirty-one feet three inches in depth affronting on Monroe Street" the natural meaning is that it conveyed a lot actually bounded by and extending to the street, and if after taking his one hundred and thirty-one feet three inches, there remained a strip between that point and the street, the grantor would take to the street; for there is not rule of construction more clearly settled than that courses and distances must yield to natural objects, and where they conflict, the distances must be contracted or expanded to accord to the monuments. In this case a map was introduced which showed to 369 ending before it reached the water, but it is obvious that the party who made the plat was not familiar with this rule of construction, and arbitrarily limiting the depth of the lot to the course and distance described in the deed, instead of extending it to the natural object (the Bay), cannot set aside a rule of construction enunciated by Chief Justice MARSHALL in McIver's Lessees v. Walker, 9 Cr. 173 and followed without exception by all the courts of the country where the question has arisen, including Florida. Doggett v. Willey, 6 Fla. 482. To my mind the words used in this deed are not ambiguous, and leave no doubt about whether boundary or aspect was intended, but if so, there remains the strong circumstance that neither Vitrian nor his heirs ever made claim for the strip between the upland and the Bay, but that for over one hundred years, Thiesen and his predecessors in title claimed the strip, and exercised all the rights of ownership undisturbed by anyone. The law does not recognize such a condition as land without an owner, and if Vitrian did not part with the title to the strip between the upland and the Bay, he and his heirs lost all claim by reason of the open, notorious possession under claim of ownership of Thiesen and his predecessors in title for an hundred years. This seems to dispose of the contention, but I am not satisfied to let it rest there. If there is any ambiguity or doubt as to whether Vitrain by the use of the words "Fronting on the Bay" intended to grant the space between the upland and the Bay, he or anyone claiming under or through him ought no to be permitted to deprive Thiesen of the premises or his rights, under the rule of construction that when there is an uncertainty in a deed about what is meant, we should interpret the words against the vendor, because it was in his power and it was his duty to sue such words as to leave no room for doubt.

The construction which I have placed on the words "affronting on the Bay," is well supported by the authorities. In the case of Crane v. French, 50 Mo. App. 367, it was held in order that a lot should be regarded as "affronting on the street," it must actually extend to and be bounded by the street. In the case of Proctor v. Maine Central R. Co., 96 Me. 458, 52 Atl. Rep. 933, the description in a deed to a lot of land was before the court for construction; it read: "Granted to Deborah Mills the first thirty-acre lot toward the Round Cove as it is now laid out, with a road to be allowed upon the bank, front thirty rod, and northeast by east into the woods eight score rod." The case hinged on whether the words "front thirty rod" extended the lot to Fore river, and the court held that it did, and said: "Besides, the descriptive language of the grant itself, 'front thirty rods,' is appropriate to land lying adjacent to the water, and is not appropriate to any other condition shown to have existed at the time of the grant. A lot of land may be said to 'front' on water, but not usually to 'front' on another piece of land. It may 'front' on a road. But in this case there does not appear to have been any existing road. The language of the grant, 'road to be allowed upon the bank,' indicates rather the reservation of a public right of way for a road then contemplated, than for one then existing. But in whatever condition the road was, it is clear that it was not referred to as a boundary. The Mills lot evidently 'fronted' on something, and we think that something was Fore River . It follows, therefore, by the usual rules of construction that Deborah Mills, by the grant of this lot of upland affronting on tide-water, became also the owner of the adjacent flats to low water mark, not exceeding one hundred rods from high water mark. And her record title has come to the plaintiff."

The description which was thus construed to mean affronting on tide water and carrying with it certain riparian rights, did not say as description in the instant case says, that the land fronted on the water, but merely said "Front thirty rod," and the court held that as there was no road for it to front on, and as land is not usually described as affronting on land, and as the Mills lot evidently fronted on something, found that that something was Fore River. There is no necessity for me to resort to such fine reasoning to reach the conclusion that the lot in controversy fronted on the Bay, for the deed states so specifically, and the Mills case cited supra abundantly supports my position that the words "affronting on the Bay" carry with them the right to the lowlands lying between the upland and the waters of the Bay, and the riparian rights thereto attaching.

A very strong and well reasoned case, copiously supported by authorities, on the question involved in the one under consideration, is that of Morgan v. Livingston, 6 Martin, O.S. ( La. ) 19. It is instructive in that it gives the Spanish and French terms used in descriptions in deeds and their translations, and their force and purport when expressed in English. The original deed upon which Thiesen's title is predicated was in Spanish, and was executed while Florida was a Spanish possession, and the words used in the description should be given the meaning which was intended by them. If the Spaniards used the expression "Frente al Bayou" to designate a lot bounded by the Bay, we should not defeat that purpose and say they meant aspect and not boundary, because they did not use our more labored and tautological one of "bounded by and extending to the waters of the Bay." I quote freely from the opinion in the case of Morgan v. Livingston , supra, not as an authority for the conclusion which I have reached, but in support of it. In that case J. B. Poeyfarre sold to P. Bailly property thus described: "A lot of mine situated out of this city, consisting of 60 feet of front and 180 in depth, in conformity with the plan of Don Carlos Trudeau, public surveyor of the city, bounded on one side by a lot of the vendor, and on the other by one of B. Gravier, which lot belongs to me for having purchased it with greater quantity of land from B. Gravier and Maria J. Delhonde, his wife." In the deed to Poeyfarre, the premises were described as "a piece of land forming a trapszium, situated out of the Chapitoulas gate, consisting of 415 feet of land, frente al rio, front to the river, 186 feet in depth on the side of the city, 411 feet 8 inches on the side of the vendor's garden, and on the back 229 feet 8 inches. The whole forms 2386 toises 4 feet and 6 inches of land in superficies, as appears by the plan of Don Carlos Trudeau, public surveyor, of the 9th instant, which the parties have signed, and which remains in the power of the vendee." In discussing the case the court said: "From a very close examination of the books of the land office of the United States, which have been submitted to us, and the depositions of surveyors, examined in this case, it is clear that in French and Spanish conveyances, both public and private, the words face au fleuve, face, frente al rio, frente, front to the river, or front, exclusively designate estates bounded by the river -- which in the country are otherwise called riparious, bound to the repair of the road, its ditches, bridges and levees, and to supply ground for either or the whole of these, when that which they cover is carried away by the water. We are therefore bound to take the expression, frente al rio, in the deed, as evidence of the intention of one of the parties to convey, and of the other to acquire, a riparious estate; unless, by taking it in this sense, we are led to an incongruous or absurd result. * * * "If the parties to the deed to Poeyfarre meant that a riparious estate should pass, their intention might be carried into effect by conveying as far as the river by express words, or by conveying everything susceptible of absolute private ownership between the line of the trapezium most distant from its front and parallel to the river, till the bank. In the present case both methods appear to have been adopted. The land is sold, front to the river; an expression, which in the general understanding of the county, is equivalent to the most explicit terms of a boundary on the river; and it does not appear that the vendors, who by the pleadings are admitted by both parties (since they both claim under them) to have been riparious owners, have retained any part of the ground between the trapezium and the river." * * * "The impression on our minds is irresistible, that Poeyfarre sold to Bailly, as he had himself purchased from Gravier, a riparious estate; one bounded by the river, or separated only by the public road." * * * "We conclude that, on the inspection of the deep, it appears to us the words front to the river, used therein, were intended to denote a riparious estate bordering on the river."

In none of the cases which I have cited have the descriptive words been as strong and clear as in the instant case. One uses the term "fron thirty rod," another "front to the river," but in both cases it was held that these words conveyed a riparious estate. Had the description in the deed from Vitrian said "affronting the river" there might have been grounds for discussion and for giving a strained instead of the natural and obvious meaning to the words, but the use of the word "on" in connection with "affronting," removes all doubts and carries with it the idea of physical contact.

So far I have discussed only the proposition advanced by the majority of the court, that "Takne alone the words 'affronting on the Bay' certainly cannot be held to be sufficient to show that the land was 'actually bounded by, and extended to, the waters of the navigable Bay.'" But, as I said in the opening part of this opinion, this description need not, and should not, be "taken alone," but must be taken in connection with the evidence in the case. The Superior Court of the Territory of Florida considered that the lot extended to the Bay, because in the U.S. Marshal's deed to Francis Bobe dated August 31st, 1841, it is described as "the Eastern half of said lots, numbered three hundred and sixty-eight, and three hundred and sixty-nine, situated in the City of Pensacola, and containing forty-seven and a half feet front on Zarragosa Street, and extending back two hundred and sixty-one feet and three inches to the Bay of Pensacola, and affronting thereon forty feet."

In 1875 Francis W. Bobe sold the lot to Elias Lee, and in 1878, Elias and Mary Lee reconveyed it to Bobe, and in both deeds the land was described as "extending back two hundred and sixty-one feet and three inches to the Bay of Pensacola and affronting thereon * * * be the said fronts and depths more or less." Beginning with the deed from Bobe to Lee, we find in all the descriptions to this lot the words "be the front and depth more or less." a clear recognition that since the earlier deeds there had been an accretion to this lot. The administrator of the estate of Francis Bobe in 1880, in his report to the County Judge described the lot as being "back on the Bay of Pensacola." In the same year the commissioner appointed by the County Judge to sell the real estate belonging to the heirs of Francis Bobe, reported that he had sold the "E 1-2 of Lots 368 and 369 Block 1, containing 40 feet front on Zarragossa Street, and extending back 267 3-12 feet to the bay of Pensacola, and affronting thereon 47 6-12 feet, be the front and depth more or less." It is a circumstance to be considered, that in this report the lot is described as extending back 267 3-12 feet, instead of 261 3-12 as theretofore. It is reasonable to assume that the lot had by this time gained six feet by accretion, and this explains the excess of land found by Thiesen when he measured it before the filling in was done by the G.F. & A.Ry. It is true that it does not account for all the excess but the extensive fills made to the water fronts of Pensacola between 1880 and 1914 naturally resulted in the recision of the water line and the consequent extension of the line of all lots along the water front.

The Commissioners in making a deed to Walters returned to the paper dimensions of the lot, but used the significant words "be the front and depth more or less."

In 1892, Walters, a predecessor in title of Thiesen, leased "a right of way 15 feet in width along and across the water front of the Bay of Pensacola, City of Pensacola, said State and County, now owned by * * * affronting 47 feet on the Bay of Pensacola to the edge of the channel of said bay * * * and the said party of the second part especially agrees not to interfere with the water front and the riparian rights of the party of the first part south of the said right of way to the edge of the channel of the Bay of Pensacola all of which riparian rights are hereby reserved under the said party of the first part, his heirs and assigns, and the said party of the second part further agrees to keep the right of way hereby leased free and unobstructed so as to allow free and unobstructed access and passage over said right of way and from the wharf now built and owned by the party of the first part."

The deed from Walters to Thiesen changed the phraseology of the description a bit, but did not alter its import. It reads: "running through to Pensacola Bay , being two hundred and sixty-one 1-4 feet, and having a frontage on said bay of forty-seven and a half feet." In all the descriptions in the various documents from Vitrian's deed to Walters, I find an effort to convey a lot affronting on the Bay, -- and I use the term "affronting on the Bay," advisedly, as I am satisfied that theoretically, philologically and legally it describes a lot "actually bounded by and extending to the Bay," in the absence of anything to show a contrary intent.

I take it, that the natural meaning of the words "affronting on the Bay," and "affronting on the street," mean boundary and not aspect and consequently whoever contends for the unusual constructions, assumes the burden of proof, and until he meets the requirement, the natural, obvious, common sense, everyday meaning of the words should be accepted.

I pass now to another phase of the case. Assuming there was doubt about the boundaries of this lot, it was a question of fact to have been decided by the jury. It is a settled rule in this State that "When there is room for a difference of opinion between reasonable men as to the proof of facts from which an ultimate fact is sought to be established, or when there is room for such differences as to the inferences which might be drawn from conceded facts, the court should submit the case to the jury for their finding." Anderson v. Southern Cotton Oil Co., decided in the January Term of this court, and cases cited therein.

The testimony of old and reliable citizens like Mr. Albert Riera and others who testify for the plaintiff as to the ancient boundary of the lot, was as specific as possible on the question of, whether the land owned by the predecessor in title to the plaintiff, was originally bound by and extended to the waters of the navigable bay. The extensive fills which have been made for miles along the water front of Pensacola in the last thirty or forty years have caused the shore line of the unfilled lots to recede, so that a lot which an hundred years ago extended one hundred and thirty-one feet to the waters of the bay, may now extend much farther by reason of such recisions.

"The rule governing additions made to land, bounded by a river, lake, or sea, has been much discussed and variously settled by usage and by positive law. Almost all jurists and legislators, however, both ancient and modern, have agreed that the owner of the land, thus bounded, is entitled to these additions. By some, the rule has been vindicated on the principle of natural justice, that he who sustains the burden of losses and of repairs, imposed by the contiguity of waters, ought to receive whatever benefits they may bring by accretion; by others, it is derived from the principle of public policy, that it is the interest of the community that all land should have an owner, and most convenient, that insensible additions to the shore should follow the title to the shore itself." Banks v. Ogden, 2 Wall. ( U.S. ) 57, text 67.

Charles P. Bobe testified: "I do not think the lot went quite to the water after the wharf was built. Walters had a wharft. He utilized this wharf for fishing. He had boats along the wharft all the time."

William Cline testified that 38 years ago there was a wharft and bath houses on the property and that he had seen boats landed there. "The lot went out in the water, fishermen brought the boats there and loaded them there when they were going to sea." He had seen fish boats land there more than thirty years ago. "The wharf was knocked down several times by storms and floating timber, but was built back again." Describing the south end of the lot he said "The sand that Mr. Bobe put there seeped out and was washed out with every blow and made land. Where there was water before there was land afterwards. It was made land. Boats were pulled right up on the lot from the bay before the road was built there."

Frank Caro has known the lot since 1882. "The fence ran down to the water, the fence on the western side and the eastern side. The wharfs were maintained there and sometimes the storm would wash the wharf down and he would replace it. Several times. Boats landed there. At high tide the water would go right up in front of the place, pretty near in the yard. In low tide you could walk out. There was a fence running east and west but there was a lot run down to the bay. There was no fence to the south side of it all. It was open to the bay."

Mr. Albert Riera is 73 years old, has lived in Pensacola all his life except while in the Confederate Army. He testified: "I knew that lot before the war. The lot on the west side of my father's was always known as the 'Bobe lot.' The lot on the west side of that was the Hernandez lot. There was a fence between my father's and Bobe's lot. I do not think the back portion of that Bobe lot was ever fenced. There was nothing between that lot and the water. It was just an open beach open to the bay. It was quite a short distance from the front portion of that lot to the beach. It depended upon the tides. There was sufficient room for a vehicle to pass by, where the waters would cover it at high water. By lot I mean the high land." It is clear that these witnesses in speaking of the "lot" or the "yard" had reference to the usable part of the lot, or the upland. Mr. Caro says "The place south of the house towards the bay is what I call the yard." These explanations by Albert Reira and Frank Caro as to what they mean by "lot" and "yard " show the significance of the testimony of the other witnesses, and from all the testimony it seems very clearly established to my mind, that this lot fronted on, was bounded by and extended to the waters of the bay.

The doctrine of the Anderson case, cited supra, is thus stated in the fourth headnote: "A party in moving for a directed verdict, admits not only the facts stated in the evidence adduced, but also admits every conclusion favorable to the adverse party that a jury might fairly and reasonably infer from the evidence."

There is no denial that the plaintiff and his predecessor in title had been in actual possession of this lot for upwards of fifty years, living on the dry part of it, and using the water front for the benefit of such commerce as existed at that time and in that locality, and built such wharves as such commerce required. It is true the wharves built by Bobe and Walters and Thiesen were not as large as those built by the railroad which seeks to take from the owner his riparian rights without just compensation, nor was the commerce of that day and locality as great as that now handled by the railroad, but I fail to find in the Act of 1856 a distinction based upon the size of the wharves or the volume of commerce. If they were adequate to the time and place, and the needs of those to be benefited, "It is enough, it will serve."

The cases of Alden v. Pinney, 12 Fla. 348, and Sullivan v. Moreno, 19 Fla. 200, hinged, as in this case, on the question of fact whether the lot in controversy had a water boundary. I quote from the opinion of Judge Westcott in the Alden v. Pinney case: "This leads us to the consideration of the case upon the proofs, and the first question to be determined is: Has the complainant established that the 'southern boundary of the lot' conveyed to Gonzalez on the 19th February, 1827, from whom he derives title, 'was the bay,' or that it extended to the line of ordinary high tides in calm weather at that time? What may be the effect of the reservation of Lot E for a market house and store house, as designated on the plan of the Cabildo, we do not determine, as no point is made of it by defendants, and we treat the case as though an absolute and proprietary right is in the complainant to whatever passed under the deed. The question of boundary here is a fact to be determined by a consideration of the whole evidence." (Text p. 381.)

In discussing whether certain calls in the deed indicated aspect or boundary Judge Westcott said: "These terms, therefore, must receive that construction and signification which is most consistent with the other calls and the evidence in the case." (Text p. 382.)

In the case of Sullivan v. Moreno a public way, street, or common, lay between the Moreno land and the bay, and the lot was described as bounded "on the south by a street of the Pensacola Bay," and the question of Moreno's riparian ownership was decided on the ground that his deed described his south boundary as "a street on the Pensacola bay." In neither of these cases was the description like that in the deed under which Thiesen claims, nor was there such evidence of long continued possession and acts indicating a claim of ownership to the lowlands, as in this case.

Because of the "differences of opinion" between the members of this court, "as to the inferences which might be drawn from conceded facts," I think I am justified in saying that "there is room for a difference of opinion between reasonable men," and the case comes well within the rule of Anderson v. Southern Cotton Oil Co., cited supra, and that the court erred in directing a verdict for the defendant.

Chapter 4802 Laws of Florida, Acts of 1899, which sought to dispose of certain parts of the water front of the City of Pensacola is ineffective to deprive a person of riparian rights, if such existed prior to the passage of the act. The part which it is claimed affects the parties to this suit, is that which provides in effect that if any person claiming riparian rights under the act of 1856, failed to make application for the same within two years before certain commissioners named in the act, the commissioners should make a deed to the City of Pensacola for all such lots or portion of such lots for which no application was filed. It is contended by defendant in error that because the owner of the land in controversy did not make application for a deed to the lowlands in front of his lot, the same became forfeited and title thereto passed, to the City of Pensacola .

The act of 1856 imposed the conditions under which a riparian owner could acquire the right to the use of lands covered by water adjacent to his property; and divested itself of "all rights, title and interest to all lands covered by water lying in front of any tract of land owned by any citizen of the United States * * * lying upon any navigable stream or bay of the sea for harbor as far as to the edge of the channel," and vests "the full title of the same in and to the riparian proprietor."

This title is not contingent or dependent upon the erection of wharves or the filling in of the shore, bank or beach.

The State having divested itself of all rights, title and interest in such lands, and granted the same to the riparian proprietors, had no power thereafter to impose new and additional burdens or obligations upon such riparian proprietors. The title to the lands covered by water which the riparian owner derived from the grant of 1856, is as absolute as a title derived from any other source, and the Legislature was without power to impose conditions upon hi by which he would be divested of his title upon non-compliance of the same.

Assuming however that the Legislature had the power sought to be exercised by the act of 1899, the method pursued was clearly unconstitutional, in that it undertook to create a Judicial tribunal not authorized by the constitution, and in contravention thereof. Notwithstanding the act of 1899 designated the parties who were to carry into effect the provisions of the act, "commissioners," the powers conferred upon them were judicial. They were to receive, file and record claims to real estate and rights appurtenant thereto; they were given power to summon and swear witnesses, to hear testimony and receive evidence, and finally to determine the rights of persons to whom grants were made and such determination was conclusive as to such rights. That it was intended for these acts to be judicial is apparent from Section 7, which refers to the finding of the commissioners as an "adjudication."

I think the court erred in refusing to permit the plaintiff to introduce in evidence that part of the Report of the United States Commissioners on page 119 Vol. 4 of American State Papers, (Duff Green edition).

In 1826 Congress enacted "That all of the decisions made by the Commissioners, appointed to ascertain claims and titles to lands in the District of West Florida, made in favor of claimants to lands and lots in said District, contained in the Reports, opinions, and Abstracts of the Commissioners, which have been submitted to the Secretary of the Interior, according to law, be and the same are hereby confirmed."

The parts of the report offered in evidence, objections to which were sustained by the court are as follows, "The lots in Pensacola do not belong to the King but to individuals and their dimensions carry them to the waters edge at high tide." "The line in front was one of admeasurement, and not entirely a line of boundary and the lot was sold per aversionem, and not ad mensuram; that is, it was disposed of in the gross, and not by the measure, or so much the acre."

The Supreme Court of the United States has decided that The American State Papers, published under revision of the United States Senate, contained authentic papers which are admissible as evidence without further proof. Bryan v. Forsyth, 19 How. 334; Gregg v. Forsyth, 24 How. 179.

I am very strongly convinced that the judgment in this case should be reversed, not only on account of the error in directing a verdict for the defendants, but on account of the other errors which I have discussed.


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