Dumas v. Garnett , 32 Fla. 64 ( 1893 )

Raney, C. J.:

This is an action of ejectment instituted by appellant against the appellee to recover a certain piece of land in the city of St. Augustine, in St. Johns county, described in the declaration as situated at the corner of Bridge and Wáshington streets, beginning at the southeast corner of such streets, running thence southerly along Washington street 168 feet, more or less, to the north line of lands occupied by James B. Thomas; thence easterly along the line of the lands occupied by said Thomas 145 feet, more or less, to the lands of II. M. Flagler; thence northerly along the line of the lands of-H. M. Flagler 168 feet, more or less, to Bridge street; thence westerly along the “north” side of Bridge street 145 feet, more or less, to the point of beginning, excepting therefrom several premises along thenorth side of said lot occupied respectively -by Hannah B. Davis, James D. Snowden, Mary A. Hart-rig and Jacob A. Spencer, and the premises in the southwest corner of said lot occupied by Charles Stewart, containing about 18,000 square feet of land. Mesne profits are claimed from January 26th, 1883, at the yearly value of $200.

As is evident from the preceding statement, the land sued for is not within the calls of the Spanish grant to Gaspar Papy, nor within those of any of the subsequent title papers down to the agreement of July 13th, 1874, between the plaintiff and Bishop Yerot. The description in this paper and that in the quit-claim deed from Bishop Moore to plaintiff may be said to include it, but neither of these instruments was intended or had the effect to create of itself an interest in any land as to which the parties thereto were not jointly interested before. Assuming, for the purpose of this case, that the extreme western line of the “zacatel,” which was the eastern boundary of the Papy grant, may have been below the line of high tide, it is still indisputable that such eastern boundary extended no further eastward, aDd is not shown to have reached the creek. It is also clear that neither the plaintiff, nor any of her predecessors 'in title, has ever exercised any actual dominion, or pedis possessionem, over the land east of this eastern boundary of the Papy grant. Tlie width of Washington street is not shown, and if we concede that the western boundary of the “zacatel” may have been twenty or even thirty feet east of the tract, or of the west line of the street, there is still nothing to show that the west boundary of the land sued for is not still further east, or that it is within the calls of the Papy grant, or any titJe paper antedating the agreement with Bishop Yerot. Under these facts the sole basis of any claim upon the part of the plaintiff to title to the land in controversy is the riparian act of December 27th, 1856, secs. 454, 455, Eev. Stat-., and a riparian ownership of the kind contemplated by it. The ownership or title to which the act adds the title of “submerged lands” is that “any tract of land * * lying upon any navigable stream, or any bay of the sea, or harbor,” and it is “into streams of water of the bay or harbor” that structures may be built or the filling up from “the shore, bank or beach,” be done, and it is to such “riparian proprietors” that previous improvements are confirmed. It is palpable that- it was not the intention or effect of the act to include within its beneficial purposes all riparian or littoral proprietorships; on the contrary, all riparian or littoral lands nor on a stream, or on a bay of the sea,. or on a harbor, are beyond the terms and spirit of the law, however navigable the waters washing their shores may be. There are authorities to the effect, to say nothing more, that in this country, all tidal streams are prima facie navigable. Bucki vs. Cone, 25 Fla., 1, 6 South. Rep., 160; Sullivan vs. Spottswood, 82 Ala., 163; Walker vs. Allen, 72 Ala., 456; Gould on Waters, sec. 43. The plaintiff here has been content to rest on this rule, and we shall, without pursuing the investigation of the subject any further, accord to her the full benefit of its presumption that the Maria Sanchez creek is a “navigable stream,” within the meaning of this expression as used in the statute referred to. Presuming, then, from its tidal character that the named stream is navigable, however contrary might be found the fact upon due inquiry (State vs. Black River Phosphate Co., 27 Fla., 276, 9 South. Rep., 205; State vs. Pacific Guano Co., 22 So. Ca., 50, and authorities supra), the question for solution is whether or not the Gaspar Papy land was, at the passage of the riparian act, land “lying upon” or riparian to Maria Sanchez creek, or has since become so, if it be such subsequent change of condition would bring it within the benefits of the statute. The cases of Alden vs. Pinney, 12 Fla., 348, and Sullivan vs. Moreno, 19 Fla., 200, relating to lands on Pensacola bay, go to the extent of holding that there must be a water boundary; or, in other words, there must not be any land intervening between that of the claimant of the benefits of the act, and the water. Of course there is no pretense or claim here to any land riparian to any bay of the’ sea or harbor. If this was the case, the record would tell us something about the shore of the bay or harbor, and then the question would be whether the land to which it was claimed that the benefits of the act-had attached extended down to high water mark or low water mark, as the requirements of the act may be. There is nothing in the record on the subject of the shore. There is hardly more as to Maria Sanchez creek, its exact locality as to the Papy grant, or the character of its banks or its immediate surroundings. From Tony Huertas, who had lived in St. Augustine since 1809, and knew the Papy grant since he was a child, we learn that Smith, who appears to have bought in 1838 a.nd held till 1847, laid it out in lots and set out trees, and that there was then a trail across the premises, and that “east of the trail the ground was marsh and land;” that marsh grass was-flooded at ordinary tide, and the trail at high tide, and that the marsh grass and field grass ran in spots. That it was like an open prairie to the east of the trail. This testimony relates to a period anterior to-Amelia Dumas’ purchase of the Papy grant, which was in September, 1847. Henry B. Dumas informs us that this trail along the western edges of the marshes of Maria Sanchez creek, was there when Amelia Dumas purchased, and that the marshes were all flooded by the tide when high, and were left dry at low tide. That he has been aware of buildings put upon the land occupied by Grarnett, and sued for, and that these lands are on what is known as the marsh directly east of Washington street, opposite the land of the Papy grant now occupied, and heretofore sold by Stella Dumas, and between such latter lands and the channel of the stated creek. Alexander Bryant informs us that before there was any filling in the land below the water east of Washington street was bare; that it was some distance to the grass; and it was sand and mud and marsh all mixed together. We understand the last clause to be descriptive of the-space east of the trail or of the west line of the zacatel. It is, in our judgment, impossible for us to hold, upon this record, that the water, even at high tide, reached the eastern line of the Papy grant on the 27th day of December, 1856, the date of the approval of the riparian act. It is clear that a street had been established, and that lands east of this street had been tilled in, and it is not shown that this had not been done prior to the date last mentioned. It is mere assumption to say that at that time Amelia Dumas’ eastern boundary extended even to high water mark, or was reached by the ordinary high tides. It is impossible to locate, from the evidence before us, the line of high tide at any time subsequent to September, 1847, the date of conveyance to Amelia Dumas. Changes of the character indicated having taken place since then, it devolved upon the plaintiff to show either that those changes had not taken place before the riparian act, or that she had made them and they were confirmed to her by the last clause of the first section of the statute. The proof is, however, that she had never exercised any dominion over the loaos in quo, or any part of the territory east of the grant. We are unable to see how the jury could have come to any other conclusion than they did under the testimony, and for the reasons stated we must affirm the judgment. If the verdict had been for the plaintiff we should ha ye to set it aside for the same reasons. Before dismissing the subject we must say that, we are not to be understood as deciding that lands which are situated off from, and do not extend down to the bank of a stream whose banks are the subject of overflow by the ordinary tides, are riparian as to such stream and within the statute of 1856; but we leave the question undecided until there shall be a case necessarily presenting the . question. It may also be observed that of course the -testimony is too scant to enable us to pass upon the effect, under the riparian act, of the laying out of Washington street, as between the municipality and the plaintiff. Geiger vs. Filor, 6 Fla., 325.

For the reasons stated the judgment, must be affirmed, aDd it will be ordered accordingly.