Williams v. Guthrie ( 1931 )

Chapter 8537, Acts of 1921 (Secs. 1774-1784 C. G. L.) was not over-looked by the Court in disposing of this case by reversing the judgment with directions to dismiss the ejectment suit because the lands described, with the dock or pier thereon, being submerged tidal lands with a purpresture, were not recoverable in the action.

The dock for which recovery was sought was not essentially such a permanent improvement of the character required by the Riparian Right Acts as to vest title in the riparian proprietor, nor was it alleged in the pleadings or proved as such by the evidence. To vest title to submerged lands in the riparian proprietor under the Act, the submerged lands to which title is asserted must have been actually bulk-headed or filled in, or permanently improved continuously from high water mark in the direction of the channel, or as near in the direction of the channel as practicable to equitably distribute the submerged lands.

There is nothing in the declaration by way of allegation, nor is there anything in the description of the lands as described in the declaration, which brings the dock, pier or lands sued for, within the scope and purview of the 1921 statute, which is asserted by the petition for a rehearing to have been overlooked in its application to this case.

When title to submerged lands is asserted to rest in private ownership and not in the state, in which such title would otherwise be presumed to be vested, it is incumbent upon the pleader in a suit at law or in equity involving such lands and seeking relief with respect to them, to allege in his pleading sufficient facts to negative the presumptive title of the state, and to show that title to such lands has become vested in private ownership by virtue of the statutory provisions under which such vesting is provided for. See Brickell vs. Trammell, 77 Fla. 554, 82 Sou. Rep. 221.

There is nothing in the declaration in this case to comply with the foregoing rule, which is in harmony with and supported by the same reasoning as the rule of similar import which was declared in Brickell vs. Trammell, supra. Furthermore, when it appears that the rights of the state in lands sued for are involved, and the state is not a party before the court, it is the duty of the courts to take notice of the rights of the state and make appropriate orders to preserve such rights from impairment, even though none of the parties to the cause raise such questions, nor make any objections with respect to the state's rights involved.

Private parties asserting that a title has been acquired against the state under the provisions of the riparian rights acts of this state, are required to plead and prove that the rights of the state have been lawfully divested under the statutes, or the courts will be without jurisdiction to deal with and adjudge title or rights of possession in submerged lands, which are otherwise presumed to remain in the state, even in suits wholly between private parties with respect thereto.

From what has been said it follows that the petition for a rehearing must be denied and it is so ordered.

Rehearing denied.

WHITFIELD, P.J., AND TERRELL AND DAVIS, J.J., concur.

BUFORD, C.J., AND ELLIS AND BROWN, J.J., concur in the opinion and judgment.