CITY OF TARPON SPRINGS, ET AL., APPELLANTS,

v.

H. J. SMITH AND LAKE BUTLER VILLA COMPANY, APPELLEES

The locus in quo is claimed to' be covered by á patent issued by the' United States to the State of Florida under the swamp and overflowed land grant Act of Congress, approved September 28, 1850. The patent conveyed to the State “The whole fractional section twelve,” township 27 south, range 15 east, “according to the official plats of survey.” The official plat of survey shows that a portion of the said fractional section 12 is on each side of the Anclote River, and that between’ the meander lines in the section and the Anclote River there is considerable marsh land. It further appears that the river flows from east to west through the north half of said section 12, and that the surveyed portions of the north half of the section is divided into lots. South of the river the lots are numbered 1, 2 and 3. Lot 1 contains 56.18 acres; Lot 2, 48.63 acres, and Lot 3, 51.80 acres. The surveyed portion of Section 12 on the north side of the river is a long narrow strip containing 17.84 acres. The south half of the section contains 323.16 acres. The entire surveyed area of the fractional section numbered 12 as shown “by the official plats of survey,” aggregates 497.67 acres. As a full section usually contains about 640 acres of land, it thus appears that somewhat more than 140 acres of the section as meandered are unsurveyed and are covered by the waters of the Anclote River and by marsh lands, the latter being apparently the greater part of the unsurveyed space. The official plat of survey shows that there are perhaps more marsh land north of the river than south of it in Section 12. The claimant assumes that the patent conveyed to the State all the land in the section, including that covered by the meandered marsh on both sides of the river, and in effect claims that the State conveyed all of the lands, including the marsh lands, within Section 12 to his predecessor in interest. As presented, this appeal must be disposed of without adjudicating whether the patent conveyed the marsh lands to the State or whether the deed from the State through its agency covering “all of fractional section twelve,” conveyed the title to the unsurveyed marsh lands in that section to its grantee, as the State is not a party to this suit, and is not represented on the record or by counsel.

The following is Chapter 3941, Acts of 1889:

“AN ACT Declaring Anclote River Navigable. “Be It Enacted by the Legislature of the State of Florida:

“Section 1. From and after the passage of this Act the Anclote River, in the counties of Hillsborough and Pasco, shall be and is hereby declared navigable from the mouth of said river to where it is intersected by the line dividing Sections 1 and 2, in Township 27 S., R. 15 E.

“Sec. 2. That it shall be unlawful for any person or persons to blockade or obstruct in any way said river. “Sec. 3. That all laws and parts of laws in conflict with the provisions of this Act are hereby repealed.

“Approved June 4, 1889.” Chap. 3941, Acts of 1889.

Whitfield, J.

In a suit between individuals for reformation of a deed of conveyance to include “all the marsh on the Anclote River front contiguous to lot two of block fifty-four, in the town of Tarpon Springs,” the city was made a defendant, and by answer demanding affirmative relief under the statute, the city claimed a public easement over the marsh lands which lie between a dedicated street, “Anclote Boulevard,” in the city and the line of the river as shown by the dedication map. As to this affirmative relief predicated upon averments of new matter, the city had the burden of proof. See 16 Cyc. 401; Griffith v. Henderson, 55 Fla. 625, 45 South. Rep. 1003; 21 C. J. 577. Neither the propriety nor the legal sufficiency of the counter-claim of the city as interposed in this suit was challenged.

The reformation was not resisted by the other defendants, the plaintiffs’ grantors, and the chancellor decreed the reformation prayed, but denied the claim of the city to an easement in the premises. On a petition for a rehearing the. chancellor.amended the decree, making.it “without prejudice to the rights of the City of Tarpon Springs as to that portion of the premises where the. original plat of Tarpon Springs shows the northern boundary of Anclote Boulevard to be coincident with the southern boundary of Anclote River,” the amendatory decree further stating that' “there is no definite evidence in the record to fix such location (where the street and river lines coincide) so that a decree might be rendered, and' the prayers of the city’s counter-claim relate to the entire premises.” On appeal the city alone contests the decree.

The dedication plat shows a space of considerable size, that includes the locus in quo,, lying between a street of the city and the river, which space shown to be salt marsh more or less covered by growing vegation, is delineated on the plat by the north line, of the street and the line that purports to show the south boundary of the river. The river is shown to be navigable and to be affected by the. tides. At high tides the waters from the river cover some and perhaps nearly all of the lands, referred to.

Chapter 3941, Acts of 1889, set out in the statement, declared Anclote River to be navigable from its mouth to the dividing line between Sections 1 and 12 in Township 27 South, Range 15 East, for the purpose of forbidding the river to be blockaded or obstructed. But the river is shown to be in fact navigable as it passes through Section 12, where the loóus in quo is situated. The statute does not declare the river to be non-navigable above the point mentioned in the Act; and no intent appears in.the statute to affect riparian rights above the point mentioned in the Act.

When by “Treaty of Amity, Settlement and Limits between the United States of America and the Kingdom of Spain, concluded February 22, 1819, ratification exchanged at Washington, D. O., U. S. A., February 22, 1821, proclaimed February 22, 1821,” there was ceded “to the United States, in full property and sovereignty, all the territories known by the name of East and West Florida,” the United States took title to the lands under the navigable waters within the territory for the benefit of the national public, such lands to go to a future State embracing the territory for the use and benefit of all the people of the State. Ex parte Powell, 70 Fla. 363, 70 South. Rep. 392; Brickell v. Trammell, 77 Fla. 544, 82 South. Rep. 221; Shively v. Bowlby, 152 U. S. 1, 14 Sup. Ct. Rep. 548.

The lands not under navigable waters that passed to the United States under the treaty Avere held for disposition by Congress. This includes SAvamp and overflowed lands within the territory ceded by Spain.

By an Act of Congress approved March 3, 1845, the State of Florida “was admitted into the Union on equal footing with the original States in all respects whatsoever.” Thereafter the title to the lands imcler navigable waters, including the shore or space betAveen ordinary high and low water marks, in the State, has been held by the State in trust for 'the use and benefits of its inhabitants, subject to the power of Congress in the premises, under the Constitution of the United States and to appropriate regulation by the State. State ex rel. Ellis v. Gerbing, 56. Fla. 603, 47 South. Rep. 353; Broward v. Mabry, 58 Fla. 398, 50 South. Rep. 826; Shively v. Bowlby, supra; Brickell v. Trammell, supra; Port of Seattle v. O. & W. Ry., — U. S. —, 41 Sup. Ct. Rep. 237, decided March 1, 1921. See also 153 U. S. 273 and 287; 138 U. S. 656, 671-2; 28 A. & E. Enc. Law (2nd ed.) 206; 27 R. C. L. 1330; 32 Fla. 64; 32 Fla. 82; 1 Farnham on Waters, p. 220.

While the navigable waters in the State and the lands under such waters, including the shore or space between high and low water marks, are held by the State for the purpose of navigation and other public uses, subject to lawful governmental regulation, yet this rule is applicable only to such waters as by reason of their size, depth and other conditions are in fact capable of navigation for useful public purposes. Waters are not under our law regarded as navigable merely because they are affected by the tides. The shore of navigable waters which the sovereign holds for public uses, is the land that borders on navigable waters and lies between ordinary high and ordinary low water mark. This does not include lands that do not immediately border on the navigable waters, and that are covered by water not capable of navigation for useful public purposes, such as mud flats, shallow inlets, and low lands covered more or less by water permanently or at intervals, where the waters thereon are not in their ordinary state useful for public navigation. See 32 Fla. 64, 76.

Lands not covered by navigable waters and not included in the shore space between ordinary high and low water mark immediately bordering on navigable waters, are the subject of private ownership, at least when the public rights of navigation, etc., are not thereby unlawfully impaired. Clement v. Watson, 63 Fla. 109, 58 South. Rep. 25. As to what may be included in a patent, see Lord v. Curry, 71 Fla. 68, 71 South. Rep. 21; Niles v. Cedar Point Club, 175 U. S. 300, 20 Sup. Ct. Rep. 124; Producers’ Oil Co. v. Hanszen, 132 La. 691, 61 South. Rep. 754; Producers’ Oil Co. v. Hanzen, 238 U. S. 325, 35 Sup. Ct. Rep. 755; Chapman & Dewey Lumber Co. v. St. Francis Levee Dist., 232 U. S. 186, 34 Sup. Ct. Rep. 297; French-Glenn Live Stock Co. v. Springer, 185 U. S. 47, 22 Sup. Ct. Rep. 563; 9 C. J. 182, 193.

In this case the land in controversy is claimed by the complainants to be covered by a patent issued by the United States to the State of Florida under the Act of Congress approved September 28th, 1850, granting to the State all swamp and overflowed lands in the State not theretofore disposed of by the United States. The patent includes “The whole of fractional section” 12, T. 27 S. R. 15 E., “according to the official plats of survey.” These plats show considerable marsh land between the meander lines and the river, in section 12. The locus in quo is seemingly not embraced within the meander lines of the fractional section 12, portions of which section 12 lie on both sides of Anclote River, a narrow but navigable stream. The controversy is apparently concerning a part of the marsh lands between the meander line and the south side of the navigable river. Assuming this marsh land to be swamp and overflowed land within the meaning of the Act of Congress, and that the patent gave the State title extending over the marsh lands from the meander lines to the waters of the river bed, at a point where the State’s title by virtue of its sovereignty to lands under navigable waters including the shore, reaches; and assuming, without deciding, that the conveyance by the State gave the title to its grantee covering the marsh lands to high water mark on the shore of the river bed, the rights of the city are to be determined by the dedication “map” or plat, if it substantially delineates the location of the body of the navigable stream with reference to the streets dedicated. The State through its designated agency conveyed “all of fractional section twelve,” T. 27 S. R. 15 E., to complainant’s predecessor in claim of title. A-subsequent grantee of the land included it in a “Map of the Town of Tarpon Springs, Hillsborough County, Florida,” recorded in 1885. . The map delineates lots and blocks and numerous streets, with one street marked “Anclote Boulevard,” which is 40 feet wide and runs along a portion of the northern part of the town, where Anclote River is. At some places the north line of the boulevard for some distance coincides with or is merged into a line that indicates the south side of Anclote River. At other places the two lines denoting “Anclote Boulevard” depart towards the south from the delineated south line of the river, and after encompassing considerable spaces to the south of the river line with no designation on such spaces, the street lines turn to the north, and the north line of the boulevard again coincides with or becomes the same as the south line of the river, as it extends in a westerly direction.

The’ locus in quo is shown by the defendant city to be salt marsh with filled in places. It is represented on the dedication map as a space in irregular form between-the designated north line of “Anclote Boulevard” and the delineated south line of “Anclote River.” Apparently “Anclote Boulevard” was designed to run along the river side at' some points; and to encircle considerable spaces leaving land in supposedly low places between the boulevard and the river line, at other points. The definitely-outlined spaces thus shown by the dedication map to be intentionally left between the street and the river were obviously not dedicated expressly or as an incident to the street easement if the dedicator own such spaces. There is nothing on the map to indicate that at the dedication the waters of the body'- of the river extended over' the locus in quo. The dedication plat shows a canal funning into the river through the space that includes the locus in quo, thus indicating the space to b.e low lands and not a part of the river bed. The fact that the spaces contain no numbers or other designations, indicates a reservation rather than a dedication. See Florida East Coast R. Co. v. Worley, 49 Fla. 297, 38 South. Rep. 618.

The dedicator conveyed-the locus in quo to Wilson in 1884, who platted-it-showing the same spaces between the boulevard and. the river, and this was done before the town was established,- thus-showing that the spaces were not-intended to be included in the dedication. See Kirkland v. City of Tampa, 75 Fla. 271, 78 South. Rep. 17; City of Miami v. Florida East Coast Ry., 79 Fla. 539, 84 South. Rep. 726; Florida East Coast R. Co. v. Worley, supra. If the spaces are owned by the State,- its title thereto is not a-ffected by this-suit. The city shows no authority to assert the rights of the -State in lands covered-by navigable and tide Waters.

The dedication by the owner under the particular town plat, showing streets, etc., manifestly did not give any easement or other rights beyond the expressly designated limit's of the streets and the incidents that are appropriate thereto. Wherever the street, Anclote Boulevard, as delineated by line aiid stated width, touches or approximately touches the body of the' Anclote River, the riparian rights that are appropriate to a street easement were also impliedly dedicated as an incident, there being no express or implied reservation by the dedicator of such riparian rights.- See Brickell v. Town of Fort Lauderdale, 75 Fla. 622, 78 South. Rep. 681. An easement in the marsh lands including the locus in quo, lying between the specifically designated north line of Anclote Boulevard and the line indicating the open body of Anclote River, obviously was not by the use of this particular map or plat dedicated to the city. A right to use such marsh lands for purposes of access to the river did not pass as incidental to the dedicated street. Riparian rights generally are incident to a street easement only when and at the points where the street, by-express provision or by intendment, extends to a navigable body of water. In this case, there are no express terms or intendments to extend the location or the width of the street beyond the line definitely fixed; and where the designated north line of the street does not extend to or approximately to the river, as shown by the dedication plat, no easement was dedicated over the space on the plat between the designated north line of the street and the line indicating the body of the river. The fact that the spaces are covered by tide waters or by the waters of the river at high water periods does not give an easement over the land, under this dedication plat, even if high water extends to the boulevard as indicated. It does not appear that any rights in the wide spaces between the designated lines of Anclote Boulevard and the body of the river were granted or dedicated to the public or to the city, bfor does it appear that' the space including the loons in quo is in fact a part of the main body of the navigable river. On the contrary, a canal running through the space into the river indicates low lands, not the river bed.

The city shows no right's superior to those accorded by the dedication. Affirmative relief was sought by the city through its answer as is permissible under the statute. Chap. 6907, Acts 1915. It is assumed but not decided that' the dedicator owned the Tocios m quo and also the land dedicated for the street easement. The State is not prejudiced by the decree herein. There is no sufficient definite data as to the places where the north line of the street and the south line of the river coincide, so that a decree may be rendered on that point; therefore the amended decree properly made the adjudication of the rights of the other parties to be without prejudice to the city as to the points where the said street and the river lines do coincide.

Affirmed.

Taylor, Ellis and West, J. J., concur. Browne, C. J., concurs in the conclusion.