In 1910 R.C. Caples acquired title to Blocks 1, 2 and 3, in Section 2, Township 36 South, Range 17 East, Sarasota County, otherwise platted and known as "Shell Beach." In 1926, Caples and his wife, Ellen F. *Page 3 Caples, purchased and took deed from the Trustees of the Internal Improvement Fund to the submerged lands in front of the uplands so described. In 1927, R.C. Caples secured a loan from T.C. Taliaferro, which he secured with a mortgage on his uplands. In 1932, Taliaferro foreclosed his mortgage and secured a master's deed to said uplands.
This suit was instituted by appellees as complainants against appellants as defendants for the purpose of having complainants as holders of the uplands decreed to be riparian owners and thereby possessed of title to the submerged lands in front of said uplands and to have the deed to said submerged lands executed by the Trustees of the Internal Improvement Fund to) the Caples to be decreed to be null and void.
The defendants answered the bill of complaint denying the material allegations thereof in so far as they made any claim to riparian ownership. They support their denial of riparian ownership with the allegation that they are the owners of a small strip of land averaging twenty-one feet in width and lying between the complainant's upland and Sarasota Bay designated as "Palm Walk." There was a final decree for the complainants and this appeal was prosecuted.
The first question we are required to answer is whether or not the mortgage deed from Caples to Taliaferro described and carried title to all lands to high water mark on Sarasota Bay and thereby made him a riparian owner with all the rights and privileges as such.
Appellees contend that this question should be answered in the affirmative because, (1) the mortgage deed makes no express reservation of the strip of land designated as "Palm Walk," (2) that when a street or highway is platted on the margin of the grantor's land, a conveyance of the lands *Page 4 bordering the street carries the fee to the entire width of the street unless expressly reserved and (3) the conveyance of land abutting on a street, way, or highway carries the fee to the center of the street unless expressly reserved.
We find no quarrel with this contention; under a proper state of facts, it would serve appellees well but the facts in this case completely overcome it and invoke a different rule. The material facts are not in dispute. In the first place, Blocks 1, 2 and 3 were sold to Caples and he in turn mortgaged them to Taliaferro according to the plat of "Shell Beach" which showed the strip of land known as "Palm Walk" between Block 3 and high water mark on Sarasota Bay. If there had been other platted lands beyond "Palm Walk," there would be basis for appellee's contention but beyond it was the ocean or bay, the bottoms to which Caples had held a deed from the Trustees of the Internal Improvement Fund for more than one year when Taliaferro took his mortgage and "Palm Walk" separated these lands from the uplands.
The description of the lands conveyed shows no purpose whatever to convey any lands beyond "Palm Walk." It shows a conveyance of twenty-three acres according to the plat of "Shell Beach" including "all streets, alleys, and reserve space in all the above area." There are numerous streets, avenues, and reserve spaces in this area but it is bounded on one side by "Palm Walk," the whole of which is clearly beyond and no part of which is in or within the lands described. By description and by intent "Shell Beach" was as completely cut off from the submerged lands by "Palm Walk" as if it had been a river or mountain barrier.
Aside from this, another, and more conclusive reason for holding that there was no intent on the part of Caples to *Page 5 make Taliaferro a riparian owner is that for many years, the law of Florida had authorized the Trustees of the Internal Improvement Fund to sell certain submerged lands, that many thousands of dollars had been realized from the sale of such lands, that the submerged lands in question had been classified and sold as being within the power of the Trustees to sell and that they had actually been sold by appellants long before this suit was brought and long before Talliaferro took his mortgage.
In the light of these facts, there was no reason whatever for an express reservation of the submerged lands in question in Talliaferro's mortgage and it is contrary to every impulse of human nature to assume that there was the remotest intent to convey the uplands held by appellees to high water mark. It is settled law in this country that a riparian owner may separate his uplands from his submerged lands and convey both to different grantees, or he may sell one and withhold the other. This rule had been observed when Caples first acquired his title. It was also observed when he mortgaged to Taliaferro and it was observed when Caples purchased from the Trustees of the Internal Improvement Fund. Taliaferro was on knowledge of these transactions and we think he is now estopped to claim as a riparian owner. He is attempting to extend his mortgage over security that was not embraced therein and which he knew had been conveyed to Caples by valid act.
The second question we are called on to answer is whether or not the Trustees of the Internal Improvement Fund are authorized to sell and convey the submerged lands brought in question.
The answer to this question turns on the interpretation of Section 1391, Compiled General Laws of 1927, which is as follows: *Page 6
"The title to all islands, sand bars, shallow banks or small islands made by the process of dredging of the channel by the United States Government located in the tidal waters of the counties in the State of Florida, or similar, of other islands, sand bars and shallow banks upon which the water is not more than three feet deep at high tide and which are separated from the shore by a channel or channels, not less than five feet deep at high tide, or sand bars and shallow banks along the shores of the mainland in which the title is not, at this date, invested in prior parties, is hereby invested in the trustees of the Internal Improvement Fund of the State of Florida, to be held by the State of Florida, and disposed of as hereinafter provided."
Examination of this Act discloses four classes of submerged lands that the Trustees of the Internal Improvement Fund are authorized to sell, viz.: (1) islands, sand bars and shallow banks, (2) small islands made by the process of dredging of the channel by the United States Government located in the tidal waters of the counties in the State of Florida, (3) similar of other islands, sand bars, and shallow banks upon which the water is not more than three feet deep at high tide and which are separated from the shore by a channel not less than five feet deep at high tide, and (4) sand bars and shallow banks along the shores of the mainland in which the title is not, at this date, invested in prior parties.
It may be regarded as settled that title to all submerged lands whether tide or fresh is held by the states in trust for all the people of the respective states, that such trust is governmental and may not be completely alienated but that in the interest of all the people, the states may grant to individuals limited privileges or rights in such lands. Brickell v. Trammell, 77 Fla. 544, 82 So. 221. *Page 7
The wisdom of a statute like the one under review was never more urgent than it is in this State. There are literally thousands of acres and thousands of miles of coast line affected by it but it was never designed to deprive any bona fide owner of his right in the foreshore. Many of the lands affected by the Act are bogs and quagmires, fit for nothing but to breed snakes and mosquitoes in their native state but acquired by private enterprise, they have been drained or filled and turned into valuable holdings.
Deep waters have been made next to cities and attractive residential districts have replaced eyesores and unsanitary breeding places of every conceivable species of pathogenic bacteria. The potentialities of such sales nowhere approach the possibilities that they do in this State because of its great extent of seacoast and unusual expanse of shallow bottoms. Examples of their value about many of the municipalities attest the wisdom of the Act authorizing them. The proceedings incident to the sale brought in question were in compliance with the statute.
The statute providing for the sale of submerged lands provides ample safeguards to protect upland owners and inhibits such sales if not shown to be clearly within the law. In this case, Caples realizing that he did not acquire title to the submerged lands in front of his uplands, when he purchased the latter, he pursued the means provided for him to do this sixteen years later. In view of the history of the transaction, it is out of all reason to say that he intended to mortgage his submerged lands when he mortgaged the uplands.
The judgment below is accordingly reversed.
Reversed.
WHITFIELD, BUFORD and CHAPMAN, J. J., concur.
*Page 8BROWN and THOMAS, J. J., dissenting.