On the question of 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, I agree with the main opinion of Mr. Chief Justice TERRELL, concurred in by Mr. Justice WHTITFIELD and CHAPMAN.
On the question of whether or not the Trustees of the Internal *Page 29 Improvement Fund are authorized to sell and convey the submerged lands brought in question which is discussed in the main opinion, it appears that the material testimony of some of the witnesses was at variance from that of others and that many years separated the time at which their testimony was taken. I am unable to tell how this fact influenced the Chancellor.
I think the criterion to govern the trustees of the Internal Improvement Fund in the sale of submerged lands under Section 1391, Compiled General Laws of 1927, should be that governing the Department of the Interior in patenting lands to the State under the Swamp Land Grant Act of 1850, that is to say, if the larger fraction of the unit advertised to be sold is shown conclusively to be within the terms of the Act, the entire unit may be construed to be covered by and sold under it, unless in particular cases the conditions affecting the public interest are different, in which case a different rule should be applied to insure the public welfare.
I am further impressed with the fact that the physical test to determine whether or not the lands applied for are subject to sale under the Act should be that found to exist at or near the time the application is made. Such tests should be made under normal tidal and other conditions. My agreement with the dissenting opinion of Mr. Justice BROWN in the companion case to this, is conditioned on this concurrence.
It may be that such requirements were observed by the Chancellor. If they were not, the cause should be reversed on this point with directions to proceed accordingly.
*Page 30TERRELL, C. J., WHITFIELD and CHAPMAN, J. J., concur.