ON PETITION FOR REHEARING.
Ellis, J.The plaintiff in error filed a petition for *53rehearing in this ease upon several grounds, in one of which, namely, the fifth, he contends that his action in the court below was based not only upon the riparian act of 1856, but upon his common law right of riparian owner.
This contention was not distinctly made either in the briefs or the oral argument. The case was argued upon the theory that the cause of action rested upon and the evidence established the ownership by the plaintiff of the submerged lands between high and low water mark in front of the lot which fronted on the bay. The case was decided with reference to that single contention. The court saying, in effect that to acquire any rights under the riparian act of 1856, Laws of Florida, the owner of the land fronting on the bay should own the land to low water mark, and as there was no evidence whatever in the record that the plaintiff in error nor his predecessor in title owned the land to low water mark, he acquired no rights under the act of 1856.
The effect of this decision was to hold that title to the foreshore, that is to land between high and low water mark on bays, harbors or navigable streams cannot be acquired by prescription. The title being in the State for the benefit of the public the statute of limitations does not run.
It is however now insisted in the petition for rehearing that the owner of the lot mentioned in the pleadings claimed a common law right as riparian owner. That is to say the right of ingress and egress over the waters of. the bay to and from his lot and the right to bathe and fish in those waters, and as that right depends merely upon the fronting of the lot on the bay, that is to say, the extension of the lot to high water mark there was evi*54dence sufficient, as shown by the record, to be submitted to the jury on that issue.
With this proposition the court finds no fault, as it is of the opinion now, and was when the case was considered, that “there is room for difference of opinion between reasonable men” as to whether the boundaries of Lot No. 369 extended to the high water mark of the bay. '
We have therefore examined the pleadings as thoroughly as the condition of the record and manner of its makeup permits with the view of ascertaining whether there was any issue resting upon common law rights of riparian ownership.
There are six counts to the declaration. The first two, filed in October, 1914; the third and fourth counts filed in June, 1915; the fifth count on February 7th, 1916, and the sixth count February 18th, 1916. The third and fourth counts went out upon demurrer, and the order was made the basis of the second assignment of error. These two counts were distinctly intended to be framed upon the rights alleged to have accrued to plaintiff's predecessor in title under the act of 1856. The fifth count distinctly asserts ownership in the plaintiff of the submerged lands in front of lot 369 on the bay side, while the sixth count seems to be an effort to allege byway' of inference and innuendo the plaintiff's right, under the act of 1856. It alleges that when the plaintiff acquired the lot he was a citizen of the United States, a condition precedent to the taking effect of the grant; that he exercised the right to construct wharves and other water front rights on the submerged lands, and that he had constructed wharves and docks on the south side of the lot. The plea to this count seem not to have been replied to so that the case apparently went to trial *55with no issue upon those pleas. Issue was joined upon the pleas to the fifth count which expressly denied ownership of the submerged ground by plaintiff, water boundary, ownership of the lot and twenty years proprietorship of riparian rights.
The second count of the declaration seems to be framed upon the theory that the plaintiff through his predecessors in title had acquired a title by prescription to the submerged land whereby he had the right to build wharves and bathhouses in the waters on the bay side of his lot, and such right had been interfered with by the defendant.
The first count of the declaration by treating certain portions of it as surplusage may be regarded as a declaration upon the common law right of a riparian owner. The first plea to both counts, the plea of not guilty, and the first “further plea” to the first count, seem to have been framed in the view that they would be applicable in case the first count was construed as a declaration on the common law right of a riparian owner.
It is our conviction from the pleadings in this case that the plaintiff’s case was begun and tried upon the theory that he or his predecessors in title acquired rights under the act of 1856 or by prescription, and that the idea of insisting on the common law rights which the plaintiff had if his' land- did actually extend to the waters of the bay occurred at a later time. We did however overlook the fact that the first count of the declaration could by eliminating a large part of it as surplusage, be treated as a declaration upon the common law right of riparian ownership and interference therewith by the defendant, and while the history of the case as disclosed by the record shows that such was not regarded as the basis of the complaint, yet in deference *56to the ¿ssertion of counsel to the contrary in their petition for a rehearing, we have decided to grant the petition.
A rehearing is ordered.
Browne, O. J., and Taylor, Whitfield and West, J. J., concur.