ON REHEARING.
Ellis, J.The plaintiff in error brought suit in the Court of Record of Escambia County against the Gulf, Florida & Alabama Railway Company and the Eastern Construction Company for damages which the plaintiff-claimed he had sustained because the defendants had, by filling in the submerged land in front of plaintiff’s lot which he alleged extended to the waters of Pensacola Bay, deprived him of his rights as a riparian owner.
The case came on for trial upon the issues joined, and after. hearing the evidence and argument of counsel the court instructed the jury to find for the defendants. Final .judgment was entered upon the verdict and the plaintiff took a writ of error.
In .an' opinion filed November 3rd, 1917, this court affirmed the judgment upon the theory that the plaintiff having based his action upon the act of 1856 entitled “An Act to benefit commerce,” commonly known in this State as the “Riparian Act,” and having failed to prove that the lot in question was actually bounded by and extended to,low water mark of the bay which Avas essential to sustain his claim for. damages the affirmative charge given by the judge in defendant’s favor was correct.
*57The court granted a rehearing upon the petition of plaintiff in error upon the ground that as the plaintiff contended .that his action was based not only upon the statute above mentioned and quoted in full in the. first opinion, but also upon his common law right as a riparian owner, and the court not having considered the case from that viewpoint, the plaintiff was entitled to be heard upon that feature of the case.
At common law lands which were bounded by and extended to the high water mark of waters in which the tide ebbed and flowed were riparian or littoral to such waters. See Broward v. Mabry, 58 Fla. 398, 50 South. Rep. 826; Pollard’s Lessees v. Hagan, 3 How. (U. S.) 212, text 219; Sullivan v. Moreno, 19 Fla. 200; State ex rel. Ellis v. Gerbing, 56 Fla. 603, 47 South. Rep. 353; Ferry Pass Inspectors’ & Shippers’ Ass’n v. Whiter River Inspectors’ & Shippers’ Ass’n, 57 Fla. 399, 48 South. Rep. 643; Gould on Water’s, Sec. 148; Lyon v. Fishmongers’ Co., L. R. 1 App. Cas. 662. And applying the common law doctrine to the subject in this State the title to the soil under such waters to the high water mark is in the State of Florida subject to the power's of Congress to regulate commerce. See Sullivan v. Moreno, supra; Broward v. Mabry, supra. The title however is held in trust for the people who have the rights of navigating, fishing, bathing and commerce upon and in the waters.
The first count of the declaration alleges that the plaintiff is the owner in fee simple and has the possession of the East half of Lot 369 of Block One of the Old City of Pensacola and for more than twenty years prior to the acts complained of the lot had a southern boundary upon the waters of Pensacola Bay, and during *58that period the plaintiff and his predecessors in title had access from the channel of the bay and its navigable waters to said lot by means of the water on the south boundary and for that period of time they have exercised' the rights of ingress and egress to and from the said lot on the water or.south side by boat and rafts; and during said period they have “exercised the right to construct and maintain wharves and bath houses and other waterfront rights, on the south or shore side of said lots between the said lot and the channel of Pensacola Bay.” It is alleged that the defendants in 1913 interfered with these rights of the plaintiff by filling in with earth from the shore line of the lot to a long distance southward toward the channel of the bay and constructed “tracks” thereon and “appropriated said space” so that the plaintiff has been deprived of his rights of “ingress and egress from the navigable waters of Pensacola bay to his said lot by boat or vessel,” and been deprived of the right to “construct wharves, piers, docks and other water front privileges,” by reason of which he has been greatly damaged, and hence brings this action.
This count of the declaration rests upon a right which the plaintiff alleges he has as owner of Lot 369 to have ingress and egress to and from his lot over the waters of the bay and to construct and maintain wharves, piers, docks and bathhouses on the south or shore side of the lot between the lot and the channel of the bay.
In so far as the declaration alleges the right of ingress and egress to and from the lot over the waters of the bay, it states a common law right appertaining to riparian proprietorship. The common law riparian proprietor enjoys this right and that of unobstructed view over the waters and in common with the public the right *59of navigating, bathing and fishing, but whether as riparian owner he also has the right to build and maintain wharves, piers, docks and bathhouses between his shore line, that is to say from high water mark, upon the submerged soil which belongs to the State, out to the channel of the bay is a question which will have to be determined in view of the fact that upon this alleged right existing in the riparian owner will depend largely the measure of damages to which the plaintiff may be entitled if he should recover for the alleged violation of his common law right. Eliminating that portion of the count which alleges a right to construct and maintain wharves, docks, piers, etc., to the' channel as surplusage there remains in the count allegations sufficient to sustain an action upon the violation of the common law rights of ingress and egress to and from the lot over the waters of the bay. The defendants did not demur to this count, nor did they make a motion to strike any part of it, nor for compulsory amendment, nor did they make any effort to eliminate from the case as made by this count the right conferred by the statute, but pleaded to it the general issue and several special pleas. •
The count does not allege that the boundary of plaintiff's lot extended to low water mark, but it does allege rights to exist in the plaintiff which are conferred by the statute of 1856, sections 643 and 644 of the General Statutes, 1906, if at the time of the passage of the act the owner of the lot was a citizen of the United States and the boundaries of the lot extended to low water mark. If tie count should be tested and made to stand or fall by the allegations as to plaintiff's right to build wharves, docks, piers, etc., rights which as stated are secured by the act of 1856, we should be constrained *60to hold that the count rested on the act of 1856, and reaffirm our first opinion if the rights secured by the act did not also exist at common law.
As a count based solely upon the statute it may have been subject to demurrer for lack of certain material allegations, but as it appears from the pleadings and was stated in the -oral argument by counsel that the parties treated the count as a declaration upon the common law right, we will so treat it here, and consider whether the allegations as to plaintiff’s right to construct and maintain wharves, piers, etc., to the channel should be eliminated as surplusage.
Counsel for plaintiff in error in their last brief say that the right to “construct wharves, piers and docks and exercise other waterfront privileges are rights that belong to riparian owners under the common law,” and “the books are full of cases showing the common law rights and how they have been exercised both in England and this country.” In view of the fact that the declaration is based upon the plaintiff’s asserted right to “construct and maintain wharves and bathhouses and other water front rights” between the “lot and the channel of the bay,” we regret that counsel deemed it unnecessary to cite a single case or text-book supporting • the plaintiff’s declaration if it is construed to be based upon the right in the plaintiff to construct docks, piers and other buildings from the shore beyond low. water mark out to the channel. We have made a diligent search of the books for such a doctrine but have been unable to find a single authority, in support of it.
It is perfectly clear that the legislature of 1856 did not consider the doctrine as announced by plaintiff’s counsel to be so well settled, otherwise Chapter 791 may *61have been confined to granting the privilege of filling, “up from the shore” and that right may not have been limited to such owners of lots whose boundaries extended to low water mark. The act of 1856 granted to such riparian owners whose lots extended to low water mark the right to “build wharves into streams or waters of the bay or harbor as far as may be necessary” for facilitating the landing of goods. “And to fill up from the shore, bank or beach as far as may be desired not obstructing the channel,” and upon the lands so filled in to “erect warehouses or other buildings.”
If the owners of lots which extended only to high water mark had the right at common law to construct wharves, docks and piers out into the bay to the channel, to “wharf out” as the saying is, the act of 1856 was superfluous. In fact it rather hinders than facilitates the purpose of its enactment by confining the privileges granted to the owners of such lots as were bounded by and extended to low water mark.
The right did not exist at common law. In Hale’s Treatise DeJure Maris, Hargrave, it is stated that the ground between ordinary high water mark and low water mark is owned by the sovereign but not for his exclusive use and profit, but in trust for the common benefit of all his subjects. Any intrusion by the owner of the upland upon the shore between high and low water mark was unlawful and was treated either as a purpresture or a nuisance. See Angell on Tide Waters, Chap. VII; Moore’s History of the Foreshore, 370; 3 American Jurist, 185-190; Respublica v. Caldwell, 1 Dallas Rep. 150. In the case of Dutton v. Strong, 1 Black (U. S.) 22, the Supreme Court of the United States' speaking through Mr. Justice Clifford, said: “Where piers and landing places and wharves are constructed by the riparian pro*62prietor on the shores of bays and arms of the sea as well as on lakes, and where they conform to the regulations of the State and do not extend below low water mark, it has never been held that they were nuisances unless it appeared that they were an obstruction to the paramount right of navigation.” In this connection the judge said “our ancestors, when they immigrated here, undoubtedly brought the common law with them,, as part of their inheritance; but they soon found it indispensable, in order to secure these conveniences, to sanction the appropriation of the soil between high and low water mark to the accomplishment of these objects. Different states adopted different regulations upon the subject, and in some the right of the riparian proprietor rests upon immemorial local usage.”
Mr. Angell in his work on Tide Waters recognizes the doctrine of the common law that the right of property in tide waters and in the soil thereof is in this country in the State, and the State may abate every intrusion thereon whether the same be a nuisance to the navigation or not. Angell on Tide Waters, Chap. VII. At the same time says he,, “it is well known that in the respective States which lie along the margin of the Atlantic there are many places where the tide ebbs and flows,” and which therefore are public, “that are of no navigable use and in their original condition without the aid of art and industry afford to the public little or no advantage of any kind.” Flats and marshes covered with water only at full tide. In many cases such waste places have been built up, docks or piers run over them to navigable water by the riparian proprietor and the public have been thereby very considerably the gainers. But that condition in no wise affects the common law, but is one which commends itself to the legislatures of the respective states for *63the adoption of such regulations as may be deemed to be for the best interests of the people.
The case of Railroad Company v. Schurmeir, 7 Wall. (U. S.) 272, the Supreme Court of the United States again through Mr. Justice Clifford said that riparian proprietors on navigable streams have the right to construct suitable landings and wharves for the convenience of commerce, and cited Dutton v. Strong, supra, in support of the doctrine. In Yates v. Milwaukee, 10 Wall. (U. S.) 497, Mr. Justice Miller speaking for the court said: “But whether the title of the owner of such a lot extends beyond the dry land or not, he is certainly entitled to the rights of a riparian proprietor whose land is bounded by a navigable stream; and among those rights are access to the navigable part of the river from the front of his lot, the right to make a landing, wharf or pier for his own use or for the use of the public, subject to such general rules and regulations as the legislature may see proper to impose for the protection of the rights of the public whatever those may be.” But that case does not recognize the right of the riparian owner to build wharves beyond the low water mark to the channel.
In the case of St. Anthony Falls Water-Power Co. v. St. Paul Water Commissioners, 168 U. S. 349, 18 Sup. Ct. Rep. 157, the court was of the opinion that the property rights of a riparian owner of land on navigable waters are to be measured by the rules and decisions of the State within whose boundaries the particular land lies. In Barney v. Keokuk, 94 U. S. 324, it was recognized as the law that the title and rights of riparian proprietors upon the banks of the Mississippi were to be settled by the states within which the lands were included. That case was cited in St. Anthony Falls Water-Power Co. v. St. Paul Water Commissioners, supra, in support of the doc*64trine announced in ihe latter case. The case of Packer v. Bird, 137 U. S. 661, 11 Sup. Ct. Rep. 210, asserted the right of each state to determine the extent of the title and of the rights of the riparian owners in waters within the territory of the state. See also Hardin v. Jordan, 140 U. S. 371, 11 Sup. Ct. Rep. 808, 838; Shively v. Bowlby, 152 U. S. 1, text 45, 14 Sup. Ct. Rep. 548; Lowndes v. Town of Huntington, 153 U. S. 1, text 19, 14 Sup. Ct. Rep. 758, 243 U. S. 316, 319.
This court has several times indicated the extent of the rights of a riparian owner upon navigable streams. In Ferry Pass Inspectors’ and Shippers’ Association v. Whites River Inspectors’ and Shippers’ Association, supra, the court speaking through Mr. Justice Whitfield, said: “Riparian lights are incident to the ownership of lands contiguous to and bordering on navigable waters. The common law rights of riparian owners with reference to the navigable waters are incident to the ownership of the uplands that extend to high water mark.” “Among the common law rights of those who own land bordering on navigable waters apart from rights of alluvion and reliction are the right of access to the- water from the land for navigation and other purposes expressed or implied by law the right to a reasonable use of the water for domestic purposes,” etc., enumerating other uses incident to the waters of a navigable stream. Continuing the court said: “Subject to the superior rights of the public as to navigation and commerce and to the concurrent rights of the public as to fishing and bathing and the like, a riparian owner may erect upon the bed and shores adjacent to his riparian holdings, bath houses, wharves or other structures to facilitate his business or pleasure; but these privileges are subject to the rights of the public to be enforced by proper public authority or by *65individuals who are specially and unlawfully'injured.”
In-Merrill-Stevens Co. v. Durkee, 62 Fla. 549, 57 South. Rep. 428, the court said: “The owner of land abutting on navigable waters had no exclusive right in the waters below ordinary high water mark or in the lands under the waters except the right of -access to and from the navigable waters and rights in the land growing out of accretion or reliction.”
In this State because of its great coast line and many navigable rivprs and lakes and the number of bays and harbors and lowlands, there are many places where the tide ebbs and flows, or which are covered by ordinary high water that are of no navigable use, but which according to the common law belong to the public, and because of this condition the owners of riparian lands in many instances have exercised the- privilege of constructing wharves or piers to the navigable water's. Such structures however are none the less purprestures in law or nuisances if they amount to a damage to the port or navigation and cannot be considered as a right appurtentant to the upland. The right to build wharves into the streams or waters of the bay or harbor and to fill up from the shore and to build upon the lands so filled in, was granted by- the act of 1856, but the grant was limited to those whose lands were actually bounded by and extended to low water mark. Sections 643 and 644 General Statutes, 1906. We think therefore that so much of the first count of the declaration that alleges a right in the plaintiff to construct and' maintain wharves and bathhouses and other Waterfront rights on the south or shore side of the' lot between it and the channel of the bay, should be eliminated as -surplusage.
The question of title is the next point involved. The declaration alleges in- the first count that the plaintiff *66prior to and at the institution of the suit was and is the owner in fee simple-of-the east half of Lot 869/ Block One of the Old City - -of Pensacola, and -that during a period of more than twenty years the plaintiff and his predecessors in title to the said lot have had- access from the channel of the bay by means' of the water- on the south boundary or shore. . The pleas deny the plaintiff’s title and deny twenty years possession. ...
It is -contended' by defendant that there is no evidence that -the title to- the -lot in question ever passed out of the Spanish Government, hence it was acquired by’ the United States Government upon the cession of Florida to the- United • States-, and that there is' no evidence that the title has ever passed out of the United States Government.
If the title to the lot in question passed to the United States Governrrent when Florida was acquired from Spain by the Treaty of 1819, which was the case if the Government of Spain had not before that time conveyed its title to some person, then the plea of defendant denying title in the plaintiff was sustained and there was no error in the peremptory charge for the defendant. If however Spain had divested herself of title by sale or grant prior to the acquisition of the territory of tire United States and such sale or grant was confirmed by the Commissioners of Lands Claims in West Florida, or by Act of Congress or by judgment of a court, then the plea was not sustained so far as this point was involved.
The plaintiff offered in evidence a copy of-the record of a deed from Lorenzo .Vitrian, Sindick to Antonio Montero dated December 31, 1813, conveying Lot No. 369 in Pensacola. The dimensions of the lot are given as ninety-five feet front by one hundréd and-thirty-one feet three- inches in depth “fronting on the bay.” Also a *67copy of the record of a deed from Antonio Montero to Francis de Barrios conveying the same lot and dated February 18, 1814. This deed recites that Antonio Montero purchased the lot at a “public sale ordered by this Ayuntamiento.” The plaintiff then offered certain parts of the American State Papers-to show-confirmation by the American Government of the sale of the above mentioned lot. The record shows that the court declined to admit these documents in evidence.
In 1822 Congress passed an act “for ascertaining claims and titles to land within the territory of Florida.” Under this act Oommisisoners- were- appointed -for the purpose of ascertaining -the claim and titles to lands within the territory of Florida as acquired by the treaty of 1819. . These Commisisoners were a board of inquiry, said Mr. Chief Justice Marshall, and not a court exercising judicial power and deciding finally -on titles. The Commissioners were to examine into and report to Congress such claims as ought to be confirmed. The purpose of the act under which the Commissioners were appointed was to ascertain the claims and their location, preliminary to the sale by the government of public lands. “The refusal of the Commissioners to report a claim for confirmation was not considered as a final
-dieial decision on the claim binding the title of the party, but as a rejection for the purpose of the act.” See United States v. Percheman, 7 Peters (U. S.) 51, 8 L. Ed. 604.
Section 1 of the Act of Congress entitled “An Act to confirm the reports of the Commissioners for ascertaining claims and titles to lands in- West Florida and for other purposes” approved April 22, 1826, confirms all the “decisions n ade by the Commissioners” in favor of claimants to lands and lots- in the district' “contained *68in the reports, opinions and abstracts of the Commissioners which have been transmitted to the Secretary of the Treasury.”
The American State Papers, Volume 4, is a publication made under the authority of the Senate of the United States and contains documents, legislative and executive, of the Congress of the United States in relation to public lands. This volume contains the .reports of the Commisisoners appointed under the act approved in 1822, entitled “An Act for ascertaining claims and titles to land within the territory of Florida.” These documents are received in evidence without other proof ,of their authenticity than the published volume. See Sullivan v. Richardson, 33 Fla. 1, 14 South. Rep. 692.
An examination of the reports of the Co rmissioners shows a list of lots sold in Pensacola at public judicial sale by order of the “Superiority” of the town in December, 1813, and January, 1814. Lot No. 369 was adjudged to Don Antonio Montero according to this list. It seems from the reports that a question had arisen as to the authority of the town officials to sell the lots listed because they were laid off upon or contiguous to squares which under the British rule of the territory had been designated in the place of t|he town as public squares. British purchasers of lots fronting upon or contiguous to these squares had as the report shows acquired certain rights with which the replatting of the town interfered. When the Spaniards acquired the territory no alteration of the town plan was thought of for many years until the “mines of Mexico ceased to pour their floods of gold into the coffers of the provincial Government.” Then in 1802 thé first alteration was made. In 1806 Superintendent General Morales disapproved of the project and refused to confirih the titles given by Governor *69Fotch y Juan, but decreed that the grantees should remain in possession • “until the decision of his Majesty should be known.” The report then states that it was not known whether the King approved the plan, but several years afterward Morales granted some of the lots. The report then states that in view of the long possession of the lots by the purchasers and the improvements made by them the “Con misisoners will do what the authorities of Spain could legitimately perform; and as the lots have been improved and- occupied for that length of time with the consent of the officers of the Government, the original authorities and the contiguous grantees although there might have been an original defect of power they will give confirmation to them.” The sale of lots however under the “Constitutional Government” says the Commissioner is a different case and has none of the sanctions of the sales under the first change of the town plan. As to the acts of the “Cabildo’’ the powers' of which “both under the Constitution and the King relate to the sale of lands only” and under a sale ordered- by it the lots numbered in the list above mentioned were sold to the persons named in the list, there was doubt on the part of the Commissioners concerning their validity. The report states that the matter should have been - “forwarded to the provincial deputation to be approved by the Cortes” but say the Commissioners “whether this was ever done or not or what was the result we have been unable to learn.” As to the purchasers- of these lots the report states that the Governor of West Florida had decreed that there was no authority by which the plan of the town could be altered so as even to interfere with the military buildings.” The matter was referred to Congress for its decision, but the Commisisoners say:--“this is admitted to be a hard case *70upon,most, of the-claimants. The original .vendees it appears paid a valuable consideration .for the lots and some of them have.since passed into the,hands of innocent purchasers.. In equity and .justice they are either entitled to the lots or the money with, which they were purchased; but how they are to obtain redress Congress must determine.” The Commissioners report contains the petitions of the purchasers of the lots to the Spanish authorities for an order confirming the sale of the lots. The petitions show the reasons operating .upon the authorities of the town which induced them to enlarge the plan of the town and make sale of the lots, but they seem to relate to the lots which were carved out of the squares between. Romana and new streets north of the Squares of Ferdinand and Seville, while lot No. 369 according to a, map other than the one appearing in the American State Papers, is located in a different .part of the town and fronts' on the bay south of Zarragossa Street and four blocks west of Ferdinand Square in the southwestern part of the “old city.” Lying immediately north of lot 369 and contiguous to it is lot No. 368 which was also included in the list of lots sold at public judicial, sale by an order of the “Superiority” of the town and referred to above.. Nowhere in the report of the Commissioners, the list of lots sold, abstracts of claims to lots confirmed- and those rejected,- nor in the above mentioned petitions of purchasers is any reference made to any lot of .a larger number than 369 except in the one table on page 115 of Vol. 4 Am. St. Papers, under letter “F”..which designates an abstract of claims founded upon sales at auction by the Spanish 'Government which were confirmed by the Commissioners., That entry is as follows: “No.. 47” claimed by M. Hanna and widow McPherson. “Original vendee, Francisco Barrios, nature *71of claim mesne conveyance,” date of claim “Feby, 18-1814 Number 399” .80 by 170 feet and sold by “The" Cabildo.” Under head of general. marks in the last column it appears that the lot was sold at auction “Dec 31, 1817.” This entry follows one numbered 46 in which it appears that lot No. 368 was claimed by the san e persons, original vendee Antonio Colein, deed from the “Cabildo” Dec. 30, 1813. This lot No. 368 appears in the list first mentioned of lots “sold at public judicial sale by order of- the Superiority of this town in the months of December. 1813 and January 1814,” as having been sold by the “Cabildo” to Don Antonio Collins. It is evidently the same lot referred to in Abstract “F” as having been originally claimed by “Antonio Colein as original vendee.” Lot 369 as stated appears to have been sold by the Cabildo to Antonio Montera,. but as shown by the deed from Montero to Francisco Barrios in evidence in this case was conveyed by the original purchaser under the Cabildo to Barrios on February 18, 3814. It also appears from the. reports of the Commissioners that the sale of every lot in the list of lots sold by order of the “Superiority” of the town except lots numbered 360 and 369 were either expressly confirmed or rejected by the Commissioners or reported by the n to Congress.
It is significant that neither in the abstract of claims to lots which were rejected by the Commissioners and listed under the letter “K” above referred to, nor in the abstract of claims to lots which the Commissioners reported to Congress-, pursuant to their conclusion that certain claims should be referred to Congress for settlement and which they listed under the letter “L” does lot numbered 369 appear. It is apparent to us that the Commissioners did not regard lot No. 369 which .was sold *72by the Cabildo to' Montero as being among those which for the reasons given by them should be either rejected or referred to Congress to- specially confirm or reject as being unlawfully sold by the Spanish authorities. The Commissioners undoubtedly intended to report upon all the claims submitted to them. ' A claim to- lot 869 among others, sold by the Cabildo was- submitted. Some of these claims' were confirmed, some rejected and others referred specially to Congress for confirmation or rejection. The Commissioners after discussing at length the n erits of- some of these claims and others made a list of those rejected, those specially referred to Congress and those confirmed. Lot 369 does not appear in the two first mentioned schedules or abstracts, but in the list or abstracts of those claims confirmed appears one which was claimed by Barrios under mesne conveyance dated Feby.' 18, 1814. On that date Montero who purchased from the Cabildo lot 369 conveyed it' to Barrios. The abstract gives the number of the lot as 399, a number greater than that borne by any lot referred to by the Commdsisoners anywhere else in their report so far as we have discovered. In fact number 369 is the highest number borne by any lot referred to by the Commissioners aside fton the one instance above mentioned. This entry in the abstract follows an entry dealing with lot 368 in the same order in which the two entries dealing with lots 368 and 369 appear in the list of lots sold at public auction by order of the Superiority of the town and hereinbefore mentioned.
- In view of these facts we think the entry in Schedule “F” No. 47 deals with lot 369 and that the second figure of the number 399 appearing in that entry as the lot number is a typographical - error and the lot number appearing in that entry should-be- 369 instead of 399.
*73It thus appears that the title to lot • 369 'passed out of the government of Spain to Antonio Montero, and by him conveyed to Barrios and the claim' of M. Hanna and Widow McPherson to - the lot which appears - to have been based on a sale at auction was confirmed by the United States Government. • ' "
It is unnecessary' to discuss the assignment of' error based upon the court’s ruling' sustaining defendant’s objection to the reading in evidence of the certified copy of the judgment of Bobe v. Hanna and his wife, because as there appeared a break in the chain of plaintiff’s title from- Barrios to M. Hanna and the Widow McPherson the deed -from the United States Marshal to Bobe purporting to convey the lot involved* in this litigation was offered and received in evidence as color of title and there was evidence enough to go to the jury upon the question of plaintiff’s title to', the- lot based upon possession by him and his grantors for more than twenty years. Upon the question of the boundaries óf the'lot we said in the opinion granting a- rehearing in this case that “there is room for difference' of opinion between reasonable men as to whether the boundaries of Lot. No. 369 extended to high water mark of the bay.” A re-examination of the evidence in this case confirms us in this view. In that casé the question should not have been taken from the jury by a .peremptory charge. ' See Anderson v. Southern Cotton Oil Co., 73 Fla. 432, 74 South. Rep. 975, L. R. A. (N. S.) 1917 E. 715.
The defendants pleaded that the submerged land, lying south of the lot, between ordinary high water mark and a point where the waters of the Bay in the direction of the channel reached the pier head line was granted' by the Legislature of Florida to the City of Pensacola and that the city granted the same to' the defendánt railway *74company for purposes of railroad terminals, docks, pier's, wharves and other instrumentalities of commerce and navigation with authority to improve same for such purposes, and that the defendant construction company acting under authority and for the benefit of the railroad company filled in the submerged land and builded thereon the docks, wharves and other instrumentalities of commerce, which are the alleged acts complained of in the declaration. The plaintiff demurred to the plea and the demurrer was overruled. If the plea was good it was a complete defense; if it was: bad the. demurrer should have been sustained.
The plea rests upon Chapter 4802 Laws of Florida, 1899. The second section of the act purports to grant to the City of Pensacola, except as otherwise provided in the act, the space west of Alcaniz Street and east of Barcelona Street and south of Hickory Street and the spaces included in a map of the water front of the city adopted by the Provisional Municipality to the east of Alcaniz street and to the west of Barcelona street covered by water “exceeding at this time twelve feet in depth, such spaces to be held by the city in perpetual trust for the public and to remain forever open to navigation and free access to the streets and wharves on the streets running north and south and to such other streets as the city may by ordinance lay out in any direction over any part of the space covered by this act from the intersection of any now existing street with the shore line to the southern limit of such space.” Section, one of the act provides that it is the object of the act to dispose of all the land in front of the City of Pensacola embraced within the limits of the map of said waterfront above mentioned “and the grants herein made are of the streets and lots as laid down on said map.” Section 8 *75grants to. the “city the title to. the soil and any water thereon embraced in the streets as .delineated upon said map other, than in the-space granted in. trust in section 2.” Section 4 grants in. fee simple the improved lots in the space mentioned in section 1 to such, persons as prior to January 1, 1898,'have by themselves or-those under whom they hold improved the same. Section 5 provides for, the appointment of commissioners- for the purpose of “ascertaining and declaring, the rights of those to whom rights are .granted by this act.” It pio vides for the compensation to be paid the Commissioners, the appoint a ent of their successors, the keeping .of a record of all claims considered by them, and that two-thirds of the Com'Mission -shall decide all questions. Section 6 vests in. the Commission power to “summon witnesses, to swear them, hear testimony and receive evidence and finally determine the rights of persons (including the City of Pensacola) to whom grants are herein made -and such determination shall be conclusive as to such right.” This -section also provides that “upon such' determination they (the Commissioners) shall jointly .execute a deed for the lots or portions of lots to all persons whom they shall find to be entitled, under the provisions of this, act and such deed shall convey in fee simple all the rights of the State to the lot or lots therein mentioned, and shall authorize the exclusive appropriation of such property to private uses by the grantee or his assigns: Provided, that whenever any property granted-under this act is irf litigation between parties, then any deed-made , hereunder shall be without prejudice to the rights under this act of the party who may be adjudicated to be entitled to possession.” • Section 7 provides that in making such adjudication and deed the Commissioners shall not regard any claims- of *76riparian rights or other rights not covered by this aet and shall make deeds - as if no such rights could arise but .such determination and deeds shall -in no wise be regarded as affecting any such actually existing rights.” The act further provides that the- Commisisoners. shall not determine the effect of the act upon any lot except upon the application of some person claiming the same under the provisions of the act; prescribes, the proceedings in such cases; a limitation of two years in which to .file claims; that-at the expiration of that time from the passage of the act the Commisisoners shall detex*mine all unadjudicated applications, give to the person entitled thereto deeds, and after satisfying the requirements of Section 8 of the act the Commissioners shall make a deed to the City of Pensacola for “all lots and portions of lots for which no application shall have been filed (except certain key lots covered by water between Palafox Street wharf and Baylen street wharf, etc.) and-for all lots and portions of lots adjudicated to applicants, but for which they shall have received no deed because of their refusal or neglect to pay the Commissioners’. fees; for the employment of a clerk and his compensation, and a surveyor; and the keeping of a record showing each deed made; a deposit by each claimant of one dollar for each lot claimed by him, and for the deposit in the-office of the Clerk of the Circuit Coui*t of Escambia County of the records made by the Commissioners.
This act undertakes to deprive without compensation the owner of lots,’ the boundaries of -which extend to high water mark-of the Bay, lying within-the area covered by the map of the water front referred to in, the act, of their rights under the common -law - as riparian, owners. We have said that the - rights of a riparian owner at *77common law-constituted property of. which he could not be¡ deprived without just compensation. See Broward v. Mabry, supra. This view we think is sustained by the weight of authority.
Mr. Farnham in his work on the “Law of Waters and Water Rights” in Volume 1, page 297 says: “It thus appearing from the preceding sections that at common law the riparian owner has a right of access -to the stream which cannot be destroyed even for the improvement of navigation without making compensation to the owner, the right should be much more fully protected in this country where the constitutions prevent the. taking of private property for public use withiut' making compensation. And the general rule is that the rights are protected.” He observes however that a few of the- courts have refused to recognize a right of property in the riparian owner, or have held that it was subordinate to the public right, so that they have permitted the right to be cut off without , any redress or compensation. See Yates v. Milwaukee, supra; Van Dolsen v. Mayor of New York, 21 Blatchf. (U. S.) 453; Myers v. City of St. Louis, 82 Mo. 367; Clark v. Cambridge & A. Irr. & Imp. Co., 45 Neb. 798, 64 N. W. Rep. 239; Clark v. Peckham, 10 R. I. 35.
Mr. Justice Miller in Yates v. Milwaukee, speaking for the Supreme Court of the United States, said: “This riparian right is property and is valuable, and, though it must be enjoyed in due subjection to the rights of the public, it cannot be arbitrarily or capriciously destroyed or impaired. It is a right of which when- once vested, the owner can only be deprived in accordance with established law, and if necessary that it be- ta'ken-for the public good, upon due compensation.” See also Potomac Steam-boat Co. v. Upper Potomac. Steam-boat *78Co., 109 U. S. 672; 3 Sup. Ct. Rep. 445, 4 Sup. Ct. Rep. 15; Bell v. Gough, 23 N. J. L. 624; Trenton Water Power Co. v. Raff, 36 N. J. L. 335; Gould on Waters, Sec. 246.
Riparian rights -we think are property,' and being so the right to-take it for-public use' without - compensation does not exist. The fronting-of á lot1 upon a navigable stream or bay often constitutes its- chief valué and desirability whether for residence "or business purpose.- The right of access to the property-over the-water, the unob; structed view- of the bay and the- enjoyment of the privileges of: the waters incident to ownership of the bordering land would not in many cases be exchanged for the price of an-inland lot in the same vicinity. In many cases doubtless the riparian rights incident to the ownership of the land were the principal if not sole inducement leading to its purchase by one and the reason -for the price charged by the seller. - :
The owner of land bounded by tide water may maintain an action against a railroad' corporation constructing its road by authority of the legislature so as to cut off his access to the water is held in Williams v. Mayor of New York, 105 N. Y. 419, 11 N. E. Rep. 829; Rumsey v. New York, N. E. R. Co., 133 N. Y. 79, 30 N. E. Rep. 654.
We do nof appreciate the force of the argument that thé State as owner of the submerged land between high and low water mark should not in the event it desires to improve the water front for navigation-be' required to pay to the owner Of the upland a just compensation for injury tó his property incident to such public enterprise. But this- is not such a case. A- railroad company operated by private capital, controlled by private individuals, conducts its business for private gain is seeking- to utilize the water front for its own use but claims immunity *79from liability for' davrages to the'plaintiff upon the. ground that the work of filling np the submerged lands, and building piers out into the bay incidentally benefits commerce and navigation, although it also destroys a large part of the value of plaintiff’s property perhaps by wholly depriving him of his right's as a riparian owner.
The plea of justification under this statute we think was not good, and the démurrer should therefore have been sustained.
The judgment of the court below is reversed.'
Browne, C. J., and Taylor, Whitfield and West, J. J., concur,