Dissenting.
This case seems to hinge upon, and may be determined by one question, what did the Indian tribes intend to convey to Panton-Leslie & Co., and to John Forbes & Company? For it seems clear to me, that the Spanish, Government ratified without equivocation or mental reservation, whatever the Indians intended to grant.
The Supreme Court of the United States' has upheld the ratification of these Indian grants in a suit in which part of the upland only was involved. Mitchell v. United States, 9 Pet. 711.
There it was held that the Spanish Government having confirmed the grants before the United States Government acquired Florida from Spain, the United States had no right or title to the upland in disputes.
*460The opinion of the majority in the instant case is predicated upon the doctrine that those claiming ownership below high water mark under a grant from the government must clearly show that such was the intention of the government making the grant.
If the titles of Panton-Leslie & Company and John Forbes & Company, which were confirmed by the Spanish Government, rested upon a conveyance from a private individual, the doctrine invoked in this case might be applicable, as it could be contended that in the absence of anything to the contrary, the Indian tribes may have held, title to the submerged lands only for the benefit of the public, in the same manner that other sovereignties hold such lands. But it seems to me that “the government making the grant ’ ’ — the Tallapoosa and Seminole Indians in the matter of the Panton-Leslie Company and the Lower Creek and Seminole Indians in the grant to John Forbes & Company, — intended to grant the area embraced within the description, without distinction between upland and submerged lands.
The opinion in this case says, “where private ownership is asserted in property that under the law is a subject of common or public use, the claimant must clearly show that the private exclusive right that is asserted was lawfully acquired through competent authority in the premises.”
All real property held by the Indians under their law was “a subject, of common or public use,” and it follows that any grant by them of the. upland would have to'be established by as clear and positive proof as a grant of the submerged lands or lands below high water mark.
In considering this question, we need not be confused by distinctions that exist in governments where there is private ownership in uplands, and government ownership or control in the submerged lands.
*461Under the laws of the Indian tribes there was-no private ownership of either the upland or the submerged lands; but the tribes held the title to all such lands in the same manner that other sovereignities hold title to submerged lands. The members of the Indian tribes obtained their livelihood largely from hunting and fishing, and the tribal government held the upland and the submerged lands for the benefit of all the members of their tribes for these purposes.
No distinction between upland and submerged lands, or the method of their tenure was known to the Indian tribes. A territory within certain prescribed boundaries over which the Indians exercised dominion was transferred by them to Panton-Leslie & Co., and John Forbes & Co. The Indians did not have in contemplation the mere granting of the uplands, as under their law and customs there was no distinction between them.
This was well known to the Spanish Government when it ratified the Indian grants. Without this ratification, the title to the uplands would not have passed to Panton-Leslie & Co., and John Forbes & Co., and with it, went everything that the Indians intended to grant.
We are considering a case where both upland and submerged lands were held by the same tenure. In the case of Mitchell v. United States, supra, the court in its statement of facts said, “it is not deemed necessary to recite more specially the various original deeds from the Indians, or those made in councils after the lines had been marked which designated the boundaries of the respective grants. ’ ’ * * * * “Those of the Indians recite the considerations which led to the grants, convey the lands with a warranty of their title by ascertanied boundaries.” Italics are mine. These “ascertained boundaries” included both upland and submerged lands, and the Supreme Court of *462the'United States held in the Mitchell case that the Indians conveyed the lands within the prescribed boundaries. The court says with reference to the acts of confirmation by -the Spanish Government, “those of the governor ratify and confirm the grants in full and direct dominion, and in full property, put the grantees in possession, and promise to defend and maintain it.”
In ratifying the grants made by the Indians, which, says the Supreme Court, were “marked with designated boundaries,” the Spanish government did not specify that ■it ratified the grant only as to fhe uplands/ nor is there anything in their ratification that excluded the submerged lands.
• The Supreme Court further said, “the original deeds, and the demarcation of lines and boundaries were made, in the presence of the commandant at St. Marks, exercising the offices of Lieutenant Governor and sub-delegate of the ■intendency, or were approved by him; every act done in relation to the cessions and their ratification, from the first application to the Governor General in 1799, to their consummation in 1811, was public and notorious to' both Indians and whites.”
So complete was the cession by the Indians of their title to and dominion over all the territory within the “ascertained boundaries,” that they would not go, for the purpose of hunting, upon any of the territory included within those boundaries, without the permission of their grantees.
Hunting by the Indians necessitated to a great extent the use of both the land and the water, for within the ceded territory there were rivers, lagoons, bayous and bays which it was necessary to cross or traverse in their hunting expeditions. After their grant to Panton-Leslie & Company and to John Forbes & Company, they abstained from the right of hunting on the ceded territory without *463asking “permission from the house to hunt upon them, and with the exception of some occasional depredations, respected their possessions and property.” Mitchell v. United States.
Continuing, the court said: “That by the law of nations, the inhabitants, citizens, or subjects of a conquered .or ceded country, territory or province, retain all the rights of property which have not been taken from them by the orders of the conqueror, or the laws of the sovereign who acquires it by cession, and remain under their former laws until they shall be changed.”
Within the territory claimed by the Indians in Florida “the inhabitants, citizens or subjects” had no private rights of property. All right of property both to the upland and the submerged lands was in the Indian tribes.
If, ipsa facta, by conquest, Spain acquired dominion over the submerged lands which the Indian tribes held for common or public use, it acquired also dominion over the upland, as that was held by them by the same tenure that they held the submerged lands.
When the Spanish Government confirmed the grant of the Indians — unless there is something to be found within the terms of the ratification or in the circumstances attend-, ing it, that the Spanish Government intended to distinguish between the upland and the submerged lands, — the conclusion seems irresistible that the Spanish Government ratified the transfer of the title to and dominion over everything, whether upland or submerged lands, within the ‘ ‘ ascertained boundaries.” •
To the Indians and in the Indian' law there was no more distinction between upland and submerged lands, than there was between the top-soil and the sub-soil.
They granted to Panton, Leslie & Co. and to John Forbes & Co. all that they' claimed ownership to or dominion over, *464within the ascertained boundaries, and this broad grant was confirmed and ratified by the Spanish Government without reservation.
The contention that simultaneously with the acquisition of Florida by the Spaniards, the Indian tribes were diverted of áll dominion over and right to the submerged lands which the Indian tribes held, together with the uplands, for the use and enjoyment of all their subjects, and consequently Spain’s ratification of the grant of the Indians included only the uplands, rests upon one of two hypotheses; neither of which seems tenable to me.
First, that the Spanish Government did not know that the Indian tribes held the title to the upland and the submerged lands by the same tenure and thought that the Indians were only selling the uplands contained within the “ascertained boundaries.”
Spain at that time was one of the most highly civilized and cultured nations of the world, and its familiarity with laws and customs of all nations with which it traded, civilized or uncivilized, was second to none. We must, therefore, reject that hypothesis.
The second is, that the Spanish Government, — knowing •that the Indians claimed property in, and dominion over, both the upland and the submerged lands, and when they granted lands within “ascertained boundaries,” made no distinction between them — ratified the grant of the Indians with a mental reservation that they were not granting, and that Panton, Leslie & Co., and John Forbes & Co. were not receiving, what all parties to* the transaction supposed they were; that is, the upland or submerged lands within the prescribed boundaries. I cannot accept that hypothesis, as there is nothing in the action of the Spanish Government in the matter of their ratification to indicate that they practiced or intended to practice such duplicity.
*465When the United States acquired Florida from Spain, it claimed ownership of the lands that had been granted by the Indians to Panton, Leslie & Co. and John Forbes & Co., and sought to destroy the effect of those grants and their ratification by the Spanish Government.
The Supreme Court of the United States, however, rejected the claim of the United States Government and sustained the Indian grants and the Spanish ratification, as to the upland, as that was the only part of the tract in controversy.
The State of Florida is now making the same contention with regard to the submerged lands, but as it seems’ clear to me that both must be tested by the same principles, the State of Florida has no more claim to the submerged land than the United States Government had to the upland.
I am, therefore, forced to these conclusions: that the Indians intended to grant everything within the subsequently ‘ ‘ ascertained boundaries, ’ ’ whether upland or lowland, except the channels of certain navigable waters, to which no claim is made in the bill; that the Spanish Government with full knowledge of this, ratified and confirmed these grants, and with such ratification and confirmation, went everything that the Indians intended to grant.
I think the decree sustaining the demurrer should be reversed.