Sullivan v. Moreno-Opinion of Court.

accommodation of ships and other vessels. The argument here seems based upon the view that the construction of wharves and the placing of sand, ballast and other like material in the navigable waters of a tide-water bay or harbor, is per se a nuisance in this State. We think this an error. "In England the right of property in tide waters and in the soil thereof is by the common law in the King, and the King, or in this country as a general rule the State, may abate every invasion thereon, whether the same be a nuisance to the navigation or not." Such an intrusion is denominated a purpresture, and while the old writers say that it might be committed either against the King, the Lord of the Fee or any other subject, in its ordinary acception at the present day it means any encroachment upon the sovereign, either in highways, rivers or streets or harbors. Angell on Tide Waters, 199; Eden on Injunctions, 259; 2 Inst., 38, 272.

A wharf is therefore a purpresture, the construction of which was subject to sovereign control, and the deposit of stone or other like material in navigable waters was subject to like control by the State by virtue of its right to the soil and its duty to protect the commerce of the port or harbor. The sovereign here, the State of Florida, has declared that the building of wharves is for the benefit of commerce, and has authorized the construction of wharves generally in such ports or harbors and the deposit of proper material to fill up from the shore as far as may be desired, "not obstructing the channel, but leaving full space for the requirements of commerce."

The construction of a wharf and the filling up of the space between the shore line and the channel is therefore authorized, and the stoppage of the navigation of the heretofore navigable waters lying between the shore line and the channel becomes legal if it be of such nature as is con

Sullivan v. Moreno-Opinion of Court.

sistent with the limitation placed by the sovereign upon the authority given. From this the result follows that a plaintiff makes no case of nuisance by a simple allegation of the construction of a wharf and the deposit of material in the navigable waters of a bay or harbor, for those acts are authorized by the sovereign, and they do not become the subject of complaint at the suit, either of the State or any other party, unless they obstruct commerce. True, the riparian proprietor may object; not on the ground of nuisance, however, but by virtue of his right to the soil and his consequent exclusive right to build the wharf and make the deposit himself. He complains just as he would of any ether improper appropriation or use of his property. We think plaintiff fails in the matter of making a case in this view. His allegations are not sufficient.

A few words generally upon this subject that the court may be fully understood.

Under the legislation of this State the navigation of tide waters of a bay between the line of the shore and the channel is made subordinate to the general commercial requirements of the port or harbor. Indeed it may be generally said that the law is that navigation, while a part of commerce, is subordinate to it. That which benefits commercee may decrease the facility for navigation. Filling in from the shore line to the channel on each side of a bay to that extent decreases the navigable area of such bay, but if it be a benefit to commerce by enabling vessels of heavy tonnage to have speedy discharge or otherwise the sovereign has authorized it and it is lawful. Says Holroyd, Justice, in The King vs. Russell, 6 Barn. & Cress., 270: "The right of the public upon the waters of a port or navigable river is not confined to the purposes of passage: trade and commerce are the chief objects, and the right of passage is chiefly subservient to those ends. Unless there are facili

Sullivan v. Moreno-Opinion of Court.

ties of loading and unloading of shipping and landing much of the benefit of a public port is lost. In the infancy of a port, when it is first applied to the purposes of trade and commerce, unless the water by the shore be deep, the articles must be shipped in shallow water from the shore and landed in shallow water on the shore. Boats or vessels of small draft must be employed to fetch and carry from and to the shore, and the commodity must pass from boat to ship or from ship to boat. Breakage and pilferage and waste, besides the expense of boating, are some of the probable concomitants of such a mode. As trade advances the inconvenience and mischief of this mode are suspended by the erection of wharves and quays, and what is perhaps an improved species of loading wharf, a staith.* The loading or unloading is then immediate from the wharf or staith into the ship or from the ship upon the wharf. But upon what principle can the erection of a wharf or staith be supported? It narrows the right of passage. It occupies a space where boats before had navigated. It turns part of the water way into solid ground; but it advances some of the other purposes, the main purpose of a port, its trade and commerce.

"Is there any other legal principle upon which they can be allowed? Make an erection for pleasure, for whim, for caprice, and if it interferes in the last degree with the public right of passage it is a nuisance. Erect it for the purposes of trade and commerce, and keep it applied to the purposes of trade and commerce, the interests of trade and commerce give it a protection, and it is a justifiable erection, not a nuisance."

It results from what has been said that this case as presented upon the hearing of the bill and answer was not

* A staith is defined to be "the line of rails forming the extremity of a railway and generally occurring next to navigable waters, being laid on platforms for discharging coal, &c., into vessels."

Palmes v. The L. & N. R. R. Co.-Syllabus.

such as would justify awarding an injunction. The plaintiff in the Circuit Court, the respondent here, calls our attention to the rule that appellate tribunals as a general rule are loth to interfere with the exercise of this power by the Chancellor. In this we agree with him, but it must be obvious to one who understands this case as we do that the failure to exercise the power here would be its practical abdication.

The order granting an injunction is reversed and the case is remanded for further proceedings.

MANUEL PALMES, AS COLLECTOR OF REVENUE FOR ESCAMBIA COUNTY, APPELLANT, VS. THE LOUISVILLE AND NASHVILLE RAILROAD COMPANY, APPELLEE.

1. This court in the case of Gonzalez vs. Sullivan held that the exemption of the railroad and its appurtenances extending from Pensa cola to the northern boundary line of Florida, in the direction of Montgomery, Alabama, was exempt from taxation in the hands of parties who derived it by a succession of transfers from the corportion originally owning the road. This upon the ground that the exemption attached to the rem, and was not a personal privilege or immunity restricted in its operation to the corporation owning the road at the time the exemption attached. Since that decision the Supreme Court of the United States in deciding the case of Wilson vs. Gaines, 103 U. S., 417, has expressed views which we cannot say with absolute certainty will not, when applied to the facts existing here, result in restricting the operation of the immunity to the corporation owning the road when it was granted. As under the Constitution of the United States matters concerning the obligation of contracts are appropriately the subject of final determination by the Federal courts, and to the rules announced by it upon this subject the State courts should render a cheerful obedience, and as under the peculiar legislation of Congress the decision of this court must be in favor of the

Palmes v. The L. & N. R. R. Co.-Statement of Case.

validity of the statute of the State in order to give jurisdiction to the Supreme Court of the United States, it is the duty of the State court in cases of doubt resulting from antecedent decisions of the Supreme Court of the United States in reference to like subjects matter to act in such manner as to give the Supreme Court of the United States jurisdiction. This in a matter of important publie concern in which the other departments of the government have differed with this court in its conclusions.

2. The 18th section of the Internal Improvement Law granting immunity from taxation to the roads embraced in the internal improvement system of this State was not in conflict with the Constitution in force at the time of the passage of the Internal Improvement Law.

3. The limitation upon the power of the Legislature embraced in Section 2, Article 13, of the Constitution of 1839 prohibiting the amendment of any act of incorporation, unless after three months public notice given of intended application therefor, did not control the Legislature in discharging its duty in the matter of legislation concerning roads belonging to the constitutional system of internal improvements, which it was the duty of the Legislature to create and encourage under Section 2, Article XI., of the Constitution.

Appeal from the Circuit Court for Escambia county. The bill of complaint was filed March 25th, 1882, and is in substance as follows:

Ist. The Louisville and Nashville Railroad Company, a corporation created and existing under the laws of the State of Kentucky and doing business in the State of Florida, brings this, its bill, against Manuel Palmes, Collector of Revenue in and for said county, and says that the respondent has levied upon and offered for sale on the 3d day of April, 1882, the following property, to-wit: 2 locomotives and (10) box cars Nos. 4279, 1924, 1364, 1368, 2046, 19229, 3683, 4219, 4391 and 7293, for State and county taxes alleged to be due for the years 1879, 1880 and 1881 upon the railroad track situated in said county and extending from the City of Pensacola to the Alabama line, together with