There may be many stretches of submerged lands in the numerous bays, sounds and inlets of the tidal waters in this State upon which the water is not more than three feet deep at high tide and which are separated from the shore by channels not less than five feet deep at high tide, which are in fact navigable for many useful purposes and valuable for fishing and other purposes, that the legislature could not either by a direct act or through the Internal Improvement Board grant to any private individual or corporation for private purposes, without violating the trust under which it holds such lands for the benefit of the people of the State for the purposes of navigation, fishing, boating, bathing, etc. Perhaps no such arbitrary depth *Page 253 standard should be used as the final and ultimate test. The mere fact that the legislature may say, in effect, that water not more than three feet deep at high tide is not navigable, does not necessarily make it so. Navigability is to some extent a question of fact. 1 Farnham on Waters, pp. 100 and 119, and cases cited. While water three feet deep would not be considered navigable in the harbors of our seaport cities, which berth ocean-going vessels, yet it is a matter of common knowledge that in many sections of the State a large amount of useful navigation and fishing is carried on over and in waters less than three feet deep at high tide, though of such a character as to navigation that the Federal government might not see fit to protect such waters from obstruction; and if all of such lands covered by tidal waters in Florida should be sold and filled in and developed for private purposes, it would certainly create a radical change in our vast coastal country. Yet many of such changes could be made, no doubt, without injury to the public rights and without trespassing upon the riparian rights of private owners; which latter rights usually end at the channel or point of navigability. Federal control of navigable waters is limited in its scope and leaves much of the authority of the States thereover untouched. The trust doctrine still applies. 27 Rawle C. L. 1325, et seq.; 1 Farnham on Waters, p. 53 et seq. I cannot believe that the legislature of this State intended by this statute to make a wholesale change in the character of our coastal waters and the lands under them. The last sentence of Section 1062 shows that such was not the intention. It may be that the exercise of this power by the administrative board within the broad limits fixed by the statute has thus far been so wise and conservative as to have constituted a public benefit rather than a public detriment, but this is no guarantee that such a broad power as indicated by Section 1061, especially *Page 254 when construed by itself, may not be so exercised as to conflict with the trust doctrine in the future. And if so mistakenly exercised, the courts may grant relief in proper cases. The rights of the public must not be overlooked. As was remarked by Chief Justice Taney, in Martin v. Waddell, 41 U.S.; 16 Pet. 367, 414, 10 L. Ed. 1014, speaking of the common rights in and the advantages of the riparian waters which the colonists enjoyed for the same purposes and to the same extent that they had been used and enjoyed for centuries in England: "Indeed it could not well have been otherwise; for the men who first formed the English settlements could not have been expected to encounter the many hardships that unavoidably attended their immigation to the New World, and to people the banks of its bays and rivers, if the land under the waters at their very doors was liable to immediate appropriation by another as private property and the settler upon the fast land thereby excluded from its enjoyment, and unable to take a shell fish from its bottom, or fasten there a stake, or even bathe in its waters, without becoming a trespasser upon the rights of another."

Section 1062 indicates that the power vested by Section 1061 should not be exercised on objection made when it would interfere "with the rights granted to riparian owners by the laws of Florida, or would be a serious impediment to navigation or public fisheries." In such a case, no doubt, the board should decline to sell even in the absence of formal objection.

It is not my purpose to contend that the trust doctrine, with reference to lands under navigable waters in this State, would preclude the State from transferring to private ownership limited portions of such lands when the rights of the people of the State for which the State holds the title in trust are not invaded or impaired. And such *Page 255 must have been the intent of the statute. This principle is recognized by our decisions, including those cited in Judge Campbell's opinion. It is also recognized by the decisions of the Supreme Court of the United States.

In Farnham on Waters, p. 173, the author says that this doctrine, together with its limitations, was very fully and adequately stated by Justice Field in Illinois Central R. R. Co. v. Illinois, 146 U.S. 387, 36 L. Ed. 1018, 13 Sup. Ct. Rep. 110. The learned Justice therein said: "The State holds the title to the lands under the navigable waters in trust for the people of the State, that they may enjoy the navigation of the waters, carry on commerce over them, and have liberty of fishing therein, free from the obstruction or interference of private parties. * * * The trust devolving upon the State for the public, and which can only be discharged by the management and control of property in which the public has an interest, cannot be relinquished by a transfer of the property. The control of the State for the purposes of the trust can never be lost, except as to such parcels as are used in promoting the interests of the public therein, or which can be disposed of without any substantial impairment of the public interest, in the lands and waters remaining. It is only by observing the distinction between the grant of such parcels for the improvement of the public interest, and which, when occupied, do not substantially impair the public interest in the lands and waters remaining, and a grant of the whole property in which the public is interested, that the language of the adjudged cases can be reconciled." In that case a grant of Chicago Harbor by the State to the railroad company, which grant included the entire control of the harbor and its navigation, was held invalid. The author in his comments says: "The trust theory cannot, on principle, be carried to such an extent as to prevent the State from *Page 256 granting the title of the soil under its waters to private individuals and permitting such use of it as is possible, consistent with the public rights." In a learned opinion, Chief Justice TAFT, in the case of Appleby v. New York, 271 U.S. 364, 70 L. Ed. 992, held that the State of New York and one of its municipalities had the power to convey to private parties certain small areas of the submerged lands in the Hudson River opposite certain lots owned by such private parties, and that such conveyances carried the fee simple title, and that the State thereby parted with its power to regulate the navigation of the waters over such land, which would interfere with its ownership and enjoyment by the grantee. This decision was based upon the law of New York, as construed by its courts, which was in existence at the time the deeds were made to Appleby and Latou in 1852 and 1853. The suit was brought in 1914 to restrain the City of New York and its lessees, from dredging the land under water conveyed by these deeds and from using the water over the lots as slips and mooring places for vessels. The city and its lessees claimed this right under subsequent legislation, but the Supreme Court held this to be an unconstitutional impairment of the contract, and sustained the right of the grantees to injunction against the city. Chief Justice TAFT held that this case was not in conflict with the case of Illinois Central Railroad Co. v. Illinois,supra, in which latter case the Illinois Legislature had granted to the railroad company more than a thousand acres in the harbor of Chicago, being more than three times the area of the actual harbor, and not only embraced all of that harbor, but the adjoining submerged land. The Chief Justice commented on this case as follows: "It was held that it was not conceivable that the Legislature could divest the State of this absolutely in the interest of a private corporation; that it was a gross perversion of the trust *Page 257 over the property under which it was held, an abdication of sovereign governmental power, and that a grant of such right was invalid. The limitations on the doctrine were stated by Mr. Justice Field, who delivered the opinion, as follows: (quoting in full the excerpt from Justice Field's opinion, a part of which has just been quoted above). That case arose in the Circuit Court of the United States, and the conclusion reached was necessarily a statement of Illinois law, but the general principle and the exceptions have been recognized the country over and have been approved in several cases in the State of New York."

Our own Court has frequently recognized this limitation upon the trust doctrine with reference to the lands under navigable waters and tidal waters, as shown by the cases cited by Judge Campbell, and also by the recent case of State ex rel. Buford v. City of Tampa, 88 Fla. 196, 102 So. 2d 336. In that case this Court upheld the validity of Chapter 8537, Acts of 1921, divesting the State of title to lands covered by water lying in front of tracts of land owned by any person, natural or artificial, fronting upon navigable streams or bays of the sea, as far as the edge of the channel, and giving to such riparian owners the right to wharf out or fill up from the shore, not obstructing the channel, and upon land so filled in to erect improvements consisting of buildings, warehouses, etc. There is no question about the correctness of this holding as to riparian lands. The conveyance of these rights to the riparian proprietors is really founded upon the common law of England as it existed before Mr. Diggs invented his peculiar doctrine, during the reign of Queen Elizabeth, to the effect that the crown held the title to all land between high-water mark and low-water mark of navigable waters. The Stuart kings greatly profited by the use of this doctrine. By steady pressure from the crown this principle finally found its way into the common *Page 258 law of England, but largely as a theory, while as a practical matter the vast majority of riparian proprietors claimed title to, and ownership over their lands as far as low-water mark, not hesitating in many instances to wharf out to the point of navigability. See 1 Farnham on Waters, pp. 182 to 198.

It was also held in the case just cited that, while the State held for the use and benefit of the people, mud flats, shallow inlets and lowlands, covered more or less by water permanently or at intervals, where the tide ebbs and flows, yet the waters thereon not being in their ordinary state useful for public navigation, the State might part with title to the same by an act of the Legislature. The area in question in that case consisted "as a whole of mud flats which almost in their entirety are uncovered by water at very low tide; that said premises have no value for purposes of commerce or navigation, and that the filling in of the lands as contemplated by the contract by dredging will in reality improve the navigability of Hillsborough Bay and will add to the wealth of the city by removing the mud flats, which are uncovered at low tide."

ELLIS, C. J., AND WHITFIELD, TERRELL AND STRUM, J. J., AND CAMPBELL, CIRCUIT JUDGE, concur. *Page 259