complainant, as the successor in interest of Hodges and O'Hara, all of Ruff's title to the lands described in the bill, even if those lands were not conveyed to Hodges and O'Hara by the deed from Ruff to them.

The defendant demurred to the bill of complaint upon several grounds, some of which are: That there is no equity in the bill; that the deed from Ruff to Hodges and O'Hara is neither a conveyance of the lands described nor a contract to convey them; that the deed shows upon its face that the grantor intended to convey only the timber upon the lands described in the bill; that the deed shows defendant did not covenant to convey any or all lands owned by him in Lake county, but only such as were omitted from the conveyance by mistake.

An examination of the deed, a copy of the record of which is attached to the bill as an exhibit, shows that the grantor owned and was interested in a large quantity of land in Lake county. Some of these lands were • described in a granting clause of the deed which contained the usual words of conveyance. Other lands were described in a granting clause which contained the usual words of conveyance and the words "quitclaimed" and "quitclaim." Following the first description of lands is a full warranty of title. Following the second description there is no covenant of warranty, but preceding the habendum clause is the following paragraph, which immediately succeeds the description of lands, viz.:

"Together with all and singular the said lands and all other lands owned by the parties of the first part in Lake county, Florida; excepting 40 acres at or near Mascotte, Florida; and excepting the store building used by the party of the first part; and the parties of the first part covenant and agree with the parties of the second part to execute any other or further quitclaim deed that may be necessary to convey any

lands owned by the parties of the first part in Lake county, Florida, which may have been by mistake omitted from this deed."

The lands described in the bill of complaint are not embraced in either description above referred to. Immediately following the first description of lands in Lake county is a description of a small acreage located in Orange county. Then follows this clause:

"And the parties of the first part do hereby transfer, bargain, sell, alien, remise, release and convey all of the timber situate and being on the following described lands, situate, in the county of Lake, state of Florida, to wit."

Then follows a description of the lands described in the bill, then continuing:

"And the party of the second part shall have fifteen years from the date hereof in which to remove said timber from said lands last described."

Following the above clause is a paragraph which reads as follows:

"It is understood and agreed between the parties hereto that some of the lands contained in the foregoing warranty deed in Lake county, Florida, are leased lands; and the party of the first part has only timber privileges to such leased lands which rights and privileges are speci

fied in recorded contracts for sales of timber to the party of the first part, which are of record the parties of the first part only warrant as to in Lake county, Fla., and as such leased lands the timber privileges for the terms of time specified in such contracts."

The bill does not allege that the lands described from which the alleged cloud is sought to be removed were by mistake omitted from the deed. It is perfectly clear that as to such lands the grantor intended to convey only the timber thereon. If it had been his purpose to convey the lands, it would have only been necessary to include them either in the first or second granting clauses. It is evident that the grantor did not intend to convey the land, because he expressly conveyed the timber only, a wholly unnecessary thing to do if he had intended to convey the land, because by a conveyance of the land the timber upon it would have passed to the grantee. The very fact that those lands were described in the conveyance, and only the timber thereon conveyed, shows that they were not "by mistake omitted from the deed" as a conveyance.

Solicitors for appellant contend that the clause in the deed conveying the timber should be construed as a conveyance of the lands because of the paragraph immediately following that in which the timber is conveyed and which is quoted above. It being contended that:

The quoted paragraph was intended "to protect the grantor from his warranty so far as the same might relate to leased lands. If the grantor had only intended to convey the timber on the lands, such an exception to the warranty clause would have been useless, because the exception by its terms does not release him from liability on his warranty as to the timber."

Placing that construction upon the quoted paragraph, solicitors for appellant say that the covenant of warranty embraced the lands described in the bill, and, as by that warranty the title to those lands was warranted to the grantee, the purpose to convey the lands is thus apparent, and that purpose is made more certain by the blanket clause herein quoted, whereby the grantor covenanted to "execute any other or further quitclaim deed that may be necessary to convey any lands owned by the parties of the first part in Lake county, Florida, which may have been by mistake omitted from the deed."

[1] The principles controlling in the construction of deeds, that where a deed permits of more than one interpretation the one most favorable to the grantee should be adopted and that the intention of the grantor must be gathered from the whole instrument, are invoked in aid of the relief sought.

[2] It is apparent that the ingenious argument of solicitors for appellant depends upon the assumption that the reference to "leased lands" in the quoted paragraph related only to lands that were embraced in the description of lands in the granting clause of the deed and that the covenant of warranty embraced the lands described in the bill.

This assumption is not well founded, because the reference to leased lands was to such lands as the grantor held under "timber privileges," and, as nothing to the contrary appears nor is alleged, the lands described in the bill may have been of that class. Besides, the warranty is limited to those "premises" which were by the instrument under consideration "granted and released."

In the case of Godden v. Coonan, 107 Iowa, 209, 77 N. W. 852, cited by appellant, the deed conveyed

of the deed. Reference has already been made to the apparent classification in the deed of the lands by title. As to one class the grantor gave a warranty of title, but as to the other he gave no warranty. It is very clear that the lands were classified by him according to title, and that as to the lands embraced in the second division he apparently thought that he was executing only a quitclaim. It is to lands of that character that the words "all other lands," etc., refer, and as to which he agreed to "execute any

Smith."

This description was followed by metes and bounds and concluded with the usual covenants as to title to "said premises" and "to warrant and defend the said premises." The court held that the deed showed that it was the "premises," not timber, that were sold, and that it was the "premises," not timber, the title to which was warranted. Saying that "were it not for the words 'a piece of timber,' there would be nothing in the deed to sustain appellant's contention," which was that the timber only was conveyed. Even if we agreed with the reasoning by which the Iowa court arrived at the intention of the grantor in the deed which was under consideration, the case affords little support to the contention of appellant, because in the deed from Ruff to Hodges and O'Hara there is much outside the description of the lands which indicates the grantor's intention to convey only the timber. In the first place, as to the lands which were conveyed the grantor granted, sold, and conveyed "all the following tracts and parcels of lands," etc.; but as to the lands described in the bill he transferred, bargained, sold, and conveyed "all of the timber situate and being on" such lands. In the second place, in a separate paragraph by appropriate words he expressly limited the time in which the grantees should remove the timber from such lands to the definite period of 15 years from the date of the deed.

To hold that the grantor intended by that conveyance to convey the lands, and not merely the timber thereon, would be to pervert the language used in the conveyance and sacrifice the plainly expressed intention of the grantor to a conclusion supported by a specious argument based upon premises not clearly applicable to the subject and unsupported by any words in the deed, or allegations in the bill.

necessary to convey any lands owned" by him, "which may have been by mistake omit

ted from the deed."

Without deciding the question of the validity of "blanket clauses" in deeds of conveyance, we hold that the purpose of the entire paragraph, which has been quoted herein, was to obligate the grantor to convey by quitclaim deed: First, all lands which had been by mistake omitted from the deed; and, second, which were owned by the grantor in Lake county and of the same character as those described in the second division of the deed both as to value and title. Another point worthy of consideration in this connection is the fact that the blanket clause referred to is embraced in a special paragraph immediately following and apparently intended to attach to and form a part of a paragraph in which was described certain lands as waste lands "referred to in the adjustment of a purchase price" and said to aggregate about 1,000 acres.

We are of the opinion, therefore, that the order of the chancellor sustaining the demurrer to the bill was correct, and the same is hereby affirmed.

BROWNE, C. J., and TAYLOR, WHITFIELD, and WEST, JJ., concur.

(75 Fla. 28) THIESEN v. GULF, F. & A. RY. CO. et al. (Supreme Court of Florida. Nov. 3, 1917. On Petition for Rehearing, Jan. 14, 1918. On Rehearing, Feb. 21, 1918. Further Rehearing Denied April 19, 1918.)

PRIVATE

/Syllabus by the Court.) 1. NAVIGABLE WATERS 36(3) OWNERSHIP. gable waters in this state extends ordinarily to Private ownership of land riparian to navihigh-water mark.

2. TRIAL 139(1), 169-DIRECTED VERDICTEVIDENCE-BURDEN OF PROOF.

While a verdict should not be directed for

one party when there is evidence on which the jury may lawfully find for the opposite party, yet where the burden is on the plaintiff to prove all the elements essential to sustain his claim to relief, and he fails to make such proof, a verdict may be directed for the defendant. Browne, C. J., dissenting. On Rehearing.

3. NAVIGABLE WATERS LANDS-COMMON LAW.

36(3) LITTORAL

land passed by successive conveyances or otherwise to the plaintiff, yet in order to maintain this action under section 643, General Statutes of 1906, the plaintiff must have shown that the described land was "actually bounded by and extended to," the waters of a "navigable stream or bay of the sea or harbor." Section 644, Gen. Stats. 1906. This is necessary to give to the plaintiff the statutory rights that under section 643 of the General Statutes of 1906 accrue to stated riparian owners in and to the "lands covered by water, lying in front of any tract of land * * lying upon any navigable stream or bay of the sea or harbor." While the expression "fronting on the bay," contained in the above-mentioned conveyance, may be taken in connection with other circumstances to indicate a boundary, it may also indicate aspect or location with reference to outlook. Alden v. Pinney, 12 Fla. 348. Taken alone, the words "fronting on the bay" certainly cannot be held to be sufficient to show that the land was "actually bounded by, and extended to" the waters of a navigable "bay." This being so, it was incumbent upon the plaintiff to show by evidence that the described land was "actually bounded by, and extended to" the waters of a navigable stream or bay of the sea or harbor."

It appears that a lot numbered 368 lies north of lot 369, which lot 368 extends north to Zarragossa street. It also appears that a "dummy" railroad track now exists between the water and the uplands of lot 369. In the plaintiff's chain of title the description is "east half of lots three hundred and sixtyeight and three hundred and sixty-nine in block one, containing forty feet front on Zarragossa street and extending back two hundred and sixty-one 8/12 feet to the Bay of Pensacola and fronting thereon forty-seven 6/12 feet be the front and depth more or less." The dimensions of lot 368 are not given in the testimony. A map in evidence seems to indicate that lot 368 is 130 feet north and south. The bill of exceptions shows that the plaintiff testified, viz.:

I

"I measured the east side of lot 369 from Zarragossa street. I measured from Zarragossa 368 and continued through lot 369 to the water; I measured the west side in the same way. measured one straight line, from Zarragossa street, practically the middle of the block; the alleyway, to the inside of the dummy track, 261 feet. It was 261 feet inside of the dummy track; just inside one rail, between the two rails. It was about 25 or 30 feet from there to the water before the Gulf, Florida & Alabama filling in was constructed."

This does not show the southern boundary of lot 369 to be "actually bounded by and extending to" the waters of a navigable bay. The plaintiff offered no direct testimony that in 1856, when the riparian statute was enacted, or since then, the lot was in part bounded by and extended to the waters of a

Frank Caro testified on behalf of plaintiff:

"I have known that property since 1882. There was a fence running east and west, but there was a lot run down to the bay." "There was no fence to the south. In fact it was open to the bay."

Another witness, C. P. Bobe, whose grandfather had owned the lot, testified that:

"This lot came down pretty close to the water or to the beach, before the wharf or the terminal track was built. My recollection is that the lot did not go clear to the water, about 5 feet, nearly to the beach."

On redirect:

"I could not say how far the lot went down to the water. I do not know where the lot line was on the south side."

Mr. Albert Riera testified on redirect:

"I cannot state whether or not this lot ran down to the ordinary high water."

This testimony, as well as that of other witnesses, does not show that lot 369 actually extended to the waters of the bay. There is testimony that the plaintiff and his predecessors in occupancy of lot 369 used the submerged lands in front of the lot with wharves, etc., but this use does not confer riparian rights under the statute. The lot must be actually bounded by and extend to low-water mark of the navigable bay for the riparian rights under the statute to attach. The maps put in evidence by both parties indicate that the lot did not extend to the waters of the bay.

[1] In 1892 the predecessor in title of the plaintiff executed to the Pensacola Terminal Company a lease of "a right of way fifteen feet in width along and across the water front of the Bay of Pensacola, city of Pensacola, said state and county, now owned by the party of the first part, south of the premises now owned, occupied and under inclosure by the party of the first part, known and described as the east one-half of lot number three hundred and sixty-nine (369) in block number one (1), according to the plan of the old city of Pensacola, in said state and county, fronting forty-seven (47) feet front on the Bay of Pensacola to the edge of the channel of said bay, the said right of way to extend from the eastern to the western boundaries of the said described property of the party of the first part." This description is not of a lot actually bounded by and extending to the waters of the bay. It may be regarded as defining the location of the property leased to the terminal company for its railroad track "south of the premises now owned" by the lessor. The conveyance to the plaintiff in 1896 is of the "east half of lots three hundred and sixtyeight (368) and three hundred and sixty-nine (369) in block one (1) of the old city of Pensacola containing a frontage of forty (40) feet on Zarragossa street and running through to Pensacola Bay, being two hundred and sixty