Drucker v. Rosenstein-Opinion of Court.

he was, with his family, in the actual occupation. It was the case of a debt sought to be satisfied by a creditor out of a subsequently acquired homestead. In the case at bar there was and had been no actual occupation of the lot as a homestead since the title passed to the appellee. The bare fact of his filing and recording in the records of the Probate office of the County Judge of Escambia county his statement under the law does not exempt the land as a homestead. Connected with such act there must be actual occupancy. It is not necessary that a dwelling-house should be upon the premises; he might with his family reside in a tent set upon poles or a cabin erected upon it while building his house, and such occupation would give to it the character of a homestead and protect it under the statute from forced sale.

While the object of the homestead provisions of the Constitution and law is to protect the debtor and his family in the enjoyment of a home against creditors whose claims were not embraced in the exceptions, as for purchase-money, &c., yet the property must, when claimed as exempt, be stamped with the character of a home by some circumstance other than the intention to make it so. A bare lot unoccupied cannot be a homestead. Lumber placed upon it for the purpose of building is not such occupancy, even though there may be a contract made for building. The whole claim is based upon the bare declared intention to build a house upon the lot, and the presence of pieces of timber which may be so used when the defendant can find the means to complete it. This debtor, should he enjoin a levy and sale on the ground that he intended to make a homestead on the lot, might do nothing further toward building a house until another levy is made and thereby placing a few more sticks of timber on the lot again claim the homestead exemption on the ground that he was still

Drucker v. Rosenstein-Opinion of Court.

building or preparing to build a house to be occupied by his family, and in this he may be sincere, but yet the lot is not his homestead within the legal definition of the term.

It may be said that under the law, as we understand it, a poor man may never be able to obtain a homestead. This may be a defect in the law, but we cannot make laws to supply such defects, if they exist. To hold that this lot is exempt as a homestead, because the defendant intended to make it so at some future time might be defended as an act of mercy, but that is rather the office of the Legislature. It would be difficult to draw the line where exemption begins to attach to unoccupied land if this claim of immunity is allowed.

If we declare this lot exempt as a homestead, where would the exemption cease to operate if the house was not built or completed?

Many of the cases decided in other States go far toward protecting property from sale for debts under the homestead laws, but none of them go so far as we would be required to go in this case to exempt this property from sale. It is not a homestead, though the intention may be to make it one at some future time. We believe that the provisions of the homestead laws should be carried out in the liberal and beneficient spirit in which they were enacted, but care should be taken at the same time to prevent them from becoming the instruments of fraud.

We are of the opinion that the dismissal of the bill by the Chancellor was error, and the decree is reversed and the

cause remanded.

DANIEL F. SULLIVAN, APPELLANT, VS. JAMES N. MORENO, APPELLEE.

1. Upon bill filed and notice of intended application for an injunction, the defendant may at once file his answer, and the rules govern

ing the action of the Chancellor will be the same as those which prevail upon hearing upon bill and answer.

2. The rule in this State anterior to the legislation of 1861, (Chap. 1098, Laws,) was "that where all the equities of the bill are denied by the answer, it is not of course to dissolve the injunction. The granting and continuing of injunctions rest in the discretion of the court to be governed by the nature and circumstances of the case." Under the legislation referred to either party in such case has the right to introduce evidence in support or denial of the bill and the accompanying affidavit or answer, and the Chancellor determines the matter according to the weight of the evidence. The rule stated is modified to this extent. The cases of Carter vs. Bennett, 6 Fla., 236; Linton vs. Denham, 6 Fla., 533, and Allen vs. Hawley, 6 Fla., 142, referred to and followed. 3. In a case where the bill sets up a particular title and the answer in responsive terms denies its existence, and defendant produces a duly certified copy of a deed showing the nature of the title in aid of this responsive denial, the fact that the plaintiff fails to explain the matter or to support his allegation is a circumstance which should have weight with the Chancellor.

4. Where the injury complained of is one arising from the right of property in the soil, such as continued trespasses, amounting to a nuisance or threatened irreparable injury, plaintiff should set up his title in terms clearly showing his ownership.

5. Under the legislation of this State the title to the submerged soil from the channel to the shore is in such riparian proprietor as is contemplated by the act of December 27, 1856. That act to constitute riparian proprietorship requires a water boundary and an allegation by plaintiff that the party through whom he claims title owned and possessed parcels of land "lying on the bay," and that such party had been for thirty years in quiet possession and enjoyment of all the rights of a riparian proprietor, does not constitute a sufficient allegation of riparian proprietorship. "Lying upon the bay" does not necessarily constitute a water boundary, and the exercise of the rights of a riparian owner

Sullivan v. Moreno-Syllabus.

does not necessarily make him such owner.

Where plaintiff seeks extraordinary relief by injunction on the ground of a particular title, his allegations must be clear and precise as to such title.

6. Simple occupancy and possession of part of the soil between the line of ordinary high tides and the edge of the channel in the navible waters of a bay do not give a right to redress injuries to rights of owners of other portions of this soil not thus occupied. This action is for the true owners of that soil. Quere: Whether since the act of 1856, as between grantor and grantee, a simple riparian boundary, as contemplated by the act of 1856, operates by legal presumption to carry the right to the soil to the edge of the channel?

7. The right of free passage in or the navigation of the waters of a port is subordinate to the general commercial interests of such port, and when there is a conflict navigation must yield to com merce. The power of passage upon or navigation of such waters may be destroyed by filling the space before that time occupied by water with material necessary or proper to be used in the construction of structures beneficial to commerce, and such structures are not nuisances, either public or private.

& Under the laws of this State, wharves, when constructed by a riparian proprietor, are not purprestures, nor are they to be presumed to be nuisances as constituting an obstruction to commerce. They are structures authorized by the sovereign and by law declared to be beneficial to commerce. So also is the deposit of stone or other like material in the waters of a bay from the shore line to the channel authorized by law. All this is, however, subject to the condition that the wharf constructed or the deposit made is to be for the benefit of the commerce of the

port.

9. Plaintiff's alleging obstruction to navigation by the construction of a wharf or the deposit of sand in navigable waters of a bay does not make a case of nuisance. Being authorized by law the preSumption is that this is for the benefit of commerce, and he should state facts showing the contrary. What is authorized by law cannot be held to be a nuisance upon the assumption that a condition upon which the authority is exercised has not been complied with. From the general allegation that a wharf is being constructed in navigable waters, the presumption is that Such wharf will be beneficial to commerce and is not injurious to commerce or a nuisance.

Sullivan v. Moreno-Statement of Case.

Appeal from the Circuit Court for Escambia county. The following statement of the case was prepared by Mr. Justice Westcott:

James N. Moreno, through his bill in chancery against Daniel F. Sullivan filed on the 8th day of March, A. D. 1882, alleges that "Francisco Moreno for more than thirty years has owned and possessed the parcels of land lying on the bay of Pensacola, between Barracks street and Adams street in the city of Pensacola, the said Moreno having been for all that time in quiet possession and enjoyment of all the rights of a riparian owner until the defendant and others, without any right or authority, wrongfully entered into possession of certain portions of the front of said property out in the waters of Pensacola bay; that for many years plaintiff has been in quiet possession as owner by certain mesne conveyances from said Francisco Moreno of a wood and coal yard on the beach and property of said Francisco Moreno, and has enjoyed the privilege of ingress and egress to and from his said coal and wood yard by the navigable waters of Pensacola bay for vessels, boats, rafts and other floatage whereby he has and still transports large quantities of wood, &c., to his said wood and coal yard."

Plaintiff then makes reference to a plat which he makes an exhibit to his bill, and which he prays may be taken as a part thereof.

He says that by "the wharf built and maintained by defendant upon what is represented as the extension of Barracks street he (plaintiff) is entirely excluded from egress and ingress to and from his said wood yard, westward of which, if restricted to its proper lines, he cannot and does not complain, but the defendant, entirely disregard ful of the rights of the whole world to use the navigable waters of Pensacola bay as a public highway, and especially of the rights of your orator to use them as a highway to and from his premises, has extended, and still is extending.