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tiff to relief at all events. It is quite sufficient if the court finds, upon the pleadings and upon the evidence, a case which makes the transaction a proper subject of investigation in a court of equity."

In the Great Western R. Co. vs. Birmingham, etc., R. C., 2 Ph., 602, the same learned Judge says: "It is certain that the court will, in many cases, interfere and preserve property in statu quo during the pendency of a suit in which the rights to it are to be decided, and that without expressing, and often without means of forming, any opinion as to such rights, seeing that there is a substantial question to be decided, it will preserve the property until such question can be regularly disposed of. In order to support an injunction for such purpose it is not necessary for the court to decide upon the merits in favor of plaintiff." In Shrewsbury & Chester vs. Shrewsbury & B. R. Co., I Sim. N. S., 410-426, the Vice-Chancellor says "that there are two points on which the court must satisfy itself: First, it must satisfy itself not that the plaintiff has certainly a right, but that he has a fair question to raise as to the existence of such a right. The other is whether interim interference on a balance of convenience or inconvenience to the one party and to the other is or is not expedient." And see also to the same point Tonson vs. Walkers. 3 Swans., 679; and see also High on Injunctions.

"In order to support a motion for an injunction the bill should set forth a case of probable right and a probable danger that the right would be defeated without the special interposition of the court." (Per Johnson J. in Georgia vs. Brailsford, 2 Dall., 402.) Blair J. says in same case: "It is enough on a motion of this kind to show a colorable title." Id., 407.

All, it seems to me, that the Judge should require upon the preliminary application is a case of probable right, and

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probable danger to that right without the interposition of the court; and such a case, we respectfuly submit, was presented to his Honor, from whose decision an appeal is taken, and we ask an affirance of his decree with costs.

MR. JUSTICE WESTCOTT delivered the opinion of the

court.

From the preceding very full statement of this case it will be seen that it is one in which the plaintiff, as an alleged riparian proprietor, seeks to enjoin the defendant from constructing a wharf and from depositing stone, sand and other material immediately in front of property alleged to be his, and, we presume, between it and "the edge of the channel" of the bay of Pensacola.

Anterior to the act of 1856, Chapter 791, Laws of this State, the title to the soil of navigable tide waters to the line of ordinary high tides was in the State of Florida, subject to the powers of Congress in the matter of regulating commerce under the Constitution of the United States. This, as a legal proposition, has been admitted as settled since the case of Pollard's Lessee vs. Hagan, 3 How., 299.

In 1856, under an act of the Legislature, the State of Florida divested itself of all right, title and interest to all lands covered by water lying in front of any tract of land owned by a citizen of the United States lying upon any navigable stream or bay of the sea or harbor as far as to the edge of the channel, and vested the full title to the same in the riparian proprietors, giving them the full right and privilege to build wharves into streams or waters of the bay or harbor as far as may be necessary to effect the purposes described, and to fill up from the shore, bank or beach as far as may be desired, not obstructing the channel, but leaving full space for the requirements of commerce;

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and upon lands so filled in to erect ware-houses or other buildings. The riparian proprietor was also given the right to prevent encroachments of any other person upon all such submerged land in the direction of their lines continued to the channel "by bill in chancery or at law, and to have and maintain action of trespass in any court of competent jurisdiction in this State for any interference with such property." The act provides further that the grant therein con tained shall not be so construed "as to release the title of the State of Florida, or any of its grantees, to any of the swamp or overflowed lands within the limits of the same. but the grant therein contained shall be limited to those persons and bodies corporate owning lands actually bounded by and extending to low water mark on such navigable streams, bays and harbors."

This statute and the rights resulting to riparian proprietors was, to some extent, considered in the case of Alden and Wife vs. Pinney, 12 Fla., 348, and the case of Rivas & Koopman vs. Solary, 18 Fla., 122. In the first case we held that the evidence failed to show that the complainant, or those whose title and right he claimed, had a water boundary in 1856, and that it was immaterial to inquire whether the rights granted by the State enured to any other than one, in the words of the statute, "owning lands actually bounded by and extending to low water mark." In other words, whether the owner to the line of ordinary high tides was embraced in the statute. In the second case each of the parties claimed through a common source of title, and it was admitted that the parties through whom they claimed held to low water mark. In the first case we also held that if plaintiff had shown himself a riparian proprietor, there would have been such existing and threatened injuries of a special nature, coupled with other circumstances, that he would have been entitled under the statute to the aid of

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a court of equity to prevent special injury to himself, but that not having such proprietorship he did not present a case of special injury, independent of riparian ownership, calling for the intervention of a court of equity.

As to the present case, the plaintiff presents it here in two aspects: First, as an alleged riparian proprietor; and, second, as a possessor of the submerged land; either of which, it is claimed, entitles him to the interference of a court of equity in his behalf.

Looking to the allegations of the bill and the denials and their nature made in the answer, we do not think, under the rules controlling applications for special injunction upon bill and answer to stay irreparable injury in case of repeated trespasses or nuisances, that the Chancellor could properly have acted upon the hypothesis of riparian ownership in plaintiff, either to ordinary high tides or to low water mark. What is the rule in such cases? "Upon the filing of an injunction bill the defendant may, at his option. immediately put in his answer to prevent the issuing of the writ, and the court is bound to consider such answer and give it due weight if filed before the application for the injunction is disposed of." The rule, as thus announced, is not very definite, as what constitutes "due weight" is a matter still left open for controversy.

After a careful examination of the cases bearing upon the subject we think in cases where the bill justifies an injunction, the rule is the same as that which prevails upon motion to dissolve an injunction upon the coming in of the answer. Chancellor Bland discussing this subject in Hall vs. McPherson, 3 Bland's Chancery, 532. says: "If a defendant should hear of such a bill" (bill for injunction) "being on its way to the Chancellor it does not seem to we that there can be any sound regulation which should hinder him from following the bill to the tribunal and instantly

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presenting his answer so as to prevent the imposition of the threatened restriction. An injunction may be dissolved on the coming in of an answer which positively denies all the facts upon which the equity of the bill is founded; hence it would be strange indeed to refuse to look at such an answer presented together with the bill and to grant an injunction which must soon and inevitably be dissolved. I am, therefore, of the opinion that this answer must be now read and considered." The rule in cases of motions to dissolve an injunction upon bill and answer has been frequently stated in this State. The leading case upon the subject is that of Carter vs. Bennett et al., 6 Fla., 236. In that case the court say: "We believe it to be the almost universal practice that if the answer fully denies all the circumstances upon which the equity is founded, credit is given to the answer and the injunction dissolved." This practice, however, is not without exceptions. Chanceller Kent in Roberts vs. Anderson, 2 John. Chy. Rep., says: "That even where all the equity of the bill is denied by the answer it is not of course to dissolve the injunction; as the granting and continuing an injunction rests always in the sound discretion of the court to be governed by the nature of the case" (See also Linton vs. Denham, 6 Fla., 533: Allen vs. Hawley, 6 Fla., 142.) We must consider this as the rule now controlling in this State, except to the extent that it is modified by the provisions of Chapter 1098, laws enacted since the decisions of the cases cited under which the parties are authorized in cases where the "defendant in his answer shall have denied the statements of the bill or of the accompanying affidavit, either party thereto shall have the right to introduce evidence in support or denial of the bill and accompanying affidavit or answer." In which case his action must be controlled by the "weight of the evidence." For a very extended and able discussion of the