18. The Santa Maria Restaurant wharf, building,

dock and other improvements extend south of the submerged
land claimed by the Connells and in front of Plaintiffs' Lot
3. The improvements obstruct, interfere with, and deprive
Plaintiffs of their riparian rights appurtenant to Lot 3.

19. By operation of law, Plaintiffs own the
waterfront lying east of the seawall directly across Avenida
Menendez from Lot 3 and riparian rights appurtenant thereto,
notwithstanding the fact that the legal description in their
deed extends only to the right-of-way of the street.

20. The Avenida Menendez right-of-way across Lots
1 and 3 was dedicated in June 1845. At that time, Edwin
Jencks and Richard Ferguson owned the property now known as
Lots 1 and 3, respectively, to the waters of Matanzas Bay.

They granted the City an easement to the seawall, but they
neither relinquished ownership of the fee nor their riparian
rights to the waterfront lying east of the seawall.
Accordingly, their successors in title acquired the riparian
rights appurtenant to such property, and Plaintiffs retain
such rights with respect to Lot 3.

21. Mr. Jencks and Mr. Ferguson owned the property
now known as Lots 1 and 3 to the mean low waterline of the
10 4p


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Matanzas Bay, as did their predecessors-in-title prior to

1819, when the United States acquired Florida from Spain.

Under Spanish rule, the mean low waterline was recognized

defining the seaward extent of private ownership of riparian

lands in Florida. Pursuant to Article II of the Adams-Onis

Treaty of 1819 by which the United States acquired Florida

from Spain, the United States honored the rights of private

owners who had legitimate claims to property at that time,

such as the previous owners of the subject properties.

Accordingly, when the right-of-way for Avenida Menendez was

dedicated in 1845, the United States recognized the ownership

of Messrs. Jencks and Ferguson to mean low water.


22. Messrs. Jencks and Ferguson granted the

Avenida Menendez right-of-way to facilitate the extension of

the seawall south from the City market past the subject

property to Bridge Street. In 1842, the United States Army

Corps of Engineers proposed to construct the wall and fill

the lands behind (landward of) it. In the vicinity of the

subject properties, the work was to take place above the mean

low waterline, upon the privately owned lands of Messrs.

Jencks, Ferguson and their neighbors. Recognizing that the

wall would be located on private property, the officer in

charge of the project, Lieutenant H. W. Benham, feared that

11










the landowners would fence off their property, thereby

denying the public access to the waterfront that had been

bulkheaded and filled with public funds. He recommended that

the City dedicate a street behind the wall to assure public

access to and benefit from the project. On March 22, 1845,

he wrote his superior:


[I] consider it not only probable but
absolutely certain that should this land
be filled up by the United States
without any previous steps being taken
to secure the citizens an open space or
passage upon it proprietors of these
lots will immediately enclose to the
seawall in such a manner as to prevent
all passage even perhaps upon the very
wall itself to provide for which last
the very great proportional
expenditure for the coping is now being
incurred. I would respectfully call
attention to this in order that it might
be considered, whether it would not be
possible, and if so, advisable, that
some condition or arrangement might be
previously made either by the
Department itself, or in conjunction
with the city authorities, that if this
law should be renewed by the governments
a broad street, along the wall on the
parts referred to, should be reserved to
the use of the city -- and the citizens
at large for whom, and not for the
particular benefit of a small number of
individuals, I suppose the appropriation
to have been made.


23. As requested by Lieutenant Benham, the City

secured easements from Mr. Jencks, Mr. Ferguson and the other










waterfront owners on June 22, 1845. Mr. Jencks conveyed a

50-foot right-of-way by letter and Mr. Ferguson orally

conveyed a 60-foot easement. By the express terms of such

grants, the easements extended to the seawall, but not

beyond, to the waters of the bay.


24. In granting the easement to the seawall, the

owners did not convey to the City any rights to their lands

located seaward of the wall, let alone relinquish ownership

of such land and the accompanying riparian rights. In fact,

their successors continued to exercise dominion and control

over the waterfront and appurtenant rights. In subsequent

deeds, they conveyed the property to the waters of the bay,

and in others transferred riparian rights along with their

lots, notwithstanding the presence of the street in front of

such lots. Indeed, in 1882, Edwin St. George Rogers conveyed

the riparian rights associated with Lot 1 to William S. M.

Pinkham, along with the 52-foot strip extending east from the

seawall into the bay. That conveyance is the root of the

title and rights to the property the Connells claim.


25. Unlike the Lot 1 waterfront, the portion of

Lot 3 lying east of the seawall and the riparian rights

appurtenant thereto were never severed from the upland lot.