PIERCE et al. 


WARREN, Governor, et al.



47 So. 2d 857

September 12, 1950; Rehearing Denied October 20, 1950

Charles R. Pierce, pro se, and Leland Hyzer, Miami, for appellants.

Evans, Mershon, Sawyer, Johnston & Simmons, Thos. McE. Johnston and W. E. Dunwody, Jr., all of Miami, Richard W. Ervin, Attorney General and Rufus M. Yent, Assistant Attorney General, for appellees.

THOMAS, Justice.

The plaintiffs, Trustees of the Internal Improvement Fund, were awarded a decree quieting and confirming in them the title to the southwest quarter of the northwest quarter of section 4, township 55 south, range 41 east, which the court decided was "sovereignty land" as distinguished from "swamp and overflowed land," and the defendants, successors to the original grantee of the property, and a mortgagee appealed.

We shall state in condensed form the allegations of the bill of complaint found by the chancellor to have bee proved and to have, therefore, warranted the final decree.

In July, 1821, the United States took possession of the territories of East and West Florida ceded to it under the Treaty with Spain of 22 February 1819, 8 Stat. 252.  When the state was admitted to the Union by Chapter XLVIII, Acts of Congress of the United States, approved 3 March 1845, 5 Stat. 742, it became the owner of all lands under navigable waters and all tidelands, and subsequently, by act of the state legislature, title to these "sovereignty lands" was vested in the Trustees of the Internal Improvement Fund. See Chapter 253, Florida Statutes 1941, and F.S.A. Property of this kind, claimed appellees, was the land involved in this suit.

Certain lands not of this category, that is, not covered by navigable waters and not washed by the tides, referred to as "swamp and overflowed lands," were granted to the state by Chapter LXXXIV, Acts of Congress of the United States, Sept. 28, 1850, 9 Stat. 519, "An Act to enable the State of Arkansas and other States [including Florida] to reclaim the 'Swamp Lands' within their limits." The act required the Secretary of the Interior to prepare an accurate list and plats of such lands and transmit the same to the governor of the state and, upon request of the governor, to "cause a patent to be issued to the State therefor."

In the performance of this duty the Secretary of the Interior, 4 December 1896, issued a patent to the State of Florida covering several parcels, including the one in controversy. On 21 June 1911 the trustees conveyed this tract to the appellants' predecessor, and at that time the section in which the property was located had not been surveyed. Later a survey was made by a United States engineer under the direction of the Associate Supervisor of Surveys, and this survey was approved by the Commissioner of the General Land Office and ex officio United States Surveyor General for Florida and filed in the General Land Office 18 January 1924. The trustees later formally accepted this survey as defining the boundaries, area, and location of the property involved in this litigation and, in addition, caused a survey to be made by the Chief Drainage Engineer to determine the boundaries of "swamp and overflowed lands" and "sovereignty lands" in the section including this property. Both surveys established that there were no "swamp and overflowed lands" in the area described at the outset of this opinion.

It is conceded that the facts, so far as they refer to the acquisition of the land by the state and the holding of it by the trustees, are not in dispute; so the basic question for us to determine is whether the trustees attempted to convey "sovereignty lands," which they could not have done before the enactment of Chapter 7304, Laws of Florida, Acts of 1917, F.S.A.  253.12 et seq., or did deed "swamp and overflowed lands," which they were empowered to do.

The appellants argue plausibly and vigorously that the plaintiffs, in their effort to establish the validity of their own title and the invalidity of their adversaries', failed to demonstrate the nature of the tract at the time of the conveyance to the latters' predecessor in 1911. To buttress their position they emphasize the circumstances surrounding the surveys and the treatment of the title by those authorized to deal with it.

It seems logical to dispose of these circumstances before going into the main question.

It certainly can be forcefully argued that in 1911 the Trustees of the Internal Improvement Fund thought the lands were "swamp and overflowed lands" for the very reason that they executed a deed to them when they had no authority at the time to convey "sovereignty lands." We think little is added to the strength of such an argument, however, by the reservation of the mineral rights. It is significant, too, that the Secretary of the Interior incorporated the property in dispute in his patent of several parcels, issued in compliance with an act requiring that such patents be issued only to convey "swamp and overflowed lands." Assuming that this inclusion was deliberate rather than inadvertent, it indicated that he, too, at the time considered the land as being of that character.

Despite these considerations we think the vital, pivotal point is the nature of the land at the time of the transfer, which could only be determined accurately by a survey. If the Trustees of the Internal Improvement Fund actually conveyed "sovereignty lands," believing them to be "swamp and overflowed lands," their mistake, however, innocent, would not supply the power they lacked. Assuming that the Secretary of the Interior purposely included the land in his patent, we cannot see how the state would have got any more by the process if the land was actually a part of the "sovereignty lands," for it already possessed these. So we attach small importance to these two acts, which amounted to little more than gestures if, in truth, the physical characteristics of the land itself placed it in the classification of "sovereignty lands."

We therefore now approach the examination of the evidence of the surveys to see whether there was enough of it to justify the chancellor in his conclusion that the property could not have been conveyed in 1911 for the very good reason that the grantors had no power to transfer it. We shall bear in mind appellants' insistence that no survey has shown the physical condition of the property in 1896, when the patent was issued, or in 1911, when the original deed from the trustees was executed.

On 1 March 1949 the Trustees of the Internal Improvement Fund passed a resolution adopting the survey of the United States Government conduced in the early part of 1922, to which we have already referred, as indicating the correct area, location, and boundaries of the property. As an introduction to the resolution and a reason for its adoption there appeared in the minutes of the trustees the report of the engineer that at the time of the issuance of the patent in 1896 "and for twenty-eight years subsequent thereto the land was unsurveyed." This evidence of the official action of the Trustees of the Internal Improvement Fund may be relied upon as establishing the absence of any survey of the property before the original deed was issued, and for more than a decade thereafter; and this, the first, survey showed that the property lay below the high water mark of Biscayne Bay and therefore fell in the class of "sovereignty lands." Thereafter, on 15 March 1949, the trustees directed the Chief Drainage Engineer to cause a survey to be made to determine the boundaries between "swamp and overflowed lands" and "sovereignty lands" in the area described in the first paragraph of this opinion, with the result that it was determined that there were no lands in the area save "sovereignty lands."

A further history of the situation can be found in the instructions of the Chief Drainage Engineer on 6 April 1949 to the civil engineer designated to make the survey where it was set out that no conveyance had been made of any "sovereignty lands" in the section, that the United States Government had made a survey in 1922, but no official survey had been made by the state to determine the character of the property in the west half of section 4 and therefore the Trustees of the Internal Improvement Fund had directed that an official survey be made. We realize that this history of the property may not have the force of the declarations of the Trustees of the Internal Improvement Fund, but we refer to it because it not only coincides with what appears in the minutes of the trustees, but it was introduced in evidence without objection, as indeed were all the exhibits with reference to the surveys and minutes of the board to which we have alluded.

In fine, the pronouncements of the trustees and the surveys of 1922 and 1949 fix the character of the property as "sovereignty lands" and not "swamp and overflowed lands."

The immediate question, then, is whether the courts would be warranted in holding that the appellants' title was valid in 1911 because no survey had shown that at that particular time, eleven years before the first survey, the property was in fact tideland.

We do not think such a conclusion would be justified.

If the property was in fact tideland in 1911, there was no power in the trustees to convey it, and the deed attempting to do so was void. When the sale was made, it became the duty of the state to survey the property to fix its character and boundaries, Martin v. Busch, 93 Fla. 535, 112 So. 274, and this was not done. "* * * a complete and perfect title" could not vest in appellants' predecessor "to unsurveyed public land * * * until the lands [had] been identified by a survey authorized by law." Hardee v. Horton, 90 Fla. 452, 108 So. 189, 201. In the face of the resolution of the trustees we cannot presume that this duty was performed.

Judge Herin found as a matter of fact, established by the minutes of the board of trustees and the surveys, that the land was "sovereignty land" of the State of Florida, and as a matter of law that those who took it and now have it did so with notice that it was subject to official survey to determine the boundaries and that the "grant did not and could not include any sovereignty land." We think he was thoroughly correct in the conclusions of fact and law, and therefore we shall not disturb his decision.


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