Frank SAWYER, Appellant, 

v. 

John MODRALL, Appellee

No. 72-1193

Court of Appeals of Florida, Fourth District

286 So. 2d 610; 1973 Fla. App. LEXIS 6328

November 23, 1973


F. Kendall Slinkman, of Farish & Farish, West Palm Beach, and Ray C. Osborne, Boca Raton, for Appellant.

W. T. Nolan and William Hallman, of Hallman & Meeker, Boca Raton, for Appellee.


WALDEN

Plaintiff, Frank Sawyer, appeals from a final judgment denying his request for an injunction and damages. We reverse.

Plaintiff and defendant, John Modrall, own adjoining property fronting on the intracoastal waterway in Boca Raton. The lands claimed by plaintiff (the portion in controversy) are primarily under water of varying depths. They are contiguous to the intracoastal waterway, located directly north of defendant's property. Plaintiff derives his title from a deed dated September 24, 1890, from the Florida Trustees of the Internal Improvement Fund to the Florida Coast Line Canal and Transportation Co., conveying an aggregate of 345,971.8 acres of land. He owns approximately four acres of that originally conveyed property.

As conceded by defendant, part of the width of his seawall overlapped the boundary line between the parties' property, thus encroaching on plaintiff's submerged property. His dock was constructed along and north of the seawall and he had operated his boat over the waters covering the lands claimed by plaintiff, as had other members of the public. Plaintiff brought suit against defendant seeking an injunction restraining defendant from his continuous entry on plaintiff's property and the waters flowing over them and for damages incurred as a result of defendant's continuing trespass. Defendant asserted as an affirmative defense that plaintiff did not have title to the land he claimed, so that defendant's dock, boat landing and seawall were located upon sovereignty land, to which he and the public had a right of use.

The basic issue at trial was whether plaintiff had fee simple title to the lands underlying the waters by virtue of the 1890 deed, or whether title had remained in the State of Florida. Both sides presented evidence at trial regarding the condition of the land when title was conveyed from the Trustees of the Internal Improvement Fund.

Final judgment was entered for defendant, concluding:

"(a) At the time of the purported conveyance from the Trustees of the Internal Improvement Fund to Florida Coast Line and Transportation Company, Plaintiff's predecessor in title, that part of the land consisting of submerged coastal marshland was sovereignty land and was not legally alienable by the Trustees."

It was determined, since the plaintiff did not have valid title to the lands in question, he lacked standing to bring the action. He was denied relief and the complaint dismissed.

Plaintiff presents several points on appeal. However, the reframed dispositive question - the only matter that merits discussion - is whether the marketable record title act, found in Chapter 712, F.S.1971, F.S.A., operated to quiet plaintiff's title and, particularly, whether the 1890 deed from the Trustees fit an exception delineated in Section 712.04, F.S.1971, F.S.A.

Initially, it is our view that the defendant can not collaterally attack the deed from the Trustees as void for conveying sovereign lands under the reasoning announced in Pembroke v. Peninsular Terminal Co., Fla.1933, 108 Fla. 46, 146 So. 249. There the owner of property contracted to sell it to the defendant in exchange for promissory notes. Defendant defaulted and plaintiff sued. As an affirmative defense in that suit defendant contended plaintiff did not have valid title as the Trustees had no authority to convey lands which were at the time of the conveyance sovereignty lands and, in fact, under navigable water. The Supreme Court held defendant could not collaterally attack the deed from the Trustees:

"The deed thus attacked was made by the trustees of the I.I. Fund on August 6, 1920. The answer of appellants making this attack was filed over eight years later, in November, 1928. Neither the trustees nor the state were parties to this suit, . . .

* * *

"If the deed of the trustees made under the statute could be thus attacked in a suit between private parties eight years after it was executed, it could be done eighteen or more years thereafter, at which time it might be very difficult, if not impossible, to secure definite and reliable evidence as to just what the depth of the water was over the land in question at the time the conveyance was made, and before it was filled in and improved. It would certainly be a dangerous and unsound public policy to make the validity of land titles dependent upon the ability of those collaterally attacked or defending such titles to produce evidence of this character to defeat or sustain a deed made by the trustees under the state's authority." 108 Fla. at 71, 74, 146 So. at 257, 258. See also: Morgan v. Canaveral Port Authority, Fla.App.1967, 202 So.2d 884; Conoley v. Naetzker, Fla.App.1962, 137 So.2d 6.

Assuming for the purposes of this opinion that collateral attack is available to defendant and in the interest of a complete exposition of all the appeal facets, we next deal with the Marketable Record Title Act. The purpose of the Marketable Record Title Act was to simplify and facilitate land transactions by letting interested parties rely on the record title, Section 712.10, F.S.1971, F.S.A.; Marshall v. Hollywood, Inc., Fla.App.1969, 224 So.2d 743, aff'd 236 So.2d 114 (Fla.); Florida's Marketable Record Title Act: Prospects and Problems, 18 U.Miami L.Rev. 103 (1963); Wilson v. Kelley, Fla.App.1969, 226 So.2d 123; Whaley v. Wotring, Fla.App.1969, 225 So.2d 177. In Marshall v. Hollywood, supra, it is stated:

"'The Marketable title concept is simple, although it has fathered many variations in draftsmanship. The idea is to extinguish all claims of a given age (thirty years in the Florida Statute) which conflict with a record chain of title which is at least that old. The act performs this task by combining several features, which generally, are singly labelled as "statutes of limitations," "curative acts," and "recording acts."

"'The new act is in fact all of these: It declares a marketable title on a recorded chain of title which is more than thirty years old, and it nullifies all interests which are older than the root of title. This nullification is subject to a group of exceptions - including interests which have been filed for record in a prescribed manner . . .

"'The chief purpose of the act is to extinguish stale claims and ancient defects against the title to real property, and, accordingly, limit the period of search. The act is different from a statute of limitations. In a statute of limitations a claim of a vested, present interest is cut off because of the claimant's failure to sue. If suit is not filed, the claim is lost. By the Marketable Record Title Act, any claim or interest, vested or contingent, present or future, is cut off unless the claimant preserves his claim by filing a notice within a 30-year period. See  6.5. If a notice is not filed, the claim is lost. The act also goes beyond a curative act. Curative legislation only corrects certain minor or technical defects through the passage of time, whereas under the Marketable Record Title Act, most defects or clouds on title beyond the period of 30 years are removed and the purchaser is made secure in his transaction.'" 236 So.2d 114, at 119.

Thus, under Section 712.02 of the Act any person with the legal capacity to own land in this state who, either alone or with his predecessors in title, has been vested with title for thirty years has a marketable record title free and clear of all claims except those enumerated in Section 712.03, F.S.1971, none of which are applicable in this instance.

Section 712.04, F.S.1971, provides:

"712.04 Interests extinguished by marketable record title. - Subject to the matters stated in  712.03, such marketable record title shall be free and clear of all estates, interests, claims or charges whatsoever, the existence of which depends upon any act, title transaction, event or omission that occurred prior to the effective date of the root of title. All such estates, interests, claims or charges, however denominated, whether such estates, interests, claims or charges are or appear to be held or asserted by a person sui juris or under a disability, whether such person is within or without the state, whether such person is natural or corporate, or is private or governmental, are hereby declared to be null and void, except that this chapter shall not be deemed to affect any right, title or interest of the United States, Florida or any of its officers, boards, commissions or other agencies reserved in the patent or deed by which the United States, Florida or any of its agencies parted with title."

With reference to  712.04, all interests, whether they are private or governmental, are void except and only where any right, title or interest is reserved in the deed. The 1890 deed from the Trustees was outside plaintiff's thirty year chain of title and contained no reservation in the deed. It is the defendant's contention that we should read  712.04 as to include implied state governmental reservation of title to sovereign lands. In our view, and considering the purposes of the statute and the provision that it should be "liberally construed to effect the legislative purpose of simplifying and facilitating land title transactions by allowing persons to rely" on a record title, the statute should be interpreted so as to require an explicit reservation on the state's part. Section 712.10, F.S.1971, F.S.A.

Furthermore, as we view it, the state had no desire to make implied reservations under the 1890 deed. Chapter 3641, Laws of Florida 1885, and Chapter 3995, Laws of Florida 1889, were passed by the Legislature requiring the Trustees of the Internal Improvement Trust Fund to convey the acreage, part of which plaintiff now holds, to the Florida Coast Line Canal and Transportation Co. The 1889 act which governed the 1890 conveyance made no mention of reservations to be made in the deeds of conveyance.

Had the state wished to create a reservation, it seems logical that it would have so mentioned in the 1889 act or 1890 deed. In view of the fact that there was no such reservation in the deed, the exception of  712.04 does not govern. Furthermore, had the Legislature wished a broader statutory exception under  712.04, whether by implication or specific disclaimer, and reservation of any power of conveyance of sovereign land, they could have so provided in the statute. They did not and it is our view that the statute is to be read literally.

We determine that the plaintiff did have valid title to the lands in question, that the marketable record title act governs and clears plaintiff's title and that the 1890 deed from the sovereign without reservations was not an exception under Section 712.04.

We reverse and remand with directions to proceed consistent with the opinions herein expressed.

Reversed and remanded.

MAGER, J., and FERRIS, JOHN G., Associate Judge, concur.



John MODRALL, Petitioner, 

v. 

Frank SAWYER, Respondent

No. 44994

Supreme Court of Florida

297 So. 2d 562; 1974 Fla. LEXIS 3760

May 22, 1974

 


Certiorari denied. 286 So.2d 610.

ADKINS, C.J., and ROBERTS, BOYD and DEKLE, JJ., concur.

ERVIN, J., dissents.


ERVIN, Judge (dissenting):

This is another of the cases coming before us where sovereignty areas in navigable waters inuring to all the people are entitled to protection by the courts from private seizure.

We have for consideration a petition for writ of certiorari to review the decision of the District Court of Appeal, Fourth District, in the case of Sawyer v. Modrall, 286 So.2d 610.

The parties own adjoining property fronting on the intracoastal waterway in Boca Raton. Respondent brought suit in the circuit court against petitioner seeking to enjoin him from trespassing upon land claimed by respondent, which land is primarily under water of varying depths. The alleged title to the land which respondent claims is derived from an 1890 deed from the Trustees of the Internal Improvement Fund. The lands in issue lie directly north of petitioner's property, contiguous to the intracoastal waterway.

Petitioner conceded that his seawall overlapped the boundary line between the parties' property, thus encroaching on respondent's claimed submerged lands. Petitioner's dock was constructed north of the seawall, and he and the public in general have operated boats over the waters covering respondent's claimed land. At trial, petitioner asserted as an affirmative defense that respondent had no title to the land he claimed, but that the land was, instead, sovereign. Final judgment was entered by the circuit court for petitioner, finding:

"At the time of the purported conveyance from the Trustees of the Internal Improvement Fund to Florida Coast Line and Transportation Company (the 1890 deed), Plaintiff's predecessor in title, that part of the land consisting of submerged coastal marshland was sovereignty land and was not legally alienable by the Trustees."

The trial court, thus finding that respondent did not have title to the lands, held that respondent lacked standing to sue. The District Court, Fourth District, reversed, finding: (1) petitioner could not collaterally attack the 1890 deed from the Trustees as void, relying on Pembroke v. Peninsular Terminal Co., 108 Fla. 46, 146 So. 249 (1933); and (2) even if petitioner could raise such a challenge, the Marketable Record Title Act had acted to nullify the State's interest so that respondent did have clear title to the claimed, submerged lands.

Noting that the Marketable Record Title Act is subject to a group of exceptions, the District Court found that none of the exceptions of Fla.Stat.  712.03, F.S.A., were applicable to the facts of the case. The District Court then considered Fla.Stat.  712.04, F.S.A., which provides:

"Subject to the matters stated in  712.03, such marketable record title shall be free and clear of all estates, interests, claims or charges whatsoever, the existence of which depends upon any act, title transaction, event or omission that occurred prior to the effective date of the root of title. All such estates, interests, claims or charges, however denominated, whether such estates, interests, claims or charges are or appear to be held or asserted by a person sui juris or under a disability, whether such person is within or without the state, whether such person is natural or corporate, or is private or governmental, are hereby declared to be null and void, except that this chapter shall not be deemed to affect, any right, title or interest of the United States, Florida or any of its officers, boards, commissions or other agencies reserved in the patent or deed by which the United States, Florida or any of its agencies parted with title."

The District Court then found that the 1890 deed from the Trustees was beyond the 30 year chain of title of respondent required by the Marketable Record Title Act, and that the 1890 deed contained no reservation. Noting that petitioner urged that Fla.Stat.  712.04, F.S.A., should be construed to include implied state reservation of title to sovereign lands, the District Court concluded that the statute should rather be interpreted so as to require an explicit reservation on the State's part.

ISSUES: I. Whether or not the holding of the District Court that petitioner could not collaterally attack the validity of the 1890 deed conflicts with cases dealing with riparian rights and/or misapplies the case of Pembroke v. Peninsular Terminal Co., supra.

II. Whether or not the District Court's decision creates conflict with Williams v. Guthrie, 102 Fla. 1047, 137 So. 682 (1931), by not protecting the interests of the State when such interests were affected by the case, but the State was not a party to the action.

III. Whether or not the District Court's interpretation of the Marketable Record Title Act conflicts with cases dealing with the Trustee's power to convey sovereign lands.

Petitioner urges conflict with Ferry Pass I. & S. Ass'n v. White's River I. & S. Ass'n, 57 Fla. 399, 48 So. 643 (1909); Thiesen v. Gulf F & A Ry. Co., 75 Fla. 28, 78 So. 491 (1918); and Freed v. Miami Beach Pier Corp., 93 Fla. 888, 112 So. 841 (1927). The cases provide generally that title to submerged tidal lands remains in the State for the benefit of the public; that riparian property owners have a right of access, as well as a right of use of the waters over such submerged lands which is shared in common with the public; and, riparian owners have a qualified right, with the consent of the State, to erect wharves or piers or docks subject to lawful state regulation and the dominant powers of Congress.

Pembroke v. Peninsular Terminal Co., supra, arose from a contract to sell filled in, formerly submerged land which the seller had obtained through a deed from the Trustees, wherein the seller sought to foreclose a purchase-money contract. The defendant sought to defend the suit on the theory that the Trustees had no authority to transfer the property, and that the deed was void due to an improper description of the lands transferred. This Court held the transfer to have been constitutionally authorized by statute, and, as to the collateral attack on the deed, this Court opined:

"If the deed of the trustees made under the statute could be thus attacked in a suit between private parties eight years after it was executed, it could be done eighteen or more years thereafter, at which time it might be very difficult, if not impossible, to secure definite and reliable evidence as to just what the depth of the water was over the land in question at the time the conveyance was made, and before it was filled in and improved. It would certainly be a dangerous and unsound public policy to make the validity of land titles dependent upon the ability of those collaterally attacked or defending such titles to produce evidence of this character to defeat or sustain a deed made by the trustees under the state's authority." 146 So.2d 249, 258.

It is this latter language upon which the District Court relies in holding that petitioner could not collaterally attack the deed in the instant case.

Petitioner urges that the Pembroke case is clearly distinguishable from the case sub judice, and that the District Court erred in applying a rule of law from Pembroke to the instant case because Pembroke did not deal with the special rights of a riparian land owner, which rights are involved in the case sub judice. Contending that he has such rights and would suffer special and peculiar damages, petitioner urges that - in view of this Court's holdings in the other cited cases - he had a right to assert that the land in suit is sovereignty land and therefore respondent has no title. Respondent urges that the rule of Pembroke was fully applicable to, and properly applied to, the facts of the instant case. Respondent further urges that there is no basis for conflict certiorari jurisdiction presented by petitioner.

Williams v. Guthrie, supra, dealt with an ejectment suit brought by one private party against another private party, wherein the land involved was submerged land and a primary issue was whether or not the plaintiff had obtained any claim of title as against the State. The language in the decision upon which petitioner relies provides that

"when it appears that the rights of the state in lands sued for are involved, and the state is not a party before the court, it is the duty of the courts to take notice of the rights of the state and make appropriate orders to preserve such rights from impairment, even though none of the parties to the cause raise such questions, nor make any observations with respect to the state's rights involved." 102 Fla. 1047, 137 So. 682, 686.

Petitioner urges that in the instant case the District Court ruled against the State without considering the State's position, in violation of the rule set forth above. Respondent does not refer to the Williams case in his jurisdictional brief.

Petitioner urges conflict with three cases which generally hold that the Trustees are not authorized to convey title to sovereign land to private citizens. State ex rel. Ellis v. Gerbing, 56 Fla. 603, 47 So. 353 (1908); Martin v. Busch, 93 Fla. 535, 112 So. 274 (Fla.1927), and Pierce v. Warren, 47 So.2d 857 (Fla.1950). Petitioner urges that the liberal interpretation of the Marketable Record Title Act which the District Court has applied violates the general rule of law contained in the cited cases. Respondent contends that since none of the cited cases deal with the effect of the Marketable Record Title Act, and since the Act specifically deals with the State claims to land, the cases are clearly distinguishable.

It appears clear to me that the trial judge was correct in his ruling and that the District Court erroneously reversed him. This is so not only for the reasons assigned by petitioner as hereinabove outlined, but it has been the holding of this Court that unauthorized conveyances of sovereignty land are a nullity. When the 1890 deed was executed to respondent's predecessor in title, the Trustees of the Internal Improvement Fund had not the slightest authority to dispose of sovereignty land. Even though limited grants of sovereignty land were thereafter authorized by law to be made pursuant to strict rules, this later authority did not validate and confirm prior illegal grants of sovereignty lands.

For example, in Pierce v. Warren, supra, the Trustees of the I. I. Fund mistakenly believed in 1911 they were selling a tract of swamp and overflowed land rather than a tract of sovereignty land in Biscayne Bay. They were not given authority by law to sell limited portions of sovereignty lands until 1917. This Court invalidated the 1911 sale of the Biscayne Bay land because it was sold without power or authority of law and the deed was void. The Court, in Pierce, held that such a sale was taken with notice by the buyer that the tract was sovereignty or tideland.

The later authority in law to sell limited portions of sovereignty lands is hedged in with strict rules and restrictions requiring notice to the public and others affected in order that neither the public nor private rights will be injuriously affected by any proposed sale.

The Pembroke v. Peninsular Terminal Co., supra, case was decided in 1933 several years prior to Pierce v. Warren, which was decided in 1950. The Pembroke case involved submerged land that had been filled in rendering it impossible many years after the filling to secure definite and reliable evidence as to the depth of the water that previously covered the area. This evidentiary difficulty made it impossible to determine if the land was in fact sovereign at the time of the Pembroke litigation. Under these particular circumstances peculiar only to the land involved in the Pembroke case, this Court refused to disturb the sale. Here, as in the Pierce case, we have no problem of filled-in land. The respondent's claim is to existing submerged lands; not filled-in lands. I think we have a duty to follow the findings of the Circuit Judge who heard the evidence as to the nature of the submerged land in question as to its sovereignty. We really should not be judicially giving open water unfilled-in sovereignty areas to private persons. These areas belong to the public.

The Marketable Record Title Act (particularly F.S. Section 712.04, F.S.A. thereof) does not by literal interpretation clear title to private persons in open-water sovereignty areas. It is an extreme presumption on the part of the Legislature that by that Act it can expressly invalidate State and Federal public land ownerships by the mere passage of time because of the existence of conflicting private titles thereto which were void ab initio, except where the government title is expressly reserved in its patent or deed. The consequences of such a presumption could create many untoward results highly detrimental to public interests. Presumably thereunder an illegal government deed to a private person covering a sector of any open waterway or harbor would ripen into private ownership after thirty years.

All conveyances of submerged land areas by the Trustees of the Internal Improvement Fund carry with them implicit reservation to the State of navigable waters, even though the description of an area encompasses navigable water areas - and particularly those which continue in use by the public for navigational purposes, as in the case here - unless contemporaneously with the making of any conveyance it appears after statutory notice and hearing to the public and affected parties and careful study by the Trustees that a limited grant in a sovereignty area will do no public or private harm. Such a reservation by implicit necessity results when the Trustees' deed of conveyance either mistakenly or illegally incorporates sovereignty areas. In such circumstances the deed is void unless there is clear estoppel or inequity. The area covered by the void deed in the instant case has never been filled in, has continued constantly to be in use for boating by the public.  Respondent and his predecessors in title have all along been on notice of the sovereign inalienable quality of this open water, navigable area and its obvious public use and status as sovereign land.

The application of the Marketable Record Title Act when applied to submerged lands must be considered in connection with the case law discussed hereinbefore. Title to sovereignty lands as between the State and private persons must of necessity be determined not on the basis of express reservations in patents or deeds or the length of time of existence of conveyances to private persons, but upon the nature of the particular lands, their navigability and use from the public as well as the private standpoint. The evidentiary circumstances as to the nature of any submerged area must be considered to determine if it was susceptible to alienation.

The appellate courts ought not in this case to substitute their findings for those of the trier of facts on the question of whether the area is sovereignty land.

The evils of failure to protect sovereignty areas by the courts where various legal pretexts are resorted to but which have little but technical bases to support them were pointed out by me in a dissent in the case of Trustees of I. I. Fund v. Wetstone, Fla.1969, 222 So.2d 10. The soundness of the views expressed in that dissent becomes more and more apparent as cases of the kind here treated make their appearance with increasing frequency.

I agree with the contentions of petitioner and would quash the decision of the District Court and reinstate the judgment of the trial court.


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