SOUTH FLORIDA FARMS COMPANY, A CORPORATION, Plaintiff in Error, 

v. 

E. E. GOODNO, Defendant in Error

[NO DOCKET NUMBER]

SUPREME COURT OF FLORIDA

84 Fla. 532; 94 So. 672


Leitner & Leitner, for Plaintiff in Error;

Treadwell & Treadwell, for Defendant in Error.


STATEMENT

The following is a portion of the official plat of the survey of Township 42 South of Range 30 East of the Principal Meridian, covering sections 28, 29 and 30 of said township, showing the south and west boundaries of Section 30 and the subdivision meanders survey lines in sections 28 and 30 that were run in 1850 and 1870, the plat being certified by the Surveyor General as being "strictly conformable to the field notes of the survey thereof on file in this office which have been examined and approved."

"No. 12.

"A list of Swamp and Overflowed Lands selected as inuring to the State of Florida under the provisions of the Act of Congress approved September 28, 1850, Revised Statutes, section 2479 in the District of lands subject to sale at Gainesville, formerly Tampa, Florida.

Swamp Lands Surveyed Area
Parts of Sections  Section Township Range Acres Hdths.
All of fractional 28 42 30 27 50
All of fractional 30 42 30 233 90

DEPARTMENT OF THE INTERIOR,

GENERAL LAND OFFICE

October 25, 1879.

Respectfully submitted for approval.

J. M. ARMSTRONG,

Acting Commissioner.

DEPARTMENT OF THE INTERIOR E.M.M.

Washington, D. C., Nov. 8, 1879.

The foregoing List of Swamp Selections is hereby approved, subject to any legal rights that may exist to any of the lands therein described.

C. SCHURZ,

Secretary.

SWAMP LANDS

No. 135.

A list of Swamp and Overflow Lands selected as inuring to the State of Florida, under the provisions of the Act of Congress approved September 28, 1850, (9 Stat., 519) in the District of Lands subject to sale at Gainesville, Florida, containing 2,990.00 acres. List 135.

LIST OF SWAMP AND OVERFLOW LANDS

District of Gainesville, Florida, Tallahassee Meredian.

Parts of Sections  Sec. T.S. R.E Acres Unsurveyed Land
Unsurveyed 28 42 30 620.00
Unsurveyed 30 42 30 410.00

"Division of Swamp Lands,

Washington, D.C., January 15, 1909.

This certifies that the lands embraced in this list, Florida Swamp Land List No. 135, containing an estimated area of two thousand nine hundred and ninety (2,990) acres were reported to this office as swamp land July 14, 1886; that all of the surveyed lands in the township, except section 16, were patented to the State as swamp land, February 14, 1880; that the unsurveyed lands included in this list are designated on the plat as an "impracticable saw-grass marsh,' and that the field-notes of survey, made in 1871, show the land to be unsurveyable and of the character indicated on the plat; and that no claim adverse to that of the state to any said lands appears of record.

SAM'L W. SNOW,

Examiner.

Approved:

I. R. CONWELL,

Acting Chief of Division."

"Department of the Interior,

General Land Office,

Washington, D.C.,

January 18, 1909.

The tracts of land embraced in this list, Florida Swamp List No. 135, containing two thousand, nine hundred and ninety (2,990) acres, are decided, subject to the approval of the Secretary of the Interior to be swamp lands and to inure to the State under the swamp land grant.

FRED DENNETT,

Commissioner

Department of the Interior,

Office of the Secretary,

Washington, D.C., January 18, 1909.

This list, Florida Swamp Land List No. 135, containing two thousand, nine hundred and ninety (2,990) acres, is hereby approved subject to any valid adverse rights that may exist to the tracts therein described.

FRANK PIERCE,

First Assistant Secretary."

The following certificate of the Commissioner of Agriculture was offered in evidence by the plaintiff, but excluded on motion of the defendant:

"I, W. A. McRae, Commissioner of Agriculture of the State of Florida, hereby certify under my hand and official seal that I am the legal custodian of the records of deeds and papers pertaining to the public lands of the State of Florida, and all the patents and approved lists issued by the United States of America to the State of Florida, for all lands granted to the State of Florida under the several Acts of Congress, and also custodian of the record of the deeds of the Trustees of the Internal Improvement Fund of the State of Florida, and that as such Commissioner, I certify that the surveyed parts of Section 28 and Section 30 in Township 42 South of Range 30 East, were and are known as fractional sections 28 and 30 embrace 261.40 acres; that said fractional sections 28 and fractional section 30, were patented to the State of Florida under Patent No. 20, Tampa District, bearing date of February 14th, A.D. 1880; that this land which is known as fractional section 28 and fractional section 30 was deeded by the trustees of the Internal Improvement Fund of the State of Florida to the Florida and Improvement Company on February 3rd, 1883 in Deed No. 11,664; and

"I further certify under my hand and official seal that the unsurveyed parts of said sections 28 and 30 at that time, to-wit: February 3rd, 1883, had not been patented by the United States of America to the State of Florida; that the said unsurveyed parts of said sections 28 and 30, containing approximately 1,018.60 acres, and were patented on June 21st, 1909, by the United States of America to the State of Florida, under Patent No. 164, Gainesville District; that the Trustees of the Internal Improvement fund of the State of Florida, on December 28th, 1904, conveyed the said unsurveyed parts of said sections 28 and 30 to John W. Henderson, Jennie H. Murphree and Flora A. Waldo, heirs of John A. Henderson deceased.

"I Further Certify under my hand and official seal that said records show that fractional section 28 and fractional section 30 are not and were not the same land as the unsurveyed parts of said section 28 and section 30, and that the Trustees of the Internal Improvement Fund of the State of Florida, did not convey or attempt to convey to the said Henderson heirs the same land or any part thereof which they had previously conveyed as above mentioned to the Florida Land and Improvement Company.

IN TESTIMONY WHEREOF I have hereunto set my hand officially, and have cause to be affixed hereto the seal of the Department of Agriculture of the State of Florida, at the Capitol, in the City of Tallahassee, on this, the 27th day of April, A.D. 1920.

(SEAL)

W. A. McRAE,

Commissioner of Agriculture of the State of Florida."

Section 2724 Revised General Statutes, 1920, under which the above certificate was offered, was amended and enlarged in its scope by Chapter 7381, Acts of 1917, after the decision of this court in Groover v. Coffee, 19 Fla. 61.


WHITFIELD, J. -- In an action of ejectment brought by the South Florida Farms Company against Goodno to recover "all of Section Twenty-eight (28) Township Forty-two (42) South, Range Thirty (30) East, except a surveyed portion thereof, containing 27.50 acres, in the northeast corner thereof according to and as shown by Government plat, and all of Section Thirty (30) in Township Forty-two (42) South, Range Thirty (30) East, except Government Lots One (1), Two (2) and Three (3), and S. 1/2 of S.E. 1/4 thereofs as shown by Government Plat, containing about 950.40 acres," there was judgment for the defendant, and the plaintiff took writ of error.

It appears that all the land in Sections 28 and 30 of Township 42 South of Range 30 East, was swamp and overflowed land that was granted to the state by the Act of Congress, approved September 28th, 1850. It also appears that Goodno claims under a patent issued to the State on February 14, 1880, covering "the whole of fractional sections twenty-eight * and thirty * in township forty-two south of range thirty east * according to the official plats of survey of the said lands, returned to the general land office by the surveyor general."

The Act of Congress granting swamp and overflowed lands to the States, is not a grant of such lands by legal subdivisions. It grants "the whole of those swamp and overflowed lands, made unfit thereby for cultivation." The Act requires the Secretary of the Treasury to transmit to the Governor of the State accurate lists and plats of the lands granted, and upon request to issue patents therefor.

Where the whole of a township or of a section is "swamp and overflowed land" that is "wet and unfit for cultivation," within the meaning of the Act of Congress of September 28, 1850, a subdivisional survey of the township or section would not necessary to enable the Secretary of the Interior to determine whether "the greater part of" the township or section is "wet and unfit for cultivation," so as to be covered by the grant; but in such cases the lists and plats of the lands may be made by reference to surveyed lines and their projected extensions or to natural boundaries, and patents may be issued for the lands that are within the grant according to such lists and plats whether the lands be surveyed or unsurveyed. See 19 L.D. 251, 24 L.D. 147; 8 L.D. 65 and 369.

A section of land, as a legal subdivision under the Congressional rules of survey, is a mile square, and usually contains 640 acrs. When a section is not whole or regular in its contents, that is where it does not contain approximately 640 acres, it may properly be called a "fractional section." Where because of the presence of a permanent body of water which is approximately meandered in making the survey, there is a deficiency in the area of a section, it is referred to as a "fractional section." In such cases the water lines and not the meander lines may control as boundaries even though there may be some land between the meander line and the water line. See Railroad Co. v. Schurmeir, 7 Wall. (U.S.) 272; Producers' Oil Co. v. Hanzen, 238 U.S. 325, 35 Sup. Ct. Rep. 755; Greene v. United States, 274 Fed. Rep. 145; Lane v. United States, 274 Fed. Rep. 290; Mitchell v. Smale, 140 U.S. 406, 11 Sup. Ct. Rep. 819, 840; 9 C.J. 190. And where the grantee's boundary lines make him a riparian owner, the nature and extent of such grantee's title to lands under the water to which his boundaries extend, are controlled by the laws of the State. Hardin v. Jordan, 140 U.S. 371, 11 Sup. Ct. Rep. 808, 838; Shively v. Bowlby, 152 U.S. 1, 14 Sup. Ct. Rep. 548. In Florida a riparian owner upon navigable waters takes to ordinary high water mark. Broward v. Mabry, 58 Fla. 398, 50 South. Rep. 826; State ex rel. Ellis v. Gerbing, 56 Fla. 603, 47 South. Rep. 353; Brickell v. Trammell, 77 Fla. 544, 82 South. Rep. 221.

Where the area to constitute a whole or regular section of land is in place, but, because a portion of the land is, at the time of the survey, temporarily flooded, or is of such a nature that it cannot then be readily surveyed, or where the surveyors or officials negligently or purposely do not survey such portion, the survey may subsequently be completed. Meanwhile the surveyed portion is referred to as a "fractional section;" and in such case a conveyance of the "fractional section" is, in general, controlled in its boundaries by the survey and meander lines. Where a fractional section is patented in accordance with the plat of survey, and the meander lines of the survey do not approximately conform to a permanent water line that is referred to in the survey field notes and plats, the conveyance covers only the surveyed land in the section. Section 17 L.D. 355; Horne v. Smith, 159 U.S. 40, 15 Sup. Ct. Rep. 988; Niles v. Cedar Point Club, 175 U.S. 300, 20 Sup. Ct. Rep. 124; French-Glenn Live Stock Co. v. Springer, 185 U.S. 47, 22 Sup. Ct. Rep. 563; Lee Wilson & Co. v. United States, 245 U.S. 24; 38 Sup. Ct. Rep. 21; Jeems Bayou Hunting & Fishing Club v. United States, 274 Fed. Rep. 18; United States v. Lee Wilson & Co., 214 Fed. Rep. 630; Lord v. Curry, 71 Fla. 68, 71 South. Rep. 21.

Where public lands are patented "according to the official plat of the survey returned to the General Land Office by the Surveyor General," the notes, lines, landmarks and other particulars appearing upon the plat become as much a part of the patent, and are as such to be considered in determining what it is intended to include, as if they were set forth in it. The Swamp Land Act of 1850 in itself passed to the State only an inchoate title, and not until the lands were listed and patented under the act could the title become perfect. Chapman & Dewey Lumber Co. v. St. Francis Levee Dist., 232 U.S. 186, 34 Sup. Ct. Rep. 297, Lee Wilson & Co. v. United States, 245 U.S. 24, 38 Sup. Ct. Rep. 21; Greene v. United States, 74 Fed. Rep. 145; Lee Wilson & Co. v. United States, 227 Fed. Rep. 827, 142 C.C.A. 351; United States v. Lee Wilson, 214 Fed. Rep. 630.

The rule of general application is that where a patent to public land refers to the field notes and plats of an official survey, which field notes and plats show that the land is bounded by a permanent body of water, and that in making the official survey the waters were in fact faithfully meandered, the water line, and not the meander line is in general the boundary. See St. Paul & P.R. Co. v. Schurmeier, 7 Wall. (U.S.) 272, 19 L. Ed. 74; Lane v. United States, 274 Fed. Rep. 290, and authorities cited. 9 C.J. 189. But where an official survey meanders not a permanent body of water, but low marsh or similar lands that are adjacent to other lands being surveyed, the meander line is the boundary. See Lee Wilson & Co. v. United States, supra; Chapman & Dewey Lumber Co. v. St. Francis Levee Dist., supra; Niles v. Cedar Point Club, 175 U.S. 300, 20 Sup. Ct. Rep. 124; Horne v. Smith, 159 U.S. 40, 15 Sup. Ct. Rep. 988; Producers' Oil Co. v. Hanzen, 238 U.S. 325, 25 Sup. Ct. Rep. 755; Scott v. Lattig, 227 U.S. 229, 33 Sup. Ct. Rep. 242; Jeems Bayou Hunting & fishing Club v. United States, 274 Fed. Rep. 18; Moss v. Ramey, 239 U.S. 538, 35 Sup. Ct. Rep. 183; Security Land & Exploration Co. v. Burns, 87 Minn. 97, 91 N.W. Rep. 340; Chapman & Dewey Land Co. v. Bigelow, 77 Ark. 338, 92 S.W. Rep. 534; United States v. Lee Wilson, supra. See also Producers' Oil Co. v. Hanszen, 132 La. 691, 61 South. Rep. 754; Lord v. Curry, 71 Fla. 68, 71 South. Rep. 21; Producers' Oil co. v. Hanszen, 238 U.S. 325, 35 Sup. Ct. Rep. 755; City of Tarpon Springs v. Smith, 81 Fla. 479, 88 South. Rep. 613; Gauthier v. Morrison, 232 U.S. 452, text 549, 58 L. Ed. 680, 34 Sup. Ct. Rep. 384; Security Land & Exploration Co. v. Burns, 193 U.S. 167, 24 Sup. Ct. Rep. 425; 9 C.J. 190. The survey controls. Stonewall Phosphate Co. v. Peyton, 39 Fla. 726, 23 South. Rep. 440.

The South Florida Farms Company claims under a patent issued June 21, 1909, covering "all of unsurveyed sections * Twenty-eight * and thirty, * town-ship forty-two south of range thirty east," "according to the official plats of survey of the said lands returned to the General Land Office by the Surveyor General." The contention on which Goodno won in the trial court is that the patent of February 14, 1880, covering "the whole of fractional sections" 28 and 30, T. 42 S.R. 30 E. "according to the official plats of survey of the said lands," conveyed to the State, and the State conveyed to its grantee, the entire contents of sections 28 and 30, the theory being that as the plat of survey shows that the northeast and the southeast corners of section 28 were located, and that a small triangular piece containing 27.50 acres in the northeast corner of section 28 was actually surveyed and platted, and that as the western line and the southern line of section 30 had been located and platted and that the south half of the southeast quarter of section 30 had been regularly surveyed and platted and lots 1, 2 and 3 having irregular north lines, but all in the south half of section 30, had been actually surveyed and platted, the conclusion asserted is that sections 28 and 30 were to be regarded as having been surveyed and that the complete legal title to the entire area in the two sections passed to the State under the description "the whole of fractional sections 28 and 30."

This view is not tenable when the field notes and plats of the survey show that the meander lines in sections 28 and 30 are not delineations of permanent bodies of water, but of an "impracticable sawgrass marsh" covering a relatively large area between the survey lines and the Caloosahatchee River, a very narrow stream that traverses the sections. It appears from the survey plat that only 27.50 acres in the northeast corner were actually and completely surveyed in section 28 and that only the south half of the southeast quarter containing supposedly 80 acres, and lots 1, 2 and 3, containing respectively 51.90, 55 and 44 acres, all in the south half of section 30, had been actually and completely surveyed in section 30. This left unsurveyed the greater portion of the two sections, or over 600 acres in section 28, and over 400 acres in section 30, all of which is marked "Impracticable sawgrass marsh," and "Caloosahatchee River," and no survey lines are run through such "impracticable sawgrass marsh." None of the lines of sections 28 and 30 touch or even approximately reach the waters of the river, except the west line of section 30, being also a range line, which crosses the river. The first patent was confined to the fractional or surveyed portions of the sections 28 and 30 of the patent of June 21, 1909, covered "all of unsurveyed sections 28 and 30."

In Kean v. Calumet Canal & Improvement Co., 190 U.S. 452, 23 Sup. Ct. Rep. 651, the meander line was the water line. See French-Glenn Live Stock Co. v. Springer, 185 U.S. 47, 22 Sup. Ct. Rep. 563; Broward v. Mabry, 58 Fla. 398, 50 South. Rep. 826.

The conclusion here reached does not conflict with sections 4803 and 4804 of the United States Compiled Statutes, since the survey was interrupted by a sawgrass marsh which is to be treated as land, and the survey was not interfered with by a water course or an Indian reservation or other external boundary of a fractional township. Niles v. Cedar Point Club, 175 U.S. 300, 20 Sup. Ct. Rep. 124.

The Act of Congress approved September 28, 1850, granting to the State "the whole of those swamp and overflowed lands made unfit thereby for cultivation, which shall remain unsold at the passage of this Act," provides in section 2 "that it shall be the duty of the Secretary of the Interior, as soon as may be practicable after the passage of the Act, to make out an accurate list and plats of the lands described as aforesaid, and transmit the same to the Governor of the State, and at the request of said Governor, cause a patent to be issued to the State therefor; and on that patent, the fee simple to said lands shall vest in the said State."

The patent issued February 14, 1880, covered "the whole of fractional sections twenty-eight, twenty-nine and thirty * in township forty-two south of range thirty east * according to the official plats of survey," and the approved "lists and plats of the land" for which the patent was issued to the State show that fractional section 28 contains 27.50 acres, and that fractional section 30 contains 233.90 acres. This acreage is verified by the aggregate acreage of all the detailed acreage in the several sections, fractional sections and lots within sections that are contained in the lands of the township that are covered by the approved lists on which the patent was issued under the Act of Congress and as further shown by the official plats of survey referred to by the patent itself. By the terms of the Act of Congress making the grant of swamp and overflowed lands, the patent is issued for the lands contained in the "list and plats of the lands." that are made out and transmitted by the Secretary of the Interior to the Governor of the State. And the parent by its terms covers the described lands containing a stated acreage "according to the official plats of survey of the said lands." Therefore the patent of February 14, 1880, covering "the whole of sections twenty-eight * and thirty," "conveyed to the State" fractional sections 28 and 30 "according to the official plats of surveys" which show that fractional section 28 contains 27.50 acres, and that fractional section 30 contains 233.90 acres. This acreage, and no more was conveyed to the State by the patent of February 14, 1880. See Chapman & Dewey Lumber Co. v. St. Francis Levee District., supra.

The officers of the State conveyed to the defendant's predecessor in title "the whole of fractional sections 28, 30," which description of course embraced only the lands covered by the similar description in the patent to the State as shown by the "list and plats of the lands," upon which under the granting Act of Congress the patent was issued, and to which the patent expressly referred for definiteness of the descriptions contained in the patent, such lists and plats being public records and showing by demonstration that "all of fractional section 28" contains 27.50 acres and that "all of fractional section 30" contains 233.90 acres.

The patent issued June 21, 1909, covered "all of unsurveyed sections * twenty-eight * thirty, * township forty-two south of range thirty east * according to the official plats of survey of the said lands," etc., and the approved list of lands" for which under the Act of Congress the patent was issued to the State, shows that "unsurveyed" section 28 contains an estimated area of 620 acres and that "unsurveyed" section 30 contains an estimated area of 410 acres. This estimated acreage is verified by the aggregate of all the detailed areas of the different parcels of land as stated in the lists upon which the patent was issued.

The conveyance made by the State officials to the plaintiff's predecessors in title embraced "all unsurveyed sections 28, 30 T. 42 S.R. 30 E.," which description covered the area embraced in the patent under a similar description as made definite by the approved lists on which the patent of June 21, 1909, was issued, and by the official plats of survey to which the patent refers.

The conveyance made February 3, 1883 by the State officers to the defendant's predecessors in title covered only the lands embraced in the patent of February 14, 1880, viz: "the whole of fractional sections 28, 30" which did not include any lands except 27.50 acres in section 28, and lots 1, 2 and 3 and S. 1/2 of S.E. 1/4 of section 30.

As the plaintiff, the South Florida Farms Company, claims under the patent covering the unsurveyed portions of sections 28 and 30, and as the defendant claims under the patent covering "the whole of fractional sections 28, 30" which do not cover the unsurveyed portions of the sections, the verdict and judgment for the defendant are erroneous, since the lands described in the declaration cover the unsurveyed portions of the section, to which the plaintiff shows title, and no superior right by adverse possession or otherwise of the defendant is established. See Miller v. White, 23 Fla. 301, 2 South. Rep. 614.

The title to the bed of the Caloosahatchee River, a navigable, stream, is in the State by virtue of its sovereignty attained upon its admission into the Union in 1845; and lands under navigable waters in the State are not included in the Congressional Grant of Swamp and Overflowed lands in 1850. Broward v. Mabry, 58 Fla. 398, 50 South. Rep. 826; State ex rel. Ellis v. Gerbing, 56 Fla. 603, 47 South. Rep. 353; Scott v. Lattig, 227 U.S. 229, 33 Sup. Ct. Rep. 242. See also State ex rel. Kittell v. Jennings, 47 Fla. 307, 35 South. Rep. 986, as to lands granted to the State in 1845 for school purposes. No Spanish or other grant ante-dating the cession of the Floridas to the United States by Spain in 1819 is involved here.

Reversed.

TAYLOR AND WEST, J. J., AND JONES, Circuit Judge, concur.

BROWNE, C. J., dissents.


BROWNE, C. J. -- dissenting.

The determining question in this case is the construction to be placed on the terms "the whole of fractional section 28," and "the whole of fractional section 30," found in the United States Government patent to the State, and in the deed of conveyance from the Trustees of the Internal Improvement Fund, to the Florida Land and Improvement Company, from which Goodno deraigns his title.

The rule laid down by Congress for ascertaining the boundaries and contents of a "fractional township" is provided for in Section 4804, Vol. 5, U.S. Compiled Statutes, as follows: "The boundary lines actually run and marked in the surveys returned by the surveyor general shall be established as proper boundary lines, on the sections or sub-divisions for which they are intended, and the length of such lines as returned shall be held and considered as a true length thereof, and the boundary lines which have not been actually run and marked, shall be ascertained by running straight lines from the established corners to the opposite corresponding corners, but in those portions of the fractional townships where no such opposite corners have been or can be fixed the boundary lines shall be ascertained by running from the established corners due north and south or east and west, lines as the case may be, to the water course, Indian Boundary Line, or other external boundary of such fractional township."

It would seem proper to adopt this rule, in determining from the plat introduced in evidence, how many acres are embraced in "the whole of fractional section 28," and "the whole of fractional section 30."

A corner has been established by the United States government survey, and north and east lines have been partially surveyed and marked on the plat.

Applying the rule laid down by Congress to ascertain what is included in a "fractional township," we have only to run "from the established corners due north and south or east and west, lines as the case may be, to the water course, Indian Boundary Line, or other external boundary of the fractional sections," to find how many acres were conveyed by the words, "the whole of fractional section 28," and "the whole of fractional section 30."

We find the description, in the copies of patents and deeds introduced in evidence, that these methods are adopted by the United States Government of describing bodies of land. (1) "The whole of Section " is used to describe a piece of land a mile square containing 640 acres. (2) "The whole of fractional section," is used to describe a body of land approximately a section, but which on account of a water course boundary, or an ocean, gulf of bay boundary, the total acreage of land within the boundary lines is less than 640 acres. (3) Small fractions of a section are designated as "lots."

Following this method, the patent would have designated the 27 acres as "a lot," instead of by the grandiloquent and comprehensive term, "the whole of fractional section 28."

Even without the rule laid down by Congress, the natural interpretation of the words, "the whole of fractional section 28," would be all of the land included within the section less than 640 acres.

The construction placed by the majority of the court on the grant of "the whole of fractional section 28," is that it means only about 27 acres, and that a large body of land remains within the sectional lines after "the whole of fractional section 28" was patented to the State, and by it conveyed to the Florida Land and Improvement Company. That is, that "the whole of a fractional section" was conveyed, and a part of the fraction remained.

Just how the "whole of a fraction" can be taken away, and "part of the fraction" remain, is a mathematical puzzle; but such is the effect of the decision in this case.

I think the judgment should be affirmed.



E. E. GOODNO, Plaintiff in Error, 

v. 

SOUTH FLORIDA FARMS COMPANY, Defendant in Error

[NO DOCKET NUMBER]

SUPREME COURT OF FLORIDA, Division B

95 Fla. 90; 116 So. 23

January 27, 1928


Treadwell & Treadwell and W. C. Hodges, for Plaintiff in Error;

Leitner & Leitner, for Defendant in Error.


JONES, Circuit Judge;

This is the second time this case has been here upon writ of error. It is an action in ejectment wherein the land involved was granted to the State by the United States by the Act of Congress known as the Swamp Land Act. Approved September 28, 1850.

On the first trial each party attempted to deraign title from the United States. In construing the deeds under which the respective parties claimed title, the judgment in favor of the defendant was reversed in the case of South Florida Farms Company v. E. E. Goodno, 84 Fla. 532, 94 So. 672.

The land sought to be recovered is described in the declaration as follows: All of Section 28, To. 42 S.R. 30 E. except a surveyed portion thereof containing 27.50 acres in the northeast corner thereof according to Government plat, and all of Section 30 in Tp. 42 S., R. 30 E. except Government lots 1-2-3 and S 1/2 of SE 1/4 thereof as shown by Government plat in DeSoto County, Florida, containing about 950 acres to which plaintiff claims title and which is alleged to be in possession of the defendant.

Upon the issue made by defendant's plea of not guilty the case was tried a second time, resulting in a verdict in favor of defendant as follows: "We, the jury, find in favor of defendant, E. E. Goodno." The plaintiff moved the court to set aside the verdict and grant a new trial upon the ground that: 1, the verdict is contrary to law; 2, is contrary to the evidence; 3, is not supported by the evidence; 4, is contrary to law and evidence; 5, because the court erred in refusing to direct verdict for plaintiff; 6, because court erred in excluding testimony of witness D. L. Lence; 7, court erred in giving special charge requested by defendant; 8, because court erred in admitting evidence relative to the pasture fence.

To an order granting a new trial defendant took writ of error and assigns twelve errors. The first assignment is that the court erred in sustaining and granting plaintiff's motion for a new trial. The other eleven assignments question the ruling of the court admitting certain documentary evidence offered by the plaintiff to prove title and excluding a chain of deeds offered by defendant to prove his title, and also to the charge of the court. Only the first assignment, in connection with the grounds of the motion for a new trial, can be considered. It has been repeatedly held by this Court where a writ of error is taken under the statute to an order granting a new trial in a civil action at law the only questions to be considered are those involved in the order granting the new trial. Ruff v. Georgia S. & F. Ry. Co., 64 Fla. 782. It is not stated in the order granting a new trial upon what ground or grounds of the motion the ruling was based, but when the trial court grants a new trial upon a motion containing several grounds without specifying in the order the ground or grounds upon which the ruling was based, the order will be affirmed if any ground of the motion is sufficient to authorize the making of the order. Ruff v. Ga. S. & F. Ry. Co., 64 So. 782. It will be necessary therefore to consider the testimony with reference to several grounds of the motion.

To prove title to the land in controversy, the plaintiff introduced in evidence a deed from the Trustees of the Internal Improvement Fund conveying the land to John W. Henderson, and others as heirs of Jno. A. Henderson, deceased, and a deed from Jno. W. Henderson and other grantees in the former deed to South Florida Farms Company, the plaintiff. Plaintiff also introduced in evidence the certificate of Commissioner of Agriculture, which is authorized by Section 2724, Revised General Statutes of Florida, respecting the ownership, conveyance of and other facts in connection with public lands. The introduction by plaintiff of the documentary evidence as stated without proof of possession of the land by the plaintiff or its predecessors or without tracing the title to the original source was, in the circumstances of this case sufficient proof of prima facie title in the plaintiff to require the defendant to exhibit a superior title if he could. Groover v. Coffee, 19 Fla. 61. Bell v. Kendrick, 25 Fla. 778, 6 So. Rptr. 868. Morgan v. Dunwoody, 66 Fla. 522, 63 So. Rp. 905. Hall v. Fla. State Drainage Land Co., 89 Fla. 312.

For the purpose of deraigning his title from the United States, defendant offered in evidence a chain of deeds, all of which were excluded on the ground that the land described in the deeds is not the land in controversy. For a further discussion on this point, which is not involved in this hearing, see South Fla. Farms Co. v. Goodno, 84 Fla. 532. The defendant, to prove title by adverse possession, testified in substance that in 1906 he acquired possession of a tract of land embracing about ten thousand acres, which was then enclosed by an old wire fence and used as a pasture for cattle; that he purchased a large portion of the land and obtained permission of the owners of the remainder of the land to use the same for a pasture; that he immediately reconstructed the fence by placing a substantial four-strand barbed wire new fence around the entire tract; that there was only one entrance to the enclosure, which was through a gate which was kept locked and that he and his tenants had the exclusive possession, use and control of all the lands within the enclosure for the purpose of a pasture for a period of seventeen years or more. The land in controversy is traversed by the Caloosahatchee River and is situated within the enclosure. Defendant testified that he acquired by purchase in 1906 all that portion of Sections 28 and 30 involved in this suit south of the river and that he immediately enclosed with a substantial fence three sides of that portion of Section 30 purchased by him, the river forming the north barrier; that he cultivated a portion of the land part of the time, used it as a pasture, and at great expense ditched and drained it; that he also excavated several large ditches on Section 28 for drainage purposes; that he held the exclusive possession, use and control of the land, claiming it as his own for a period of more than seven years before the institution of this suit. In reply to a question propounded to defendant on cross-examination if he intended to go on land of other people that did not belong to him and just take it, he replied that of course he did not, he intended to claim the land for which he had a deed. It is apparent that when defendant took possession of Sections 28 and 30 south of the river in 1906, claiming title to the land, he was acting under a mistaken belief that he had a good and valid deed to such land.

Title to land in which claimant has no rights and no interest may be acquired by adverse possession where claimant takes possession under a mistaken belief that he had acquired a valid title by purchase and holds the land adversely with intention to claim title and continues to claim title to same for a period of seven years, even though the deed under which he took possession does not describe the land held by him. 2 C.J. 141, Sec. 245; Watrous v. Morrison, 33 Fla. 261, 14 S. 805; Liddon v. Hodnett, 22 Fla. 442; Seymour v. Creswell, 18 Fla. 29.

And where the claimant takes possession of land by mistake and holds the same adversely, claiming title to the land for a period of seven years, the law is not concerned with the question as to what might have been his intention if he had known he had no title to the land before his possession ripened into title, but the question involved is what was his intention during the period of his holding. The true question is whether, when he acquired possession, he believed it to be his own and intended to and did hold it as his own and against all persons. The intention is the test and not the mistake. Liddon v. Hodnett, 22 Fla. 442.

In an action of ejectment the plea of not guilty puts in issue the legal title and admits possession by defendant of all the land sued for. Revised General Statutes of Florida, Section 3236. Walters v. Sheffield, 75 Fla. 505, 78 Rptr. 539.

Where defendant wishes to deny possession of land sued for, it should be done by special plea. Revised General Statutes of Florida, Section 3236.

During the progress of the cross-examination of defendant, counsel for defendant announced that defendant claimed no title or interest in that portion of Sections 28 and 30 north of the river. There was no plea denying possession of or disclaiming interest in the land sued for north of the river, so as to reduce the issue made by the plea of not guilty to the land south of the river. Burt v. F.S. Ry. Co., 43 Fla. 339.

A verdict is the determination of a jury upon the testimony submitted to them and should be construed with reference to the issue made by the pleadings. Burt v. F.S. Ry. Co., supra.

The effect of the general verdict in favor of defendant, construed with reference to the issue, if permitted to stand, would be to bar a recovery by the plaintiff of the land sued for north of the river, the title to which was put in issue by the plea of not guilty, even though the defendant offered no evidence of title whatever after the plaintiff had shown a prima facie title to the land.  A verdict which does not determine the issue in accordance with the undisputed contention of either party is erroneous and should, upon proper application, be set aside. No opinion is expressed as to the sufficiency of the evidence to establish title by adverse possession to any of the lands in controversy.

The order granting a new trial is affirmed.

WHITFIELD AND BROWN, J. J., AND LOVE, CIRCUIT JUDGE, concur.

ELLIS, C. J., AND TERRELL, J., disqualified.


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