Paradise Prairie Land Co. v. United States, 14433.

• Decision Date: 15 April 1954
• Docket Number: No. 14433.,14433.
• Citation: 212 F.2d 170
• Parties: PARADISE PRAIRIE LAND CO. et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Fifth Circuit

212 F.2d 170 (1954)

PARADISE PRAIRIE LAND CO. et al. v. UNITED STATES.

No. 14433.

United States Court of Appeals, Fifth Circuit.

April 15, 1954.

E. F. P. Brigham, W. W. Colson, Jr., and Phillip Goldman, Miami, Fla., for appellants.

Roger P. Marquis, Elizabeth Dudley, Attys. Dept. of Justice, Washington, D. C., J. Edward Williams, Act. Asst. Atty. Gen., William D. Jones, Jr., Sp. Asst. Atty. Gen., Perpy W. Morton, Asst. Atty. Gen., for appellee.

Before STRUM and RIVES, Circuit Judges, and DAWKINS, District Judge.

STRUM, Circuit Judge.

This proceeding in eminent domain was instituted by the United States to acquire a large area of land in South Florida to be developed into Everglades National Park. Appellants, the owners of certain of said lands in Townships 59 and 60 South, Range 35 East, are complaining that the judgment below denied them just compensation.

The trial was held in two stages, the first to ascertain the map or plat by which the lands should be identified and measured; the second to determine value.

Appellants' title is deraigned from the Florida East Coast Railway Company, to which the land here in question, and a large area of other contiguous lands, were originally conveyed by the Trustees of the Internal Improvement Fund of the State of Florida¹ by deed, dated December 14, 1912. At that time very little of the land involved in this suit had been actually surveyed on the ground, although the south lines of Townships 58 and 60 South, Range 35 East, had been located on the ground by United States survey. The deed from the Trustees to the railway company recites that the State shall not survey, nor cause to be surveyed, nor pay for the surveying of, any of the lands not already surveyed by the United States, and that since the acreage is estimated, the Trustees shall not be liable for any deficiency, nor the railway liable for any excess.

On July 22, 1914, the Florida East Coast Railway Company, through its agent the Model Land Company, recorded a map, known as the Dooley map, covering the lands conveyed to the railway company by the Trustees of the Internal Improvement Fund, including the lands here in question. Since its recordation, this map has been used for identifying lands conveyed by the railway to its grantees, and to subsequent grantees including appellants, as well as for tax assessment purposes. This map, however, is also a compiled map, not based upon an actual survey. The Dooley map shows the sections in Township 59 and 60 South, Range 35 East, except the west tier, to actually contain 800 acres each, instead of the conventional 640 acres in a one-mile square section. The same sections also scale 800 acres to the section on the "official" map of the Trustees.

This was because the Trustees, in making their conveyance to the Florida East Coast Railway Company, did not use a plat based upon an actual survey, because none had then been made, but used an "official" map compiled by them, on which township, range and section lines had been projected to scale from points established by actual survey, including the south lines of Townships 58 and 60 South, Range 35 East. As the conveyance from the Trustees of the Internal Improvement Fund to Florida East Coast Railway Company, dated December 14, 1912, indicates that said grantee was to receive all lands in Range 35 East between the south line of Township 58 and the waters of Florida Bay, which is below the south line of Township 60, the Trustees conveyed to the railway many sections in Townships 59 and 60 which are shown by the Dooley map to contain 800 acres each, approximately 32 of which in Townships 59 and 60 have now passed by mesne conveyances into appellants, and are being taken in this proceeding.

In January, 1949, shortly before this suit was instituted, the United States, not through the General Land Office, but through the Land Acquisition Office of the National Parks Service, prepared its own map, known as the Base Map of the Everglades National Park. This map does not represent an actual survey on the ground, so far as appellants' lands are concerned, but is also a scale projection from known survey points, and compilations from other sources. This map created for the first time a "hiatus" township designated as Township 59½ South, Range 35 East, theretofore unknown, into which was thrown the surplus of approximately 160 acres to the section over conventional 640 acre sections.

The National Park Service induced the Trustees of the Internal Improvement Fund, on November 1, 1949, to adopt its map "as an official survey of the United States and of the State of Florida," and the Trustees ordered the same filed as such in the office of the Commissioner of Agriculture of Florida.

It is therefore of vital importance to determine which map should be used in computing the acreage for which appellants are entitled to receive just compensation. The trial judge adopted the map prepared in 1949 by the Land Acquisition Office, known as the Base Map of Everglades National Park, as the "exclusive" map by which the land should be identified and measured, thus rejecting the Dooley and other maps.

The effect of this order, so far as appellants are concerned, is to eliminate 160 acres from each section (except the westerly tier of sections, and section 16), Township 59 South, Range 35 East, and from 2 5/8 sections in Township 60, including 2.4 miles of road frontage in Township 59, being the lands owned by appellants. As appellants have no title to any lands in Township "59½," the adoption of the government map as the criterion of measurement substantially reduces the acreage for which appellants are entitled to just compensation.

There were actually 800 acres on the ground in the sections conveyed by the Trustees to the railway company by the deed dated December 14, 1912, except in the west tiers of some of the townships. The acreage remained thus for 37 years, from 1912 to 1949, when the Trustees adopted the government's newly compiled Base Map, showing for the first time 640 acre sections, thus depriving appellants of 160 acres to the section, in most of the area owned by them. There can be no serious dispute as to this, because the government's principal witness, Siler, admitted on the stand that the sections, with the exceptions stated, originally contained 800 acres on the ground, and that in compiling the government's Base Map, they threw surplus acreage into hiatus Township 59½, where necessary.

At least where, as here, an involuntary taking is involved, appellants are entitled, in the absence of an actual survey...