Apalachicola Land & Development Co. v. Mcrae

• Decision Date: 08 November 1923
• Citation: 86 Fla. 393,98 So. 505
• Parties: APALACHICOLA LAND & DEVELOPMENT CO. et al. v. McRAE, Commissioner of Agriculture, et al.
• Court: Florida Supreme Court

98 So. 505

86 Fla. 393

APALACHICOLA LAND & DEVELOPMENT CO. et al. v. McRAE, Commissioner of Agriculture, et al.

Florida Supreme Court

November 8, 1923

Rehearing Denied Dec. 20, 1923.

Suit by the Apalachicola Land & Development Company and others against W. A. McRae, Commissioner of Agriculture of the State of Florida, and another. Judgment for defendants, and plaintiffs appeal.

Affirmed.

Browne J., dissenting.

(Syllabus by the Court.)

"Tideland" is that which is daily covered and uncovered by water by the ordinary ebb and flow of normal tides.

Appeal from Circuit Court, Franklin County; E. C Love, judge.

COUNSEL

E Tillman Davis and Fred H. Davis, both of Tallahassee, for appellants.

Rivers Buford, Atty. Gen., J. B. Gaines, Asst. Atty. Gen., and Fred T. Myers, of Tallahassee, for appellees.

This suit was brought by parties claiming lands through an Indian-Spanish grant to John Forbes & Co., made in 1811; the purpose of the suit being to enjoin designated state officials from leasing or using, for planting and cultivating oysters, certain submerged lands under navigable and tide waters of a bay of the Gulf of Mexico south of the mainland in Franklin county, Florida, the plaintiffs' claim being that such submerged lands passed to them through an Indian-Spanish grant to John Forbes & Co. in 1811, and confirmed by the United States to Colin Mitchel et al., the lands of which grant, originally made to John Forbes & Co., constitute a portion of what is commonly known in Florida as 'Forbes Purchase,' comprising several Indian-Spanish land grants, which were confirmed by the United States to Colin Mitchel et al. Mitchel v. United States, 9 Pet. (U. S.) 711, 9 L.Ed. 283.

Forbes Purchase.

The lands and islands that constitute the area known as 'Forbes Purchase' are, except the islands, situated in a more or less compact body, extending into the counties of Franklin, Calhoun, Liberty, Gadsden, Leon, and Wakulla, in Florida.

Prior to the cession, in 1819, of the Floridas to the United States by Spain, trading companies known as Panton, Leslie & Co. and their successors, John Forbes & Co., by permission of the crown, did an extensive mercantile business among the Indians in East and West Florida; the dividing line between the Floridas being the Apalachicola river. Large indebtednesses to said mercantile company having been incurred by the Indians, which they could not pay, and depredations upon the merchandise stores of said companies having been made by the Indians, the Indians, in consideration of such indebtednesses and depredations, ceded to the companies at different times large tracts of lands 'occupied by said Indians.' The cessions of these lands, including islands, were confirmed by the Spanish authorities, and were referred to as 'lands and islands' 'contained within stated limits.'

Speaking generally, the 'lands and islands' composing the several Indian-Spanish grants or cessions included in the 'Forbes Purchase,' are as shown on the accompanying map or 'diagram' as follows:

(1) Grant to Panton, Leslie & Co., confirmed by Spanish authority in 1804 and 1806.

(2) Grant to John Forbes & Co., confirmed by Spanish authority in 1811.

(3) Grant of an island in Apalachicola river to John Forbes, confirmed by Spanish authority in 1811. This island is in Calhoun county, Fla.

The grant by the Indians to Panton, Leslie & Co., concluded and confirmed by Spanish authorities in 1806, extends from the Apalachicola river east to Wakulla river, including islands between the mainland and the Gulf of Mexico, from the mouth of the St. Marks river to the western end of St. Georges Island; the same being:

'A district of land of which they [the Indians] are at present owners and proprietors, and contained within the following limits: Leaving the Apalachicola river five miles above Estefamulgee, the line runs through the hammock of said river and the adjacent pine barren, in a direction E. and E. S.E. more than three miles, till it meets with the principal path from Estefamulgee to the nation; then follows said path N. and N. N.E. eleven miles and a half or twelve miles, to the spot where the path from Micasukey to Estefamulgee separates from the other; thence the line runs along the same path from Micasukey, E. three miles and a half to a ravine; thence along the same path E. and N.E. by E. two miles and a half to another ravine; thence, still along the same path, N.E. and E. above a mile, till the junction with the path of Ochesee, alias that of John Mealby, to Apalachy; thence, running the same in a direction S.E. about three-quarters of a mile, to the river Tologie; thence, still along same, E. four miles and three-quarters, till the spot where the path of John Mealby to Apalachy separates; thence the line follows the path of Micasukey [which might more properly be called the path of Ochesee to Anacheeler] E. by N. one mile and a quarter, to the extremity of a hammock; thence, along the same path, N.E. and E. N.E. one mile and a half to four pine trees marked with crosses; here, leaving the path the line runs through the hammock, and crosses two ravines N.E. by E. one mile and thirty-six chains, till it meets with a path from Anacheeler to the south; crossing said path for fifty-eight chains, it follows till it meets with another path leading from Anacheela to Micasuky, at a distance of one measured miles from Anacheela; thence, following said path whose directions vary between S.E. and N.E. three miles, till a spot where a path separates leading to the south; leaving this path, and still following the former along which we came, the line runs through it in a direction E. and E. N.E. a mile and a balf to a ravine; thence running in the same path N.E. by N. one mile, till its junction with Thompson's path, which comes from the N. W.; thence, following the same path, here called Thompson's path, S.E. by S. one mile and a quarter, till little river; thence, following the same path N.E. by E., E. N. E., and E. one mile, till the spot where the path of Micasuky separates; thence it follows always the same path of Thompson's S.E. by E. one-third of a mile to a ravine; thence, always in the same path, in various directions between S.E. and N.E. two miles and a half to another ravine; crossing which, it goes in a direction S., still along the same path, one mile and a half to the river Ocklockney; thence, along the same path in various directions between S. and E. eighteen miles, to the extremity of the hammock on the river Wakulla, where two pine trees are marked with crosses at one mile distance from the house of John Keimaire; thence, crossing the hammock and a ravine, it runs S. by E. sixty-one chains; thence S. S.E. to a pine marked with a cross, sixteen chains; thence E. S.E. sixty-four chains, and thence E. N.E. ninety-six chains, to a road which leads from the house of Keimaire to Ft. St. Marks; thence it runs, crossing the road, forty-six chains N. N.E. to the river Wakulla, the channel of which forms the boundary as far as the sea to the east in the same manner as the great channel of the river Apalachicola from its mouth to five miles above Estefamulgee, forms, with a part of the above line, the limits to the west, and the high seas beyond all the islands on the coast, form the limits to the south.'

The grant to John Forbes & Co., confirmed by Spanish authority in 1811, consists 'of two pieces of land contiguous and adjacent to that which, in 1806, * * * was ceded * * * to the house of Panton, Leslie & Co.,' the first of the 'two pieces of land' being within limits described as beginning----

'at the mouth of the river Apalachicola, and following the line on the west margin, it ascends the Lake Weinico, three miles from its entrance, which spot is known by two cypresses marked with crosses; and thence, through the hammock the distance of one chain south to a cypress marked; here it was found impracticable to trace the line further on account of the bad way, but it should run 72 degrees west, a supposed distance of 1,280 chains, where a pine is marked; thence south 30 degrees, west 100 chains, to a pine marked with a cross, on the margin a reedy marsh; thence the line runs by water, one mile and a quarter, south 14 degrees west, to the extreme western point of St. Vincent's or Deer Island, including the whole of the island.'

These designated limits include 'the lands and islands at and west of the mouth of said [Apalachicola] river.' The other of the 'two pieces of land' granted to John Forbes & Co. in 1811 may be described as leaving the east end of St. Vincent's Insland, crossing the bay towards the northeast,

'thence ascending the river Apalachicola, and beginning the line at the boundary of the lands formerly ceded to the house of Panton, Leslie & Co. (at a point on the Apalachicola river 'five miles above Estefamulgee' on said river) and running the same up the said river to the mouth of the creek Cosaph Chuchee, or Sweet Water; thence following up said creek to its source, where a hickory is marked with a cross; thence, crossing the path by land north 79 degrees east, the line runs the distance of 27 chains 85 links to a pine marked with a cross; thence north 58 degrees east, 11 chains 47 links, to a pine crossed; thence north 65 degrees east, 18 chains 58 links, to another pine marked; thence north 42 degrees east, 26 chains and 36 links, to another pine marked; thence north 75 degrees east, 16 chains and 9 links, to another pine marked; thence north 40 degrees east, 22 chains 50 links, to another pine marked with a cross; thence north, 60 chains 36 links, to another pine marked; thence north 25 degrees, east 5 chains, to another pine marked; thence north 35 degrees, east 24...