Ford v. Turner, 2372

• Decision Date: 23 May 1962
• Docket Number: No. 2372,2372
• Citation: 142 So.2d 335
• Parties: H. H. FORD and Lula Grace Ford, his wife, and Robert Ford and Dorothy J. Ford, his wife, Appellants, v. Walter S. TURNER, Jr., Appellee.
• Court: Florida District Court of Appeals

Page 335

142 So.2d 335

H. H. FORD and Lula Grace Ford, his wife, and Robert Ford and Dorothy J. Ford, his wife, Appellants, v. Walter S. TURNER, Jr., Appellee.

No. 2372.

District Court of Appeal of Florida, Second District.

May 23, 1962.

Rehearing Denied June 26, 1962.

J. Hardin Peterson, Lakeland, and O. K. Reaves, Tampa, for appellants.

Sheppard & Woolslair, Ft. Myers, for appellee.

WHITE, Judge.

Appellants H. H. Ford and Robert Ford and wives were principal defendants in a quiet title suit which resulted in favor of the plaintiff-appellee Walter S. Turner, Jr. The litigation involves an apparent increment or increase of land in the form of an elongated strip physically attached to the southerly end of Captiva Island near Blind Pass in Lee County on the lower Gulf Coast of Florida.

Plaintiff Walter S. Turner, Jr. alleged and deraigned title in himself and complained that the defendants H. H. Ford and wife wrongfully, by instruments of record, had attempted to convey and encumber parts of the subject land and had caused to be removed therefrom a number of trees. The litigants stipulated that no trees would be removed pending final disposition of the case. The defendants denied the material allegations of the complaint and averred generally that the plaintiff was not entitled to the relief sought. The chancellor held as set forth in the final decree:

'This suit was set down for trial before me and for three days I personally heard the testimony adduced by the parties and I examined and reviewed the documentary evidence and exhibits admitted in evidence herein. From a preponderance of the testimony of the lay witnesses, who actually saw what was physically happening over a long period of time, and of the expert witnesses; which testimony was confirmed by the documentary evidence and the exhibits, I find as follows:

'(a) The plaintiff, Walter S. Turner, Jr., is the fee simple owner of the land described in the Complaint;

'(b) The increase in the area of said land, as compared to the United States Government Survey of Government Lot 1 of Section 10 and Government Lot 2 of Section 11 in Township 46 South, Range 21 East, is the result of natural accretion physically attached to, and forming a part of, the plaintiff's said land and, therefore, is the property of the plaintiff; and

'(c) The equities of this suit are with the plaintiff and against the defendants:

'IT IS THEREFORE, ORDERED, ADJUDGED AND DECREED:

'1. The plaintiff, Walter S. Turner, Jr., is hereby declared and decreed to be the owner in fee simple of the land set forth in the Complaint, situate, lying and being in Lee County, Florida, and described as follows:

'That part of Government Lot 1 of Section 10 and Government Lot 2 of Section 11 in Township 46 South, Range 21 East lying between and bounded by: (a) The North lines of said Sections 10 and 11; (b) The waters of Blind Pass; (c) The waters of the mouth of said Pass leading to the Gulf of Mexico; and (d) The waters of the Gulf of Mexico; as such lines and waters existed on December 11th, 1958, the time of the filing of the complaint herein.

'2. The plaintiff's title to said land be, and the same is hereby, quieted and established, and the claims, or alleged claims, of the defendants, and each of them, be and the same are hereby, barred, removed and decreed not to constitute clouds upon the plaintiff's title to said land.

'3. Any right, title or interest of the defendants, and each of them, claimed in and to said land be, and the same is hereby, cancelled and annulled, and the defendants, and each of them, are hereby enjoined and restrained from asserting or attempting to assert, any right, title, interest, claim or demand in or to said land, or any part thereof.' (Emphasis ours.)

From the record and the findings of the chancellor, it would appear that at all times pertinent to the case the lands of the plaintiff and the lands of the named defendants have been in fairly close proximity but separated by a pass or channel. In other words, it was not shown or established that the lands of the respective parties were at any time actually contiguous each to the other. The record reveals, however, that the general topography of the involved area has altered considerably since the turn of the century. The great geodetic changes between 1900 and 1958 are reflected in the following sketches derived from exhibits in evidence. The approximate relative location of the disputed tract, which purportedly 'accreted' to the plaintiff's land, is indicated on Sketch 2.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The essence of the defendants' position under their seven points on appeal is that the chancellor misapprehended the facts and misinterpreted and misapplied the law. They submit that the plaintiff failed to show that he was in possession of the land and, in particular, failed to establish that all the disputed land had actually formed contiguously to his main tract. The defendants rely largely on their contention, avowedly established by the evidence, that the emergence of must of the land in question was the result of the formation of sandbars and spits which, although ultimately adhering to plaintiff's land, are not true 'accretions' belonging to the plaintiff but are mainly non-submerged sovereignty lands belonging to the State of Florida.

It is further urged on behalf of the defendants that some of the subject land that is not superimposed on sovereignty land, or become accreted thereto, extends over a portion of the defendant's land which previously eroded or became detached and submerged by avulsion through action of the 1926 hurricane, and that this recovered land rightfully belongs to the defendants even though now physically attached to land belonging to the plaintiff. The defendants also insist that ownership by accretion extends frontward only and not laterally.

According to the defendants' exhibits, the Ford property did originally front on the open Gulf of Mexico. A series of aerial photographs dated 1937, 1939, 1944, 1953 and 1958 show that Captiva Island has built up in a southerly direction until that island has almost completely paralleled Ford's original Gulf frontage, leaving only a navigable channel separating Ford's property and the 'accreted' portion of Captiva Island with the Island fronting on the Gulf. The defendants claim that this accretion crossed and covered the same geographic location as part of their lot #7 on Silver Key that previously stood firm until it was submerged by the hurricane of 1926. The chancellor, however, factually discounted this avulsion theory and held that the existing topography was the result of a gradual accretion to the plaintiff's land.

The defendants adduced some opinion testimony to the effect that the northerly tip of Silver Key, being United States Government Lot 7 belonging to defendants Ford, had either eroded or was cut through by the hurricane of 1926 and that subsequent accretion to the plaintiff's land covered the same geographic location. i. e., the northerly tip of Silver Key. It is such portion that is claimed by the defendants Ford. The chancellor apparently considered this testimony too indefinite and conjectural to establish either the fact of avulsion or the precise consequence thereof. We have already noted plaintiff's contention, which the evidence tends to establish, that at all times since the turn of the century the defendants' lands and the lands described in the complaint have been separated by the pass or channel known as Blind Pass. The chancellor's findings in the foregoing respects will not be disturbed on appeal.

With reference to the contention that there was no showing that the plaintiff was in possession of the disputed land, it need only be observed that a plaintiff, whether in actual possession or not, may sue to quiet title as against an adverse claimant not in actual possession. 27 Fla.Jur., Quieting Title, § 9. A party may quiet title even where the defendant is in possession, unless the defendant objects and requires transfer to the common law side of the court. Griffin v. Bolen, 1942, 149 Fla. 377. 5 So.2d 690. The plaintiff must, of course, show prima facie title in himself. Hill v. Da Costa, 1913, 65 Fla. 371, 61 So. 750. The rule requiring a showing of title in the plaintiff is particularly applicable where suit is brought to enjoin a threatened cloud. Benner v. Kendall, 1885, 21 Fla. 584; 27 Fla.Jur., Quieting Title, § 21. In the foregoing respects the chancellor found for the plaintiff.

Generally the margin or bed of a stream, or other body of water constituting a boundary, continues to be the boundary notwithstanding any accretion or erosion which changes the location of the body of water. The boundary lines of land so located thus extends or restricts as that margin gradually changes or shifts by reason of accretion or erosion. Feig v. Graves, Fla.App.1958, 100 So.2d 192, 196. The newly formed land belongs to the owner of the land to which it is an accretion, and not to the one originally owning the land in that place. See 8 A.L.R. 640, 41 A.L.R. 395 and numerous cases cited.

One witness testified that the accretion to plaintiff's land extended southeastward approximately 9,000 feet. One of the defendants' contentions, as stated, is that accretion can not thus extend laterally but only frontward. Cited as supporting authorities are Town of Hempstead v. Lawrence, 1910, 70 Misc.Rep. 52, 127 N.Y.S. 949; Mulry v. Norton, 100 N.Y. 424, 3 N.E. 581; City of St. Louis v. Rutz, 138 U.S. 226, 11...