Forman v. Florida Land Holding Corp.

• Decision Date: 24 June 1960
• Citation: 121 So.2d 784
• Parties: Hamilton C. FORMAN and Charles R. Forman, Appellants, v. FLORIDA LAND HOLDING CORPORATION, a dissolved Florida corporation; Morton Kline, Norman Kline and Sidney Goodfriend, as Trustees of the Florida Land Holding Corporation, a dissolved Florida corporation; Morton Kline and Norman Kline, individually; Hannab Kline, Morton Kline and Norman Kline, as Ancillary Executors of the Estate of Benjamin J. Kline, Deceased; Hannah Kline, Morton Kline, Norman Kline, and Sidney Goodfriend, as Trustees under the Last Will and Testament of Benjamin J. Kline, Deceased; J & J Realty Co., a Florida Corporation; Broward Public Recreation Association, a nonprofit corporation of Florida; and Broward County, a political subdivision of the State of Florida, Appellees.
• Court: Florida Supreme Court

Page 784

121 So.2d 784

Hamilton C. FORMAN and Charles R. Forman, Appellants, v. FLORIDA LAND HOLDING CORPORATION, a dissolved Florida corporation; Morton Kline, Norman Kline and Sidney Goodfriend, as Trustees of the Florida Land Holding Corporation, a dissolved Florida corporation; Morton Kline and Norman Kline, individually; Hannab Kline, Morton Kline and Norman Kline, as Ancillary Executors of the Estate of Benjamin J. Kline, Deceased; Hannah Kline, Morton Kline, Norman Kline, and Sidney Goodfriend, as Trustees under the Last Will and Testament of Benjamin J. Kline, Deceased; J & J Realty Co., a Florida Corporation; Broward Public Recreation Association, a nonprofit corporation of Florida; and Broward County, a political subdivision of the State of Florida, Appellees.

Supreme Court of Florida.

June 24, 1960.

Rehearing Denied July 12, 1960.

Carl A. Hiaasen and McCune, Hiaasen, Kelley & Crum, Fort Lauderdale, for appellants.

John U. Lloyd, Fort Lauderdale, Smathers, Thompson, Maxwell & Dyer, Miami, and Saunders, Curtis, Ginestra & Gore and C. L. Chancey, Fort Lauderdale, for appellees.

HORNAL, Justice.

Appellants Forman ask us to reverse a final decree adverse to their complaint in a suit to quiet title.

We are called upon to determine whether riparian rights can be appurtenant to 'swamp and overflow lands' and whether the evidence supported the chancellor's conclusion adverse to appellants' asserted title.

We have previously considered this same litigation. Forman v. Florida Land Holding Corp., Fla.1958, 102 So.2d 596. We accept jurisdiction of the intent appeal in accord with the rule announced in Armenian Hotel Owners, Inc., et al. v. Kulhanjian, Fla.1957, 96 So.2d 896.

The basic factual situation which has produced the controversy is related in some detail in our opinion disposing of the prior appeal. At that time we reversed a decree dismissing the complaint and remanded the cause to the chancellor to enable the parties to present evidence. The chancellor has now heard the evidence and by this decree which reflects careful preparation and a thorough understanding of the issues, he has again found against the plaintiffs' position.

We think a clearer understanding of the issues can be accomplished by a drawing of the land as reflected in a government survey of 1870 and another drawing showing the land as it allegedly exists today. We have made no effort to draft these sketches according to scale. We supply them herewith merely to reveal reference points and to clarify the contentions of the parties. The drawings are as follows:

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

The plaintiffs Forman argued before the chancellor and reiterate here two basic contentions to support their claim for relief. It should be noted that they claim to own the South 10 chains of the North 32 chains of Government Lot 1, as pictured in sketch no. 2. Plaintiffs claim that this piece of land actually exists as shown in sketch 2, and that it originally constituted a part of Government Lot 1, as pictured in sketch no. 1. Appellants contend that Government Lot 2 claimed by the appellees was 'swamp and overflow land' which was acquired by the State of Florida under the Swamp Land Act of 1850. Chapter 84, 9 U.S.Statutes at Large, 519; Title 43 U.S.Code Annotated, § 981 et seq. From this the plaintiffs reason that such 'swamp and overflow lands' would not support riparian rights as an appurtenance. Therefore, they assert that the 1870 west boundary line of New River Sound constituted an established fixed east line of Government Lot 2, and that the owner of this lot enjoyed no riparian rights resulting from any accretion to its eastern boundary. Plaintiffs asserted that Government Lot 1 was no such swamp land; that it constituted an upland to which riparian rights could attach and that when New River Sound was eliminated either by artificial fill resulting from the dredging of Port Everglades to the north or by a gradual process of reliction, the western boundary of Government Lot 1 ultimately became what was originally the western boundary of New River Sound. The second contention of the appellants was that Government Lot 1 actually migrated due west across New River Sound a distance of about 650 feet and affixed itself leech-like to the eastern boundary of Government Lot 2. This leads appellants to conclude that the identifiable strip of land which has been added to original Government Lot 2 is, in actuality, a part of original Government Lot 1. To support this contention the plaintiffs presented detailed scientific testimony of a geologist and an ecologist, as well as testimony of surveyors and experts in the matter of submerged lands.

The appellees defended against the claims of the appellants with the contention that riparian rights can be appurtenant to 'swamp and overflow lands' and they offered testimony to support their position that actually Government Lot 1, as it originally existed, had disappeared by a process of erosion from the severity of the elements in the form of tides, winds and tropical hurricanes which have been known to assault the Florida Coast.

By his final decree the chancellor admitted that there had been some accretion to Government Lot 2. Where this land came from, he conceded to be a matter of bald speculation. He was satisfied, however, that it was not an 'immigrant parcel' which had abandoned its pristine anchorage to the bottom of the sea and migrated intact directly west to a new location on the boundary of Government Lot 2.

A through examination of the voluminous record including maps,...