Hardee v. Horton

• Decision Date: 03 November 1925
• Parties: HARDEE, Governor, et al. v. HORTON.
• Court: Florida Supreme Court

108 So. 189

90 Fla. 452

HARDEE, Governor, et al. v. HORTON.

Florida Supreme Court

November 3, 1925

Rehearing Denied April 15, 1926.

En Banc.

Suit to remove a cloud from title by Ralph A. Horton against Cary A Hardee, Governor, and others, Trustees of the Internal Improvement Fund, and others. Decree for complainant, and defendants appeal.

Reversed.

Gibbs Circuit Judge, dissenting.

Syllabus by the Court

SYLLABUS

A map or plat which represents no survey, but is prepared by projecting lines of a prior erroneous government survey on paper over a space representing a large area of unsurveyed lands, purporting to represent section, township, and range lines according to the rectangular method of surveying although adopted and referred to in deeds of conveyance as the afficial map of the grantor, when shown by competent testimony to be inaccurate and unreliable as an aid to locate the unsurveyed lands which are conveyed by description according to the rectangular method of describing lands, is insufficient as a survey of said lands.

A complete title to unsurveyed public lands does not vest in the grantee until the lands conveyed have been identified by an authorized survey; and where unsurveyed lands are conveyed by description according to the rectangular methos of describing lands, although the deed be a grant in praesenti the title vests in the grantee upon delivery of the deed subject to the right and duty of the political authorities of the stateto identify and separate by a survey the lands conveyed from the unsurveyed lands within which they are included.

In the purchase of swamp and overflowed lands that have not been surveyed the vendees take them with notice that the lands described are to be located by an authorized survey, and that all property in the state is acquired and held subject to the due exercise by the state of its police power.

Where purchasers of unsurveyed lands in large areas are made is given acreage described by sections, townships, and ranges which contemplate 640 acres to the section, and 36 sections to the township, the exact location and boundaries of the particilar lands intended to be conveyed may be ascertained by an authorized survey; and if the lands so located are not all in fact precisely where the purchases supposed they would be, no harm is done the purchasers, even though the purchases were made with reference to a plat on which lines were merely protracted on the plat over the space representing the unsurveyed area, since an actual survey was contemplated and a particular acreage was intended to pass by description used.

Where the boundaries mentioned in a deed of conveyance are inconsistent with each other, those are to be retained which best subserve the prevailing design manifested on the face of the deed, and the least certainty must yield to the greater certainty in the description.

Where land is clearly and explicitly described in a deed, and a subsequent clause is added as a further description of it, but which is of doubtufl import, or repugnant to the first clause, such latter description will be rejected.

Where an erroneous map, which represents no survey, is referred to in a deed conveying unsurveyed lands by a more particular description, and there is conflict between the map and the more particular description, the lands should be located by the more certain and definite description, and the erroneous map may be treated as surplusage.

Admission of Florida into Union by Act Cong. March 3, 1845, did not affect proprietary rights of United States in lands within state which had been ceded to United States by Spain by treaty of February 22, 1819, where such lands did not constitute beds or shores of navigable waters of state, or tidelands.

Appeal from Circuit Court, Dade County; H. Pierre Branning, judge.

COUNSEL

Glenn Terrell and J. B. Johnson, both of Tallahassee, for appellants.

Evans & Mershon, of Miami, for appellee.

By treaty of February 22, 1819, Spain ceded 'to the United States in full property and sovereignty, all the territories * * * known by the name of East and West Florida,' with an expressed provision that all the grants of land made by Spain before January 24, 1818, in said territories shall be ratified and confirmed to the persons in possession of the lands. State ex rel. Ellis v. Gerbing, 47 So. 353, 56 Fla. 603, 22 L. R. A. (N. S.) 337.

Under that treaty the United States acquired the ownership of all lands, including the swamp and overflowed lands in the area now constituting the territorial limits of the state of Florida that had been granted or conveyed to private ownership prior to January 24, 1818, 'when the first proposal for the cession of the Floridas was made' by Spain. See article 8 of Treaty, 1 Rev. Gen. Stats. p. 239.

The admission of the state of Florida into the Union by the act of Congress approved March 3, 1845 (5 Stat. 788), did not affect the proprietary rights of the United States in the lands within the state that had been ceded to the United States by Spain, where such lands did not constitute the beds or shores of the navigable waters of the state, or tidelands. Trustees Internal Improvement Fund v. Root, 58 So. 371, 63 Fla. 666; Brickell v. Trammel, 82 So. 221, 77 Fla. 544.

By virtue of an act of Congress approved September 28, 1850 (9 Stat. 519), the state of Florida was granted in proprietary right all of the then unsold swamp and overflowed lands in the state, which grant covered more than $20,000,000 acres of 'swamp and overflowed lands, made unfit thereby for cultivation.' The act of Congress required the Secretary of the Interior 'to make out an accurate list and plats of the lands * * * 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 * * * subject to the disposal of the Legislature thereof.' Section 2. This statutory provision contemplated a survey of the granted lands to be made by the United States authorities, and the issuance of a patent, before the title became fully vested to particular lands ( Byrne Realty Co. v. South Florida Farms Co., 89 So. 318, 81 Fla. 805; Little v. Williams, 34 S.Ct. 68, 231 U.S. 335, 58 L.Ed. 256), and required 'that in making out a list and plats of the land aforesaid, all legal subdivisions, the greater part of which is 'wet and unfit for cultivation,' shall be included in said list and plats; but when the greater part of a subdivision is not of that character, the whole of it shall be excluded therefrom.' Some of the granted lands were surveyed by the federal authorities, and patents covering lands found to be within the grant were issued to the state from time to time. In the lower part of the peninsular portion of the state of Florida south of Lake Okeechobee is an immense area of several million acres that at the time of the grant in 1850 belonged to the United States and was perhaps in its entirety 'swamp and overflowed lands, made thereby unfit for cultivation.' This area was and is known as the 'Everglades.' The areas both east and west of the margins of the Everglades were surveyed by the United States authorities. These surveys terminated in the marginal land where the higher ground merged into the marsh of the Everglades, the natural boundaries of the Everglades being the shores of Lake Okeechobee at the northern edge of the Everglades and the shores of the sea at their southern edge, there being a comparatively narrow area of more elevated lands on the east towards the Atlantic Ocean and a wider area of higher lands on the west towards the Gulf of Mexico.

The swamp and overflowed lands granted to the state by the act of Congress of September 28, 1850, were by chapter 610, Laws of Florida, approved January 6, 1855, vested in designated state officers as trustees of the internal improvement fund of the state of Florida, and lands patented to the state under the federal grant were and are held and disposed of by such trustees as directed by the statutes of the state. The lands in the Everglades were perhaps wholly swamp and overflowed in their nature, which under the act of Congress of 1850 would make them inure to the state as an entirety, except the sixteenth sections previously granted to the state by act of Congress approved March 3, 1845, 'for the support of public schools.' State ex rel. Kittel v Jennings, 35 So. 986, 47 Fla. 307. Because of the character of the lands in the Everglades, there would be little if any highlands in the area that would under the act of 1850 be reserved to the United States as the result of surveys, and the general government made no surveys of the Everglades; therefore the Secretary of Interior could not 'make out an accurate list and plats of the lands' as required by the granting act of Congress. No surveys of the Everglades having been made by the United States so as to issue patents describing the lands pursuant to the rectangular system of surveying the public lands, on April 29, 1903, Governor W. S. Jennings obtained a patent, No. 137, from the United States government covering the Everglades, 'being swamp and overflowed lands within' stated 'metes and bounds' (with particular exceptions covering 'all of what would be the school sections if the lands were surveyed' and other small described areas), the lands covered by the patent 'containing in the aggregate an estimated area of 2,862,280 acres.' The description by 'stated metes and bounds' followed the lines of existing government surveys around the edges of the Everglades on the east and west sides, and the shores of Lake Okeechobee and of the Gulf on the north and...