Internal Improvement Fund of State of Florida v. Nowak

• Decision Date: 07 October 1968
• Docket Number: No. 25433.,25433.
• Citation: 401 F.2d 708
• Parties: Trustee of the INTERNAL IMPROVEMENT FUND OF the STATE OF FLORIDA et al., Appellants, v. Walter F. NOWAK and Jean F. Nowak, et al., Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

401 F.2d 708 (1968)Trustee of the INTERNAL IMPROVEMENT FUND OF the STATE OF FLORIDA et al., Appellants, v.Walter F. NOWAK and Jean F. Nowak, et al., Appellees.

No. 25433.

United States Court of Appeals Fifth Circuit.

October 7, 1968.

Clyde O. Martz, Asst. Atty. Gen., J. Edward Williams, Acting Asst. Atty. Gen., Roger P. Marquis, Robert M. Perry, Attys., Dept. of Justice, Washington, D. C., Francis G. Rearick, Orlando, Fla., J. Kenneth Ballinger, Asst. Atty. Gen., Earl Faircloth, Atty. Gen., State of Florida, Tallahassee, Fla., for appellants.

Gene Essner, James E. Tribble, Blackwell, Walker & Gray, Miami, Fla., for appellees.

Before THORNBERRY and SIMPSON, Circuit Judges, and SUTTLE, District Judge.

THORNBERRY, Circuit Judge:

In 1963, the United States instituted proceedings to condemn land in Brevard County, Florida for use in the construction of NASA Launching Sites.At the time of filing the declaration of condemnation, the Government was of the opinion that the tract in controversy, i. e., Tract 3837-A known as Billy Joe Point and having approximately 98.58 acres, was owned by either the State of Florida or Appellees, Walter and Jean Nowak.Accordingly, it paid $27,000 into the registry of court as fair compensation and awaited determination of the ownership question.After the district court had entered findings of fact and conclusions of law to the effect that Tract 3837-A was owned by the Nowaks, the Government reached the conclusion that it was owned by neither the State nor the Nowaks.On an unsuccessful motion for new trial and on this appeal, it contends that the United States has always owned the land in question.The State, represented by the Trustee of the Internal Improvement Fund, contends that it should receive the compensation because it is entitled to a patent of the land from the United States while the Nowaks urge affirmance of the judgment below.We affirm.¹

In 1859, the Surveyor General of the United States retained a man named Harris to survey a number of townships in Brevard County.His surveys were to aid the Secretary of the Interior in the preparation of plats of land to be patented to the State of Florida under the Swamp Lands Act of 1850, 9 Stat. 915,43 U.S.C. §§ 982,983, the purpose of which was to enable the conveyance to the states of all swamp and overflowed lands made unfit thereby for cultivation so that they could be reclaimed by the construction of levees and drains.Rogers Locomotive Machine Works v. American Emigrant Co., 1896, 164 U.S. 559, 17 S.Ct. 188, 41 L.Ed. 552.According to the testimony of C. C. Jobe, a civil engineer and land surveyor, Harris surveyed some 20,000 acres in the general area designated as Township 22, Range 37.On the basis of his field notes, the Surveyor General prepared and approved a plat pursuant to which a patent covering more than 4,000 acres was issued to the State of Florida in 1883.The Nowaks are subsequent patentees.The close question raised by this case is whether the 1883 patent based on the 1860 plat conveyed to the State the 98-acre tract known as Billy Joe Point.If so, the Nowaks own it and are entitled to compensation; if not, it was never conveyed and no compensation is due.

Tract 3837-A lies in the northwestern part of a large island and projects into the Banana River.The following outline represents the northwestern part of the island as it appears on the 1860 plat:

As the dotted line indicates, Tract 3837-A does not appear on the plat.Immediately south of the tract are two lots designated as Government Lots 5 and 6.From the plat it would appear that all of Government Lots 5 and 6 border on the Banana River though, in fact, only part of Lot 5 is on the river.For the most part, the two lots border on the southern edge of Tract3837-A.The following drawing represents the actual situation:

The controversy arises because Tract 3837-A does not appear on the 1860 plat.The Nowaks argue that this makes no difference because the surveyor and those who prepared the plat intended to "meander" the river or follow the shoreline.As will be discussed hereafter, there is case law for the proposition that when a surveyor has attempted to meander a body of water, that is, make the boundary conform to the sinuosities of the shore or bank, the mean high water mark of that body of water becomes the boundary rather than the exact location of the line drawn on the basis of the surveyor's field notes.Thus, say the Nowaks, the Banana River was intended to be and is the northern boundary on the plat so that any land to the south, including Tract 3837-A, was conveyed by the patent.Appellants, on the other hand, contend that Tract 3837-A was not surveyed by Harris and was not shown on the plat and that land not identified by Government survey could not be conveyed under the Swamp Lands Act.To come to grips with these opposing arguments, we find it necessary to set out in full the findings of fact entered by the trial judge:

FINDINGS OF FACT

1.The land designated herein as Tract 3837-A was in existence at the time of the Harris survey in 1859.The only testimony on this point was that of C. C. Jobe, a civil engineer and land surveyor who testified in behalf of the defendant Nowak.Jobe surveyed and platted the subject tract as well as Government Lots 5 and 6 on April 22, 1960.This plat, introduced as Nowak's ExhibitNo. 6 and admitted without objection, shows the northern boundary of Government Lots 5 and 6 which constitute the southern boundary of Tract 3837-A as a straight line designated as a meander line on the plat.On the original plat prepared on the basis of Harris' field notes and approved by the Surveyor General Francis L. Dancy, a copy of which has been admitted herein as Nowak's ExhibitNo. 3, that same meander line appeared as a relatively straight line bordering on the Banana River.The land south of the line is indicated as being "Savannah".Other places on the plat are designated as marsh.There is no such designation north of this meander line.To anyone reading such plat it would appear only that there is a mass of water known as the Banana River directly north and adjacent to this meander line.

Jobe testified that Tract 3837-A presently exists as a low lying tract of land devoid of trees and dotted with small ponds of water.The Coast and Geodetic Survey of 1883, introduced without objection as Nowak's ExhibitNo. 5, clearly shows that Tract 3837-A was in existence in approximately its present form in 1883.The Court notes that there are streams shown on Government Lots 5 and 11 on the plat of Jobe's survey and also appearing on the 1883 survey but not shown in any form on the plat of the Harris survey.The Trustees contend, in support of their position that Tract 3837-A appeared after 1860, that the river had receded between the 1860 and 1883 survey.The presence of these creeks in the 1883 survey and Jobe's survey lead to an opposite conclusion, unless it be further assumed that Harris by design or error omitted those creeks.In addition, Jobe testified that on the basis of the present condition of the land and his various soil samples it was his expert opinion that the subject tract in question had not been permanently under water in 1859 or at any time thereafter.The Trustees introduced no testimony to the contrary.

2.As to why this parcel of land was omitted from the survey the Court can do little more than speculate.Some light is shed on this question by the Contract of Survey and various correspondence by the Surveyor General to Harris which were introduced into evidence by the Trustee and admitted over objection.In a letter dated March 18, 1859, from the Surveyor General, Dancy, to Harris, it is specifically stated that in regard to the land to be surveyed:

"You will make an examination of it and should it be found that there is not sufficient good land or land fit for cultivation and not subject to overflow to pay the expense of survey — you will at once abandon it, as it is not proposed by your contract to survey any lands that are not fit for cultivation or that would not find ready sale when brought into market."

In view of both the above quoted directions and the present state of the land today as testified to by witness Jobe, that is, that it appears not to be suitable for cultivation at the present time and, except for condemnation purposes, there is a strong question as to even its saleability, it appears likely that the land was omitted intentionally from the Harris survey as land being not fit for cultivation.Error on the part of Harris, if there was an error, was his failure to designate the nature of the land north of Government Lots 5 and 6, that is, whether that land, was, in fact, impassable marsh, land subject to overflow, or land temporarily or permanently covered by water.It further appears likely that on the basis of the field notes made by Harris showing that the meander posts at the corners of Government Lots 5 and 6 were on the "right bank of Banana River", persons preparing the plat drew the meander line as though it bordered upon the Banana River without considering whether or not the land north of such meander line was submerged land covered by the Banana River or was merely land omitted from the survey because of lack of saleability or being unfit for cultivation.(Emphasis added)

* * * * * *

It must be remembered that the Government did not advance the argument it now makes until these findings had been entered.Having studied them, it concluded that since Tract 3837-A was intentionally omitted from the survey it could not have been patented to the State and ultimately to the Nowaks.In other words, it concluded that the court's findings pointed to a different result from the one reached.In attempting to untangle this problem, we begin with this important question: What did Harris intend to do when he made the survey?From a careful reading of the...