Kitching v. Beachland Development Co.

• Decision Date: 12 July 1928
• Citation: 117 So. 789,96 Fla. 181
• Parties: KITCHING v. BEACHLAND DEVELOPMENT CO.
• Court: Florida Supreme Court

117 So. 789

96 Fla. 181

KITCHING v. BEACHLAND DEVELOPMENT CO.

Florida Supreme Court

July 12, 1928

En Banc.

Suit by Walter Kitching against the Beachland Development Company. Decree of dismissal, and complainant appeals.

Reversed.

Buford J., dissenting.

Syllabus by the Court

SYLLABUS

Owner of land pursuant to patent held not entitled to land lying between meander line and navigable river. The controversy in this case, as to whether the lands are included within the surveyed lines of a lot or extend to the water some distance from the survey line, is controlled by the decisions in Jeems Bayou, etc., v. United States, 260 U.S. 561 43 S.Ct. 205, 67 L.Ed. 402; Lee Wilson & Co. v. United States, 245 U.S. 24, 38 S.Ct. 21, 62 L.Ed. 128, and other like cases, and not by United States v. Gulf etc., 260 U.S. 662, 43 S.Ct. 236, 67 L.Ed. 448.

Appeal from Circuit Court, Indian River County; H. F. Atkinson, judge.

COUNSEL

James T. Vocelle and Charles A. Mitchell, Jr., both of Vero Beach, for appellant.

James O. Watson, of Vero Beach, for appellee.

OPINION

PER CURIAM.

Kitching brought a bill of complaint alleging in effect that he is in possession of designated unsurveyed land of the United States and that he had taken appropriate steps to acquire the land under the homestead laws of the United States, and that the defendant is interfering with complainant's rights of possession. It appears that the defendant, by virtue of the acquisition of a lot patented as lot 2, section 31, township 32, range 40, south and east, containing 41.82 acres, claims about 50 acres of land lying between the meander line of lot 2 and a navigable river, upon the theory that the water line and not the meander line is the boundary. An injunction restrained the defendant from interfering with the complainant's right in the land; and subsequently the injunction was dissolved and the bill of complaint dismissed. Complainant appealed. Apparently the court dismissed the suit upon the authority of Work v. Beachland Development Co., 57 App. D. C. 225, 19 F. (2d) 699. That decision is not binding on the complainant here, nor is it binding on the United States. Carr v. United States, 98 U.S. 433 25 L.Ed. 209.

This case is not controlled by the rules announced in United States v. Gulf Refining Co. of Louisiana, 260 U.S. 662, 43 S.Ct. 236, 67 L.Ed. 448, and Mitchell v. Smale, 140 U.S. 406, 11 S.Ct. 819, 840, 35 L.Ed. 442; but the applicable principles are stated in Jeems Bayou Fishing & Hunting Club v. United States, 260 U.S. 561, 43 S.Ct. 205, 67 L.Ed. 402; Chapman & Dewey Lumber Co. v. St. Francis Levee Dist., 232 U.S. 186, 34 S.Ct. 297, 58 L.Ed. 564; Lee Wilson & Co. v. United States, 245 U.S. 24, 38 S.Ct. 21, 62 L.Ed. 128; Security Land & Exploration Co. v. Burns, 193 U.S. 167, 24 S.Ct. 425, 48 L.Ed. 662; Niles v. Cedar Point Club, 175 U.S. 300, 20 S.Ct. 124, 44 L.Ed. 171; Horne v. Smith, 159 U.S. 40, 15 S.Ct. 988, 40 L.Ed. 68; French-Glenn Live Stock Co. v. Springer, 185 U.S. 47, 22 S.Ct. 563, 46 L.Ed. 800; Jeems Bayou Hunting & Fishing Club v. United States (C. C. A.) 274 F. 18; Gauthier v. Morrison, 232 U.S. 452, 34 S.Ct. 384, 58 L.Ed. 680.

Reversed.

ELLIS C.J., and WHITFIELD, TERRELL, STRUM...