Martin v. Busch

• Decision Date: 15 March 1927
• Citation: 112 So. 274,93 Fla. 535
• Parties: MARTIN et al., Trustees of State Internal Improvement Fund v. BUSCH et al.
• Court: Florida Supreme Court

112 So. 274

93 Fla. 535

MARTIN et al., Trustees of State Internal Improvement Fund v. BUSCH et al.

Florida Supreme Court, Division B.

March 15, 1927

Suit by Clarence M. Busch, as trustee for Clarence M. Busch, and others, against John W. Martin and others, as Trustees of the State Internal Improvement Fund, to remove a cloud on title. From a decree for the complainants, defendants appeal.

Reversed.

Syllabus by the Court

SYLLABUS

Lands under navigable waters in territory of Florida ceded by Spain were taken by United States for use of state subsequently formed. When in July, 1821, the United States took possession of 'all the territories * * * known by the name of east and west Florida' and 'the adjacent islands' that were ceded by Spain and afterwards incorporated into the territory of Florida, the laws of the United States became applicable, and the United States took and held the lands under the navigable waters, including the shores or spaces between ordinary high-water marks and tidelands, for the use and benefit of the state that was to be subsequently formed with rights of sovereignty. Such lands were not granted by the United States while Florida was a territory.

Lands under navigable waters to ordinary high-water mark and tidelands may, for convenience, be designated as 'sovereignty lands.' Lands under navigable waters to ordinary high-water mark and tidelands may for convenience be designated as sovereignty lands, since they belong to the state by virtue of its sovereignty in consequence of becoming a state in 1845.

State on admission to Union, became owner of, and, unless conveyed still owns, beds of navigable lakes to high-water mark. In 1845 the state, by virtue of its sovereignty upon being admitted to the Union, became the owner of, and unless lawfully conveyed or granted, still owns, the beds of all navigable lakes to ordinary high-water mark, however shallow the water may be at the outside lines or elsewhere, if the water is in fact a part of the particular lake that is navigable for useful purposes.

Best evidence attainable and best mothods available should be utilized in determining high-water mark, whether by meandering or by surveys. In flat territory or because of peculiar conditions, there may be little if any shore to navigable waters, or the elevation may be slight and the water at the outer edges may be shallow and affected by vegetable growth or other condition, and the line of ordinary high-water mark may be difficult of accurate ascertainment but, when the duty of determining the line of high-water mark is imposed or assumed the best evidence attainable and the best methods available should be utilized in determining and establishing the line of true ordinary high-water mark whether it is done by general or special meandering or by particular surveys of adjacent land.

Marks on ground or on local objects may be considered in determining true line of ordinary high-water mark. Marks upon the ground or upon local objects that are more or less permanent may be considered, in connection with competent testimony and other evidence, in determining the true line of ordinary high-water mark of navigable waters.

Line of ordinary high-water mark, ascertained by competent authority should be regarded as true line, in absence of fraud or mistake. When the line of ordinary high-water mark of navigable bodies of water is duly ascertained and established by competent authority, such line should be regarded as the true line, unless duly impeached for fraud or mistake.

Right to lands below high-water mark of navigable waters, when claimed, should be specifically shown. Where lands below high-water mark of navigable bodies of water are claimed, the right thereto should be specifically shown, since such ownership is exceptional.

In suit to remove cloud from title, generally allegation of ownership in fee and actual possession, or that lands are unoccupied is sufficient; bill to remove cloud from title is demurrable if facts constituting title are set out and show complainant has no title. In suits for the removal of clouds from title, as a general rule, an allegation in the bill that complainant is the owner in fee of the lands in question, and in the actual possession thereof, or that the lands are wild, unimproved, or unoccupied, if such be the case, is sufficient, without setting out in detail the facts showing such ownership, as ownership is the ultimate fact, and the others are mere evidentiary facts. If, however, in addition to an allegation of ownership in fee, the facts which constitute the title, of whatever nature they may be, are also set out, and such facts show title not to be in the complainant, a demurrer to the bill will lie.

Meander line, run under state authority, limits conveyances of adjacent uplands or of permissible grants of sovereignty lands below high-water mark. While ordinarily a meander line is not necessarily a boundary line when conveyances do not expressly make the meander line one of the calls of the boundary, yet, where a meander line is run under state authority for the purpose of identifying, locating, and establishing the true line of ordinary high-water mark of a body of navigable water, and the lands below high-water mark are sovereignty lands, and the lands above high-water mark are swamp and overflowed lands or other uplands subject to ordinary private ownership, in such case the meander line, if so intended and if duly and fairly ascertained and established, becomes, and, unless duly impeached, continues to be, a boundary line limiting the extent of conveyances of the adjacent uplands or of permissible grants or conveyances of the sovereignty land below high-water mark.

In federal patent conveying swamp lands to state, description as, 'around shores of Lake Okeechobee' refers to ordinary high-water mark (U. S. Comp. St.§§ 4958-4960). In United States patent No. 137, dated April 29, 1903, conveying unsurveyed swamp and overflowed lands to the state of Florida, pursuant to the Act of Congress approved September 28, 1850 (U. S. Comp. St. §§ 4958-4960), a description of a boundary line as 'around the shores of Lake Okeechobee and northerly along said lake' has reference to the ordinary high-water mark of the navigable lake.

Federal grant of unsurveyed swamp lands to state extended only to ordinary high-water mark around navigable lake (Act Cong. March 3, 1845 [5 Stat. 742, 788, 789]; U.S. Comp. St. §§ 4958-4960). Lake Okeechobee, being a navigable lake, the bed of the lake including the shores between ordinary high and low water marks, belonged to the state by virtue of its sovereignty upon the admission of the state into the Union by the Act of March 3, 1845 (5 Stat. 742, 788, 789), and such bed of the lake is not included in the grant of September 28, 1850 (U. S. Comp. St. §§ 4958-4960), of swamp and overflowed lands; therefore the lands covered by the patent No. 137 of unsurveyed swamp and overflowed lands, extended only to ordinary high-water mark around the navigable lake.

Deed by trustees of state internal improvement fund was of unsurveyed swamp land only, and contemplated survey under state authority. The deed of conveyance No. 15898, made by the trustees of the internal improvement fund of Florida, dated December 28, 1904, was of unsurveyed swamp and overflowed land only; and the conveyance contemplated a survey of the lands under state authority.

Attempted exercise of private rights in sovereignty land below high-water mark, under conveyance of unsurveyed swamp lands, gave no right. An attempted exercise of private ownership rights in sovereignty land below ordinary high-water mark of navigable bodies of water, under a conveyance of unsurveyed swamp and overflowed lands, gives no right or title to sovereignty lands below ordinary high-water mark of a navigable lake, though the boundary line between sovereignty land and swamp and overflowed land had not then been located under state authority.

State's conveyance of lands on navigable waters, held regarded as made to conform to official boundaries of sovereignty lands under water (Act Cong. March 3, 1845 [5 Stat. 742, 788, 789]; U.S. Comp. St. §§ 4958-4960). When the state through its authorized agency makes sales or conveyances of unsurveyed lands bordering on the shores of navigable waters, it is the duty of the state to officially determine the limits and existing boundaries of the sovereignty lands under navigable waters on which the sold or conveyed lands border; and, when such boundaries are duly established, sales or conveyances of adjacent lands are to be regarded as made with intent that such sales and conveyances shall and do conform to the boundary lines thus established between the sovereignty lands held by virtue of the Act of March 3, 1845 (5 Stat. 742, 788, 789), and the swamp and overflowed land acquired by the state under the congressional Act of September 28, 1850 (U. S. Comp. St. §§ 4958-4960), or other lands that may border on sovereignty lands.

Trustees of internal improvement fund conveyed no land below high-water mark by conveying unsurveyed lands between surveys and margins of Okeechobee. The trustees of the internal improvement fund had no authority in 1904 to convey land below ordinary high-water mark of a navigable lake, and such trustees did not attempt to convey any such sovereignty lands by deed No. 15898, dated December 28, 1904, in which they conveyed an 'estimated acreage' of unsurveyed lands 'embraced between the line of existing surveys and the margins of the Okeechobee and tributaries, and more particularly designated by what would be the projections of the existing lines of survey as follows: * * * All unsurveyed sections * * * 11, 12, * * * Tp. 43, S., R. 32...