Nourachi v. U.S.
| Decision Date | 19 August 2009 |
| Docket Number | Case No. 5:08-cv-70-Oc-10GRJ. |
| Citation | 655 F.Supp.2d 1215 |
| Parties | David NOURACHI, as Trustee empowered to buy, sell, encumber and manage real property of the HW 44 Lakefront Trust, a Florida Land Trust under F.S. 689/071 dated 12/8/02, Plaintiff, v. UNITED STATES of America, Villie M. Smith, Marion County Property Appraiser, Marion County, Florida, Defendants. |
| Court | U.S. District Court — Middle District of Florida |
Patrick A. McGee, McGee & Powers, PA, Orlando, FL, for Plaintiff.
Lacy R. Harwell, Jr., U.S. Attorney's Office, Tampa, FL, Charles Roy Forman, Vanessa Thomas, Forman, Hunratty & Montgomery, Robert Jeffrey Fowler, Thomas L. Wright, Marion County Attorney's Office, Ocala, FL, for Defendants.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
WM. TERRELL HODGES, District Judge.
This is an action to quiet title against the United States or, contingent upon the success of that claim, for damages against Marion County, Florida.
The dispute involves the boundaries of a parcel of real property in the Lake Bryant (or Mill Dam Lake) area of the Ocala National Forest. The Plaintiff claims title under a tax deed issued by the County. The United States claims title under an earlier deed from the then private owner of the property (or contiguous property).
The parcel in question implicates Lots 1 and 2 of Fractional Section 20, Township 15 South, Range 25 East, Marion County, State of Florida.
The Township was surveyed by the General Land Office in 1849, and the land lying within the resulting plat was patented by the United States to the State of Florida in 1892. The property in question thereafter found its way into private ownership, and a dependent resurvey was performed by the GLO at the request of the Forest Service in 1932 incident to the acquisition of lands which became a part of the Ocala National Forest. Prior to the resurvey, State Road 40 had been constructed running East to West through the Township bisecting Lots 1 and 2 of Fractional Section 20. This case involves the land abutting the meandered shoreline of Lake Bryant in Lot 2 North of SR 20 and East of the canal connecting upper and lower Lake Bryant.
The deed from which the United States derives its title is dated January 19, 1937, signed by C.A. Savage, Jr., and Dorothy R. Savage, his wife, as grantors. The Plaintiff does not dispute that the Savages had title at the time to all of the land in dispute; rather, the question is: what land was conveyed by that deed? After describing, and transferring certain other lands in the area, the pertinent portion of the Savage deed conveyed:
ALSO, Government Lots Two (2) and Four (4) in Section Seventeen (17); Government Lot One (1), that part of Government Lot Two (2) East of the East meander line of Lake Bryant [in Sec. 20, Township 15 South, Range 25 East] more particularly described as follows: (Emphasis supplied, metes and bounds description omitted.)
The tax deed from Marion County, upon which the Plaintiff relies, is dated December 18, 2002, and conveyed (or purported to convey):
Sec 20 TWP 15 RGE 25 THAT PART OF GOVT LOT 2 LYING N OF SR 40 & E OF CANAL
The anomaly that gives rise to the case is the fact that the metes and bounds description in the Savage deed to the United States was in error with respect to its calls and distances to the Point of Beginning, an error of 105.6 feet, complicated by the fact that the shoreline of Lake Bryant receded to the Northwest between the surveys of 1849 and 1932. On that much the parties agree. They disagree on the manner in which that erroneous description should be interpreted or corrected when applied on the ground. In essence, the Government claims title up to the present shoreline of Lake Bryant while the Plaintiff claims title to that portion of Lot 2 lying outside of the metes and bounds description as written in the Savage deed.
Florida law supplies the rule of decision; and, under Florida law, in resolving any uncertainty caused by property descriptions in a deed conveying real property, the Supreme Court of Florida has held [I]n the construction of deeds generally it is the duty of the court to ascertain and give effect to the intention of the parties, and for this purpose it may consider the situation of the property and of the parties, and the surrounding circumstances at the time the instrument was executed; also a practical construction of the instrument given by the parties themselves by their conduct ...
Kotick v. Durrant, 143 Fla. 386, 196 So. 802, 804 (1940).
Upon due consideration of all of the evidence, and the arguments of counsel, the Court is persuaded that a preponderance of the evidence concerning the intent of the parties to the Savage conveyance favors the position of the United States and the Plaintiff is not entitled to the quiet title decree that he seeks.
In explication of that decision, the court now makes the following, more specific—
1. In 1849, the General Land Office (GLO) performed the original survey ("GLO 1849 Survey") of Township 15 South, Range 25 East and prepared a plat which depicted the boundaries of Fractional Section 20 and the meander lines of Lake Bryant. (Govt. Ex. 1).
2. When performing the GLO 1849 Survey, the field surveyors meandered the sinuosities along the high water mark of the lakeshore of Lake Bryant. The high water marks were depicted as the meander lines of Lake Bryant on the GLO 1849 Survey. (TT, Day One, Lange at 27-28) (Govt. Ex. 1).
3. The field surveyors surveyed and subdivided Township 15 South into 36 sections, including Fractional Section 20. They set corners on the exterior of the sections. Based upon the field survey work and field notes, the GLO prepared the plat of Township 15 South, including Fractional Section 20, and subdivided the sections, including Fractional Section 20, into government lots. (TT, Day One, Lange at 32) (Govt. Ex. 1).
4. The boundary line between Government Lots 1 and 2 within Township 15 South, Fractional Section 20, was depicted on the GLO 1849 Survey Plat as the west sixteenth line going north and south. (TT, Day One, Lange at 32) (Govt. Ex. 1). The north corner of Government Lot 2 was established and depicted on the GLO Original 1849 Survey Plat as the intersection of the west sixteenth line and the 1849 east meander line of Lake Bryant. (TT, Day One, Lange at 59) (Govt. Ex. 1). In describing Government Lot 2, the property description begins at the point ("POB") where the west sixteenth line within Section 20 intersects the 1849 east meander line of Lake Bryant, which is the north corner of Government Lot 2 as depicted on the GLO 1849 Survey. (TT, Day One, Lange at 35) (Govt. Ex. 1).
5. After the plat of the GLO 1849 Survey was prepared, including the establishment and depiction of the north corner of Government Lot 2, the plat was used to patent the lands and convey them to the State of Florida in 1892. The patent included riparian rights. A patent is a document used to convey the government's interest in public domain lands. (TT, Day One, Lange at 30, 32, 34, 97).
6. Once a government survey locates a government lot corner such as the north corner of Government Lot 2, the lot corner is permanently set for all purposes once the lands are patented. (TT, Day One, Lange at 30-31, 74, 142.)
7. The GLO 1849 Survey delineates that Government Lots 1 and 2 bordered Lake Bryant and, therefore, both lots held riparian interests when the United States patented these lots to the State of Florida in 1892. (TT, Day One, Lange at 34-35) (Govt. Ex. 1).
8. In the late 1920's the Forest Service began to investigate a potential acquisition of property in the area of the Ocala National Forest. (TT, Day One, Lange at 43). In 1929, at the request of the Forest Service, GLO performed a dependent resurvey of Township 15 South, Range 25 East. The plat of this dependent resurvey was approved in 1932 ("GLO 1932 Resurvey"). (TT, Day One, Lange at 35-37) (Govt. Ex. 2).
9. A dependent resurvey is a retracement of an original survey. (TT, Day One, Lange at 36; Day Two, Bannerman at 9). The purpose of the dependent resurvey was to reestablish the original corners of the GLO 1849 Survey and re-meander the boundaries of Lake Bryant. (TT, Day One, Lange at 37).
10. In performing the dependent resurvey, the surveyors retraced the footsteps of the original surveyors, seeking to recover as much evidence of the original corners as possible, and then reestablished any missing or lost corners based upon the GLO 1849 Survey. The surveyors followed set procedures to reestablish the original corners of the GLO 1849 Survey. (TT, Day One, Lange at 36-37, 43; Day Two, Bannerman at 9).
11. The surveyors measured and meandered the shoreline of Lake Bryant as it existed in 1929. (TT, Day One, Lange at 37) (Govt. Ex. 2).
12. The surveyors' notes of the dependent resurvey were recorded in the original field notes, which were published by GLO. (TT, Day One, Lange at 38) (Govt. Ex. 18). The 1929 field notes were submitted by the GLO which prepared the plat of the GLO 1932 Resurvey. (TT, Day One, Lange at 42) (Govt. Ex. 2). The surveyors' notes explicitly provide that the meander line of Lake Bryant within Government Lot 2, of Township 15 South was right at the shoreline. (TT, Day One, Lange at 39-42, 144-147) (Govt. Ex. 18).
13. The GLO 1932 Resurvey did not move or alter the corners that were originally established and depicted on the GLO 1849 Survey, and specifically delineated the north corner of Government Lot 2 in the same location as it was delineated on the GLO 1849 Survey, i.e., the intersection of the west sixteenth line and the east meander line of Lake Bryant as shown on the 1849 survey. (TT, Day One, Lange 42-43) (Govt. Ex. 2).
14. The GLO 1932 Resurvey did not disturb in any way the...
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...determine the intent of the parties, and that this relief is not restricted to a reformation action. See, e.g., Nourachi v. United States, 655 F. Supp. 2d 1215 (M.D. Fla. 2009) (in quiet title action, a court "may consider the situation of the property and of the parties, and the surroundin......