Pembroke v. Peninsular Terminal Co.

• Decision Date: 16 January 1933
• Parties: PEMBROKE et ux. v. PENINSULAR TERMINAL CO.
• Court: Florida Supreme Court

146 So. 249

108 Fla. 46

PEMBROKE et ux. v. PENINSULAR TERMINAL CO.

Florida Supreme Court

January 16, 1933

En Banc.

Suit by the Peninsular Terminal Company against Andrew J. Pembroke and wife. From an order striking portions of the answer defendants appeal.

Affirmed. Appeal from Circuit Court, Dade County; H. F Atkinson, Judge.

COUNSEL

R. J O'Donnell, of Columbus, Ohio, and Worth W. Trammell and O. D. Batchelor, both of Miami, for appellants.

S. P Robineau and Garland M. Budd, Jr., both of Miami, for appellee.

OPINION

BROWN J.

This is an appeal by the defendants in the court below from an order sustaining a motion interposed by the complainant to strike that portion of the defendant's answer which alleged grounds for affirmative relief.

The complainant, the Peninsular Terminal Company, filed its bill in the circuit court for Dade county to foreclose a purchase-money contract. The bill alleged that the complainant was the owner in fee simple of lot 19 of [146 So. 250] block 1 according to a designated and duly recorded plat of the Harbor Terminal property of the Peninsular Terminal Company, and that on February 24, 1926, the complainant and defendant entered into a sales contract with defendant Pembroke, attached as an exhibit to the bill, whereby the complainant, for and in consideration of a cash payment of $3,300 and the execution by the defendant of three notes for $3,300 each, payable six, twelve, and eighteen months after date, bearing interest at 7 per cent. payable semiannually, sold said lot to the defendant under certain restrictions set out in the contract, and agreed to make and deliver to defendant a good and sufficient warranty deed of conveyance to said land upon the payment of the balance due as represented by said three notes. That the first and second of said promissory notes, together with interest thereon, had been paid; but that the defendant had failed to pay the last of said notes, which became due and payable August 24, 1927. The bill was filed July 20, 1928. It alleged performance of all provisions of the contract on the part of the complainant and that complainant stood ready, able, and willing to convey said land by good and sufficient warranty deed to the defendant upon his compliance with the contract; that the defendant's wife claimed some interest in the land, and was therefore made a party defendant. The bill prayed that the defendants be decreed to pay to the complainant the amount found by the court to be due it, and that in default of such payment all the right, title, and interest of defendants be sold to satisfy the balance so found to be due.

The answer of the defendants admitted substantially all the factual allegations of the bill except those setting up the complainant's ownership of the land in fee simple, and that it was able to convey the fee therein, by good and sufficient warranty deed, to the defendant Andrew J. Pembroke, unencumbered.

That portion of the answer which was stricken made certain allegations hereinafter referred to, and prayed that the contract be rescinded, held void and of no effect, and that the defendants be held entitled to recover from complainant all moneys paid to it thereunder, with interest. The allegations of the answer upon which this prayer was predicated were, briefly stated, as follows: That the real estate described in the bill is a part of a tract of what was, on August 6, 1920, submerged bay bottom land, under the navigable waters of Biscayne Bay, to which the complainant claims title by virtue of a deed made to its immediate grantor, the Alton Beach Realty Company, on August 6, 1920, by the trustees of the internal improvement fund of the state of Florida, and which was in turn conveyed to the complainant by deed dated April 18, 1921, both deeds having been duly recorded. That complainant does not have or claim title through any other source. The answer then attacks the validity of the complainant's title upon the following grounds:

(1) That the conveyance to the complainant's grantor was made by the trustees of the internal improvement fund by virtue of the authority vested in them by chapter 7304 of the Acts of 1917, being sections 1061 and 1062 et seq. of the Revised General Statutes of 1920, and now appearing as sections 1391 and 1392 et seq., of the Compiled General Laws of 1927. It is contended that these statutes are void, because, firstly, they are unconstitutional, and, secondly, they are void as being in conflict with the trust under which the state held these lands for the use of all the people of the state for purposes of navigation, fishing, and other useful purposes afforded by the waters covering them in common to and for all the people of the state; thirdly, because they are in conflict with the paramount jurisdiction of the federal government over natigable waters.

(2) That if the said sections of the statutes be valid, the deed from the trustees was and is void because, at the time said deed was made, the area in question was submerged 'practically throughout its entirety' to a greater depth than three feet at high tide by the navigable waters of Biscayne Bay, in spite of the preamble in the deed which recites that the lands conveyed are lands 'upon which the water is not more than three feet deep at high tide and which are separated from the shores by channel or channels not less than five feet deep at high tide'; that there were at the time of the conveyance, no appreciable areas within the boundaries attempted to be defined upon which the water was not more than three feet deep at high tide, thus rendering the deed void in toto. (It does not appear to be directly alleged that this particular lot, purchased by appellant, was situated on land which was covered by more than three feet of water at high tide at the time of the conveyance by the trustees.

(3) That if the said statutes and trustee's deed be valid, the complainant cannot convey an unencumbered title, because of the general power of the federal government to remove obstructions to navigation which have been constructed in or over navigable waters; and for the further reason that in the permit to construct the island, issued to complainant by the Secretary of War, on April 17, 1924, granting authority, inter alia, 'to excavate an area at the entrance to Miami Harbor, Florida, approximately to rock bottom, to construct a levee, bulkhead and wharf; to dredge a channel and turning basin; to dredge and fill two ship basins, and to deposit the dredged material in an area westerly and southerly of the United States Property at Miami Beach,' there was incorporated a paragraph providing, 'that if future operations of the United States require an alteration in the position of the structure or work herein authorized, or if, in the opinion of the Secretary of War, it shall cause unreasonable obstruction to the free navigation of said water, the owner will be required, upon due notice from the Secretary or War, to remove or alter the structural work or obstructions caused thereby without expense to the United States, so as to render navigation reasonably free, easy and unobstructed.' Defendants allege that this permit from the Secretary of War, under which this tract of submerged land was bulkheaded and filled in (and subsequently platted into blocks and lots as the 'Commercial Subdivision of the Harbor Terminal Property of the Peninsular Terminal Company)' was a mere license, revocable at the will of the Secretary of War.

In his order striking those portions of the answer above summarized the learned chancellor embraced an opinion in which he clearly and concisely stated his views on the questions raised, as follows:

'1. That the Chancellor to whom this cause was submitted, by reason of his continuous residence in Miami, Florida, since 1897, should take judicial notice of well known physical changes that have occurred in Biscayne Bay during said period; that two causeways have been constructed across said Bay connecting the City of Miami with the City of Miami Beach; and that various islands have been constructed in the Bay and connected with the said two causeways, which said islands have been improved by the construction of paved streets, by planting trees and shrubbery, and by the erection of numerous buildings now occupied by the owners as residences.

'2. That the said two causeways and islands have been constructed under circumstances similar to the island upon which the lot in question is located, and that the possession, title, and ownership of such properties will be affected by the decision in the present case.

'3. That Defendants are estopped, by reason of their contract to purchase the lot in question, from disputing the title and ownership of Complainant in the lands upon which foreclosure is sought by Complainant's Bill.

'4. The Court being of the opinion, for the purposes of this case, that the title and ownership of the land in question should rest upon a grant, and not upon an evidentiary fact, finds that the deed from the Trustees of the Internal Improvement Fund to the purchasers of the submerged lands in Biscayne Bay, upon which the island now in question was constructed, was and is an adjudication that such submerged lands were of the kind and character contemplated by section 1386 et seq. Compiled General Laws of Florida, 1927; and that all requirements of law were complied with on the part of the Trustees and the purchaser before such deed of conveyance was executed and delivered.

'5. That from and after the execution and delivery of such deed, and the construction of the island upon the submerged lands embraced within the said deed, that the State of Florida, acting through the Trustees of the Internal Improvement

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