South Venice Corp. v. Caspersen

• Decision Date: 19 December 1969
• Docket Number: No. 68--347,68--347
• Citation: 229 So.2d 652
• Parties: SOUTH VENICE CORPORATION, a Florida corporation, et al., Appellants, v. O. W. CASPERSEN et al., Appellees.
• Court: Florida District Court of Appeals

Page 652

229 So.2d 652

SOUTH VENICE CORPORATION, a Florida corporation, et al., Appellants, v. O. W. CASPERSEN et al., Appellees.

No. 68--347.

District Court of Appeal of Florida, Second District.

Dec. 19, 1969.

Rehearing Denied Jan. 8, 1970.

Evans, Thomas, Boylston & Johnson, Sarasota, for appellants.

John J. Blair of Lee, Blair & Williams, Venice, for appellee, O. W. Caspersen.

PIERCE, Judge.

This is an appeal by two of the defendants below, South Venice Corporation and W & A Construction Corporation, from a final judgment rendered by the Sarasota County Circuit Court on May 17, 1968, in favor of the plaintiff-appellee, O. W. Caspersen. The Trustees of the Internal Improvement Fund, who were brought in as parties defendant below, did not join in the appeal and are therefore appellees here. Rule 3.2, subd. c, FAR, 32 F.S.A.

This litigation was instituted by Caspersen after South Venice applied to the County Commissioners of Sarasota County for establishment of a bulkhead line and a dredge fill permit covering an area which included an island and portions of the submerged bottoms of Lemon Bay adjacent to the uplands owned by South Venice.

Caspersen filed his amended complaint against South Venice seeking, among other things, a determination that he was the owner of all of fractional Section 32, Township 39 South, Range 19 East in Sarasota County, except that part lying 'north and east of Lemon Bay,' including a certain island and all the submerged lands in said Section, and that the mean high water line of Lemon Bay was the common boundary of his land and that of South Venice.

By answer and counterclaim, South Venice alleged that certain portions of fractional Section 32 were owned by other parties, including W & A, and that the Trustees of the Internal Improvement Fund might have some claim in and to the submerged bottoms and an island involved in the litigation. Pursuant to Court order, the Trustees and W & A were joined as parties defendant.

The Trustees filed a declaration of interest asserting ownership of the submerged bottoms of Lemon Bay and sovereignty lands in Section 32, to which answers were filed by the other parties. W & A filed its answer, counterclaim and cross-claim, substantially identical to that filed by South Vehicle, setting forth that W & A acquired its lands from Caspersen, and that South Venice acquired its title to some of the lands from W & A; and that if Casperson held title to the submerged bottoms of Lemon Bay at the time of the conveyance to W & A, title thereto to the center of Lemon Bay passed to W & A, as well as title to the island; or, alternatively, that such submerged bottoms were owned by the Trustees.

After full evidentiary hearing, the able trial Judge entered final judgment, wherein he found and adjudged: that fractional Section 32 was non-navigable and that Caspersen was the owner of the submerged bottoms of Lemon Bay and the islands therein; that the Trustees had no interest in the said submerged bottoms or the island therein; that the common boundary line between the properties of Caspersen and of South Venice and W & A was the mean high water line of Lemon Bay adjacent to the uplands owned by South Venice and W & A, respectively; and that W & A acquired riparian rights in and to Lemon Bay appurtenant to the lands of fractional Section 32 conveyed to it by the deeds from Caspersen. We affirm.

The record shows that Caspersen's predecessor in title acquired title to all of fractional Section 32 by a deed from the Trustees dated December 15, 1883. This deed conveyed only swamp and overflowed lands. No sovereignty lands, tidal lands, or submerged lands of any character were conveyed by that deed by reason of the fact that the Trustees at that time were not authorized by law to convey either tidal or sovereignty lands. Caspersen acquired title from one Astrid Caspersen, by deed which contained no specific reference to submerged lands or islands. On December 8, 1952, Caspersen conveyed to W & A 'that part of fractional Section 32 lying east of Lemon Bay * * * together with any and all riparian rights belonging or in anywise appertaining to any and all of the above described property.' On March 19, 1953, Caspersen made a second conveyance to W & A to 'that part of fractional Section 32 * * * lying north and east of Lemon Bay (not heretofore conveyed to Grantee herein) and to the east of the creek running from Red Lake to Section 3.' W & A Thereafter conveyed portions of the property acquired from Caspersen to South Venice.

Appellants present five questions for review: (1) did the conveyances from Caspersen to W & A convey title to the disputed island; (2) did Caspersen's deeds to W & A convey title to the submerged bottoms of Lemon Bay; (3) was opinion evidence as to the dividing line between Alligator Creek and Lemon Bay properly admitted; (4) did Caspersen hold title to the submerged bottoms of Lemon Bay as against the other claimants in suit; and (5) was the high water line of Lemon Bay the common boundary between the properties of Caspersen and of South Venice and W & A? We will briefly discuss these questions seriatim.

(1) Title to the disputed island. The trial Judge held the conveyances in question did not pass title to the disputed land. We agree.

South Venice, and also W & A, argue that if the waters of Alligator Creek, which flows from the East into Lemon Bay, flow around the island to the Western side and there meet Lemon Bay, then the island is 'east of Lemon Bay.' While Caspersen's own witness, Albert Blackman, testified that the waters from Alligator Creek flow out on both sides of the disputed island, two of Caspersen's expert witnesses, Joseph Merrin, a surveyor, and Orlando Rolland, a geologist, testified that the island was in Lemon Bay, and gave their reasons for this conclusion. This was sufficient evidence to sustain the Court's finding that the disputed island lies in Lemon Bay.

South Venice and W & A also contend that it was the original intent of the parties to the deeds from Caspersen to W & A that the island be included, and that any ambiguity in a deed should be resolved in favor of the grantee. W. N. Wimmers testified on behalf of appellants that he was the real estate broker in the transaction between Caspersen and W & A and that a letter written by him on December 1, 1952 to Caspersen, which stated in part:

'Inasmuch as I know you intended that the sale should include all of Section 32 except the Gulf frontage, I cannot understand why there is any confusion'--

accurately reflects his understanding of the negotiations. Finn Caspersen testified on behalf of his brother that Mr. Braswell, attorney for W & A, called him after the first contract was signed and asked whether he thought his brother would be agreeable to changing the wording of the conveyance of the land in Section 32 to include some islands in Lemon Bay. He told Mr. Braswell he did not think his brother would do this because his understanding was that his brother would not convey beyond the water's edge. Admitted into evidence was a letter from the purchaser to Braswell, a letter from Braswell to Caspersen, and a letter from Finn Caspersen to Olaus Caspersen, the seller, in which they were trying to have the description in the deed changed from 'that part of fractional Section 32 lying east of Lemon Bay' to read: 'all of fractional Section 32, less that part thereof lying between Lemon Bay and the Gulf of Mexico', so as to include the islands. Since this was not done, it is clear that Caspersen did not intend to convey the island, and that the trial Judge was correct in finding that the deeds did not convey the disputed island or any other islands lying in Lemon Bay in said fractional Section 32.

(2) Alleged conveyance by Caspersen to the submerged bottoms of Lemon Bay. The trial Judge held that title did not so pass, and we agree.

South Venice and W & A contend that if Caspersen owned the submerged bottoms of Lemon Bay prior to the conveyance to W & A, then the conveyance carried with it ownership of such bottoms to the center of Lemon Bay. Appellants cite many cases which we do not consider applicable. Forman v. Florida Land Holding Corporation, Fla.1960, 121 So.2d 784; Tri-State Enterprises, Inc. v. Berkowitz, Fla.App.1966, 182 So.2d 40; and Trumbull v. McIntosh, 1931, 103 Fla. 708, 138 So. 34, all involved Riparian rights to lands abutting on navigable waters. The other authorities cited involve Streams and lakes.

Riparian rights are not involved in this case because the deeds from Caspersen to W & A specifically granted riparian rights and the Court so found in its final judgment. The issue involved is whether or not the conveyances carried with them Ownership in and to the adjacent submerged bottoms to the center of Lemon Bay.

The Court held that the portion of Lemon Bay lying in fractional Section 32 was non-navigable, and therefore the cases involving lands bordering navigable waters are not applicable. The submerged bottoms were granted to Caspersen's remote predecessor in title as ...