State v. Jennings

• Decision Date: 28 April 1903
• Citation: State v. Jennings, 47 Fla. 307, 35 So. 986 (Fla. 1903)
• Parties: STATE ex rel. KITTEL v. JENNINGS, Governor, et al.
• Court: Florida Supreme Court

35 So. 986

47 Fla. 307

STATE ex rel. KITTEL v. JENNINGS, Governor, et al.

Florida Supreme Court, Division A.

April 28, 1903

Application by the state, on the relation of Joseph J. Kittel, for writ of mandamus to W. S. Jennings, governor, and others, trustees of the internal improvement fund of the state.Demurrer to amended answer overruled.

Syllabus by the Court

SYLLABUS

On Demurrer to Writ.

1.A demurrer to an alternative writ of mandamus, stating that 'the matter of law intended to be argued is that the facts stated in such writ do not show the relator is entitled to relief by writ of mandamus,' is so general in its nature as not to require this court to do more than determine that there are no such essential and vital defects in the alternative writ as to show no cause of action, and are incapable of being cured by the statute of jeofailes.

On Demurrer to Return.

2.A demurrer to the return to an alternative writ of mandamus is treated as a demurrer in other actions at law.

3.Ambiguity and argumentativeness are defects in a pleading which at common law were treated as formal defects, which made the pleading subject to special demurrer, but special demurrers are abolished in this state.

4.The act of Congress of March 3, 1845, c. 48 (5 Stat. 742) entitled 'An act supplementary to an act for the admission of Florida and Iowa into the Union and for other purposes,' granting school lands to Florida, was in the nature of a compact between the state and the United States government, and was a special grant in praesenti of every sixteenth section in every township which previous to survey had not been disposed of under legal authority from the government of the United States; and when by survey a sixteenth section, or fractional part thereof, is ascertained to exist in any township, the grant immediately attaches thereto, without a patent, by relation back to the date of said act of Congress.

5.The north and west boundary lines of a fractional township, and the traverse of the Apalachicola river on the east, and of Lake Wimico on the south, of said township, were surveyed in 1852, and the survey was approved by the Surveyor General of Florida on the 16th of September, 1853, and the boundary lines of the sections and lots in said township were extended in 1884, and the boundaries of fractional section 16 in said to township were definitely located, and said fractional section was divided into lots, which were numbered, and the acreage in each lot was ascertained by the Surveyor General and a record thereof was made in 1884 in the Surveyor General's office.Held, the foregoing survey, and acts of the Surveyor General, showing the existence of fractional section 16 and its acreage, were sufficient to cause the grant of March 3, 1845, to immediately attach to said fractional section 16 as school land.

6.The act of Congress of September 28, 1850, c. 84 (9 Stat. 519) entitled 'An act to enable the state of Arkansas and other states to reclaim the swamp lands within their limits,' and the act of Congress of March 3, 1857, c. 117(11 Stat. 251), conferring selections of swamp lands made before that date, are construed not to apply to or embrace the sixteenth sections granted to the state of Florida by the act of Congress of March 3, 1845, c. 48 (5 Stat. 742), for school purposes.

7.The selection of an entire fractional township, embracing a fractional sixteenth section, as swamp and overflowed land, by the executive officers of the state, and the confirmation of such selection by the act of Congress of March 3, 1857, c. 117(11 Stat. 251), are construed as not to include the fractional sixteenth section; and a certificate made by the trustees of the internal improvement fund of Florida, made and delivered on March 16, 1889, to a railroad company, certifying that such company was entitled to such sixteenth section, as swamp and overflowed land, whenever said lands should be patented to the state, and promising to convey said sixteenth section to said railroad company, its successors or assigns, upon the receipt of a patent for same by the state, are, under the circumstances before stated, void acts; and the patent of the same by the executive officers of the government of the United States to the state as swamp and overflowed land is also a void patent, and these acts confer no power or authority upon the trustees of the internal improvement fund to convey said fractional section 16 to the said railroad company, its successors or assigns, as swamp and overflowed lands.

COUNSEL

Henry H. Ingersoll and T. L. Clarke, for relator.

Geo. P. Raney and J. B. Whitfield, Atty. Gen., for respondents.

On November 23, 1898, the relator sued out of this court an alternative writ of mandamus, directed to the trustees of the internal improvement fund of this state.This facts therein suggested, stated as briefly as is requisite for the purposes of the case, are that Joseph J. Kittel is the equitable owner, and is justly entitled, in law, to demand and receive from the said trustees a deed of conveyance, of the lands embraced in fractional unsurveyed section 16 of township 8 S., range 8 W., in the county of Calhoun, containing 309 acres, more or loss, being the entire landed portion of said section 16, as will appear by the following facts, viz.: On September 28, 1850, an act of Congress was passed (9 Stat. 519), granting the state of Florida all swamp and overflowed lands in said state, for the purpose of reclaiming said lands; the state being authorized to designate and select lands of the kind and description granted, and report the same to the General Land Office for patent.That the Surveyor General of Florida on September 17 1853, in accordance with the regulations, transmitted to the General Land Office the township plat of fractional unsurveyed township 8 S., range 8 W., which was approved by the Surveyor General September 16, 1853.That on January 25, 1854, the state of Florida, through her officers designated and selected under the provision of said act of September 28, 1850, as portion of such swamp and overflowed lands, among other tracts, the entire fractional township 8 S., range 8 W., aforesaid, situated at the confluence of Lake Wimico and the Apalachicola river, in the county aforesaid, and duly certified and recorded such selection to the commissioners of the land office, in accordance with the rules and regulations of the department then in force.That on March 3, 1857, by act of Congress that day passed (11 Stat. 251), the United States of America confirmed all selections of land theretofore made by the state under the said act of September 28, 1850, and duly certified and reported to the said land office the fractional township aforesaid as swamp and overflowed lands, and thus perfected the title thereto in said state, under said two acts of Congress, as swamp and overflowed land.That on March 16, 1889, in pursuance of authority duly conferred upon them by the law of said state, the board of trustees of the internal improve ment fund of said state (hereinafter called the 'I. I. Board') did make and deliver to the Augusta, Tallahassee & Gulf Railroad Company(hereinafter called the 'A., T. & G. R. Co.') its lawful certificate, No. 13,909, wherein and whereby said trustees did certify that said railroad company was entitled to about 109,000 acres of land selected as swamp and overflowed land by said state of Florida under the act of Congress of September 28, 1850, whenever said land should be patented to the state of Florida under said act of Congress, wherein was included among the land so certified one tract of land described as all the unsurveyed part of township 8 S., range 8 W., and did therein and thereby lawfully promise that upon the receipt of said patents by the state the said trustees or their successors will convey the said lands to the said company, its successors and assigns, saving the rights of actual settlers on said lands, acquired at or before the date thereof, and saving the rights of John A. Henderson and Sidney I. Wailes, respectively, under their respective contracts with the trustees of the internal improvement fund aforesaid.That on July 6, 1895, pursuant to the request of the Governor of Florida, and under the provisions of said act of Congress of September 28, 1850, and also of the act of March 3, 1857, in pari materia, the United States of America, having previously patented to the state all other sections of said township, issued to said state its lawful patent No. 109 for the unsurveyed fractional section 16 of said township 8 S., range 8 W., containing an estimated area of 309 acres, as swamp and overflowed lands, which patent was duly transmitted to said I. I. Board and received by it on or before July 10, 1895, whereby was fulfilled the condition of said promise to convey contained in said certificate No. 13,909.That the reserved rights of John A. Henderson and Sidney I. Wailes under said certificate have all been canceled and discharged, and neither of them has any right, title, or claim to said fractional section 16, and there are no actual settlers thereon.That said Joseph J. Kittel, by lawful purchase at a judicial sale duly and regularly made on March 16, 1892, became the lawful owner of all the right, title, estate, and interest, legal and equitable, of the said A., T. & G. R. Co. in the lands mentioned and described in said certificate No. 13,909, including all the unsurveyed part of township 8 S., range 8 W., aforesaid, and thus, as successor and assign of said railroad company, became entitled to all the rights of said railroad company in said unsurveyed fractional section 16 of said township 8 S., range 8 W., including the right to demand and have from the...