Trustees of Internal Imp. Fund of State of Fla. v. Toffel, 2259

• Decision Date: 31 August 1962
• Docket Number: No. 2259,2259
• Citation: 145 So.2d 737
• Court: Florida District Court of Appeals
• Parties: TRUSTEES OF the INTERNAL IMPROVEMENT FUND OF the STATE OF FLORIDA, Appellants, v. Harry TOFFEL, Trustee, Appellee.

Page 737

145 So.2d 737

TRUSTEES OF the INTERNAL IMPROVEMENT FUND OF the STATE OF FLORIDA, Appellants, v. Harry TOFFEL, Trustee, Appellee.

No. 2259.

District Court of Appeal of Florida, Second District.

Aug. 31, 1962.

Rehearing Denied Oct, 26, 1962.

Richard W. Ervin, Atty. Gen., Edward S. Jaffry, Asst. Atty. Gen., Tallahassee, for appellants.

Pallot, Silver, Pallot, Stern & Mintz, Miami, for appellee.

KANNER, Judge.

The suit from which this appeal emerges was filed by appellee-plaintiff for the purpose of quieting his title to 386 acres of land as against claims interposed by the Trustees of the Internal Improvement Fund of Florida, appellants, and other defendants who have not appealed. The trustees seek review of the chancellor's final decree adverse to them.

In 1956, appellee had purchased over 1650 acres of certain wild and uninhabited lands in DeSoto County, Florida, for the sum of $292,000. These lands had descended through mesne conveyances to appellee from the State of Florida, which had acquired them under the Swamp and Overflowed Land Act of Congress of 1850 through Patent No. 9 dated November 6, 1856, issued to the State of Florida pursuant to the original survey known as the Irwin survey. The parcels of land bordered the west bank of the Peace River which had been meandered by Irwin in accordance with the 'General Instructions to Surveyors' dated November 3, 1842.

In 1939, sections 27 and 34 were caused to be resurveyed by the United States Government, and a survey plat entitled 'Dependent 'That certain tract of land bounded on the North by the North line of the said Section 27 extended in an Easterly direction to the high water mark of Peace River; bounded on the South by the South line of said Section 34 extended in an Easterly direction to the high water mark of Peace River; bounded on the West by the Easterly meander line of the U. S. Government Survey of said Sections 27 and 34 approved July 23, 1950; and bounded on the East by the high water mark of Peace River; less and except that portion thereof identified as Government Lots 8, 9 and 18.'

Resurvey and Extension Survey' was approved on April 17, 1942. The resurvey purported to correct certain deficiencies in the meander line of the Peace River upon which the property in controversy fronts and to establish title in the United States to a 386 acre tract, rectangular in shape, which comprises the entire riverfront area of appellee's land. This tract is bordered on the west by the meander line of the Irwin survey and on the east by the Peace River and runs from the north line of section 27 along the riverfront to the south line of section 34. By Patent No. 9 under the original survey whole fractional sections 27 and 34 were deeded to the State of Florida. Section 27 was divided into government lots 1 through 4; while section 34 was subdivided into government lots 1 and 2. It was these lots that were purchased by appellee. Subsequent to and under the resurvey, the United States Government issued Patent No. 1118121, dated March 17, 1944 to the State of Florida, conveying to it along with other lands the 386 acres of riverfront, except lots 8, 9, and 18 in section 27. The resurvey plat was first recorded in the DeSoto County public records on December 30, 1956, prior to the filing of this suit and two months after appellee had consummated his purchase. The property in controversy patented to the trustees is described as follows:

Named as defendants in the quiet title suit were the Trustees, contract purchasers, and the United States. The United States, it is asserted, was named as a party defendant for the purpose of quieting title to three lots numbered 8, 9, and 18 in section 27, not included in conveyance to the State in 1944. The United States filed a motion to dismiss for lack of jurisdiction. Appellee avers that his counsel advised that the motion was well founded, that the court would without doubt dismiss the complaint against the United States, and that the only practical method of quieting his title to lots 8, 9, and 18 was to acquire the claimed interest of the United States through compromise arrangement. He subsequently paid $5,872 for the asserted title of the United States in lots 9 and 18 at a public sale proceeding conducted by the federal government, but appellee emphasizes that at no time did he do anything more than purchase the alleged right, title, and interest of the United States in compromise and settlement of the disputed claim.

The lands involved, patented as swamp and overflowed lands, are generally wild and unimproved. During the proceedings, the chancellor, in the presence of counsel and the parties, viewed the property by boat and by truck so as to acquaint himself with the lands in question and the area as a whole.

Of considerable size, the record on appeal contains several hundred pages of testimony and numerous exhibits. The testimony includes that of lay witnesses, together with that of experts for the respective parties in such fields as surveying, engineering, and geology.

Evidence of appellee demonstrates, essentially, that the 386 acres lying east of the Irwin meander line along the shore of Peace River was 'swamp, muck, slimes, some sand bars, escarpment;' that the Peace River had in the past moved and shifted with considerable accretion through action of the river taking place after the running of the original meander line and In contrast, testimony for appellants demonstrates that the survey run by Irwin on the west bank of the Peace River had been extremely general, that the rather generalized run made by that surveyor was not consistent with the water currently present in the area, that the survey on the west bank of the Peace River did not show the demarcation between the Peace River valley and the high land as closely as did the survey of the east bank. Additional testimony was that there were wide variations between the topography of the area in question and the survey maps made from the 1849 survey, that many monuments recorded could not now be found, and that the meander line run in the 1849 survey was grossly erroneous in depicting the shore or bank of the river. Accretion since 1849 was credited through testimony on behalf of appellants as having been only a minor factor in accounting for the discrepancies noted between the meander line and the bank of Peace River. Rather, the effect of their testimony is that most of the accretion had occurred prior to 1849, although one of the expert witnesses expressed the belief that none of the property involved constituted accretion.

with the accreted soil adding to the quantity of land between the meander line and the river; and that the original meander line reasonably conformed to the probable high water mark of the Peace River as it existed in 1849. Further testimony was to the effect that the meander line run in the original survey in 1849 was not grossly erroneous compared to other meander lines of the time, that it conformed to the general instructions for surveyors in effect then, except for lots 8, 9, and 18 in section 27, and, by retracing of the meander lines run by Irwin, that those lines reflected Irwin's field notes and thus were not grossly erroneous.

The chancellor found that the meander line of the west bank of the Peace River in sections 27 and 34 as established by the 1849 Irwin survey was not grossly erroneous, that it did not constitute a fraudulent survey, and that the lands in sections 27 and 34 presently lying between that meander line on the west and Peace River on the east do not constitute lands omitted from the 1849 survey. He additionally found that the United States conveyed all the lands in those sections up to the high water mark of the west bank of Peace River through United States Swamp Patent No. 9, that the present boundary of plaintiff's property is the present high water mark of the west bank of Peace River. Other findings were that the channel of Peace River has constantly shifted throughout the Peace River valley, that the only area which does not constitute accretion is a described segment immediately east of Irwin's meander line, and that the appellee was owner of certain specified property but had failed to show any right by accretion or otherwise to other named property.

Appellants' theory of ownership under the resurvey goes back basically to their assertion of gross error in the meander line of the west bank of the Peace River as run by Irwin in the 1849 survey. Their evidence, they say, proves that line to have been grossly erroneous. Under this, they contend that if at the time of the Irwin survey there were lands lying between the erroneous meander line and the river bank, whether accreted lands or not, those lands were omitted and unsurveyed and title to them remained in the United States; and any accreted lands attaching to the unconveyed and omitted lands subsequent to the survey accreted to property belonging to the United States and so became property of the federal government, subject to later conveyance to the appellant trustees.

The gist of appellee's argument is that the evidence presented by him proves that the meander line of the Irwin survey was not grossly erroneous. He urges that the language of the original patent of 1856 therefore controls, since it conveyed all of sections 27 and 34 to the high water mark of the Peace River. According to appellee We direct our attention first to the basic contention of appellants that the meander line of the 1849 survey was grossly erroneous, for fundamentally this is the element which must be established in order for the United States to have retained ownership. In this respect, it is necessary that we take note of several significant principles of law.

the federal government thereafter had no undisposed of lands in those sections to resurvey, hence the patent issued pursuant to the resurvey attempted to impair his vested rights...