Trustees of Internal Imp. Fund v. Wetstone

• Citation: 222 So.2d 10
• Parties: TRUSTEES OF the INTERNAL IMPROVEMENT FUND of Florida, Petitioners, v. Julius WETSONE, Trustee, Respondent. No 37584.
• Decision Date: 26 March 1969
• Court: United States State Supreme Court of Florida

Page 10

222 So.2d 10

TRUSTEES OF the INTERNAL IMPROVEMENT FUND of Florida, Petitioners, v. Julius WETSONE, Trustee, Respondent.

No 37584.

Supreme Court of Florida.

March 26, 1969.

Rehearing Denied May 19, 1969.

Earl Faircloth, Atty. Gen., and J. Kenneth Ballinger, Asst. Atty. Gen., for petitioners.

Howard J. Rhoads, of Allen, Knudsen, Swantz, Richardson & DeBoest, Ft. Myers, for respondent.

ADKINS, Justice.

This cause is before the Court for review on conflict certiorari of the decision of the District Court of Appeal, Second District, reported in Trustees of the Internal Improvement Fund of Florida v. Julius Wetstone, Trustee, 209 So.2d 698.

The Respondent, Julius Wetstone, will be referred to as Plaintiff and the Petitioners, Trustees of the Internal Improvement Fund of Florida, will be referred to as Defendant.

Plaintiff filed a complaint for declaratory judgment seeking the determination of the boundary line that separated his ownership of Little Pine Island, hereinafter referred to as the 'Island,' from that of the Defendant in the surrounding sovereignty lands. The outer edges of the Island are heavily populated with mangrove swamp areas.

A government survey in 1875 by H. Jenkins meandered the outer limits of the Island. Thereafter, the State was granted a patent covering the Island, under the Swamp Lands Act, and Plaintiff acquired title through mesne conveyances. The description in the patent and each conveyance was by government lots.

Plaintiff had a bulkhead line established and applied to the Defendant for the purchase of all sovereignty lands lying between the bulkhead line and Plaintiff's land. At this point a dispute arose between Plaintiff and the Defendant Trustees as to the location of the line dividing the upland ownership of Plaintiff from the sovereign ownership of the Defendant Trustees. Plaintiff then filed his complaint seeking declaratory judgment, alleging the inability of a competent surveyor to locate any line on the ground as the mean high-tide line. Plaintiff sought to have the meander line declared as the boundary line and not the line of mean high-tide. Plaintiff also sought to confirm title in himself as against the Defendant Trustees to all lands within the meander line.

At the hearing, a reputable surveyor testified on behalf of Plaintiff. From his testimony it appears that the mean high-tide line subscribing the Island could not be located with any certainty, the allowance for error in its location varying from several hundred feet to a quarter of a mile. The nearest tide gauging station that gave a verticle reference point (i.e. the elevation of the plane of mean high-tide above the zero plane of the mean sea level bench marks) was eight miles away from the Island. This verticle reference point from which a surveyor would normally run his line would be compounded over the course of eight miles to create an excessive tolerance on the almost horizontal plane so that such tolerance would vary from several hundred feet to a quarter of a mile when it reached the Island. The mangrove lands were so gradual in their slope as to be almost flat. Also, there were soft spots and hard spots in the land so that a difference would result when the surveying rod was put down in one spot or another. From his examination of a U.S. Coast Guard survey of 1866--1867, the surveyor testified there had been no change in the edge of vegetation since 1866.

The surveyor also testified that determinations of mean high-tide elevation had generally been made for the purpose of navigation and not for the determination of land ownership.

By reference to the Jenkins' field notes and location of the section lines which were surveyed on the Island, the meander line as run by Jenkins can be located. The surveyor testified that the meander line extends bayward from the bulkhead line on approximately 20 per cent of the perimeter of the Island.

The original Federal survey showed the acreage within the government lots, sections and fractional sections as patented to the State. By the same description as it took title, the Defendant Trustees conveyed the Island to the first private owners and recited this same acreage in the deed. This acreage was based on the meander line as the boundary line and Plaintiff has paid taxes on approximately the same acreage.

The Defendant Trustees did not offer any evidence at the trial. The trial court declared the boundary line to be the meander line and confirmed title to the land lying interior to the meander line in the Plaintiff as against the Defendant Trustees. This judgment was affirmed by the District Court of Appeal. 209 So.2d 698 (Fla.App.2d Dist.)

Defendant Trustees petitioned this Court for certiorari claiming conflict with Lopez v. Smith (Fla.App.2d Dist.) 145 So.2d 509 and Pierce v. Warren (Fla.1950) 47 So.2d 857, in that the establishment of a meander line as a boundary line in the instant case would include areas of sovereignty lands and the Court could not validate a 1905 conveyance of such sovereignty lands by calling them swamp and overflowed lands. The Defendant Trustees did not have the authority to convey sovereignty lands prior to the enactment of Chapter 7304, Laws of Florida, Acts of 1917, Fla.Stats. (F.S.A.) Sec. 253.12 et seq.

Defendant's reliance on Lopez v. Smith, supra, is misplaced, as this case also arose out of the Second District. Conflicts of two decisions of the same District Court of Appeal cannot activate our conflict jurisdiction. Shaw v. Puleo (Fla.1964) 159 So.2d 641.

The question to be determined is whether, under the circumstances of this case, the meander line of the Jenkins' survey could be considered as a boundary separating the swamp and overflowed land from the sovereignty land. If the land involved was sovereignty land and was not swamp and overflowed land title could not be quieted and confined in the Plaintiff, as the Defendant Trustees at the time of their original conveyance had no authority to convey sovereignty lands. See Pierce v. Warren, supra.

The patent from the United States under the Swamp Land Act was made pursuant to instructions from the General Land Office of the United States describing lands which had been selected as 'swamp and overflowed lands.' The patent was dated December 17, 1879 and was based upon the government survey made by Jenkins in 1875.

American Law of Property, Volume III, Sec. 12.114, p. 436, (1952) discusses the purpose of the meander line in such a survey as follows:

'The meander lines established by the survey of the federal government were usually placed a short distance back from the water's edge, but sometimes they cut across small patches of water. No attempt was made to follow the minor sinuosities of the shore, and these lines were merely intended to mark the general contour and to enable the General Land Office to compute the acreage in the resulting government lots of which they should take cognizance in disposing of them.'

However, the same author recognizes certain exceptions,

'* * * when the boundaries of government lots appear from the plat of the survey to abut on a stream or a body of water which did not exist, or which is not located within what the courts have considered a reasonable distance from its indicated location, there is no natural object or monument to mark the boundary and resort must be had to the secondary evidence afforded by the courses and distances of the meander line as outlined on the plat and described in the field notes. This has the effect of making the meander line in a relatively small number of cases the boundary line of the government lots thus affected.'

Public officers in making sales by necessary implication may make the meander line the boundary line. See 11 C.J.S. Boundaries § 30, pp. 574--575.

The Florida Court has also recognized situations in which the meander line of an official survey would constitute a boundary. The Court in South Florida Farms Company v. Goodno, 84 Fla. 532, 94 So. 672 (1922) said:

'The rule of general application is that, where a patent to public land refers to the field notes and plats of an official survey, which field notes and plats show that the land is bounded by a permanent body of water, and that in making the official survey the waters were in fact faithfully meandered, the water line, and not the meander line, is in general the boundary. * * * But where an official survey meanders not a permanent body of water, but low marsh or similar lands that are adjacent to other lands being surveyed, the meander line is the boundary.'

See also 3 F.L.P. Boundaries, § 16.

This Court has previously been confronted with the problem of determining the ordinary high-water mark where peculiar topographical features were involved. In Martin v. Busch, 93 Fla. 535, 112 So. 274 (1927), the ordinary high-water mark around Lake Okeechobee could not be located because of topography unique to that area. The Court pointed out that the State owned the beds of all navigable lakes to ordinary high-water mark, however shallow the water may be at the outside lines or elsewhere, if the water is in fact a part of the particular lake that is navigable for useful purposes. The Court then said:

'In flat territory or because of peculiar conditions, there may be little if any shore to navigable waters, or the elevation may be slight and the water at the outer edges may be shallow and affected by vegetable growth or other conditions, and the line of ordinary high-water mark may be difficult of accurate ascertainment; but, when the duty of determining the line of high-water mark is imposed or assumed, the best evidence attainable and the best methods available should be utilized in determining and establishing the line of true ordinary high-water mark, whether it is done by general or special meandering or by particular surveys of adjacent land. Marks upon the ground or upon local objects that are more or less permanent may...