United States v. 295.90 ACRES OF LAND, ETC., CTY. OF LEE, FLA.

• Decision Date: 03 January 1974
• Docket Number: No. 71-12-Civ-FtM-H.,71-12-Civ-FtM-H.
• Parties: UNITED STATES of America, Plaintiff, v. 295.90 ACRES OF LAND, MORE OR LESS, IN the COUNTY OF LEE, STATE OF FLORIDA, and Carl A. Norberg, et al., Defendants.
• Court: U.S. District Court — Middle District of Florida

368 F. Supp. 1301

UNITED STATES of America, Plaintiff, v. 295.90 ACRES OF LAND, MORE OR LESS, IN the COUNTY OF LEE, STATE OF FLORIDA, and Carl A. Norberg, et al., Defendants.

No. 71-12-Civ-FtM-H.

United States District Court, M. D. Florida, Fort Myers Division.

January 3, 1974.

Ronald H. Watson, Asst. U. S. Atty., Tampa, Fla., for plaintiff.

Morris E. White, of Fowler, White, Gillen, Humkey, Kinney & Boggs, James B. McDonough, Jr., of Macfarlane, Ferguson, Allison & Kelly, Leslie Scharf, of Trenam, Simmons, Kemker, Scharf & Barkin, Tampa, Fla., for defendants.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

HODGES, District Judge.

This is an eminent domain proceeding instituted by the Government to acquire certain lands on Sanibel Island, Lee County, Florida, to be used as a part of the J. N. "Ding" Darling National Wildlife Refuge.

Portions of the lands being condemned were designated in the Government's Complaint and Declaration of Taking as Tracts 25 and 25-I. These are contiguous parcels comprising, in the aggregate, approximately 33.41 acres. Various parties were identified as owners or potential claimants to those Tracts, and all appeared and filed their claims or answers.¹

On July 21, 1972, the Government filed a Motion For Title Hearing in advance of the jury trial. Following a study of the motion and the positions of the respective parties, Judge Krentzman entered an order on January 10, 1973, finding that a genuine issue existed concerning the status of title to Tracts 25 and 25-I, and that such issue should be resolved by conducting an evidentiary title hearing prior to the jury trial to be held on the issue of just compensation. Accordingly, the hearing was scheduled before the undersigned in Fort Myers on April 16 and 17, 1973. Each side presented witnesses and documentary evidence, as well as post-hearing briefs; and the Court has since enjoyed the benefit of argument by counsel at a subsequent hearing conducted on December 18, 1973.

Stated as succinctly as possible, the issue presented is whether the Government already owned a major portion of the subject lands prior to the institution of this suit.

Originally, of course, title to most of Florida, including the subject property in particular, was ceded to the United States by virtue of the treaty with Spain in 1821 (8 Stat. 252). See, State ex rel. Town of Crescent City v. Holland, 151 Fla. 806, 10 So.2d 577 (1942); 26 Fla.Jur., Public Lands, § 3 (1959). Subsequently, in 1875, pursuant to a contract with the Surveyor General, one Horatio Jenkins undertook to survey a number of townships in what is now the Charlotte Harbor-Lee County area, including Sanibel Island.² Jenkins' field notes were used to prepare the official maps or plats of the area as ultimately filed in the General Land Office of the United States, and those plats, in turn, formed the basis of the legal description of the lands in the area as thereafter conveyed by Government patents.

The property involved in this case — Tracts 25 and 25-I — lies within fractional Section 18 of Township 46 South, Range 22 East, as surveyed by Jenkins. Section 18 is a fractional section because the Jenkins plat shows a meandered body of water in the section resulting in irregularly shaped parcels of upland designated lots 1 through 7 as follows:

Tracts 25 and 25-I include a portion of (and are otherwise associated with) Government Lot 7 as depicted above. That lot was initially patented and conveyed into private ownership by the United States in 1897, and the Claimants in this suit deraign their title from that patent.

The parties are largely in agreement concerning the factual background recited thus far. The dispute that does exist arises from the fact that substantial discrepancies appear when any attempt is made to apply the Jenkins survey and plat to the land as it actually exists today. Indeed, the evidence is plain that Jenkins' work has been a source of confusion and uncertainty for many years among surveyors, title attorneys and others working with real estate descriptions on Sanibel Island. Thus, on January 2, 1968, the Bureau of Sport Fisheries and Wildlife of the Department of The Interior entered into a contract with Carl E. Johnson, Inc., a firm of registered land surveyors in Fort Myers, for the purpose of surveying and establishing boundary lines between public and private ownerships in Township 46 South, Range 22 East.³ The result of the Johnson survey was to form the basis of a deed from the State of Florida to the United States conveying state owned or sovereignty lands and water bottom in that Township as an addition to the refuge. The description of the work as set forth in the contract with Johnson was as follows:

"The work consists of the location, survey, monumentation and marking of continuous boundary lines, separating private lands, and accretion appurtenant thereto, from the lands and water bottoms being acquired from the State, and public lands of the United States now a part of the refuge. . . ." (Emphasis supplied).

Accordingly, when it was ascertained in the field that upland existed where water bottom was shown on the Jenkins' survey and plat (i. e., in areas lying beyond the Jenkins meander line), the Johnson firm allocated or prorated this land as apparent "accretion", one-half to the South ownership and one-half to the North ownership.⁴

The Johnson survey and plat was approved by the Regional Director of the Bureau of Sport Fisheries and Wildlife of the Department of The Interior; and on March 21, 1969, it was also approved and filed as an official plat by the Director of the Trustees of The Internal Improvement Fund of the State of Florida. See Florida Statute 253.031, F.S. A., (1971). Thereafter, on January 30, 1970, the State conveyed its interests in Section 18 to the United States by metes-and-bounds descriptions based upon the Johnson survey; and, in the meantime, private transactions involving property in the area also utilized the Johnson survey for purposes of description.

When this suit was filed the Government further utilized the Johnson survey in delineating the lands being taken, including Tracts 25 and 25-I. Those Tracts were described as that part of Lot 7, Section 18, Township 46 South, Range 22 East, "lying north of the centerline of Sanibel-Captiva Road, and apparent accretion thereto, more particularly described as follows" metes and bounds. As so described, Tracts 25 and 25-I consist of 33.41 acres, all of which, except for 2.76 acres, was land accreted to Lot 7 by the Johnson survey. That is, 30.65 acres of the land within those Tracts was shown as water bottom by Jenkins, lying beyond his meander line as the apparent boundary of Lot 7. An outline of Tracts 25 and 25-I, superimposed upon Jenkins' survey of Section 18 (as depicted earlier), would roughly appear as follows:

The southern boundary of Tracts 25 and 25-I as shown on the diagram generally coincides with the Sanibel-Captiva Road. That portion to the south of the road, shown as water by Jenkins, was also accreted as land to Lot 7 by Johnson, but still appears as water on this diagram because it is not included in Tracts 25 and 25-I, and is not involved in this case. The triangular tip of Jenkins' Lot 7 protruding into the Tracts is approximately 2.76 acres, and that is the portion conceded by the Government to be owned by the Claimants. The remainder of the Tracts, approximately 30.65 acres, is the area in dispute. The Government claims title to that area on the basis of the following theory.

It first concedes, as a general rule, that when lands are patented according to an official survey showing meander lines along a body of water, any excess land is apportioned to the patentee and his title is extended to the waters' edge in accordance with the intent of the surveyor in making the shoreline one of the calls of the description. Mitchell v. Smale, 140 U.S. 406, 11 S.Ct. 819, 35 L.Ed. 442 (1891); Producers Oil Co. v. Hanzen, 238 U.S. 325, 35 S.Ct. 755, 59 L.Ed. 1330 (1915). The Government contends, however, that this case is within an exception to that rule; namely, that where a meander line is shown to be a gross error tantamount to fraud because no water ever existed at or near the place indicated, then any land beyond the meander line is to be treated as unsurveyed land, title to which remains in the Government. Lee Wilson & Co. v. United States, 245 U.S. 24, 38 S.Ct. 21, 62 L.Ed. 128 (1917); Jeems Bayou Fishing & Hunting Club v. United States, 260 U.S. 561, 43 S.Ct. 205, 67 L.Ed. 402 (1923). The Claimants join issue and contend, on the other hand, that the facts and circumstances of this case place it within the general rule, not the exception, relying primarily upon United States v. Lane, 260 U.S. 662, 43 S.Ct. 236, 67 L.Ed. 448 (1923), and Internal Improvement Fund of the State of Florida v. Nowak, 401 F.2d 708 (5th Cir. 1968). Resolution of the case largely depends, therefore, upon analysis of these authorities, particularly the relationship between the Jeems Bayou and Lane decisions. Before embarking upon that analysis, however, some additional observations and findings must be made concerning the facts.

The Government marshaled an impressive array of witnesses and exhibits tending to prove that Tracts 25 and 25-I existed in their present state as upland in 1875 at the time of Jenkins' survey, and that his meander line was and is wholly inexplicable. On their side, the Claimants skillfully endeavored to show a number of possible explanations for the apparent discrepancy, all leading to the conclusion that Section 18 did encompass a body of water or mangrove swamp subject to the ebb and flow of the tide, so that Jenkins' meander line, albeit inaccurate, cannot under all the circumstances be characterized as such a gross and palpable error as to constitute a fraud upon the Government.⁵ For its part, the Court is persuaded that the 33.41 acres of land now...