United States v. Norton
| Decision Date | 23 June 1926 |
| Docket Number | No. 2085.,2085. |
| Citation | 14 F.2d 184 |
| Parties | UNITED STATES v. NORTON. |
| Court | U.S. District Court — Southern District of Florida |
H. L. Underwood, of Washington, D. C., for the United States.
Chas R. Pierce, of Miami, Fla., for defendant.
This is an action in ejectment, brought in the name of the United States against Lewis G. Norton, defendant, and seeks to recover from Norton the possession of a certain tract of land in Dade county, Fla., known and described as lot 7, section 2, township 53 south, range 43 east, Tallahassee meridian, containing 41.95 acres. The declaration is in the usual statutory form, and the defendant has filed thereto an equitable answer in accordance with the provisions of the Act of Congress of March 3, 1915. Section 274b of the Judicial Code (Comp. St. § 1251b). Trial was had before the court without a jury upon the issues so joined.
The equitable defense set up is to the effect that the defendant is the owner of the equitable title to the lands, and is entitled to retain possession thereof until permitted by the government authorities to perfect the legal title thereto under the homestead laws, or until patents issue from the United States to the parties who subsequently purchased these lands at a townsite sale thereof, and for a reasonable time thereafter, in order to afford Norton time to assert his alleged rights against the holders of these prospective patents in a proper suit in equity. The defense so set up is predicated upon the following facts, alleged in the answer and sustained by the testimony:
In 1875 the United States withdrew from the public lands for use for life-saving purposes 10 acres fronting on the Atlantic Ocean in lot 6, section 2, township 53 south, range 43 east, Tallahassee meridian, in Dade county, Fla. On April 6-10, 1891, a further order, withdrawing "from all forms of disposal" the whole of said lot 6, was made. Some time after 1875 the government established at this point a life-saving station and built a house of refuge, which has been and now is in charge of an employee or officer of the Coast Guard Service. This house of refuge was to have been built upon that portion of lot 6 previously withdrawn for that purpose. It subsequently developed that a mistake in the location was made, and the house of refuge was south of lot 6, and on property not owned by the United States.
In April, 1920, Lewis G. Norton, the defendant in this case, learned that lot 6, which had previously been assessed by the tax assessor of Dade county as the property of one Field, was not owned by Field, but was the property of the United States. Acting upon this information, Norton, about April 15, 1920, settled upon lot 6 aforesaid, erected a substantial dwelling house and outbuildings thereon, proceeded to clear and cultivate the land, which at that time was covered with dense tropical growth and was the habitat of wild animals and mosquitoes. After the erection of the house and outbuildings, he moved onto the land with his family and made it his home, with the intention of acquiring title thereto under the homestead laws. Acting upon this intent, in June, 1920, the defendant, Norton, made formal application to the register of the United States land office at Gainesville, Fla., to enter this lot 6 as his homestead. It then developed, and was subsequently brought to his attention, that all of lot 6 had been withdrawn from the public lands, as above stated, and was not subject to homestead entry. For this reason the application of Norton was rejected by the register, and upon appeal to the Commissioner of the General Land Office the rejection was upheld.
In the meantime Norton visited Washington and took up with officials there the fact of his settlement upon these lands, for the purpose of ascertaining if it might be possible for him in some way to perfect his title. As a result of the activities of Norton, and upon a protest filed by him, a prior claim filed by the state of Florida, covering this lot 6 under the Swamp and Overflowed Land Grant Act, was canceled by the Commissioner of the General Land Office, upon a showing that the lands were not swamp or overflowed, which rejection became final.
As a further result of Norton's efforts in Washington, the Secretary of the Treasury decided that the Coast Guard Service did not require this entire lot for its purposes and so advised the President of the United States, and requested that a proclamation be issued withdrawing the south 500 feet of this lot for Coast Guard purposes, and restoring the balance of the lot to the public domain. This was concurred in by the Secretary of the Interior, and under date of March 11, 1921, the President issued a proclamation permanently withdrawing, for purposes of the Coast Guard Service, the south 500 feet of lot 6, and restoring to the public domain, "subject to the public land laws of the United States and to the jurisdiction of the Interior Department," the balance of said lot 6.
Upon the promulgation of this proclamation, Norton returned to Florida, and on March 14, 1921, moved his dwelling house and outbuildings, which were on the south 500 feet of lot 6, to the north portion of this lot, which had been restored to the public domain by the proclamation of the President, at the same time filing a relinquishment of all claims he might have to the south 500 feet of this lot, onto which the Coast Guard Service moved its house of refuge. Norton proceeded to improve the property so settled upon by him, and by June 10, 1921, had cleared 12 acres of the land, and had planted approximately 10 acres to fruit and vegetables. On March 14, 1921, he filed an application with the register at Gainesville, Fla., to homestead this restored portion of lot 6, and his attorney at the same time applied to the Commissioner of the General Land Office for the immediate protraction on the official plat of the line dividing that portion of lot 6 restored to the public domain from that permanently reserved, in order that Norton might make proper application for homestead entry.
The Commissioner of the General Land Office replied, under date of March 23, 1921, that an order had already been made, "providing for the marking upon the ground of said lot * * * needed to be reserved for life-saving purposes, * * * so that a plat might be constructed showing the areas of the lot needed and not needed for life saving purposes." The survey referred to was made on the ground by the United States on or about May 14, 1921, and the plat thereof was approved by the Commissioner of the General Land Office May 24, 1922, and a copy thereof transmitted to the register of the land office at Gainesville, Fla., under date of June 16, 1922. This plat shows original lot 6 as lots 7 and 8; lot 7 being that portion restored to the public domain (and the basis of this suit), and lot 8 being that portion reserved by proclamation of March 11, 1921, for Coast Guard purposes.
Under date of May 9, 1921, the Commissioner of the General Land Office brought the second homestead application of Norton to the attention of the Secretary of the Interior, suggesting the lands were valuable as town lots, mentioning an offer of $30,000 had been made for same, referring to a report that the lands were in no way suitable for agricultural purposes, and suggesting that same had been improvidently restored to the public domain. The homestead application of Norton was rejected, and on June 10, 1921, the President of the United States issued an executive order withdrawing for townsite purposes lands in lot 6 (now lot 7) restored to the public domain by proclamation of March 11, 1921. This order was issued under the provisions of section 2380, U. S. Revised Statutes, and also sets forth that said lands were to be disposed of under section 2381 of said Revised Statutes.
Under this executive order another survey was made, dividing that portion of lot 6 (now lot 7) upon which Norton had settled into town lots, and in February, 1924, a public sale of these townsite lots, after being duly advertised, was held, and the lots, or a great number of them, were sold to the highest bidder. Norton had posted notice of his claim to this land and was in actual possession at the time of the sale.
No patents have issued to any of the purchasers at this townsite sale, and none of them have taken any steps to obtain possession of the lots so purchased, and Norton has been since March 14, 1921, and still remains, in actual possession of lot 7, cultivating same as far as he can without interfering with the lot stakes put down by the plaintiff, and making the same his home and that of his family. Norton at all times has been qualified in every way to acquire lands under the land laws of the United States. The land in controversy is adapted to agriculture, and Norton has produced thereon fruits and vegetables, constituting a valuable marketable crop, and similar crops are produced upon the same kind of land by others in this locality.
The land in controversy is not on the shore of any harbor, is not at the junction of any rivers, and is not located at any important portage. The only house within 2½ miles to the south is the house of refuge of the Coast Guard Service, and there is no house for many miles to the north. The Atlantic Ocean is to the east and Biscayne Bay to the west. It is stipulated by the parties to this suit that the legal title to the land in question is in the United States, and that the defendant Norton has been in possession thereof since April, 1920.
The plaintiff contends: First, that Norton's original settlement of the lands while under withdrawal was a trespass, and no rights could flow therefrom; second, that, if any rights could flow therefrom, they are only inchoate, and cannot prevail against the right of the United States to subsequently sell the lands under the townsite law.
While Norton makes no claim under his original settlement upon these...
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