108 Fla. 46 | Fla. | 1933
This is an appeal by the defendants in the court below from an order sustaining a motion interposed by the complainant to strike that portion of the defendant's answer which alleged grounds for affirmative relief.
The complainant, the Peninsular Terminal Company, filed its bill in the Circuit Court for Dade County to foreclose a purchase money contract. The bill alleged that the complainant was the owner in fee simple of Lot 19 of Block 1, according to a designated and duly recorded plat of the Harbor Terminal Property of the Peninsular Terminal Company, and that on February 24th, 1926, the complainant and defendant entered into a sales contract with defendant Pembroke, attached as an exhibit to the bill, whereby the complainant, for and in consideration of a cash payment of $3,300.00, and the execution by the defendant of three notes for $3,300.00 each, payable six, twelve and eighteen months after date, bearing interest at seven per cent. payable semi-annually, sold said lot to the defendant under certain restrictions set out in the contract, and agreed to make and deliver to defendant a good and sufficient warranty deed of conveyance to said land upon the payment of the balance due as represented by said three notes. That the first and second of said promissory notes, together with interest thereon, had been paid; but that the defendant had failed to pay the last of said notes, which became due and payable August 24th, 1927. The bill was filed July 20th, 1928. It alleged performance of all provisions of the contract on the part of the complainant and that complainant stood ready, able and willing to convey said land by good and sufficient warranty deed to the defendant upon his compliance with the contract; that the defendant's wife claimed some interest in the land, and was therefore made a party defendant. The bill prayed that the defendants be decreed to pay to the complainant *49 the amount found by the court to be due it, and that in default of such payment all the right, title and interest of defendants be sold to satisfy the balance so found to be due.
The answer of the defendants admitted substantially all the factual allegations of the bill except those setting up the complainant's ownership of the land in fee simple, and that it was able to convey the fee therein, by good and sufficient warranty deed, to the defendant, Andrew J. Pembroke, unencumbered.
That portion of the answer which was stricken made certain allegations hereinafter referred to, and prayed that the contract be rescinded, held void and of no effect, and that the defendants be held entitled to recover from complainant all moneys paid to it thereunder, with interest. The allegations of the answer upon which this prayer was predicated were, briefly stated, as follows: That the real estate described in the bill is a part of a tract of what was, on August 6th, 1920, submerged bay bottom land, under the navigable waters of Biscayne Bay, to which the complainant claims title by virtue of a deed made to its immediate grantor, the Alton Beach Realty Company, on August 6th, 1920, by the Trustees of the Internal Improvement Fund of the State of Florida, and which was in turn conveyed to the complainant by deed dated April 18th, 1921, both deeds having been duly recorded. That complainant does not have or claim title through any other source. The answer then attacks the validity of the complainant's title upon the following grounds:
(1) That the conveyance to the complainant's grantor was made by the Trustees of the Internal Improvement Fund by virtue of the authority vested in them by Chapter 7304 of the Acts of 1917, being Sections 1061 and 1062, et seq., of the Revised General Statutes of 1920, and now appearing as Section 1391 and 1392, et seq., of the Compiled *50 General Laws of 1927. It is contended that these statutes are void, because, firstly, they are unconstitutional, and secondly, they are void as being in conflict with the trust under which the State held these lands for the use of all the people of the State for purposes of navigation, fishing and other useful purposes afforded by the waters covering them in common to and for all the people of the State; thirdly, because they are in conflict with the paramount jurisdiction of the Federal Government over navigable waters.
(2) That if the said sections of the statutes be valid, the deed from the trustees was and is void because, at the time said deed was made, the area in question was submerged "practically throughout its entirety" to a greater depth than three feet at high tide by the navigable waters of Biscayne Bay, in spite of the preamble in the deed which recites that the lands conveyed are lands "upon which the water is not more than three feet deep at high tide and which are separated from the shores by channel or channels not less than five feet deep at high tide;" that there were at the time of the conveyance, no appreciable areas within the boundaries attempted to be defined upon which the water was not more than three feet deep at high tide, thus rendering the deed void in toto. (It does not appear to be directly alleged that this particular lot, purchased by appellant, was situated on land which was covered by more than three feet of water at high tide at the time of the conveyance by the Trustees.)
(3) That if the said statutes and Trustee's deed be valid, the complainant cannot convey an unencumbered title, because of the general power of the Federal Government to remove obstructions to navigation which have been constructed in or over navigable waters; and for the further reason that in the permit to construct the island, issued to complainant by the Secretary of War, on April 17th, 1924, *51 granting authority, inter alia, "to excavate an area at the entrance to Miami Harbor, Florida, approximately to rock bottom, to construct a levee, bulkhead and wharf; to dredge a channel and turning basin; to dredge and fill two ship basins, and to deposit the dredged material in an area westerly and southerly of the United States Property at Miami Beach," there was incorporated a paragraph providing "That if future operations of the United States require an alteration in the position of the structure or work herein authorized, or if, in the opinion of the Secretary of War, it shall cause unreasonable obstruction to the free navigation of said water, the owner will be required, upon due notice from the Secretary of War, to remove or alter the structural work or obstructions caused thereby without expense to the United States, so as to render navigation reasonably free, easy and unobstructed." Defendants allege that this permit from the Secretary of War, under which this tract of submerged land was bulkheaded and filled in (and subsequently platted into blocks and lots as the "Commercial Subdivision of the Harbor Terminal Property of the Peninsular Terminal Company)" was a mere license, revocable at the will of the Secretary of War.
In his order striking those portions of the answer above summarized the learned chancellor embraced an opinion in which he clearly and concisely stated his views on the questions raised, as follows:
1. "That the Chancellor to whom this cause was submitted, by reason of his continuous residence in Miami, Florida, since 1897, should take judicial notice of well known physical changes that have occurred in Biscayne Bay during said period; that two causeways have been constructed across said Bay connecting the City of Miami with the City of Miami Beach; and that various islands have *52 been constructed in the Bay and connected with the said two causeways, which said islands have been improved by the construction of paved streets, by planting trees and shrubbery, and by the erection of numerous buildings now occupied by the owners as residences.
2. "That the said two causeways and islands have been constructed under circumstances similar to the island upon which the lot in question is located, and that the possession, title, and ownership of such parties will be affected by the decision in the present case.
3. "That Defendants are estopped, by reason of their contract to purchase the lot in question, from disputing the title and ownership of Complainant in the lands upon which foreclosure is sought by Complainant's Bill.
4. "The Court being of the opinion, for the purposes of this case, that the title and ownership of the land in question should rest upon a grant, and not upon an evidentiary fact, finds that the deed from the Trustees of the Internal Improvement Fund to the purchasers of the submerged lands in Biscayne Bay, upon which the island now in question was constructed, was and is an adjudication that such submerged lands were of the kind and character contemplated by Section 1386, et seq., Compiled General Laws of Florida, 1927; and that all requirements of law were complied with on the part of the Trustees and the purchaser before such deed of conveyance was executed and delivered.
5. "That from and after the execution and delivery of such deed, and the construction of the island upon the submerged lands embraced within the said deed, that the State of Florida, acting through the Trustees of the Internal Improvement Fund, and all other persons, are estopped from asserting any right or claim to the lands embraced within *53 the limits of such island as sovereignty lands incapable of being reduced to private ownership. But on the contrary, the Court holds that under such circumstances the grantee in such deed, and the successors in title, become the bona fide owner, or owners, of such real property in like manner and under the same circumstances as the purchasers of other state lands.
6. "It appears from the Answer that a permit was obtained from the War Department of the United States Government to construct the island in question. It may be fairly assumed, that before such permit issued, plans and specifications of the proposed improvement were submitted to the proper officers of the Federal Government, and that such plans and specifications would show that the improvement contemplated was a permanent improvement, was not an obstruction, and was for the benefit of commerce and navigation. The United States, having no claim of title to submerged land, and having control only of the surface of the waters of the harbor, and having granted the permit, notwithstanding the reservation contained therein as alleged in the Answer, would likewise be estopped from demanding the removal of the island as an obstruction to navigation, and would be without authority to interfere with the possession of the owners except by condemnation proceedings, or in case of military necessity, with due compensation to the owners."
The chancellor's opinion plainly shows the gravity and importance of the questions involved in this case. Whether his conclusions, and the order made in pursuance thereof, were sound in law, it is now our task to consider. The mere importance of the case does not affect the application of legal principles. In determining these questions, grave and far reaching as they may be in their effect upon the *54 titles to other properties, we must of course, "hew to the line" of the law as we find it and understand it to be, as applied to the property and the questions involved in this particular case, "let the chips fall where they may." But in the decision of any particular case, the courts must be careful to act in accordance with sound legal principles, so that the particular decision will not only correctly define and apply the law to the particular case, but will also furnish a safe and just precedent and guide to be followed in similar cases which may arise in the future. There is food for thought, for courts as well as individuals, in Kant's categorical imperative: "Act on a maxim which thou canst will to be law universal." We will in this spirit now proceed to examine the questions here presented in the order in which they are stated in our summary of appellant's answer.
I. The first contention of the appellant is that Sections 1391 and 1392, Compiled General Laws, derived from an Act adopted in 1917, are void by reason of being (1) unconstitutional and (2) in conflict with the trust doctrine frequently enunciated by this Court, citing Broward v. Mabry,
Those sections of the Act of 1917 here under attack are set forth in the Compiled General Laws of 1927 (Sections 1391-2) and are also copied in full in the opinion written for this Court by Circuit Judge Campbell in the case of Deering v. Martin, on pages 229-230 of 95 Fla., and on page 57 of 116 So.
So far as the Constitution of this State is concerned, as was pointed out by this Court, speaking through the majority *55
opinion written by Mr. Justice ELLIS in the case of State ex rel. Buford v. City of Tampa,
But appellants further contend that the statute violates Section 2 of the Declaration of Rights contained in our State Constitution, which declares that "the paramount allegiance of every citizen is due to the Federal Government." The words quoted, as they appear in the Constitution are immediately followed by the words, "and the people of this State have no power to dissolve its connection therewith." This clause made its first appearance in the Constitution of 1868, which was adopted during the reconstruction period. Its purpose was evidently to settle, by constitutional mandate, the great controversy over the question of whether a State had the right to secede, which question had apparently been settled by the arbitrament of war. So, under historical conditions which it is not necessary now to discuss, this clause was inserted in the Constitution of 1868, so as to make it certain that the people of this State should never again have, or claim, the right to meet in convention assembled and adopt an ordinance of secession, dissolving *56 the connection between the State and Federal Governments. This was the evident purpose and intent of this clause and though it was carried forward into the Constitution of 1885, it is practically innocuous for any other purpose. The argument of appellants is that this clause is equivalent to a declaration that the Federal Constitution, and the valid laws enacted by Congress in pursuance thereof, are in full force and effect in this State. This, they admit, would be true without such clause. The Federal Constitution and the laws enacted in pursuance thereof, within the powers delegated to the Federal Government by the Constitution, are of course, by the very words of the Federal Constitution as originally adopted, "the Supreme law of the land." The argument then proceeds that the State Constitution having made this express declaration, the State Legislature is inhibited from passing any law contravening a Federal law, and that when the statute here in question was adopted there was in effect in this State not only the commerce clause of the Federal Constitution, giving complete jurisdiction over all the navigable waters of the State, but the Federal statute of March 3rd, 1899, whereby the Federal Government actually assumed such jurisdiction, and that therefore the Florida Legislature had no authority to pass the statute here under attack, authorizing the sale of land under navigable waters, and that such statute is void, as being in conflict with the Federal Constitution and an Act of Congress passed under its authority. This contention, as applied to the State statute here under review, as we understand its purpose and scope, is not sustained by the decisions of this State, nor by those of The Supreme Court of the United States.
Those sections of the Federal Act of March 3rd, 1899 (which was an appropriation Act covering many pages) which are referred to in the briefs, and which are the only *57 sections of that Act which appear to have any bearing on the questions now before us, are Sections 9 and 10, which will be found in U.S. Stat. at large p. 1151; U.S. Code Anno., 377, 397; U.S. Comp. Stat., Sections 9971, 9910; and read as follows:
"Sec. 9. That it shall not be lawful to construct or commence the construction of any bridge, dam, dike, or causeway over or in any port, roadstead, haven, harbor, canal, navigable river, or other navigable water of the United States until the consent of Congress to the building of such structures shall have been obtained and until the plans for the same shall have been submitted to and approved by the Chief of Engineers and by the Secretary of War: Provided, That such structures may be built under authority of the Legislature of a State across rivers and other waterways the navigable portions of which lie wholly within the limits of a single State, provided the location and plans thereof are submitted to and approved by the Chief of Engineers and by the Secretary of War before construction is commenced: And provided further, That when plans for any bridge or other structure have been approved by the Chief of Engineers and by the Secretary of War, it shall not be lawful to deviate from such plans either before or after completion of the structure unless the modification of said plans has previously been submitted to and received the approval of the Chief of Engineers and of the Secretary of War.
"Sec. 10. That the creation of any obstruction not affirmatively authorized by Congress, to the navigable capacity of any of the waters of the United States is hereby prohibited; and it shall not be lawful to build or commence the building of any wharf, pier, dolphin, boom, weir, breakwater, bulkhead, jetty, or other structures in any port, *58 roadstead, haven, harbor, canal, navigable river, or other water of the United States, outside established harbor lines, or where no harbor lines have been established, except on plans recommended by the Chief of Engineers and authorized by the Secretary of War; and it shall not be lawful to excavate or fill, or in any manner to alter or modify the course, location, condition, or capacity of, any port, roadstead, haven, harbor, canal, lake, harbor of refuge, or inclosure, within the limits of any breakwater, or of the channel of any navigable water of the United States, unless the work has been recommended by the Chief of Engineers and authorized by the Secretary of War prior to beginning the same."
The power of Congress to pass such a statute rests upon the commerce clause of the Federal Constitution, embraced in Section 8 of Article I, and which reads as follows: "The Congress shall have power * * * to regulate commerce with foreign nations, and among the several States, and with the Indian Tribes." The Tenth amendment to that Constitution provides that "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
While the commerce clause of the Federal Constitution has proven to be a vital and far-reaching provision, yet, as was said in Deering v. Martin, supra, in the concurring opinion by the writer, "Federal control of navigable waters is limited in its scope, and leaves much of the authority of the States thereover untouched." This is all the more true as to the lands under such waters, as has been made plain by many decisions of this Court. Thus, in State ex rel. Ellis, v. Gerbing,
"The original thirteen States that formed the Federal Union as the United States of America, were distinct and independent sovereignties, and as such severally owned and held in trust for the whole people within their respective borders, the navigable waters in the States and the lands thereunder including the shore or land between high and low water marks. Proprietary rights in the lands of this character within the States were not passed to the United States by the Federal Constitution under which the Union was founded, and no power to dispose of such lands was delegated to the United States, therefore all proprietary rights in and power to dispose of lands under navigable waters in the States including the shore between high and low water marks were reserved to the States severally or to the people thereof. The powers of the United States as to matters of navigation; interstate and foreign commerce, post roads and eminent domain are not pertinent here.
"The navigable waters in the States and the lands under such waters including the shore or lands between ordinary high and low water marks, are the property of the States or of the people of the States in their united or sovereign capacity, and are held not for the purposes of sale or conversion into other values, or reduction into several or individual ownership, but for the use of all the people of the States respectively, for purposes of navigation, commerce, fishing and other useful purposes afforded by the waters in common to and for the people of the States. The title to the lands of this character were withheld by the original States of this Union as essential to the sovereignty of the States, to the welfare of the people of the States and to the proper exercise of the police powers of the States. A State may make limited disposition of portions of such lands or of the use thereof in the interest of the public welfare, *60 where the rights of the whole people of the State as to navigation and other uses of the waters are not materially impaired. The States cannot abdicate general control over such lands and the waters thereon, since such abdication would be inconsistent with the implied legal duty of the States to preserve and control such lands and the waters thereon and the use of them for the public good."
* * *
"After the United States acquired by treaty of cession from Spain the territory known as East and West Florida, such territory was held subject to the Constitution and laws of the United States. The lands under navigable waters including the shores were held by the United States for the benefit of the whole people to go to the future State for the use of the whole people of the State."
* * *
"The admission of the State of Florida 'into the Union on equal footing with the original States, in all respects whatsoever,' gave to the State of Florida all rights and powers as to property and sovereignty possessed by the original States of the Union, except such as were withheld by the Act admitting the State.
"Among the rights thus acquired by the State of Florida is the right to own and hold the lands under navigable waters within the State including the shores or space between ordinary high and low water marks, for the benefit of the people of the State, as such right is as essential to the sovereignty, to the complete exercise of police powers and to the welfare of the people of the new States as of the original States of the Union. Shivley v. Bowlby,
In Deering v. Martin, supra, it was held that the trust doctrine, with reference to lands under navigable waters, cannot, on principle, be carried to such an extent as to preclude the State from transferring to private ownership limited portions of such lands when the rights of the people of the State are not invaded or impaired.
Of course, the title of the State to such submerged lands is held subject to the paramount power of Congress under the Constitution to regulate interstate and international commerce, and navigation necessary thereto, and when any portions of such lands are conveyed by the State, they must necessarily, by operation of law, be conveyed subject to such Federal power. This is well known and well settled law, and hardly calls for any citations of authority. This principle is recognized by many of our own decisions, as well as those of the Supreme Court of the United States. See State ex rel. Buford v. City of Tampa, supra; Freed v. Miami Beach Pier Corp.,
"The foregoing summary of the laws of the original States shows that there is no universal and uniform law upon the subject; but that each State has dealt with the lands under the tidewaters within its borders according to its own views of justice and policy, reserving its own control over such lands, or granting rights therein to individuals or corporations, whether owners of the adjoining upland or not, as it considered for the best interests of the public. Great caution, therefore, is necessary in applying precedents in one State to cases arising in another."
In discussing this question, this Court in Deering v. Martin,supra, said:
"Section 1062 indicates that the power vested by Section 1061 should not be exercised on objection made when it would interfere 'with the rights granted to riparian owners by the laws of Florida, or would be a serious impediment to navigation of public fisheries.' In such a case, no doubt, the board should decline to sell, even in the absence of formal objection.
"It is not my purpose to contend that the trust doctrine, with reference to lands under navigable waters in this State, would preclude the State from transferring to private ownership limited portions of such lands when the rights of the people of the State for which the State holds the title in trust are not invaded or impaired. And such must have been the intent of the statute. This principle is recognized by our decisions, including those cited in Judge Campbell's *63 opinion. It is also recognized by the decisions of the Supreme Court of the United States.
"In Farnham on Waters, p. 173, the author says that this doctrine, together with its limitations, was very fully and adequately stated by Justice Field in Illinois Central R. Co. v. Illinois,
" 'The State holds the title to the lands, under the navigable waters * * * in trust for the people of the State that they may enjoy the navigation of the waters, carry on commerce over them, and have liberty of fishing therein free from the obstruction or interference of private parties * * *. The trust devolving upon the State for the public, and which can only be discharged by the management and control of property in which the public has an interest, cannot be relinquished by a transfer of the property. The control of the State for the purposes of the trust can never be lost, except as to such parcels as are used in promoting the interests of the public therein, or can be disposed of without any substantial impairment of the public interest in the lands and waters remaining. It is only by observing the distinction between the grant of such parcels for the improvement of the public interest, or which when occupied do not substantially impair the public interest in the lands and waters remaining, and a grant of the whole property in which the public is interested, that the language of the adjudged cases can be reconciled.' "
This general subject is quite thoroughly covered in the opinion by Mr. Chief Justice TAFT in the case of Appleby v. New York, supra, cited in Deering v. Martin, supra. In that case it was held that the power of a State and one of its municipalities to part with property under navigable waters to private parties, free from the State's subsequent *64
regulatory control of the water over the land, and the land itself, is governed by the law of the State as derived from statutes and decisions in force when the proprietary grant is made, and creates a vested right in the grantee, even though such grant is subject to the paramount right of the Federal Government to control navigation, and that the subsequent exercise of the Federal power in the interests of navigation over the waters covering such lands does not revest the State or its municipality with any of the proprietary or regulatory powers which it had parted with by its grant. This Court has also recognized the vested and irrevocable quality of a grant of tide lands by a municipality under legislative authority, in a case where the lands had actually been filled in and improved. Tampa Northern R. Co. v. City of Tampa,supra. See also Rivas v. Solary,
There is a clear field for the operation of both the State statute here assailed and the Federal Act of March 3rd, 1899. One provides for selling and conveying through the Trustees of the I. I. Fund the title of the State to lands of a certain character located under tidal waters in the State, with the right of the grantee to bulkhead and fill in the same, provided the rights of riparian owners are not impaired, and no serious impediment to navigation or public fisheries is created, and the other, the Federal statute, in effect, provides that no structure can be built under such State grant in such waters unless the consent of the Federal Government, expressed through its duly constituted officials, is first obtained. There is no such direct or essential conflict between the two statutes as to render the State statute invalid *66 or void. The State merely provides for the granting of certain of its lands under tidal waters, which lands the grantee of course takes subject to whatever paramount power the Federal Government has over such waters. So, in order to fill in and improve such submerged lands the grantee must obtain both the State's authority and title and the Federal Government's consent. Thus there is over such lands a species of concurrent power and jurisdiction, resulting from our dual system of government. This is illustrated by several decisions of the Supreme Court of the United States.
In Cummings v. Chicago,
The case of Montgomery v. City of Portland,
"In that case we recognized the doctrine as long established that the authority of a State over navigable waters entirely within its limits was plenary, subject only to such action as Congress may take in execution of its power under the Constitution to regulate commerce among the several States. After referring to Lake Shore and M. S. R. Co. v. Ohio, (1897)
See also Wisconsin v. Illinois,
To sum up, the general principle, supported by the weight of authority in this country, is that, subject to the paramount authority of Congress over interstate commerce and the navigable waters of the United States, and subject also to vested private property rights, a State has full power to legislate concerning the disposition and use of navigable waters and the lands thereunder which are within the territorial limits of the State, even where such waters connect with waters outside such limits; subject to any prohibitions or limitations upon the exercise of such power which may be contained in the State Constitution. See 45 C. J. 421, 547, and 1 Farnham on Waters, 212 et seq. While our State Constitution contains no prohibitions or limitations upon the exercise of such power, this Court, as shown by the cases herein cited, has held that the legislative power is limited by the trust doctrine hereinabove discussed. Even if it should be conceded that the Legislature of this State has the power to set aside such trust doctrine, a question which is not here necessary for us to decide, we hold that said statute of 1917 (Sections 1391et seq. C. G. L.), properly construed, is not in conflict with such trust doctrine pertaining to the lands under the navigable waters of this State. This holding is fully supported by the many cases decided by this Court *69
construing the riparian rights Act of 1856 (Chapter 791, Acts of 1856, Secs. 1772-1773 C. G. L.), and the Act of 1921 (Chapter 8537) re-enacting the Act of 1856, so as to make it apply to riparian proprietors owning lands extending to high water mark, and adding certain additional provisions (see Section 1774 et seq. C. G. L), as well as by State ex rel. Buford v. City of Tampa, supra; Tampa Northern R. Co. v. City of Tampa, supra, and Deering v Martin, supra. The Acts of 1856 and 1921 divest the State of its title to lands covered by water, lying in front of upland owned by any citizen holding title to high water mark of "any navigable stream, or bay of the sea, or harbor, as far as the edge of the channel," and vests the title to the same in such riparian proprietors for certain named purposes, such as the building of wharves, and filling up from the shore as far as may be desired, not obstructing the channel, etc. See Panama Ice Fish Co. v. Atlanta St. Andrews Bay R. Co.
Our conclusion therefore is that Chapter 7304 of the Acts of 1917 (Section 1391 et seq., C. G. L.) is a valid Act, and is not in conflict with the State or Federal Constitutions, nor with the congressional Act of March 3rd, 1899 (Sections 9 and 10), nor with the trust under which the State holds the title to lands under navigable waters. If there should be any attempt, in the administration of that Act, to impair the rights of riparian proprietors, or the rights of the people of this State under the trust doctrine, such proposed action by the Trustees could be enjoined at the suit of a proper party under the principles laid down in the case of Deering v. Martin, supra. So much for the validity of the statute.
2. We come now to the second line of attack on the validity of complainant's title, as made by the answer, which is hereinabove summarized, and which is grounded upon *71 the allegation that the deed from the Trustees is void and ineffectual because, it is averred, the area in question was submerged "practically throughout its entirety" to a greater depth than three feet at high tide, in spite of the fact that the deed from the Trustees erroneously or falsely recited that the lands conveyed were lands "upon which the water is not more than three feet deep at high tide" and were "separated from the shores by channel or channels not less than five feet deep at high tide."
The deed thus attacked was made by the Trustees of the I. I. Fund on August 6th, 1920. The answer of appellants making this attack was filed over eight years later, in November, 1928. Neither the Trustees nor the State were parties to this suit, which was a suit between private parties, begun by appellee in July, 1928, to foreclose a vendor's lien for the balance of purchase money due on a sales contract made in February, 1926.
It may be that the facts thus alleged in the answer would, if true, have afforded ground for a bill in equity to enjoin the Trustees from selling and conveying such lands, under the principles laid down in the Deering case, but, as here presented, in a suit between private parties, eight years after the Trustees had acted and made the deed, and after the land had been converted into an island by bulkheading and filling in, it amounts to a collateral attack upon the validity of the action taken by an official public body charged with the duty of determining certain facts before acting, which in our opinion is not allowable. As was pertinently observed by the learned chancellor in his opinion, "the title and ownership of the land in question should rest upon a grant, and not upon an evidentiary fact."
By the statute (Sec. 1391 et seq. C. G. L.) it is provided that: *72
"1391. The title to all islands, sand bars, shallow banks or small islands made by the process of dredging of the channels by the United States Government located in the tidal waters of the counties in the State of Florida, or similar, of other islands, sand bars and shallow banks upon which the water is not more than three feet deep at high tide and which are separated from the shore by a channel or channels, not less than five feet deep at high tide, or sand bars and shallow banks along the shores of the mainland in which the title is not, at this date, invested in prior parties, is hereby invested in the trustees of the internal improvement fund of the State of Florida, to be held by the State of Florida, and disposed of as hereinafter provided.
"1392. The said trustees shall have power to sell and convey the islands and submerged lands hereby granted upon such prices and terms as they shall see fit, after giving notice by publication in a newspaper published in the county seat of the county in which such islands or submerged lands are located not less than once a week for four consecutive weeks in order that any persons who have objections to such sale may have opportunity to present the same, and if no objections are filed within the said thirty days, the trustees shall have authority to consummate such sale. If objections are filed, the trustees shall hear and consider the same and if it shall appear that the sale of such islands and submerged lands and their ownership by private persons would interfere with the rights granted to riparian owners by the laws of Florida, or would be a serious impediment to navigation or public fisheries, it shall be the duty of the trustees to withdraw the said lands from sale.
"1393. It is expressly provided that nothing herein contained shall be so construed as to deprive any private riparian owner from bringing an injunction suit in equity against such sale on the ground that he would be thereby deprived *73 of his riparian rights granted to him by law: Provided, that such suit must be commenced within thirty days after the trustees shall have overruled the objections of such owner to such proposed sale.
"In case suit is brought by any private owner to enjoin such sale, it shall be in the discretion of the trustees to defend such suit or to withdraw said lands from sale.
"1394. In case any such islands or submerged lands are sold by the trustees according to the provisions of sections 1391 and 1392, the purchaser shall have the right to bulkhead and fill in same as provided by Section 3869, without, however, being required to connect the same with the shore or with the permanent wharf."
Thus it became the duty of the Trustees of the I. I. Fund to give notice by publication, to hear and consider objections, and to determine the facts upon which the statute conditions their power to sell and convey. The recitals in the deed made by the Trustees in this instance shows that they found and determined the facts to be that the lands in controversy were under water not more than three feet deep at high tide and were separated from the shore by a channel or channels not less than five feet deep at high tide, and were such lands as they were, by the statute, vested with the State's power to sell and convey. And, as pointed out in the Deering case, it was the intent of the statute that it should also be their duty, whether objections were made or not made, not to sell and convey if to do so would "interfere with the rights granted to riparian owners by the laws of Florida, or would be a serious impediment to navigation or public fisheries."
The presumption is that the Trustees, being public officials of the State, complied with their duty under the law, and that they correctly ascertained the facts warranting *74 their action. This presumption is to all intents and purposes a conclusive one when attempted to be put in issue by a collateral attack in a suit between private parties; especially a suit to which neither the Trustees nor the State were made parties, and brought eight years after the action was taken and the deed executed, during which period the lands involved had been filled in and made into an island, and platted into blocks, streets and lots, no doubt at great expense to the State's grantee, the Alton Brock Realty Co., or its grantee, the appellee here.
Furthermore, by an act passed in 1925, Chapter 10162 of the Laws of Fla. (Sec. 1395 C. G. L.) it appears that all sales and conveyances of this character which had been made by the Trustees under the above statute, were confirmed and validated, with certain exceptions not here applicable.
If the deed of the Trustees made under the statute could be thus attacked in a suit between private parties eight years after it was executed, it could be done eighteen, or more years thereafter, at which time it might be very difficult, it not impossible, to secure definite and reliable evidence as to just what the depth of the water was over the land in question at the time the conveyance was made, and before it was filled in and improved. It would certainly be a dangerous and unsound public policy to make the validity of land titles dependent upon the ability of those collaterally attacked or defending such titles to produce evidence of this character to defeat or sustain a deed made by the Trustees under the State's authority.
The Supreme Court of the United States has held, in quite a number of cases, that the United States alone can object to the want of authority of a national bank to accept a conveyance of real estate in trust, or to loan money upon *75
a mortgage taken on real estate as security; that the validity of the instrument can only be assailed in a direct proceeding brought for that purpose. This line of cases is cited in Luria v. Bank of Coral Gables, 142 So.2d 901. One of them is Kerfoot v. Farmers Merchants Bank,
"This rule, while recognizing the authority of the government to which the corporation is amenable, has the salutary effect of assuring the security of titles and of avoiding the injurious consequences which would otherwise result. In the present case a trust was declared, and this trust should not be permitted to fail and the property to be diverted from those for whom it was intended, by treating the conveyance to the bank as a nullity, in the absence of a clear statement of legislative intent that it should be so regarded."
The Federal courts hold that the decision of the Land Department upon questions of fact is conclusive on the courts; that the courts will not entertain an inquiry as to the extent of the investigation by the Secretary of the Interior and his knowledge of the points involved in his decision as to a contest in the Land Department, nor as to the methods by which he reached his determination, De Cambra v. Rogers,
The proper execution of the trust imposed in the State of Florida by the Federal Act vesting in the State title to swamp and overflowed lands for certain purposes cannot be questioned by a private party; nor is the reasonableness of the area embraced in legislative grants for railroad rights of way open to judicial review. Seaboard Air Line R. Co. v. Board of Bond Trustees,
The courts will not interfere with the administration of the Internal Improvement Fund by the State officials designated by the statute as Trustees of such fund, when acting within the scope of their statutory authority, unless the Constitution is being violated or private rights invaded contrary to law and equity. Everglades Sugar Land Co. *77
v. Bryan,
Original actual surveys of public lands by the United States government, on the faith of which property rights have been acquired, control over surveys subsequently made which affect such rights, as between parties to an action of ejectment involving such lands. Kelsey v. Lake Childs Company,
We think that the general principles underlying the above cited authorities sustain our conclusion that the allegation in the appellants' answer attacking the validity of the deed from the Trustees of the Internal Improvement Fund to appellee's grantor on the ground that the area conveyed was at the time of the conveyance submerged practically throughout its entirety to a greater depth than three feet at high tide, amounted to a collateral attack upon the grant made by said Trustees, which was not permissible, either as a defense, or as a ground for affirmative relief, in this suit between private parties.
3. The last ground upon which appellants in their answer in the court below, base their prayer for affirmative relief is set forth in the summary of such answer already made in the first part of this opinion. It is in substance that the complainant in the court below could not, as required by the contract, convey a good and unencumbered fee simple title because the Trustee's deed was made subject to the paramount power of the Federal Government over navigable waters, which includes the power to remove obstructions which have been constructed in such waters, even when made *78 with the permission of such government, and that the permit granted by the Secretary of War to complainant's grantor was a mere license, revocable at the will of the Secretary of. War, or his successors in office, rendering the island subject to removal without compensation upon the order of the Secretary of War. That therefore the title continues to be subject to the dominant easement of the Federal Government for the benefit of navigation, and hence there is no assurance of any definite tenure.
The answer does not allege that the plans and specifications for the construction were not submitted to and recommended by the Chief of Engineers and approved and authorized by the Secretary of War prior to the commencement of the construction, as required by the Act of Congress, but counsel for appellant insist that the permit from the Secretary of War was a mere license, revocable at the will of the Secretary of War. On the other hand counsel for appellee contend that the permit granted by the Secretary of War, under the act of Congress hereinabove quoted, as pertains to a structure or construction of this permanent nature, is more than a mere license revocable at will, that it granted complete authority to construct the island, and that the clause in the permit which is construed as a power of revocation applied to the dredges, pipe lines, trestle-work and other constructual devices necessary to the construction of such a project, which would necessarily be located in the waters of the bay outside the area which was permitted to be filled in, and did not apply to the permanent island itself. There is considerable force in this suggestion. But as we view this question, we do not deem it material to ascertain just what the Secretary of War intended by the language used in this connection, which is quoted in the earlier portion of this opinion. In so far as this clause of the permit may have exceeded the authority vested in Secretary of *79 War by Section 10 of the Act of March 3rd, 1889, it would be void and of no effect. But whether he had or had not embraced this clause in his permit, the construction thus permitted would have remained subject to the well known paramount power of Congress over navigable waters and structures erected therein, lawfully and reasonably exercisable in the interests of navigation. The appellant, when he purchased a lot on an island constructed in the waters of Biscayne Bay, was chargeable with notice of that power (3 Farnham on Waters, 2217), and cannot complain of its existence any more than he could complain of the existence of the State's power of eminent domain. Neither power invalidates the fee simple title in the land. But we concur in the contention of appellee that the scope and effect of the Secretary of War's permit, so far as the island constructed under it is concerned, must be construed in the light of the power delegated to that official by the Act of Congress of March 3, 1899, and that, so construed, it is more than a mere license, revocable at the arbitrary will of the officer who granted it. The language of the so-called revocable clause of the permit itself indicates this, whether it be construed to apply to the island or the structural devices used in making it. The clause says, "That if future operations of the United States Government require an alteration in the position of the structure or work herein authorized, or if in the opinion of the Secretary of War, it shall cause unreasonable obstruction to the free navigation of said water, the owner will be required, upon due notice from the Secretary of War, to remove or alter the structural work or obstruction caused thereby without expense to the United States, so as to render navigation reasonably free, easy and unobstructed."
As we have seen, these submerged lands were conveyed by the Trustees of the I. I. Fund of the State of Florida, *80
under legislative authority, to the appellee's grantor. This deed conveyed the legal title, subject of course to the State's police power and to the paramount power of Congress over navigable waters, and this deed from the State carried with it the right under the statute to bulkhead and fill in said lands. So the grantee acquired by this deed from the State (so far at least as the right of private parties to question it is concerned) a good fee simple title to the submerged lands, with the right under the State statute to fill in and improve them. Biscayne Bay lies entirely within the boundaries of the State of Florida, but it is used, or the channels therein are used, in carrying on interstate and foreign commerce. So we have no doubt that the power of Congress over navigable waters attached to the waters involved in this case. Appellee's grantor having received a good title from the State, with the right to bulkhead and fill in the same, all that was necessary to complete that right was to obtain the authority of the Federal Government, and the method of doing so was prescribed by Section 10 of the Act of Congress of March 3, 1899. If, as its language indicates, Section 9 of this Act be construed to apply only to "any bridge, dam, dike, or causeway," over or in navigable waters of the United States, it appears that Section 10 of that Act would apply to any other "structure" in such waters, and would be the section which controls in this case. This section provides that "it shall not be lawful" to build any "structure" in any such waters, "except on plans recommended by the Chief of Engineers and authorized by the Secretary of War." The fair construction of this section is that, if such recommendation and authority be secured, the structure thus authorized would be lawful under this Act of Congress. This section of the Act does not contemplate the granting by the Secretary of War of mere licenses, revocable at will, in cases of this nature. It may be, and probably is, the case, *81
that the Congress cannot directly, or through power delegated to the Secretary of War, entirely divest itself of the continuing power vested in it by the Constitution in behalf of commerce and navigation, and that even though its consent be given directly or through the Secretary of War, to the making of a structure of any sort in navigable waters, it may subsequently by appropriate proceedings and the payment of just compensation secure the removal of such structure, if the interests of commerce and navigation imperatively demand it. This is about all that the so-called revocable clauses in the Secretary of War's permit can legally amount to. The State's police power may also extend just as far. The State, for instance, cannot divest itself of the power of eminent domain. All property in the State is acquired and held subject to the due exercise by the State of its police power. Everglades Sugar Land Co. v. Bryan,
In support of its contention that the Secretary of War's permit for the construction of the island in question here was a mere license, revocable at will, and such official could at any time require the removal of the island without compensation to the owner, appellant cites two decisions of the Supreme Court of the United States. One of them is the case of Louisville Bridge Co. v. United States,
The other case relied on by appellant is Sanitary District of Chicago v. United States,
In both of the above cases, compensation was denied. In the Louisville Bridge case, the case of Union Bridge Co. v. United States,
In Osborne Co. v. Missouri Pac. R. Co.
The case of Monongahela Navigation Company v. United States,
In the case of United States v. Lynah,
See also in this connection Pumpelly v. Green Bay and M. Canal Co. 13 Wall, 166
While the general rule is that a state, or a municipality as its agent, cannot by grant or contract estop itself from the reasonable and necessary exercise of the police power (Denver Rio Grande R. Co. v. Denver,
In the light of these cases, it is hardly conceivable that either the Federal or State Government would have the right to take, or require the removal, without compensation, of all or any part of an island, such as the one here involved, constructed on submerged land in Biscayne Bay under a grant from the State and with the authority and approval of the Federal Government. Even if the future developments and needs of commerce and navigation should imperatively require such a taking by the Federal Government of a structure thus builded — a structure or a permanent character, lawful when made — surely the owner or owners would be entitled to just compensation under the fifth amendment to the Federal Constitution.
It thus appears that, simmered down to its residuum of legal effect, the facts alleged in that portion of the answer upon which the prayer for permanent relief was predicated, shows that the appellant's vendor, the appellee here, held *89
a fee simple title to the land in question, subject only, at most, to the police power of the State, and the paramount power of Congress under the commerce clause of the Federal Constitution. Both of these powers, State and Federal, are governmental in their nature. Indeed, all lands and structures located in or bordering upon navigable waters in this State are held subject to the due and proper exercise of these powers, and when the appellant purchased the land in question he was chargeable with notice of these governmental powers. 3, Farnham on Waters, 2217; Maupin on Marketable Title, Third Ed. Sec. 85 and 85a. Marshall v. Hartman, 139 So.2d 441. He is presumed to have purchased with knowledge of the law. Steinhardt v. Consolidated Grocery Co.
The question then arises, did the existence of these powers of the Federal and State Governments constitute such an incumbrance upon the property purchased by appellant from appellee as to justify appellant in attempting to obtain a rescission of the contract of purchase and the recovery back of that portion of the purchase money already paid? We think not.
In Wheeler v. Sullivan,
"The contract here sued upon is executory. That being the case, the settled rule is that unless excepted by such contract of sale, or the restrictive covenants be properly released, or the objection duly waived by the vendee, covenants imposed by the vendor or a predecessor in title, restricting the use which may be made of the premises, are such incumbrances as entitle the purchaser to perform, unless such covenants require no more than the law would compel the vendee to do, or refrain from doing, as the case may be, independently of contract. (Citing authorities.) " *90
"Reasonable restrictions of the character referred to when imposed by public authority through a valid exercise of the powers of government are not usually regarded as an incumbrance within the meaning of the rule above stated. Lincoln Trust Co. v. Williams Building Corp. 169 N.Y. Sipp. 1045; 183 App. Div. (N.Y.) 225; 229 N.E. 313;
In McCaskill v. Union Naval Stores Co.
In Richardson-Kellett Co. v. Kline,
Section 143 of Maupin on Marketable Title, Third Edition, reads as follows:
"The covenants of warranty and for quiet enjoyment do not embrace acts of sovereignty, such, for example, as the exercise of the right of eminent domain. The organic law of each State provides that private property shall not be taken for public purposes without compensation, and the covenantee is protected by provisions for the indemnity of the owners of the appropriated lands made in pursuance of this law. When the parties enter into covenants for title it will be presumed that they had in view only existing rights under *91 a paramount title, and the power of the State to appropriate the premises for public uses cannot be regarded as such a right. In one case it was held that the covenant of warranty was not broken by condemnation of the premises to public uses, though the covenantor had, before the execution of the deed, released all claim to damages. The purchaser must also take notice of public statutes restricting the use of the granted premises; and such restrictions continue no breach of the covenant of warranty. Upon a somewhat similar principle, it has been held that the covenant does not extend to the acts of a newly formed State in restricting the ownership of shore proprietors to the line of ordinary high tide, the warranty having been made before the formation of the State when the owner, under the territorial government, was permitted to extend his structures out to navigable depth."
Numerous cases are cited in the notes supporting the above text, among them being Feurer v. Stewart, 83 Fed. 793; Neeson v. Bray, 19 N.Y. S. 841, and Biggs v. Stineway Sons, 182 N.Y. S. 112. In the latter case it was held that a certain building zone resolution was not an encumbrance on the property involved in that case; that the law authorizing the division of the City into building zones was the exercise of the police power of the State and that all property is subject to such restrictions as the State in its sovereign power may deem necessary for the health, safety and morality of the people. In Barre v. Fleming,
In the light of the statutes and authorities above cited and discussed, we find no error in the ruling of the chancellor, and the order appealed from will accordingly be affirmed. It is so ordered.
Affirmed.
DAVIS, C. J., and WHITFIELD, TERRELL and BUFORD, J. J., concur.