84 Fla. 532 | Fla. | 1922
Lead Opinion
In an action of ejectment brought by the South Florida Farms Company against Goodno to recover “all of Section Twenty-eight (28) Township Forty-two (42) South, Range Thirty (30) East, except a surveyed portion thereof, containing 27.50 acres, in the northeast corner thereof according- to and as shown by Government plat, and all of Section Thirty (30) in Township Forty-two (42) South, Range Thirty (30) East, except Government Lots One (1), Two (2) and Three (3), and S. Yz of S. E. % thereof as shown by Government Plat, containing about 950.40 acres,” there was judgment for the defendant, and the plaintiff took writ of error.
It appears that all the land in Sections 28 and 30 of Township 42 South of Range 30 East, was swamp and overflowed land that was granted to the state by the Act of
The Act of Congress granting swamp and overflowed lands to the States, is not a grant of such lands by legal subdivisions. It grants “the whole of those swamp and overflowed lands, made unfit thereby for cultivation. ’ ’ The Act requires the Secretary of the Treasury to transmit to the Governor of the State accurate lists and plats of the lands granted, and upon request to issue patents therefor.
Where the whole of a township or of a section is “swamp and overflowed land” that is “wet and unfit for cultivation,” within the meaning of the Act of Congress of September 28, 1850, a subdivisional survey of the' township or section would not be necessary to enable the Secretary of the Interior to determine whether “the greater part of” the township or section is “wet and unfit for cultivation,” so as to be covered by the grant; but in such cases the lists and plats of the lands may be made by reference to surveyed lines and their projected extensions or to natural boundaries, and patents may be issued for the lands that are within the grant according to such lists and plats whether the lands be surveyed or unsurveyed. See 19 L. D. 251, 24 L. D. 147; 8 L. D. 65 and 369.
A section of land, as a legal subdivision under the Congressional rules of survey, is a mile square, and usually contains 640 acrs. When a section is not whole or regular in its contents, that is where it does not contain approximately 640 acres, it may properly be called a “fractional
Where the area to constitute a whole or regular section of land is in place, but, because a portion of the land is, at the time of the survey, temporarily flooded, or is of such a nature that it cannot then be readily surveyed, or where the surveyors or officials negligently or purposely do not survey such portion, the survey may subsequently be completed. Meanwhile the surveyed portion is referred to .as a “fi’actional section;” and in such case a conveyance of the “fractional section” is, in general, controlled in its boundaries by the survey and meander lines.- Where a fractional section is patented in accordance with the plat of survey, and the meander lines of the survey do not approx
Where public lands are patented “according to the official plat of the survey returned to the General Land Office by the Surveyor General, ’ ’ the notes, lines, landmarks and other particulars appearing upon the plat become as much a part of the patent, and are as such to be considered in determining what 'it is intended1 to include, as if they were set forth in it. The Swamp Land Act of 1850 in itself passed to the State only an inchoate title, and not until the lands were listed and patented under the act could the title become perfect. Chapman & Dewey Lumber Co. v. St. Francis Levee Dist., 232 U. S. 186, 34 Sup. Ct. Rep. 297; Lee Wilson & Co. v. United States, 245 U. S. 24, 38 Sup. Ct. Rep. 21; Greene v. United States, 74 Fed. Rep. 145; Lee Wilson & Co. v. United States, 227 Fed. Rep. 827, 142 C. C. A. 351; United States v. Lee Wilson, 214 Fed. Rep. 630.
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. See St. Paul & P. R. Co. v. Schur
The South Florida Farms Company claims under a patent issued June 21, 1909, covering “all of unsurveyed sections * Twenty-eight * and thirty, * township forty-two south of range thirty east,” “according to the official plats of survey of the said lands returned to the General Land Office by the Surveyor General.” The contention on which Goodno won -in the trial court =is that the patent of Febi’uary 14, 1880, covering “the whole of
This .view is not tenable when the field notes and plats of the survey show that the meander lines in' sections 28 and 30 are not delineations of permanent bodies of water, but of an “ impracticable sawgrass marsh ’’ covering a relatively large area between the survey lines and the Caloosahatchee River, a very narrow stream that traverses the sections. It appars from the survey plat that only 27.50 acres in the northeast corner were actually and completely surveyed in section 28 and that only the south half of the southeast quarter containing supposedly 80. acres, and lots 1, 2 and 3, containing respectively 51.90, 55 and 44 acres, all in the south half of section 30, had been actually and completely surveyed in section 30. This left unsurveyed the greater portion of the two sections, or over 600 acres in section 28, and over 400 acres in section 30, all of which is marked “Impracticable sawgrass marsh,” and
In Kean v. Calumet Canal & Improvement Co., 190 U. S. 452, 23 Sup. Ct. Rep. 651, the meander; line was the water line. See French-Glenn Live Stock Co. v. Springer, 185 U. S. 47, 22 Sup. Ct. Rep. 563; Broward v. Mabry, 58 Fla. 398, 50 South. Rep. 826.
The conclusion here reached does not conflict with sections 4803 and 4804 of the United States Compiled Statutes, since the survey was interrupted by a sawgrass marsh which is to be treated as land, and the survey was not interfered with by a water course or an Indian reservation or other external boundary of a fractional township. Niles v. Cedar Point Club, 175 U. S. 300, 20 Sup. Ct. Rep. 124.
The Act of Congress approved September 28, 1850, granting to the State “the whole of those swamp and overflowed lands made unfit thereby for cultivation, which shall remain unsold at the passage of this Act, ’ ’ provides in section 2 “that it shall be the duty of the Secretary of the Interior, as soon as may be practicable after the passage of the Act, to make out an accurate list and plats of the lands described as aforesaid, and transmit the same to the Governor of the State, and at the request of said Governor, •cause a patent to be issued to the State therefor; and on that patent, the fee simple to said lands shall vest in the said State.”
* in township forty-two south of range thirty east # according to the official plats of survey, ’ ’ and the approved “lists and plats of the land” for which the patent was issued to the State show that fractional section 28 contains 27.50 acres, and that fractional section 30 contains 233.90 .acres. This acreage is verified by the aggregate acreage of all the detailed acreage in the several sections, fractional sections and lots within sections that are contained -in the lands of the township that are covered by the approved lists on which the patent was issued under the Act of Congress and as further shown by the official plats of survey referred to by the patent itself. By the terms of the Act of Congress making the grant of swamp and overflowed, lands, the patent is issued for the lands contained in the “list and plats of the lands.” that are made out and transmitted by the Secretary of the Interior to the Governor of the State. And the patent by its terms covers the described lands containing a stated acreage “according to the official plats of survey of the said lands.” Therefore the patent of February 14, 1880, covering “the whole of sections twenty-eight * and thirty,” “conveyed to the State” fractional sections 28 and 30 “according 'to the official plats of surveys” which show that fractional section 28 contains 27.50 acres, and that fractional section 30 contains 233.90 acres. This acreage, and no more was conveyed to the State by the patent of February 14, 1880. See Chapman & Dewey Lumber Co. v. St. Francis Levee District., supra.
The officers of the State conveyed to the defendant’s predecessor in title “the whole of fractional sections 28, 30,” which description of course embraced only the lands
The patent issued June 21, 1909, covered “all of unsurveyed sections * twenty-eight * thirty, * township forty-two south of range thirty east * according to the official plats of survey of the said lands” etc., and the approved list of lands” for which under the Act of Congress the patent was issued to the State, shows that “unsurveyed” section 28 contains an estimated area of 620 acres and that “unsurveyed” section 30 contains an estimated area of 410 acres. This estimated acreage is verified by the aggregate of all the detailed areas of the different parcels of land as stated in the lists upon which the patent was issued.
The conveyance made by the State officials to the plaintiff’s predecessors in title embraced “all unsurveyed sections 28, 30 T. 42 S. R. 30 E., ” which description covered the area embraced in the patent under a similar description as made definite by the approved lists on which the patent of June 21, 1909, was issued, and by the official plats of survey to which the patent refers.
The conveyance made February 3, 1883 bj1- the State officers to the defendant’s predecessors in title covered only the lands embraced in the patent of February 14, 1880, viz: “the whole of fractional sections 28, 30” which did not include any lands except 27.50 acres in section 28, and lots 1, 2 and 3 and S. % of S. E. % of section 30.
The title to the bed of the Caloosahatchee River; a navigable stream, is in the State by virtue of its sovereignty attained upon its admission into the Union in 1845; and lands under navigable waters in the State are not included in the Congressional Grant of Swamp and Overflowed lands in 1850. Broward v. Mabry, 58 Fla. 398, 50 South. Rep. 826; State ex rel. Ellis v. Gerbing, 56 Fla. 603, 47 South. Rep. 353; Scott v. Lattig, 227 U. S. 229, 33 Sup. Ct. Rep. 242. See also State ex rel. Kittell v Jennings, 47 Fla. 307, 35 South. Rep. 986, as to lands granted to the State in 1845 for school purposes. No Spanish or other grant antedating the cession of the Floridas to the United States by Spain in 1819 is involved here.
Reversed.
Dissenting Opinion
Dissenting.
The determining question in this ease is the construction to be placed on the terms “the whole of fractional section 28,” and “the whole of fractional section 30,” found in the United States Government patent to the State, and in the deed of conveyance from the Trustees of the Internal Improvement Fund, to the Florida Land and Improvement Company, from which Goodno deraigns his title.
The rule laid down by Congress for ascertaining the boundaries and contents of a “fractional township” is provided for in Section 4804, Yol. 5, U. S. Compiled Statutes, as follows: “The boundary lines actually run and marked in the surveys returned by the surveyor general shall be established as proper boundary lines, on the sections or subdivisions for which they are intended, and the length of such lines as returned shall be held and considered as a true length thereof, and the boundary lines which have not been actually run and marked, shall be ascertained by runing straight lines from the established corners to the opposite corresponding corners, but in those portions of the fractional townships where no such opposite corners have been or can be fixed the boundary lines shall be ascertained by running from the established corners due north and south or east and west, lines as the case may be, to the water course, Indian Boundary Line, or other external boundary of such fractional township.”
It would seem proper to adopt this rule, in determining from the plat introduced in evidence, how many acres are embraced in “the whole of fractional section 28,” and “the whole of fractional section 30.”
A corner has been established by the United States government survey, and north and east lines have been partially surveyed and marked on the plat.
We find from the description, in the copies of patents and deeds introduced in evidence, that these methods are adopted by the United States Government of describing bodies of land. (1) “The whole of Section .... ” is used to describe a piece of land a mile square containing 640 acres. (2) “The whole of fractional section,” is used to describe a body of land approximately a section, but which on account of a water course boundary, or an ocean, gulf of bay boundary, the total acreage of land within the boundary lines is less than 640 acres. (3) Small fractions of a section are designated as “lots.”
Following this method, the patent would have designated the 27 acres as “a lot,” instead of by the grandiloquent and comprehensive term, “the whole of fractional section 28.”
Even without the rule laid down by Congress, the natural interpretation of the words, “the whole of fractional section 28,” would be all of the land included, within the section less than 640 acres.
The construction placed by the majority of the court on the grant of “the whole of fractional section 28,” is that it means only about 27 acres, and that a large body of land remains within the sectional lines after “the whole of fractional section 28” was patented to the State, and by
Just how the “whole of a fraction” can be taken away, and “part of the farction” remain, is a mathematical puzzle; but such is the effect of the decision in this case.
I think the judgment should be affirmed.