Florida Town Improvement Company, a Corporation Under the Laws of the State of Florida, Plaintiff in Error, vs. Gottlob Bigalsky, Defendant in Error, 44 Fla. 771

Carter, P. J. This cause was. referred by the court to the late Supreme Court Commission for investigation, who reported that the judgment ought to be affirmed. In stating the principles of law controlling the main questions involved, we do so in the language of the opinion prepared by the commission, which we adopt as our own. This was an action of ejectment instituted in the Circuit Court of Nassau county by the plaintiff in error against the defendant in error to recover possession of lots one and two of

section fourteen, township three, north range twenty-eight, east, alleged to contain two hundred and sixty-seven acres of land, more or less, situated on Amelia island in Nassau county, to which plaintiff claimed title. Defendant pleaded “not guilty,” and, in pursuance of a stipulation entered into by the parties, ‘the case was tried by the court without a jury, whereupon there was a judgment rendered for defendant, which is-now. brought before this court for review by writ of error.

Plaintiff sought to deduce title to lot one under the act of Congress of September 28th, 1850, granting swamp and overflowed lands within the limits of the State for certain purposes, the selection of this lot thereunder, December 17th, 1851, and the approval thereof to the State by the Secretary of the Interior on January 25th, 1853. Lot -two was claimed under a patent to David L. Yulee, issued on September 5th, 1853, based upon a certificate of entry from the St.

Augustine land office dated August 4th, 1851, which entry was based upon certificate No. 2, issued April 15th, 1851, in the matter of the grant to Fernando de la Maza Arrendondo. Plaintiff also introduced evidence seeking to establish a Spanish grant, including, it is claimed, nearly alt of both lots, to one Don Juan McClure in 1813; and it undertook, by various conveyances introduced in evidence, to connect itself with these original sources o.f title.

Defendant introduced in evidence a cex-tified copy from the General Land Office of an order of the President of the United States, dated Febi'hary 9th, 1842, directing the Commissioner of the General Land Office to cause reservations'to be made for military purposes of the-following lands among others: “At the north point óf Amelia island, Florida; fractional

section eight of township three, north, range twenty-nine east, and fractional

section eleven, and lots numbers one and two of fractional

section fourteen of township three, north of range twenty-eight east:” and also a certified copy from that office of an order from the Secretary of War to the Commissioner of the. General Land Office, dated March 23, 1849, directing ihat so much of the several tracts of land designated in (he report of a board of engineers therewith transmitted, as was public land be reserved from sale until the completion of the surveys necessary for the location of required defences.

The order further states “this reservation will supersede that heretofore made of the islands on the Florida coast, and so much of the reservation first made as is not included in any of the tracts enumerated in the enclosed report is relinquished by this department.” The report of the board of engineers transmitted with that order contains a “list of lands recommended to be reserved for purposes of defence by the board of engineers on the coast of Florida.” . Among others the following are designated: “At Amelia island.

All'the public land on the north end of Amelia island.” The defendant also introduced certified copies of.other documents for the purpose of showing that in 1856 the officers of the War nad Land Departments discovered that the patent to Yulee and the selection of swamp and overflowed lands embraced lands that had been reserved, for military purposes; that Mr. Yulee was requested to deliver the patent to lot two for cancellation, and that lot one was excluded from the patent for swamp and overflowed lands subsequently issued to the State.

The defendant also introduced documentary and parol evidence for the purpose of showing that the United States hád ever since that time regarded the lots as a part of the military reservation on the north end of Amelia island, now known as Fort -Clinch Military Reservation, and had held actual or constructive possession of them as such.

All of this testimony was objected to by plaintiff upon various grounds, but under the view we take of the case, it is unnecessary for us to review these rulings, as well as many others ¡embraced in the numerous assignments of error, for the reason that we find the patent and certification to be void without considering that evidence, and, therefore, the errors, if any, in admitting it were without injury to the plaintiff.

If,' as we hold, the patent to Yutlee and certification to the State were void and conveyed no title, it is quite evident that plaintiff could not recover, and we reach the conclusion that they were void from a consideration of other evidence which he hold was properly admitted, withing giving any effect to the evidence here referred to. We shall confine our decision to the question presented in argument on behalf of plaintiff in error. It is an elementary rule in actions of ejectment that the plaintiff must recover on the strength of his own ¡title.

If- it appeared, therefore, from any evidence, properly admitted, on the part of the defendant thát the plaintiff had no title to the premises which it sought to Recover, the judgment of the court below was right and' ought to he affirmed, even though the court may have erred in other respects, as such'errors , if any were committed, could not he prejudicial to the • plaintiff.

In this view the only Puling on the admission of evidence that ■ . tye find it necessary to consider ■ Is that complained rtf under the first assignment ■ of error, relating to the; admission in evidence of the certified copy of the, order of the President of the United States, dated February 9th, 1842, purporting to set apart the .premises claimed, as a part of a military reservation on the-north end of Amelia island. Many objections were urged in fhe court below to the admissibility of this document, but in this court the objections are confined to the following: 1st.

That nearly all of lots one and two were embraced in the Spanish grant to McClure and could not, therefore, be reserved. We consider the question of the validity of that grant in another part of this opinion, and find that it is. invalid. 2nd. That the order was subsequently revoked by the order of the Secretary of War of 1849. This question is considered in another connection, and determined adversely to the contention of plaintiff in error. 3rd. That the President could not by mere order, without authority of

an act of Congress, reserve land for military pxirposes. It. is well settled that the President of the United States, by executive order, could reserve a part of the public domain for a specific lawful purpose, such as a military reservation; Grisar v. McDowell, 6 Wall. 363; United States v. Payne, 8 Fed. Rep. 883; Apis v. United States, 88 Fed. Rep. 931, text 940; Onderdonk v. San Francisco, 75 Cal. 534, text 538, 17 Pac. Rep. 678; Nevada Ditch Co. v. Bennett, 30 Oregon, 59, text, 103, 45 Pac. Rep. 472. See, also, Johnson v. Drew, 171 U. S. 93.

Lands thus reserved were effectually segregated from the public dorixain and passed beyond the control of . the General Land Office as a part thereof,'unless it n acquired jurisdiction thereover in some lawful manner As to such iands the General Land Office was wholly without jurisdiction, and any action taken there, whether resulting in the issuance of a patent, or the certification of such lands to the State as swamp find overflowed lands, ha<b ,no binding force-or effect whatever, but was subject'to attack whenever and wherever it should be asserted as tlie basis of a title. Burfenning v. Chicago, St.

Paul, M. & O. Ry. Co. 163 U. S. 321; Lake Superior Ship Canal Ry. Co. v. Cunningham, 155 U. S. 354; Doolan v. Carr, 125 U. S. 618, 8 Sup. Ct. Rep. 1228; Wilcox v. Jackson, 13 Pet. 498; King v. McAndrews, 111 Fed. Rep. 860; United States v. Winona & St. P. R. R. Co., 67 Fed. Rep. 948; note 22 C. C. A. page 42, and cases there cited; Smelting Co. v. Kemp, 104 U. S. 636.

It follows that there was no error in admitting in evidence the certified copy of the President’s order, as it established a lack of jurisdiction over the subject-matter in the land department, and thus the invalidity of the patent and certification relied on as a foundation of title. The plaintiff in the court, below objected to the introduction in evidence of the order of the Secretary of War to the Commissioner of the General Land Office of March 23. 1849, and an assignment of error is predicated upon such ruling. • This assignment is, however, not argued and will not be considered.

The only other question we deem it necessary to consider is presented by the fifty-eighth assignment of error, asserting that the finding and judgment in favor of defendant'were not supported by, but were contrary to, the evidence. There was a motion for a new trial embracing this among other grounds, and assignments of error are also based upon the exception taken to the ruling' upon that motion.

We sháll consider this in two aspects:' First, with reference to the patent and certh' fixation referred to' above as a basis of title in plaintiff,' and, second, with reference to the Spanish grant which is also relied on by it.

It having been shown that the property sued for was embraced in'a military reservation set. apart by the President in 1842, it is clear that neither the patent issued to Voice nor the approval of the State’s selection, both of which occurred in 1853, could serve as the basis for a claim of title on the part of plaintiff in error, unless the premises had in the interval been restored to the jurisdiction of the land department.

Plaintiff in error claims that this was accomplished in the following manner: A military board, was appointed in September, 1848, to examine the military reservations theretofore made on the coast of Florida, and report “all the localities that should be reserved, giving limits to each reservation sufficiently definite to guide the land officers,” their instructions stating that “in anticipation of the necessity for occupying certain points, islands, &c., on the coast of Florida as defensive sites, reservations have been made of the pubilc lands to an extent that interferes possibly in some places with the progress of improvement and settlement of the coast.” On March 12, 1849, this board prepared a report, which recommended the reservation, together with other property elsewhere on the coast of Florida, of “all the public land- on the north epd of Amelia island.” On March 23, 1849, the Secretary., of War forwarded a copy of this report to the Commissioner of the General Land Office, accompanied by. a written communication requesting 'that reservations be made in accordance with the report until the completion of the suryey necessary for the location of .the required defences.- This communication has already been referred to in the first part of this opin-_ ion.

The contention of the plaintiff in error is. that it •was thereby left .to the officers of the .land department to determine whether or not the property in dispute fell within the description of “all the public land on the north end of Amelia island,” and that their determination, evidenced by the approval of the selection of lot one as swamp and overflowed land and the issuance of a patent . for lot two, is conclusive, being the determination of a matter within the jurisdiction of the land department. We do not think this contention can be sustained.

The question whether or not lands for which a patent has been issued constituted a part of the public domain, subject to disposition by the land department, is one affecting the jurisdiction of the department which may always be inquire^ into by the courts. Northern Pac. R. Co. v. McCormick, 72 Fed. Rep. 736, and authorities before cited; United Stated v Coos Bay Wagon-Road Co., 89 Fed. Rep. 151.

It is clear to us that the communication of the Secretary of War to the Commissioner of the Land Office, transmitting the report of the military board, Which undertook to reserve ‘rill the public land on the north end of Amelia island” was not intended to, And did not, release the premises in controversy from the Character impressed -upon them as part of a military reservation. Lots one' and two fall .fairly within the description of “all the public land on the north end of Amelia island,” and we can not assume that there Was any intención to relinquish them, from language which does not justify that assumption.

Amelia island is a long island, extending north and south a distance of more than ten miles, and these, lots are on the north end of the island. They had formerly been expressly reserved by accurate description; áhd Che subsequent order we think by the language “all the public land on the north end of Amelia island,” continued'the former existing'reservation.

These documents'in the Geebral Land Office haring reserved the lots for military purposes, if was not within the jurisdiction of the land department to convey and part of -them to Yule.e, nor did the act of Congress granting swamp and-overflowed'land's convey them to the State, nor authorize the land office to approve their selection qs such: We freely concede the proposition that when lands within .the,jurisdiction of the land department have been approved as swamp and overflowed under legislation of Congress authorizing the officers of that department to determine their character as such, that such approval is conclusive on collateral attack, but this principle does not apply to the present case for the very obvious reason that lot one was not within the jurisdiction of the land department, nor did the swamp and overflowed land act apply to it, because it had been reserved for military purposes, and could not, therefore, be selected as swamp and overflowed land under that act, even though it was in fact that character of land.

Whether the want of jurisdiction in the land department over a particular piece of land can be proved by parol evidence, is a question not necessary to decide in this case, as the proof here consists of documentary evidence on file in the land office, viz: 'the orders of 1842 and 1849 reserving the lots of land for military purposes.

Where such evidence is produced we are satisfied from the authorities cited that a court of law-can in an action of ejectment adjudge a patent and certification of land made in defiance of a legal reservation of such land for a lawful purpose, void/ and refuse to give* effect to them. It follows, therefore, that no title is shown from the United States Government to either of these lots in controversy, and. that being so, it is unnecessary to consider the subséquént instruments which constitute links in the chain of title sought to be deduced from this original source.

There only remains as a basis for title in the plaintiff in error the alleged Spanish grant to Don Juan McClure, claimed to have been made in 1813, and that, we think is equally unavailing. There may be grave doubt. whether or not the alleged grant was in fact a complete and perfect grant of title. It does not possess the usual attribules of u grant of title. In this connection we may repeat the language used by the Supreme Court of the United ¡átales in the case of Mitchell, Governor of Florida, &c., v. Furman, 180 U.

S. 402, text 432: ‘‘The grant did not run in the name of the King; did not purport to make the grant as ‘in. absolute property did not assert the legal right to make such a grant; and "the terms of the, paper were consistent with a grant • of possession merely, or, at the most, of a concession, which required a title in form to be subsequently issued. . The report of the land commissioners of January 31, 1826, states: ‘A royal title is the highest order of title known by any law, 11 sage or principle, in the province of East Florida.

Titles of this description were designed to convey the fee simple to the grantee; they were usually made by the acting Governors of the province in the name of the King; they recited the grant to be in perpetuity, and also the specific‘metes and bounds of the land. This title may be said to correspond in character with that of a patent issued by our government.

Concessions without conditions are understood to' differ from a royal title only in this, that most of the latter recite the metes and bounds, whereas the unconditional concession, although definite in quantity and location of the land, is still subject to.a survey; which, when made, was followed up by maturing the concession by a royal title.

There is also a peculiarity in the phraseology of a royal title; in all the grants of this nature the legal right to grant the lands is asserted.” The decree relied on as establishing the grant, after reciting the merit of the document presented, states that McClure having complied with the requisites to which are subjected those giants according to the certification of the witnesses of assistance, “we accede to his petition, for that it must be dispatched the corresponding title of possession of the said land in the terms to which the instructions formed for such grant are referred." Whether the grant was or was not a complete one, there is no pretense that it was ever presented for confirmation to the board of commissioners appointed to adjudicate upon Such claims, or that proceedings were had to have its validity adjudicated under the acts of Congress, and it was, therefore, barred by the limitation in the various aets of Congress requiring such presentation, or the initiation of proceedings for its adjudication.

Mitchell, Governor of Florida, &c. v. Furman, supra. We have not felt it incumbent upon us to consider other questions which might arise if plaintiff in error had shown a valid inception of title. It fails to do so, and that is the broadest ground upon which to rest an affirmance of the judgment. The judgment is affirmed.