South Florida Farms Company, a Corporation, Plaintiff in Error, v. E. E. Goodno, Defendant in Error, 84 Fla. 532

Whitfield, J. 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 Congress, approved September 28th, 1850.

It also appears that Goodno claims under a patent issued to the State on February 14, 1880, covering “the whole of fractional sections twenty-eight * and thirty * in 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 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 section.” Where because Of the presence of a permanent body of water which is approximately meandered in making the survey, there is a deficiency in the area of ,a section, it is referred to as a “fractional section.” In such cases the water lines and not the meander lines may control as boundaries even though there may be some land between the meander line and the water line. See Railroad Co. v. Schurmeir, 7 Wall. (U. S.) 272; Producers Oil Co. v. Hanzen, 238 U.

S. 325, 35 Sup. Ct. Rep. 755; Greene v. United States, 274 Fed. Rep. 145; Lane v. United States, 274 Fed. Rep. 290; Mitchell v. Smale, 140 U. S. 406, 11 Sup. Ct. Rep. 819, 840; 9 C. J. 190. And where the grantee’s boundary lines make him a riparian owner, the nature and extent of such grantee’s title to lands under the water to which his boundaries extend, are controlled by the laws of the State. Hardin v. Jordan, 140 U. S. 371, 11 Sup. Ct. Rep. 808, 838; Shively v. Bowlby, 152 U. S. 1, 14 Sup. Ct. Rep. 548. In Florida a riparian owner upon navigab'e waters takes 'to ordinary high water mark. Broward v.

Mabry, 58 Fla. 398, 50 South. Rep. 826; State ex rel. Ellis v. Gerbing, 56 Fla. 603, 47 South. Rep. 353; Brickell v. Trammell, 77 Fla. 544, 82 South. Rep. 221. 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 approximately conform to a permanent water line that is referred to in the survey field notes a.nd plats, the conveyance covers only the surveyed land in the section. See 17 L. D. 355; Horne v. Smith, 159 U. S. 40, 15 Sup. Ct. Rep. 988; Niles v. Cedar Point Club, 175 U. S. 300, 20 Sup. Ct. Rep. 124; French-Glenn Live Stock Co. v. Springer, 185 U. S. 47, 22 Sup. Ct. Rep. 563; Lee Wilson & Co. v. United States, 245 U. S. 24; 38 Sup. Ct. Rep. 21; Jeems Bayou Hunting & Fishing Club v. United States, 274 Fed.

Rep. 18; United States v. Lee Wilson & Co., 214 Fed. Rep. 630; Lord v. Curry,71 Fla. 68, 71 South. Rep. 21. 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. Schurmeier, 7 Wall. (U. S.) 272, 19 L. Ed. 74; Lane v. United States, 274 Fed. Rep. 290, and authorities cited. 9 C. J. 189.

But where an official survey meanders not a permanent body of water, but low marsh or-similar lands' that are adjacent to other lands being surveyed, the meander line is the boundary. See Lee Wilson & Co. v. United States, supra; Chapman & Dewey Lumber Co. v. St. Francis Levee Dist., supra; Niles v. Cedar Point Club, 175 U. S. 300, 20 Sup. Ct. Rep. 124; Horne v. Smith, 159 U. S. 40, 15 Sup. Ct. Rep. 988; Producers’ Oil Co. v. Hanzen, 238 U. S. 325, 25 Sup. Ct. Rep. 755; Scott v. Lattig, 227 U. S. 229, 33 Sup. Ct. Rep. 242; Jeems Bayou Hunting & Fishing Club v. United States, 274 Fed. Rep. 18; Moss v.

Ramey, 239 U. S. 538, 35 Sup. Ct. Rep. 183; Security Land & Exploration Co. v. Burns, 87 Minn. 97, 91 N. W. Rep. 340; Chapman & Dewey Land Co. v. Bigelow, 77 Ark. 338, 92 S. W. Rep. 534; United States v. Lee Wilson, supra. See also Producers’ Oil Co. v. Hanszen, 132 La. 691, 61 South. Rep. 754; Lord v. Curry, 71 Fla. 68, 71 South. Rep. 21; Producers’ Oil Co. v. Hanszen, 238 U. S. 325, 35 Sup. Ct. Rep. 755; City of Tarpon Springs v. Smith; 81 Fla. 479, 88 South. Rep. 613; Gauthier v. Morrison, 232 U. S. 452, text 549, 58 L. Ed. 680, 34 Sup. Ct. Rep. 384; Security Land & Exploration Co. v. Burns, 193 U.

S. 167, 24 Sup. Ct. Rep. 425; 9 C. J. 190. The survey controls. Stonewall Phosphate Co. v. Peyton, 39 Fla. 726, 23 South. Rep. 440. 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 fractional sections” 28 and 30, T. 42 S.

R. 30 E. “according to the official plats of survey of the said lands, ” conveyed to the State, and the State conveyed to its grantee, the entire contents of sections 28 and 30, the theory being that as the plat of survey shows that the northeast and the southeast corners of

section 28 were located, and that a small triangular piece containing 27.50 acres in the northeast corner of

section 28 was actually surveyed and platted, and that as the western line and the southern line of

section 30 had been located and platted and that the south half of the southeast quarter of

section 30 had been regularly surveyed and platted and lots 1, 2 and 3 having irregular north lines, but all in the south half of

section 30, had been actually surveyed and platted, the conclusion asserted is that sections 28 and 30 were to be regarded as having been surveyed and that the complete legal title to the entire area in the two sections passed to the State under the description “the whole of fractional sections 28 and 30.” 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 “Caloosahatchee River,” and no survey lines are run through, such “impracticable sawgrass marsh.” None of the lines of sections 28 and 30 touch or even approximately reach the waters of the river, except the west line of

section 30, being also a range line, which crosses the river. The first patent was confined to the fractional or surveyed portions of the sections 28 ,and 30 and the patent of June 21, 1909, covered “all of unsurveyed sections 28 and 30.” 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.” The patent issued February 14, 1880, covered “the whole of fractional sections twenty-eight, twenty-nine and thirty * 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 covered by the similar description in the patent to the State as shown by the “list and plats of the lands,” upon which under the granting Act of Congress the patent was issued, and to which the patent expressly referred for definiteness of the descriptions- contained in the patent, such lists and plats being public records and showing by demonstration that “all of fractional

section 28” contains 27.50 acres and that “all of fractional

section 30” contains 233.90 acres. 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. As the plaintiff, the South Florida Farms Company, claims under the patent covering the unsurveyed portions of sections 28 and 30, and as the defendant claims under the patent covering “the whole of fractional sections 28, 30” which do not .cover the unsurveyed portions of the sections, the verdict and judgment for the defendant are erroneous, since the lands described in the declaration cover the unsurveyed portions of the section, to which the plaintiff shows title, and no superior right by adverse possession or otherwise of the defendant is established. See Miller v. White, 23 Fla. 301, 2 South.

Rep. 614. 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. Taylor and West, J. J., and Jones, Circuit Judge, concur. Browne, C. J., dissents.