Hardee Trustees v. Horton

108 So. 189, 90 Fla. 452, 1925 Fla. LEXIS 618
CourtSupreme Court of Florida
DecidedNovember 3, 1925
StatusPublished
Cited by19 cases

This text of 108 So. 189 (Hardee Trustees v. Horton) is published on Counsel Stack Legal Research, covering Supreme Court of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hardee Trustees v. Horton, 108 So. 189, 90 Fla. 452, 1925 Fla. LEXIS 618 (Fla. 1925).

Opinions

Statement.

By treaty of February 22, 1819, Spain ceded “to the United States in full property and sovereignty, all the territories * * * known by the name of East and West Florida,” with an expressed provision that all the grants of land made by Spain before January 24, 1818, in said territories shall be ratified and confirmed to the persons in possession of the lands. State ex rel. Ellis v. Gerbing, 56 Fla. 603, 47 South. Rep. 353, 22 L. R. A. (N. S.) 337.

Under that treaty the United States acquired the ownership of all lands, including the swamp and overflowed lands in the area now constituting the territorial limits of the State of Florida that had not been granted or conveyed to private ownership prior to January 24, 1818, “when the first proposal for the cession of the Floridas was made” by Spain. See Art. VIII of Treaty, 1 Rev. Gen. Stats, p. 239.

The admission of the State of Florida into the Union by the Act of Congress approved March 3, 1845 (5 Stat. 788), did not affect the proprietary rights of the United States *455 in the lands within the State that had been ceded to the United States by Spain, where such lands did not constitute the beds or shores of the navigable waters of the State, or tide lands. Trustees Internal Improvement Fund v. Root, 63 Fla. 666, 58 South. Rep. 371; Brickell v. Trammell, 77 Fla. 644, 82 South. Rep. 221.

By virtue of an Act of Congress approved September 28, 1850, the State of Florida was granted in proprietary right all of the then unsold swamp and overflow lands in the State, which grant covered more than 20,000,000 acres of “swamp and overflowed lands, made unfit thereby for cultivation.” The Act of Congress required the Secretary of the Interior “to make out an accurate list and plats of the lands * * * 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 * * * subject to the disposal of the legislature thereof.” This statutory provision contemplated a survey of the granted lands to be made by the United States authorities, and the issuance of a patent, before the title became fully vested to particular lands (Byrne Realty Co. v. South Florida Farms Co., 81 Fla. 805, 89 South. Rep. 318; Little v. Williams, 231, U. S. 335, 34 Sup. Ct. Rep. 68) and required “that in making out a list and plats of the land aforesaid, all legal subdivisions, the greater part of which is “wet and unfit for cultivation,” shall be included in said list and plats; but when the greater part of a subdivision is not of that character, the whole of it shall be excluded therefrom. ’ ’ Some of the granted lands were surveyed by the Federal authorities, and patents covering lands found to be within the grant were issued to the State from time to time. In the lower part of the peninsular portion of the State of Florida south of Lake Okeechobee, is *456 an immense area of several million acres that at the time of the grantl in 1850 belonging to the United States and was perhaps in its entirety ‘ ‘ swamp and overflowed lands, made thereby -unfit for cultivation.” This area was and is known as “The Everglades.” The areas both east and west of the margins of the Everglades were surveyed by the United States authorities. These surveys terminated in the marginal land where the higher ground merged into the marsh of the Everglades, the natural boundaries of the Everglades being the shores of Lake Okeechobee at the northern edge of the Everglades and the shores of the sea at their southern edge, there being a comparatively narrow-area of more elevated lands on the east towards the Atlantic Ocean and a wider area of higher lands on the west towards the Gulf of Mexico.

The swamp and overflowed lands granted to the State by the Act of Congress of September 28, 1850, were by Chapter 610, Laws of Florida, approved January 6, 1855, vested in designated State Officers as Trustees of the Internal Improvement Fund'of the State of Florida, and lands patented to the State under the Federal grant were and are held and disposed of by such Trustees as directed by the statutes of the State. The lands in the Everglades were perhaps wholly swamp and overflowed in their nature which under the Act of Congress of 1850 would make them inure to the State as an entirety except the sixteenth sections previously granted to the State by Act of Congress approved March 3, 1845, “for the support of public schools.” State ex rel. Kittel v. Jennings, 47 Fla. 307, 35 South. Rep. 986. Because of the character of the lands in the Everglades, there would be little if any highlands in the area that would under the Act of 1850 be reserved to the United States as the result' of surveys, and the general government made no surveys of the Everglades, therefore the Secretary of Interior could not *457 “make out an accurate list and plats of the lands” as required by the granting Act of Congress. No surveys of the Everglades having been made by the United States so as to issue patents describing the lands pursuant to the rectangular system of surveying the public lands, on April 29, 1903, Governor W. S. Jennings obtained a patent, No. 137, from the United States government covering “The Everglades,” being swamp and overflowed lands within stated “metes and bounds,” (with particular exceptions covering “all of what would be the school sections if the lands were surveyed” and other small described areas) the lands covered by the patent “containing in the aggregate an estimated area of 2,862,280 acres. ’1 The description by “stated metes and bounds” followed the lines of existing Government surveys around the edges of the Everglades on the east and west sides, and the shores of Lake Okeechobee and of the Gulf on the north and south respectively.

The Patent is as follows:

“No. 137.
THE UNITED STATES OP AMERICA.
“To all to whom these presents shall come,- Greeting.
“WHEREAS, By the Act of Congress approved September 28, 1850, entitled ‘An Act to enable the' State of Arkansas and other States to reclaim the ‘Swamp Lands within their limits, ’ it is provided that all the ‘ Swamp and Overflowed Lands,’ made unfit thereby for cultivation, within the State of Florida, which remained unsold at the passage of said act, shall be granted to said State:
“AND WHEREAS, In Pursuance of instructions from the General Land Office of the United States, the several tracts or parcels of land hereinafter- described have been selected as ‘ Swamp and Overflowed Lands, ’ ■ inuring to the said State under the act aforesaid, sitriate in the District of Lands subject to sale at Gainesville, Florida, to-wit:
*458 “The Everglades, being the swamp and overflowed lands within the following metes and bounds: Commencing at the Southwest corner of T. 60 S. R. 37 E., where the west line of said township touches the water, then run north along said west line of said T. 60 S. R. 37 E., to the northwest corner of said township; then east along the north line of said township to the southwest corner of T. 59 S. R. 38 E., thence north along the west line of Tps. 59, 58 and 57 S. R. 39 E., to the northwest corner of T. 57 S. R.

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Bluebook (online)
108 So. 189, 90 Fla. 452, 1925 Fla. LEXIS 618, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hardee-trustees-v-horton-fla-1925.