Title: Memorandum with the cases of Martin v. Bush and Pierce v. Warren
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Title: Memorandum with the cases of Martin v. Bush and Pierce v. Warren
Alternate Title: Letter to Buddy Blain from Jack at law firm of Dixon, Bradford, Williams, McKay & Kimbrell enclosing a memorandum with the cases of Martin v. Bush and Pierce v. Warren involving grant of swamp and overflowed lands in 1850 that had become property of the s
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Language: English
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Spatial Coverage: North America -- United States of America -- Florida
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General Note: Box 5, Folder 11 ( SF MEAN ANNUAL FLOOD ), Item 13
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
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Bibliographic ID: UF00052649
Volume ID: VID00001
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Holding Location: Levin College of Law, University of Florida
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LAW OFFICES

DIXON, BRADFORD, WILIAMs, MCIKAY & KIMBRELL ,

JAMES A. DIXON PROFESSIONAL ASSOCIATION
A. LEE BRADFORD JOHN G. McKAY
REGINALD L. WILLIAMS (1886-1951)
JOHN G. McKAY, JR. H. REID DEJARNETTE
CHARLES A. KIMBRELL (1897-1964)
WARREN D. HAMANN
JOSEPH F. JENNINGS
JAMES A. DIXON, JR.
JOS. W. WOMACK NINTH FLOOR
PARL A. AFRLSON DADE FEDERAL SAVINGS BUILDING
A. H. TOOTHMAN 101 EAST FLAGLER STREET
WILLIAM H. JOBES,JR. PERSONAL AND MIAI, FLORIDA
JAMES F. CROWDER, JR.
JAMES H. WALSH CONFIDENTIAL CABLE ADDRESS "MYAMMA"
BARRY G. SEIDEL
DEBLOIS MILLEDGE, JR. TELEPHONE 377-1561
WALTER S. HOLLAND
MALCOLM W. WELDON
FREDERICK B. HART
KENNETH F. CLAUSSEN
R. L. EDWARDS My 2
ROBERT L. BELL May 23, 1969





Mr. Buddy Blain
% Committee on Conservation and
Natural Resources
200 East Gaines Street
J. Edwin Larson Building
Tallahassee, Florida 32304

Dear Buddy:

I enclose a memorandum which was prepared by our office
in connection with the case of Martin v. Bush and Pierce v. Warren.
You will note on page 2 of the memorandum, that the Bush case
involved sawmp and overflowed lands but that the Court said "the
grant of swamp and overflowed lands in 1850 did not and could not
have included any lands t hat had become the property of the state
in consequence of the act of 1845, admitting Florida into the
Union," (sovereignty lands).

You will also notice the discussion in connection with
Pierce v. Warren wherein the same things were true where the
Trustees thought the lands were swamp and overflowed but, in that
case, it was held that they were sovereignty.

These are the kind of problems we are trying to
straighten out with the title bill.

Sincerely,




the firm


JGM/erh

Enc.













TO: JOHN G. McKAY, JR. March 21, 1969

FROM: KENNETH F. CLAUSSEN

RE: Submerged land--problems of
title and right to fill


TITLE TO SUBMERGED LAND

In Martin v. Bush, 112 So. 274, 283 (S.Ct. 1927), the

court sets out the chain of title to submerged or sovereignty

land.

"Upon the admission of Florida into the Union
by Act of Congress of March 3, 1945, the state
by virtue of its sovereignty became the owner
of all lands under the navigable waters within
the state, including the shores or spaces, if
any, between ordinary low-water mark and ordi-
nary high-water mark, and also all tidelands,
viz. lands covered and uncovered by the daily
ebb and flow of normal tides.... Such lands
under navigable waters to ordinary high-water
mark and tidelands may, for convenience, be
designated as sovereignty lands, since they
belong to the state by virtue of its sover-
eignty, in consequence of becoming a state
in 1845.... The navigable waters include
lakes, rivers, bays, or harbors, and all waters
capable of practical navigation for useful
purposes, whether affected by tides or not,
and whether the water is navigable or not in
all its parts towards the outside lines or
elsewhere, or whether the waters are navigable
during the entire year or not...."

"In 1845, the state, by virtue of its sovereignty,
upon being admitted to the union, became the
owner of, and, unless lawfully conveyed or granted,
still owns, the beds of all navigable lakes to
ordinary high-water mark, however shallow the
water may be at the outside lines or elsewhere,
if the water is in fact a part of the particular
lake that is navigable for useful purposes....
In flat territory or because of peculiar con-
ditions, there may be little if any shore to
navigable waters, or the elevation may be slight
and the water at the outer edges may be shallow
and affected by vegetable growth or other
conditions, and the line of ordinary high-water
mark may be difficult of accurate ascertainment;
but, when the duty of determining the line of
high-water mark is imposed or assumed, the best
evidence attainable and the best methods avail-
able should be utilized in determining and
establishing the line of true ordinary high-
water mark, whether it is done by general or
special meandering or by particular surveys of
adjacent land.... When the line of ordinary
high-water mark is duly ascertained and established
by competent authority, such line should be re-
garded as the true line, unless duly impeached
for fraud or mistake...."





P.A.
DIXON. ",K-J~,Yr. BRADFORD. WILLIAMS, McKAY & KIMERELL/ATTORNEYS AT LAW, MIAMI. FLORIDA









In the Bush case unsurveyed land was conveyed as swamp

and overflowed land in 1904. At the time of the conveyance,

the Trustees relied upon a private survey which set the

boundaries by meander line. This survey, and conveyance made

in reliance thereon, as disclosed by subsequent state survey,

included submerged land. The Court held that the plaintiff

did not hold title to the submerged land under the 1904 deeds

from the Trustees.

In 1850 Congress, under the Swamp and Overflowed Land

Act, granted to Florida swamp and overflowed land. However,

the Court said "the grant of swamp and overflowed lands in

1850 did not and could not have included any lands that had

become the property of the state in consequence of the act of

1845, admitting Florida into the Union," because the state by

virtue of its sovereignty already owned the land below ordinary

high-water mark. Martin v. Bush, supra.

"Conveyances of uplands, including swamp and
overflowed lands, do not include sovereignty
lands below the ordinary high-water mark of
lands under navigable waters, unless authority
and intent to include such sovereignty lands
clearly appear."

"Lands bordering on the shores of navigable
lakes or other navigable bodies of water may
be swamp and overflowed lands within the
meaning of the Swamp and Overflowed Land Grant
Act of Congress of Sept. 28, 1850, but such
swamp and overflowed lands do not extend beyond
the ordinary high-water mark of the navigable
lakes or other bodies of navigable water, since
lands under navigable waters to ordinary high-
water mark become the property of the state by
virtue of its sovereignty...."

"If by mistake or otherwise sales or conveyances
are made by the Trustees of the Internal Improve-
ment Fund of sovereignty lands, such as lands under
navigable waters in the state or tidelands...as
and for swamp and overflowed lands, under the
authority given such Trustees to convey swamp and
overflowed lands, such sales and conveyances are
ineffectual for lack of authority from the state...."

"...the Grantee takes with notice that the con-
veyance of swamp and overflowed lands does not
in law cover any sovereignty lands, and that the
Trustees of the swamp and overflowed lands as such
have no authority to convey sovereignty lands...."

"When the Trustees of the Internal Improvement Fund
made the conveyance to their predecessors in title
of complainants in 1904, such Trustees had authority
to convey the swamp and overflowed lands of the
state; but they had no authority to convey sov-

-2- P.A.
DIXON..JA~ MATTE BRADFORD, WILLIAMS, McKAY & KIMBRELL, ATTORNEYS AT LAW, MIAMI, FLORIDA










ereignty lands under navigable waters or the
shores below ordinary high-water mark of
navigable waters or tide lands...." Martin v.
Bush, supra.

The Court in Pierce v. Warren, 47 So.2d 857 (S.Ct. 1950),

was faced with a similar determination as in Bush. The Trustees

in 1911, conveyed land as swamp and overflowed land. At the

time of the conveyance the section in which the property was

located had not been surveyed. A subsequent survey by the

U.S. Government and the State established that there were no

swamp and overflowed lands in the area conveyed in 1911.

The contesting grantee attempted to persuade the Court

that he owned the submerged property by emphasizing the cir-

cumstances surrounding the surveys and the treatment of the

title by those authorized to deal with it. The Plaintiff

argued that the Trustees thought the lands were swamp and over-

flowed lands for the very reason that they had no authority to

convey sovereignty lands, and argued that as the lands were

patented as swamp and overflowed lands by the Secretary of the

Interior he too considered the lands as being of that character.

The Court in passing on whether it should hold title

was valid because no survey had shown at the time of the con-

veyance that the property was sovereignty land stated:

"Despite these considerations we think the
vital, pivotal point is the nature of the
land at the time of the transfer, which
could only be determined accurately by
a survey. If the Trustees of the Internal
Improvement Fund actually conveyed 'sover-
eignty lands believing them to be 'swamp
and overflowed lands,' their mistake, however
innocent, would not supply the power they
lacked. Assuming the Secretary of Interior
purposely included the land in his patent,
we cannot see how the State would have got
any more by the process if the land was
actually a part of the 'sovereignty lands,'
for it already possessed these. So we attach
small importance to these two acts, which .
amounted to little more than gestures if, in
truth, the physical characteristics of the
land itself placed it in the classification of
'sovereignty land.'"

"If the property was in fact tideland in
1911, there was no power in the Trustees to
convey it, and a deed attempting to do so ...
was void. When the sale was made, it became
the duty of the state to survey the property
to fix its character and boundaries...and this
was not done. '...a complete and perfect


-3- P.A.
DIXONxy Wy s5 BRADFORD. WILLIAMS, McKAY & KIMBREL, ATTORNEYS AT LAW, MIAMI, FLORIDA












title' cound not vest in the appellant's
predecessor 'to unsurveyed public land until
the lands had been identified by a survey
authorized by law....'"

Martin v. Bush was cited and followed in U.S. v. 2889.17

Acres of Land, 269 Fed. Supp. (902 (M.D. Fla. 1967), with the

effect that even though the alleged land owner held deeds from

the Trustees which purported to convey swamp and overflowed

land, the fact that the land in question was actually sov-

ereignty land rendered plaintiff's title void.



-, .




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