Title: Apalachicola Land & Development Co. v. McRae - (Supreme Court of Florida. Nov. 8, 1923. Rehearing Denied Dec. 20, 1923)
CITATION THUMBNAILS PAGE IMAGE ZOOMABLE
Full Citation
STANDARD VIEW MARC VIEW
Permanent Link: http://ufdc.ufl.edu/WL00004682/00001
 Material Information
Title: Apalachicola Land & Development Co. v. McRae - (Supreme Court of Florida. Nov. 8, 1923. Rehearing Denied Dec. 20, 1923)
Physical Description: Book
Language: English
Publisher: 98 Southern Reporter
 Subjects
Spatial Coverage: North America -- United States of America -- Florida
 Notes
Abstract: Jake Varn Collection - Apalachicola Land & Development Co. v. McRae - (Supreme Court of Florida. Nov. 8, 1923. Rehearing Denied Dec. 20, 1923) (JDV Box 76)
General Note: Box 27, Folder 1 ( East Central and Central Florida Regional Planning Council - December 1995 (Draft) - 1995-1997 ), Item 4
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
 Record Information
Bibliographic ID: WL00004682
Volume ID: VID00001
Source Institution: Levin College of Law, University of Florida
Holding Location: Levin College of Law, University of Florida
Rights Management: All rights reserved by the source institution and holding location.

Full Text



APALACHICOLA LAND & DEVELOPMENT CO. v. McRAE
(91 So.)


matter of record that the plea was volun-
tary and uninfluenced by fear. 8 R. C. L.
115; note, 34 L. R. A. (N. S.) 259.
[10] The greater portion of the record and
most of the contentions made relate to mat-
ters not proper to be considered on a writ
of error coram nobis; but there are in the
transcript of the record statements contain-
ed in affidavits made by others than the de-
fendant, and substantial evidences of other
circumstances that may fairly tend to cor-
roborate the affidavit of the defendant that
he pleaded guilty "because he was afraid of
being killed," which corroborating state-
ments and circumstances were not particu-
larly referred to by counsel, and which, per-
haps, were not fully weighed and considered
by the court; and, as a proper function of
a writ of error coram nobis is to give ap-
propriate relief when a plea of guilty has
been tendered under a well-grounded fear of
bodily harm, the court has concluded that,
under the extraordinary circumstances of
this case, a rehearing should be granted to
again consider the question whether the
transcript of the record brought here on
writ of error duly shows that the plaintiff
in error pleaded guilty under such fear or
duress as to render the plea a nullity and
the subsequent proceedings on the indict-
ment invalid.
The question of the guilt or innocence of
the plaintiff in error of the charge contain-
ed the indictment cannot be considered on
this writ of error taken to the final order of
the circuit judge denying a writ of error
coram nobis to the plaintiff in error.
It is considered, ordered, and adjudged
that the mandate in this cause be recalled
from the trial court; that the cause be re-
instated on the docket of this court, and
that a rehearing be granted upon the ques-
tion stated. It is so ordered.

TAYLOR. C. J., and ELLIS, BROWNE,
WEST, and TERRELL, JJ., concur.


(86 Fla. 514)
Earle G. MOORE, Appellant, v. HILLSBOR-
OUGH COUNTY, in the State of Florida, C.
T. Friend, D. R. Crum, John T. Gunn, O. A.
Ayala, and W. T. Williams, Constituting and
Being the Board of County Commissioners
of Hillsborough County, State of Florida, Ap-
pellees.
(Supreme Court of Florida. Nov. 30, 1923.)
SAppeal from Circuit Court, Hillsborough
County; F. M. Robles, Judge.
Gibbons & Gibbons, of Tampa, for appellant.
T. M. Shackleford, Jr., of Tampa, for appel-
lees.

PER CURIAM. This cause having hereto-
fore been submitted to the court upon the


'transcript of the record of the decree herein
and briefs and argument of counsel for the re-
spective parties, and the record having been
seen and inspected, and the court being now
advised of its judgment to be given in the
premises, it seems to the court that there is no
error in the said decree; it is therefore, con-
sidered, ordered, and adjudged by the court
that the said decree of the circuit court be and
the same is hereby affirmed.
TAYLOR, C. J., and WHITFIELD, ELLIS,
BROWNE, WEST, and TERRELL, JJ., con-
cur."
(86 Fla. 384)
Rosa Lee LANIER, Joined by Her Husband,
F. M. Lanier, Appellants, v. P. O. RICKMAN,
Jr., Nannie Mae Woodward, Joined by Her
Husband, J. D. Woodward, and Lizzie Rick-
man, Appellees.
(Supreme Court of Florida. Nov. 5, 1923.)
Appeal from Circuit Court, Charlotte Coun-
ty; George W. Whitehurst, Judge.
Treadwell & Treadwell, of Arcadia, for appel-
lants.
Leitner & Leitner, of Arcadia, for appellees.
PER CURIAM. The appeal herein was taken
from an interlocutory order overruling a gen-
eral demurrer to a bill of complaint in an
equity cause. Upon due consideration it ap-
pears that the allegations of the bill state an
equity for appropriate relief, if proper and
sufficient proofs are adduced in due course of
procedure; therefore the interlocutory order
appealed from is affirmed on the authority of
Crosland v. Brickell et al. (No. 1), 86 Fla.
-, 97 South. 286, decided at this term.
Affirmed.
WHITFIELD, P. J., and WEST and TER-
RELL, JJ., concur.

(86 Fla. 393)
APALACHICOLA LAND & DEVELOPMENT
CO. et al. v. McRAE, Commissioner of
Agriculture, et al.
(Supreme Court of Florida. Nov. 8, 1923.
Rehearing Denied Dec. 20, 1923.)
(SUllabus by the Court.)
I. States .=i191(2)-Suit to obviate effect of
Illegal act of state officer not suit against
slate.
A suit to obviate the effect of an illegal act
of a state officer as such is not a suit against
the state, for the state authorizes only legal
acts by its officers.
'2. Equity =239-Effeot of demurrer as admis-
sion stated.
A demurrer in equity does not admit legal
conclusions asserted in the bill of complaint, or
conclusions of fact not justified by the facts al-
leged, or assertions of ultimate facts that are
not sustained by the facts alleged, particularly
when the right asserted as a conclusion de-
pends upon unusual provisions of law and pro-
ceedings thereunder, and no such provisions or
proceedings are made to appear.


:=:For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexe







98 SOUTHERN REPORTER


3. Navigable waters S=36(7)-Private owner.
ship of lands below high-water mark should
be particularly shown.
Even if in this state lands below high-water
mark may be the subject of private ownership,
such a right would be a most unusual and ex-
traordinary one, that should be particularly
shown, when claimed in a suit.
4. Navigable waters Q=36(3)-Private owner-
ship of lands extends only to high-water mark.
It is settled law in this state that private
ownership of lands bordering on navigable wa-
ters extends only to high-water mark.
5. Navigable waters *=36(7)-Ownership of
lands below high-water mark under Spanish
grants should be alleged.
If under valid Spanish grants or other-
wise private ownership is claimed in lands be-
low the high-water mark, the source and au-
thority for such claimed ownership should be
made to appear by proper allegations and ex-
hibits or by reference to matters of which ju-
dicial notice is taken.
6. Navigable waters ==36(7) -Claimants of
lands below high-water mark must show
sources of title.
Since under the Spanish law, as well as un-
der the law of this state, private ownership of
uplands stops at high-water mark on naviga-
ble waters, except perhaps under special and
particular provisions and action of sovereign
governmental authority, those claiming owner-
ship below high-water mark must show the
sources and muniments of title from competent
authority to make such a grant, against the
rights of the public in the shores of navigable
waters in this state.
7. Pleading <=,8(6)-Conclusions not support-
ed by allegation of fact defective.
Allegations as to muniments of title and
their legal effect, that are mere conclusions, not
supported by allegations of fact or by matters
duly exhibited, or of which the court may take
judicial notice, are defective.
8. Navigable waters v=a36(7)--Claimant must
clearly show private exclusive rights were
lawfully acquired.
Where private ownership is asserted in
property that under the law is a subject of
common or public use, the claimant must clear-
ly show that the private exclusive right that is
asserted was lawfully acquired through compe-
tent authority in the premises.

9. Public lands ==199-Territories acquired by
Spain vested in crown.
When Spain acquired territory by discovery
or conquest, in North America, the possessions
were vested in the crown; and grants or con-
cessions of portions thereof were made accord-
ing to the will of the monarch.
10. Public lands =4199-Spanlsh crown exer-
cised discretion over possessions.
While the civil law was the recognized ju-
risprudence of Spain, and its rules were gen-
erally observed, yet the crown could exercise
its own discretion with reference to its pos-
sessions.


II. Public lands =228- Indians could lot
grant lands in Florida, except under Spanish
authority. .
While the Floridas were subject to the
dominion of Spain, the Indians could make no
grant or cession of lands in the Floridas, ex-
cept in accordance with the dominant authority
of Spain.
12. Public lands ==208-Effect of Spanish or.
dinanoes stated.
Ordinances and edicts that had the force
of laws were promulgated to be observed in the
Spanish provinces in America, and these includ-
ed authority to designate officials to make or
confirm cessions of land.
13. Public lands g==228-Indians could cede oc-
cupancy of lands in Spanish provinces, sub.
ject to confirmation.
The right of the Indians to occupy for their
accustomed habitation and tribal purposes the
lands they occupied when the provinces of
Spain were established in America was recog-
nized by the Spanish monarch; and while the
ultimate title and right of disposition of lands
and waters in the provinces were vested in the
crown, the Indians were permitted to cede their
recognized right of perpetual occupancy in the
lands to private ownership, provided such ces-
sion was agreeable to and confirmed by the
Spanish monarch or by his authority: the pol-
icy of Spain being to make or confirm grants,
and, as to Indian grants of lands, to perfect
title in accepted grantees for purposes of set-
tlement and cultivation by others than Indians.
14. Navigable waters ters and submerged and tide lands held is
Spanish crown.
Under the civil law in force in Spain and in
its provinces, when not superseded or modified
by ordinances affecting the provinces or by
edict of the crown, the public navigable waters
and submerged and tide lands in the provinces
were held in dominion by the crown as res com-
munes and used as res omnium, and sales and
grants of such lands to individuals were con-
trary to the general laws and customs of the
realm.
15. Navigable waters S=n36(3)-Under Spanish
law, private rights extended only to high-
water mark.
By the laws and usages of Spain the rights
of a subject or of other private ownership in
lands bounded on navigable waters derived from
the crown extended only to high-water mark,
unless otherwise specified by an express grant
16. Navigable waters <4=436(3)-Spanish con-
cession of lands under tide water consummat-
ed only by showing express intent.
Though the Spanish possessions in America
were held by the crown, to be disposed of at
will, a grant or concession of lands under nav-
igable waters and tide lands was not in accord
with usual customs of the kingdom, such lands
and waters being held as res communes for the
public use, .and a conveyance of them to private
ownership could be consummated only by a
clear showing of express sovereign intent.
17. Navigable waters g==36(3)-Spanish policy
of disposition of lands stated.
The difference in the nature and uses of up-
lands and of lands under navigable waters, in-


4t::For other cases ee same topic and KEY-NUMBER in all Key-Numbered Digests and Indexe








APALACHICOLA LAND & DEVELOPMENT CO. v. McRAE
(98 So.)


eluding the shore and tide lands, and the man-
ner and purposes of their dominion by the
sovereign, permitted sales and grants of uplands
to private ownership for purposes of cultiva-
tion and improvement as a matter of state pol-
icy to encourage development; but as the nav-
igable waters and lands thereunder were neces-
sary for public purposes, and their ownership
by private parties would be detrimental to the
public good, no such private ownership was con-
templated or permitted, unless it was express-
ly authorized by the crown to promote a pub-
lic purpose, and then the public use was ex-
cluded only in so far as the private grant was
in fact utilized as expressly authorized to serve
a useful public need or advantage.
18. Public lands 4=228-Nature of title of In-
dians in Spanish provinces.
The title of the Indians to the lands in the
provinces of East and West Florida under the
Spanish monarchy was in the nature of a pos-
sessory right, held in common according to pre-
vailing customs and tribal dominance among the
Indians, subject to the sovereign dominion of
the crown.
19. Navigable waters :=36(I)-Effect of con-
cessions by Indians In Spanish provinces
stated.
Under the laws of Spain applicable to its
Florida provinces, the navigable waters of the
seas and bays were held by the crown for pub-
lic common uses of navigation, fishing, bathing,
etc., and in consonance with the prevailing cus-
toms and uses, the lands under navigable wa-
ters were not ordinarily a subject of private
ownership or of grant or sale, and when a con-
veyance or concession was made to private par-
ties by the Indians subject to confirmation by
the duly constituted Spanish authorities, such
conveyance or concession had reference to lands
embraced in the possessory right or title of the
Indians who made the conveyance or grant,
and a confirmation thereof was of course con-
fined to the intent and scope of the grant, as
made by the Indians who were in possession of
lands; and the grant did not cover any of the
navigable waters of the sea or bays and the
submerged lands thereunder, the ownership of
which latter was in the crown of Spain by virtue
of its sovereignty over the provinces, including
all the rights in and to the waters of the sea
and lands thereunder that were incident to
Spanish sovereignty of the provinces as recog-
nized by the laws of nations.
20. Navigable waters =37(4) Confirmatory
patent by federal government, held not to in-
clude submerged or tide lands.
The confirmatory patent issued by the Unit-
ed States covers "the lands and islands at and
west of the mouth of the Apalachicola river,
which were ceded, granted, and confirmed to
John Forbes & Co., in 1811," and does not in-
clude submerged lands or tide lands.

(Additional Syllabus by Editorial Staff.)

21. Navigable waters 4=36(1)-"Shore" de-
fined; "bed."
The "shores" of navigable waters are the
spaces between high and low water marks, and
the "bed" of the waters includes the shores.


[Ed. Note.-For other definitions, see Words
and Phrases, First and Second Series, Bed;
Shore.]
22. Navigable waters ==36(1)-"Tide land"
defined.
"Tide land" is that which is daily covered
and uncovered by water by the ordinary ebb
and flow of normal tides.
[Ed. Note.-For other definitions, see Words
and Phrases, First and Second Series, Tide
Lend.]
Browne, J., dissenting.
Appeal from Circuit Court, Franklin Coun-
ty; E. C. Love, Judge.
Suit by the Apalachicola Land & Develop-
ment Company and others against W. A. Mc-
Rae, Commissioner of Agriculture of the
State of Florida, and another. Judgment for
defendants, and plaintiffs appeal. Affirmed.


south of the main-
land in Franklin county, Florida, the plain-
tiffs' claim being that such submerged lands
passed to them through an Indian-Spanish
grant to John Forbes & Co. in 1811, and con-
firmed by the United States to Colin Mitchel
et al., the lands of which grant, originally
made to John Forbes & Co., constitute a por-
tion of what is commonly known in Florida
as "Forbes Purchase," comprising several
Indian-Spanish land grants, which were con-
firmed by the United States to Colin Mitchel
et al. Mitchel v. United States, 9 Pet. (U.
S.) 711, 9 L. Ed. 283.
Forbes Purchase.
The lands and islands that constitute the
area known as "Forbes Purchase" are, ex-
cept the islands, situated in a more or less
compact body, extending into the counties of
Franklin, Calhoun, Liberty, Gadsden, Leon,
and Wakulla, in Florida. _


trading com-
panies known as Panton, Leslie & Co. and
their successors, John Forbes & Co., by per-
mission of the crown, did an extensive mer-
cantile business among the Indians in East
and West Florida; the dividing line between
the Floridas being the Apalachicola river.
Large indebtednesses to said mercantile com-
pany having been incurred by the Indians,
which they could not pay, and depredations
upon the merchandise stores of said com-
panies having been made by the Indians, the
in consideration of such indebted-


=For other cases see same tople and KEY-NU n


in all Key-Numbered Digests and Indexes


r







98 SOUTHERN REPORTER


sions of these lands, including islands, were
i e.....and
trained within stated limits."
Speaking generally, the "lands and Islands"
composing the several Indian-Spanish grants
or. cessions included in the "Forbes Purchase,"
are as shown on the accompanying map or
"diagram" as follows:
(1) Grant to Panton, Leslie & Co., con-
firmed by Spanish authority in 1804 and 1806.
(2) Grant to John Forbes & Co., confirmed
by Spanish authority in 1811.
(3) Grant of an island in Apalachicola river
to John Forbes, confirmed by Spanish author-
ity in 1811. This island is in. Calhoun coun-
ty, Fla.



Including
islands between the mainland and the Gulf
of Mexico, from the mouth of the St. Marks
river to the western end of St. Georges
Island; the same being:
"A district of land of which they [the In-
dians] are at present owners and proprietors,
and contained within the following limits: Leav-
ing the Apalachicola river five miles above
Estefamulgee, the line runs through the ham-
mock of said river and the adjacent pine barren,
in a direction E. and E. S. E. more than three
miles, till it meets with the principal path from
Estefamulgee to the nation: then follows said
path N. and N. N. E. eleven miles and a half
or twelve miles, to the spot where the path
from Micasukey to Estefamulgee separates from
the other; thence the line runs along the
same path from Micasukey, E. three miles and
a half to a ravine; thence along the same path
E. and N. E. by E. two miles and a half to
another ravine; thence, still along the same
path, N. E. and E. above a mile, till the junc-
tion with the path of. Ochesee, alias that of
John Mealby, to Apalachy; thence, running the
same in a direction S. E. about three-quarters
of a mile, to the river Tologie; thence, still
along same, E. four miles and three-quarters,
till the spot where the path of John Mealby to
Apalachy separates; thence the line follows the
path of Micasukey Iwhich might more prop-
erly be called the path of Ochesee to Anacheel-
er] E. by N. one mile and a quarter, to the
extremity of a hammock; thence, along the
same path, N. E. and E. N. E. one mile and a
half to four pine trees marked with crosses;
here, leaving the path the line runs through the
hammock, and crosses two ravines N. E. by E.
one mile and thirty-six chains, till it meets
with a path from Anacheeler to the south;
crossing said path for fifty-eight chains, it fol-
lows till it meets with another path leading
from Anacheela to Micasuky, at a distance
of one measured miles from Anacheela; thence,
/ following said path whose directions vary be-
tween S. E. and N. E. three miles, till a spot
where a path separates leading to the south;
leaving this path, and still following the former
along which we came, the line runs through
it in a direction E. and E. N. E. a mile and a
half to a ravine; thence running in the same


path N. E. by N. one mile, till its junction with
Thompson's. path, which comes from the N.
W.; thence, following the same path, here
called Thompson's path, S. E. by S. one mile
and a quarter, till little river; thence, follow-
ing the same path N. E. by E., E. N. E., and
E. one mile, till the spot where the path of
Micasuky separates; thence it follows always
the same path of Thompson's S. E. by E. one-
third of a mile to a ravine; thence, always in
the same path, in various directions between
S. E. and N. E. two miles and a half to an-
other ravine.; crossing which, it goes in a di-
rection S., still along the same path, one mile
and a half to the river Ocklockney; thence,
along the same path in various directions be-
tween S. and E. eighteen miles, to the ex-
tremity of the hammock on the river Wakulla,
where two pine trees are marked with crosses
at one mile distance from the house of John
Keimaire; thence, crossing the hammock and
a ravine, it runs S. by E. sixty-one chains;
thence S. S. E. to a pine marked with a cross,
sixteen chains; thence E. S. E. sixty-four
chains, and thence E. N. E. ninety-six chains.
to a road which leads from the house of Kei-
maire to Ft. St. Marks; thence it runs, cross-
ing the road, forty-six chains N. N. E. to the
river Wakulla, the channel of which forms
the boundary as far as the sea to the east
in the same manner as the great channel of
the river Apalachicola from its mouth to five
miles above Estefamulgee, forms, with a part
of the above line, the limits to the west, and
the high seas beyond all the islands on the
coast, form the limits to the south."
The grant to John Forbes & Co., confirmed
by Spanish authority in 1811, consists "of
two pieces of land contiguous and adjacent to
that which, in 1806, was ceded
* to the house of Panton, Leslie &
Co.," the first of the "two pieces of land"
being within limits described as beginning-
"at the mouth of the river Apalachicola, and
following the ine on the west margin, it as-
cends the Lake Weinico, three miles from its
entrance, which spot is known by two cypresses
marked with crosses; and thence, through the
hammock the distance of one chain south to a
cypress marked; here it was found impracti-
cable to trace the line further on account of
the bad way, but it should run 72 degrees west.
a supposed distance of 1,280 chains, where a
pine is marked; thence south 30 degrees, west
100 chains, to a pine marked with a cross, on
the margin a reedy marsh; thence the line
runs by water, one mile and a quarter, south 14
degrees west, to the extreme western point of
St. Vincent's or Deer Island, including the
whole of the island."
These designated limits include "the lands
and islands at and west of the mouth of said
[Apalachicola] river." The other of the "two
pieces of land" granted to John Forbes &
Co. in 1811 may be described as leaving the
east end of St. Vincent's Island, crossing the
bay towards the northeast,
"thence ascending the river Apalachicola, and
beginning the line at the boundary of the lands
formerly ceded to the house of Panton, Leslie
& Co. (at a point on the Apalachicola river
'five miles above Estefamulgee' on said river)







APALACHICOLA LAND & DEVELOPMENT CO. v. McRAE
(98 So.)


and running the saie up the said river to the
mouth of the creek Cosaph Chuchee, or Sweet
Water; thence following up said creek to its
source, where a hickory is marked with a
cross; thence, crossing the path by land north
79 degrees east, the line runs the distance
of 27 chains 85 links to a pine marked with a
cross; thence north 58 degrees east, 11 chains
47 links, to a pine crossed; thence north 65
degrees east, 18 chains 58 links, to another
pine marked; thence north 42 degrees east,
26 chains and 36 links, to another pine marked;
thence north 75 degrees east, 16 chains and
9 links, to another pine marked; thence north
40 degrees east, 22 chains 50 links, to another
pine marked with a cross; thence north, 60
chains 36 links, to another pine marked;
thence north 25 degrees, east 5 chains, to an-
other pine marked; thence north 35 degrees,
east 24 chains, to another pine marked; thence
north 82 degrees east, 241 chains, to another
pine marked with a cross; here is the bound-
ary line of the lands ceded to the house of
Panton, Leslie & Co., the line following which
runs till it crosses the river Ocklockny, and
again runs the distance of 5% miles to a pine
marked; thence south 80 degrees east, 32
chains, to another with a cross; thence south
78 degrees east, 1,251 chains 51 links, to an
oak marked with a cross, on the west margin
of the river St. Marks, a little distance above
the spot where the same runs underground;
thence the line runs through the thicket in the
neighborhood to where the said river appears
again; and thence to its junction with the
sea."

See White's New Recompilation, p. 359.
The lines last above stated cover an irregu-
lar tract of land marked on the diagram
"Claim in the Name of John Forbes & Co."
to the northwest of the Panton, Leslie & Co.
grant, and such lines also include another
triangular tract of land marked on the dia-
gram "Claim in the Name of John Forbes &
Co.," to the east of the Panton, Leslie & Co.
grant, and lying between the Wakulla and St.
Marks rivers, at the southern point of which
tract at the junction of the Wakulla and St.
Marks rivers is the "St. Marks Reservation
United States," referred to in the patent is-
sued pursuant to the decision of the United
States Supreme Court in Mitchel v. United
States, 9 Pet. (U. S.) 711, 9 L. Ed. 283. The
grant to John Forbes & Co. in 1811 covers
"In reality three distinct tracts, considerably
distant from each other." See pages 220 et
seq. of record in case of Mitchel v. United
States, in Florida Supreme Court Library;
Mitchel v. United States, 15 Pet. (U. S.) 52.
text 85, 10 L. Ed. 658; 2 White's New Re-
compilation, 359.
The patent issued by the United States, con-
firming the Indian-Spanish grants to Colin
Mitchel et al., is as follows:

"The United States of America.
"To All to Whom These Presents Shall Come-
Greeting.
"Whereas, it appears that under the author-
ity of the sixth section of the Act of Con-


gress, approved on the twenty-third day of
May, one thousand eight hundred and twenty-
eight, entitled 'An act supplementary to the
several acts providing for the settlement and
confirmation of private land claims in Flori-
da,' and an act of Congress approved on the
twenty-sixth day of May one thousand eight
hundred and twenty-four (and referred to in
the said act of the twenty-third day of May,
one thousand eight hundred and twenty-eight)
entitled 'An act enabling the claimants to
lands within the limits of the state of Missouri
and territory of Arkansas to institute proceed-
ings to try the validity of their claim,' Colin
Mitchel, Robert Mitchel, in his own right and as
assignee of the estate and effects of the mer-
cantile house heretofore trading under the firm
of Carnochan & Mitchel, and as trustees of
the creditors of said firm, and also of Rich-
ard Oarnochan, William Calder, Benjamin Mar-
shall, Benjamin W. Rogers, John P. Williamson,
the heirs and legal representatives of John Mc-
Nish. deceased, and James Innerarity, presented
their petition on the eighteenth day of October, .
one thousand eight hundred and twenty-eight, to
the superior court of Middle Florida, praying
that the validity of their claim to certain lands
may be inquired into and confirmed, according
to the true and equitable intent and meaning
of the treaty of twenty-second of February.
one thousand eight hundred and nineteen, be-
tween his Catholic majesty, and the United
States, and the laws and ordinances under
which the claim of the petitioners was de-
rived, and the act of Congress authorizing a
decision of the same, and the superior court
of Middle Florida having decreed the claim to
the land and premises in the petition men-
tioned and sued for to be invalid and illegal,
the cause was brought up by appeal to the
Supreme Court of the United States, which
court at their January term, one thousand
eight hundred and thirty-five, declared their
opinion 'that the title of the petitioners to so
much of the lands in controversy as is em-
braced within the lines and boundaries of the
tract granted by the deeds, grants and acts of
confirmation to Panton, Leslie & Co. in 1804
and 1806; also the island in the river Apalachi-
cola, ceded, granted and confirmed to John
Forbes in 1811; also to the lands and island
at and west of the mouth of said river, which
was ceded, granted and con-rmed to John
Forbes & Co. in 1811, is valid by the laws
of nations, the treaty between the United
States and Spain. by which the territory of the
Florida was ceded to the former, the laws
and ordinances of Spain, under whose govern-
ment the title originated, the proceedings un-
der said treaty, and the acts of Congress re-
lating thereto, and 'did' finally order, decree,
determine and adjudge accordingly, 'and the
said Supreme Court did in like manner' order.
adjudge, determine and decree that the title of
the petitioners to so much of the tract of land
which lies east of the first mentioned tract,
between the rivers Wakulla and St. Marks,
which was conveyed to John Forbes & Co.
in 1811, as shall not be included in the ex-
ception hereinafter made, is valid by the laws,
treaty and proceedings as aforesaid, with the
exception of so much of the last mentioned
tract as includes the fortress of St. Marks,
and the territory directly and immediately ad-
jacent and appurtenant thereto,' which by the







98 SOUTHERN REPORTER


said decree are 'reserved for the use of the
United States,' and the court 'further ordered
and decreed' as follows, to wit: That the ter-
ritory thus described shall be that which was
ceded by the Indians proprietors to the crown
of Spain for the purpose of erecting the said
fort, provided the boundaries of the said cession
can be described.
"If the boundaries of the said cession can-
not be ascertained, then the adjacent lands
which were considered and held by the Spanish
government, or the commandant of the post
as annexed to the fortress for military pur-
poses, shall be still considered as annexed to
it, and reserved with it for the use of the
United States. If no evidence can now be ob-
tained to designate the extent of the adja-
cent lands, which were considered as annexed
to St. Marks as aforesaid, then so much land
shall be comprehended in this exception as,
according to military usage, was generally at-
tached to forts in Florida, or the adjacent
colonies.
"If no such military usage can be proved,
then it is ordered and decreed that a line shall
be extended from the point of the junction
between the river St. Marks and Wakulla to
the middle of the river St. Marks below the
junction, thence extending up the middle of
each river three miles in a direct line, without
computing the courses thereof, and that the
territory comprehended within a direct line
to be run, so as to connect the points of ter-
mination on each river, at the end of the said
three miles up each river and the two lines to
be run as aforesaid, shall be, and the same is
hereby declared to be, the territory reserved
as adjacent and appurtenant to the fortress
of St. Marks, and as reserved for the use of
the United States. To which the claim of pe-
titioners is rejected, and as to which this
court decree that same is a part of the pub-
lic lands of the United States.
"The decree of the court below is therefore
reversed and annulled in all matters and things
therein contained, with the exception aforesaid,
and this court, proceeding to render such de-
cree as the said court ought to have rendered.
do order, adjudge, and decree that the claim
of petitioners is valid and ought to be con-
firmed, and is and remains confirmed by the
treaty, laws and proceedings aforesaid, to all
the lands embraced therein, except such part
as is 'herein above excepted, and this court
does further order, adjudge and decree that
the clerk of this court certify the same to
the surveyor general of Florida, pursuant to
law, with the directions to survey and lay off
the lands described in the petition of the claim-
ants, according to the lines, boundaries and
description thereof in the several deeds of
cession, grant and confirmation by the In-
dians or governor of West Florida filed as
exhibits in this cause, or referred to in the
record thereof, excepting nevertheless such
part of the tract granted in 1811, lyifg east
of the tract granted in 1804 and 1806, as is
hereby declared to be the territory of the Unit-
ed States, pursuant to the exception, herein-
before ,mentioned, and to make return thereof
according to law as to all the lands compre-
hended in three first mentioned tracts. And
as to the tract last herein mentioned to sur-
vey and in like manner to lay off the same so
soon as the extent of the land herein excepted
and reserved for the use of the United States


shall be ascertained in the manner herein be-
fore directed. And this court doth further
order, adjudge and direct that the extent and
boundaries of the land thus excepted and re-
served shall be ascertained and determined by
the superior court of the Middle district of
Florida in such manner and by such process
as is presented by the acts of Congress re-
lating to the claims of lands in Florida, and
to render thereupon such judgment or decree
as to law shall appertain.
"And whereas, it appears that on the thirti-
eth day of January, one thousand eight hun-
dred and thirty-six, Colin Mitchel and others,
the appellants in the Supreme Court, filed in
the superior court of Middle Florida the decree
and mandate of the Supreme Court in this
case, and subsequently filed a bill in the said
superior court wherein they claimed the lands
to the walls of the fort of St. Marks, on all
sides, and prayed confirmation thereof to the
said walls of the fort as aforesaid to be held,
as it was, under the dominion of Spain, ac-
cording to the treaty of cession, and the pro-
ceedings under it in other cases, and on the
fourteenth of February, one thousand eight
hundred and thirty-eight, filed an amended
petition in the same court, in which they as-
sert the fee in the land on which the fort of
St. Marks is erected, to have been and then to
be in themselves whilst they admit the right
of the government of the United States for the
purpose of a fort, and therefore prayed that
the fee of the lands covered by the fort, as
well as that adjoining and appurtenant, should
be decreed to them whilst the use thereof, for
the purpose of a fort, might be reserved, by
a decree of that court, to the government of
the United States. and the said superior court
for the Middle district of Florida, having on
the thirtieth of June, one thousand eight hun-
dred and thirty-eight, decreed that 'the bound-
aries of the territory, ceded by the Indians to
Spain, for the purpose of erecting the fortress
of St. Marks, cannot be ascertained; that no
evidence can now be obtained to designate the
extent of the adjacent lands, which were con-
sidered as annexed to said fortress by the
crown of Spain, or the commandant of said
post, but that there is evidence of military
usage of Spain to determine the extent of
land adjacent to forts in Florida, which were
usually attached to said forts; that the extent
of such reservations was determined by the
radius of fifteen hundred Castilian varas from
the salient angles of the covered way, all
round the works, or there being no covered
way from the salient angles of the exterior
line of the ditch,' and the said court 'there-
fore decreed that the lands adjacent to the
fortress of St. Marks to be reserved to the
use of the United States. and as a part of
the public lands of the same, shall be ascer-
tained, described and determined as follows,
viz. from the eastern point of that part of the
exterior line of the ditch which is in advance
of and parallel with the northern face of the
bastion, and opposite the shoulder of the same,
a line will be drawn at right angles with that
face of the bastion fifteen hundred Castilian
varas from the same point of beginning, two
other lines of fifteen hundred varas, in length,
will be drawn and extended to points on the
margin of the two rivers, St. Marks and Wakul-
la, respectively, from the central one of these







Fla.)


APALACHICOLA LAND & DEVELOPMENT CO. v. McRAE
(98 Bo.)


three radii, and thence extending in the same
lines, to the center of the two rivers. St.
Marks and Wakulla, and all the land compre-
hended within these lines and the middle of
each river, from termination to the confluence
of the two rivers below the Fort St. Marks,
shall be the land reserved to the use of the
United States. The "vara" to be used in this
survey to be the Castilian or judicial "vara"
of Spain five thousand of which make a league,
and are equal in length to four thousand six
hundred and thirty five English yards'; and
they 'further ordered that the clerk should
certify the decree to the surveyor general of
Florida, pursuant to law, with directions to
survey and lay off the lands thus reserved to
the United States according to the lines, bound-
aries and description thereof, in the decrees;
and from this decree an appeal to the Su-


decree of the said superior court, in this cause
be and the same is hereby affirmed.'
"Now know ye that pursuant to the decree
of confirmation; and the acts of Congress
aforesaid, under which they were given, the
surveyor general of Florida has made to the
General Land Office of the United States re-
turns of the official survey of the lands con-
firmed by decree as aforesaid, and situated in
the territory of Florida, and has also trans-
mitted to the Commissioners of the General
Land Office a diagram or plat of the survey
of the lands confirmed as aforesaid, authenti-
cated on the fifteenth day of January, one
thousand eight hundred and forty-two, by the
signature of the said surveyor general of the
public lands for the territory of Florida, which
diagram of plat is in words and figures follow-
ing, to wit: [See diagram attached.]


V


preme Cout having been prosecuted by Colin "To the area as stated in the above, of the
Mitchel and others, that court at its January John Forbes Island, is to be added ninety-six
term, 'one thousand eight hundred and forty- hundredths of an acre (9'/loo) the area of
one, gave their opinion 'that the court below' that island being according to the particular
had 'fully apprehended and executed the judg- plat of the same nine thousand eight hundred
ment of this court, and its judgment is accord- and eleven acres and ninety-six hundredths of
ingly affirmed and the Supreme Court of the an acre (1,811.96) making the aggregate area
United States 'ordered and decreed' that the of the lands embraced within the limits of the






98 SOUTHERN REPORTER


claims as confirmed one million four hundred
and twenty-seven thousand two hundred and
ninety acres and seventeen hundredths of an
acre, including the quantity that may be found
in the sales hereinafter excepted, but exclusive
of the quantity of land contained in the 'ter-
ritory reserved as adjacent and appurtenant
to the fortress of St. Marks,' and as such
reserved for the United States by the before
mentioned decrees of the superior court, and
thereby declared 'a part of the public lands of
the United States' which reservation is indi-
cated on the foregoing diagram particularly
exhibited by the following:










FO TOWma Tai o
*1. MARK

FOR..




TAeLLsAHASIE JAW. IS, 16e2
EXAMINE, COMPARED WIT"
FIELO 0DNOTES AD APPROVE.
ROBERT BUTLER





bracing in the aforesaid returns of survey and
in the foregoing diagram or plat (on page 6)
authenticated as aforesaid by the said sur-
veyor general, viz.: The tract granted by the
deeds, grants and acts of confirmation to Pan-
ton, Leslie & Co. in 1804 and in 1806; also
the island in the river Apalachicola, ceded,
granted and confirmed to John Forbes in
1811; also the lands and islands at and west
of the mouth of said river, which were ceded,
granted and confirmed to John Forbes & Co.
in 1811; also the portion confirmed by de-
cree of the residue of the land conveyed to
John Forbes & Co. in 1811, being all em-
braced by the following boundaries, to wit:
Bounded on the south and southeast by the
reservation at St. Marks, the river St. Marks,
the Apalachee Bay, and the Gulf of Mexico;
on the west by public lands, namely, by frac-
tional township nine south of range ten west,
by fractional township eight south of range
nine west, by Lake Weemee Coe, and by the
Apalachicola river; on the north by the middle
Sweet Water creek, by fractional township one
north of range seven west, by fractional town-
ship one north of range six west, by fractional
township one north of range five west, by
fractional township two north of range five
west, by fractional township two north of
range four west, by fractional township one
north of range three west. by-fractional town-
ship two north of range three west; and on
the northeast and east by public lands, viz. by


fractional township one north of range two
west, by fractional township one south of range
two west, by fractional township one south
of range one west, by fractional township two
south of range one east, by fractional town-
ship two south of range two east, and by St.
Marks river, including the following islands,
namely, Leeward Island, Middle Island, South
or Windward Island, Piney Island, Dog Island.
St. Georges Island, St. Vincents or Deer Is-
land, and Forbes Island, hereinbefore mention-
ed; excepting and reserving also from the
survey hereinbefore mentioned, of the lands
confirmed as aforesaid and known as the
'Forbes Purchase,' the following tracts or par-
cels of land which were sold as public prop.
erty prior to the eighteenth day of October,
one thousand eight hundred and twenty-eight,
when the petition for confirmation was origi-
nally filed in this cause, the sale referred to
being excepted and reserved pursuant to the
eleventh section of the act of the twenty-sixth
day of May, one thousand eight hundred and
twenty-four, hereinbefore mentioned as ex-
tended to certain Florida claims by virtue of
the aforesaid act of the twenty-third day of
May, one thousand eight hundred and twenty-
eight, entitled 'An act supplementary to the
several acts providing for the settlement and
confirmation of private land claims in Florida,'
etc., viz.:
"The east half of the northwest quarter of
section thirty, in township two south, of range
one east; the west half of the northwest quar-
ter of section thirty, in township two south,
of range one east; the east half of the south-
west quarter of section thirty, in township two
south, of range one east; the west half of the
southwest quarter of section thirty, in town-
ship two south, of range one east (situated
within the limits of the 'Forbes Purchase').
"Lot number two, or such portion thereof
as falls within the said 'Forbes Purchase,' of
section two, in township four south. of range
one east.
"Such portion as falls within the said 'Forbes
Purchase' of the west half of the southeast
quarter of section twenty-nine, in township two
south, of range two west.
"The southwest quarter of section twenty-
nine, in township two south, of range two
east, situated within the limits of the said
'Forbes Purchase.'
"Such portions or parcels of the following
described tracts as are situated within the
limits of the said 'Forbes Purchase,' viz.:
"Of the west half of the northeast quarter
of section five, in township three south, of
range two east.
"Of the east half of the southeast quarter
of section five, in township three south, of
range two east.
"Of the west half of the southeast quarter
of section five, in township three south, of
range two east.
"Of the northeast quarter of section eight,
in township three south, of range two east
"Of the southeast quarter of section eight,
in township three south of range two east.
"Of the east half of the southwest quarter
of section eight, in township three south, of
range two east; also
"Lot number one of section eighteen, in
township three south, of range two east.
"Lot number two of section eighteen, in
township three south,' of range two east.







Fla.) APALACHICOLA LAND & DEVELOPMENT CO McRAE 513
(98 So.)
"Lot number three of section eighteen, in Supreme Court Library, of the record filed
township three south, of range two east. in the United States Supreme Court in the
"Lot number five of section eighteen, in case of Mitchel et al. v. United States, 9 Pet.
township three south, of range two east. (U. S.) 711, 9 L Ed. 283, shows (pages 223 et
Lot number si of section eighteen, in town-portion of the rant to
ship three south, of range two east, situated seq.) that as to the portion of the grant to
within the limits of the 'Forbes Purchase.' John Forbes & Co., in 1811,
"Such portions or parcels also of the fol- "comprehended between the river St. Marks
lowing described tracts as are situated with- and the eastern limits of the cession made to
in the said 'Forbes Purchase,' viz.: the house of Panton, Leslie & Co., its area
"Of lot number seven of section eighteen, in is computed at 82,500 English acres, equal
township three south, of range two east; of to 97,485 arpents of Paris, and s45/1sths of
the northwest quarter of section seventeen, in another. The other portion, contained between
township three south, of range two east; of the western limits of the upper part of the
the west half of the southwest quarter of sec- cession in favor of the aforesaid house of
tion seventeen, in township three -south, of Panton, the river Appalachicola, and the Fresh
range two east. Water creek, according to the calculation of
"Of lot number eight of section eighteen, in the same Forbes, its area is 18,500 acres,
township three south, of range two east. equal to 21,860 arpents, and 45/12sths of anoth-
"There is therefore granted by the United er. The other portion, between the river Ap-
States unto the said Colin Mitchel, Robert palachicola, the Lake Wimico, the line running
Mitchel, in his own right and as assignee of to the point in front of the most western point
the estate and effects of the mercantile house of the island of St. Vinsent's (including this
heretofore trading under the firm name of last), the said Forbes did not compute the
Carnochan & Mitchel, and as trustee of the area, nor is it easy to ascertain it; for this
creditors of said firm, and also of Richard tract is figured differently in the plan signed
Carnochan, William Calder, Benjamin Marshall, by Forbes, and in the one which is attached to
Benjamin W. Rogers, John P. Williamson, the the process upon the *subject, as I have been
heirs and legal representatives of John Mc- informed; but, taking a middle term between
Nish, deceased, and James Innerarity, the the two figures, it may be estimated at, more
lands hereinbefore mentioned and referred to or less, land and water, including the channel
as being confirmed to the claimants according which separates the island from the continent,
to the true intent and meaning of the afore- at sixty-five thousand plane arpents (65,000)."
said decrees of confirmation, and agreeable to Page 224, transcript, in Mitchel v. United
the actual and official survey of the said lands States, 9 Pet. (U. S.) 711.
as examined and approved by the surveyor
general of Florida pursuant to those decrees, These estimates were not made a part of
and certified to the General Land Office. with the grant or of the decree confirming, or of
the exception and reservation from the trans- the patent covering, the grant of "lands and
fer by these presents of the said reservation
at St. Marks, and so much of the land sold islands" made to John Forbes & Co. In 1811.
(as hereinbefore described) as public prop-
erty before the original filing of the petition
for confirmation.
f"To have and to hold the lands confirmed
as aforesaid with the appurtenances unto the
said Colin Mitchel, Robert Mitchel, in his own
right and as assignee of the estate and effects
of the mercantile house heretofore trading un-
der the firm name of Carnochan & Mitchel,
and as trustee of the creditors of said firm, t
and also of Richard Carnochan, William Cald- The estimated
er, Benjamin Marshall, Benjamin W. Rogers, areas of the three separate tracts included
John P. Williamson, the heirs and legal repre- In the grant of John Forbes & Co. in 1811
James Innerarity. and to their heirs and as- a r e stated to be 82,500 acr .5000 acres,
signs forever, subject to all reservations and and (according to counsel) 54,000 acres,
exceptions as aforesaid. which make a total of 155,000 acres, when
"In testimony whereof, I, John Tyler, Presi- the plat shows a total of only 140,609.25 acres
dent of the United States, have caused these as having been included in the patent con-
letters to be made patent, and the seal of the firming to Colin Mitchel the grant made to
General Land Office to be hereunto affixed. John Forbes & Co. in 1811.
"Given under my hand at the city of Wash-
ington, the ninth day of June in the year of
our Lord one thousand eight hundred and forty-
two, and of the independence of the United
States the sixty-sixth.
"By the President: John Tyler.
"J. Williamson,
"Recorder of the General Land Office."
"On the discovery of the American con-
tinent, the great nations of Europe were eager
The field notes or other details of the sur to appropriate to themselves so much of it as
vey shown by the diagram are not in the they could respectively acquire. Its vast ex-
record, tent offered an ample field to the ambition
The certified transcript, now in the Florida and enterprise of all; and the character and
98 SO.--33







514 98 SOUTHERN REPORTER (Fla.

religion of its inhabitants afforded an apology are to be considered merely as occupants, to
for considering them as a people over whom be protected, indeed, while in peace, in the
the superior genius of Europe might claim an possession of their lands, but to be deemed
ascendency. The potentates of the old world incapable of transferring the absolute title
found no difficulty in convincing themselves to others. However this restriction may be
that they made ample compensation to the opposed to natural right, and to the usages of
inhabitants of the new, by bestowing on them civilized nations, yet, if it be indispensable to
civilization and Christianity, in exchange for that system under which the country has been
unlimited independence. But, as they were settled, and be adapted to the actual condition
all in pursuit of nearly the same object, it of the two people, it may, perhaps, be sup-
was necessary, in order, to avoid conflicting ported by reason, and certainly cannot be re-
settlements, and consequent war with each jected by courts of justice."
other, to establish a principle, which all should Johnson v. McIntosh, 8 Wheat. (U. .) 543,
acknowledge as the law by which the right text 573, 574, 592 (5 L. Ed. 681).
of acquisition, which they all asserted, should Upon th discovery of the merican con-
be regulated as between themselves. This Upon the discovery of the American con-
principle was that discovery gave title to the tinent, the principle was asserted or ac-
government by whose subjects, or by whose knowledge by all European nations that dis-
authority, it was made, against all other Euro- cover followed by actual possession gave title
pean governments, which title might be con- to the government by whose subjects or by
summated by possession, whose authority it was made, not only
"The exclusion of all other Europeans nec- against other duropean governments but
essarily gave to the nation making the discov- against the native Indians themselves.
ery the sole right of acquiring the soil from
the natives, and establishing settlements upon
it. It was a right with which no Europeans
could interfere. It was a right which all as-
serted for themselves, and to the assertion of 31 C. J.
which, by others, all assented. 497; Johnson v. McIntosh, 8 Wheat. (U. S.)
"Those relations which were to exist be- 543, 5 L. Ed. 681; Hayt v. United States, 38
tween the discoverer and the natives were to Ct. C 455; Breaux v. Johns, 4 La. Ann.141,
be regulated by themselves. The rights thus
acquired being exclusive, no other power could 50 Am. Dec. 555; In re Narragansett In-
interpose between them. dians, 20 R. I. 715, 40 Atl. 347; Thompson v.
"In the establishment of these relations, the Doaksum, 68 Cal. 593, 10 Pac. 199.
rights of the original inhabitants were, in no In the United States the rights of the
instance, entirely disregarded, but were neces- European discoverers, having been succeeded
sarily, to a considerable extent, impaired. to by the States or by the general government,
They were admitted to be the rightful occu-
pants of the soil, with a legal as well as just
claim to retain possession of it, and to use it
according to their own discretion; but their
rights to complete sovereignty, as independent 31 C.49
nations, were necessarily diminished, and their Nadeau v. Union Pac. R. Co., 253 U. S. 442,
power to.dispose of the soil at their own will, text 446, 40 Sup. Ct. 570, 64 L. Ed. 1002;
to whomsoever they pleased, was denied by Beecher v. Wetherby, 95 U. S. 517, 24 L. Ed.
the original fundamental principle that discov- 440. This was the law of Spain. Chouteau
ery gave exclusive title to those who made it.
"While the different nations of Europe re- v. Molony, 16 How..(U. S.) 203, 14 L. Ed. 905;
spected the right of the natives as occupants, 31 C. J. 498.
they asserted the ultimate dominion to be in E. Tlllman Davis and Fred H. Davis, both
themselves, and claimed and exercised, as a of Tallahassee, for appellants.
consequence of this ultimate dominion, a pow- Rivers Buford, Atty. Gen., J. B. Gaines,
er to grant the soil, while yet in possession Asst. Atty. Gen., and Fred T. Myers, of
of the natives. These grants have been un-
derstood by all to convey a title to the gran- Tallahassee, for appellees
tees, subject only to the Indian right of oc- WHITFIELD, P. J. The amended bill of
cupancy.
"The history of America, from its discovery complaint herein, filed September 19, 1921, by
to the present day, proves the universal recog- appellants here, alleges:
nition of these principles. "That complainants the Apalachicola Land
"Spain did not rest her title solely on the & Development Company, a declaration of
grant of the Pope. Her discussions respect- trust, H. L. Flowers, H. D. Marks, S. E. Rice,
ing boundary, with France, with Great Britain, Jr., R. R. Rice, C. E. Smith, Jos. Messina,
and with the United States, all show that J. J. Abbott, H. B.. Robbins, and W. H. Col-
she placed it on the rights given by discov- lier, trustees, are the owners in fee simple of,
ery. and the complainants N. R. Hays, S. E. Teague,
"However extravagant the pretension of con- and H. L. Oliver interested in by mortgage
verting the discovery of an inhabited country held by them to, the following described real
into conquest may appear, if the principle has estate, situate, lying and being in the county
been asserted in the first instance, and after- of Franklin and state of Florida, to wit:
wards sustained, if a country has been ac- "Fractional sections seven (7), eight (8),
quired and held under it, if the property of the nine (9), and ten (10), in township 9 south.
great mass of the community originates in it, range 8 west; fractional sections nine (9),
it becomes the law of the land, and cannot be eleven (11), twelve (12), seventeen (17), and
questioned. So, too, with respect to the con- eighteen (18), in township 9 south, range 9
eomitant principle, that the Indian inhabitants west; fractional sections thirteen (13) and







Fla.) APALACHICOLA LAND & DEVELOPMENT CO. v. McRAE 515
(98 Bo.)
fourteen (14), in township 9 south, range 10 the directing partner of said house, by his at-
west; and all the submerged lands lying south torney in fact, Charles Reggio, on the 29th
of the mainland of said fractional sections. day of May, 1819, sold and conveyed to Colin
from the water boundary line of-said sections Mitchel, the whole of the said tracts of land,
to the channel of Apalachicola Bay, together so granted and conveyed to Panton, Leslie &
with all the rights, privileges and appurtenanc- Co., and John Forbes & Co., described above,
es thereto belonging or in any wise appertain- and Colin Mitchel and others who had become
ing. associated with him in the ownership thereof,
"2. That the said sections of land have a in the year 1828. filed their petition in the
water boundary on the south by the bay of superior court of Middle Florida, for confirma-
Apalachicola, which is a body of water lying tion of their title to said lands, pursuant to an
between the mainland and St. Vincent's Island, Act of Congress providing for such confirma-
and the western end of St.' George's Island; tion, and upon a hearing thereof before said
that the space between the said water bound- court, the claim of petitioners was held in-
ary and the said sections of land, and the valid, and an appeal was taken to the Supreme
channel of said bay, is composed of shallow Court of the United States, and by an opin-
flats, of mud and sand bottoms, and in some. ion rendered by said Supreme Court in the
places small oyster bars; and in low tide con- year 1835 in said cause the decision of the su-
siderable area is uncovered, and in ordinary perior court was reversed, and the title of pe-
high tide is submerged in water depth, from titioners to said lands confirmed, and by said
a few inches near the mainland to about five decree of said Supreme Court of the United
feet in the middle of the channel, and small States, in said cause, the clerk of said court
boats ply the said channel, which do not draw was directed to certify the same to the sur-
more than two and three feet of water; that veyor general of Florida, with directions to
the bottoms of said submerged lands in the survey and lay off the lands described'in the
space aforesaid is well adapted for the cultiva- petition of the claimants, according to the
tion of oysters and clams, there being some lines and boundaries and description thereof
natural bars of small dimensions thereon. in the several deeds of cession, grant and
"That the whole of said lands, including the confirmation by the Indians or governor of
bay of Apalachicola, is embraced within and West Florida, filed as exhibits in the cause,
form a part of what is known as 'Forbes Pur- and that the same was certified to the sur-
chase,' said purchase being composed of two veyor general as aforesaid, and the said tracts
certain tracts of land, one of which was grant- were surveyed and plat thereof made by said
ed and conveyed by the Talapoosa and Sem- surveyor general, confirmed, and patent issued
inole Indians to Panton, Leslie & Co. in 1804 by the United States government to said Colin
and 1806, and the other granted and conveyed Mitchel and his associates, all of which more
by the Lower Creek and Seminole Indians to fully appears, by the patent and the plat at-
John Forbes & Co. in the year 1811; the tached thereto and made a part thereof, a
lands herein being a part of the grant to John copy of which is hereto attached and marked
Forbes & Co. Said grants are fully reported Exhibit A.
in the 4 American State Papers, pages 86 to "That on the 28th day of November, 1835.
94, inclusive, and under and through said after the confirmation of said grants by said
grants and conveyances, the complainants claim Supreme Court as aforesaid, Colin Mitchel and
title to said lands, and the space between the his associates, as owners of said lands, or-
water boundary line of said sections and the ganized themselves into an association called
channel of the bay of Apalachicola, with the the Apalachicola Land Company, and by the
appurtenances thereunto belonging, articles of association trustees were elected to
"That the tract of land granted and con- take title to said 'Forbes Purchase' for the
veyed by the Lower Creek and Seminole In- benefit of the owners, and a deed was executed
dians to John Forbes & Co. is described as by all the proprietors of said 'Purchase' to
follows: said trustees, respectively, Louis McLane,
"'Having begun at the mouth of the river Charles Augustus Davis, and Joseph M. White.
Apalachicola, and following the line on the "That on November 29, 1838, by amendment
west margin, it ascends the Lake Weimico, of the said articles of association, George
three miles from its entrance, which spot is Griswold and Lewis Curtis were elected trus-
known by two cypresses marked with crosses; tees, and deed was executed by McLane, Davis,
and thence, through the hammock, the dis- and White to said Griswold and Curtis, trus-
tance of one chain, south to a cypress marked; tees.
here it was found impracticable to trace the "That on November 28, 1843, by amendment
line further, on account of the bad way, but of the articles of association, Joseph Delafield
it should run south 72 degrees west, a supposed and Lewis Curtis were elected trustees, and
distance of 1,280 chains, where a pine is mark- deed was executed by George Griswold to said
ed; thence south 30 degrees west, 100 chains, Delafield and Curtis, trustees.
to a pine marked with a cross, on the margin "That on the 21st day of June, 1853, by
of a reedy marsh; thence the line runs by wa- amendments of the articles of association Lew-
ter, one mile and a quarter, south 14 degrees is Curtis and Nathaniel Thurston were elected
west, to the extreme western point of St. Vin- trustees, and deed was executed by Joseph
cent's or Deer Island, including the whole of Delafield to said Curtis and Thurston, trustees.
the island;' thence ascending the river Apa- "3. That on the 18th day of April, 1857, by
lachicolaq and beginning the line at the bound- virtue of a suit of foreclosure in the Western
ary of the lands formerly ceded to the house circuit of Florida, in Franklin county, where-
of Panton, Leslie & Co., etc. in George Gar was complainant and Lewis Cur-
"That both of said grants and conveyances tis and Nathaniel Thurston, trustees of the
were confirmed by the Spanish government, Apalachicola Land Company, were defendants,
and John Forbes who had succeeded to the a decree was issued in said cause appointing
house of Panton, Leslie & Co, and who was Charles Ellis receiver of the lands belonging to







98 SOUTHERN REPORTER


said company, with the directions to sell and
execute deeds to purchasers thereof, to all
the lands which had not been sold by the said
trustees, and to carry out all contracts made
by the said trustees for the purchase of lands,
and to receive the money therefore, etc., and
executed his deed to Thomas Orman, to the
whole of fractional township 9, range 9 south
and west, also the whole of township 9, range
10 south and west, and also section six (6) and
fractional section seven (7) in township 9,
range 8 south and west; that said fractional
townships include the lands described in this
bill, and by said conveyance the title to the
submerged lands aforesaid became vested in
the grantee therein in fee simple, there being
no reservation of said submerged lands in said
conveyance; and that the complainants herein
succeeded to the title of said Thomas Orman
through and by virtue of deeds and conveyances
in regular and unbroken chain of title, duly re-
corded in Franklin county, Florida.
"That the complainants have expended and in-
vested large sums of money in the property de-
scribed herein, and the complainants have ex-
pended large sums of money preparatory for
planting and cultivating oysters and clams, on
the submerged bottoms aforesaid.
"4. That in the year 1913 the Legislature of
the state of Florida passed an act, creating the
shell fish commission, wherein it provided,
among other things, that the commissioner of
agriculture is vested with the power and au-
thority to make and execute leases to the
submerged lands belonging to the state, for
oyster and clam culture, and to make rules
and regulations governing same, and provided
also for a shell fish commissioner, whose duties
are prescribed by said act, among which is
police powers.
"5. That the said defendant W. A. McBae,
commissioner of agriculture, acting under the
statutes of the state of Florida relative to the
shell fish commission, pretends that the afore-
said submerged lands are state lands, and that
he has authority to lease the same under said
statute for the purpose of fishing, taking, catch-
ing, bedding, and raising oysters, clams, and
other shell fish, subject to reservations and
restrictions imposed by said statute; and the
said defendant T. R. Hodges, shell fish commis-
sioner, pretends that he has authority under
said statute to protect, assist, and give at-
tention to such leases and grants as shall be
made by said commissioner of agriculture to
said submerged lands as aforesaid; that the
said defendants have made and still are making
representations, publicly and privately, that the
complainants have no right, title, or interest in
the aforesaid submerged lands, and no right to
cultivate or plant oysters or clams thereon, and
by such representations of the said defendants
irreparable injury has resulted and continues to
result to the complainants, by reason of the
actions and representations of the said de-
fendants.
"6. That complainants allege that the said
submerged lands, lying and being between the
water boundary line of the sections of land
herein described and the channel of Apalachi-
cola Bay, were and are included in the valid
terms of the aforesaid grants and conveyances
of same to private ownership, and are not held
by the state of Florida in its sovereign -ca-
pacity in trust for the lawful uses of all the


people of the state, or otherwise; but, on the
contrary, the title to same is vested in the
complainants as aforesaid, and by reason there-
of that the statutes of the state of Florida
relative to the shell fish commission confer no
authority on said defendants, commissioner of
agriculture and shell fish commissioner, as to
said submerged lands, in which title is vested
in complainants as aforesaid, and that the said
acts and threats of said commissioner to make
leases and making leases is illegal and with-
out authority of law, and gross interference
with the rights and property of complainants,
and deprives the complainants of their rights
and property without due process of law, and
is in violation of the treaty between the United
States and Spain, and is a cloud on complain-
ants' title and rights, as to said submerged
lands.
"8. That the act relative to the shell fish
commission delegated the power and authority
to the commissioner of agriculture to make and
execute leases, and the police power delegat-
ed to the shell fish commissioner, in so far as
the same undertakes to apply to said submerged
lands, which is included in a grant to private
ownership, is unconstitutional and void."

The confirmatory patent from the United
States, made an exhibit to the bill, covers
"the lands and islands at and west of the
mouth of said [Apalachicola] river, which
were ceded, granted and confirmed to John
Forbes & Co., in 1811." See, also, Mitchel
v. United States, 9 Pet. (U. S.) 711, 9 L. Ed.
283.
The prayer of the bill of complaint is that
the state officers be "enjoined from leasing
and executing leases to, and from entering
upon, or planting or cultivating oysters and
clams on, any part or portion of the sub-
merged lands situate, lying and being be-
tween the water boundary line of fractional
sections 7, 8, 9, and 10 in township 9 south,
range 8 west, fractional sections 9, 11, 12,
17 and 18 in township 9 south, range 9 west,
and fractional sections 13 and 14 in town-
ship 9 south, range 10 west, and the channel
of the bay of Apalachicola, in Franklin
county, Florida." An appeal was taken
from a dismissal of the bill of complaint on
sustaining a demurrer thereto, the com-
plainants having declined to further amend
the bill of complaint.
[1] A suit to obviate the effect of an illegal
act of an officer as such is not a suit against
the state, for the state authorizes only legal
acts by its officers. Croom v. Pennington &
Evans, 59 Fla. 473, 52 South. 957; Louis-
ville & N. R. Zo. v. Railroad Com'rs, 48 Fla.
491, 58 Sout.. 543, 44 L A. A. (N. S.) 189,
and notes; Looney v. Crane, 245 U. S. 178,
38 Sup. Ct. 85, 62 L. Ed. 230; United States
v. Lee, 106 U. S. 196, 1 Sup. Ct. 240, 27 L.
Ed. 171; Weyler v. Gibson, 110 Md. 636, 73
Atl. 261, 17 Ann. Cas. 731.
Conceding only for the purposes of this
case that the allegations of the bill of com-
plaint are sufficient to show a threatened
irreparable injury to complainants in the







Fla.) APALACHICOLA LAND & DEVELOPMENT CO. V. McRAE 517
(9M So.)
premises, for which an adequate remedy at See Sullivan v. Richardson, 33 Fla. 1, 14
law is not afforded, the question as to cor- South. 692: Mayor and Aldermen of City of
plainants' title to the submerged lands in Mobile v. Enslava, 9 Port. (Ala.) 577, 33 Am.
controversy i Dec. 325; Mobile v. Eslava, 16 Pet. (U. S.)
234, 10 L. Ed. 948; Brickell v. Trammel, su-
pra.
ws 1856, c. 791). It is alleged that pursuant to judicial pro-
If the complainants have no title to the ceedings, Charles Ellis, as receiver, "sold
submerged lands, they have no right to and executed his deed to Thomas Orman, to
maintain this suit. The bill of complaint the whole of fractional township 9, range 9
was demurred to upon grounds including: south and west, also the whole of township
"6. The said bill does not show that any title 9, range 10 south and west, also section six
ever vested in Colin Mitchel and his associates (6) and fractional section seven (7) in town-
to the submerged lands of the Apalachicola ship 9, range 8 south and west; that said
Bay." fractional townships include the lands de-
scribed in this bill, and by said conveyance
[2, 3] A demurrer in equity does not admit the title to the submerged lands aforesaid
legal conclusions asserted in the bill of com- vested in the grantee therein in fee simple,
plaint, or conclusions of fact not justified by there being no reservation of said submerg-
the facts alleged, or assertions of ultimate ed lands in said conveyance; and that the
facts that are not sustained by the facts al- complainants herein succeeded to the title
leged. See Dillon v. Barnard, 21 Wall. (U. of said Thomas Orman, through and by vir-
S.) 430, 22 L. Ed. 673; United States v. tue of deeds and conveyances in regular and
Ames, 99 U. S. 35, 25 L. Ed. 295; Louisville unbroken chain of title, duly recorded in
& N. R. Co. v. Palmes, 109 U. S. 244, 3 Sup. Franklin county, Florida."
Ct. 193, 27 L. Ed. 922; Hitchcock v. Buchan- [7] The deed of conveyance alleged to
an, 105 U. S. 416, 26 L. Ed. 1078; Pennie have been executed by Charles Ellis, receiv-
v. Reis, 132 U. S. 464, 10 Sup. Ct. 149, 33 L. er, is not in the record, and it does not ap-
Ed. 426; Interstate Land Co. v. Maxwell pear from the above-quoted allegations as
Land Grant Co., 139 U. S. 560, 11 Sup. Ct. to such deed of conveyance that it in fact
656, 35 L. Ed. 278. This is particularly so0 and in law did convey, or even purport to
when the right asserted as a conclusion de- convey, title to submerged lands that may
pends upon unusual provisions of law and be within or adjacent to the described frac-
proceedings thereunder and no such provi- tional sections. The allegations "that the
sons and proceedings are made to appear. submerged lands lying and being between
Kansas v. Colorado, 185 U. S. 125, 22 Sup. the water boundary line of the sections of
Ct. 552, 46 L. Ed. 838; Symmes v. Prairie land herein described and the channel of
Pebble Phosphate Co., 64 Fla. 480, 60 South. Apalachicola Bay were and are included in
223; Brown v. Avery, 63 Fla. 355. 58 South. the valid terms of the aforesaid grants and
34, Ann. Cas. 1914A, 90. Even if in this conveyances of same to private ownership."
state lands below high-water mark may be and that "by said conveyance the title to
the subject of private ownership, such a the submerged lands aforesaid became vest-
right would be a most unusual and extra- ed in the grantee therein in fee simple, there
ordinary one, -that should be particularly being no reservation of said submerged
shown when claimed in a suit. Brickell v. lands in said conveyance," are legal conclu-
Trammel, 77 Fla. 544, 82 South. 221. sions not supported by allegations of fact
[4-6] or by matters duly exhibited or of which
e court may take judicial notice (Byrne
Realty Co. v. South Florida Farms Co., 81
If under valid Spanish grants or Fla. 805, 89 South. 818 and
otherwise private ownership is claimed in
lands below the high-water mark, the source
and authority for such claimed ownership
should be made to appear by proper allega-
tions and exhibits or by reference to mat-
ters of which judicial notice is taken. Since
Th source of complainants' title is alleg-
ed to be a grant or concession from the Low-
er Creek and Seminole Indians to John
Forbes & Co., which grant it is alleged was
confirmed by the Spanish authorities in
1811, and leave given to transfer it to Colin
Mitchel; and the same, together with other
grants of lands and islands to Panton, Les-
lie & Co., and of an island to John Forbes,
were thereafter confirmed by the United
in this state. States to Colin Mitchel et al. See Mitchel







98 SOUTHERN REPORTER


v. United States, 9 Pet. (U. S.) 711; 9 L. Ed.
283.


One or the Spanish and colonial laws was:
"No tract of land for new settlements shall
be granted or taken by agreement in any sea-
port; nor in any part which might, at any
mes v. ras- time, be prejudicial to our royal crown or to
phate Co., C4 Fla. 480, 60 South. 223; Brick- the republic, our will being that they be re-
ell v. Trammel, 77 Fla. 544, text 563, 82 served to us."
South. 221. See 2 White New Recompilation of Span-
[9-11] When Spain acquired territory by ish Land Laws, p. 46.
discovery or conquest in North America, the [16, 18] By the laws and usages of Spain
possessions were vested in the crown; and the rights of a subject or of rate
grants or concessions of portions thereof ownership
were made according to the will of the mon-
arch. While the civil law was the recog-
nized jurisprudence of Spain and its rules
were generally observed, yet the crown could the Spanish possessions in America were
exercise its own discretion with reference held by the crown to be disposed of at will.
to its possessions. The Indians could make
no grant or cession of lands in the Floridas,
except by the dominant authority of Spain
during the Spanish dominion.
[12,13] Ordinances and edicts that had and a convey-
the force of laws were promulgated to be dance of them to private ownership could be
observed in the Spanish provinces in Amer-
ica; and these included authority to desig- -see over y as v.
nate officials to make or confirm cessions of nsuar overnmen of the Philippine Is-
land. The right of the Indians to occupy lands, 221 U. S..623, 31 Sup. Ct. 664, 55 L.
for their accustomed habitation and tribal Ed. 884): and even this would not exclude
purposes the lands they occupied when the the public use of the lands and water and
provinces of Spain were established in the natural products thereof, except and un-
America was recognized by the Spanish til the lands were reclaimed and improved
monarch: and for other useful nurnoses under crown


prove ded such
cession was agreeable to and confirmed by
the Spanish monarch or by his authority,
the policy of Spain being to make or con-
firm grants, and as to the Indian grants of
lands, to perfect title in accepted grantees
for purposes of settlement and cultivation
by others than Indians. Chouteau v. Mol-
ony, 16 How. (U. S.) 203, 229, 14 L. Ed. 905.
See 31 C. J. 497; Mayor of Mobile v. Eslava,
9 Port. (Ala.) 577, 33 Am. Dec. 325; Stroth-
er v. Cathey, 5 N. C. 162, 3 Am. Dec. 683;
Breaux v. Johns, 4 La. Ann. 141, 50 Am.
Dec. 555; Johnson v. McIntosh, 8 Wheat.
543, 5 L. Ed. 681; Seneca Nation v. Chris-
tie, 126 N. Y. 122, 27 N. E. 275; Beecher
v. Wetherby, 95 U. S. 517, 525, 24 L. Ed.
440; Nadeau v. Union Pac. R. Co., 253 U.
S. 442-446, 40 Sup. Ct. 570, 64 L. Ed. 1002;
United States v. Coop, 19 Wall. 591, 22 L.
Ed. 210.
[14]
hen not supersede
or mone y or dances affecting the prov-
4nroq ia hv Alit nf thea orwn m i M


Grants.
[17] The difference in the nature and uses
of uplands and of lands under navigable
waters, including the shore and tide lands,
and the manner and purposes of their do-
minion by the sovereign, permitted sales'and
grants of uplands to private ownership for
purposes of cultivation and improvement as
a matter of state policy to encourage devel-
opment; but as the navigable waters and
lands thereunder were necessary for public
purposes and their ownership by private
parties would be detrimental to the public
good, no such private ownership was con-
templated or permitted unless it was ex-
pressly authorized by the crown to promote
a public purpose, and then the public use
was excluded only in so far as the private
grant was in fact utilized as expressly au-
thorized to serve a useful public need or ad-
vantage.
There appears to have been no material
difference between rights of the Indians un-
der British dominion and under Spanish do-
minion concerning lands occupied by the In-
dians and their rights to cede such posses-
sory rights with the consent of the dominant
sovereign. Mitchel v. United States, 9 Pet.
(U. S.) 711, text 745 et seq., 9 L. Ed. 283.
[18] The title of the Indians to the lands
in the provinces of East and West Florida







Fla.) APALACHICOLA LAND & DEVELOPMENT CO. v. McRAE 519
(98 So.)
under the Spanish monarchy was in the na- to lands occupied by. the Indians, and not
ture of a possessory right, held in common to submerged lands under navigable waters
according to prevailing customs and tribal of the sea or bays, the ownership or control
dominance among the Indians, subject to the of which was in the Spanish crown. In such
sovereign dominion of the crown. Johnson cases no consideration moved to the crown
and Graham's Lessee v. McIntosh, 8 Wheat. of Spain for the concession, and confirma-
(U. S.) 543, 5 L. Ed. 681; Worcester v. State tions of such Indian grants were made to
of Georgia, 6 Pet. (U. S.) 515, 8 L. Ed. 483; aid the Indians in their necessities and to
Angell on Tide Waters, 49; 14 R. C. L. 123; encourage settlement and cultivation of the
22 R. C. L. 237. Appropriations of particu- lands by others than Indians. It may be
lar portions of the lands by the crown for said that the Indians had tribal rights of
sovereignty purposes were either acquiesced possession and uses in the submerged lands
in or enforced as exigencies demanded; and for navigation, fishing, bathing, etc., similar
as a rule lands were sold or granted to pri- to the rights they had in the lands for hunt-
vate parties by the act of the crown or its ing, sporting, and habitation purposes; but,
representatives pursuant to the laws of as shown above, the rights of user and dis-
Spain, with the consent of the Indians position were different, and it does not ap-
through their chiefs or representatives, or pear that, under the dominant Spanish sov-
by the act of the Indians with the consent ereignty and laws that were applicable to
of the Spanish authorities. See Mitchel v. the provinces, the Indians were accorded the
United States, 15 Pet. (U. S.) 52, text 84, 10 same rights to make concessions of sub-
L. Ed. 658; Mitchel v. United States, 9 Pet. merged lands under navigable waters that
(U. S.) 711, text 752, 9 L. Ed. 283. were peculiarly the property of the crown
[i9] Under the laws of Spain applicable for public purposes, as they were accorded
to its Florida provinces, the navigable wa- to make sales or grants of uplands with the
ters of the seas and bays were held by the permission of the crown or its proper offi-
crown for public common uses of navigation, cers. Certainly, if a grant by the Indians
fishing, bathing, etc., and in consonance covers submerged lands under navigable wa-
with the prevailing customs and uses the ters of the sea or bays, it must specifically
lands under navigable waters were not ordi- so state, or otherwise plainly indicate such
narily a subject of private ownership, or of an intent, so as to apprise the Spanish au-
grant or sale, and when a conveyance or thorities of the nature of the grant desired
concession was made to private parties by to be confirmed; otherwise the grant made
the Indians, subject to confirmation by the and confirmed will be held to cover only
duly constituted Spanish authorities, such uplands, or such lands as were usually oc-
conveyance or concession had reference to cupied by the Indians, and as to which con-
lands embraced in the possessory right or cessions made by the Indians would be con-
title of the Indians who made the convey- firmed by the Spanish sovereignty. See
ance or grant, and a confirmation thereof Moulton v. Libbey, 37 Me. 472, 59 Am. Dec.
was of course confined to the intent and 57.
scope of the grant as made by the Indians It cannot reasonably be conceived that
who were in possession of lands, and the the monarchy of Spain would be implica-
grant did not cover any of the navigable wa- tion or intendment, not clearly shown by ex-
ters of the sea or bays and the submerged press terms, confirm a concession to private
lands thereunder, the ownership of which ownership of submerged lands that would
latter was in the crown of Spain by virtue yield a right to exclude the public from any
of its sovereignty over the provinces, includ- of the rights of navigation, fishing etc. in
ing all the rights in and to the waters of the bays of the sea. Taking oysters, which
the sea and lands thereunder that were in- are shell fish, involves a right in submerged
cident to Spanish sovereignty of the prove lands and the waters over them (Martin v.
inces as recognized by the laws of nations Lessee of Waddell, supra; Angell on Tide
Moore on Foreshore and Sea Shore, 780; Waters, 33; Bagott v. Orr, 2 Bos. & P. 472;
Vattel on Law of Nations, 115; Martin v. Peck v. Lockwood, 5 Day [Conn.] 22); and
Lessee of Waddell, 16 Pet. (U. S.) 367, 10 this right was common to the public under
L. Ed. 997; Angell on Tide Waters, 18 et Spanish rule, as well as under English and
seq.; 1 Farnham on Waters and Water American government, and concessions of
Courses, 229; City of Galveston v. Menard, lands do not cover submerged lands under
23 Tex. 349, text 391; Shively v. Bowlby, navigable tide waters, at least unless so ex-
152 U. S. 1, text 13, 14 Sup. Ct. 548, 38 L. pressly declared or shown by competent au-
Ed. 331; Brickell v. Trammel, 77 Fla. 544, thority, even if the exterior boundary lines
82 South. 221; United States v. Pacheco, 2 of the lands, which are on both sides of a
Wall. (U. S.) 587, 17 L. Ed. 865. navigable tide water bay of the sea, run
Under these basic conditions it is clear across the bay in reaching the land on the
that descriptions contained in grants of opposite side to be' delineated as a part of
lands made by the Indians for definitely the concession. See Hynes v. Packard, 92
stated valuable considerations moving to Tex. 44, 45 S. W. 562; Rosborough v. Pic-
them must be regarded as having reference ton, 12 Tex. Civ. App. 113, 34 S. W. 791, 43







98 SOUTHERN REPORTER


S. W. 1033. See, also, Peck v. Lockwood, I
Day (Conn.) 22, text 28; Moulton v. Libbey
37 Me. 472, 59 Am. Dec. 57. This is pecu
liarly so when the documents involved ii
making and confirming the grant show the
purpose of the grant made by Indians for i
consideration moving solely to them, was t,
convey lands occupied by them, and alsi
show that the intent of the confirmation o
the grant by the dominant sovereign was tb
accommodate the Indian occupants and ti
encourage settlement and cultivation o:
lands.
Concessions to private ownership of sub
merged lands under navigaole tide waters
that would curtail or exclude the use by thi
public and by riparian owner of the naviga
ble waters and the lands thereunder adja
cent to the uplands, would hamper or pre
vent rather than encourage the settlement
and cultivation of the lands intended to bi
granted for cultivation. See, generally, Sul
livan v. Richardson. 33 Fla. 1, 14 South. 692
Ex parte Powell, 70 Fla. 363, 70 South. 392;
Hagan v. Campbell, 8 Port. (Ala.) 9, 33 Am
Dec. 267; Pollard v. Hagan, 3 How. (44 U
S.) *212, *220, 11 L. Ed. 565.
The grant or conveyance here considered
is a concession-L e., a yielding-by the In
diana (for a stated consideration moving t(
them and not to the crown of Spain) of theli
possessory right in lands they occupied and
a confirmation by Spain, the dominant mon
archy, of the concession as made. Such a
conveyance necessarily is of property, not
sovereignty, and relates to private owner-
ship in lands for private purposes; and the
conveyance has an effect essentially differ.
ent from a ceding--i. e., a transfer-of ter-
ritory from one sovereign to another; the
latter generally including "full property
and sovereignty" in the premises as in the
ceding of the Floridas to the United States
by Spain. See, also. Morris v. United States,
174 U. S. 196, 19 Sup. Ct. 649, 43 L. Ed. 946.
It is universally recognized law that
grants of lands to private ownership do not
include lands under navigable waters or tide
lands, unless such an intent clearly appears
from acts of competent authority to pass
title to such lands; and in view of the right
of the public in the use of such submerged
and tide lands, a grant of title to private
ownership does not destroy, even if it may
curtail, the public uses until the lands are
lawfully reclaimed and improved in due
-course of lawful permission to so deprive
the public of their inherent common rights.
See City of Galveston v. Menard, 23 Tex.
/ 349; Martin v. Lessee .of Waddell, 16 Pet.
(U. S.) 367, 10 L. Ed. 997; Morris v. United
States, 174 U. S. 196, 19 Sup. Ct. 649, 43 L.
irA OAR


a- uu SUC grants
o must be strictly construed against the gran-
f tee for the protection of the public. Sullivan
o v. Richardson, 33 Fla. 1, 14 South. 692; Ex
o parte Powell, 70 Fla. 363, 70 South. 392;
f Hagan v. Campbell, supra.
The court takes judicial notice of the
-American State Papers which relate to
, Spanish concessions or grants confirmed or
e otherwise acted on pursuant to acts of Con-
- gress. Thiesen v. Gulf, F. & A. R. Co., 75
- Fla. 28, 78 South. 491, L. R. A. 1918E, 718;
-Sullivan v. Richardson, supra.
t On page 91 of 4 American State Papers,
e record is made of a report to the United
- States government, by its commissioners rel-
; active to the grant in question, as follows:
"The commissioners had received a copy of a
petition from John Innerarity to Governor
Folch, dated Pensacola, 7th June, 1811, begging
him, in consequence of every previous formality
having been observed for obtaining a cession
-of two pieces of land from the Lower Creek
SIndians in payment of certain debts the lat-
Ster owed the house of John Forbes & Co., to
Sinterpose his authority for the ratification of
Said cession. Also a copy of a decree of Gov-'
ernor Folch, as follows:
S"Pensacola, 8th June, 1811.
'The petitioner's request granted on condi-
tions the said John Forbes & Co. do not dispose
of or alienate the land in question without the
express consent of this government, and that the
same be understood to be on the same footing
with the cession for which a title was granted
on 3d December, 1806. Folch.'
S"Also an original certificate of Francisco
Maximiliano de San Maxent, political and mili-
tary governor of West Florida (ad interim),
Scountersigned by Pablo de Larin, secretary of
the government, and dated the 20th December,
1811, stating that the foregoing pieces are
faithfully copied from the original proceedings
Which exist in the office of the secretary of this
government, of which an original title has been
given to John Innerarity, as agent of the house
of John Forbes & Co. Also an original title of
confirmation by Governor Folch, as follows:
"'Whereas, John Innerarity, agent of the
house of John Forbes & Co. (established in this
province with royal approbation for trading
with the Indians since 1785) presented me, on
the 7th of this month, a petition importing that,
in consequence of a congress of chiefs, etc., of
the Lower Creek Nations of the river Flint and
Chattahoochie, held in this place on the 22d of
January last, presided by me, in order to agree
upon the manner of satisfying said house for
the sum of nineteen thousand three hundred and
eighty-seven dollars four and a half rials, owing
to it by the dealers and Indians of said villages.
as appears by an account presented by the said
house, and which is ordered to be annexed by
the proceedings, at which congress were present
the following chiefs, viz.: Tuskamiecky Hopoi,







APALACHICOLA LAND & DEVELOPMENT CO. v. McRAE
(95 So.)


Coweta Mico, Cowata Tuskania, Hothepoi Mico,
Yahu Hadjoo, Mico Napa, Tuskanucky Chach-
nany, Ufala Mico, Hapoi Mico, Yohulla Emathla,
Efa Mico, Toothia Tuskanucky, with James
Gurosseau, interpreter of said Indians, and
Manuel Gonzalez, interpreter of this govern-
ment; and referring to the resolutions passed in
the month of April of the preceding year, 1810,
in the village of Tuskattoloofa, they consented
and agreed, as a compensation and payment of
the aforementioned debt, to the cession and
transfer of two pieces of land contiguous and
adjacent (italics supplied) to that which, in
1806, for a like reason, Was ceded by the said
chiefs to the house of Panton, Leslie & Co.,
which present act of cession was drawn out in
the English language, because many of said
chiefs understood that language, and signed by
them and by the interpreters after having fully
and circumstantially informed the said chiefs
of the contents of the same, and then annexed
to the proceedings, with its translations into
Spanish, under Nos. 2 and 3; and the said
chiefs having assembled together in April last
at Prospect Bluff, on the Apalachicola river, for
the ratifying said cession or transfer, they ap-
pointed deputies to assist at the running out and
marking of the boundary line of the said lands,
which they executed, signing another deed,
which appears with its translation under Nos.
4 and 5, in which are to be found the names of
the following chiefs, viz.: Hopoi Mico, Tohallo
Emathla, Capichy Mico, Hopoi Cuichei, Mi-
casuky Tuskania, Coweta Emathla, Yohallo
Hadjoe, Niony Homughta, Tuskanuky Chack-
chucky, Tusky Hadjoe, John Meally, and those
of Daniel Blue, deputy surveyors, William
Hambly, interpreter, and Edmund Doyle, agent
of the said John Forbes & Co.; and the said
deed legalized by the certificate of the com-
mandant of Ft. St. Marks, of Apalachy, Don
Marcos de Villiera, before two assisting wit-
nesses, the 25th May last, I ordered it, ,with
its translation, to be also annexed to said pro-
ceedings, together with the act passed before the
said commandant at Ft. St. Marks, under No.
6, in which the deputation of chiefs, composed
of Capitza Mico Kinache, Catha Tuskanuky,
Asa Mico, Cosahotcha, Yaholla Emathla, Tul-
sihatcho, and Ninihumatee Tustunuky, declare
fully to have assisted the surveyor, Daniel Blue,
the interpreter, William Hambly, and Edmund
Doyle, agent of said house, in running and mak-
ing the boundary line of said land, in order to
avoid all doubts or difficulties, and that in no
future time there may be any whatever, they
state: "Having begun at the mouth of the river
Apalachicola, and following the line on the
west margin, it ascends the Lake Weinico, three
miles from its entrance, which spot is known by
two cypresses marked with crosses; and thence,
through the hammock, the distance of one chain
south to a cypress marked; here it was found
impracticable to trace the line further, on ac-
count of the bad way, but it should run south
72 degrees west, a supposed distance of 1,280
chains, where a pine is marked; thence south
30 degrees, west 100 chains, to a pine marked
with a cross, on the margin a reedy marsh;
thence the line runs by water, one mile and a
quarter, south 14 degrees west, to the extreme
western point of St. Vincent's or Deer Island,
including the whole of the island;" thence
ascending the river Apalachicola, and begin-
ning the line at the boundary of the lands for-
merly ceded to the house of Panton, Leslie &


Co. And the chiefs Nocosa Hopoy,
Corva Emathla, Tustanuky Hacho, Mico Hat-
cho, and Nocosa Hatcho, having ascertained the
boundary line, approved of and consented to it,
although they were not assisting at running it
out and marking it, and signed it in presence of
the commandant of the Ft. St. Marks, witness-
es and interpreters, as appears at the end of
document No. 6. And the accounts having been
presented of the expenses attending the proceed-
ings instituted, which amounts to $3,492 6%
rials, I have ordered it to be annexed to the
proceedings under No. 7, and I made a decree,
in consequence of the above mentioned petition,
to the following effect: "Granted, as the peti-
tioners' request, on conditions that the said
John Forbes & Co. may not dispose of, nor
alienate the land in question without the ex-
press consent of this Government, and that its
concession is to be understood to be on the same
footing with that for which a title was given
on the 3d December, 1806." In consequence, the
said John Innerarity, as agent and attorney for
the house of John Forbes & Co., concludes his
said petition, begging me to interpose my au-
thority in due form for the ratification of the
said cession of two pieces, of which is desig-
nated by the surveyor general of this province,
Don Vincente Sebastian Pintado, in the figured
plat made out by him, and annexed to the orig-
inal proceedings. Wherefore, making use of the
faculties conferred on me by our lord the king,
and in his royal name, I confirm and ratify to
the said John Forbes & Co. the cession of two
pieces of land above designated, made by the
nation of Seminole Indians, or Lower Creeks,
represented by its principal chiefs, leaders, and
considerable men, amply empowered; and I give
them power to enter into possession of the said
lands according to the directions, dimensions,
and distances, contained in the figured plat and
certificate of survey, the original documents of
'which, with a copy of said plat, shall remain in
the office of the secretary of this government,
the said surveyor enregistering not only this
title, but also that delivered in the year 1806.
from the same motives, and that of the island
conceded to John Forbes individually, in order
that his archives may contain every thing con-
cerning these concessions, and the motives from
whence they originated, and I declare and im-
part to the said house of John Forbes & Co.
entire and direct property, that as such they
may the said lands enjoy, possess, cultivate,
sell, or alienate, on the conditions expressed in
my decree inserted in this title. In witness
whereof, I have ordered the present to be expe-
dited, signed by my hand, sealed with my arms,
and countersigned by the secretary of this gov-
ernment. [Italics supplied.] Given in Pensa-
cola, this 5th June, 1811. Vincente Folch. By
order of the Governor: Pablo de Larin.'
"Also, a copy of the opinion of the assessor
general, as follows: 'May It Please Your Excel-
lency: The lands which were occupied by In-
dians of the Seminole tribe, lying in the district
of Apalachy and Appalachicola, and the island
belonging to the Lower Creek and Seminoles,
about seven miles long, and more than a mile in
breadth, together with two pieces .of neighbor-
ing lands, having been transmitted, as they ac-
tually and lawfully are, in full property, a ti-
tulo oneroso, to the house of John Forbes & Co.
established in the Floridas by royal permission;
for which acquisition a competent permission
was given to Don Cincente Folch y Juan, who


Fla.)







98 SOUTHERN REPORTER


was their political and military governor of In locating another tract of land included in
West Florida, and who delivered, subsequently, the grant, the line runs "thence ascending
titles of confirmation in favor of the purchasers, the river Apalachicola, and beginning the
There is no obstacle to your excellency's mak- line at the boundary of the lands formerly
ing use of the powers intrusted to you, and ceded to the house of Panton, Leslie & Co."
permitting the alienation proposed, among
which is designated Don Colin Mitchel, a mer- This description encircles the land in con-
chant of this city, a person uniting all the qual- troversy where the line reaches Apalachicola
ifications necessary for obtaining them; in the river from the eastern end of St. Vincent's
instrument of transfer for appropriation of Island, and it is clear that the calls relate
property, having to be inserted copies of said to lands, and not to water or to submerged
titles of confirmation, and the present opinion, lands. The call, "thence the line runs by
if your excellency should be in the same senti- water, one mile and a quarter, to
ments. Havana, 13th October, 1817. Donardo the extreme western point of" the named is-
del Monte.'
"Also a copy of the decree of the captain gen- land, then "including the whole of the Is-
eral, in the following words: 'Havana, 13th land," with no other call except "thence as-
October, 1817. Agreeably to the preceding opin- cending the river and beginning
ion of the assessor general, I permit the alien- the line at the boundary of the lands," etc.,
ation of the lands solicited by Don John Forbes, when considered with the repeatedly ex-
in which Don Colin Mitchel is designated as pressed purpose of the cession 'to grant
having the greater part, drawing out the writ- "land," make it manifest that there was no
ing and insertions mentioned in the said opin-
ion.' Cienfuegos."'" (Italics supplied.) attempt to grant or cede or convey anything
but land. The words used in the description
This concession to John Forbes & Co., with are, on leaving the mainland, "thence the
permission to alienate it to Colin Mitchel line runs by water, one mile and a quarter"
to land on the island, and the concluding
was declared valid by the Supreme Court of all om the island, ahend e sending
the United States in Mitchel v. United river Apalachicola, and beginning on the
States, 9 Pet. (U.S.) 711, 9 L. Ed. 283. The line at the boundary of the lands formerly
decree validating the concession, here con- ceded," etc., plainly show that the lines over
sidered, refers to it as "the lands and is- the bay were delineated merely to determine
lands at the west of the mouth of the said the end of the line on the mainland and the
[Apalachicola] river, which were ceded, location of the line as it touched "the ex-
granted, and confirmed to John Forbes & treme western point of St. Vincent's or Deer
Co. in 1811." Subsequent surveys of the Island." After reaching the island, the de-
contents of the cession or grant were of the scription then is, "Including the whole of
lands, thus indicating that the grantees and the island," which embraces only land. Aft-
their successors in title understood no sub- er this, the instruction given for finding the
merged lands under navigable or tide wa- beginning of the second tract of land, which
ters were included or intended to be includ- is many miles away, is, "thence ascending
ed in the grant or cession as made or as the river Apalachicola and beginning the
confirmed by Spain or the United States. line at the boundary of the lands," etc.
From the above quotations it is manifest Thus the descriptions contained in the ces-
that, even if the Indians had a right to cede, sion include lands within designated lines
and the Spanish officers a right to confirm a actually run on the mainland and also "the
cession, to private ownership of submerged whole of" an island, separated from the
lands, such as lands below high-water mark mainland by at least "one mile and a quar-
on navigable waters or tide lands covered ter" of water, which it appears is a part of
and uncovered daily by the tides, the ces- Apalachicola Bay, a navigable body of wa-
sion to John Forbes & Co. in 1811, as made, ter, which extends southwest from the
by its terms covers only "lands" and an "is- mouth of the Apalachicola river, and also
land," and does not expressly include, or, extends beyond the river east and north.
considering the nature of the subject and And the description does not purport to in-
the rights therein, does not by fair implica- clude any submerged lands lying under the
tion or intendment include, submerged waters over which "the line runs by water"
lands; i. e., lands under navigable waters after leaving "a pine [tree] marked with a
or tide lands. The particular description cross on the margin of a reedy marsh"; nor
has reference to "running and marking the does the description include any submerged
boundary line of said land." The descrip- lands on either side of the channel or body
tion that is pertinent to the locus in quo fol- of water lying between St. Vincent's Island
lows "the line on the west margin" of the and the mainland at any point between the
Apalachicola river, and after other calls the western line from the mainland run over the
line/runs from "a pine [tree] marked with a water "to the extreme western point of St.
cross on the margin of a reedy marsh; Vincent's or Deer Island" and the eastern
thence the line runs by water, one mile and extremity of St. Vincent's Island.
a quarter, south 14 degrees west, to the ex- During the British occupancy under the
treme western point of St. Vincent's or Deer Treaty of Paris from 1763 to 1783, the coun-
Island, including the whole of the island." try then known as Florida was divided into







Fla.)


APALACHICOLA LAND & DEVELOPMENT CO. v. McRAE
(9 Bo.)


East and West Florida, with the Chattahoo-
chee and Apalachicola rivers as the eastern
boundaries of West Florida.
By the Treaty of Paris of 1783, Florida
reverted to Spain, the divisions of East and
West Florida being continued. Eventually
the northern boundary of West Florida was
fixed at the line of 31 degrees north latitude
and the western boundary was located at
the Perdido river. Mitchel v. United States,
9 Pet. (U. S.) 711, text 761, 9 L. Ed. 283.
From 1783 to 1821 the provinces of East
and West Florida were subject to Spanish
dominion. The country was inhabited by
Indians, but they could grant lands only by
consent of the proper Spanish authorities
and pursuant to Spanish laws. The conces-
sion here considered was confirmed in 1811.
Under the law of Spain at that time
grants could not be made of submerged lands
below high-water mark, except by the king
or by express authority of the king; and
the cession to John Forbes & Co. was not
made by the king or by any one expressly
authorized by the king to grant submerged
lands; and a cession of submerged lands un-
der navigable waters was contrary to the
laws of Spain in force in West Florida at the
time the cession was made. Sullivan v.
Richardson, 33 Fla. 1,.14 South. 692; Shively
v. Bowlby, 152 U. S. 1, 14 Sup. Ct. 548, 38 L.
Ed. 331; Morris v. United States, 174 U. S.
196, 19 Sup. Ct. 649, 43 L. Ed. 946; United
States v. Pacheco, 2 Wall. (U. S.) 587, 17 L.
Ed. 865; Brickell v. Tammel, 77 Fla. 544, 82
South. 221; Richardson v. Louisville & N. R.
Co., 169 U. S. 128, 18 Sup. Ct. 268, 42 L. Ed.
687; San Francisco Say. Union v. Irwin (C.
C.) 28 Fed. 708; Rosborough v. Picton, 12
Tex. Civ. App. 113. 34 S. W. 791, 43 S. W.
1033. Upon the cession of the Floridas to
the United States by Spain, which became
effective in July, 1821, the lands within the
territory of East and West Florida became
subject to the laws of the United States.
State ex rel. Ellis v. Gerbing, 56 Fla. 603, 47
South. 353, 22 L. R. A. (N. S.) 337.
When the cession was confirmed by patent
from the United States, the lands under navi-
gable waters were held by the United States
for general public purposes, and the patent,
covering only "lands and islands," did not
include submerged lands below high water
mark or tide lands. And such is the law of
this state. See Mitchel v. United States, 9
Pet. (U. S.) 711, 761, 9 L. Ed. 283; Brickell
v. Trammel, 77 Fla. 544, 82 South. 221;
State ex rel. Ellis v. Gerbing, 56 Fla. 603,
47 South. 353, 22 L. R. A. (N. S.) 337; Brow-
ard v. Mabry, 58 Fla. 398, 50 South. 826;
Shively v. Bowlby, 152 U. S. 1, 14 Sup. Ct.
548, 88 L. Ed. 331; State v. Black River
Phosphate Co., 32 Fla. 82, 13 South. 640, 21
L. R. A. 189; Geiger v. Filor, 8 Fla. 325;
Gould on Waters, Sec. 73; City of Tarpon
Springs v. Smith, 81 Fla. 479, 88 South. 613.
The patent controls as between the parties


-523


here. See Knight v. United States Land
Ass'n, 142 U. S. 161, 12 Sup. Ct. 258, 35 L
Ed. 974.
The title of the Indians was predicated up-
on possession or occupancy for the accus-
tomed common purposes of such people; and
they could have had no greater title to lands
below high-water mark in navigable waters
or to tide lands than did the kingdoms of
Spain and England, in each, of which sov-
ereignties the title to such lands was held
by the crown for the public uses which the
law attached thereto. Brickell v. Trammel,
77 Fla. 544, 82 South. 221; Sullivan v. Rich-
ardson, 33 Fla. 1, 14 South. 692; White's
Spanish Laws, 62. The concession made by
the Indians to John Forbes & Co., and con-
firmed by Spanish authorities, was obvious-
ly not intended to be in excess of the ordi-
nary authority exercised in that way, and it
did not purport to convey or to grant sub-
merged lands below high-water mark on
navigable waters or tide waters; therefore
it is not even necessary to invoke the general
rule that grants by or for the public to pri-
vate ownership shall be strictly construed
against the grantee. There is' nothing in
any record pertaining to the matter that
tends to indicate a purpose or an attempt to
cede or grant or convey submerged lands
below high-water mark or tide lands. The
manifest purpose was to cede the lands that
were within the designated boundary lines
as they were run on the land. The lines
referred to as crossing the bay from the
mainland to the western extremity of St.
Vincent's island and from the eastern extrem-
ity of the same island. "thence ascending the
river Apalachicola," are intended to relate
merely to the location of the boundary lines
of lands on the mainland and on the island,
which land lines define the territory or space
of land included in the "concession."
Even though there is included within the
lines as run. or "within the boundaries of
the grant." submerged lands, i. e., lands be-
low ordinary high-water mark or navigable
waters of the bay or tide lands, yet such
lands, being held for purposes common to
the 'public, were "not intended to be con-
veyed" or granted by the cession, any more
than were the fort of St. Marks "and land
attached to it by military usage," as in Mitch-
el v. United States, 15 Pet. (U. S.) 52, 91
(10 L. Ed. 658). There is in the records of
the cession made to John Forbes & Co. evi-
dence indicative of an intent to grant lands,
but nothing denoting an intent to attempt
a grant or a cession of submerged lands
navigable waters or tide lands. The cession
of the lands contained within the defined
boundaries carried with it a right to use the
submerged lands within the stated lines for
proper purposes in conjunction with the
rights of the public and subject to regulation
under the laws of the governing soverign
having dominion from time to time. The







98 SOUTHERN REPORTER


confirmation of the concession by Spain did ernment the title originated, the proceedings
not affect the Spanish authority as to owner- under said treaty, and the acts of Congress
ship and regulation of the use of such sub- relating thereto." Only "lands and islands"
merged lands, and the ownership and govern- were held to have been granted to John
ing power as to such submerged lands passed Forbes & Co. by the Indians and confirmed
to the United States under the treaty of ces- by Spanish authority.
sion of the .Floridas to the United States, [20] The confirmatory patent issued by
which became effective upon the transfer the United States covers only "the lands and
of sovereign authority in July, 1821. islands at and west of the mouth of said
By article 2 of the "Treaty of Amity, Set- [Apalachicola] river, which were ceded,
tlement and Limits" herein quoted from, the granted and confirmed to John Forbes & Co.
kingdom of Spain ceded to the United States in 1811." The patent controls and does not
"in full property and sovereignty, all the include submerged lands. See Dean v. City
territories" described, "known by the name of San Diego (D. C.) 275 Fed. 228; De Guyer
of East and West Florida," including "the ad- v. Banning, 167 U. S. 723, 17 Sup. Ct. 937, 42
jacent islands dependent on said provinces." L. Ed. 340; Knight v. United States Land
and by article 8 of the Treaty of Cession it Ass'n, 142 U. S. 161, 12 Sup. Ct. 258, 35 L. Ed.
was expressly provided that "all the grants 974. See Insular Government of the Philip-
of land made before the 24th of January, pine Islands v. Jovery Costas, 221 U. S. 623.
1818, by lawful Spanish authorities, "in the 31 Sup. Ct. 664, 55 L. Ed. 884, for a special
said territories, shall be ratified grant and the circumstances influencing the
and confirmed to the persons in possession of decision thereon. The Arredondo grant was
the lands." This clearly shows that the ex- of interior lands. United States v. Dela Ar-
ceptions contained in the treaty related to redondo, 6 Pet. (U. S.) 691, 8 L. Ed. 547; Ax-
grants of lands that could be occupied and line v. Shaw, 35 Fla. 305, 17 South. 411, 28
which were then capable of being held "in L. R. A. 391.
possession' by persons under prevailing con- By "Treaty of Amity, Settlement and Lim-
ditions existing at that time. See United its between the United States of America and
States v. Arredondo, 6 Pet. (U. S.) 691, 8 L. His Catholic Majesty, the King of Spain, con-
'Ed. 547. If the king of Spain had granted, eluded February 22, 1819. ratifications ex-
or had expressly authorized a grant of, sub- changed at Washington, D. C., U. S. A., Feb-
merged lands below high-water mark on the changed at Wash proclaimed February 22, 1821"
bays of the sea, such a grant might under ruary 22, 1821, proclaimed February 22, 1821"
bays of the sea. such a grant might under (8 Stat. 252), it is provided that:
some circumstances carry a bare legal title, ( tat 22) that
but not a right of private ownership in sub- "His Catholic majesty cedes to the United
merged lands under the waters of the bay States, in full property and sovereignty, all the
or sea, thereby excluding navigation, fishing, territories which belong to him, situated to the
the taking of oysters or other shell fish, and eastward of the Mississippi, known by the
other purposes in which the public have an name of East and West Florida. The adja-
interest as of common right, subject to gov- cent islands dependent on said provinces, all
ernmental regulation for the good of the pub- public edifices, fortifications, bar-
racks, and other buildings, which are not pri-
lic. See Martin v. Lessee of Waddell, 16 Pet. vate property, archives and documents, which
(U. S.) 367, 10 L. Ed. 997: Morris v. United relate directly to the property and sovereignty
States, 174 U. S. 196, 19 Sup. Ct. 649, 43 L. of said provinces, are included in this article.
Ed. 946. See. also, Mayor of Galveston v. The said archives and documents shall be left
Menard, 23 Tex. 349, for authorities. But in possession of the commissaries or officers
the grant or concession to John Forbes & of the United States, duly authorized to receive
Co. was not made by the king of Spain, or them," and that "all the grants of lad made
before the 24th of January, 1818, by his Cath-
by any one expressly authorized by him, for olic majesty, or by his lawful authorities, in
the purpose of transferring to private own- the said territories ceded by his majesty to the
ership title to or the beneficial use of any United States, shall be ratified and confirmed
submerged lands below ordinary high-water to the persons in possession of the lands, to the
mark on the bay or sea to which the lands same extent that the same grants would be valid
granted or ceded were riparian or littoral, if the territories had remained under the do-
and no attempt was made by the Indians to minion of his Catholic majesty. But the o
authorities to con- era in possession of such lands, who, by reason
grant or by the Spanish authorities to con- of the recent circumstances of the Spanish na-
firm a cession of such submerged lands. tion, and the revolutions in Europe, have been
The United States Supreme Court con- prevented from fulfilling all the conditions of
frmed the grant to "the lands and islands at their grants, shall complete them within the
and west of the mouth of said [Apalachicola] terms limited in the same, respectively, from the
river which were ced4d, granted and con- date of this treaty, in default of which the said
.rmed to John Forbes & Co. in 1811," and ad- grants shall be null and void. Al grants made
judged the grant to be "valid by the law of since the said 24th of January, 1818, when the
Sthe be United States first proposal, on the part of his Catholic maj-
nations, the treaty between the United States esty, for the cession of the Floridas, was made,
and Spain, by which the territory of the are hereby declared, and agreed to be, null and
Floridas was ceded to the former, the laws void." Articles 2 and 8 of Treaty, as shown by
and ordinances of Spain, under whose gov- Fuller's Purchase of Florida, 1776-1819; State






Fla.) APALACHICOLA LAND & DEVELOPMENT CO. v. McRAE 525
(98 So.)
ex rel. Ellis v. Gerbing, 56 Fla. 603, 47 South. general navigation purposes by the public,
353, 22 L. R. A. (N. S.) 337. subject to governmental regulation.
Subsequent to the Treaty of February 22, Manifestly the lines that were run on the
18ubs to reay o a it land and extended over the water between
1819, by which Spain ceded to the United the mainland and St. Vincent's Island, and
States the territories known as East and that are referred to in the muniments of
West Florida, various acts of Congress were title, were intended to indicate the general
passed for settling private land claims in exterior limits within which the granted
the ceded territories, pursuant to the above- "lands and islands" are located, and the lo-
quoted provision of article 8 of the treaty cation of the island with reference to the
providing that "all grants of land made be- mainland; and such lines, obviously have
fore the 24th of January, 1818, in reference to the "lands and islands at and
the said territories. shall be rati- west of the mouth of said [Apalachicola]
fled and confirmed to the persons in posses- river," which were confirmed as intended to
sion of the lands, to the same extent that the be included in the grant or cession that was
same grants would be valid if the territories made and confirmed to John Forbes & Co.
had remained under the dominion of" Spain. in 1811; such "lands and islands" including
The titles to the land were to be "ratified only the uplands within the general exten-
and confirmed to the persons in possession of sion lines on the mainland and island to
the lands." high water-mark of the navigable waters up-
After the United States acquired by treaty on which such "land and island" abut.
of cession from Spain the territory known The "Diagram of the Survey" attested by
as East and West Florida, such territory was Robert Butler, surveyor general of the Unit-
held subject to the Constitution and laws of ed States, dated January 15, 1842, shows the
the United States. The lands under naviga- outlines of "the lands and islands at and
ble waters, including the shores, were held west of the mouth of said [Apalachicola] riv-
by the United States for the benefit of the er which were ceded, granted and confirmed to
whole people, to go to the future state for John Forbes & Co. in 1811," and covered
the use of the whole people of the state, and by the patent issued by the United States
the state holds title for the purposes of the to Colin Mitchel June 9, 1842. This diagram
people of the state. Section 12, Act of Con- shows the name "John Forbes & Co." marked
gress of March 3, 1823 (3 Stat. 756), provides: on the part of the mainland included in the
"That all the navigable rivers and waters in survey limits and also on the space rep-
the districts of East and West Florida shall be, resenting St. Vincent's Island. The name
and forever remain, public highways." does not appear in the space representing the
submerged lands or tide lands between the
[21, 221 The shores of navigable waters are mainland and the island, a part of which
the spaces between high and low water of which
marks, and the bed of the waters includes land is covered by navigable waters leading
the shores. Tide land is that which is daily from Apalachicola Bay to the Gulf of Mex-
covered and uncovered by water by the ordi- Ico. The lines and figures that appear in the
nary ebb and flow of normal tides. State water space between the island and the main-
ex rel. Ellis v. Gerbing. supra. See, also, land indicate the location and distance of the
Clement v. Watson, 63 Fla. 109, 58 South. island from the mainland. There is noth-
25, Ann. Cas. 1914A, 72. The expression "sea- ing in any of the muniments of title or in the
coast" has reference to "land adjacent to the plat showing an intent to grant lands under
sea or ocean." Webster's Dic. navigable waters or tide lands. The waters
This is not a case where boundaries refer of the bay being as obviously in place as
to a body of water of'larger dimension that are the navigable rivers adjacent to or con-
is intersected by a stream or body of water trained within the limits of the exterior lines
of a smaller dimension, and the line of bound- of the grant, the grant or cession manifestly
ary on the larger waters cross the smaller had relation to uplands contained within the
waters at the points of junction from head- limits of the lines run and there was no in-
land to headland, as where a creek enters tent to attempt a conveyance of lands un-
a bay. See Knight v. United States Land der navigable waters of a bay or tide lands,
Ass'n, 142 U. S. 161, 207, 12 Sup. Ct. 258, 35 that are designed for public use.
L. Ed. 974; San Francisco City & County v. The manifest intent of the cession or grant
LeRoy, 138 U. S. 656, 11 Sup. Ct. 364, 34 LI and of the confirmation articles, as well as
Ed. 1096. of the decree adjudicating the title, was to
The line as delineated in this case crossed cover all the "lands and islands" that were
the bay, and the line over the water is given within the lines as run, the conveyance of
for the purpose of showing the water termi- such lands, and islands for occupancy being
nus of the line on the mainland and the be- within the granting power and purpose; but
ginning of the line on the island which lies there is no intent shown by any documents
on the opposite side of the bay from the affecting the title to attempt to pass title to
mainland. The bay is not merely tide wa- navigable waters of the bay or to any sub-
ter, but is a navigable body of water used for merged lands under navigable waters of the







98 SOUTHERN REPORTER


bay; the same being, then, not subject to ex-
clusive private ownership and possession.
The ascertained arpent or acreage contents
of the surveys do not operate to convey nav-
igable waters of the bay and lands there-
under, when the title documents disclose-no
intent to include such submerged lands. The
survey lines determine the limits of land
areas, but they do not extend the title to sub-
jects within the lines that were not intended
to be covered by the grant or conveyance.
As the records of the cession (4 Am. St.
Papers, 86 et seq.) show that the grantees
sought permission of the Spanish authorities
to negotiate with the Indians for cessions
of lands, and also that John Forbes & Co.
asked and obtained from the Spanish author-
ities confirmations of the grant or cession
made by the Indians to John Forbes & Co.,
and also sought and obtained permission
from the Spanish authorities to alienate the
lands, it is not appropriate to consider treaty
rights, if any existed, between the Indians
and Spain as to the ownership of the lands
by the Indians in their own dominion. The
deeds made by the Indians do not purport to
grant or cede submerged lands, but only
lands and islands occupied by the Indians
within designated exterior limits. The lines
run over the waters of the bay and the refer-
ence to the sea were intended as a means
of showing an intent to include islands south
of the mainland within the lines extending
to the sea coast or shore of the mainland.
The patent issued by the United States to
Colin Mitchel et al.. pursuant to the adjudi-
cation of title (Mitchel v. United States, 9
Pet. [U. S.1 711, 9 L. Ed. 283), refers to lands
and islands that were "ceded, granted and
confirmed to John Forbes & Co. in 1811."
"A grant from the sovereign of land bounded
by the sea, or by any navigable tide water, does
not pass any title below high-water mark, un-
less either the language of the grant, or long
usage under it, clearly indicates that such was
the intention." Shively v. Bowlby, 152 U. S.
1, text 13, 14 Sup. Ct. 548, 552 (38 L. Ed. 331):
Morris v. United States, 174 U. S. 196, text
236, 19 Sup. Ct. 649, 43 L. Ed. 946.
The lands and islands, referred to as "the
several tract of land that are specifically
included in the patent," are described as:
"Bounded on the south and southeast by the
reservation at St. Marks, the river St. Marks,
the Apalachee Bay, the Gulf of Mexico; on the
west by public lands, namely, [particularly de-
scribed by fractional townships in stated rang-
es,] by Lake Wee Mee Coe, and by the Apa-
lachicola river; on the north by the middle
Sweet Water creek, by fractional townships
[definitely stated]; and on the northeast and
/east by public lands, viz. by fractional town-
ship and by St. Marks river, includ-
ing the following islands, namely: Leeward
Island, Middle Island, South or Windward Is-
land, Piney Island,' Dog Island, St. George's
Island, St. Vincent or Deer Island, and Forbes
Island, hereinbefore mentioned," excepting de-
scribed pieces of uplands.


The Indians were regarded by Spain as
its "subjects." Mitchel v. United States, 9
Pet. (U. S.) 711, text 753, 9 L. Ed. 283. And
under the Spanish law applicable to the
Florida provinces the submerged lands un-
der the navigable waters within the domin-
ion of the crown were held by the crown res
communes for proper uses of all its people.
The rights of the Indians to the lands were
of "occupancy and perpetual possession, ei-
ther by cultivation or as hunting grounds,"
and of alienation of such right of occupancy
and possession, which alienation, when duly
made and confirmed by authority of the Span-
ish crown, in whom was the "ultimate rever-
sion in fee," "passed the lands in full proper-
ty to the grantee." See Mitchel v. United
States, 9 Pet. (U. S.) 711, text 745, 746, 752,
756 (9 L. Ed. 283). The cession was of "all
the right the Indians had retained in the
land until that time." Mitchel v. United
States, 15 Pet. (U. S.) 52, text 83, 85 (10 L.
Ed. 658).
In this case the Indians ceded "a district
of land" and "land and islands," "contained
within stated limits," that were then occu-
pied by the Indians who made the cession;
and this is the cession that was confirmed
by Spanish authorities. It did not include
lands under navigable waters or tide lands.
This is shown by the muniments of title and
by the surveyor general's diagram or plat
pursuant to which the confirmatory patent
from the United States was made.
The decree in the case of Mitchel v. United
States, 9 Pet. (U. S.) 711, text 762, 9 L. Ed.
283, directs the surveyor general of Florida
"to survey and lay off the lands described in
the petition of claimant, according to the
lines, boundaries and description thereof in
the several deeds of cession," etc., and the
diagram of survey and the patent refer to
lands and islands which are delineated on
the diagram and separated from bodies of
water that exist between the lands and the
islands. The grant to John Forbes & Co.,
confirmed in 1811, was not intended to in-
clude the body of water more than a mile in
width that is between the mainland and St.
Vincent's Island, any more than the grant to
Panton, Leslie & Co., confirmed in 1806, was
intended to include Appalachee Bay or St.
George's Sound, or Apalachicola Bay, or
Ellen Butler Bay, or North Bay, which lie
between the lands on the mainland and the
islands that were granted to Panton, Leslie
& Co., or any more than the grant to John
Forbes & Co., in 1811, was intended to in-
clude the fortress at St. Marks. See Mitchel
v. United States, 15 Pet. (U. S.) 52, text 87,
10 L. Ed. 658
Affirmed.

WEST and TERRELL, JJ., concur.
TAYLOR, 0. J., and ELLIS, J., concur in
the opinion.







Fla.) APALACHICOLA LAND & DEVELOPMENT CO. v. McRAE 527
(98 So.)
BROWNE, J. (dissenting). This case submerged lands. The members of the In-
seems to hinge upon, and may be determined dian tribes obtained their livelihood largely
by, one question: What did the Indian tribes from hunting and fishing, and the tribal gov-
intend to convey to Panton, Leslie & Co., and eminent held the upland and the submerged
to John Forbes & Co.? For it seems clear to lands for the benefit of all the members of
me that the Spanish government ratified, their tribes for these purposes.
without equivocation or mental reservation, No distinction between upland and sub-
whatever the Indians intended to grant, merged lands, or the method of their tenure
The Supreme Court of the United States was known to the Indian tribes. A territory
has upheld the ratification of these Indian within certain prescribed boundaries over
grants in a sutt in which part of the upland which the Indians exercised dominion wal
only was involved. Mitchel v. United States, transferred by them to Panton, Leslie & Co.
9 Pet 711, 9 L. Ed. 283. and John Forbes & Co. The Indians did rot
There it was held that, the Spanish govern- have in contemplation the mere granting of
ment having confirmed the grants before the the uplands, as under their law and customs
United States government acquired Florida there was no distinction between them.
from Spain, the United States had no right This was well known to the Spanish gWv-
or title to the upland in dispute. eminent when it ratified the Indian grants.
The opinion of the majority in the instant Without this ratification, the title to the up-
case is predicated upon the doctrine that lands would not have passed to Panton, Leslie
those claiming ownership below high-water & Co. and John Forbes & Co., and with it
mark under a grant from the government went everything that the Indians intended to
must clearly show that such was the inten- grant
tion of the government making the grant. We are considering a case where both up-
If the titles of Panton. Leslie & Co., and land and submerged lands were held by the
John Forbes & Co., which were confirmed by same tenure. In the case of Mitchel v. Unit-
the Spanish government, rested upon a con- ed States, supra, the court in its statement
veyance from a private individual, the doc- of facts said:
trine invoked in this case might be applica- "It is not deemed necessary to recite more
ble, as it could be contended that, in the ab- specially the various original deeds from the In-
sence of anything to the contrary, the Indian dians, or those made in councils after the lines
tribes may have held title to the submerged had been marked which designated the bound-
lands only for the benefit of the public, in the aries of the respective grants. Those
same manner that other sovereignties hold of the Indians recite the considerations which
such lands. But it seems to me that "the led to the grants, convey the lands with a war-
ranty of their title by ascertained boundaries."
government making the grant"-the Tala- (Italics are mine.)
poosa and Seminole Indians in the matter
of the Panton-Leslie Company, and the Low- These "ascertained boundaries" included
er Creek and Seminole Indians in the grant both upland and submerged lands, and the
to John Forbes & Co.-intended to grant the Supreme Court of the United States held in
area embraced within the description, with- the Mitchel Case that the Indians conveyed
out distinction between upland and sub- the lands within the prescribed boundaries.
merged lands. The court says with reference to the acts of
The opinion in this case says: confirmation by the Spanish government:
"Where private ownership is asserted in "Those of the governor ratify and confirm the
property that under the law is a subject of grants in full and direct dominion, and in full
common or public use, the claimant must clear- property, put the grantees in possession, and
ly show that the private exclusive right that is promise to defend and maintain it."
asserted was lawfully acquired through com-
petent authority in the premises." In ratifying the grants made by the In-
dians, which, says the Supreme Court, were
All real property held by the Indians under "marked with designated boundaries," the
their law was "a subject of common or public Spanish government did not specify that it
use," and it follows that any grant by them ratified the grant only as to the uplands, nor
of the upland would have to be established by is there anything in their ratification that ex-
as clear and positive proof as a grant of the cluded the submerged lands.
submerged land or lands below high-water The Supreme Court further said:
mark.
mark. "The original deeds, and the demarcation of
In considering this question, we need not lines and boundaries, were made in the pes-
be confused by distinctions that exist in gov- ence of the commandant at St. Marks, exer-
ernments where there is private ownership cising the offices of lieutenant governor and
in uplands and government ownership or con- subdelegate of the intendancy, or were ap-
trol in the submerged lands. proved by him; every act done in relation to
Under the laws of the Indian tribes there the sessions and their ratification, from the
was no private ownership of either the up- first application to the governor general in
land or the submerged lands; but the tribes 1799, to their consummation in 1811, was pub-
held the title to all such lands in the same lic and notorious to both Indians and whites "
manner that other sovereignties hold title to So complete was the cession by the Indians







98 SOUTHERN REPORTER


of their title to and dominion over all the
territory within the "ascertained bounda-
ries," that they would not go, for the purpose
of hunting, upon any of the territory includ-
ed within those boundaries, without the per-
mission of their grantees.
Hunting by the Indians necessitated to a
great extent the use of both the land and the
water, for within the ceded territory there
were rivers, lagoons, bayous, and bays which
it was necessary to cross or traverse in their
hunting expeditions. After their grant to
Panton, Leslie & Co. and to John Forbes &
Co., they abstained from the right of hunting
on the ceded territory without asking "per-
mission from the house to hunt upon them,
and with the exception of some occasional
depredations respected their possession and
property." Mitchel v. United States.
Continuing, the court said:
'That by the law of nations, the inhabitants,
citizens or subjects of a conquered or ceded
country, territory or province, retain all the
rights of property which have not been taken
from them by the orders of the conqueror, or
the laws or the sovereign who acquires it by
cession, and remain under their former laws,
until they shall be changed."
Within the territory claimed by the Indi-
ans in Florida "the inhabitants, citizens or
subjects" had no private rights of property.
All right of property both to the upland and
the submerged lands was in the Indian tribes.
If, ipso facto, by conquest, Spain acquired
dominion over the submerged lands which
the Indian tribes held for common or public
use, it acquired also dominion over the up-
land, as that was held by them by the same
tenure that they held the submerged lands.
When the Spanish government confirmed
the grant of the Indians-unless there is
something to be found within the terms of the
ratification or in the circumstances attending
it, that the Spanish government intended to
distinguish between the upland and the sub-
merged lands-the conclusion seems irresis-
tible that the Spanish government ratified the
transfer of the title to and dominion over
everything, whether upland or submerged
lands. within the "ascertained boundaries."
To the Indians and in the Indian law there
was no more distinction between upland and
submerged lands, than there was between the
topsoil and the subsoil.
They granted to Panton, Leslie & Co. and
to John Forbes & Co., all that they claimed
ownership to or dominion over, within the
ascertained boundaries, and this broad grant
was confirmed and ratified by the Spanish
government without reservation.
The contention that simultaneously with
the acquisition of Florida by the Spaniards,
the Indian tribes were divested of all domin-
ion over and right to the submerged lands
which the Indian tribes held, together with
Sthe uplands, for the use and enjoyment of all
their subjects, and consequently Spain's rati-


flcation of the grant of the Indians included
only the uplands, rests upon one of two hy-
potheses, neither of which seems tenable to
me.
First, that theSpanish government did not
know that the Indian tribes held the title to
the upland and the submerged lands by the
same tenure, and thought that the Indians
were only selling the uplands contained with-
in the "ascertained boundaries."
Spain at that time was one of the most
highly civilized and cultured nations of the
world, and its familiarity with laws and cus-
toms of all nations with which it traded, civ-
ilized or uncivilized, was second to none. We
must therefore reject that hypothesis.
The second is that the Spanish government,
knowing that the Indians claimed property
in, and dominion over, both the upland and
the submerged lands, and when they granted
lands within "ascertained boundaries," made
no distinction between them, ratified the
grant of the Indians with a mental reserva-
tion that they were not granting, and that
Panton, Leslie & Co. and John Forbes & Co.,
were not receiving, what all parties to the
transaction supposed they were; that is, the
upland or submerged lands within the pre-
scribed boundaries. I cannot accept that hy-
pothesis, as there is nothing in the action of
the Spanish government in the matter of
their ratification to indicate that they prac-
ticed or intended to practice such duplicity.
When the United States acquired Florida
from Spain, it claimed ownership of the lands
that had been granted by the Indians to Pan-
ton, Leslie & Co. and John Forbes & Co., and
sought to destroy the effect of those grants
and their ratification by the Spanish govern-
ment.
The Supreme Court of the United States,
however, rejected the claim of the United
States government, and sustained the Indian
grants and the Spanish ratification, as to the
upland, as that was the only part of the tract
in controversy.
The state of Florida is now making the
same contention with regard to the submerg-
ed lands, but as it seems clear to me that
both must be tested by the same principles,
the state of Florida has no more claim to the
submerged land than the United States gov-
ernment had to the upland.
I am therefore forced to these conclusions:
That the Indians intended to grant every-
thing within the subsequently "ascertained
boundaries," whether upland or lowland, ex-
cept the channels of certain navigable wa-
ters, to which no claim is made in the bill;
that the Spanish government, with full
knowledge of this, ratified and confirmed
these grants, and with such ratification and
confirmation went everything that the Indi-
ans intended to grant.
I think the decree sustaining the demur-
rer should be reversed.




University of Florida Home Page
© 2004 - 2010 University of Florida George A. Smathers Libraries.
All rights reserved.

Acceptable Use, Copyright, and Disclaimer Statement
Last updated October 10, 2010 - - mvs