Petition for a Writ of Certiorari — Canaveral Port Authority v. 1329.25 Acres of Land

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1950

No. 261

CANAVERAL PORT AUTHORITY,

Petitioner,

Vs.

1329.25 ACRES OF LAND, MORE OR LESS, IN BRE-

VARD COUNTY, FLORIDA; PORT REALTY COM-

PANY, ET AL.

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF FLORIDA

Wun D. Jongs, Jr.,

Counsel for Petitioner.

PIS Se _

INDEX

Suspsect Inpex

Petition for writ of certiorari

SS he 2s ee So mae

Jurisdiction ......

eye Ne er cere

Federal question involved

ME. hit ne ieu ert ee oon ee

Reasons for granting the writ.................

a Ee eye eae ie ree

TABLE oF Cases CITED

Adams v. Elliott, 128 Fla. 79, 174 So. 731...........

Apalachicola Land & Development Co. v. McRae, 86

i we Re eer re ee

Bailey v. United States, 62 C. Cls. 77, 273 U. S. 751

Bass v. Ramp, 58 Fla. 161, 50 So. 945...............

Brickell v. Trammel, 77 Fla. 544, 82 So. 221.........

Bridge Co. v. Hatch, 196 U. 8. 1................2...

Broward v. Mabry, 58 Fla. 398, 50 So. 826...........

Canaveral Port Authority v. 1329.25 Acres of Land

Ot, 5, Se es Ce kh Se eel Vow bees

Caples v. Taliferro, 144 Fla. 1, 197 So. 861.........

Cardwell v. Bridge Co., 113 U.S. 205...............

City of Tarpon Springs v. Smith, 81 Fla. 479, 88 So.

TR MG a merece in ytd or a ta

Clements v. Watson, 63 Fla. 109,58 So.25..........

Davidson v. New Orleams, 96 U.S. 107.............

Deering v. Martin, 95 Fla. 259, 116 So. 54...........

Escamba & L. M. Transportation v. Chicago, 107 U.S.

i Ee a eed gtr ree Rs Te RP gach Me

Ferry Pass Inspectors’ & Shippers’ Assn. v. White’s

River Inspectors’ & Shippers’ Assn., 57 Fla. 399,

Oe I, SU enc Paina see eae ee

Freed v. Miami Beach Pier Corp., 93 Fla. 888, 112 So.

es er Ay RO 5 5 Cocke eee ee ee

—9628

’

Fe POG

ii INDEX

Gibson v. United States, 166 U.S. 269..............

Gilman v. Philadelphia, 3 Wall. 713................

Hagan v. Reclamation District, 111 U. 8. 701.......

Hamilton v. Railroad Co., 119 U.S. 280.............

Hicks v. State ex rel. Landis, 116 Fla. 603, 156 So. 603

Lipscomb vy. Gailourakis, 101 Fla. 1130, 133 So. 104. .

Martin v. Busch, 93 Fla. 535, 112 So. 274............

Merrill-Stevens Co. v. Durkee, 62 Fla. 549, 57 S. 428

Mobile Co. v. Kimball, 102 U. 8. 691...............

Panama Ice & Fish Co. v. Atlanta & St. A. B. Ry. Co.,

cane wesw a

Perky Properties, Inc. v. Felton, 113 Fla. 432, 151 So.

NAN em Sat mn oc a a yy g

Powell, Ex parte, 70 Fla. 363, 70 So. 392............

eee a as a, ee. c

Ruge v. Apalachicola Oyster Canning € Fish Co., 25

ON Se ee

South Carolina v. Georgia, 93 U.S.4...............

State v. Black River Phosphate Co., 27 Fla. 276, 9 So.

ET eer OG ee te ee Oe sy

State v. City of Tampa, 88 Fla. 196, 102 So. 274. ...

State v. Gerbing, 56 Fla. 603, 47 So. 353............

State v. Gordon, 138 Fla. 312, 189 So. 437...........

State ex rel. Landis v. Rosenthal, 109 Fla. 363, 148

I Ee EE rn

Stockton v. Powell, 29 Fla. 1, 10 So. 688, 15 L.R.A. 42

Symmes v. Prairie Public Phosphate Co., 64 Fla. 480,

ae Tah acta ied hes 4 ak 3.68 ON

Tampa Southern R. Co. v. Nettles, 82 Fla. 2, 89 So.

Er a a gs acs ws 6K Aso 8

Thiesen v. Gulf, F. @ A. Ry. Co., 75 Fla. 28, 78 So. 491

United States v. Chandler-Dunbar W. P. Co., 229

U.S. 592. Dee aeie Ee il oak a Sy a

United States v. Commodores Park, Inc., 324 U.S. 386

White v. Hughes, 139 Fla. 54, 190 So. 446...........

Wilson v. Marsh Co., 2 Pet. 245....................

PRAT NLI EN BIRT SERED AA LAA PES LETT LUNE SIRI TRL II PE MLE ONES LETTER

INDEX

Statutes CIrep

Bill of Rights of the State of Florida, Sec. 12.

Constitution of Florida of 1886, Article XVI, Sec. 29

Constitution of the United States, Fifth Amendment

House Document No. 367 of the 77th Congress, First

IR igs ee Se ee hk es cata tn eey i

Laws of Florida, Acts of 1939, Chapter 19716......

Acts of 1941, Chapter 23199...

Acts of 1945, Chapter 24403... ...

Acts of 1947, Chapter 24403......

Acts of 1948, Extraordinary Ses-

NT te rg eae alte hee

Acts of 1949, Chapters 25700 and

BIRR B nioe aacete

Public Law No. 14, 79th Congress, First Session... . .

Rivers and Harbors Act of Congress, approved

March 2, 1945, Public Law No. 14, 79th Congress,

First Session

iii

RYT OME

_—S RA ean eA MRE REIT SET OOP A ag tte AGE

PSE eccints i i nie Ae e E

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1950

No. 261

CANAVERAL PORT AUTHORITY,

Petitioner,

vs.

1329.25 ACRES OF LAND, MORE OR LESS, IN BRE-

VARD COUNTY, FLORIDA; PORT REALTY COM-

PANY, ET AL.

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF FLORIDA

Canaveral Port Authority, by its undersigned attorney,

prays that a writ of certiorari issue to review the judgi :ert

of the Supreme Court of the State of Florida, entered in the

above cause on May 26, 1950, affirming the judgment of

the Circuit Court, Ninth Judicial Circuit of the State of

Florida, in and for Brevard County, Florida, in a proceed-

ing in eminent domain brought by Canaveral Port Author-

ity, a State governmental instrumentality and body corpo-

rate and politic, created under the provisions of Chapter

19716, Laws of Florida, Acts of 1939, as the governing au-

thority of Canaveral Port District thereby created in Bre-

vard County, Florida, to acquire the fee simple title to cer-

tain fast lands and to confirm its fee simple title to certain

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Seshen MS BtI AG Se TO OILS

SRS SEEN aE ES

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2

submerged lands lying below high water mark of the Banana

River, a stream navigable in fact, as theretofore acquired

from the State of Florida by deed of conveyance executed

and delivered by said State acting by and through the Trus-

tees of the Internal Improvement Fund of the State of

Florida in connection with the establishment within said

Banana River of a deep water sea harbor and port and

appurtenances thereto.

Opinions Below

The said Circuit Court’s final judgment entered on August

26, 1949, is not reported but is to be found at R. 62. Only

adjudication of Paragraphs numbered 24 and 25 is here

involved. (R. 59) The opinion of the Supreme Court of

the State of Florida (R. 68) is reported in 46 So. (2d) 611.

Jurisdiction

The judgment of the Supreme Court of the State of

Florida was entered May 26, 1950 (R. 68). The juris-

diction of this Court is involved under the provisions of

Title 28, U.S. C. A., Section 1257,

Questions Presented

As will be noted below, there are two questions here in-

volved. As to the appellee owners, Elizabeth Holmes and

Elliott M. Burns, in whose favor severally the said Cireuit

Court rendered awards against Canaveral Port Authority

by its heretofore indicated Final Judgment (R. 47), pur-

suant to adjudicating Paragraphs 24 and 25 (R. 59) thereof,

the questions here presented are identical.

The questions so presented are:

1. ARE RIPARIAN RIGHTS APPULT SANT TO UPLAND FAST

LANDS TERMINATED AND ENDED BY A CONVEYANCE BY

3

THE TRUSTEES OF THE INTERNAL IMPROVEMENT FUND OF

THE STATE OF FLORIDA OF THE SUBMERGED LANDS IN THE

BED OF A NAVIGABLE STREAM FROM THE HIGH WATER

MARK, OF SAID STREAM OUTWARD TO A GRANTEE NOT THE

OWNER OF THE UPLAND PROPERTY?

2.18 A STATE GOVERNMENTAL INSTRUMENTALITY EN-

GAGED IN A PUBLIC PROJECT IN AID OF COMMERCE AND

NAVIGATION IN THE BED OF A NAVIGABLE STREAM RE-

QUIRED TO MAKE COMPENSATION TO THE OWNER OF THE

UNINVADED UPLAND TO THE EXTENT OF THE DEPRECIA-

TION IN THE VALUE THEREOF ARISING FROM THE DESTRUC-

TION OF THE RIPARIAN RIGHTS FORMERLY APPERTAINING

TO THE UNINVADED UPLAND AS THE PROXIMATE RESULT

OF THE PERFORMANCE OF SAID PUBLIC PROJECT?

Federal Question Involved

As to both questions here involved the identical Federal

question is present.

The Constitution of 1886 of the State of Florida now in

force and effect contains two provisions concerning com-

pensation for the taking of private property for public use,

namely, Section 12 of the Bill of Rights and Section 29,

Article XVI of said Constitution. No other constitutional

or statutory provisions of the State of Florida exist as a

support for the before indicated awards against Canaveral

Port Authority here complained of. As will appear from the

statement included herein below neither of the referred

to Florida Constitutional provisions are applicable in the

premises and hence the awards severally made by the said

Circuit Court by adjudicating Paragraphs numbered 24 and

25 (R. 59) of its said final judgment of August 26, 1949, as

affirmed by the Supreme Court of Florida by its opinion and

judgment rendered on May 26, 1950 (R. 68), 46 So. (2d)

611, constitute and are adjudications against Canaveral

Port Authority in denial of an equal protection of the laws

as guaranteed unto it by the 14th Amendment to the Con-

stitution of the United States.

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Statement

Canaveral Port Authority, for the purpose of aiding com-

merce and navigation in the Banana River on a cost sharing

basis with the United States, acting under the Rivers and

Harbors Act of Congress, approved March 2, 1945, as Public

Law No. 14, 79th Congress, First Session, in accordance with

a project set forth in House Document No. 367 of the 77th

Congress, First Session undertook as a part of its contribu-

tion to the joint enterprise with the United States, to acquire

in its name by eminent domain the fee title to two areas of

property in Brevard County, Florida, situate within Cana-

veral Port District. One such area is located on Merritt

Island and is not here involved. The other area lies on

the ocean barrier between the Atlantic Ocean and the Ba-

nana River with a part of this area extending westward

from the eastern meander or high water mark of the river

into the submerged bed thereof.

As different portions of the area so sought were owned

by separate entities Canaveral Port Authority in its Peti-

tion for Condemnation separated the area of fast and sub-

merged lands under acquisition into separaie ownership

parcels which were numerically designated (R. 1).

Parcel No. 20 legally described the entire area of sub-

merged lands involved in the proceedings and with respect

thereto the Petition alleged Canaveral Port Authority to be

vested with and in possession of the fee simple title thereto,

subject only to the claims of unknown persons.

The indicated proceedings insofar as the submerged

lands, Parcel No. 20, were concerned merely sought a

judicial confirmation of the fee simple title thereto acquired

by Canaveral Port Authority prior to the institution of the

proceedings under conveyances from the State of Florida

to Canaveral Port Authority, which at the trial were admit-

ted in evidence without objection from any source as Peti-

aimee AES AED A A ENGL IL ITAL TE SIC EA LRAT TL LDA CLES NO IL SE FERRER PAP a A DALE,

5

tioner’s Exhibits 31 and 32 (R. 31-34). No adverse claim

as against Parcel No. 20 was asserted by anyone at the trial

of said cause and said Circuit Court confirmed said title by

adjudicating a nominal award for said unknown claimants

(R. 58).

The east boundary of the submerged lands, Parcel No. 20,

is the meander or high water mark of the Banana River and

from the northeast corner of said submerged lands running

southward for a distance of 200 feet it is contiguous to the

west boundary line of Lot 1 of Reeds Subdivision. Extend-

ing southward for a further distance of 153.4 feet it is con-

tiguous to the west boundary of the North 153.4 feet of Lot 2

of Reeds Subdivision. Petitioner’s Exhibit No. 1 (R.

24-A).

Both Lot 1 and the North 153.4 feet of Lot 2 of Reeds

Subdivision were entirely uninvaded by Canaveral Port

Authority’s proceeding in eminent domain. The west

boundary line of both the indicated properties is, however,

contiguous to the east boundary of the area under acquisi-

tion.

The Appellee, Elizabeth Holmes, owns said Lot 1 and the

Appellee, Elliott M. Burns, owns said North 153.4 feet of

said Lot 2, both of Reeds Subdivision.

Both Appellees became defendants to the proceedings by

reason of ownerships held by them that lay within the

perimeter area of the lands under acquisition. Neither ap-

pellee, as the owner of the contiguous but uninvaded lands

before referred to, took any action to intervene in said pro-

ceedings as the owners of said contiguous lands nor did they

present any pleading by way of answer to the Petition, or

otherwise, asserting any right to compensation in said pro-

ceedings from said Canaveral Port Authority with respect

to the aforesaid Reeds Subdivision properties. Yet at the

trial of said cause before said Circuit Court that Court held

as a matter of law that said Appellees, severally, as the

6 i

owners of said contiguous properties before referred to were

entitled to be compensated to the extent that said contiguous

properties would be diminished in market value by there-

after being deprived of the riparian rights formerly apper-

taining thereto. The said Circuit Court then held as a mat-

ter of law that riparian rights were property rights which

could not be taken without compensation being made there-

for (R. 22). The final judgment of August 26, 1949, resulted

from such holding and on Appeal by Canaveral Port Au-

thority the same was affirmed.

Reasons for Granting the Writ

1. In Florida private ownership of property extends only

to the meander or high water mark of a stream or other

body of water, whether fresh or salt, that is navigable in

fact. Rivas v. Solary, 18 Fla. 122; Ruge v. Apalachicola

Oyster Canning & Fish Co., 25 Fla. 656, 6 So. 489; State v.

Black River Phosphate Company, 27 Fla. 276, 9 So. 205 ;

State v. Gerbing, 56 Fla. 603, 47 So. 353; Ferry Pass In-

spectors’ & Shippers’ Ass’n v. White’s River Inspectors’ &

Shippers’ Ass’n, 57 Fla. 399, 48 So. 643; Bass v. Ramp, 58

Fla. 161, 50 So. 945; Broward v. Mabry, 58 Fla. 398, 50 So.

826; Merrill-Stevens Co. v. Durkee, 62 Fla. 549, 57 So. 428;

Clements v. Watson, 63 Fla. 109, 58 So. 25; Symmes v.

Praire Public Phosphate Company, 64 Fla. 480, 60 So. 223;

Ex parte Powell, 70 Fla. 363, 70 So. 392; Panama Ice & Fish

Co. v. Atlanta & St. A. B. Ry. Co., 71 Fla. 419, 70 So. 608 ;

Thiesen v. Gulf, F. & A. Ry. Co., 75 Fla. 28, 78 So. 491;

Brickell v. Trammel, 77 Fla. 544, 82 So. 221; City of Tarpon

Springs v. Smith, 81 Fla. 479, 88 So. 613; Tampa Southern

R. Co. v. Nettles, 82 Fla. 2, 89 So. 223; Apalachicola Land d:

Development Co. v. McRae, 86 Fla. 393, 98 So. 505; State v.

City of Tampa, 88 Fla. 196, 102 So. 274; Martin v. Busch,

93 Fla. 535, 112 So. 274; Freed v. Miami Beach Pier Corp.,

93 Fla. 888, 112 So. 841, 52 A. L. R. 1177; Deering v. Martin,

7

95 Fla. 259, 116 So. 54; Lipscomb v. Gailourakis, 101 Fla.

1130, 133 So. 104; State ex rel Landis v. Rosenthal, 109 Fla.

363, 148 So. 769; Perky Properties, Inc. v. Felton, 113 Fla.

432, 151 So. 892; Hicks v. State, ex rel Landis, 116 Fla. 603,

156 So. 603; Adams v. Elliott, 128 Fla. 79, 174 So. 731;

White v. Hughes, 139 Fla. 54, 190 So. 446; Caples v. Tali-

ferro, 144 Fla. 1, 197 So. 861.

No question exists that the Banana River is a stream

navigable in fact.

The State of Florida holding the title to lands under the

navigable waters of the Banana River in trust for the people

of the State that they might enjoy the navigation of the

waters thereof, and carry on commerce over them, Hicks v.

State ex rel. Landis, 116 Fla. 603, 156 So. 603, brought about

the creation of Canaveral Port Authority as a body corpo-

rate and body politic by the enactment of Chapter 19716,

Laws of Florida, Acts of 1939 and did thereby confer upon

Canaveral Port Authority the privileges, prerogatives,

powers, duties and responsibilities there set forth and as

now amended, supplemented and added to by Chapter 21139,

Laws of Florida, Acts of 1941; Chapter 23199, Laws of

Florida, Acts of 1945; Chapter 24403, Laws of Florida, Acts

of 1947; Chapter 24996, Laws of Florida, Extraordinary

Session of 1948; and Chapters 25700 and 25707, Laws of

Florida, Acts of 1949, one of which said duties was to im-

prove commerce and navigation within the Port District

as there defined either alone o* in conjunction with the

United States. (Note: The project is actually being per-

formed at the joint expense of Canaveral Port Authority

and the United States, the latter acting under the Rivers

and, Harbors Act of Congress approved March 2, 1945, as

Public Law No. 14, 79th Congress, First Session, in accord-

ance with a project set forth in House Document No. 367 of

the 77th Congress, First Session.)

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On August 31, 1945, in accordance with the provisions and

procedure provided for in Section 253.13, Florida Statutes,

the State of Florida, acting by and through its Trustees of

the Internal Improvement Fund of the State of Florida,

pursuant to the authority conferred upon said Trustees by

Section 253.12, Florida Statutes, did convey to Canaveral

Port Authority that portion of the submerged bed of the

Banana River lying immediately westward of and contigu-

ous to the aforesaid Lot 1 and the North 153.4 feet of Lot 2,

Reeds Subdivision, owned respectively by the Appellees,

Elizabeth Holmes and Elliott M. Burns, severally. The

deed just referred to is Petitioner’s Exhibit No. 32 (R. 33)

and coupled with Petitioner’s Exhibit No. 31 (R. 31) de-

seribes all the land embraced within the aforesaid Parcel

No. 20. The area conveyed by said Petitioner’s Exhibit

No. 32 covers the area within which the riparian rights

appertaining to both of the properties in Reeds Subdivision

before noted are situated.

At no time prior to or after the execution of the afore-

said State deed to Canaveral Port Authority on August 31,

1945, did either of the Appellees as owners of the indicated

upland fast lands undertake to preserve their riparian

rights within the area so conveyed as they were privileged

and authorized to do under the provisions of and within

the time prescribed by Section 253.14, Florida Statutes.

Consequently, at the time of the institution of the eminent

domain proceedings on January 19, 1949 (R. 1), a date

long after the expiration of the privileges granted by said

Section 253.14, Florida Statutes, neither one of the

uninvaded upland properties in said Reeds Subdivision

here involved was impressed with appurtenant riparian

rights.

Such being the situation, no interest was taken by Cana-

veral Port Authority as to either property in said Reeds

9

Subdivision for which a right to be compensated arose in

favor of either the Appellee, Elizabeth Holmes, as the

owner of the contiguous but uninvaded Lot 1 of Reeds

Subdivision, or the Appellee, Filliott M. Burns, as the owner

of the contiguous but uninveded North 153.4 feet of Lot 2

of Reeds Subdivision under either said Section 12 of the

Bill of Rights or Section 29, Article XVI of the Constitu-

tion of the State of Florida.

The foregoing was utterly ignored by the Supreme

Court of Florida in rendering its opinion and judgment

on May 26, 1950, here sought to be reviewed.

2. It specifically appearing from these proceedings that

the project in which Canaveral Port Authority is engaged

is one in aid of commerce and navigation (R. 2), the

Supreme Court of Florida failed to recognize that even

if appurtenant riparian rights did in fact exist with respect

to the uninvaded uplands of the Appellees, Elizabeth

Holmes and Elliott M. Burns (which under Reason Num-

ber 1 has been shown did not exist at the time of the

institution of these proceedings on January 19, 1949), that

yet the owners of such uninvaded uplands as are here

present were not entitled to any compensation computed

as either (a) the direct value of such riparian rights, or

(b) as the diminishment in the market value of the unin-

vaded uplands arrived at by measuring the value of such

riparian rights, for private riparian rights are ownerships

subordinate to the title of the sovereign state or its instru-

mentality, one of the primary lawful exercises of which

said sovereign ownership is to engage in projects in aid of

commerce or navigation for the benefit of the publie gen-

erally. This lawful exercise being paramount to any mere

private property right gives rise to no constitutional right

of compensation either under the State or the Federal

Constitutions in instances where the private right is dam-

2 CEA RO RT aioe

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Pictitaiscctectnnssansniczia: SR TaA Ty Pee eg eee

10

aged, altered or destroyed by the lawful exercise of the

plenary sovereign right and duty to engage in projects

in aid of commerce and navigation within the beds of

streams navigable in fact.

It is well settled that where the United States engages

in such a project under the constitutional servitude at-

tached as a mere appurtenant to the sovereign title of the

State under the commerce clause of the Constitution of

the United States, no right of compensation under the

oth Amendment, or otherwise, accrues against it and in

favor of the owner of a private riparian right such as the

Appellees here. South Carolina vy. Georgia, 93 U.S. 4;

Shively v. Bowlby, 152 U.S. 1; Seranton v. Wheeler, 179

U.S. 141, 163; Gibson v. United States, 166 U.S. 269, 275-

276; United States v. Chandler-Dunbar W. P. Co., 229

U.S. 53; Bailey v. United States, 62 C. Cls. 77, certiorari

denied, 273 U.S. 751; United States v. Chicago, M. St. P. &

P. R. R. Company, 312 U.S. 592, 596-597, and cases there

cited, and United States v. Commodores Park, Ine., 324

U.S. 386 and cases there cited.

The Supreme Court of Florida has recognized that the

constitutional delegation of powers by the States to the

general government are not exclusive of the continued

exercise, in fact the continued duty to continue itself, or

through its local state agencies, to exercise the power so

delegated to the general government so long as such

exercise is not in conflict with the delegated servitude

enjoyed by the United States. Stockton v. Powell, 29

Fla. 1, 10 So. 688, 15 L.R.A. 42; State v. Gordon, 138 Fla.

312, 189 So. 437. And the Supreme Court of the United

States has long recognized the plenary power of a state

to continue to exercise a power delegated to the general

government by the United States Constitution. Wilson

v. Marsh Co., 2 Pet. 245; Gilman v. Philadelphia, 3 Wall.

SOc NNER DAI AL OLE LOA SIAL AR BBS BEDI BL TE RL NS ARE IA? a TERRAIN Se “T

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11

713; Pound v. Turck, 95 U.S. 459; Davidson v. New Orleans,

96 U.S. 107; Mobile Co. v. Kimball, 102 U.S. 691; Escamba

& L. M. Transportation v. Chicago, 107 U.S. 678; Hagan

v. Reclamation District, 111 U.S. 701; Cardwell v. Bridge

Co., 113 U.S. 205; Hamilton v. Railroad Co., 119 U.S. 280;

and Bridge Co. v. Hateh, 125 U.S. 1.

The decision of the Supreme Court of Florida as sought

to be reviewed is in direct conflict with the decisions of the

Supreme Court of the United States in like cases, and the

judgment making an award against Canaveral Port Au-

thority and in favor of the Appellees hereinbefore named

is an unlawful, capricious award unsupported and

unauthorized by any Constitutional or statutory mandate

of the State of Florida.

Conclusion

For the foregoing reasons it is respectfully submitted

that the Petition for a writ of certiorari shoulda - granted.

Wittum D. Jones, Jr.,

As Attorney for

Canaveral Port Authority.

Wiuiam D. Jones, Jr.,

700 The Atlantic National Bank Building,

Jacksonville 2, Florida.

(9628)