Richardson-Kellett Co. v. Kline

(after stating the facts.) — Ordinarily the reservation of such a right over the land conveyed as the one reserved here to the Board of Trustees of the Internal Improvement Fund, of the State of Florida, would be an incumbrance upon the title, but under the circumstances surrounding- the land in question, its situs, character and the title thereto, we do' not think that it is such an incumbrance of which the appellee has any right to complain. The land in question is a part of what is known as the Everglades in the extreme southern end of the peninsula of Florida, a vast territory of several millions of acres that is in major part at least, if not wholly *47unfit, because of its swamp or overflowed condition, for either habitation or cultivation, unless it be reclaimed by thorough drainage. They form part of that vast territory granted to the State of Florida, by the Congress of the United States known as swamp and overflowed lands for the purpose of being reclaimed by drainage. They in turn were vested in trust for the same purpose, by State legislation in the said Board of Trustees of the Internal Improvement Fund of the State. In execution of its trust this State Board of Trustees are now, and were at the time of the conveyance of the land in question to the grantors of the appellee, engaged in the vast and costly ■work of draining the said Everglades, and when they sold any part of the said Everglades land in advance of 'the drainage thereof, it was a wise precaution on their part, charged as they were with the duty and expense of reclaiming the same by drainage, to reserve in their deeds conveying the same, the right to go upon the land conveyed at all times but solely for the purpose of the betterment thereof by drainage in the proper exercise of their trust.- All of these facts were, or should have been, well known to the appellee when he contracted with the appellant for the purchase of the tract in question. The proposed reservation in the deed tendered by the appellant does not undertake to reserve any part of the technical fee in the land, but simply perpetuates in the Board of Trustees of the Internal Improvement Fund the same reservation contained in their deed to the appellant, vis, the bare right to go upon the land for the sole purpose of carrying out the scheme of draining and improving the Drainage District in which this land lies; the Drainage District having been theretofore specifically identified and named by a public act of the Legislature. *48See Chapter' 5709, Laws of 1907. We do not think that the appellee has any right to complain, under the circumstances here, of the reservation contained in the appellant’s deed tendered to him, providing as it does solely for the right ho go upon the land conveyed thereby to better the same in common with other similar and adjacent lands by drainage, not at the cost of the grantee appellee, but at the cost of the State.

It follows from what has been said that the decree appealed from must be and is hereby reversed at the cost of the appellee.

Shackleford, Cockrell, Whitfield and Ellis, JJ-, concur.