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Home My WebLink AboutM-79-0200It greater mlaml... center March 21, 1979 Dear Mayor and Commissioners: It is our understanding that the advisory attorneys have not changed their posture on the Ball Point lawsuit. Due to the nature of the suit and in light of the economic_ benefit to the City of a $116 million development on that land, we urge the Commission to drop any further action on the case. An appeal will certainly delay the project and escalating construction costs from this delay could cause the developer to reconsider. This is an event which is intolerable to the continuing progress of the New World Center, a goal you all share with us. Therefore, on behalf of the Board of Governors, we urge you to drop the case. Sincerely, ster Freeman ecutive Vice President PC/lm F 79-203 Greater Miami Chamber of Commerce • 1200 Biscayne Boulevard • Miami, Florida 33132 • (305) 374-1800 DANIEL S. PEARSON MOMENT C.JOSE►SSERO MICNAEL ?AMRE TRUCE S. R000w O/ COUNSEL 4 c PEARSON, JOSEPSBERO & TARRE, P.A. ATTORNEYS AT LAW SUITE 733 CITY NATIONAL SANK •UttOINO ES WEST ►LAOLER STREET MIAMI. FLORIDA 03100 20 March 1979 The Honorable George F. Knox, Jr. City Attorney 174 East Flagler Street Miami, Florida 33131 RE: City of Miami v. St. Joe Paper Co., 364 So.2d 439 (Fla. 1978) Dear George: TELE.NONE 377•e155 AREA cooA 305 rn Cr .4.4_+ w. V WZ I have read the Minutes of the March 8, 1979 City Commission meeting containing Mr. Bailey's remarks and his Jurisdictional Statement, and I have considered the effect of United States Trust Co. v. New Jersey, 431 U.S. 52 (1977), and Allied Structural Steel v. Spannaus, U.S. , 98 S.Ct. 2716, 57 L.Ed.2d 727 (1978), upon the conclusion I reached in my March 5, 1979 opinion letter. My opinion remains unchanged: The odds against the Supreme Court noting probable jurisdiction are overwhelming. Neither Spannaus, nor New York Trust nor any perceived conflict between the two decisions seriously enhances the City's chances of success in the Supreme Court. I was aware of both decisions when I reached my earlier conclusion. I did not mention them in my letter because I felt they were of limited interest. Apparently the City's Special Counsel must have felt the same way about New York Trust because it was not mentioned in his Main Brief in the Florida Supreme Court. That brief was submitted on July 7, 1977; New York Trust had been decided on April 27, 1977, two and a half months before the City's brief was submitted. The City's Reply Brief did include New York Trust, although only in the most general way in responding to the Appellee's Contract Clause arguments. See pages 19 and 20, Reply Brief. In his Brief in Response to Amici Curiae, Special Counsel brought Spannaus,, 79' =00 The Honorable George F. Knox, Jr. 20 March 1979 Page Two A decided on June 28, 1978, to the attention of the Florida Supreme Court shortly prior to its October 5, 1978 decision. However, the Florida Supreme Court opinion eschewed any serious consideration of a Contract Clause argument. The issue was not even mentioned in their opinion, reported at 364 So.2d 439. The lack of any discussion about the Contract Clause and the less than forceful initial advancement of that constitutionally based argument is significant because in determining whether probable jurisdiction will be noted, the Supreme Court looks to the decision below to see if it presents important unresolved federal constitutional issues or a conflict with prior Supreme Court decisions. Certainly an opinion which is silent on the Contract Clause issue is an unlikely candidate for plenary review sought under the auspices of that Clause. Nevertheless, Mr. Bailey's comments and his Jurisdictional Statement reflect that he is basing his arguments on the premise that "these two cases [New York Trust and Spannaus] are contrary to the decision of the Florida Supreme Court." I have re -read those cases and for the following reasons find no conflict which would give rise to the kind of substantial federal ques- tion demanding Supreme Court review. New York Trust involved the New Jersey repeal of a statutory covenant placing limits on Port Authority subsidy of rapid transit. As a result, revenues and reserves pledged to bond- holders were diminished, contrary to the original contract with the bond purchasers. This modification of the State's financial promise resulted in the impairment of the State's own contracts. Justice Stewart, commenting on New York Trust, pointed out that modification of a contract to which the State itself was a party will face "particular scrutiny" and a "more stringent examination." Allied Structural Steel v. Spannaus, U.S. , 57 L.Ed.2d at 736, n. 15. I think it is apparent that the Marketable Record Title Act, on its face, does not present an analogous problem. The State of Florida is not attempting, through the Act, to change the terms of a financial promise it made to a party with whom it was contracting, nor does the Act attempt to do away with the State's 1919 land conveyance to the City. PEARSON, JOSEFSBERG 8c TARRE, P.A. or The Honorable George F. Knox, Jr. 20 March 1979 Page Three Spannaus declared unconstitutional a Minnesota statute which altered a company's prior contractual pension obligation to its employees. Finding that the State had entered a field it "had never before sought to regulate," the Court pointed critically to the sudden and "unexpected liability" the statute imposed and the lack of any "grace period" for compliance. Spannaus, 57 L.Ed.2d at 738-739. The Court, in finding a violation of the Contract Clause, commented that "[T]he law was not even purportedly enacted to deal with a broad, generalized economic or social problem." Id. at 740. ■ The Florida Marketable Record Title Act, on its face, is not open to similar criticism. States have historically legislated in the real property area. A statute simplifying conveyances and stabilizing titles is a broad, generalized approach to an economic and social problem. The Act also permitted persons to take steps to preserve their property interests and did not, like Minnesota, suddenly terminate prior rights. The most I can see from the City's side is the contention that the Act, not on its face but as applied to the "wild deed" situation, poses an impairment of contract. The thrust of the "as applied contention" is to challenge the "interpretation" of the Act by the Florida Supreme Court, for it was the Court's "interpretation," resulting from its silent rejection of a Brief reference to the Contract Clause, which creates the City's argument. This position removes the case even further from New York Trust and Spannaus. Not only did those cases involve frontal attacks on the State statutes, but the lower courts explicitly considered and construed the Contract Clause of the United States Constitution in upholding the statutes. New York Trust, 431 U.S. at 3; Spannaus, 57 L.Ed.2d at 733. By focusing on the "interpretation" of the Act, the City also must face the substantial possibility that the Florida Supreme Court's construction of the Act, and application of it to wild deeds, amounted only to an interpretation of State law. If that is the case, and I strongly believe that with regard to the Contract Clause argument it is, then the City's claim to the United States Supreme Court must be that such an interpretation PEARSON , JOSEFSBERG & TARRE, P.A. The Honorable George F. Knox, Jr. 20 March 1979 Page Four and subsequent application of the statute deprived the City of federal constitutional rights. As I pointed out in my letter of March 5, 1979, that approach gives rise to certiorari jurisdiction under 28 U.S.C. $1257(3), not appellate jurisdiction. The result is an even smaller chance of review being granted because certiorari is the most tenuous route to plenary consideration by the Court. I have not researched the wild deed question you posed in your March 12, 1979 letter to me because, in my opinion, it makes little difference with regard to the ultimate issue of United States Supreme Court review. The Florida Supreme Court explicitly held that a wild deed "may constitute a root of title." 364 So.2d at 447. That is a question of the interpre- tation of State law. In and of itself, it involves no federal question. For the purpose of this opinion, I assume the answer to be at odds with other Florida decisions and other State decisions. But that kind of conflict does not create a substantial federal question giving rise to $1257(2) appellate jurisdiction, or to $1257(3) certiorari jurisdiction. I have no idea what the cost of seeking Supreme Court review is to the City. If any delay in resolution will result in irreparable injury or substantial economic loss to the City, then I would advise immediate termination of this case. However, if the City can wait, it is quite likely that the fate of this case will be resolved by the end of the Court's term in June, 1979. The opposing Motion to Affirm or Dismiss under Supreme Court Rule 16 must be filed within thirty (30) days from the date the Jurisdictional Statement was filed. Since I assume the Appellees will not seek an enlargement of that time, their response will be filed in mid -April. While Rule 16(4) permits the City a reply brief, even though the rule is silent on when it is due, it needs to be filed rapidly, since the case will usually be distributed to the Justices soon after the Appellee's Motion is filed. So I think the issues could easily be considered by the Court in early May and a decision on jurisdiction certainly made by June. Unlike the Florida Supreme Court, the United States Supreme Court carries very few cases over from term to term. PEARSON. JOSEFSBERO & TARRE. P.A. A The Honorable George F. Knox, Jr. 20 March 1979 Page Five In sum, while I think the chances of Supreme Court review to be exceedingly dim, I think the City will know for certain the fate of this case within three months. I leave it for the Commission to decide if it can afford to wait. Very truly yours, PEARSON, JOSEFSBERG & TARRE, P.A. ,/ BSR/ lrk Enclosure Bruce S. Rogow PEARSON. JJOSEFSBERO & TARRE. P.A. to 4 •f••••t•Mil DI.. t.." 41.‘, Wei a7,) .0.1:1Ca• A .•04Z.Z • kA••••.!_s.:. I•1•.- a. r..•• AA wi 11,1• , • mc •-, • „-•••.4 ••= •"',•• • 7.‘r.rot • • t. f. „ 110 f •Cr 4 *11 • ••• — ..• as•p.s.i.PASp. S.P.SP%t's • s.lps.st.tv:•" .•.*.• Mr. a. flras:$if? City Fifertfo 9r. r7.-r4s5is: WILLI A?:-4 :• mocah 20, 1979 ifs.. Age f•prors., 4.t • •••4:./... .fl gtt, t • • r-, I c,7. wrtting in renpons* Mr. re..,,,,ncyen's lettqr of March 14. 179. T )1ve how 'r:ad a _-.tlance tf) rview¶he Juricdic- tina' Statilt filc r;ty un A,Irch 4 1 n v. CC it Nr;. 7-1401., .nd 1.:1? t!), 0 17.4, Cif“:il 4nich !4,r, rou6.:n :4ert t:Ipe:::5:31t7: to rixar.:t 1O;.1.vracy Linat SuTle t.:)* t1Stats do, nizt :7;11 locumEritz, to 1.1r. :11y ntztcd !o 1.1 ;to res41,scrie tne :%41.1;j , • • .n!: 1-,nary zcviw • • • a M. riL11-; tc; ln:.--)r,.?tatlun or United Stt,c. .,!" .y. 43:4 ..;. i rclvant :.1,-,.enc:Qo 01: the Curt's 7.).L.cnaLy of the: City: t;.tellent. 1 t:Itt at JC:',7to ,tn my M31-.C'n : letter t!,., znat lett*r). As : t!lerfj, .4v1 the Court (and 7".!')U3 ha 1 Ic:'.1v!wt Ju3t3cr.! terr:tm. it. it ..e.3.6 jr7,4.hd c-her At whet:72r vi.rw repeal . 1962 :-',"atut7iry dr.lvnant, -f. Al; intr.trat:.! compact, whicn asz.Llret.i tne inttate Pc)rt. Authority that a certlin I 1 r• • • i'79-200 WILLIAMS 8 COytiowci !Ir. Joseph R. rra r ie Page Two March 20. 1979 trrevocably pii:•t ged as security for the: investors' Port Authority bonds. In 1974, the" New .Jersey and New York lC.•gislatur'<:s retro- actively repealed t.h 1.fi 5tat'. il:t?ry covenant and authorized UL4l. of the reserve funds to '' ub s id i z'. public rail passenger transporta- tion. \ trustee :!ir the bondholders out declaratory relief, and M Just1 t' 7 ' ;. er o. L r the Cot tae1d r. Ja. c:. � ili:li�tilil .� �i11..)v'3iit:j Oj71Tli�i1 icla. t Vur.. that: thILI retroaJc:tiv': Ind out.rl,Pub repeal c.tT the 19b2 conve:neilt totally eliminated d an i;.:.jiortaint security provision for the bond- holders and thus L+:pairr:d the obligation of the States' contract with them in violation fit the Contract Clause of Article I. This opinion noted that Contract Clause dn::3 not prohibit the States trvm repealing or nd 1. j statutes generally. or from enacting legislation with retroactive '.'.tfect_^,.0 431 U.S. at 17 (footnote omitted). at also repeatJed that the prohibition against impair:lent, t7'_ c_t,nt;t'.`+C:..;i "t tS not an absolue one and lc not to road with it:ra . ex :aril+_+;•, like a mathematical tormuia. t" Id. at 21. "The :itslt_+7.`.3 must possess broad power to adopt general regulatory measures i wit:ut being concerned that private contracts will l be i;"pair':'i. or _'.`J?n destroyed, as a result.' Id. +3t 22. The opinion went :n to great weight to the fact that the bondholders had no way to avoid the drastic i:n_r,•ac` of this repeal uj:on thil r?:icr vP' :. Unc:i5 ni:!y had (presumably) relied ii!'C)11 a . :3E`<.11... rit'y when 1rives 1:i•I in the i'ort Authority. Moreover, the isn .*1r- +' ` ., +•necessary t 1• a t 7nent U. contract hero '^::t:; not 1:0 achieve .,..e, St,�tl':i goal of encC?17r a'3 i:1':! private a+.3t ..;t)!. ile user: to shift to public transportation, nnr wan it reasonable In light of changed circum- stances, since a pry):3j="_ .t ive repeal would have been an alternative a achieving the objectives C f i e < iuti.n obile use r.e.an., of actli viz 3 t. � c..sct)� a�,�i71� and t.;lprov iilag i' 1.:=i t 7:.1n''; lt.. Neither was repeal of the covenant •rea;;oflable in l.1.%hr. i:f the :iurrounding circumstances," id. .at 31, since concerns ait�c+!7t environpental protection, energy crJr:fie: r:. -- L ion. and mass transport were extant at the time of the cov naft' 3 drafting in 1962. My 'iar.'-il 2 letter did not discuss the AUied Structural Steel c.iSe because that precedent did not appear particularly y r- :najnn to the St. .Yc' Pacer case. Alliad Structural Steel involved a challenge !xi an-• employer to the connt:lt:ut ion al itry ::r Minnesota's 1974 Private Pension t,'.'nettt3 ;%ct (hereinafter, the Act). The em- ployer had established :3 pension fund for its employees and each year made a contribution to the fund based on actuarial predic- tions of eventual needs. The employer did nor. undertake, however, to ..aiec any particular contribution to the fund and retained the ...� •....a. .+ V.r�a. ar '.uL La a�C6: a�V... t/4..r avu`jtsL eililt+t!;pQ,..i ook r',71 , 1j1V lt !.1t 7%f? 174 711-1 .75 1:) A.111! it Aet. ".7•2z.--7.-:'!.; by :.J.z7.1::77,:os;n1. tt..y7;r%t to ttal- trac7. ' tb,a Ay4.1H—. It h-1C In lt j-.; . h,16 tt 011 'tt'41,tr Lt!-.cwin 71!. L:nat ot Lcid p,:tf.-tul.ar . . . 37: zctz 1;1 . ate ln an .1uL.)(!Cr, tO statts; tH1 • WILLIAMS • CONNOLLY Mr. Joseph R. Grassie Paget Four March 20, 1979 company's contractual obligations were originelly undertaken, but invaded an area never before subject to regulation by the State." Id. at 2725. These two decisions appear perfectly consistent with the general body of precedents under the Contract Clause which has evolved in this century as this law is described in my letter of March 2 (sue pp. 16-19). The fact patterns of those cases and the statutory "impairments" there at issue are radically different, however, from that involved in the St. Joe Parer ca5e. In the in- stant case, the Florida Marketable Record Title Act is a broadly applicable conveyancing reform statute, akin to legislation enacted in approximately 20 other States, which is intended to stabilize land titles and to facilitate the sale of real estate. As I have previously noted, it is "retrospective" in effect, but, unlike the Statutes at issue in United States Trust and Allied Structural Steel, the City could ea:illy have avoided a forfeiture of whatever [merest it lost under the. Act by simply recording ita claim. It is somewhat disingenuous to assert that 'there was no reap;on to believe that Florida's MRTA could validate a wild deed," Jurisdic- tional Statement at 21, `j and that it had always ben the law in Florida that a wild deedis void, and conveys no notice of any- thing," id. at 31-32 (footnote Omitted), Since the City had effec- tive notice of the Act's passage and of the defendants' ,asserted interest in the property (the defendants were in possession, were paying taxes, had recorded their deed, and had DuPont Plaza platted by the City). The City had reasonable notice of defendants' c1a1ms and had 11 years to protect whatever its own interests were. In- deed, the Supreme Court ha:. sustained much shorter periods of time in which to record interests before those interests are obliterated by force of law. Spa my March 2 letter at p. 16. In short, al- though I recognize that there are indications that the Supreme Court is somewhat more sernitive to Contract Clau:se claims in the past few years than it was in the 1934-1977 period, I do not think •� The Act explicitly declared that "any title transaction pur- porting to create or transfer the estate" may, with certain limited exceptions, form a "root' of good, marketable title. Fla. Stat. Ann. S 712.01(2) (1969) (emphasis added). The Florida Legislature also provided that the Act was to be "liberally construed" to effect its purposes." Fla. Stat. Ann. S 712.20 (1969). W f LLIAMS A CONNOLLY Mr. Joseph R. Grass ie Page Five March 20, 1979 that the issues presented in the St. .loc Pai.er case are remotely similar to those in the two cases I have discussed above. Mr. Fosmoen also asked me to make 'a determination as to whether the Florida Supreme Court has ever reviewed directly the 'Wild Deed' question, that is, has the Florida Supreme Court ever definitely determined that those Deeds which have no root Of title upon the record shall be cured by the Marketable Titles Act." While I do not purport to be an expert on Florida real es- tate law, 1 will be happy to give you the result of my research on this issue. I should make three points at the outset. First., the issue of whether a "wild' deed is cognisable as a root of title under a marketable title act is quinteesentially one of State law; its novelty, importance, or even the erroneousness of a State court's decision of the question would not afford grounds for review in the Supreme Court of the United States since no fed- eral issues whatsoever are presented. Second, the defendants' deed, in th ie cases, had a root of title 'on the record" for the requisite period under the Act; an unrecorded deed could not give rise to a root of title under the Act (except, perhaps, in cases of adverse possession). Third, as noted in ray earlier letter, see p. 9 n.14, the Florida Supreme Court has not held that all "wild' deeds may serve as roots of title, but only that 'a wild deed mu constitute a root Of title," City of :11ami v. St. Joe Paper Co., 364 So.2d 439, 447 (Fla. 1978) (emphasis added) and that "(t)he 1944 deed to St. Joe does not reflect that it was a wild deed nor dues it appear that there is any defect in the make-up of the deed. This wild died may properly constitute a 'root of title.'" Id. at 448 (emphasis added) . In view of the de facto notice of defendants' clams which the City had for 11 years, the Florida Supreme Court's decision cannot necessarily be taken as precedent that pm "wild" deed will serve as a "root of title" under the Act. I have been unable to find a Florida Supreme Court de- cision which is a precise precedent for its St. Joe Pjer Co. holding, but a number of cages, both by that Court and by the Florida Courts of Appeal directly foreshadow the Court's recent decision. A number of decision: had previously made clear that under the Act, a "wild" deed, properly executed and recorded, may establish a new and valid title after 30 years. Marshall v. Holl.ynrood, Inc., 236 So.2d 114 (Fla.), cert. denied, 400 U.S. 964 (19/0); ITT Rayonier, Inc. v. Wadsworth, 346 So.2d 1004 (Fla. WILLIAMS 8 CONNOLLY Mr. Joseph R. Grass ie Page S i x March 20, 1979 1977); Wilson v. Kelley, 226 So.2d 123 (Fla. App. 1969),; 1.1a1LIAIX v. Wotr. ino, 220 Sty. 2d 177 (Fla. App. 1969) . In Marshall. v. tiol - wood, Inc., supra, the Florida Supreme Court ruled th.at even a forged deed could form a link in the chain predating the effective root of title: the Marketable Record Titles . . . Act . . . Con- fers marketability to a chain of title arising out of a forged or wild deed, so long as they strict requirements of the Act are met.` 236 So.2d at 120. In Wilson v. Kelley, supra, the court expl icitly rejected the contention that an instrument could not qualify as a root of title unless it constituted part of a chain of title emanating from the sovereign: "To hold as su,geete_ci by plaintiffs would frus- trate the Act's intended beneficial effects, and the Act's utility would largely be confined to the elimination of ancient use reutrictions and to the curing of formal irregularities, a function already performed by other statutes and usually score, quickly than the marketable title act. The Act, an a marketable title act, is not con- cerned with the quality of the title: conveyed by the root of title so long as the root pur- ports to convey the estate claimed. This can be so even though a deed is not part of the chain of title emanating from the sovereign and is therefore often called an 'interloping' or 'wild' deed. It can, under the marketable title acts, form a root of title which may eventually cut off Chu interest of a person who might otherwise have a claim. Therefore, a marketable title act can cure a break in the chain of title, if the oreak is sufficiently old.' 226 So.2d at 127. '/ In ITT Rayonier, Inc.. v. Wa'1swor. th, supra, the Florida Supreme Court specifically rejected the argument that */ The court also discussed at some length (in a passage quoted by the Florida Supreme Court in the St. Joe Paper Co. case) (Footnote continued) . WILLIAMS & CONNOLLY Mr. Joseph R. Grass ie Page Seven March 20, 1979 only n valid deed can serve as a root of title. The Court empha- sized that the Act defined "root of title" as "any title trans- action purporting to create or transfer the estate" (emphasis (Footnote continued) the safeguards in the Act against an unscrupulous party steal- ing some one else' s land "for those who are concerned with the likeli- hood that the Act will allow an interloping deed to cut off another person's deserving interest in favor of an undeserving person, there are safeguards in the Act to prevent this from happening. A claimant will not be cut off if he has been a party to any title transaction recorded within a period of not less than thirty years of it he files a simple notice prescribed by the Act during the time allowed for his purpose. Re will not be cut off if he remains in possession or if the land is assessed to him on the tax roll. Even if it is no longer assessed to him he is protected if it was assessed to him at any time during the preceding three years. But if he has been a party to no title transaction recorded for at least thirty years during which time he has also failed to file the notice, and if for more than three year he has allowed the land to be assessed for taxation to someone else, and if neither he nor any person claiming under him is in possession of the land, it would not seem unjust that his claim should be subordinate to another person' n claim that is baee'i upon a chain of title going back to an instrument or court proceeding that has been recorded at least thirty years, and that 'purports to cre- ate or transfer the estate' claimed by the second person, In the public interest of sim- plifying and facilitating land title trans- actions, it doers not seem unreasonable for the legislature to create a presumption that one who is negligent in claiming his land has abandoned his claim." 226 5o.2d at 127. WILLIAMS & CONNOLLY Mr. Joseph R, Grass ie Page tight March 20, 1979 added) , and ruled that "purport" had its accepted meaning of "to profess outwardly: have the often specious appearance .of being.' 346 So.2d at 1010. In this case, it was held that the deed of a widow which purported to pass valid title (although she only possessed a life estate in the homestead property) could serve as a root of title. In 1 ight of these precedents, then, the Florida Supreme Court's holding in this case was neither radical nor surprising. *1 The Jurisdictional Statement relies heavily on two State court cases. Wichclman v. Messner, 250 Minn. 88, 82 N.W.2d 800 (1957) and Exchange National Bank of Ch ieo v. Lawn - dale National Bank of Chicago, 41 I11.2d 316, 243 N.E.2c: 193 (1968). Both cases, however, construed statutes which are somewhat different, than Florida's, and neither held that a deed such as defendants relied upon in this case could not constitutionally serve as a "root of title" when the de- fendants were in possession and paying taxes on the land. The Wicheiman case concerned the somewhat technical question of whether the Minnesota marketable titlq act could consti- tutionally be applied to a determinable fee or to a fee upon condition subsequent (as opposed to a fee simple) and the Minnesota Supreme Court held that it could be. It ruled that 'the legislature did not intend to arbitrarily wipe out old claims and interests without affording a means of preserving them and giving a reasonable period of time (in Minnesota, 40 years) within which to take the necessary steps to accom- plish that purpose." 83 N.W.2d at 817. In dictum, the court asserted that it did not "think" that title could be founded upon "a stray, accidental, or interloping conveyance,' id. at 819, but it did not assert, even in dictum, that a .old" deed (that is, one that doe not trace back to the sovereign) could never serve as a basis for good title. The court also noted that "because of their varied composition, pattern, and approach to the problem (marketable title statutes of other States) do not serve as satisfactory guides to an interpreta- tion of our statute." Id. at 821 n.7. Similarly, the Ex- change National Hank case was not a constitutional holding by the 213inois Supreme Court, since it ruled that the Illinois (Footnote continued) • WILLIAMS 8 CONNOLLY Mr. Joseph R. Grassie Page Nine March 20, 19,9 To repeat, therefore, T am still of the opinion that there is no reasonable likelihood whatsoever that the Supreme Court of the United States would grant plenary review of 'the City's Jurisdictional Statement_ filed in this case. .�,�isr'�rely,. -• (Footnote continued) Edward Benneti W' 1i3n act "contemplated the existence of only one record chain of title," 243 N.C.2d at 196, and was not intended by the Legis- lature to validate deeds which did not derive from the United States. The court did note that 'possible constitutional questions would arise from a contrary holding, but the spe- cific issue it was concerned with was that "a complete and even fraudulent stranqjer to title (might) . . . divest the title of a record owner, who may have satisfied the usual responsibilities of ownership, such as paying taxes, but who did not file a statement of claim to preserve his interest, as the statute requires" Ibid. They Florida Act is hedged about with safeguards to prevent a person in actual posses- sion paying taxes, from being dispossessed by an interloper. Item No. & Description ITEM VI Three (3) more less Vans Bidder, Make & Model Don Allen Chevrolet or for 1979 Chevrolet CG1005 Van Delivery Unit Price 60 days ..$5,175.37 Not Specified $5,515.00 Exceptions Not listed Not listed Comments None None *t***** r*****x*k***x***t*x***x********************t************::*x*****r*x**,t**,t*t*****x*t*t**,rr*t***********t************** 30 days 111101. $2,495.00 ITEM VII Four (4) more or less Three -Wheel Trucksters Tally Embry Ford, Inc. for 1979 Ford C Van an DeBra Turf & Equip. Co. for 1979 Cushman 441979 Electric Car, Inc. for 1979 Quarter Horse QH-14 Cushman Jeep of Ft. Lauderdale for 1979 Cushman #41979 Pifer, Inc. for 1979 Cushman 4[419 60 days 45 days 30 days Page 4 of s $2,695.00 $2,749.75 $3,256.25 Not listed Not listed Not listed Not listed Unit Price in- creased to $2,650 effective 4-1 thru 9-30-79 Unit price in- creased to $2,765 effective 4-1 thru 9-30-79 None Unit price in- creased to $3,686.3 effective 4-1 thru 9-30-79 -��uuun uu M110ui Item No. & Description Bidder, Make & Model Delivery Unit Price Exceptions Comments ITEM IV Continued Deel Ford for 1979 Ford 65 days $5,308.00 Not listed None Fairmont Station Wagon • Tally Embry Ford, Inc. 75-90 days $5,346.00 Not listed None for 1979 Ford Fairmont Station Wagon *****:: **i.ic*-kx;F***k*:.***k****k:c;tik::::::'r *****-ka'-*** kki:irks::' ****4rk*: ****Mkt.***9c*:*************'r*9llF:F*****irk**a *******k*k******Jlr*9l * ITEM V Twenty-four (24) more or less Police Motorcycles Southwest Cycle Co., Inc. for 1979 Kawasaki, KZ1000 Palmetto Kawasaki for 1979 Kawasaki, KZ1000C2 Harley Davidson Miami, Inc. for Harley-Davidson of 1979 1200cc Harley-Davidson of Fort Lauderdale, Inc. for 1979 Harley-Davidson FLHF 1200 Honda North/Kawasaki for 1979 Kawasaki KZ1000-C2 l A A A A A A k***k***********************A A A 1.******* A k• 45 days 12 days 90 days Opt Opt Opt Op Opt Opt 11110°$3,787.00 Opt I 98.80 Opt II Not Avail. Opt III 270.00 $3,800.00 I 98.00 II Not Avail. III 270.40 'lir$3,877.00 124.00 II 95.00 III 300.00 $3,877.00 Opt I 125.00 Opt II 90.00 Opt III 375.00 Nonadjustable None Solo Saddle None listed None Not listed Electronic siren in Option III not rec. for police motorcycles Terms COD Bid valid for 24 units only H rm $ CA t. 45 days *$4,205.00 Not listed Includes two Opt I 90.00 service checks Opt II Not Avail. *Opt III Included in unit price ***********************;;*******************irk*k*******************4* Page 3 of 5 in tile Oupreme Court of the �mtea motes CASE NO. CITY OF MIAMI, a Florida municipal corporation, Appellant, vs. ST. JOE PAPER COMPANY, a Florida corporation; SOUTHEAST PROPERTIES, INC., a Florida corporation; HUGH E. MATHESON, JR., individually; and SALLY S. DOMMERICH. formerly Sally S. Matheson, individually, Appellees. ON APPEAL FROM THE FLORIDA SUPREME COURT JURISDICTIONAL STATEMENT OF COUNSEL .IESSE C..JONES Suite 18.0. One Biscayne Tower Two South Biscayne Boulevard Miami. Florida 33131 March 14. 1979 GUY B. BAILEY. JR. Attorney for Appellant Suite 1820, One Biscayne Tower Two South Biscayne Boulevard Miami. Florida aa1:11 I :305 :1 4-5505 .)- TABLE OF CONTENTS Page INDEX OF AUTHORMES ................ OPINIONS BELOW ....... • • • .................. 2 JURISDICTION 3 QUESTIONS PRESENTED 4 CONSTITUTIONAL PROVISIONS AND 5 STATUTE ................................ RAISING THE FEDERAL QUESTIONS ......... 14 STATEMENT OF THE CASE ................... 15 THE QUESTIONS ARE SUBSTANTIAL .. • • • • 17 Operation of Florida's Marketable 18 Record Titles Act Contract Clause 21 Taking 29 Due Process 30 33 CONCLUSION 3 ii INDEX OF AUTHORITIES Judicial Decisions Allied Structural Steel Co. v. Spannaus, 17, 18, 21 98 S.Ct. 2716 (1978) 22, 23, 30, 32 American Land Co. v. Zeiss, 219 U.S. 47 (1911) Anderson National Bank v. Luckett, 321 U.S. 233 (1944) Armstrong v. United States, 364 U.S. 40 (1960) City347 So.2d 1622 (Fla.3d DCA 1977) City of Miami v. St. Joe Paper Co., 364 So2d 439 (Fla. 1978) 19,26 31 30 2 2,15,16, 17,21 City of New York v. New York, N. H. &H. R. Co., 344 U.S. 293 (1953) 32 El Paso v. Simmons, 18 379 U.S. 497 (1965) Exchange National Bank v. Lawndale National Bank, 20, Zl, 24 28 243 N.E.2d 193 (Ill.1968) ............ Fletcher v. Peck, 10 U.S.87(1810) 22 ii INDEX OF AUTHORITIES (Continued) Home Building & Loan Assoc. u. Blaisdell, 290 U.S. 398 (1934) Jackson ex dem. Hart v. Lamphire, 28 U.S. 280 (1830) Louisville Joint Stock Land Bank v. Radford, 295 U.S. 555 (1935) 23 26 29 Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950) 31, 32 Penn Central Transportation Co. u. City of New York, 98 S.Ct. 2646 (1978) 29 Poladian v. Johnson, 85 So.2d 140 (Fla. 1956) Randall v. Kreiger, 90 U.S. 137 (1875) 3 26, 27 Smith u. Goguen, 415 U.S. 566 (1974) Smith Bros. u. Williams, 100 Fla. 660,131 So. 335 (1930) 31 3, 21 T.I.I.F. v. Claughton, 86 So.2d 775 (Fla.1956) 29, 31 iii INDEX OF AUTHORITIES (Continued) Trustees of Dartmouth College v. Woodward, 17 U.S. 518 22 United States Trust Co. v. New Jersey, 431 U.S. 1 (1977) 17, 18, 22, 24, 28, 30, 32 Vance v. Vance, 108 U.S. 514 (1883) 24, 25, 26 W.B. Worthen Co. u. Kavanaugh, 295 U.S. 56 (1935) 23 Wichelman v. Messner, 83 N.W.2d 800 (Minn. 1957) 19, 20, 24, 27 Wright v. Blocker, 144 Fla. 428,198 So.88 (1940) 3, 21 iv 19 INDEX OF AUTHORITIES (Continued) Constitutional Provisions Article I, §10 (Contracts Clause) 5, 15, 18, 21-28 Fifth Amendment (Taking Clause) 5, 15, 29-30 Fourteenth Amendment (Due Process) 5, 15, 30-32 Statutes Florida Statutes, Chapter 712 5-13, passim Articles Barnett, Marketable Title Acts —Panacea or Pandemonium? 53 CORNELL L. REV. 45 (1967) 19 Boyer & Shapo, Florida's Marketable Title Act 28 U. MIAMI L. REV. 103 (1963) 19 Fratcher, A Modest Proposal for Trimming the Claws of Legal Future Interests 1972 DUKE L. J. 517 (1972) 19 Simes, A Handbook for More Efficient Conveyancing (1961) 19 Simes & Taylor, Improvement of Conveyancing by Legislation (1960) v in the creme Court of the )IIuiteb tates CASE NO. CITY OF MIAMI, a Florida municipal corporation, Appellant, us. ST. JOE PAPER COMPANY, a Florida corporation; SOUTHEAST PROPERTIES, INC., a Florida corporation; HUGH E. MATHESON, JR., individually; and SALLY S. DOMMERICH, formerly Sally S. Matheson, individually, Appellees. ON APPEAL FROM THE FLORIDA SUPREME COURT JURISDICTIONAL STATEMENT The ('itv of Miami appeals a final order of the Florida Supreme Court. dated October 5. 1978 (rehear- ing denied. December 14. 19 31. That final order affirms a decision of the Court of Appeal. Third District of Florida. dated \lav 1977. On the City's direct challenge of the constitutionality of Florida's Marketable Hecord 'Titles Act (Florida's NIRTA) as iolative he Contract Clause. the Fifth Amendment's Taking 1'Iau.e and the Fourteenth Amendment's due traces requirement.. the Florida court upheld the acts constitutionality. It therefore held the City" divested of it, rights under a stutuh,rY grant deed of downtown Miami sovereignty land . n Biscayne Bay. valued in the tens and perhaps hundreds of millions of dollars. OPINIONS BELOW The Florida Supreme ('ourt's opinion is reported at ;64 So.2d 4:19. That opinion approves and upholds the opinion of the Court of Appeal. Third District of Florida. which is reported at :147 So.2d 6222. JURISDICTION The City sued to quiet its title to parts of a massive state grant of sovereignty land adjacent to the navigable waters of Biscayne Bay. It sought to remove the cloud created by a void 1944 "wild deed"' which claimed to convey part of the City's land to one of the appellees. Despite the City's explicit pleading that Florida s AORTA'. if construed to divest the City of its property, would violate the specific constitutional provisions here presented, the trial court dismissed the complaint with prejudice. The City appealed to the Court of Appeal, Third District of Florida. That court affirmed, but invoked a provision of the Florida Constitution, and certified the constitutionality of Florida's MRTA to the Florida Supreme Court "as one passing upon a question of great public interest." The Florida Bar, the Governor of Florida, the Florida Attorney General, and representatives of Florida's largest mining industries appeared as amici curiae. The Florida Supreme Court joined the lower Florida courts in rejecting the City's challenges to con- stitutionality, affirmed the Court of Appeal, and dis- charged certiorari. 'Florida defines a wild deed as one executed by a stranger to the record title, "hung out in the air like Mahomets coffin-. Pola- dian v. Johnson, &5 So.2d 140. 141 (Fla. 1956). A wild deed is void. Wright v. Blocker, 198 So.88 (Fla. 1940). It conveys no notice. Smith Bros. v. Williams, 131 So. 335 (Fla. 1930). 'Fla. Stat. Ch. 712. 3 All levels of Florida courts having rejected the Citv's challenges to the Florida MRTA's con- stitutionality. the City invokes this Court's jurisdiction under Title 28. United States Code §1257(2). This ap- peal has been filed within ninety days from denial of rehearing below. QUESTIONS PRESENTED 1. Whether Florida's MRTA, which retroactively and totally divests record owners of their property without notice. based upon void instruments, and ab- sent any emergency or even reasonable necessity, violates Article 1. § W. of the United States Constitution, as an impermissible impairment of contract. 2. Whether the operation of Florida's MRTA, which retroactively divests record owners of property without notice or compensation. constitutes an unconstitutional taking in violation of the Fifth Amendment. 3. Whether Florida's \IRTA which, unlike the acts of all other states. permits retroactive divestiture without notice. based upon void instruments (wild deedsl. unconstitutionally deprives record owners of their property without due process of law in violation of the Fourteenth Amendment. 4 CONSTITUTIONAL PROVISIONS AND STATUTE United States Constitution art. I §10: No state shall ... pass any ... law impairing the obligation of contracts. United States Constitution amend. V: No person shall be ... deprived of .. . property, without due process of law; nor shall private property be taken for public use, without just compensation. United States Constitution amend. XIV: ... nor shall any state deprive any person of ... property, without due process of law. Florida Statutes Chapter 712, "Marketable Record Ti- tles to Real Property": 712.01 DEFINITIONS — As used in this law: (1) The term "person.' as used herein denotes singular or plural, natural, or cor- porate, private or governmental, including the state and any political subdivision or agency thereof as the context for the use thereof re- quires or denotes. (2) "Root of title" means any title transac- tion purporting to create or transfer the estate claimed by any person and which is the last ti- 5 tle transaction to have henemarkedtabilityat is :30 years prior to the time the being determined. The effective date it of was root of title is the date on which recorded. (31 Title transaction' means any recorded instrument or court proceeding which affects title to any estate or interest in land. 712.02 MARKETABLE RaI RECORD TITLE apacity own — An�� person having the g land in this state, wh(le alone beeor together Bested with his predecessors in title, anyestate in landa marketable recordecord for 30 years or title to more, shall have which shall be free and such estate in said land, clear of all claims except the matters set forth as exceptions to marketability in §712.03. A person shall have a marketable record title when the public records disclosed l transaction affecting the totless than 30 years lleth e land which has been of record for n purporting to create such estate either in: t 1) The person claiming such estate; or (2i Some other person from whom, by one or more title transactions, such estate hassuch estate, with passed to the person claiming nothing appearing of record, in either case, purporting to divest such claimant of the estate claimed. 712.03 EXCEPTIONS TO MARKETABILITY — Such marketable record title shall not affect or extinguish the following rights: (1) Estates or interests, easements and use restrictions disclosed by and defects inherent in the muniments of title on which said estate is based beginning with the root of title; provided, however, that a general reference in any of such muniments to easements, use restrictions or other interests created prior to the root of title shall not be sufficient to preserve them unless specific identification by reference to book and page or record or by name of recorded plat be made therein to a recorded title transaction which imposed, transferred or continued such easement, use restrictions or other interests; subject, however, to the provisions or other interests. (2) Estates, interests, claims, or charges preserved by the filing of a proper notice in ac- cordance with the provisions hereof. (3) Rights of any person in possession of the lands. so long as such person is in such posses- sion. (4) Estates, interests, claims, or charges arising out of a title transaction which has been recorded subsequent to the effective date of the root of title. ��I (51 Recorded or unrecorded easements or rights. interest or servitude in the nature of easements, rights -of -way and terminal facilities, including those of a public utility or of a governmental agency, so long as the same are used and the use of any part thereof shall except from the operation hereof the right to the entire use thereof. No notice need be filed in order to preserve the lien of any mortgage or deed of trust or any supplement thereto en- cumbering any such recorded or unrecorded easements, or rights. interest, or servitude in the nature of easements, right-of-way, and ter- minal facilities. However, nothing herein shall he constructed as preserving to the mortgagee or grantee of any such mortgage or deed of trust or any supplement thereto any greater rights than the rights of the mortgagor or grantor. (6) Rights of any person in whose name the land is assessed on the county tax rolls for such period of time as the land is so assessed and which rights are preserved for a period of 3 years after the land is last assessed in such per- son's name. 712.04 INTERESTS EXTINGUISHED BY MARKETABLE RECORD TITLE — Subject to the matters stated in § 7 12.03, such marketable record title shall be free and clear of all estates. interests. claims or charges what- soever, the existence of which depends upon any act, title transaction, event or omission that occurred prior to the effective date of the root of title. All such estates, interests, claims 8 or charges, however denominated, whether such estates, interests, claims or charges are or appear to be held or asserted by a person sui juris or under a disability, whether such person is within or without the state, whether such person is natural or corporate, or is private or governmental, are hereby declared to be null and void, except that this chapter shall not be deemed to affect any right, title or interest of the United States, Florida or any of its officers, boards, commissions or other agencies reserved in the patent or deed by which the United States, Florida or any of its agencies parted with title. 712.05 EFFECT OF FILING NOTICE — 111 Any person claiming an interest in land may preserve and protect the same from ex- tinguishment by the operation of this act by fil- ing for record, during the 30-year period im- mediately following the effective date of the root of title, a notice, in writing, in accordance with the provisions hereof, which notice shall be the effect of so preserving such claim of right for a period of not longer than 30 years after Til- ing the same unless again filed as required herein. No disability or lack of knowledge of any kind on the part of anyone shall delay the commencement of or suspend the running of said 30-year period. Such notice may be filed for record by the claimant or by any other per- son acting on behalf of any claimant who is: 9 (a) Under a disability, (b ( Unable to assert a claim on his behalf. or go One of a class. but whose identity cannot be established or is uncertain at the time of tiling such notice of claim for record. (2 ► It shall not be necessary for the owner of the marketable record title, as herein defined, to file a notice to protect his marketable record title. 712.06 CONTENTS OF NOTICE; RECORDING AND INDEXING — (1) To be effective, the notice above referred to shall contain: (a) The name or description of the claimant and the name and particular post - office address of the person filing the claim. (b ) The name and post -office address of an owner, or the name and post -office address of the person in whose name said property is assessed on the last completed tax assessment roll of the county at the time of filing, who, for the purpose of such notice, shall be deemed to be an owner. (c) A full and complete description of all land affected by such notice, which description shall be set forth in particular terms and not by 10 general reference, but if said claim is founded upon a recorded instrument, then the descrip- tion in such notice may be the same as that contained in such recorded instrument, provided the same shall be sufficient to iden- tify the property. (d) A statement of the claim showing the nature, description and extent of such claim, except that it shall not be necessary to show the amount of any claim for money or the terms of payment. (e) If such claim is based upon an instru- ment of record, such instrument shall be suf- ficiently described to identify the same, in- cluding reference to the book and page in which the same is recorded. (f) Such notice shall be acknowledged in the same manner as deeds are acknowledged for record. (2) Such notice shall be filed with the clerk of the circuit court of the county or counties where the land described therein is situated, together with a true copy thereof. The clerk shall enter, record and index said notice in the same manner that deeds are entered, recorded and indexed, as though the claimant were the grantee in the deed and the purported owner were the grantor in a deed, and the clerk shall charge the same fees for recording thereof as are charged for recording deeds. In those coun- ties where the circuit court clerk maintains a 11 once shall also be indexed tract index. such n therein.court shall, of The clerk;stered or Certified t:3} filing. mail by reg the circuit of said property, upon such purported owner thereof and mail to the purp notice, a copy in such before recording the as stated on the original, shall enter showing such mailing. For game. a certificate `the claimant shall pay such copy, to the recording mailing each ; in addition owners ;t� cent names purported the sum ` t the notice na person filing �n If one address, the P each of Pharr ' ' copy for having, more than a true p- same e shall furnish and the clerk shall sendthe :' ;,es stated, the several addresses to the purportedSuch cer- tificate one such cop address a reads at each respective if the sae named hall be sufficient tificate substantially a_ follows:this that I did on cer- tified) hereby' certify re istered (or mail by g notice to copy aof the foregoing ddress stated: titled► mail a p` at the court) of each of the following u; t c o u o f the circuit i r c e Clerk County • Florida, By (Duty P Cierk►. owner to any purported tl► Failure of receive the mailed notice shall not affect othe of the notice or vitiate the effect t the validity tiling of such notice. ACTIONS AND 712.01 LIMITATIONS OF contained in RECORDING ACTS — Nothing the peiol to extend doing of hall be construed or for the this law sof an action any statute of to for the bringing required under of any any other act affect the operation or limitations governing the effect of the recording ' r statute failure any instrumentcurative the failure larecord l not vitiate any land. This statute. M — No person LSE CLAI 712.0S FILING FA a of filing notices hereun- der privilege false or tic - shall use purpose of asserting any action der for the P land; and in that any fic- titious to claims to court shall find claim, the relating thereto if the or fictitiousarty all person has tiled a fto8ethe prevailing P award dhim in such action, including court may and in addition costs incurred by him fee, arty all a ere the prevailing a a result thereto may award have sustained damages thato such notice of claim of the tiling PERIOD ENSIGN OF 30-YEAR PE under .? 09 E0T for tiling notice under �1- ear period If the 3all expired prior to July 1, 1965. `71•?,05 shall have xtended to July 1, such Period shall be LY CON- W TO BE LIBERAL con- strued LA shall be liberally O 1�. This law purpose of strued .D - legislative P transactions TRt1 to effect the g land title tran itle as and facilitating record such sim- plifying all g s to rely on a persons subject only to ►�v allowing P 712.02 �.03. described 'n appear in § ,1:. limitations as 13 12 RAISING THE FEDERAL QUESTIONS The City asserted in its amended complaint that Florida's MRTA. if construed to divest the City of its property, would violate the specific provisions of the Federal Constitution here invoked. The trial court dis- missed the complaint with prejudice. The City appealed to the Court of Appeal, Third District of Florida. again invoking the constitutional provisions in its assignments of error. The Court of Ap- peal affirmed. but certified the constitutionality of Florida's MRTA to the Florida Supreme Court as a "question of great public interest." The City argued each of the specific provisions o►f the Federal Constitution here invoked to the Florida Supreme Court. Indeed, it urged the very cases cited on this appeal. The Florida Supreme Court rejected the City's arguments and expressly held Florida's MRTA constit utional. 14 STATEMENT OF THE CASE In 1919, the State conveyed to the City certain bay bottom lands. Beginning in the 1920's, Florida East Coast Hotel Corporation (FEC), which owned fourteen acres of adjacent upland property, pirated 10.69 acres of the ('ity's submerged lands by unlawful bulkheading and tilling. In 1944, F E(' conveyed its fourteen upland acres and claimed to convey 10.69 acres of the City's land to tit. •)oe Paper Company.' All of the appellees claim un- der this 1944 deed. As the Florida Supreme Court held, this 1944 deed was '`wild" — i.e., the City, and not St. Joe (and its successors), owned the 10.69 acres. City of Miami v. St. Joe Paper Co., 364 So.2d 439 (Fla. 1978). The 1944 deed was therefore void.; Although the City argued that Florida's MRTA violated the Contract Clause, the Taking Clause, and the Due Process Clause, the Florida Supreme Court declined to apply either an impairment or a taking analysis. And its putative due process analysis does not even approach the analysis enunciated by this Court. The court held that merely because title legislation "concerns the public welfare," Florida's MRTA does not violate the United States Constitution. It ruled as follows: 'Although not directly in suit, additional property (in excess of 100 acres of illegally filled sovereignty land) may be affected by this decision. 'See n. 1, supra. 15 Although it is a most important limitation on state action. due process has never been an ab- solute prohibition against state legislation ad- versely affecting property rights. It has been held over and over again that general limita- tions on Mate action do not extinguish the states police power to enact legislation ••reaonably necessary to secure the health, safety. :;• d corder. comfort or general welfare of the community."' In determining v het her state action violates due process principles. a court must choose between protect in;; t he individual's guaranteed rights on the one hand and the welfare of the general public on the other. This method of determining- whether a state meets the require- ments of due process is called the "balancing of interest.. test. See Simes & Taylor. The Im- proyement of Conveyancing by Legislation, _':►:►-.iii 1190il. The Marketable Record Titles Act. designed to simplify conveyances of real property, stabilize titles and give certainty to land ownership, is certainly legislation concerning the welfare of the public. :i64 tio.'.d at 144. As construed, Florida's MRTA divests a landowner in favor of anyone having a void deed of record for more than thirty years with no subsequently recorded con- flicting interest. 16 THE QUESTIONS ARE SUBSTANTIAL Florida's MRTA has obliterated the State's con- veyance to the City and has extinguished the City's property ownership, without compensation and without notice. This divestiture does not even purport to arise from any emergency; it is neither reasonable nor necessary; it is not justified by any state interest. Sub- stantial questions are therefore raised under the Con- tract Clause, the Taking Clause, and the Due Process Clause. The Florida Supreme Court purported to "balance" what it called "the individual's guaranteed rights on the one hand and the welfare of the general public on the other". City of Miami, 364 So.2d at 444. The court made no finding (and could not have) that the legislation is justified by an economic emergency, or even that it is reasonable or necessary to serve the state interest. In- stead, the court held that, title legislation being within the scope of the police power, the "individual's guaran- teed rights" are outweighed by the state interests. The decision directly contradicts not only this Court's holdings in United States Trust Co. v. New Jer- sey, 431 U.S. 1, 97 S.Ct. 1505 (1977); and Allied Struc- tural Steel Co. v. Spannaus, 98 S.Ct. 2716 (1978), but also the alternative due process analysis urged by the dissenting justices in each case. Both decisions were cited by the City; both were completely ignored by the Florida Supreme Court. The very approach the Florida court said it was tak- ing was rejected by this Court in United States Trust Co. v. New Jersey, 97 S.Ct. 1505 (1977): 17 Appellees contend that these goals are so im- portant that any harm to bondholders from repeal of the 1962 covenant is greatly out- weighed by the public benefit. We do not ac- cept this invitation to engage in a utilitarian comparison of public benefit and private loss. Contrary to Mr. Justice Black's fear expressed on sole dissent in El Paso u. Simmons, . . . the Court has not "balanced away" the limitation on state action imposed by the Contract Clause. 97 *.Ct. at 1521 )emphasis added). Moreover. the Florida Supreme Court's actual process of decision contradicts even the position taken by the dissenting justices in Spannaus and United States Trust. Mr. Justice Brennan acknowledged in both decisions that the Contract Clause prohibits state laws that "[dilute], with utter indifference to the legitimate interests of the beneficiary of a contract duty, the existing contract obligation." For the dissenting justices. he recognized that due process analysis protects only legislation which is "reasonably necessary to promote the general welfare." Spannaus, 98 S.Ct. at 2731 (emphasis added) . Put another way. the Florida court has approved a divestiture by a method of decision rejected by every •Justice of this Court in United States Trust (1977) or Spannaus (1978) . Operation of Florida's Marketable Record Titles Act The Florida courts held that the total divestiture of the City's property is "justified" by the state's interest in simplifying the work of title searchers. 18 The City does not question the state's interest in regulating title conveyancing. Cf. American Land Co. v. Zeiss, 219 U.S. 47 (1911) (upholding emergency title legislation enacted after a flood destroyed public records in San Francisco). However, Florida's MRTA represents a drastic, and impermissible, departure from the very essentials of property law. Florida's MRTA is based on a model act proposed in 1960 by Professors Simes and Taylor. Similar statutes have been passed in at least twenty other states.' The primary effect of such legislation is to allow a purchaser to disregard stale encumbrances on a valid record chain of title. See L. Simes, A Handbook for More Efficient Conveyancing, 33-36 (1961) . Realizing this valid but limited effect, other state courts have said that such legislation cannot con- stitutionally resolve conflicts between two separate chains of title. And no other state has countenanced the drastic redistribution of property approved by Florida. In 6l'ichelnian v. Messner, 83 N.W. 2d s(R) (Minn. 19571. t he court held Minnesota's marketable title act const itutional only by construing the statue not to honor a wild deed: 1,. Simes and C. Taylor, Improvement of Conveyancing by Legislation (19601. 'The States of Connecticut, Illinois, Indiana, Iowa, Kentucky, Maine, Maryland, Massachusetts, Michigan, Minnesota. Nebraska, New York, North Dakota, Ohio, Oklahoma, Rhode Island, South Dakota, Utah, and Wisconsin have enacted legisla- tion similar to Florida's. Boyer & Shapo, Florida's Marketable Title Act, 28 t'. MIAMI L. REV. 103, 103-104 n. 3 (196:3); Barnett, Marketable Title Acts — Panacea or Pandemoniure 53 COR- NELL L. REV. 45, 47 n. 6 (1967); Fratcher, A Modest Proposal for Trimming the ('laws of Legal Future Interests, 1972 DUKE L.A. 517, 529 n. 53. 19 IPlaintiffI asserts that the grantee in a stray or interloping deed might become 'the absolute owner' of property_ We do not think the statute lends itself to an interpretation to the effect that title may be sounded on a stray, acciden- tal. or interloping conveyance. Its object is to provide. for the recorded fee simple ownership, an exemption from the burdens of old condi- tions and restrictions which at each transfer of the property transfer with its marketability. The statute does not operate to provide the foundation for a new title. 83 N.W.2d at S19 (extra emphasis added). In Exchange National Bank v. Lawndale National Bank, 24a N.E.°d 193 (Ill. 1968), the Illinois Supreme Court agreed: A consideration of our Act, including the sec- tion declaring the legislative purpose of 'sim- plifying and facilitating land title transactions by allowing persons to rely on a record chain of title' leads us to conclude that the Act contem- plated the existence of only one record chain of title holder. Were we to hold otherwise it could result in a 'wild deed' being enabled to serve as the foun- dation of a new record chain of title, so that it, as the more recent 40-year chain of title, would be entitled to the benefit of the Act. This could result in unwelcome holdings and possible con- stitutional complications, for it would be then possible for the grantee of a complete and even 20 fraudulent stranger to title to divest the title of a record owner .... Too, the legislative pur- pose under the Act of 'simplifying and facilitating land title transactions' would hardly be furthered by a contary holding. 943 N.E.2d at 195-196 (citations omitted, emphasis supplied). Indeed, prior to this case, there was no reason to believe that Florida's MRTA could validate a wild deed. It had always been the law in Florida that a wild deed is void, Wright u. Blocker, 198 So. 88 (Fla. 1940), and can- not be validated by a subsequent legislative enactment, Smith Bros. v. Williams, 131 So. 335 (Fla. 1930). And this was settled law when Florida's MRTA was enacted in 1963. Nevertheless, the Florida Supreme Court has di- rectly held that Florida's MRTA validates a wild deed.' The destructive precedential impact of its decision bodes ill for legislation adopted in many states and may well be used to overrule the salutary and heretofore landmark decisions rendered by the Supreme Courts of Illinois and Minnesota. Contract Clause The Florida Supreme Court erroneously treated the Federal Contract Clause as a dead letter. This Court's recent decisions make clear it is not. As this Court stated in Spannaus, 98 S.Ct. at 2723 (emphasis added): 7"We are asked to hold, without equivocation, that a wild deed may constitute a root of title. We so hold." City of Miami, 364 So.2d at 439. 21 lTlhe first inquiry must be whether the state law has. in fact, operated as a substantial im- pairment of a contractual relationship. The severity of the impairment measures the height of the hurdle the state legislation must clear. Minimal alteration of contractual obligations may end the inquiry at its first stage. Severe impairment, on the other hand, will push the inquiry to a careful examination of the nature and purpose of the state legislation. Florida's MRTA, as applied to divest a record feeholder in favor of a wild deed, clearly impairs a contract.8 In fact, it is more accurate to say that Florida's MRTA destroys contracts." And here, the contract impaired is the State's own,10 which requires even more stringent examination. United States Trust, 431 U.S. 1. 'A statutory grant deed is protected by the Contract Clause. United States Trust, 97 S.Ct. at 1515, n. 14; Fletcher v. Peck, 10 I. 87 (1810); Trustees of Dartmouth College v. Woodward, 17 U.S. 518 (18191. 'The Florida Supreme Court's response that the City could have avoided divestiture by re-recording its interest begs the ques- tion. The statute itself does not require a feeholder to re-record his interest. The feeholder is not put on notice of a maturing wild deed and therefore has no reason to re-record. 30The City's ownership was by way of a direct grant from the State. However, any "dispute" between competing chains of title, one emanating from the sovereign, and the other emanating from a wild deed, presents the question of impairing the initial grant from the State. 22 This Court's decisions plainly held that where, as here, no economic emergency exists, total destruction of a contractual right can never be upheld. r r Florida's legislature made no determination in Florida's MRTA of the nature and scope of the state in- terest being protected. The legitimacy of the state's in- terest in title legislation may be conceded. Cumbersome title searches undoubtedly make life more difficult for real estate developers, lawyers, and title abstractors. and could. at (east conceivably, result in somewhat greater risks for title insurance companies. But the state interest clearly does not even ap- proach the category of economic emergency. The slate s interest in simplifying title conveyancing does not Justify the arbitrary destruction of the states contrac- tual conveyance in favor of a person with no valid claim or a grantee whose title examination necessarily demonstrates it is receiving a wild deed. Moreover, even had a compelling state interest provided possible justification for total contract destruc- tion (which is clearly not the case), Florida's MRTA nevertheless must fail. It is plainly not the least onerous means of achieving title security. For however legitimate a particular state interest may be, a contrac- "See, e.g., Spannaus, 98 S.Ct. 2716; Home Building & Loan Assoc. v. Blaisdell, 290 U.S. 398 (1934); W. B. Worthen Co. v. Kavanaugh, 295 U.S. 56, 55 S.Ct. 555, 79 L.Ed. 1298 (1935). In Kavanaugh the Court struck an Arkansas statute that diluted the rights and remedies of mortgage bondholders. The Court deemed the statute an "unnecessary destruction of nearly all the incidents that give attractiveness and value to collateral security" (emphasis added/. 23 ) tual impairment can be upheld only when it is "both reasonable and necessary" to serve those purposes. United States Trust, 47 S.Ct. at 1521 (emphasis added). Other states have recognized that construction of marketable title legislation to validate wild deeds is not necessary to the purpose „t such acts. Such validation of .11,t deeds tloe> nut furthet a state-s interest in simplily- !u title conveyancing. and therefore ( being un- necessary) raises substantial constitutional problems. Iti, hr ir.tnn r 11t s.sncr, A.11-.2d at S19: Exchange i„rm! Ranh of Loll ndnl, A'arional Hank. '_'-t:; ti.E.2t1 at 1 r;,-l9ti. Floridan AIRTA is plainly neither reasonable nor necessary. The states interest in regulating title con- veyancing. which may he legitimately exercised in re- cording* and curative statutes. cannot and does not just itv divest iture of a record teeholder in favor of a void deed. Recording statutes can be valid because they resolve disputes in favor of purchasers who have relied on the public record. Such statutes allow a true owner to pass good title to a bona tide purchaser. and allow a grantee by recording (which constitutes notice) to pre- vent subsequent purchasers from taking bona fide. This Court enunciated such a rationale to uphold the con- stitutionality of a recording statute in Vance c. Vance, 11)8 U.S. 514 11R831: The strong current of modern legislation and judicial opinion is against the enforcement of secret liens on property. And, in regard to real 24 property. every state in the Union has enacted statutes holding them void against subsequent creditors and purchasers, unless they have ac- tual notice of their existence, or such construc- tive notice as arises from registration. The constitution of Louisiana introduced this principle. and did it with due regard to existing contracts. It did not change, defeat, or impair the obligation of the tutor to perform that con- tract. It did not take away or destroy the security which existed by way of lien on the tutors property. nor as between the tutor and t he ward did it make any change whatever. But it said to the latter: You have a secret lien, hidden from persons wi'n are dealing every day with the tutor on the faith of this property. and in ignorance of your tights. We provide you a way of staking those rights known by a public registration of them which all persons may examine. and of which all must take notice at their peril. We stake it the duty of officers having charge of the ottices where the evidence of your claim exists to make this registration. We make it your dirty also to have it done. 'e give you a reasonable time after this constitution is passed and after the enabling statute is passed to have this registration made. 11 it is not done within that time your debt remains a valid debt, your mortgage remains a valid mortgage. but it binds no one who acquires rights after that in ignorance of your 25 mortgage. because you have not given the notice which the law required you to give. See also Jackson ex. dem. Hart v. Lamphire, 28 U.S. 280 (18301_ Compare American Land Co. v. Zeiss, 219 U.S. 47. Since. unlike Florida's MRTA, it confirmed rather than impaired a contract, this Court upheld the con- stitutionality of a curative statute in Randall v. Kreiger, 90 U.S. 124 (18751. The appellant challenged a deed ex- ecuted under a power of attorney, which was not authorized under Minnesota law. The state court held the defect cured by Minnesota's curative statute. The court explained that the statute was not an un- constitutional impairment of contract, because the statute did not impair, but confirmed a legitimate contract. The power of a Legislature, under the cir- cumstances of this case, to pass laws giving validity to past deeds which were before inef- fectual is well settled. . . . To the objection that such laws violate vested rights of property it has been torceably answered that there can be no tested right to do wrong. Claims contrary to justice and equity cannot be regarded as of that character. Consent to remedy the wrong is to be presumed. The only right taken away is, the right dishonestly to repudiate an honest contract or conveyance to the injury of the other party. Even where no remedy could be had in the courts the vested right is usually un- attended with the slightest equity. . . . The curative act of 1857 has a strong natural equity at its root. It did for her what she attempted to 26 do. intended to do, and doubtless believed she had done, and for doing which her husband was fully paid. 90 U.S. at 126 (emphasis added). The ostensible purpose of marketable record titles acts is to shorten title searches: to allow a grantee cer- tainty of title once he finds a "root of title' at least thirty years old with no subsequent conflicting claims. To t he extent that such an act allows a grantee to ignore "the burdens of old conditions and restrictions which at each transfer of the property transfer with its marketability", Wichelman, 83 N.W.2d at 819, the statute may be deemed a reasonable protection of the state's interests in title certainty. However, Florida's MRTA does not merely allow a grantee to ignore "old conditions and restrictions" on his title, it allows a putative grantee to ignore the fact, ascertainable from the public record, that his "chain of title" does not exist. And, it penalizes not the holder of a mere old condition or restriction,12 it penalizes a record feeholder for failing to respond to a wild deed of which he had no notice. 12Conditions and restrictions are subject to being extinguished under the MRTA only after they disappear from the record chain of title. Florida Statutes § 712.03 (1) excepts `estates or interests, easements and use restrictions disclosed by and defects inherent in the muniments of title on which said estate is based beginning with the root of title." The holder of such an interest, unlike a feeholder facing divestiture in favor of a wild deed, has record notice that his interest has been deleted. 27 Such a result does not inject reason or equity into the law of conveyancing — it fixes title by arbitrarily cutting off and ignoring the public record of transactions beyond the thirty year period. If Florida's MRTA did not apply to validate a wild deed, it would still achieve the State's legitimate interest.13 A grantee could rely on the existence of a record chain of title, which is traceable to the sovereign and unencumbered by recent restrictions or conditions.14 [A] State is not free to impose a drastic impair- ment when an evident and more moderate course would serve its purposes equally well. United States Trust, 97 S.Ct. at 1522. Florida's MRTA is neither reasonable nor necessary to serve the admittedly legitimate state interest in sim- plifying title searches. It imposes a complete destruction of a contractual conveyance in favor of one with no valid claim. The Florida Supreme Court's asserted "balanc- ing" of this destruction against the state's interest in simplifying title conveyancing is directly contrary to this Court's explicit holdings in 1977 and 1978. "In fact, inapplicability of the MRTA to wild deeds would make the title search simpler. If a title search shows a thirty-year gap in a record chain, the nonexistence of an intervening wild deed will have to be proven, requiring a search outside of the grantor - grantee index. See Lawndale, 243 N.E.2d 193. ,•Florida's MRTA already requires a title searcher to locate the grant from the sovereign, to determine if any restrictions excepted by § 712.04 exist. 28 Taking Recording and curative statutes seek fairly to resolve disputes between competing claimants. Florida's MRTA, on the other hand, seeks arbitrarily to "fix" ti- tle, purportedly to nerve the state's interest in simplify- ing title transactions. This Court has recognized that state regulation of property interests, however legitimate the public interest being served, may con- stitute a "taking" of property for a public use within the meaning of the Fifth Amendment, entitling the deprived property owner to compensation. Cf. Penn Central Transportation Co. v. City of New York, 98 S.Ct. 2646 (1978), and cases discussed therein. As the Supreme Court of Florida has recognized, the City was vested with full fee simple ownership of this land. T.I.LF. v. Claughton, 86 So.2d 775 (Fla. 1956). The State has now forced a transfer of the City's property to a third person with no valid claim pur- portedly because the State wants to simplify title searches. This Court has made clear that the prohibition of the Fifth Amendment is not limited to cases where the State obtains private property, but extends as well to cases where the State destroys or forces a transfer of property interests. Louisville Joint Stock Land Bank v. Radford, 295 U.S. 555 (1935). The degree of deprivation (normally an issue in "taking" cases) is therefore not an issue here. If it is indeed in the State's legitimate interest to shorten title searches, simplify conveyancing, and give certainty to title, achieving that interest by arbitrarily divesting legislative feeholders (to benefit private in- terests knowingly accepting defective title) imposes a 29 "public cost" on a few persons. Such an imposition is prohibited by the Fifth Amendment. The Fifth Amendment's guarantee that private property shall not be taken for a public use without just compensation was designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole. Armstrong v. United States, 364 U.S. 40, 49 (1960). As the Court stated in United States Trust, 97 S.Ct. at 1516, n. 16, contract rights may be taken for a public purpose, but compensation must be paid. Therefore, even if Florida's MRTA serves a public purpose, it takes property without compensation, and violates the Fifth Amendment. Due Process Although the City argued below that Florida's MRTA violates the Contract Clause, the Taking Clause, and the Due Process Clause of the Federal Constitution, the Florida Supreme Court attempted to treat only the due process issue. Its idea of a "balancing of interest" test espoused by the dissenting justices in United States Trust and Spannaus, however, consisted only of a deter- mination whether the statute "concerned" public welfare. Since it did, the Florida court held that it com- ported with due process. The Florida Supreme Court took the position that the City could have avoided divestiture by re-recording its ownership, comparing Florida's MRTA to a statute 30 of limitation. But the City did not have a mere "claim" — it had a vested estate in fee simple, recognized by the Florida Supreme Court. T.I.I.F. v. Claughton, 86 So.2d 775. The statute of limitation analogy is therefore i- posite. Vested rights cannot be taken away without notice and compensation. The City had notice of Florida's MRTA. See Ander- son National Bank v. Luckett, 321 U.S. 233 (1954). But the statute did not notify the City that it would have to re-record its ownership to protect itself from a wild deed of which it had no notice. Due process requires notice "such as one desirous of actually informing ... might reasonably adopt to ac- complish it." Mullane v. Central Hanover Bank & Trust Company, 339 U.S. 306, 315 (1950). The language of the statute must therefore properly apprise one of its re- quirements. Due process requires that all "be informed as to what the State commands or forbids," and that "men of common intelligence not be forced to guess at the meaning of the criminal law." Smith u. Goguen, 415 U.S. 566, 574 (1974) (citations omitted). Due process should require no less than this for a total deprivation of vested property. Prior to the Florida Supreme Court's decision in this case, it had always been the law in Florida that a 31 wild deed is void, and conveys no notice of anything.15 Florida's MRTA did not purport to change this. The City cannot, consistent with due process, be charged with notice that it had to re-record its ownership to avoid divestiture in favor of a wild deed. The City was entitled to assume that the MRTA would not divest it in favor of an interest of which it had no notice. The City had notice of Florida's MRTA, but did not have notice of any legitimate challenge to its title, and did not have notice that Florida's MRTA could validate a wild deed. Notice of the statute itself was not enough to put the City on notice of a wild deed; under Florida law, a wild deed does not confer notice of anything. Moreover, Florida's MRTA is not "reasonably necessary to promote the general welfare." Spannaus, 98 S.Ct. at 2731 (Brennan, J., dissenting). It divests a record feeholder in favor of one with no valid claim. :'See n. 1, supra. Cf. United States Trust, 97 S.Ct. at 1515 n. 14. This law was part of the City's statutory grant, and part of Florida's MRTA. See also City of New York v. New York, N.H. & H.R. Co., 344 U.S. 293 (1953), which follows Mullane. The Court held that the City's notice of the pendency of bankruptcy proceedings did not confer notice of deadlines contained in court orders: Nor can the bar order against New York be sustained because of the city's knowledge that reorganization of the railroad was taking place in the court. The argument is that such knowledge puts a duty on creditors to in- quire for themselves about possible court orders limiting the time for filing claims. But even creditors who have knowledge of a reorganization have a right to assume that the statutory "reasonable notice" will be given them before their claims are forever barred. When the judge ordered notice by mail to be given the appearing creditors, New York City acted reasonably in waiting to receive the same treatment. :32 CONCLUSION For these reasons, this Court should note probable jurisdiction of this appeal. Respectfully submitted, GUY B. BAILEY, JR. Suite 1820, One Biscayne Tower Two South Biscayne Boulevard Miami, Florida 33131 (305) 374-5505 Guy B. Bailey, Jr. OF COUNSEL: JESSE C. JONES Suite 1820, One Biscayne Tower Two South Biscayne Boulevard Miami, Florida 33131 March 14, 1979 Appenbix Opinion of Court of Appeal of Florida, Third District 1 Order by Court of Appeal of Florida, Third District 10 Opinion of Supreme Court of Florida 12 Order of Supreme Court of Florida denying rehearing 34 Notice of Appeal to the Supreme Court of the United States 35 Certificate of Service 37 APPENDIX IN THE DISTRICT COURT OF APPEAL OF FLORIDA THIRD DISTRICT .JANUARY TERM, A.D. 1977 CITY OF MIAMI, a Florida municipal corporation, Appellant, vs. ST..JOE PAPER COMPANY, etc., et al., Appellees. CASE NOS. 76-423, 76-686 Opinion filed May 3, 1977. Appeals from the Circuit Court for Dade County, Harvie S. DuVal and Rhea P. Grossman. Judges. Guy B. Bailey. Jr., for appellant. Shutts & Bowen and William P. Simmons. Jr.: Sibley. (:il>lin. Levenson & Glaser: Steel. Hector .\ Davis: Russo. Van Doren & Allen. for appellees. Before PEARSON. HAVERFIELD and NATHAN. J.1. PEARSON. Judge. App. 1 The City of Miami appeals a final judgment dis- missing its amended complaint as to defendants, St. Joe Paper Company, Hugh E. Matheson, Jr., and Southeast Properties, Inc. The second appeal is from a summary final judgment for defendant Sally S. Dommerich. The City states that the issues are essentially the same on both appeals, which have been consolidated for all ap- pellate purposes. The City's complaint sought "to quiet and confirm title, for ejectment" upon "all or substan- tial portions" of several lots and tracts, being tilled land on the north side of the Miami River at or near the river's entrance into Biscayne Bay.' The controlling question appears to be whether the City's claim is barred by the Marketable Record Title Act. Chapter 712, Florida Statutes (1975). This question must be determined from the allegations of the com- plaint if it is to be determined, as it was, at the pleading stage. See Stern v. First National Bank of South Miami, 275 So.2d 58 (Fla. 3d DCA 1973). We hold that the amended complaint was properly dismissed on this ground. The allegations of the amended complaint, rearranged chronologically for the purpose of clarity in determining the applicability of the Marketable Record Title Act. are: "20. All or substantial portions of Lots 1 through 10, in- clusive. of Block 3; Lots 7 and 8 of Block 5; Lots A and B of Block 1; and all of Tracts C and D of the said plat of DuPont Plaza, were irrevocably convened by the State of Florida to Miami in its grant of .tune 2. 1919. and Miami owns of right title and interest thereto in tee simple absolute. subject only to the requirement that they be used for municipal purposes only." App. 2 1. In 1845, the State of Florida acquired from the Un- ited States the lands under navigable waters. 2. By Warranty Deed recorded December 15, 1898, Henry M. Flagler conveyed to the Florida East Coast Hotel Corporation portions of the mainland north of the Miami River and adjacent to Biscayne Bay: - "containing fourteen acres, more or less, together with all and singular the riparian rights and submerged lands appertaining thereto." 'A map attached to this deed is included as an exhibit to the amended complaint. It shows that Flagler intended to convey all the land east of "Mrs. J. D. Tuttle's Home Reservation.' App. 3 CJi1/11 /W 111N • •, .• • r- . 1 1 •„ . •• • S. • •0••,.• • • • • 3. By a special act of the Florida Legislature on June 2, 1919, the State of Florida granted to the City of Miami "for municipal purposes only, all its rights, title and in- terest . . . to all submerged lands, including waterfront and riparian rights" to an area which included the mouth of the Miami River. The statutory grant included the following section: "Sec. 2. That this grant shall not affect any other grant heretofore made to any individual or corporation and nothing herein shall be con- strued as depriving any riparian owner or proprietor of any rights under the laws of this State." 4. Beginning in 1920, the Florida East Coast Hotel Corporation bulkheaded and filled a portion of the property in question but left a yacht basin. 5. On January 10, 1944, the St. Joe Paper Company (one of the defendants) recorded a warranty deed from the Florida East Coast Hotel Corporation which con- veyed to it all of the lands with which we are here con- cerned including the yacht basin which was then hinhex- istence. Recorded T ncelt Someth he etdwas a ime afternap l`.�-t-1, St • Joe is for re e filled and bulkheaded the yacht basin. 6. All the defendants other than St. Joe claim under recorded deeds from St. Joe PaperCompany subsequent to the 1944 deed to St. Joe Paper Company. App. 5 App. 4 7. On February 3, 1949, St. Joe recorded a plat (at- tached to the complaint) of the lands involved. This plat was approved by the City of Miami prior to recordation. The City raises eight points on appeal. The first point urges that the City should have again been given a right to amend its complaint. This point does not pre- sent error because the City had once amended its com- plaint and no new tact in relation to the points on appeal was alleged. In addition. the record does not show a tender or a request to amend. The second point urges that the area covered by the yacht hasin is not protected by the Marketable Record Title .Act. even it the act should be held applicable to the remaining area. because the yacht basin was not tilled until 1949. This point does not present error because there is nothing within the act which refers to the physical characteristics of the land. If the legislature had intended to exempt unfilled land, it would have been necessary for the legislature to have provided so. See Sawyer v. Modrall, 2$6 So.2d 610 (Fla. 4th DCA 197:1 : ct. Odom v. Deltona Corporation, 341 So.2d 977 !Fla. 1976). The third point urges that the trial judge im- properly took notice of tact, outside the record and ap- plied these facts to find estoppel or waiver of the City's right;. We do not consider this point because our review of the judgment is based entirely upon the record as it has been presented. The fourth point urges that the "Butler Bill" (the Riparian Rights Act of 1921, Section 271.01, Florida Statutes. which was repealed in 1957) cannot provide an altemative ground for the dismissal of the amended complaint. We do not consider this point in view of our holding herein. The fifth point urges that the Marketable Record Title Act is inapplicable because the 1944 conveyance was a wild or void deed. This point is not sustainable in view of the holding of the Supreme Court of Florida in Marshall v. Hollywood, Inc., 236 So.2d 114 (Fla. 1970). See also Wilson v. Kelley, 226 So.2d 123 (Fla.2d DCA 1969); and Whaley v. Wotring, 225 So.2d 177 (Fla. 1st DCA 1969). The sixth point urges that the City is exempt from the provisions of the Marketable Record Title Act either as a trustee of the public or as an agency of the State. This position is not sustainable in view of the holding of the Supreme Court of Florida in Odom v. Deltona Cor- poration, 341 So.2d 977 (Fla. 1976), where the court held: "It seems logical to this Court that, when the Legislature enacts a Marketable Title Act, as tound at Chapter 712, Florida Statutes. clear- ing any title having been in existence thirty years or more, the state should conform to the same standard as it requires of its citizens; the claims of the Trustees to beds underlying navigable waters previously conveyed are ex- tinguished by the Act. Stability of titles ex- pressly requires that, when lawfully executed land conveyances are made by public officials to private citizens without reservation of public rights in and to the waters located thereon, a change of personnel among elected state of- ficials should not authorize the government to take from the grantee the rights which have been conveyed previously without appropriate justification and compensation. If the state has conveyed property rights which it now needs, these can be reacquired through eminent domain; otherwise. legal estoppel is applicable and bars the Trustees' claim of ownership, sub- ject to rights specifically reserved in such con- veyances." The seventh point urges that the City is exempt from the provisions of the Marketable Record Title Act by the reason of exceptions embodied in the act. The argument is two pronged: (1) the Act intended to preserve governmental use in land; (2) the City's legislative grant was "for municipal purposes only" and, therefore. the grant was a reservation by the State of the public's rights in the filled property. Neither of these arguments presents error in view of the holdings of the Supreme Court in Odom v. Deltona Corporation, 341 So.2d 977 iFla. 1976►, which held the Act applicable to the State's interest in lands. The eighth point is as follows: "Where, as construed and applied, Florida Statute Chapter 712 destroys a constitutionally protected interest. impairs obligations of con- tracts. permits a void deed to form a root of ti- tle. fails to give adequate notice and otherwise deprives a land owner of due process of law, the trial judge erred in holding the act constitutional." App. 8 The trial court did not rule upon the con- stitutionality of the act, but did apply the act as though it were constitutional. We consider the issue to be fun- damental and shall, therefore, treat the question as though raised initially on this appeal. See Palm Beach County v. Green, 179 So.2d 356 (Fla. 1965). In order to expedite the ruling on this question, we will certify this decision to the Supreme Court as one passing upon a question of great public interest. Although the Supreme Court of Florida has not specifically held the Marketable Record Title Act con- stitutional, it has implicitly done so in Marshall v. Hollywood. Inc., 236 So.2d 114 (Fla. 1970); and Odom v. Deltona Corporation, 341 So.2d 977 (Fla. 1976). The Marketable Record Title Act extinguishes claims of thirty years or more which conflict with a record chain of title which is at least that old. The act was passed in 1963 and provided the City with ten and one-half years within which it could assert its claim. In view of the length of time provided and the easy way in which the City could have protected its claim, see Sec- tion 712.05, Florida Statutes (1975), we find no reason to hold that the act was unconstitutionally applied to the City. Cf. Campbell v. Horne, 147 Fla. 52:1, a So.2d 125 t 1941): Mahood v. Bessemer Properties. Inc.. 154 Fla. 710, 18 So.2d 775 (1944); Buck v. Triplett, 159 Fla. 772, :12 So.2d 753 11947); H.K.L. Realty Corporation v. Kirtley. 74 So.2d 876 (Fla. 1954); and in Re Browns Es- tate. 117 So.2d 478 (Fla. 1960). Accordingly, the judgments are affirmed. App. 9 IN THE DISTRICT COURT OF APPEAL OF FLORIDA THIRD DISTRICT .JANUARY TERM, A.D. 1977 TUESDAY, MAY 3, 1977 CITY OF MIAMI, a Florida municipal corporation, Appellant, Vs. ST..JOE PAPER COMPANY, etc., et al., Appellees. CASE NOS. 76-423 76-686 To the Honorable. The Supreme Court of Florida: We hereby certify to the Supreme Court of Florida, under and as provided for in Article V, Section 4 (2) of the Constitution of Florida. as a means of bringing this cause within the jurisdiction of the Supreme Court in event certiorari is applied for. that the decision of this court in this case "passes upon a question "` of great public interest'. whether the Marketable Record Title Act tChapter 712, Florida Statutes) is constitutionally applied when it is held to prevent the claim of a City un- der a statutory land grant from the State of Florida granting the City all of the State's rights to submerged land including waterfront and riparian rights. App. 10 Respectfully submitted, s/ TILLMAN PEARSON Judge s/ ROBERT M. HAVERFIELD Judge s/ RAYMOND G. NATHAN Judge cc: Guy B. Bailey, Jr. Shutts & Bowen Sibley, Giblin, etc. Steel, Hector, etc. Russo, Van Doren & Allen App. 11 IN THE SUPREME COURT OF FLORIDA .IUIX TERM. A.D. 19 S CASE NO.-+1.775 DICA CASE NOS. 76-42:3 76-6Rfi CITY OF \IIAMI. a Florida corporation. Petitioner, ST. .JOE PAPER COMPANY. a Florida corporation: SOCTHEAST PROPERTIES. INC.. a Florida corporation: HU H E. MATHESON. •IR.. individually: and SALLY S. DO\IMERICH. torinerly SALLY S. MATHESON. individually, Respondents. 01,1nlon filed October :1. 197S 1i Cr:e. .... i to the District Court of Appeal. Third . Jr. anti Jesse C. Janes ttt Bailey and F-a . \1:a'- F., rlcia, for Petitioner :.. Shutt and }i,ncen. \liami: and ._ 1.nr li. \lei ers nt Siltie� , ( hiu1. \l:a:r, Bea:h. for Si. Joe Pape! i _ _users P•lr. of Steel. Hector and App Davis, Miami, for Southeast Properties, Inc.; and Ed- mund P. Russo of Russo, Van Doren and Allen. ('oral Gables, for Hugh E. Matheson, Jr., Respondents Nancy G. Linnan. Assistant General Counsel; and .1. Kendrick Tucker, Assistant Attorney General. Tallahassee, for Reubin O'D. Askew, as Governor of the State of Florida, and Robert L. Shevin. as Attorney General of the State of Florida, Amicus Curiae Julian C. Clarkson, John R. Lawson. Jr.. Hume F. Coleman and Chesterfield Smith of Holland and Knight. Tallahassee, for Amicus Curiae J. Richard Harris of Scott, Burk. Royce. Harris and Loucks, Palm Reach, t'or The Florida Bar. Amicus Curiae AI)KINS. J. This cause is bete on petition for writ ut certiorari supported by certificate of the District Court otAppeal. Third District. that its decision reported in :t.l 7 (12.2 is one which involves a question of great public in- terest. We have jurisdiction. See Florida Constitution. Article V., Section 3(b) (3). Petitioner has attacked the constitutionality of Florida Statutes. Chapter 7 12. the Marketable Record Title Act. Also involved in this case is the question ul whether an interloping or wild deed could constitute a root of title. Petitioner, hereinafter referred to as the city. tiled a complaint to quiet its title to a tract of land on the north App. 13 011111110111.10110 side ot the Miami River at or near the river's entrance Upon motion, eared into Biscayne Bay. p` ground that it appeared u plain "•a= dismissed on the tc-hat the city's claim was :a,e„ithecomp barredon .r .7.� barred ,�� -:;e Marketable Record Title tedt. The the folistrict lowing Cur , 1 Appeal. In its opinion, ' complaint: t^ it'e. as described in the city s history ' �. e ' In =4 . the State of Florida acquired trom the United States the lands under navigable waters. ember ..2 B, Warranty Deed recorded conveyed the 15. iS9S. Henry M. Flaglerto the Florida East Coast Hotel the Miami River and ons ��f the mainland adjacent to Biscayne Bay: 'containing fourteen acres, more or less, together with all and singular the riparian rights and submerged lands appertaining thereto. "3 By a special act of the Florida Legislature on June:.. 1919. the State of Florida granted to the City of Miami 'for municipal purposesto all only. all its rights, title and interest . waterfront and submerged lands, including riparian rights to an area which included the The statutory grant mouth of the Miami Riv�ction: included the following That this grant shall not affect any •• 'Sec. 2. individual other grant heretofore madee� any all be con- strued corporation and nothing riparian owner or strued as depriving rietor of any rights under the laws of this Pro p State.' in 1920, the Florida East Coast .•4. Beginning Hotel Corporation bulkheaded but left a ya r- t Lion of the property In que basin. 10, 1944, the St. Joe Paper "5. On January recorded a Company (one of the defendants) from the Florida East Coast warranty deed Hotel Corporation which conveyed to it all ot the lands with which we are here concerned in- cluding yacht basin which was then in eluding filled and ex- istence. Some time after ba94n. St. Joe bulkheaded the yacht All of the defendants other than St. Joe "6. St. Joe Paper claim under recorded deeds from any subsequent to the 1944 deed to St. ComP Joe Paper Company. e recor "7. On February 3, 1949, St. Jo of the dedda ed a plat (attached to the complaint) oven by the City of This plat was approved 34 i S the ' ' involved. � � at 6:.� Miami prior to recordation. (Fla. 1977). Record Title Act is a comprehen- sive plan for reform in conveyancing o rate to correct certain curative act in that it may Pe App. 15 App. 14 defects which have arisen in the execution of instru- ments in the chain of title. Curative statutes reach back on past events to correct errors or irregularities and to render valid and effective attempted acts which would be otherwise ineffective for the purpose the parties in- tended. They operate to complete a transaction which the parties intended to accomplish but carried out im- perfectly. The Marketable Record Title Act is also a statute of ;itnitat;ons in that it requires stale demands to be aserte(i within a reasonable time after a cause of action accrued. It prescribes a period within which a right may he enn rced. The \larketahle Record Title Act is also a recording act in that it provides tor a simple and easy method by which the owner of an existing old interest may preserve :. I: he tails it, take the step of filing the notice as provided. he has only himself to blame if his interest is ext n_uahed. The legislature did not intend to ar- `':trar1 wipe out old claims and interests without af- rdin_ a means of preserving them and giving a reasonable le period of time within which to take the :1e t- sar} steps to accomplish that purpose. This court in Mahood c. Bessemer Properties. Inc., " ,Fla. 19441. held that the legislature may .egitimatei_y- use a recording statute as a means of getting rid of stale claims. Florida Statutes enacted in 19-11. voided contracts for the purchase of lands which were left by the collapse of the Florida Real Estate boom of the 1920's. Under the terms of the statute. persons who had contracted to purchase land prior to a certain date. but had not placed a deed App. 16 on record or obtained a decree and were not in posses- sion, were declared to have no interest in the land unless they had given notice of their claims by recordation in one of several ways specified and within six months from the adoption of the statute. Catsman, the Marketable Record Title Act and Uniform Title Standards, Volume 3, Florida Real Property Practice (1965) Section 6.2 describes the nature of the act as follows: "The chief purpose of the act is to extinguish stale claims and ancient defects against the ti- tle to real property, and, accordingly, limit the period of search. The act is different from a statute of limitations. In a statute of limita- tions a claim of a vested, present interest is cut off because of the claimant's failure to sue. 1f suit is not filed, the claim is lost. By the Marketable Record Title Act, any claim or in- terest, vested or contingent, present or future, is cut off unless the claimant preserves his claim by filing a notice within a 30-year period. See *6.5. It' a notice is not filed, the claim is lost. The act also goes beyond a curative act. Curative legislation only corrects certain minor or technical defects through the passage of time, whereas under the Marketable Record Title Act, tnost defects or clouds on title beyond the period of 30 years are removed and the purchaser is made secure in his transac- tion. This court, has acknowledged the constitutionality of the act in Marshall v. Hollywood, Inc., 236 So.2d 11•1 App. 17 (Fla. 1970). Odom t Deltona Corporation, 341 Sold 977 Fla. 1976+. We now specifically hold that the Marketable Record Title Act is constitutional. courts of other states have ruled that similar marketable title acts are constitutional. See Wiehelman _'11c.,„ner. :uu (Minn. 1957 t tin depth discus- s:oh oa the .act constitutionality); Tesdell L. Hanes, t+2 I9S7+ ("We are satisfied the ie_isiat:re had ample authority to make a limitation Hec t If hat a reasonable time must !,eh,re it iiec line, et tect ive... ): Lane L. Traveler's Genpan_.. Nt+ N\1 55 . 555 (Iowa 19411 ("lit - le doom. the desirability of statutes giving greater ef- tert and stability to record titles.- ) See also discussion in .ti-ot�_ Con,titutionalit. of Market Title Legislation, 47 Iowa I..Rev. 42,s-29 I1962t. Other decisions by this court upholding the con- st tuti, of similar legislative enactments make it cie:+r that the .act can constitutionally be applied to bar the city's claim. In -'1lahood t. Bessemer Properties, ln_ ,unra. this o curt upheld t constitutionality of the application. to a purchaser under a 1925 contract. of a 1941 act which removed from titles to realty the clouds unperformed nmtracts of record unless suit be hr.,n.ht within six n:,anths. In In Re Estate of Brown, 117 So.2d Fla. 100n. this court held constitutional the application. ti) a claim arising before its passage. ot a 1957 statute which barred claims against an estate atter three _years. In H. K. L. Realty Corporation t. Kirtley. 4 So.2d s't; ( Fla. 1941.5this court upheld the con- stitutionality nt the application of a twenty-year statute of limitations to mortgages on a given date atter one year From such given date on the ground that a reasonable App. 18 time is provided for the enforcement of a cause of action before the restriction becomes effective. See Buck t. Triplett, 32 So.2d 753, 754-55 (Fla. 1947t where the court said: "We are committed to the rule that statutes of this nature [statute of limitation' are good where a reasonable time is allowed to prosecute an asserted right." and Campbell v. Horne, 3 So.2d 125, 126 (Fla. 1941) where the court said: '-The law is well settled by decisions of the Supreme Court of the United States and in other jurisdictions, that statutes of limitation affecting existing rights are not un- constitutional if a reasonable time is given for the enforcement of the right before the bar takes effect." The city contends that the application of the Act to bar its claim violates the due process clause of the Four- teenth Amendment to the Constitution of the United States. Although it is a most important limitation on state action, due process has never been an absolute prohibi- tion against state legislation adversely affecting property rights. It has been held over and over again that general limitations on state action do not ex- tinguish the state's police power to enact legislation "reasonably necessary to secure the health. safety. good order. comfort or general welfare of the community. See Atlantic Coast Line Railroad v. Goldsboro, 232 U.S. 548. 558 0914). App. 19 In determining whether ~fate action violates due process principle,, a court must choose between protecting the individuals guaranteed rights on one hand and the vwelfare of the general pu'r,'ic +,r. the (Aher. This method of deterinining hether o state meets the requirements of clue process is called the i,Qiancing interest test. See & 'Taylor. The Irnpro: ernent t'„nrrranci 1, by Le,/station, The Marketable Record Title .Act. ces:anec t: sirn- +:t: conveyances of real property. ai_ia =ice certainty to land owner-h:1,. i= ce:ta -..• -_ .-:atll�n arernin+, the welfare of the C Quincy Railroad Cr,mpcl.. :0-) 1 1 9n1;1. The city contends. hevwev er. t....: ..._act:ye . .:: ..re .`t the Act makes it an a.. ..._ana .._.. ^.able exercise of power_....c:'._'�e .:...tes have been almost tlIliyersa.._i .......lal when a reasonable time w.. ;77te. .. '^erty interests by complying 1:Olat i/ na Land (':�.. F B ;ti 1 'tit 1 1 ,.,1: lt'ile� . r :: �: - �L ::S901. Vance IU1lce. :Ii� I' S hhus. the con -Iola Tonal A ,latl lie' re'sll,ts :.. is:'.1 .=.. .. .. C—t- pr+a'ess is oh' .i d \ehere t1i st:;!:i;i :\ ES : \\:':r'� iiauns still rnl++rrcahlc at the enactment a reasonable hole to :;The :ir..:... slfrps IC preserve their 111te1e,t, For example. in t unrr l ar;c<. : he ::rn- stituttotl of Louisiana was amenciect -on Apr::. Apt` Al provide that "the tacit mortgages and privileges now existing in the state shall cease to have effect against third persons after the first of January, 1870, unless duly recorded." Despite the retroactive effect of the statute in barring property rights conveyed prior to the enactment of the statute, the court held that the statutory limita- tion affecting those existing rights was constitutional. The court reasoned that such retroactive application was not prohibited by the due process clause of the Fourteenth Amendment because a reasonable time was given for the enforcement of the action before the bar took place. Indeed. in Wichelman t+. Messner, supra, the Min- nesota Marketable Record Title Act was attacked on the very ground that its retroactive features violated due process nt law. In upholding the Minnesota Act as a proper retroactive recording act the Supreme Court of :Minnesota held: "The recordation provisions of the act provide for a simple and easy method by which the owner of an existing old interest may preserve it. It he tails to take the step of filing the notice as provided. he has himself to blame if his in- terest is extinguished. The constitutionality of imposing this duty would seem to have been settled beyond question by the decisions sustaining retroactive recording statutes. Scurlock, Retroactive Legislation Affecting In- terest in Land, Mich. Legal Studies. p. ti'': Klasen v. Thompson. supra..' 8 t N.W.2d at 817. App. 21 111.1111 In determining whether state action violates due process principles, a court must choose between protecting the individuals guaranteed rights on one hand and the welfare of hgeneralhetherublic on the a state meetshhe This method of determining requirements if due process is called the "balancing of Taylor, The Improvement of interest" test. tine :�11IleS & ('once:vancing by Legislation, 255-56 (1960). The Marketable Record Title Act, designed to sim- plify- conveyances of real pr►perty, stabilize titles and give certainty to land ownership. is certainly legislation concerning the welfare of the public. See Chicago Burlington & Quincy Railroad Company v. Illinois, 200 1'.ti. 54i1. 5`)''2 (It)t){i). The cite cuntendhcwe�'ean that rbitrary retroactive nature of the Act makes reasonable exercise of police power. But retroactive statutes have been almost universally declared con- stitutional when a reasonable time was given to protect property interests by complying with the new require- ments.Atchafalaya Land Co. t'. F. B. Williams Cypress Go.. 258 1.8. 2•;4 i 1922): Wheeler e. Jackson, 13; U.S. 247i ►1890►; Vance r. Vance, 10S U.S. 514 (1883). Thus. the constitutional objection that retroactive application of a statute results in a deprivation of due process is obviated where the statute gives owners of old claims still enforceable at the time of the statutory enactment a reasonable time to take certain steps to preserve their interests. For example. in Vance v. Vance, supra, the con- stitution of Louisiana was amended in April, 1868, to provide that "the tacit mortgages and privileges now existing in the state shall cease to have effect against third persons after the first effect �f t'helless statuile►in ly recorded.- Despite the barring property rights conveyed prior to the enactment of the statute, the court held that the statutory limita- tion affecting t hose existing rights was constitutional. The court reasoned that such retroactive application was not prohibited by the due process clause of the Fourteenth Amendment because a reasonable time was given for the enforcement of the action before the bar took place. Indeed. in Wichelman v. Messner, supra, the Min- nesota Marketable Record Title Act was attacked on the very ground that its retroactive features violated due process of law. In recordinguPlolding the act thel Supre►ta Ame Courtcof proper retroactive Minnesota held: ide "The recordation erasv`ions tnethcd byact whurh`the for a simple and preserve owner of an existing old interest may 1n' it. If he fails to take the step of filing the notice as provided. he has himself to blame it his in- terest is extinguished. The constitutionality of imposing this duty would seem to have been settled beyond question by the decisions sustaining retroactive recording statutes. Scurlock. Retroactive Legislation Affecting In- terest in Land, Mich. Legal Studies. p. S'-': Klasen v. Thompson, supra.'" 83 N.W.2d at 817. App. 21 App. 20 Two Iowa cases have similarly. upheld tha validity of the luw•a \larketahle Record Title Act as against the same ,round o1 attack. Te.sde11 r. Hanes, supra; Lane v. Trai•eI r 1n.. Co.. supra. We are not confronted with the question of whether the \larketable 'Record Title Act can be utilized to ,finest the people of the State of Florida of sovereign Lain, livid In public trust for them. This case is nut �Iln;t_il' io !)ills,: 1)e'ituria (',,r orator, :l41 So.2d 977 I rl:ntee> of the Internal Ilnprove- !1lcR: 1' G:1;1 iV l? iii'tn anA Ennt LCc i, aft public conveyed ,er! iin propertie In the case sub judice, the 1.c;islaturc .1:.! no: 'lose control of lands irrevocably +e�tr.l in the tr,i»tces. Trz,stees of Internal Improve- :, 1? .. _,,, Fla. 04,;.:)1 o. 5:;:i t 19101. so the ;rannt to the a- ettecti'e. The validity of Chapter s Spe.;.il A t- ot 1919has been recognized by the I rl,-te'es 't the internal Improvement fund. Trustees of 1•.., 1 :< r Frrid L. Ciaughtun, Sh So.2d TT:), The Spec.a i Act a;ranted to the cite "for municipal onlv' ..., , :tire state'- '.right. title and interest .uso.... a . ':fie same can he g-ranted. to all submerged d: ++:.tertr ont and riparian rights.- The ;fr+:ion tl ^:lie _rant was ..tor municipal purposes was reser\ i:lon or exception. as nothing was >c+ere,: fir= was granted. See City of 1,'7 Fla. .,h 144 So. SSA La:- prox-aton . a restriction on the use 01 the property .tni does not :all within the category of true easements. Set 11.,.,•c : :t , t ...:l, Fla. S79. 10k So. 901. ALE We next consider the question of whether the Marketable Record Title Act applies so as to bar claims of title in the subject property where it was previously held in public trust by the state, but later conveyed to the city. The city contends that certain exceptions in Florida Statutes, Section 712.94, prevent the applica- tion of the Marketable Record Title Act to the city's claim. This statute reads as follows: "Subject to the matters stated in §712.03, such marketable record title shall be free and clear of all estates, interests, claims or charges what- soever, the existence of which depends upon any act, title transaction, event or omission that occurred prior to the effective date of the root of title. All such estates, interests, claims or charges, however denominated, whether such estates, interests, claims or charges are or appear to be held or asserted by a person sui juris or under a disability, whether such person is within or without the state, whether such person is natural or corporate, or is private or governmental, are hereby declared to be null and void, except that this chapter shall not be deemed to affect any right, title or interest of the United States, Florida or any of its officers, boards, commissions or other agencies reserved in the patent or deed by which the United States. Florida or any of its agencies parted with title." (emphasis supplied). The city says that it is an agency of the State of Florida and thereby stands in the place of the state. The language of this section discloses a sharp distinction bet- ween the rights of the state and those of municipalities. App. 23 Under this section a reservation of an "interest in the state" is protected when expressly set forth in a con- vevance from the state. The interest of a municipality is the same as that of any other person and may be ex- tinguished by operation of the Act. The term agency (as contained in this section) does not include municipalities for Section 712.01(11 Florida Statutes, defining terms used in the act, contains the following: "The term 'person' as used herein denotes singular or plural. natural or corporate, private or governmental. including the state and any political subdivision or agency thereof as the context for the use thereof requires or denotes.". The cite- argues that its claim was not barred by the Marketable Record Title Act because the root of title relied on by St. Joe i.e.. the deed to it from Florida East Coast Hotel Corporation ► is a wild deed. St. Joe coun- ters with the argument that Florida East Coast Hotel Corporation acquired title by conveyance from Henry M. Fiagler: therefore. St. Joe's root of title was not a wild deed. St..Joe relies upon Marshall t'. Hollywood, Inc . aipra. where Atlantic Beach Corporation, with Marshall as majority stockholder. acquired title to the real property :n controversy in 1913. In 1924 a forged deed purported to convey the same property to deten- dant .s predecessors. The defendant. Hollywood. Inc.. claimed under a 'r*=; deed. The disputed land had remained wild. unimproved. and vacant. It was held that the trial court properly dismissed the complaint. Although the deed initiating the chain of title under which defendant claimed was forged and void. this deed formed but one link in the chain predating the effective root of title. The District Court of Appeal (Marshall c. App. 24 Hollywood, Inc., supra,) affirmed the judgment dismiss- ing the complaint with prejudice and certified its deci- sion to this court as being one which passed upon a ques- tion of great public interest. We approved the decision of the District Court of Appeal, saying: ". . . Claims arising out of transactions, whether based upon forgeries or not, predating the effective roots of title are extinguished by operation of the Act unless claimants can come in under any of the specified exceptions to the Act. In this case, petitioner fails to qualify un- der any of the exceptions to the Act, and, therefore, petitioner's claims are barred. "4. The certified question involved in this cause was, in effect, whether the Marketable Record Titles to Real Property Act, Ch. 712, F.S. confers marketability to a chain of title arising out of a forged or wild deed, so long as the strict requirements of the Act are met. This question is answered in the affirmative." Marshall v. Hollywood, Inc., 236 So2d 114, 120. In Whaley v. Wotring, 220 So.2d 177 (Fla. 1st DCA 1969), plaintiff's chain of title was based on his predecessor's 1908 deed, while defendant's root of title was a land patent issued in 1897. The court applied the Marketable Record Title Act and held that the paten- tee's heirs were precluded from asserting whatever claim, if any, they had under the 1897 land patent, since the 1908 deed in plaintiff's chain of title had been on record for more than thirty years. The court in its opinion said: App. 25 "The purpose of Chapter 712, Florida Statutes, F.S.A.. the Marketable Record Title Act, is to render marketable any estate in land recorded for thirty years or more and to make same free and clear of any interest arising from a title transaction. act. event, or omission which oc- curred prior to the effective date of the root of title. 'Root of Title' is defined as the last title transaction recorded at least thirty years. All interest arising prior to root of title is declared null and void unless such interest falls within one of those classes specifically excepted. By legislative declaration this act is to be liberally construed to effect the purpose of simplifying and facilitating land title transactions by allowing persons to rely upon a deed recorded tor a period of thirty years or more. The Act contains a provision for protecting those claims which it would extinguish." 220 So.2d at 181. In llilson t . 11e11e . , 226 So.2d 123 (Fla. 2d DCA 1969). the plaintiffs contended that an instrument could not qualify as a root of title within the contemplation of the Act unless it constitutes part of the chain of title emanating from the sovereign. In rejecting this conten- tion the court said: ". . To hold as suggested by plaintiffs would frustrate the Act's intended beneficial effects. and the Act's utility would largely be confined to the elimination of ancient use restrictions and to the curing of formal irregularities, a function already performed by other statutes and usually more quickly than the marketable title act. App. 26 "The Act, as a marketable title act, is not con- cerned with the quality of the title conveyed by the root of title so long as the root purports to convey the estate claimed. This can be so even though a deed is not part of the chain of title emanating from the sovereign and is therefore often called an `interloping' or `wild' deed. It can, under the marketable title acts, form a root of title which may eventually cut off the interest of a person who might otherwise have a claim. Therefore, a marketable title act can cure a break in the chain of title, if the break is sufficiently old." 226 So.2d at 127. Unquestionably the deed from Flagler to Florida East Coast Hotel Corporation was a wild deed. The ef- fective root of title was the deed from Florida East Coast Hotel Corporation to St. Joe Paper Company on .January 10, 1944, and the wild deed was merely a link in a chain commencing before the effective root of title. The claim of the city would be barred under the reason- ing in Marshall v. Hollywood, Inc., supra. However, the city says that Florida East Coast Hotel Corporation did not have title to the submerged lands. The city argues that the conveyance of 14 acres "together with all and singular, the riparian rights and submerged lands appertaining thereto" was ineffective so that Florida East Coast Hotel Corporation held record title to nothing more than the initial 14 acres. To say otherwise, the city contends, would result in Florida East Coast Hotel Corporation holding title by a wild deed to the Atlantic Ocean bottom. St. Joe contends that this is immaterial, for the deed from Florida East Coast Hotel Corporation to St. Joe on January 10, 1944, App. 27 of title even though this con- _ ,..;-_.:fed as a wild deed. Florida East _ u riulkheaded and filled a por- -_ -_:est:c.n in 1920. but left a yacht - _ ' _.e conveyed all of the lands in- __ an: a_:er _ _;;. . e filled and hulkheaded the _... _ `•;.-= e ed t_ hold. without equivoca- -- --. - a - deed --.ay ci,nstitute a root of title. We T..- y a wild deed is void and passes t • e_-__ . ne land. This being so, the _na: a .__ cec cannot be the foundation -e=-=:e :-_. _ .c :all under the protection _rat the Act requires that :ne-e _ _ _ _ - _: -::.e ;vr.:c:t involves a "title transac- s :: :_ _ .; defined by Florida as one which affects title. Tne c.:: -:en;; : ;v:.c deed does not affect title. ; .ve = _ .::e F.rst. Second and Fourth D_:r_=: _ . ins _: =:t - _.a;-e made :, clear that the \`- .. -._ =c_ .:: A.:-. devates _. _.m common law nave said that a wild ,etc. rev _ rced. may establish a new __- __.: :: ;_.c_ years. lfarsha . r. i5_.. /cc.. , F:_ __-- r :ec:eci.re argument that only a valid ziee.ci c _ ac: a_ a .: - ::: t:t:e. In this decision the term. .c•_t :. title ,r__ -_t:e transaction" were con- strued as fc::ows: . . It should be obvious that the deed 'pur- ports' to create or transfer an estate. Purport is defined in Webster's 3d New International Dic- tionary unabridged (1962), as 'profess out- wardly: have the often specious appearance of being.' Certainly the Legislature intended the word 'purport' to have its accepted meaning. The 1937 deed meets that meaning. "The deed `affects title' and, in turn, is a title transaction as those terms have been construed in Florida. In Marshall v. Hollywood, Inc., 224 So.2d 743 (Fla. 4th DCA 1969), the Fourth Dis- trict Court, speaking through Judge Reed, stated at page 749: 'The word "affecting" as it is used in the second sentence of Section 712.02 in the clause "affecting the title to the land" does not carry the narrow meaning of "changing or altering". The word is used in the broader sense meaning "concerning" or "producing an effect upon". In this broad sense, even a void instrument of record "affects" land titles by casting a cloud or doubt thereon. Clements v. Henderson, 1915. 70 Fla. 260, 70 So. 439; Brown v. Solary, 1896, 37 Fla. 102, 19 So. 161'." 346 So.2d at 1010. In this case it appeared that Wadsworth, Sr., died in 1930 possessed of homestead property and survived by his widow and four children. The statute governing the descent of homestead provided that the surviving spouse would receive a life estate in the homestead App. 29 property subject to vested remainders in any children. In 1937 Mrs. Wadsworth, the surviving spouse, executed a deed conveying the entire tee simple to herself and her son as tenants in common. In 1942 Mrs. Wadsworth and her son conveyed the property to Rayonier. Rayonier claimed a Marketable Record Title free and clear of the children's vested remainder since that interest arose prior to the 19:37 root of title. The children argued that Florida Statutes, Section 712.03(1) preserves estates, interests, easements, and use restrictions disclosed by and defects inherent in the muniments of title on which the estate is based, begin- ning with the root of title. The children said that this statute preserved their interest because the 1937 deed had two inherent defects: 1) it conveyed their remainder interest and, 2) it conveyed property from Mrs. Wadsworth to herself. These arguments were rejected because the term "defects inherent in the muniments of title" do not refer to defects or failures in the transmis- sion of title, but refer to defects in the makeup or con- stitution of the deed on which the transmission of title depends. The children's arguments were geared to defects in the transmission and there was nothing on the face of the deed to indicate that it conveyed the children's remainder interest, so those interests were not saved from extinguishment. The 1944 deed to St. Joe purported to create an es- tate and qualified as a "root of title." The city gains no help from the provisions of Florida Statutes, Section 712.03111 because there was nothing on the face of the deed to indicate that it conveyed any interest of the city. This court made it clear that Florida Statutes, Section 712.03(1) refers only to defects in the makeup of the deed when we said: App. 30 "Section 712.03, Florida Statutes, provides that marketable record title will not extinguish six categories of rights that predate the root of title. The first of them, found in subsection (1), is `estates or interests, easements and use restrictions disclosed by and defects inherent in the muniments of title on which said estate is based beginning with the root of title.' The children argue that their remainder interests are within the first category because the 1937 deed has two inherent defects: (1) it conveyed their remainder interests and (2) it conveyed property from Lotta to herself. The phrasing of their argument shows a misunderstanding of the statute. As the Fourth District Court of Ap- peal stated in Marshall: "The terms `defects inherent in the muni- ments of title' do not refer to defects or failures in the transmission of title, as the plaintiffs argument suggests, but refer to defects in the make up or constitution of the deed or other muniments of title on which such transmission depends." 224 So.2d at 751. "The face of the deed does not reflect the defect of a conveyance from Lotta to herself." ITT Rayonier, Inc., u. Wadsworth, supra, at 1010. The 1944 deed to St. Joe does not reflect that it was a wild deed nor does it appear that there is any defect in the makeup of the deed. This wild deed may properly constitute a "root of title." App. 31 The city also implies that the Marketable Record Title Act operates as a means whereby people can steal land. Florida Statutes, Section 712.03(6) excepts the rights of any person in whose name the land has been assessed on county tax rolls for a period of three years. This section of the statute requires that owners of land pay their taxes and by doing so. would stop any party from pirating their land. Moreover. an interest in land can be preserved by any party by tiling a notice within the ao-year period subsequent to the root of title in ac- cordance with Section 712.05. Florida Statutes. The court in [Wilson L. Kelly, supra, also noted the safeguards which would prevent an interloping deed from cutting off another person's deserving interest in favor of an underserving person. In this case the court said: "For those who are concerned with the likelihood that the Act will allow an interloping deed to cut oft another person's deserving in- terest in favor of an undeserving person, there are safeguards in the Act to prevent this from happening. A claimant will not be cut off if he has been a party to any title transaction re- corded within a period of not less than thirty years or if he files a simple notice prescribed by the Act during the time allowed for this pur- pose. He will not be cut off if he remains in possession or if the land is assessed to him on the tax roll. Even if it is no longer assessed to him he is protected if it was assessed to him at any time during the preceding three years. But if he has been a party to no title transaction recorded for at least thirty years during which App. 32 time he has also failed to file the notice, and if for more than three years he has allowed the land to be assessed for taxation to someone else, and if neither he nor any person claiming under him is in possession of the land, it would nut seem unjust that his claim should be subor- dinate to another person's claim that is based upon a chain of title going back to an instru- ment or court proceeding that has been re- corded at least thirty years, and that 'purports to create or transfer the estate' claimed by the second person. In the public interest of sim- plifying and facilitating land title transactions. it does not seem unreasonable for the legislature to create a presumption that one who is negligent in claiming his land has aban- doned his claim." 226 So.2d at 127. In summary we point out that the question of whether the Marketable Record Title Act can be utilized to divest the state of sovereign land is not con- sidered. as it is not an issue in the case. By this opinion we hold: 1) The Marketable Record Title Act is constitutional; 21 The city is not an agency of the state and does not stand in the place of the state in the application of the provisions of the Marketable Record Title Act; 31 A wild or interloping deed may constitute a root of title. App. 33 The decision of the District Court of Appeal, as well as the opinion expressing the views of the court, are ap- proved. The writ of certiorari is discharged. ENGLAND. C.J.. BOYD, OVERTON, SUNDBERG, HATCHETT and ALDERMAN. JJ.. Concur IN THE SUPREME COURT OF FLORIDA THURSDAY. DECEMBER 14, 1978 CASE NO. 51.775 District Court of Appeal, Third District 7 6-423 76-686 CITY OF MIAMI, etc., Petitioner, V. ST..IOE PAPER COMPANY. etc., et al., Respondents. Petitioner's Motion to Accept October 25th Filing is granted and upon consideration of the Motion for Rehearing and for Consideration of Constitutional Provisions and a Point of Law Not Dealt with by Courts October 5. 1978 Ruling filed by attorney for Petitioner, IT IS FURTHER ordered by the Court that said motion be and the same is hereby denied. App. 34 IN THE SUPREME COURT OF FLORIDA CASE NO. 51,775 CITY OF MIAMI, a Florida municipal corporation, Petitioner, V8. ST. JOE PAPER COMPANY, etc., et al., Respondents. NOTICE OF APPEAL TO THE SUPREME COURT OF THE UNITED STATES Notice is hereby given that City of Miami, the petitioner above -named, appeals to the Supreme Court of the United States from the final judgment of the Supreme Court of the State of Florida, upholding the dismissal of the complaint, entered in this action on Oc- tober 5, 1978, rehearing denied, December 14, 1978. This appeal is taken pursuant to 28 U.S.C. §1257(2). GUY B=BAILEY, JR. Suite 1820, One Biscayne Tower Two South Biscayne Boulevard Miami, Florida 33131 (305) 374-5505 CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 12th day of March, 1979, a copy of the above and foregoing Notice of Appeal to the Supreme Court of the United States was mailed, postage prepaid, to Shutts and Bowen, 1000 Southeast First National Bank Building, Miami, Florida 33131; Sibley, Giblin, Levenson & Ward, 1301 Dade Boulevard, Miami Beach, Florida 33139; Steel, Hector and Davis, 1400 Southeast First National Bank Building, Miami, Florida 33131; and Russo, Van Doren and Allen. P.A., 4685 Ponce de Leon Boulevard, Coral Gables, Florida 33146. I further certify that all parties required to be served have been served. GUY B. BAILEY, JR. Counsel for Petitioner App. 36 CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 13th day of March, 1979, a copy of the above and foregoing Ap- pellant's Jurisdictional Statement was mailed, postage prepaid, to Shutts and Bowen, 1000 Southeast First National Bank Building, Miami, Florida 33131; Sibley, Giblin, Levenson & Ward, 1301 Dade Boulevard, Miami Beach, Florida 33139; Steel, Hector and Davis, 1400 Southeast First National Bank Building, Miami, Florida 33131; and Russo, Van Doren and Allen, P.A., 4685 Ponce de Leon Boulevard, Coral Gables, Florida 33146. I further certify that all parties required to be served have been served. Counsel for Appellant App. 37