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Florida Keys News
Wednesday, July 3, 2013
Wisteria Island case proceeds

The case of who owns Wisteria Island will go to trial, or at least to an evidentiary hearing, as a federal judge has ruled against dismissing it.

The Bureau of Land Management ruled in 2012 that the federal government, not F.E.B. Corp., owns the island in Key West Harbor. The federal government says it never deeded the 22-acre island over to the state, which in turn sold it to the first private owner, the late state Rep. Bernie Papy.

F.E.B. executives have maintained that F.E.B. Corp. owns the island, and sued the federal government.

The federal government had asked Judge Jose Martinez to dismiss the case, saying the court did not have jurisdiction and that the statute of limitations to claim ownership had expired.

But Martinez ruled that there was a "dispute to the title of the island" and "dismissal at this time is not appropriate."

"F.E.B. Corp. is pleased with this ruling," F.E.B. Corp. President Roger Bernstein said. "It validates our decision to file a federal Quiet Title Action to clear the title cloud on the property."

Attorneys on both sides will go back before Martinez on July 11 to discuss how to proceed, Bernstein said.

It was unclear when there would be an evidentiary hearing, at which the attorneys would present their cases on why their respective client was entitled to the island.

The case involves researching historical records that date back to the early 1800s. The island was made mostly from fill from the dredging of the Key West shipping channel, but it was built on an existing shoal, the U.S. government says.

That shoal was deeded to the government under an 1819 treaty with Spain, government attorney Anthony Erickson-Pogorzelski said.

An important document in the case is a Sept. 27, 1951, letter from then-Florida Attorney General Richard Ervin.

The letter shows that Papy and his agent, Paul Sawyer, were aware that the military was still claiming ownership of the island when Papy bought it from the state.

The government's attorney has continually cited Ervin's letter.

When Papy was trying to buy the island from the state of Florida, Ervin questioned whether the Navy or any other federal agency had deeded the land to the state, or whether the state was selling something it didn't actually own.

At the time, the Navy was still claiming ownership, but the state sold the property anyway.

Papy was never granted a warranty deed, which guarantees clear title with a right to sell, Erickson-Pogorzelski wrote in his request for Martinez to dismiss the case.

Papy received the equivalent of a quit claim deed, which contains no title covenant and offers no warranty as to the status of the title.

"Plaintiff's claim is totally foreclosed, and this case must be dismissed with prejudice," Erickson-Pogorzelski wrote.

"It is incongruous to argue (as plaintiff is nonetheless attempting to do) that the United States' 1951 claim of interest is somehow moot when it is the same claim made today."

tohara@keysnews.com

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