Sovereignty Lands in Florida: It’s All About Navigability (Part I)
Controversies involving the ownership of so-called “sovereignty lands” lying below or adjacent to our nation’s waterways have been raging for as long as our country has existed. They have involved issues ranging from border disputes between states to fishing rights in remote tributaries, and from the right to exploit subsurface minerals to building piers and bulkheads.
At issue in every case is the question of where the line is drawn between adjoining ownerships. While the combatants may be private citizens as in Lee v. Williams, 711 So. 2d 57 (Fla. 5th DCA 1998), rev. denied, 722 So. 2d 193 (Fla. 1998), which will be analyzed later, the battle in Florida ultimately becomes one between a private riparian landowner whose recorded title overlaps the nonrecorded interest of the state claimed by virtue of its sovereignty and the trustees of the Internal Improvement Trust Fund which holds sovereignty lands in trust for the people of Florida.
In one corner stands the private landowner (sometimes an individual, but due to the high cost of litigating such disputes, more often a corporation or private interest group) arguing that he has paid for, occupied, used, and been taxed on all the lands described in his deed. In the other corner stands the state, a formidable opponent in its own right, which is supported by a host of “seconds” including public and private environmental groups and the public at large for whose benefit the state maintains its interest.
It is the purpose of this article to examine the historical development of the sovereignty lands controversy in Florida. Statutory and case law will be reviewed and an analysis of various commentaries is included in an effort to illuminate both the consistencies and divergences of opinion as to what the law is or should be, and the issues raised in sovereignty lands disputes that have provoked such commentary. Focusing on the navigability issue, particular emphasis will be given to the U.S. Supreme Court decision in Phillips Petroleum Co. v. Mississippi, 484 U.S. 469 (1988), and the Florida case of Lee v. Williams.
Historic Development of Florida Law
• State Constitution and Statutory Law
An analysis of the law as it applies to any issue in any state must begin with the basics: constitutional and statutory law. In Florida, the state constitution addresses the issue of sovereignty lands in Article X, §11 where it states: “The title to lands under navigable waters, within the boundaries of the state, which have not been alienated, including beaches below mean high water lines, is held by the state , by virtue of its sovereignty in trust for all the people. ”1 This constitutional provision establishes what the state owns by virtue of its sovereignty, “lands under navigable waters,” and for what purpose these lands are held “in trust for all the people.” Title to these lands,2 as well as administration, management, and control, is vested in the Board of Trustees of the Internal Improvement Trust Fund.3
These sovereignty lands are excepted from the Marketable Record Title Act4 and are thus not subject to being extinguished by provisions of the act which might otherwise negate an interest for which no recorded evidence of ownership appears in the past 30 years. Further, sovereignty lands, like all other state lands, are not subject to adverse possession.5
• Selected Cases: 1859–1986
With its multitude of rivers, lakes, and streams, it is no surprise that Florida has had its share of disputes between riparian landowners (both private versus private owner and private versus state) wherein the issue of sovereignty lands was the focal point. Following is a review of some of the most often cited cases on this issue.
1) Geiger v. Filor (1859 ). In addressing a dispute involving the construction of a city wharf, the Florida Supreme Court in 1859 acknowledged the state’s ownership of sovereignty lands when it decided Geiger v. Filor, 8 Fla. 325 (1859). Citing the U.S. Supreme Court’s decision in the 1845 Alabama case of Pollard v. Hagan, 44 U.S. 212 (1845), the Florida court stated: “On the change of government which took place by the treaty of Spain transferring Florida to the United States, and afterwards on the assumption by the people of a state government, the right to the shores of navigable waters and the soils under them enured, first to the General Government and then to the State.”6
Since the Filor decision, the Florida Supreme Court has been called upon on numerous occasions to address and attempt to define this ownership of the state which is as illusory in its application as it is settled in its legal existence.
2 ) State v. Black River Phosphate (1893). In State v. Black River Phosphate, 13 So. 640 (Fla. 1893),
the court was confronted with the issue of ascertaining the character of the title of the state to lands under navigable waters.7 The Black River Phosphate Company was taking phosphate from the bed of Black Creek which was both tidal and navigable-in-fact.8 Black River’s claim to the land was based on The Riparian Act of 1856 (Sections 454, 455 Revised Statutes) which granted “title” to riparian owners, giving them the right to build wharves into the waters of the state.9
Stating that the Riparian Act must be strictly construed in favor of the state or public, the court held that nothing passed to the riparian owners that was not denoted in clear and special words.10 The purpose of the act was found in the words “full right and privilege to build wharves,”11 and there was no intention that the general rights of the public be impaired.
The significance of this case is that the court, citing U.S. Supreme Court cases as authority, concluded that the navigable waters of the state and the soil beneath them are the property of the state held for the use and enjoyment by all the people of the state, and the government as fiduciary is limited in its powers by the real nature and purposes of the tenure of the same.12
3) Ellis v. Gerbing (1908). In 1908, in Ellis v. Gerbing, 47 So. 353 (1908), the court further defined sovereignty lands by distinguishing them from swamp and overflowed lands which were conveyed to the state by the federal government in 1845.13 These swamp and overflowed lands were then given by the Florida Legislature to the Internal Improvement Fund (later becoming the Trustees of the Internal Improvement Trust Fund) which subsequently sold them to private individuals.14
Gustav Gerbing, claiming title by way of a swamp and overflowed lands deed from the Trustees of the Internal Improvement Trust Fund to Samuel A. Swann, staked off a portion of the Amelia River (between the high and low water mark) for his private oyster beds.15 His exclusion of the public from the staked area precipitated a lawsuit brought by the state ex rel Ellis. In upholding the state’s claim, the court described sovereignty lands as those that are covered and uncovered by the ordinary daily tides of public navigable waters, distinguishing them from swamp lands (those requiring drainage to dispose of needless water to make them fit for useful cultivation) and overflowed lands (those covered by nonnavigable waters or subject to periodic overflows of water, salt or fresh but not including lands between high and low water marks of navigable streams or bodies of water, nor lands covered and uncovered by the ordinary daily ebb and flow of normal tides of navigable waters).16
The significance of this decision, at least as one commentator sees it, is that it establishes tidelands not immediately bordering upon navigable waters as nonsovereign, not subject to the trust doctrine, and susceptible to private ownership.17
4) Broward v. Mabry (1909). “Where a stream or body of water is permanent in character and in its ordinary natural state is in fact navigable for useful purposes, and is of sufficient size and so situated and conditioned that it may be used for purposes common to the public in the locality where it is located, such water may be regarded as being of a public character and the title to the land thereunder. . . is held by the state in its sovereign capacity. . . . ” So said the court in Broward v. Mabry, 50 So. 826 (1909), when title to lands underlying Lake Jackson were in dispute.
In this case, the successors in interest to an owner of lots located in fractionalized sections adjoining and including Lake Jackson, which were acquired by patent from the U.S. Government without reservation as to the submerged lands in front thereof, discovered that the state also claimed ownership of the lake via the Swamp Land Grant Act of Congress of 1850.18 Believing the state was about to sell the lands, Mabry sought to enjoin such sale and remove the cloud from his title.19
The parties to the action were in agreement regarding the character of Lake Jackson. It was described as a body of water that at mean water is two feet deep or less except in a few basins of eight to 10 feet in depth; covered with water grasses, except in the basins; ordinarily capable of navigation by flat bottom boats drawing less than six inches of water; subject to being periodically dry (except in the basins) due to underground drainage and at such times suitable for the growing of crops; and, primarily suitable for grazing of cattle, fishing, and fowling.20
Having these facts before it, the court held that despite the lake’s shallowness and its periodic dryness, its overall character is such that the “waters may be regarded as being of a public character useful in ordinary conditions for purposes of navigation, fishing, bathing and other lawful purposes,” and therefore held by the state in trust for the people.21
The terms “in its ordinary state” and “useful purposes” seem most significant here. However, one statement of the court raises a question as to the apparent requirement that the “purposes” be public. In describing the lake’s utility, it was stated that the waters were “useful to numerous riparian owners, if not the general public.”22 Could this mean that, had the riparian ownership been unitary, the outcome might have been different?23
5) Clement v. Watson (1912). In 1912, the Florida Supreme Court handed down one of its most often cited opinions regarding sovereignty lands, particularly those affected by the tides— Clement v. Watson, 58 So. 25 (1912). The surprisingly short opinion written by Chief Justice Whitfield grew out of a dispute between Waldo Clement and Thomas Watson. The suit brought by Clement was for damages resulting from an assault by Watson, who sought to exclude Clement from fishing in waters which Watson’s wife claimed to own.24
The title to the lands claimed by Mrs. Watson included a cove surrounded by other lands she owned, except at the mouth of the cove which joined the New River Sound.25 The cove was characterized as having a mouth about 300 feet wide with a sandbar extending across the mouth.26 At low tide the sand bar was “almost bare” and the waters in the cove were “very shallow and not useful for the public purpose of navigation.”27 Watson’s predecessor in title had dredged a channel of approximately 16 feet in width so as to make the cove accessible to the sound.28
Citing its prior decisions in Ellis v. Gerbing and Broward v. Mabry as well as decisions from Alabama, South Carolina, Massachusetts, and Connecticut, the court clarified its stance with regard to state ownership of the beds of water bodies, declaring:
The shore of navigable waters which the sovereign holds for public uses is the land that borders on navigable waters and lies between ordinary high and ordinary low water mark. This does not include lands that do not immediately border on the navigable waters, and that are covered by water not capable of navigation for public purposes, such as mud flats, shallow inlets, and lowlands covered more or less by water permanently or at intervals, where the waters thereon are not in their ordinary state useful for public navigation. Lands not covered by navigable waters and not included in the shore space between ordinary high and low water marks immediately bordering on navigable waters are the subjects of private ownership, at least when the public rights of navigation, etc., are not thereby unlawfully impaired.29
The court further stated that the fact that a part of the cove was made navigable by artificial means did not render it public property since navigability occurred after the land was in private ownership.30 Also, in what will later be shown to be perhaps the court’s most important statement, Judge Whitfield wrote, “[w]aters are not under our law regarded as navigable merely because they are affected by the tides.”31
6) Trustees of the Internal Improvement Trust Fund v. Wakulla Silver Springs Co. (1978). The issue of navigability of tidally influenced waters surfaced again in the 1978 case of The Florida Board of Trustees of the Internal Improvement Trust Fund v. Wakulla Silver Springs Company, 362 So. 2d 706 (Fla. 3d DCA 1978). Here, the dispute was over the location of a boundary line in a swamp and overflowed lands conveyance where the state described the lands being conveyed in accordance with a U.S. survey of 1872, which meandered the coastline,32 and specified the acreage being conveyed as that landward of the meander.33
Being careful to state that a meander line is not a boundary but may be where so intended,34 and “the court does not hold that the parties. . . intended the meander line to be a boundary line.”35 The court, nevertheless, held that the meander line was the boundary based on the evidence presented, it being “the only boundary line available to the court.”36
While the ultimate decision in this case rested more on the state’s intent as expressed in the language of the deed and the fact that the state failed to identify a mean high water line, the issue of navigability was addressed in response to Wakulla’s argument that Rock Harbor inlet and Rock Harbor are not navigable and thus not subject to mean high water rules.37 On this issue, the court cited Lopez v. Smith,
109 So. 2d 176 (Fla. 2d DCA 1959), and City of Tarpon Springs v. Smith, 88 So. 613 (1921), for the principles that waters are not considered navigable simply because they are affected by tides, and that nonnavigable waters adjacent to a shoreline are not held by the state below the mean high water line.38
Noting that, except where channels had been dredged, the harbor and inlet were between one-half and one foot deep, the harbor and inlet were determined to be inaccessible not only for commercial purposes, but also inaccessible to small shallow-draft pleasure boats.39 Citing Clement v. Watson, the court stated that “[i]n Florida, the subsequent dredging of a navigable channel across a nonnavigable body of water does not render that body of water navigable,” and found that both Rock Harbor inlet and basin, although subject to the rise and fall of the tide, are nonnavigable bodies of water.40
7) Coastal Petroleum v. American Cyanamid Company (1986). Any study of sovereignty lands in Florida would be incomplete without at least a passing reference to the 1986 decision rendered in Coastal Petroleum Company v. American Cyanamid Company, 492 So. 2d 339 (Fla. 1986). Even though it does not address the central issue of this paper (navigability), it provides perhaps the best statement of the law as it pertains to the nature, purpose, and strength of the state’s claim to lands lying beneath navigable waters.
This Florida Supreme Court opinion is a consolidation of three cases involving disputes regarding title to swamp and overflowed lands. In each case, title to swamp and overflowed lands was conveyed to private owners by the Board of Trustees of the Internal Improvement Trust Fund. The lands included beds of navigable waters but the deeds contained no reservation to the grantor or other reference to these “sovereign” portions of the property described.41
It was held that the 1883 Swamp and Overflowed Lands Deeds issued by the trustees do not include sovereignty lands below the ordinary high-water mark of navigable waters, that neither legal estoppel nor estoppel by deed apply to the 1883 swamp and overflowed deeds, and the Marketable Record Title Act does not operate to divest the trustees of title to sovereignty lands.42 In so holding, the court concluded that sovereignty lands acquired by the states upon entering the Union and swamp and overflowed lands acquired from Congress in the 1850s, are two very distinct ownerships in which the trustees have different capacities for disposition.43
At the time title to swamp and overflowed lands was vested in the trustees, title to sovereignty lands remained in the legislature as a public trust.44 When sovereignty lands were subsequently assigned to the trustees, “their authority to dispose of the land was rigidly circumscribed by court decisions and was separate and distinct from their authority to dispose of swamp and overflowed lands.”45 The distinction is that sovereignty lands are for public use, not for the purpose of sale or conversion into other values, or reduction into several or individual ownership.46
Coastal Petroleum has often been cited for its powerful statement as to the tenacious hold the state has on sovereignty lands. What seems to be commonly overlooked, however, is that this opinion, like its predecessors, still “limits” the state’s title to lands beneath navigable waters for public use.47
• Summary of the Law from Case Law Analysis
Restating the holdings of the selected cases, the law in Florida seems to be that the state, upon entering the Union, acquired the “shores of navigable waters and the soils under them”48 and holds these lands for the use and enjoyment of its citizens.49 Sovereignty lands are those underlying water bodies which are navigable for useful public purposes50 and do not include “lands that do not immediately border on navigable waters,”51 nor are they considered navigable simply because they are affected by the tides.52
The state’s ownership of sovereignty lands is not extinguishable by legal or equitable estoppel nor by operation of the Marketable Record Title Act.53 Sovereignty lands are not for sale or conversion and can only be disposed of by a specific grant under circumstances where the public use is not impaired.54
The Commentators: Post Coastal Petroleum
• Jacobs & Fields (1986)
In their 1986 article , Sovereignty Lands in Florida: Lost in a Swamp of Ambiguity,55 Joseph W. Jacobs and Alan B. Fields traced the historical development of Florida land titles. They made note of the “zone of ambiguity” resulting from the fact that sovereignty lands are not described by metes and bounds, making the line between private and public ownership indeterminable by title searches.56
Coming on the heels of Coastal Petroleum, the article points out that while “navigability is the threshold issue,”57 The test is whether a water body was navigable-in-fact on March 3, 1845.58 This test presents obvious problems since there is no one who can step forward and testify to which bodies of water were or were not navigable in 1845. Thus, disputes over sovereign boundaries come down to which of the litigants has the more convincing historical evidence or, worse yet, who has the most convincing expert witness.
Finding the present method of sovereignty lands identification (judicial determination on a case-by-case basis) as being cost prohibitive, overburdensome on the court system, and having the likelihood of resulting in inconsistent decisions, the authors suggest two other possible methods of resolving the problem: an executive solution or legislative action.59 Rejecting any executive solution which would require a determination of navigability, location of the boundary line, and issuance of deeds to riparian landowners in order to clear their titles, Jacobs and Fields state that “[p]remised on the supposition that the Coastal decision leaves the law and land titles in an undesirable state,” the solution is logically in the hands of the legislature.60 Accordingly, the article offers a proposed bill that would define the boundary between sovereignty and privately held lands.61
• Hamann & Wade (1990)
Ordinary High Water Line Determinations: Legal Issues,62 by Richard Hamann and Jeff Wade, states as its purpose, “to assist practitioners in interpreting the law of ordinary high water line determinations ( i.e., nontidal waters).”63 It is included in this article for its references to the public trust doctrine and statement of the general rule of law with regard to state ownership of sovereignty lands.
Hamann and Wade state that “[u]nder the public trust doctrine, the State of Florida gained title to the beds of navigable lakes, streams and tidal waters upon admission to the Union in 1845.”64 They state that “in general terms. . . the public trust doctrine vested the state with ownership of the beds of tidal waters below the mean high water line, and of nontidal, navigable waters, below the ordinary high water line.”65 They also observe that “[a]s public support for environmental protection has grown, elected officials have steadily increased the protection given to publicly owned submerged lands.”66
Noting that Florida courts have recognized navigation, commerce, fishing, and bathing as protected public interests, the authors suggest that the “evolving public trust doctrine” offers greater protection of the public’s interest in submerged lands.67 The California case of Marks v. Whitney, 491 P.2d 374 (Cal. 1971),
is cited as an example of another jurisdiction’s expansion of the scope of the public trust doctrine.68 In this case, the California Supreme Court stated, “[t]here is a growing public recognition that one of the most important public uses of tidelands. . . is the preservation of those lands in their natural state, so that they may serve as ecological units for scientific study, as open space and as environments which provide food and habitat for birds and marine life, and which favorably affect the scenery and climate of the area.”69
• Norwood Gay (1990)
In the fall of 1990, Stetson Law Review published Symposium on Sovereignty Lands which included an article by Norwood Gay entitled Tidelands.70 In this article, the author explores the development of the law in Florida as it pertains to tidally influenced waters, being careful to distinguish “tidelands” from nontidally influenced freshwater bodies. Mr. Gay also “considers the application of the flexible trust doctrine71 In light of shifting public policy concerns.”72
Basing his opinion on the U.S. Supreme Court decision in Phillips,73 Gay sets out to “demonstrate that certain earlier Florida opinions. . . were wrongly decided.”74 In support of his thesis, Mr. Gay chronologizes Florida Supreme Court cases from Black River Phosphate Co. through Martin v. Busch, 1 12 So. 274 (1927), speculating that the court, in general, and Justice Whitfield, in particular, “missed the boat,” in light of Phillips.75 Opining that the Black River court “fell victim to the English common law rule, holding that tidewaters and navigable waters were synonymous terms,” Gay excuses the court’s ruling that only navigable waters and their shores were acquired by the states under the equal footing doctrine,76 noting that the decision was rendered one year before the U.S. Supreme Court decisions in Shively v. Bowlby, 152 U.S. 1 (1891),77 and Mann v. Tacoma Land, 153 U.S. 273 (1894).78
Criticizing three consecutive opinions written by Justice Whitfield ( Gerbing, Mabry, and Watson ) for their inconsistencies with Phillips, Gay notes that the Gerbing decision has the effect of establishing that tidelands not immediately bordering upon navigable waters are not sovereignty lands and are thus susceptible to private ownership.79 In Mabry, Gay notes that tests determining navigability for useful public purposes are set out, but argues that per Phillips such tests would apply only to nontidal waters.80
In perhaps his strongest criticism of Justice Whitfield, Gay boldly states that in reference to Watson, “[i]f Waldo Clement brought suit today against Tom Watson. . . Waldo would be a winner.”81 Gay’s analysis of this case includes his assessment of Whitfield’s position post Gerbing, Mabry, and Watson. Gay states:
If lands subject to the ebb and flow of normal daily tides were not navigable-in-fact and did not immediately border upon navigable waters, then they were not sovereignty lands, did not come to the states under the equal footing doctrine, were not subject to the trust doctrine, and could be privately owned by way of patents from the federal government.82
Moving beyond the Whitfield opinions, Gay notes a conflict with previous decisions found in Thiesen v. Gulf, Florida and Alabama Railway, 78 So. 491 (1917), a decision in which Whitfield concurred but did not author. Here, in support of his premise that the court was wrong in holding that only navigable waters were subject to a claim of sovereignty, Gay says that Thiesen confirmed state ownership of lands subject to the ebb and flow of the tides, and that such lands are held in trust for the people.83
Citing Apalachicola Land & Development Co. v. McRea, 98 So. 505 (1923), an opinion in which Whitfield, again as author, repeatedly referenced “tidelands” and State ex rel. Buford v. City of Tampa, 102 So. 336 (1924), wherein Whitfield, in a dissenting opinion, was silent as to the navigability factor,84 Gay apparently surmises that the court, and indeed Whitfield himself, is beginning to see the light that would be so obvious in the U.S. Supreme Court decision in Phillips.
In examining post Whitfield cases involving tidelands issues, Gay, so convinced of the Florida Supreme Court’s malfeasance, avers that Justice Thornal was “excessively parsimonious”85 In Hayes v. Bowman, 91 So. 2d 795 (Fla. 1957), in stating “[i]t is well settled in Florida that the state holds title to lands under tidal navigable waters and the foreshore thereof.”86 Again, excusing the court’s misguidance, Mr. Gay writes, “[u]ndoubtedly, we know what Justice Thornal meant to say.”87
• Rosanne Gervasi Capeless (1993)
Following essentially the same theme as Norwood Gay’s 1990 commentary, Rosanne Gervasi Capeless, in her article History of Florida Water Law: Tracing the Ebb and Flow of Florida’s Public Trust Doctrine Through the Opinions of Justice James B. Whitfield,88 analyzes cases decided by the Florida Supreme Court during the period of 1908–1934.89 as the title indicates, the article’s focus is on Justice Whitfield and suggests that his adoption of the navigability test in Watson90 was later abandoned in a series of cases that “effectively overrule Clement.91
Stating specifically that Thiesen overrules Clement,92 Capeless, nevertheless, says “conflicting Clement and Thiesen principles endure in Florida case law”93 and suggests that “a clear mandate, ideally from the legislature, or perhaps more realistically, from the Florida Supreme Court affirming the “ebb and flow of the tide” test and overruling Clement, would affirm the viability of the ebb and flow test as a method for identifying Florida’s sovereignty lands.”94
• Robert A. Butterworth, Attorney General (1999)
Apparently in reaction to a pamphlet written by Randall G. Holcombe, DeVoe Moore Professor of Economics at Florida State University, with the assistance of Michael Rosen of the Florida Legal Foundation, Florida’s Attorney General prepared a booklet entitled The Public Trust Doctrine and Florida’s Navigable Lakes and Rivers95 for the purpose of explaining “the constitutional protections afforded navigable waters in Florida and the historical basis for these protections.”96 This booklet summarizes the development of the public trust doctrine97 and states the following “facts” supporting the conclusion that navigable lakes and rivers remain public:
1) The Florida Constitution mandates that navigable waters shall be held in trust for the people of Florida.
2) Public ownership of navigable waters originated in their use as the primary public highways of the 1800s.
3) Grantees of swamp and overflowed lands deeds have no claim to navigable lakes and rivers encompassed in those deeds.
4) Public ownership extends to the ordinary reach of high water and includes marshes and aquatic forests on the low, flat vegetated shores of Florida’s lakes and rivers.
5) Since 1986, only five lawsuits have been filed where a private landowner sought to exclude the public from part of a navigable lake or river.98
Stating that recently, “[t]he public’s ownership of Florida’s navigable rivers and lakes has come under attack by those who would prefer to see them converted to private use for the benefit of the few,”99 The booklet’s purpose seems to be not so much one of informing the public of what the law is but one of defending the state’s efforts to protect the people’s interests.100
• Monica K. Reimer (2001)
In an article published in the April 2001 edition of The Florida Bar Journal,101 Monica K. Reimer writes for the stated purpose of providing the legal and historical foundation for the public trust doctrine, and to dispel confusion that arose in the 2000 legislative session upon introduction of House and Senate bills designed to statutorily validate the private ownership of lands described in swamp and overflowed land deeds, or other grants by state agencies.102 Ms. Reimer’s analysis of sovereignty lands law and the public trust doctrine is consistent with the principles previously stated herein.
These principles are: the public trust doctrine is a constitutional doctrine protecting the public status of navigable waters;103 & #x201c;ownership is not based on legal description in a deed but on the nature of the water body itself”;104 navigability is measured at statehood as capable of being used for waterborne trade or travel;105 and, a swamp deed does not convey sovereignty lands.106 This leads her to the conclusion that the statutory attempts to define (or redefine) the boundary between public and private ownership are “inappropriate and unconstitutional.107
1 Fla. Const. art. X §11 (emphasis added).
2 Fla. Stat. §253.12 (1).
3 See Fla. Stat. §253.03 (1)(b).
4 See Fla. Stat. §712.03 (b).
5 Jesse Dukeminier & James E. Krier, Property
152 (4th ed. 1998).
6 Geiger, 8 Fla. at 329.
7 Black River Phosphate, 13 So. at 643.
8 Id. at 640.
9 Id.
10 Id. at 648.
11 Id. at 649.
12 Id. at 648.
13 Monica K. Reimer, The Public Trust Doctrine: Historic Protection of Florida’s Navigable Rivers and Lakes, 75
Fla. B.J.
13 (April 2001).
14 Id. at 13.
15 Ellis, 47 So. at 354.
16 Id.
17 norwood Gay, Tidelands, 20
Stetson L. Rev.
143 (1990).
18 In 1850 the federal government conveyed millions of acres of swamplands which were not acquired by the states upon entering the Union. They were given to the states in expectation that they would be sold to private interests for drainage and reclamation. (See Reimer, supra note 13.)
19 Broward, 50 So. at 828.
20 Id. at 829.
21 Id. at 831.
22 Id.
23 Probably not, but if one were to pursue the argument that the lack of public access and use and/or the lack of benefit to other riparian owners could negate the sovereign’s claim by way of unity of ownership around the water body, would the state acquire an interest upon fragmentation of the riparian ownership and perhaps lose it again upon reunification? As circular and perhaps preposterous as this query may be it is arguably no more far-fetched than the multitude of other questions raised by a property right with so nebulous an existence as to be defined in such terms as “ordinary natural state” and “navigable for useful purposes.”
24 Clement, 58 So. at 26.
25 Id.
26 Id.
27 Id.
28 Id.
29 Id. at 26 .
30 Id. at 27.
31 Id. at 26.
32 Wakulla, 362 So. 2d at 709.
33 Id.
34 Id. at 710, citing Lord v. Curry, 71 So. 21 (Fla. 1916) and Lopez v. Smith, 109 So. 2d 176 (Fla. 3d D.C.A. 1959).
35 Wakulla, 362 So. 2d at 710.
36 Id. at 713.
37 Id. at 711.
38 Id. at 710.
39 Id. at 711.
40 Id. at 711.
41 Coastal Petroleum, 492 So. 2d at 341.
42 Id.
43 Id. at 342.
44 Id.
45 Id.
46 Id. at 342, quoting State v. Gerbing, 47 So. 353, 355 (Fla. 1908).
47 Id. at 333 (emphasis added).
48 Geiger, 8 Fla. 325.
49 Black River Phosphate, 13 So. 2d 339.
50 Mabry, 50 So. 826.
51 Watson, 58 So. 25.
52 Wakulla, 362 So. 2d 706.
53 Coastal Petroleum 492 So. 2d 339.
54 Id. at 342.
55 Joseph W. Jacobs & Alan B. Fields, Sovereignty Lands in Florida: Lost in a Swamp of Ambiguity. 38
Fla. L. Rev. 347 (1986).
56 Id. at 380.
57 Id. at 381.
58 Id. at 390.
59 Id.
60 Id. at 392.
61 Id. at 394.
62 Richard Hamann & Jeff Wade, Ordinary High Water Line Determination: Legal Issues, 42
Fla. L. Rev. 323 (1990).
63 Id. at 327, referring to surveyors, attorneys and other professionals commonly called upon to make ordinary high water line determinations.
64 Id. at 354 (emphasis added).
65 Id. at 325 (emphasis added). Based on conversations with a number of state employees whose jobs are to make sovereign lands determinations, this definition appears to be what has been adopted by the state and would include all lands below the mean high water line on tidally influenced waters, i.e. the ebb and flow test.
66 Id. at 324. This observation is referenced for purposes of posing an underlying question: Have elected officials and/or governmental agencies, in the interest of environmental protection, sought to expand the state’s interest and in the process interpreted judicial decisions most favorable to the sovereign?
67 Id. at 329. Does this mean that the state’s ownership increases as additional public interests are identified?
68 Id. at 329.
69 Id.
70 Gay, supra note 17, at 160.
71 At page 143 Mr. Gay states that “In practice, the public trust doctrine has been flexibly employed, based upon contemporaneous perceptions of the public interest.”
72 Id. at 144 (emphasis added).
73 Phillips held that the states, upon entering the Union, took all lands covered by the “ebb and flow” of the tides.
74 Gay, supra note 17, at 147.
75 Id. at 147.
76 In Phillips Petroleum, the State of Mississippi argued that it acquired tidelands under the “equal footing doctrine” apparently referring to Shively v. Bowlby, 152 U.S. 1 (1894), which held that upon the American Revolution lands under tidewaters were vested in the original states within their respective borders and that upon the acquisition of a territory by the U.S., title to these tidelands passed to the U.S. The new states admitted into the Union since the adoption of the Constitution have the same rights as the original states in the tide waters (having “equal footing”), and in the lands under them, within their respective jurisdictions.
77 This case held that lands under tidewaters are vested in the sovereign for the benefit of the whole people.
78 Holding that the title to tidelands is in the state.
79 Gay, supra note 17, at 129.
80 Id. at 150.
81 Id. at 150.
82 Id. at 152.
83 Id. at 153.
84 Id. at 158.
85 Id. at 157.
86 Id. at 158 (emphasis added).
87 Id. at 157. Apparently Mr. Gay concludes that Justice Thornal meant to follow Pierce v. Warren, 47 So. 2d 857 (Fla. 1950); and, Trustees of the Internal Improvement Trust Fund v. Claughton, 868 So. 2d 795 (Fla. 1957), both of which said that upon entering the Union, Florida became the owner of all lands under navigable waters and all tidelands.
88 Rosanne Gervasi Capeless, History of Florida Water Law: Tracing the Ebb and Flow of Florida’s Public Trust Doctrine Through the Opinions of Justice James B. Whitfield, 9
J. Land Use & Envtl. L. 131 (1994).
89 Id. at 131.
90 Id. at 147.
91 Id. at 155.
92 Id. at 155.
93 Id. at 156.
94 Id. at 159. As will be noted later, the Fifth D.C.A. upheld Clement in Lee v. Williams specifically rejecting the ebb and flow test and Capeless’ suggestion that Thiesen overruled Clement.
95 Robert A. Butterworth, The Public Trust Doctrine and Florida’s Navigable Lakes and Rivers, at n.1.
96 Id. at 1.
97 Citing as authority, Broward v. Mabry, 50 So. 826 (Fla. 1909); Odum v. Deltona, 341 So. 2d 977 (Fla. 1977); Martin v. Busch, 112 So. 274 (Fla. 1927); Coastal Petroleum v. American Cyanamid, 492 So. 2d 339 (Fla. 1986); Tildon v. Smith, 113 So. 708 (Fla. 1927); and
Fla. Const. art. X, §311.
98 Butterworth, supra note 95,
at Executive Summary. The “fact” that only five lawsuits have been filed since 1986 was included in the attorney general’s booklet for purposes of rebutting an argument made in Coastal Petroleum that the court’s decision would result in 40,000 new lawsuits costing the state $900 million. While it may be that these “scare the world” estimations (as described by Mr. Butterworth) are unsubstantiated, the attorney general’s observation fails to take into account the fact that the majority of landowners are unaware of the state’s conflicting claim to their record title, and even if they do know that it exists, they don’t know the extent of the claim and can’t find out without resorting to litigation on a “case-by-case” basis. Thus, suits are not filed until a specific event brings the problem to the landowner’s attention and even then, the landowner is unlikely to have the resources to challenge the state’s claim, the state having virtually unlimited resources to defend its claim of ownership.
99 Id. at Executive Summary.
100 While the booklet seems to state the law accurately (as far as it goes) it raises questions regarding what is not being said. For example, if, as the booklet states, “the Public Trust Doctrine protects water bodies that were navigable-in-fact at the time of statehood in 1845”, and “navigable-in-fact” is defined as “ navigable for useful purposes ” (emphasis added) [p. 1, citing Broward v. Mabry, 50 So. 826, 830 (Fla. 1909)], then how can the state justify its “ebb and flow” theory as advocated in the Trustees’ amicus brief filed in Lee v. Williams ? And, why does this booklet, written in 1999, make no mention of Lee v. Williams, which was decided by the Fifth D.C.A. in March 1998, with rehearing denied by the Florida Supreme Court in September 1998?
101 See supra note 13.
102 HB 1807 and SB 1824 essentially sought to “expeditiously and economically ‘resolve’ issues related to conflicts arising from sovereignty claims of lands described in grants from the state to private parties in a manner that is equitable to the private landowners, but that preserves the people’s right to use the navigable waters within the state for the purposes of boating, fishing or swimming.” Both bills died in committee.
103 Reimer, supra note 13, at 10.
104 Id. at 10, citing Busch and Coastal Petroleum.
105 Id. at 10, citing Deltona, Mabry, and Watson.
106 Id. at 14, citing Gerbing and Coastal Petroleum.
107 Id. at 17. It is interesting that Reimer reaches the opposite conclusion of Jacobs and Fields, supra note 55. Does this mean that sovereignty lands determinations can only be made on a case-by-case basis?
Daniel W. Peyton is a December 2001 graduate of Florida Coastal School of Law and received a B.A. from the University of Florida in 1974. He is a real estate broker with Shield Properties, Inc., and former senior land acquisition agent with the St. Johns River Water Management District. The guidance of Professor Ann Shorstein in preparing this article is appreciated. It is submitted on behalf of the Environmental and Land Use Law Section, Sid Ansbacher, chair, and Robert Manning, editor.
