GeBOC TUCKER, MaWna, SMwIu, Cornm %t
ATTQOIRNY AT IAW
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September 2, 1977
Mr. D. Feaster
Southwest Florida Water
' Management District
S5060 U.S. Highway 41 South
Brooksville, Florida 33512
S RE: Mean High Water
Attached is a copy of a letter I wrote to J. B. Butler regarding
"Ordinary-High Water" v. "Mean-Annual Flood" for your information.
LMB/gw L. M. Blain
GIBBONS, TUCKER, McEWEN, ,alITII, COFER & TAUB Mh. C. """1ONR. ,oM.:s.,
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1 1977 hIIUCH 8. OOT.DHTMIN T 1ODOR o. 0 TAU
September 1, 1977 J.,Ol A. OUTTON, iJ. WNM. EKA.,. ToOKnR
VIOTOHIlA L. HUNT JAOQUI3T,IN1I n. WIIATLJT
PI'IIIr" ni. LAZZARA ROhnKiT V. WILLIAMS
IN Urt.Pr Iyaum TOi
Mr. J. B. Butler
Southwest Florida Water
5060 U.S. Highway 41 South
Brooksville, Florida 33512
RE: "Ordinary-High Water" v. "Mean-Annual Flood"
Dear J. B.:
On numerous occasions, you have asked to see something in
writing setting forth the boundary which separates uplands
from submerged lands of streams and lakes.
The terms discussed, "ordinary high-water mark" and "mean-
annual flood," should not be confused with the terms
"mean-high water" or "mean-high tide" which relate to tidal
boundaries as opposed to boundaries of streams and lakes.
By the authority of Section 253.12(1), Florida Statutes,
the state is vested with title to the land underlying all
navigable streams, lakes and rivers. This land is deemed
to be public property and, although rights to use this
property may be given, title cannot be granted away.
Holland v. Ft. Pierce Financing & Construction Co., 157
Fla. 649, 27 So. 2d 26 (1946).
Florida case law states that the bed of a stream is that
"land below the ordinary high-water mark." United States v.
Ray, 423 F. 2d 17 (C.A. Fla. ;1970) at 20.
The definition of "high-water mark" was first articulated by
the Supreme Court of Florida in Tilden v. Smith, 94 Fla. 402,
113 So. 708 (1927). The Court adopted a definition from
"[the] high-water mark ., a line between a
riparian owner and the public, is to be
determined by examining beds and banks, and
ascertaining W4here the presence and action of
the water are so common and usual, and so long
continued in all ordinary years, as to mark
GIBBONSN. TUCKER. McEWEN. wTH. COFER & TAUB CONTINUING OUR LETTER OF
upon the soil of the bed a character distinct
from that of the banks, in respect to
vegetation, as well as respects the nature of
the soil itself ."
The 1927 Court also referred to a New Hampshire case,
Dow v. Electric Co., 69 N.H. 498, 45 A. 350, which stated:
"The high-water mark on fresh-water rivers is
not the highest point to which the stream rises
in times of freshets, but is the 'line which the
river impressed upon the soil by covering it for.,
sufficient periods to deprive it of vegetation and
destroy its value for agriculture.'"
From these descriptions it can be seen that the high-water
mark is a product of a constant, sustained flow. It results
from the regular and continuous action of the stream; it is
not the line reached by the water at flood stages, nor is it
the line ordinarily reached by annual swellings of the
stream, possibly caused by a wet season. (See also, Maloney,
Water Law and Administration, University of Florida Press,
1968, pp. 68-72.)
The definition of the "ordinary high-water mark" is quite
different from the definition of the "mean-annual flood."
However, before diving into the mean-annual flood, it might
be well to keep in mind the common definition of "flood,"
and "flood waters." These terms are defined as "waters above
the highest line to the ordinary flow of the stream." 34 Fla.
Jur. Waters and Watercourses, 53.
As you know, the "mean-annual flood" is defined as "the flood
having a recurrence interval of 2.33 years." U.S. Geological
Survey Water Supply Paper 1543-A at 5. The recurrence interval
is equal to the "average interval of time within which a flood
of a given magnitude will be equaled or exceeded once." Id. at 5.
You also know that the mean-annual flood is found by measuring
and recording the annual floods of a particular watercourse
over a given interval of time and this data is then weighed
against known topographic features and a curve is constructed.
The U.S.G.S. paper points out that the study has indicated
that twelve years of record are required to define the "mean-
annual flood" within 25 percent. Id. at 24.
Since the mean-annual flood at a particular location on a
stream is measured in cubic feet per second, the corresponding
points to which th@ water extends on each side of the stream
may then be determined.
S.AWSBONS. TUCKER, McEWEN, S, H. COFER & TAUB CONTINUING OUR LETTER OF
These points will be beyond (or wider than) the points
designating the "ordinary high-water mark" since the high-
water mark, as prescribed by the Tilden case, is determined
by examining beds and banks and ascertaining where the
presence and the action of the water are so common and usual,
and so long continued in all ordinary years, as to mark upon
the soil of the bed a character distinct from that of the
banks, in respect to vegetation, as well as respects the nature
of the soil itself.
The "ordinary high-water mark" dates back to 1845 when the state,
by virtue of its sovereignty, upon being admitted to the Union,
became the owner of, and, unless lawfully conveyed or granted,
still owns the beds of all navigable waters. The navigable
waters include lakes, rivers, bays, or harbors, and all waters
capable of practical navigation for useful purposes, whether
affected by tides or not, and whether the water is navigable
or not in all its parts toward the outside lines or elsewhere,
or whether the waters are navigable during the entire year or
not. Martin v. Bush, 112 So. 274, 283 (S. Ct. 1927).
In the Martin case the court went on to state:
"In flat territory or because of peculiar conditions,
there may be little if any shore to navigable waters,
or the elevation may be slight and the water at the
outer edges may be shallow and affected by vegetable
growth or other conditions, and the lines of ordinary
high-water mark may be difficult of accurate ascertain-
ment; but, when the duty of determining the line of
high-water mark is imposed or assumed, the best
evidence attainable and the best methods available
should be utilized in determining and establishing the
line of true ordinary high-water mark, whether it is
done by general or special meandering or by particular
survey of adjacent land .
I realize the above will give little comfort, but there is
one bright spot in all of this. The Courts have held that
whenever the lines of "ordinary high-water mark" are duly
explained and established by competent authority, that line
should be regarded as the true line, unless it is impeached
for fraud or mistake. Adkins, Florida Real Property Law
Section 88.02, and Martin v. Busch (1927) 93 Fla. 535, 112
LMB/gw L. M. Blain