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GIBBONS, TUCKER, MCEWEN, SMITH, COFER & TAUB M. *. GIBBONS, 1s862.103
GUNBY GIBBONS, 1800.1970
ATTORNEYS AND COUNSELLORS AT LAW JAMES M. MOEWEN, 1008.1076
I.. M. eBLAIr DAVID B. MOEWEN
006 MADISON STREET, P.O. BOX 1.363 JOSEPH n. COFER MALCOLM P. MICKLElI, III
TAMPA, FLORIDA 33601 THOMAS B. CONE, JR. OREGORY B. MIERZWINSKI
A. FLETCHER DCOHBS B. BRADFORD MILLER
(813) 228-7841 ARTHUR S. GIBBONS VWILLIAM B. PLATT
KIRK M. GIBBONS MARSHA 0. RYDBERG
MYRONG G. GIBBONS ARMINr SMITH, JR.
SAM M. GIBBONS RICHARD N1. STEI
August 29, 1977 BO GOLDSTEIN THEODORE TAUB
JOHN A. GUYTON, ,R. WM. EARLE TUOKBR
VICTORIA L. HUNT JACQUELINE B. WHATLEY
PHILIP R. LAZZARA ROBERT V. WILLIAMS
IN SUAPLIN MK5R TOt
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 landsO 4*NtI2.s4,4o i4 /4 ,
By the authority of Section 253.12(1), Florida Statutes,
the state is vested with title to the land>lunderlying 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 higah-waterbmark." 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 inTilden 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 where the presence and 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 "
GIBBONS, TUCKER, McEWEN, Si H, COFER & TAUB CONTINUING OUR LETTER OF
The 1927 Court also referred to a New Hampshire case,
Dow v. Electric Co., 69 N.H. 498, 4f. 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.) .- K (
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 m Q he co~gn definition of "flood,"
S or "flood waters." atermS&e defined as "waters above
the highest line to the ordinary flow of the stream." '4
Fla. Jur. Waters and Watercourses, 53.
"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
a n7 I i gnitude will be equaled or exceeded once." Id. at 5.
V I: j- L fe mean-annual flood is found by measuring and record-
4 / ing the annual flo 9 of. a particular watercourse over a given
Interval of time, Tih data is then weighed against known
4-topographic features and a curve is constructed.
:_' e t~study has indicated that twelve year. of record are
I \required to define the mean-annual flood within 25 percent.
nn i icnual floo is measuredtn cu ic feet per
S econd Thmc, wfith thic knnn lnm the corresponding points -j
on each side of the stream ma determine /
"' These points will behe points desigating th
i .ordinary high-water mar i~nce 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
GIBBONS, TUCKER, McEWEN, SMI IH, COFER & TAUB CONTINUING OUR LETTER OF
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
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 ad acent, land 0
of n 7-r'm" "m--5a should e confused with the term .
a "mean-high wat~ or "mean-high tide" which relate to ehe
1- \^tidal boundary, as opposed to boundaries of streams and lakes. i.'J
SI.realize the above will ive iitl pjofrt but there is one, li
Jrtght spot in all of this. ^ never the linesof ordinary '
high-water mark $ duly explained and established by competent'
authority, that line should be regarded as the true line, J ^\
unless it is impeached for fraud or mistake. Adkins, Florida -\^C \
Real Property Law Section 88.02, and Martin v. Busch (1927)
93 Fla. 535, 112 So. 274. .. ..
LMB/gw L. M. Blain