CONTROLLING WATERFRONT DEVELOPMENT
By SHELDON J. PLAYER
FRANK E. MALONEY
PUBLIC ADMINISTRATION CLEARING SERVICE
UNIVERSITY OF FLORIDA
STUDIES IN PUBLIC ADMINISTRATION NO. 30
The views and opinions expressed herein are those of the
authors and not official views of the University of Florida.
Pennission to quote granted provided credit is given to the
authors and to the University of Florida Public Administration
CONTROLLING WATERFRONT DEVELOPMENT
SHELDON J. PLAYER
Professor of Law
University of Illinois
FRANK E. MALONEY
Dean and Professor of Law
University of Florida
PUBLIC ADMINISTRATION CLEARING SERVICE
UNIVERSITY OF FLORIDA
STUDIES IN PUBLIC ADMINISTRATION NO. 30
TABLE OF CONTENTS
I. Introduction ..................................... 1
II. Controlling Waterfront Development: Wharfing v.
Filling ......................................... 3
A. The Common Law Right to Wharf Based on
Ownership of the Upland ..................... 3
B. The Riparian Right to Wharf in Florida ......... 4
C. Wharfing v. Filling-Limitations on the Riparian's
Right to Build Out .............................. 9
D. Private Ownership of Submerged Bottoms as a
Source of Right to Wharf or Fill ................. 16
III. Controlling Waterfront Development: The Navigability
Concept and Florida Statute 271.09(2) ............. 21
1. The Significance of Navigability ............. 21
(a) The rights of upland owners to make non-
consumptive uses of the water vis-a-vis other
upland owners ........................ 21
(b) The rights of the general public to make
nonconsumptive uses of the water ....... 22
(c) Ownership of the underlying bed of a
waterbody ............................ 22
2. Determining Navigability under State Law ... 23
B. The Strange History of 271.09(2) ............. 26
C. The Current Status of 271.09(2) .............. 33
IV. Conclusion ...................................... 36
Footnotes ........................... .. .............. 39
Some fifty years ago the Public Administration Clearing
Service started publication of studies of water resources prob-
lems in Florida. These studies have ranged over the substantive
aspects of public policy and the legal problems involved in
connection with various policy dimensions. Professor Plager
and Dean Maloney contributed an earlier monograph to this
series of Studies in Public Administration-No. 21-and have
collaborated over a period of some few years in the analysis of
legal problems in water resources use and conservation. This
current publication is the latest of their studies.
Actually the subject with which the authors are concerned in
this article might be called legislative tinkering with the navi-
gability concept, particularly as to adverse effects of such tinker-
ing on public rights. Inasmuch as Florida has thousands of
lakes of varying sizes and streams, the legal impact of such
legislative tinkering is very considerable in effect on public
policy and in restrictions on rights of large numbers of persons.
The preparation of this article has been supported by the
Office of Water Resources Research, United States Department
of the Interior, as authorized under the Water Resources Re-
search Act of 1964, Public Law 88-379. Portions of this article
have been adapted from material which will appear in a forth-
coming book on Florida water law and administration.
The Public Administration Clearing Service, therefore, offers
this study as a significant contribution to a very important field
of public policy and law.
GLADYS M. KAMMERER
Director, University of Florida
May 1968 Public Administration Clearing Service
CONTROLLING WATERFRONT DEVELOPMENT
Freshwater lakes and streams are a natural resource of great
value. The naturalist and conservationist see a maximization of
value in preserving these waterbodies in their natural state for
wildlife protection and for preservation of natural amenities.
The builder, the promoter, the land developer see a maximiza-
tion of value in developing residential and commercial uses
along the water's edge. Frequently this involves invading the
waterbody itself with land fills and structures.
As a practical matter, some development is inevitable, and
probably desirable. On the other hand, uncontrolled develop-
ment can result in the destruction for all time of wildlife support
areas, public recreational opportunities, and, even in crass com-
mercial terms, can cause the death of the goose that lays the
The extent of public regulation of waterfront development is
ultimately a matter of social and political processes. The manner
of regulation is largely a legal question. New tools are being
developed. For example, Wisconsin is working toward extensive
shore-land and flood plain regulation through state zoning.1
Historically, however, what regulation there was was a matter
of common-law doctrine. This doctrine concerned itself with
the riparian owner's right to wharf into a navigable body of
water. In more recent years, and especially in states like Florida
where there are numerous lakes and streams of high commercial
value, the right to build into the water for other than wharfing
purposes has come into issue. As legal justification for these fills,
they are frequently equated with the wharfing activity, although
as frequently the constraints implicit in the wharfing doctrine
are ignored. Part II of this article explores the significant differ-
ences in history, law, and policy between the riparian right to
wharf and the newer claim to fill, and points up the implications
of applying the constraints developed in the wharfing rules to
the land fill operation.
One way of side-stepping the issue and avoiding whatever
constraints are imposed on the riparian owner under the wharfing
doctrine is to classify the waterbody as non-navigable. The
doctrines governing wharfing presuppose a public right of navi-
gation, a right that exists only if the waterbody is navigable. If
the waterbody is classified as non-navigable, there is no public
right of navigation limiting the upland (and bottomland)
owner's building activity. The only restraint on such an owner
at common law, such as it was, was the interest of his co-
owners if he did not own the entire non-navigable waterbody
As long as navigability was determined as a question of fact,
hinging on the size and usefulness of the waterbody for public
uses, the rules governing non-navigable waterbodies were limited
to the smaller, less important waterbodies. Part III of this article
examines a legislative act in Florida purporting to create a
category of non-navigable waterbodies as a matter of law, seem-
ingly without regard for size. The discussion includes an analysis
of both the technical and policy problems engendered by such
II. CONTROLLING WATERFRONT DEVELOPMENT:
WHARFING v. FILLING
A. The Common Law Right to Wharf Based on Ownership of
Prior to the reign of Queen Elizabeth, when Thomas Digges
first advanced his theory that the Crown held title to the lands
under tidewaters, if the upland owner desired to project a
structure into the water for any purpose he did so without
question from anyone.2 After Digges' theory took hold, wharves
placed upon land covered by water were regarded as encroach-
ments upon the property of the sovereign and therefore as
purprestures which the Crown could seize and use according
to its pleasure. Farnham states that the first statute with respect
to the control of Crown lands was passed during the reign of
Anne, only a short time after the establishment of the doctrine
that wharves upon Crown land were purprestures. He con-
After the passage of that statute discussion of the question of pur-
presture or no purpresture no longer appears, but the question in
every instance is whether or not the structure is a nuisance. No struc-
ture in a navigable water way is a nuisance unless it interferes with
the public rights of navigation.
When the American states assumed the rights of sovereignty
formerly belonging to the English Crown, many jurisdictions
followed the English lead and relaxed the sovereign concept of
purpresture. They conceded to riparian owners the right to
wharf out from the upland for the purpose of improving access
to navigable water, subject to such reasonable regulations as
the state may impose, and to the public rights of navigation.4
In no case could a wharf extend beyond the point of naviga-
bility or otherwise unreasonably interfere with the right of
public navigation; if it did it became a nuisance and was
subject to abatement.5
A number of rationalizations for the rule were offered by the
courts, but essentially it was simply a recognition that the doc-
trine by which the state holds the title to lands under navigable
waters in trust for all the people is designed to protect and
promote the public interest rather than to further the sover-
eign's personal prerogatives. There is no necessity to hinder a
riparian owner in improving his access to the water, unless his
use unreasonably interferes with the public right.6
A few courts have denied the riparian owner the right to
erect a wharf upon land under navigable water, and have
invoked the common law idea that any construction below
high-water mark, without license, is an encroachment which
the sovereign may demolish, seize, or rent at pleasure.7 Further-
more, in these jurisdictions, as in those discussed previously, if
a wharf is injurious to commerce or navigation, it constitutes
a public nuisance and can be abated or enjoined. The right of
the state to regulate the erection of wharves, including absolute
prohibition if necessary to protect the public good, has never
been much in doubt, and many states have enacted such legis-
B. The Riparian Right to Wharf in Florida
The riparian right to wharf in Florida is a mixture of common
law rules and statutory provisions. The early statutes of 18569
and 192110 regarding the upland owners' right to wharf out
into navigable waters blended the question of wharfing with
the question of ownership of the underlying bed, so that over
the years the two ideas became inextricably associated together
in the cases and the statutes. From the viewpoint of clarity of
analysis and identification of relevant public policies the mar-
riage was an unfortunate one; the progeny have been confused
law and unclear policy. In general, this statutory marriage of
bed title and wharfing rights was framed on the theory that
ownership of the bed was not a requisite to wharfing, but was
a consequence. Accordingly, a detailed exploration into these
statutes is more appropriate to a discussion of bed ownership;
the statutes will be discussed here only to the extent they bear
on the question of rights to wharf and fill.
First, it is important to note that the coverage of these
statutes was not all-inclusive. The early acts excepted lakes,
other than tidewater lakes, from their operation." And the
1957 Bulkhead Act, which supersedes the earlier acts in most
respects, specifically excludes "submerged lands in navigable
fresh water lakes, rivers and streams. ."12 In the absence of
a controlling statute expressly authorizing or regulating the
erection of a wharf, does a riparian owner in Florida have a
right to erect and maintain a wharf on sovereignty lands in
front of his uplands?
The Riparian Act of 1856 seemed to suggest the answer was
no. The act contained a statement that one of the reasons it
was needed was that the state's proprietorship of submerged
lands prevented the riparian owner from improving his water
lots.13 However, the Florida Supreme Court early intimated
a somewhat different view.
In the first case construing the Riparian Act of 1856, the
Court denied the plaintiff, who claimed the fee in a street that
had been dedicated to the public and that ran down to the
Gulf of Mexico, the exclusive right to wharf, on the ground
that he did not have the type of ownership contemplated by
the act."1 In discussing the plaintiff's contention that the
defendant's wharf would be a nuisance, the Court stated that
wharves are indispensable to commerce, and that no city or
town could be without them. The question of whether the
wharf would be injurious was one of fact.
In Sullivan v. Moreno,15 a wharf extending into the waters of
Pensacola Bay was attacked as a public nuisance. The Court
considered that the argument was based on the view that the
construction of a wharf in navigable waters is per se a nuisance
in this state, a view the Court declared to be in error. It con-
sidered a wharf a purpresture, the construction of which was
subject to sovereign control, but stated that the sovereign by
the Riparian Act of 1856 had expressly authorized construction
of wharves in tidal bays. The conclusion was that "a plaintiff
makes no case of nuisance by a simple allegation of the con-
struction of a wharf. "16
Somewhat later, two cases arose involving piers built into the
Atlantic Ocean. In the first, Freed v. Miami Beach Pier Corp.,17
the plaintiff, who owned an ocean front lot adjacent to the de-
fendant, claimed that the defendant's pier transgressed upon
the plaintiffs riparian rights. The Court noted that there were
no applicable statutes.18 The opinion states:19
Riparian or littoral owners to ordinary high-water mark on the ocean
or gulf or other navigable waters have, by the common law, a quali-
fied right with the consent or acquiescence of the state to erect
wharves or piers or docks in front of the riparian holdings to facilitate
access to and the use of the navigable waters, subject to lawful state
regulation. If such wharves or piers or docks are erected with-
out due authority, they may be removed as purprestures, or, if they
are or become nuisances or are harmful to the rights of the public,
they may be removed or abated by due course of law. (Citations
The only authorization from any agency of the state that the
defendant could muster for his pier was a 1925 resolution of
the City of Miami Beach stating that it had no objection to
this particular pier.20 The plaintiff was denied relief on the
ground of laches, although the Court carefully pointed out
that "the sovereign rights of the state in the premises are
not affected by this adjudication."21
In Adams v. Elliott,22 the plaintiff was injured when a car in
which she was riding collided with one of the pilings supporting
the defendant's pier, which extended over the beach into the
ocean at Atlantic Beach. The pier stood some twenty feet
above the ground and extended into the ocean a considerable
distance. The Court stated that "[r]iparian or littoral upland
owners may construct appropriate piers or wharfs [sic] over
and across the beach to reach the water for authorized pur-
poses,"23 but that if piers or their supports are negligently
maintained, and the negligence is the proximate cause of injury
to one lawfully and with due care traveling on the beach,24 the
pier owners will be subject to legal liability.
The most direct statement concerning the riparian owner's
rights to wharf in the absence of an express legislative grant ap-
pears in the 1931 case of Williams v. Guthrie.25 Justice Brown,
joined by two of the other justices in a concurring opinion,26
stated that he was inclined to the view that the riparian proprietor
holding title to the high-water mark, in the absence of any
statute to the contrary, is vested with the right to wharf out so
as to reach a navigable portion of the stream or body of water,
subject to police regulation by the state. He added that this
doctrine does not change the title to submerged land below
high-water mark in navigable waters, which remains in the
state. The case involved an action in ejectment by one claiming
as heir of an alleged owner of a pier built upon the submerged
bottom of Sarasota Bay against a defendant claiming as grantee
of the owner. The trial court construed the defendant's deed
against him and gave judgment for the plaintiff. On appeal to
the Supreme Court, that Court stated that if the issue was
simply one of construction of the deed the judgment would be
affirmed. However, on other grounds the case was reversed.27
It may be well to note at this point that several Florida cases
involving other riparian rights contain statements on the right
to wharf. These statements are by and large irreconcilably in
conflict and can be given little credence. For example, in State
v. Black River Phosphate Co.,28 in which the Court attempted
to justify the legislative grant in the Riparian Act of 1856, a
statement appears to the effect that the purpose of the Riparian
Act was to permit riparian owners to wharf out into the waters
to facilitate landing, and that the statute was necessary because
the "ownership of the state and its consequent powers [over
beds under navigable waters] were a bar to the riparian owner
building such wharves or improving their riparian lots in any
of the ways permitted by the statute. .. ."29 This case has been
cited, in an otherwise excellent study, as aligning Florida with
the jurisdictions denying a riparian owner the right to wharf
out into navigable waters.30 On the other hand, in Ferry Pass
Inspectors' & Shippers' Association v. Whites River Inspectors'
& Shippers' Association,31 the Court, in elaborating on the
various common law rights available to the riparian owner,
Subject to the superior rights of the public as to navigation and
commerce, and to the concurrent rights of the public as to fishing
and bathing and the like, a riparian owner may erect upon the bed
and shores adjacent to his riparian holdings bath houses, wharves, or
other structures to facilitate his business or pleasure. ..
Summary. In considering the relationship of the upland owner
to state-owned beds and to the rights of the public generally, it
must be borne in mind that the beds of most bodies of navi-
gable water in their natural state slope down gradually from
the upland, rather than drop off sharply. The water area imme-
diately adjacent to the upland is for all practical purposes not
navigable, except for the most shallow-bottomed boats. It
makes sense, therefore, to permit the upland owner to erect a
wharf or dock to facilitate his access from the land onto the
water, regardless of whether the portion of the bed involved is
owned by the state or not. The English concept of purpresture,
to the effect that any structure on publicly owned bottoms
belongs to the state automatically, is largely a theoretical con-
struct; there is no sound reason why the state should claim
ownership of a privately constructed wharf so long as the
wharf is not interfering with public rights to use of the water.
State statutes authorizing or regulating wharfing can serve the
function, among others, of "waiving" any such theoretical claim
on the part of the state.
It seems equally clear, however, that the state has an over-
riding interest in and responsibility for ensuring that the upland
owner does not invade public rights in a navigable waterbody
without legal basis, and that such invasion represents the min-
imum required under the circumstances.
C. Wharfing v. Filling-Limitations on the Riparian's Right to
Assuming that a riparian owner on navigable Florida waters
has at least a prima facie right to erect a wharf, does this
riparian right extend to filling in the submerged bottom and
raising it above the water level for purposes not related to
navigation? History, policy, and logic indicate a negative an-
swer. The distinction between wharfing and filling turns pri-
marily on the purpose for which the encroachment on
sovereignty lands is erected. As the terms are used here, a
wharf is a structure erected for the purpose of improving
access to the water, and as a consequence for improving navi-
gation. A fill is a structure (in its broadest sense) erected for
other purposes, only indirectly related to navigation itself, for
example, for creation of waterfront homesites.
The classic statement of the historical legal significance of
this distinction appears in the English case of King v. Russell.88
The defendants, who had erected a wharf into the River Tyne
were indicted for creating a nuisance. They were acquitted by
the jury on the grounds that the structure created a compen-
sating public benefit and did not unreasonably interfere with
navigation. In affirming, Bayley, J. commented:34
Make an erection for pleasure, for whim, for caprice; and if it inter-
feres in the least degree with the public right of passage, it is a
nuisance. Erect it for the purposes of trade and commerce, and keep
it applied to the purposes of trade and commerce, and subject to the
guards with which this case was presented to the jury, the interests
of trade and commerce give it a protection, and it is a justifiable
erection, not a nuisance.
Later cases, such as King v. Ward,s3 refined the meaning of
"purposes of trade and commerce," and emphasized that the
legal justification for an encroachment into navigable waters,
and for erecting a structure on state-owned beds, was improve-
ment and enhancement of navigation.36
Under the English common law, then, the only justification
for an encroachment into navigable waters was that the struc-
ture was actually for the purposes of improving navigation, and
so promoted navigation that on balance it was not an unrea-
sonable impediment to effective use of the public waterways.
There is language in the cases, starting with King v. Ward,
that only structures necessary to effective navigation were tol-
erable encroachments, but this very strict attitude does not
seem to have been enforced. Probably, the ease of purchasing
sovereign license to wharf in ad quod damnum proceedings
when legitimate maritime interests were promoted made the
strict nuisance language moot.37
What is clear, on the other hand, is the absence of any
riparian right to build out for non-wharfing purposes. Filling,
beyond purely traditional wharfing purposes, exceeds the com-
mon law justification and is insupportable by any established
private property right. The riparian right of access which
provided a right to wharf into the channel simply never devel-
oped beyond the maritime needs of English landowners. English
courts were quite sensitive to infringements on the public
rights in navigable waters by crown or by landlord, a sensi-
tivity that can be traced back to Magna Carta in 1215.38
The Florida courts early adopted the English theories and
concepts"9 including the doctrines of nuisance and purpres-
ture.40 Did the Florida courts also accept the common law
limitation on the purposes for which structures could be erected
into navigable waters: In the few cases in which the issue of
filling into navigable waters has been presented,41 the courts
have consistently declined to recognize any right in the upland
owners to make such encroachments.
In State v. Simberg,42 suit was brought by the county solicitor
and the Citizens' League of Miami Beach against the City of
Miami Beach and the hotel owners along the beach for an
injunction seeking to abate an alleged public nuisance main-
tained by the hotel owners. The plaintiffs alleged that the
hotels extended out over the foreshore of the ocean and re-
quested that the court determine whether the city had author-
ity to issue permits for such structures. The 1927 Florida
Legislature had passed an amendment to the charter of Miami
Beach empowering the city to fix a harbor line and to control
and prohibit the use of submerged land east thereof. In 1948
the Miami Beach City Council passed three ordinances estab-
lishing such a harbor line and providing that no bulkhead or
other structure should be constructed east of the line. Pro-
ceeding under these ordinances, the line was fixed on or east
of the foreshore-the beach between high-water and low-water
marks-and riparian hotel owners were granted permission to
construct bulkheads, fill in, and erect structures out to this line.
In many instances the upland owners took over the beach and
foreshore and used them for purposes incident to operating
the hotels. The result was to exclude the public from portions
of the beach between high-water and low-water marks.
The chancellor held that in the absence of an enabling statute
an upland or riparian owner cannot appropriate the state-
owned land between ordinary high-water and low-water marks.
The court pointed out that, consistent with the trust under
which the state holds title to the beds of navigable waters, the
state, through legislation, can authorize use by individuals or
the public for purposes other than boating, fishing, swimming,
and recreation if there is sufficient over-all benefit derived
thereby or if the public's use thereof for these primary purposes
is not eliminated or unduly withheld. As examples of this type
of legislative authorization the court cited the Riparian Act of
1856 and the statutes designating various sections of beach as
public highways. In the court's view, individual operation of
a hotel or apartment building adjacent to the foreshore was
not of sufficient benefit to the people to justify surrender by
the public of that portion of the state-owned beach to the
individual. The court therefore enjoined the City of Miami
Beach from granting to any upland or riparian owners or any
other person authority to construct a sea wall, bulkhead, or
any structure other than groynes or jetties on or across the
foreshore of the Atlantic Ocean.43
In 1956, the question of a riparian owner's right to fill in a
portion of the bed of a navigable lake came before the Florida
Supreme Court.44 Suit was brought by the Trustees of the
Internal Improvement Fund to enjoin the riparian owners from
dredging in Lake Ariana, a navigable45 fresh water lake in Polk
County, and from using the soil from the lake to build a
peninsula extending from the defendant's uplands. The trial
court granted the injunction. In their appeal to the Supreme
Court the defendants contended, among other things, that if
Lake Ariana is in fact navigable, their riparian rights include
the right to extend their land out from the shoreline and over
the bottom of the lake. The Court dealt with this summarily,
This contention could be colorably maintained, on the state of facts
here presented, only by reference to the "Butler Bill" which, however,
excluded lakes other than tidewater lakes from its operation. .
Appellants cannot acquire title to sovereignty lands in this fashion.
Thus it seems clear that under Florida law there is no riparian
right to fill for non-wharfing purposes, in absence of express
When examining legislation purporting to grant such author-
ity, two questions need to be asked: (1) does the legislation
in fact authorize non-wharfing type of fills; and if so, (2) what
kinds of waterbodies are affected, and what kinds are left
subject to the common law rules? As to whether the Florida
statutes, specifically the 1856 and 1921 Riparian Acts and the
1957 Bulkhead Act, authorize non-wharfing fills, the answer
is that it is not always clear. For example, the earliest act, the
Riparian Act of 1856, expressly stated that the purpose of the
act was that "it is for the benefit of commerce that. wharves
be built and warehouses erected for facilitating the landing
and storage of goods;" accordingly the riparian proprietors
were to have the "full right and privilege to build wharves .
to effect the purposes described ."47
In the 1921 act,48 the purpose was changed to read: "it is for
the benefit of the State of Florida that water front property be
improved and developed;"49 the act did continue the language
giving riparian proprietors "the full right and privilege to build
wharves ... as far as may be necessary to effect the purposes
described .", but then went on to include the right "to fill
up from the shore ... as far as may be desired, not obstructing
the channel, .. and upon land so filled in to erect warehouses,
dwelling or other buildings ."5
Apparently the 1921 act contemplated something more than
enhancing navigation and commerce-building dwellings on
sovereignty bottoms can hardly be called promoting navigation.
(Here again though, the confusion between the title to the
underlying beds of navigable waters upon which such struc-
tures are built, the upland owner's right to build into navigable
waters, and the state's interest in regulating such building, is
apparent.) The act went on to grant title to the beds so built
upon, but made the grant "subject to any inalienable trust
under which the State holds said lands."1" The mass of litiga-
tion involving these acts and the abuses to which the acts lent
themselves52 are beyond the scope of this discussion.
The 1957 Bulkhead Act,53 had the effect of superseding both
the 1856 and 1921 acts, and is generally understood to have
resulted from the failure of the previous acts and the Trustees
to control the large scale and indiscriminate building that had
gone on. The act does not contain a clear statement of purposes
for which fills may be authorized, nor does it purport to limit
fills, or conveyances of bottom lands for purposes of filling, to
improvements related to navigation. It does contain a negative
statement that "if it appears that the sale of submerged
lands and their ownership by private persons would interfere
with the lawful rights granted riparian owners, the conservation
of natural resources, or would be a serious impediment to navi-
gation, or for other reasons would be contrary to the public
interest, the trustees shall withdraw the said lands from sale.
. ."54 The responsibility for protecting and preserving those
waterbodies that come within the coverage of the act is clearly
in the hands of the trustees.
The second question posed concerned the kinds of water-
bodies covered by the acts. Both the 1856 and 1921 Riparian
acts stated that they applied to "any navigable stream or bay
of the sea or harbor."66 On their face, the acts did not purport
to apply to ocean or gulf front property that was not on a bay
or harbor; the courts so read them.56
The quoted language of the acts seemingly also excluded
lakes. However, the 1921 version of the act added a new section
stating that "nothing in this Act contained shall be construed
to apply to lakes, except tide water lakes.".' It was at least
clear that fresh water lakes were not within the acts, and the
courts again have so held.58 With these exceptions, the latter
one of considerable significance, the acts apparently applied
to all other forms of defined waterbodies, including streams,
both fresh and tidal.
The 1957 Bulkhead Act59 repealed the operative section of
the 1856 and 1921 acts. The Bulkhead act, however, added
fresh water rivers and streams to the waterbodies not covered.
Thus, as of the time of this writing, there appears to be no
general statutory enactment covering fresh water lakes and
streams, and riparian owners on such bodies are presumably
governed by the common law rules.
D. Private Ownership of Submerged Bottoms as a Source of
Right to Wharf or Fill
If a private builder does not have a right to build out into
navigable waters by virtue of riparian ownership, he may seek
to buttress his claim to build by obtaining title to the sub-
merged bottom in front of his upland. Does the riparian owner
obtain any additional common law building rights by virtue of
title to the bed? In absence of riparian ownership, could a
private improver claim a right to build or fill up into navigable
waters based solely on title to the underlying land?
Theoretically, these are two distinct situations raising the
same question of building rights incident to title to submerged
land. As a practical matter however, it is doubtful that anyone
would want to build on navigable bottoms unless he also had
upland ownership to provide access. Certainly only a riparian
would want to build a wharf, and his riparian right is clearly
sufficient by itself for that purpose.60 Thus the major issue con-
cerns the right to erect structures and to fill in land for non-
navigation purposes, a right which is not appurtenant to the
At the outset, it must be noted that private ownership of
land under navigable Florida waters is an exceptional circum-
stance. In Florida, navigable bottoms are generally held in
trust by the state for the people. Notwithstanding this theory,
which was to protect the public rights in navigable waters,
title to sovereignty bottoms has been purported to be conveyed
into private ownership by statute, by discretionary act of the
Trustees of the Internal Improvement Fund, by the calls of
deeds out of the state which extended over nonmeandered
waterbodies, and by Spanish land grants prior to the acquisi-
tion of Florida by the United States. Determining the validity
of such grants of sovereignty lands, even in situations when a con-
veyance comes directly from the State, presents one of the
thorniest issues in Florida law; however, for purposes of this
discussion, a valid private title is assumed and attention is
focused on the consequences.
The right to build is generally an assumed incident of owner-
ship of dry land. By analogy, title to submerged bottomlands
might thus provide the same right to build up or erect struc-
tures, at least as a prima facie right. On that theory, disputes
over submerged land improvements would arise only when
conflicting rights are asserted, particularly the public right to
navigate and the neighboring riparian owner's right to access.
The pattern of the cases is generally consistent with such
an analysis; the opinions focus on the equitable adjudication of
conflicting property rights and never actually articulate a prima
facie building right incident to title. The few cases that have
presented such issues have quite naturally arisen in situations
in which the improver owns riparian land as well as part of
the submerged bed, so neither court nor counsel needed to
rely upon rights based on bottomland title.
If the analogy to dry land ownership is sound, and a building
right does derive from ownership of navigable bottoms, such
right would seem paramount as against the sovereign right of
purpresture, even if it would only have prima facie status as
against other conflicting rights. The purpresture right derives
from the State's title to the bottomland. Logically, if the sover-
eign has conveyed title to the submerged lands, it has no title
upon which to claim encroachment, and the purpresture right
is extinguished. The failure of the cases to establish and define
a building right in this context may simply reflect a lack of
litigation over the purpresture question. This would not be
surprising since the sovereign purpresture right was relaxed
long ago in England and has never been seriously asserted in
On the other hand, the failure of the cases clearly to estab-
lish a title right to build up or build upon land underlying
navigable waters suggests there may be no legal basis for such
a right. Nothing in the case law of submerged lands compels
or directly supports a conclusion that the right exists. On closer
analysis, the analogy between ownership rights in dry land
and rights incident to ownership of navigable bottomland does
not hold up, either historically or logically. The analogy runs
into the distinguishing factor of the overlying navigable waters,
a factor which has resulted in different histories of use and
First, the common law rights of ownership in dry land were
legally established in litigation over abnormal, infringing uses
by neighbors. The courts permitted reasonable uses which
were to a large degree determined by tradition and custom,
and the law of private nuisance grew up to define by limitation
the rights of fee owners.63 Not only do navigable bottomlands
not have the same history of litigation, but they also do not
have the same tradition of private use. The historic pre-
eminence of free navigation as well as the state of technology
prevented significant construction on navigable bottoms. Erec-
tion of structures is the exception rather than the rule.
Second, property rights in dry land were not established in
a factual context which presented an omnipresent conflicting
right; the law developed without consideration of a general
public right in the land or over it. Thus the common law of
land ownership does not by itself provide the right to infringe
public privileges. Indeed, the opposite is true today. Traditional
ownership rights now yield readily to paramount public inter-
ests, for example urban planning and zoning.
Third, the one area of common law development that is
closely analogous to the factual situation of navigable bottom-
land militates against a right to build. When the public has an
easement for travel over private lands, it is elementary that the
fee owner may not interfere with the public right. This is
basically the situation on navigable bottoms, where the solid
land may be held in fee, but the right to travel on the over-
lying water belongs to the public. By the public highway anal-
ogy, the landowner can neither interfere with public use nor
can he build a structure which creates a trespass into the
Finally, a private ownership right to build on navigable
bottoms is inconsistent with the title granted by the sovereign.
In order for the right to be incident to fee ownership, it must
have been a right held by the original source of title, which
was the sovereign in the case of lands under navigable waters.
But the sovereign was always subject to the public right of
navigation himself and does not appear to have had an unlim-
ited right, if any right at all, to build or fill simply by virtue
of ownership of the bottom.65 Thus the sovereign had no build-
ing right to grant to private individuals, and title to sovereignty
bottoms does not carry with it a construction privilege. Only
the public can grant the right to interfere with the navigable
capacity of the waters above those lands; absent explicit legis-
lative authority, that right is reserved in all lands whose title
originates in the state.
In sum, would-be improvers who claim a common law build-
ing right on the basis of title to lands underlying navigable
waters must base the right on an analogy to dry land ownership,
an analogy which does not support the claim. They must argue
for commercial bottomland development in the face of a set-
tled preference for unobstructed waterways. It is extremely
doubtful that courts today would recognize a common law
building right on navigable bottomland based on its ownership.
Significant public policies support judicial protection of public
For completeness, it should be noted that there is con-
ceivably one situation in which bottomland ownership might
support a common law right to erect improvements. This is
the situation in which the waters are sufficiently deep and the
construction is so restricted as not to interfere with the navi-
gable capacity of the overlying waters. If no interference with
normal navigation results, there may not be any inconsistency
between the owner's right to build and the public's right; any
conceptual problems can be resolved by calling the interference
de minimis. While this right may not be significant now, its
place in the allocation of rights should be noted in case bottom-
land farming, mining, or recreation develops commercial sig-
III. CONTROLLING WATERFRONT DEVELOPMENT: THE
NAVIGABILITY CONCEPT AND FLORIDA STATUTE
1. The Significance of Navigability. As was mentioned in
the introduction to this chapter, the navigability concept bears
significantly on the question of controlling waterfront develop-
ment. Indeed, the distinction between a navigable body of
water and a nonnavigable one is perhaps the single most im-
portant distinction in the law of water rights, at least so far as
water rights in defined waterbodies are concerned. Under state
law, the distinction determines:
(a) The rights of upland owners to make nonconsumptive
uses of the water vis-a-vis other upland owners. If the water-
body is navigable, there are certain rights attributable to owner-
ship of upland bordering on the water; these are the familiar
riparian rights. As a general proposition, these rights do not
include ownership of the water, but rather rights to use it.
Between fellow riparians they are by and large co-equal rights,
and they are property rights entitled to protection under state
law.66 If the waterbody is nonnavigable, a different set of legal
rules apply. The waters themselves are subject to private own-
ership; rights to use of the water are attributable to ownership
of the water and the underlying bed, and not generally to
ownership of upland bordering on the water. However, as be-
tween two or more owners of portions of the same waterbody,
some courts, including Florida's, consider nonconsumptive use
rights in the water to be held in common, with the result that
the incidents of the water rights become quite similar to ripar-
ian rights on a navigable waterbody."7
(It should be noted that this similarity of rights in both
navigable and nonnavigable waterbodies is generally true with
regard to consumptive use of water. The general rules govern-
ing the quantity of water that may be withdrawn from a
waterbody by those entitled to make withdrawals are typically
the same in any given jurisdiction, regardless of whether the
waterbody is navigable or nonnavigable.)68
(b) The rights of the general public to make nonconsumptive
uses of the water. If a waterbody is navigable, it takes on the
attributes of a public highway, and members of the general
public have the right to use it for purposes of navigation, as-
suming they can obtain lawful access. The upland owners may
not interfere with this public right, although they may share in
it as members of the public. Public rights in navigable waters
other than navigation, such as swimming and fishing, may be
available depending on the jurisdiction.69 If the waterbody is
nonnavigable, as a general proposition there are no public
rights of use, either for navigation or anything else. An excep-
tion to this may arise when a public authority is an owner or
part owner of a nonnavigable waterbody; in such case, indi-
vidual members of the public may be entitled to the same
rights as other owners.70
(c) Ownership of the underlying bed of a waterbody. If a
waterbody is navigable, most American jurisdictions, including
Florida, consider the bed to be owned by the state in trust for
the people. While this trust is often referred to as being an
inalienable trust, it has apparently not prevented some states,
and especially Florida, from executing deeds to bottoms under
navigable waters purporting to convey title to private indi-
viduals. Determining the validity of such deeds and the rights
attributable to private ownership of navigable bottoms if such
deeds are valid presents one of the most complex and confused
problem areas of water law.71 If a waterbody is nonnavigable,
the submerged bottom is subject to private ownership in the
same way as any tract of dry land, although the incidents of
ownership, such as the right to build thereon, may be limited
by rights in others to make use of the overlying waters.72
Relating these factors to the control of waterfront develop-
ment, if a waterbody is nonnavigable (1) there is no public
right of navigation or use to be interfered with by filling activ-
ities, and (2) the overlying waters as well as the underlying
bed are subject to private ownership; consequently the con-
straints on private development are minimal. Accordingly, the
entrepreneur who wishes to avoid public control of waterfront
development will seek to have the waterbody he wishes to
develop classified "nonnavigable." We now examine the ways
this can be done.
2. Determining Navigability under State Law. As the Eng-
lish common law first developed, the question of navigability
was one of law; and the early courts apparently based their
determination of navigability on the ebb and flow of the tide.
Tidal waters carried with them the incidents attributed to
navigable waters, while waters not affected by the tides did
American jurisdictions adopted the English concept of navi-
gability but redefined the criteria. Navigability came to mean a
factual determination of traversability, regardless of tides, for
general public purposes-quite often stated as commercial pur-
poses, since that was the primary public interest at the time.74
By and large, the development of the detailed meaning and
application of the navigability concept has been left to the
courts operating on a case by case basis. This has been true in
Florida; with some minor exceptions, and possibly one major
one discussed herein, the Florida Legislature has not involved
itself with defining or establishing the criteria for navigability.
The Florida development began in 1889 with the case of
Bucki v. Cone,75 involving an injury to a bridge on the Suwan-
nee River near White Sulphur Springs. The Florida Supreme
Court, after noting that at common law tidal waters were re-
garded as navigable, stated:76
[I]n this country all rivers, without regard to the ebb and flow of
the tide, are generally regarded as navigable, as far up as they may
be conveniently used at all seasons of the year with vessels, boats,
barges or other water craft, for purposes of commerce; and others
are regarded as navigable when so declared by statute. Further than
this, what constitutes a navigable river, free to the public, is a
question of fact to be determined by the natural conditions in each
case. A stream of sufficient capacity and volume of water to float to
market the products of the country will answer the conditions of
navigability whatever the character of the product, or the kind
of floatage suited to their conditions. [I]t is not essential .
that the stream should be continuously, at all seasons of the year, in
a state suited to such floatage.
Later, in 1909, the Supreme Court of Florida had before it
a case involving title to the bed of Lake Jackson in Leon
County.77 Most of the lake bed during ordinary water levels
could be navigated only by flat-bottomed boats drawing no
more than six inches of water. Large portions of the lake
bottom were dried out for such long periods of time that crops
were planted and harvested on the bed. The court held Lake
Jackson navigable; the fact that the lake went dry at times did
not strip it of navigability since in its ordinary state is was
Thus, in Florida, waters including those that are not tidal
waters may be navigable. The converse is equally true-the fact
that waters are tidal does not necessarily mean they are navi-
gable.78 In a 1921 case the Florida Supreme Court said that
tidal waters were not navigable unless they were in such
condition as to be in fact capable of navigation for useful public
The earliest public uses of navigable waterbodies, especially
streams, was often the floating of saw logs to market. This gave
rise to the so-called "saw log test." A stream was navigable if
it was capable of floating a saw log to market.80 Today's users
of Florida's streams and lakes are much more likely to be small
boat enthusiasts desiring to use the water for recreational pur-
poses. While the Florida court has not as yet been called upon
to decide expressly whether its test of navigability embraces
navigation for purely recreational purposes, there is language
in the opinions which suggests the court may be willing to so
hold. In the Lake Jackson case, the court said, inter alia,81
The products of the community at least in some considerable mea-
sure may be transported upon the waters if so desired, and the waters
are admittedly of considerable area and useful for general navigation
in small boats containing persons engaged in pursuits either of business
or pleasure. Whether the lake has been used for commercial purposes
or not is immaterial, if it may be made useful for any considerable
navigation or commercial intercourse between the people of a large
This language, and the language of the court in such recent
cases as Baker v. State82 equating navigability with the possi-
bility of use "for purposes common or useful to the public,"
indicates a willingness to include recreational boating in the
test of navigability, a willingness that has been evidenced in
recent years in other jurisdictions as well.83
Such a test would mean that a maximum number of lakes
and streams, even the smaller ones, could come within the
navigable in fact classification, if in fact they were susceptible
to use by small boats and recreational users. If, however, a
state statute were to declare that navigability in some circum-
stances was to be determined as a matter of law, without
regard to the waterbody's navigable capacity, the obvious con-
flict between the statute and the trend of judicial decision
would suggest the need for careful examination of such a
statute. The statute is Fla. Stat. 271.09(2); the examination
B. The Strange History of 271.09(2). The Florida legislature
has not attempted a general legislative definition of naviga-
bility. With one exception legislation concerned with the navi-
gability concept as such has been limited to a series of early
special acts declaring specific bodies of water, or parts of them,
to be navigable.84 The apparent purpose of much of this legis-
lation was to create a presumption of navigability as a basis
for memorializing Congress to appropriate money for the im-
provement of navigation in particular streams.85
The one exception is an act passed in 1953,88 carrying the
AN ACT relating to Riparian Rights; in reference to submerged
bottoms not filled in and made land; conveyance and lease of the
Riparian land; riparian rights not to be assessed for purposes of taxa-
tion; relating to tax liens against riparian rights; cancelling said
liens and restoring said rights to original status, and directing the
clerks of the Circuit Courts or other taxing officers in reference
The original act contained five sections. Section 1 defined
riparian rights and declared them appurtenant to and insepa-
rable from riparian land; declared navigable waters did not
extend to certain lakes lying over areas previously conveyed to
private individuals; and confirmed certain conveyances made
more than fifty years earlier. Section 2 declared that under
certain circumstances privately owned submerged bottoms under
navigable waters were to be subject to taxes lawfully imposed.
Section 3 barred the taxation of riparian rights separate from
the appurtenant upland, and declared void any tax sale certifi-
cates describing riparian rights only. Sections 4 and 5 repealed
conflicting laws and established an effective date.
In toto the act seemed primarily concerned with taxation
of riparian rights, although section 1, read alone, talked prop-
erty law. The title of the act was itself ambiguous. It started
out describing the act as an act relating to riparian rights, not
the taxation of them. But then the phrase "in reference to"
followed-a phrase which could be read to incorporate all the
subsequent taxation material.
Whatever may have been the legislative intent, the statutory
revisers in preparing the 1953 revision of the general statutes
placed sections 1 and 2 and the first half of section 3 in chapter
192, "Taxation, General Provisions," as 192.61.7" The last half
of section 3 became 194.63(1) and (2) in the chapter on
"Tax Sale Certificates and Tax Deeds."88 Sections 4 and 5 were
omitted entirely. Thus the 1953 Florida Statutes, reenacted by
the Legislature in 1955, carried the act as part of the tax law.
If the reader is not familiar with the Florida statutory revision
process, including the biennial re-enactment of the Florida
Statutes by the Legislature as its first order of business, it is
suggested that he pause long enough to read the appended
footnote, since an understanding of this process is essential to
understanding the following discussion.89
When it came time to prepare the 1955 edition of the stat-
utes, the revisers apparently had second thoughts about the
act. The original section 1 of the act was broken into three
subsections, and original section 2 became a fourth subsection.
The four subsections were then moved to chapter 271, "Grants
To Riparian Owners", and became subsections (1) through
(4) of new section 271.09, entitled "Riparian rights defined;
certain submerged bottoms subject to private ownership; tax-
ation." Original section 3, both parts, remained in the tax
The significant language of the 1953 act for purposes of this
discussion is the following, originally part of section 1, subse-
quently appearing as Florida Statutes 271.09(2):
Navigable waters in this state shall not be held to extend to any
permanent or transient waters in the form of so-called lakes, ponds,
swamps or over-flowed lands, lying over and upon areas which have
heretofore been conveyed to private individuals by the United States
or by the state without reservation of public rights in and to said
This provision departed from all previous general legislation,
and from the remainder of the original 1953 act, in that it pur-
ported to establish a general classification of nonnavigable
waterbodies. Furthermore, it is important to note that the
classification was based on legal status rather than on a factual
determination of size or utility for navigation purposes. In effect,
the language purported to render nonnavigable as a matter of
law those waters lying over the specified submerged lands pre-
viously conveyed to private individuals. Reservation of public
rights in the conveyance provided the single exception.
Assuming an individual had a conveyance which included
the entire bottom of a navigable lake or other waterbody within
the terms of the act, it presumably made the waterbody non-
navigable, thereby extinguishing the public's right to fish, swim
or navigate in that area. Furthermore, if there were adjacent
upland owners who previously had riparian rights to use the
water, these rights arguably would be terminated, as upland
ownership on a nonnavigable waterbody generally does not
entitle one to riparian rights. The constitutional difficulties in
this legislative destruction of property rights are immediately
The act presents other difficulties. Assume an individual was
conveyed only a part of the submerged bottom. The act seems
to say that his part becomes nonnavigable, although presumably
the remainder would continue navigable. This leads to the ab-
surd possibility that various portions of the same water-body
could be nonnavigable and thus closed to the public and sub-
ject to private ownership and control (although possibly subject
to rights of other owners of nonnavigable portions),90 while the
remaining portions of the waterbody remain navigable and open
to public use. Thus, by operating on the navigability concept,
the act seemingly can completely destroy public rights, in whole
or in part, in major navigable waterbodies.
The language of the act raises a number of questions as to
its meaning. In the first place, it purports to apply to "so-called
lakes, ponds, swamps or overflowed lands ." There is nothing
in the act to explain what is meant by the phrase "so-called
lakes." One construction of the language is that, consistent with
the doctrine of expression unius,91 the act applies only to small
or shallow water areas, and was not intended to apply to 'true'
lakes, those actually navigable in fact.
Another question arises from the fact that the act operates
upon determinations as to navigability. By construing this oper-
ation prospectively, the act arguably would not affect waters
judicially held navigable prior to the effective date of the act.92
A third interpretation question arises from the language ap-
plying the act to those waters lying over submerged lands
which have been "conveyed" to private individuals. "Con-
veyed" can mean conveyed in law or conveyed in form. If the
statute is construed to apply to conveyances irrespective of their
original legal effectiveness, the result is a subversion of the
sovereignty lands trust. Once the statute operates on waters and
land not legally owned by the individual but described in a
deed, the area is nonnavigable by law and therefore outside the
trust.93 Without the protection of the trust, the previously in-
valid deed perfects title by virtue of legal estoppel against the
state.94 So construed, the act would operate to hoist itself by
its own bootstraps. The alternative would be to interpret the
language as applying only to conveyances otherwise valid, an
interpretation which then involves an exploration into the quick-
sands of the law on title to sovereignty bottoms, a subject be-
yond the scope of this discussion.
Several of the interpretation questions mentioned above open
the door to substantially limiting the scope of the act. Of course,
if the act does not apply to the navigability concept generally,
but only to taxation matters, it loses any real significance as far
as public rights and rights of other riparians are concerned. This
leads to the question, what is the legal significance of the shift
in 1955 of this provision from its initial placement in the taxation
chapter to c. 271. Since there is nothing in the 1955 Laws of
Florida ordering the shift," this appears to have been an inde-
pendent act of the Statutory Revision Department, presumably
based on its belated interpretation of the original intent of the
act. The 1955 compilation of the statutes was not re-enacted by
the Legislature until 1957; it was during this interim period
that the case of McDowell v. Trustees of Internal Improvement
Fund" was decided.
In McDowell, a central issue was whether Lake Ariana (Polk
County) was navigable. Defendant argued that because he had
a deed to the submerged bottom, subsection (2) of 271.09
rendered that portion of the lake nonnavigable as a matter of
law. The court correctly pointed out that the subsection was
part of the tax chapter, 192.61, in the 1953 Florida Statutes
and had not yet been re-enacted in its new placement in the
1955 edition as part of "Grants to Riparian Owners."97 For that
reason, the court refused to consider the new position; the
court went on, however, to point out that in its original place-
ment ". the subsection was appropriately included in the
chapter on taxation, and it was apparently intended by the
legislature to provide a guide for the benefit of tax assessors".98
Unfortunately, the problem did not end there. When the re-
visers in 1955 moved the portions of the 1953 act from the
taxation chapter to chapter 271, they simply added the new
material as another section, 271.09, to the sections 271.01 through
.08 already there. These first eight sections were originally from
the old Riparian Act of 1856, as subsequently amended by the
Riparian Act of 1921 (the Butler Bill).99 The 1921 act contained
a provision that "nothing in this Act contained shall be construed
to apply to lakes, except tide water lakes."100 When this provi-
sion was codified as part of c. 271, it became 271.06, and was
changed to read, "Nothing in this chapter ." (italics added.)
Thus, when subsection (2) (as well as the other subsections)
of 271.09 were added in 1955, section 271.06 declared that
nothing in the chapter applied to lakes, other than tide water
lakes. Obviously this provision was never intended to apply to
the new material enacted in 1953; nevertheless, there it was.
And the Florida Court in McDowell did not miss seeing it.
The court pointed out that even if subsection (2) of 271.09 were
to be read as properly placed in the 1955 revision, i.e., as not
limited to taxation, then the exception in 271.06 would take
Lake Ariana, a fresh water lake, out of the operation of the
The statutory revisers did not miss seeing it either. In 1957,
after the Legislature adjourned, the revisers set about the task
of preparing the 1957 edition of the statutes. Among other things,
they changed the proviso of 271.06 to read, "Nothing in
271.02-271.08 shall be construed to apply to lakes, except tide
water lakes" (italics added).102 Again, no 1957 legislative enact-
ment ordered the change; apparently it was the reviser's own
idea. It can be argued that the reviser was justified in making
the change, since as noted the provisions of the 1921 Butler
Bill clearly were not intended to apply to the 1953 act. Further-
more, the 1953 act contained a general repealer clause'03 which,
while not carried into the codification of the act, presumably was
intended to supersede inconsistent provisions such as 271.06.
Nevertheless, it must be noted that the Florida Legislature in
1957 had apparently approved by re-enactment of the 1955
edition of the statutes the location of 271.09, subsections (1)
through (4), with the original version of the 1921 proviso ex-
cluding all lakes, except tide water lakes, from the operation of
the chapter still on the books. Thus the reviser's version of the
statutes as they were published in 1957 reflected the original
separate identities of the various acts, but in doing so, ignored
the legal effect, if any, of the intervening 1957 re-enactment, as
well as the language of the Supreme Court in McDowell.
With this as the state of affairs, and before the 1959 legisla-
ture had an opportunity to add further to the puzzle, the Second
District Court of Appeal decided Adams v. Crews.104 In Adams,
defendants contended, as had been contended in McDowell, that
subsection (2) of 271.09 rendered their portion of Lake Mait-
land, a fresh water lake, nonnavigable as a matter of law. The
Second District Court of Appeal quoted at length from the
McDowell case, and proceeded to hold "that no error was com-
mitted by the lower court in holding that section 271.09 .
has no application in the present case."105
The opinion is entirely unclear as to the basis of that holding.
On the one hand, McDowell should not have been precedent,
since its statutory basis had been changed by the 1957 re-
enactment. If re-enactment has any legal effect, subsection (2)
should have been applied as substantive property law, thereby
determining the navigability issue and the substantive property
rights. On the other hand, 271.06 had simultaneously been rati-
fied as an exception to the entire chapter, although inconsistent
with the repeal section of the 1953 Act. If re-enactment deter-
mines the law of the moment, then the Crews decision was correct
by virtue of the effective (1955) version of 271.06. The opinion,
however, did not rely on that rule and actually cited 271.06 as it
appeared in the 1957 revision which would not have exempted
Lake Maitland from 271.09. While the Crews decision was
technically correct, therefore, its precedent value as to the status
of the statute is doubtful.
C. The Current Status of 271.09(2). Putting aside for the
moment the interpretation questions discussed above, the sub-
stantive impact of 271.09(2) turns on whether it is tax law or
property law. The original intent of the legislature is not al-
together clear, and the Supreme Court's reading of it in McDowell
as tax law is as good a guess as any. No subsequent case has
ever held 271.09(2) applicable as property law to any body
of water. Assuming the section was originally enacted as tax
law, the question then turns on whether the reviser's shift of
part of the original act from the tax chapter to the chapter on
grants to riparians, coupled with the legislature's subsequent
biennial re-enactments, has the effect of making the shifted pro-
vision substantive property law.
Legislative re-enactment has been held to correct some errors,
notably constitutional defects in statute titles. And there is dictum
to the effect that the re-enacted form, if adopted in clear lan-
guage, governs over earlier versions.106 Futhermore, there is a
clear legislative policy of supporting the Florida Statutes as
"official," and indeed this is the very point of the biennial re-
On the other hand, revision changes effected without the
legislative notice provided by specific reviser's bills and his-
torical notes would seem to be without legislative sanction,
and arguably would be ineffective to bring about major sub-
stantive changes even though contained in the re-enacted version
of the statutes.108 A general legislative intent to re-enact would
not seem to support major substantive changes, particularly
location changes, of which there is no notice on the face of the
revision. Nor should the legislature be interpreted to have placed
upon itself the burden of checking each revised edition of the
statutes for inadvertent or unauthorized variations, especially
if they may be detrimental to the interests of the state. The
Statutory Revision Department has no authority by itself to
alter the statutes,10' and specific legislative intent presumably
would be necessary to ratify any unauthorized changes in sub-
On this basis, the original placement of the 1953 act in the
taxation chapters would be deemed to reflect the proper place-
ment of the act (as construed in McDowell), and the later
shift of parts of the act to chapter 271 would be without legal
effect. This result would seem to be desirable from at least two
viewpoints. First, it would protect the substantive law enacted by
the Legislature from being undercut by administrative decisions
in the reviser's office. Secondly, and more importantly, it would
clearly remove 271.09(2) from the body of substantive Florida
water law, where, if it remained, it could constitute a substantial
detriment to public rights in navigable waterbodies.
One final point to complete the mosaic of 271.09 should be
noted. As explained above, the original section 1 of the 1953 act
when shifted became the first three subsections of 271.09. The
above discussion has concentrated primarily on that part of the
original section 1 that became subsection (2) of 271.09. Sub-
section (1), the first several sentences of the original section 1
of the 1953 act, simply defined riparian rights, and declared
them appurtenant to the upland. Interestingly enough, and de-
spite the statement in McDowell that the 1953 act was tax law,
the Florida courts have not been hesitant to refer to subsection
(1) as a statutory recognition of substantive riparian rights.'xx
It is difficult to reconcile the two positions. If subsection (1) is
held to be property law, it would be logically untenable to hold
that subsection (2) (and presumably subsection (3) also) was
not. Both subsections were originally part of the same section 1
of the 1953 act; neither subsection in itself mentions tax law or
taxation; both subsections have the same legislative history.
One alternative is to discount the judicial treatment of sub-
section (1) as dictum. The loss of subsection (1) from the body
of substantive water law would not be great. The subsection
essentially repeats what is already well established as riparian
rights. Furthermore, the subsection contains language which
seemingly prevents the separation of any riparian rights from
the ownership of the upland, a rule, if it is one, that is inconsist-
ent with generally accepted property doctrines, and one that
has been ignored in Florida law.112
During the early period in the life of a state when the prob-
lems center around attracting people to live in the state and to
the building of economic and political institutions, it can be
expected that the policies of the state, as reflected in its courts,
its legislature, and its administrative agencies, will be designed
to promote solutions to these problems. The experience in Florida
supports this-the legislature through the Riparian Act of 1856
and other legislation promoted waterfront development, the
Trustees of the Internal Improvement Fund followed a policy of
virtually unrestricted grants of submerged bottomland, and the
courts by and large maintained a hands-off attitude. This era
has now come to a close.
Florida's problems are no longer those of an undeveloped
state. The problem now is to preserve and wherever possible
restore natural resources and amenities in order that the people
today and in generations yet to come may continue to enjoy the
advantages that have brought about the population and economic
growth of the last 50 years. This means that old law and old
attitudes must change to take into account new conditions and
new goals. The repeal by the Florida legislature of the 1856 and
1921 Riparian Acts and the replacement of these acts with the
1957 Bulkhead Act was a major step in this direction. Unfortun-
ately, the Bulkhead Act of 1957 excludes a major area of natural
resource concern in Florida-freshwater lakes and streams.
Until the legislature corrects this situation, indiscriminate and
detrimental waterfront development along freshwater lakes and
streams will be controlled largely through common law concepts
applied by the courts, and through the administrative policies
adopted by the Trustees of the Internal Improvement Fund. In
the first part of this article we looked at some of the common law
concepts applicable to waterfront development on freshwater
lakes and streams. We saw that there has been a tendency in
Florida law to confuse ownership of the submerged bottoms with
the right of the upland owner to build out into the navigable
waterbody. These are two separate issues and must be dealt
with separately. Furthermore, we have seen that an important
distinction should be made between structures erected for pur-
poses of improving navigation, and structures erected for other
purposes. The former have long had common law justification
because they promoted the use of the waterbodies, and by their
very nature were such as not to materially interfere with public
rights to the use of navigable waterbodies. The latter, on the
other hand, especially fills for the purposes of "making Florida
land," frequently interfere with public rights of use of the
water, and do not by their nature limit themselves to enhancing
the usefulness of the waterbody. The courts are just beginning
to struggle with these issues; it is hoped that the analysis sug-
gested here will contribute to a better understanding of them
on the part of both the courts and the affected public agencies.
Legislative enactments are not necessarily the solution to the
problems described. As we have seen in part three of this article,
ill-conceived or poorly-drafted legislation coupled with the pro-
cess of legislative codification and revision can contribute to
confusing and indeed to undermining the rights of the public
and the state's role in protecting the public's interest in Florida's
waters. Statutes such as Florida Statute Section 271.09(2) need
to be reviewed and where appropriate removed from the statute
books; replaced if necessary by legislation better designed to
promote the state's concerns. At the same time, poorly-drafted
legislation is perhaps a greater danger than no legislation at all.
Florida, as far as its legal framework is concerned, is at a
turning point, reflecting the parallel turning points in policies
and attitudes and problems. There is little doubt that additional
water resources legislation will be drafted over the next period
of years. A central question is whether that legislation will sim-
plify and promote the state's interests, while protecting private
rights adequately, or whether the legislation will be such as to
further confuse and detract from an overall state program. The
problems are great; the stakes are large; it is to be hoped that
Florida's response will be equal to both.
CONTROLLING WATERFRONT DEVELOPMENT
1. Wis. Stats. 59.971, 144.26 (Supp. 1965).
2. 1 Farnham 527.
3. Id. at 529.
4. E.g., New York, N. H. & H. R. R. v. Long, 72 Conn. 10, 43 Atl. 559
(1899) (Thames River); Bainbridge v. Sherlock, 29 Ind. 364, 95
Am. Dec. 644 (1868) (Ohio River); Delaplaine v. Chicago &
N. W. Ry., 42 Wis. 214 (1877). See also Dutton v. Strong, 66 U. S.
(1 Black) 23 (1861) (Lake Michigan); Illinois v. Illinois Cent. R.R.,
33 Fed. 730 (C.C.N.D. Ill. 1888), aff'd, 146 U. S. 387 (1892); Annot.,
40 L.R.A. 735 (1905).
5. E.g., Sherlock v. Bainbridge, 41 Ind. 35, 13 Am. Rep. 302 (1872),
modifying 29 Ind. 364, 95 Am. Dec. 644 (1868) (Ohio River); cases
cited note 4 supra.
6. A number of these early cases involved ports and harbors where
loading and unloading of deep-draft vessels was a major link in the
conduct of trade. If the riparian owner could not erect a wharf no
one could; the erection of a wharf by a stranger, including the state,
would be an interference with the upland owner's right of access, a
right everyone recognized. See 1 Farnham 537, n. 14.
7. Dana v. Jackson Street Wharf Co., 31 Cal. 118, 89 Am. Dec. 164
(1866) (San Francisco Bay); Revell v. People, 177 Ill. 468, 52 N.E.
1052 (1898); Bowlby v. Shively, 22 Ore. 410, 30 Pac. 154 (1892),
aff'd, 152 U. S. 1 (1893). See also Martin v. O'Brien, 34 Miss. 21
(1857). People ex rel. Teschemacher v. Davidson, 30 Cal. 379 (1866).
8. E.g., Fla. Stat. 253.122 (1967) (the state bulkhead act); see also
1 Farnham 544, n.2, 545, n.3, 550, n.13, and cases cited therein.
9. Fla. Laws 1856, c. 791 (The Riparian Act of 1856).
10. Fla. Laws 1921, c. 8537 (The Butler Bill).
11. Fla. Laws 1856, c. 791 1, Fla. Laws 1921, c. 8537 6.
12. Fla. Stat. 253.12(1) (1967).
13. Fla. Laws 1856, c. 791 1.
14. Geigor v. Filor, 8 Fla. 325 (1859) (Atlantic Ocean).
15. 19 Fla. 200 (1882) (Pensacola Bay).
16. Id. at 229. See also Hicks v. State ex rel. Landis, 116 Fla. 603, 156
So. 603 (1934) (wharf on navigable Lake Santa Fe authorized by
permit from Trustees of Internal Improvement Fund).
17. 93 Fla. 888, 112 So. 841 (1927) (Atlantic Ocean).
18. "The Riparian Acts of 1856 and 1921 are applicable only
to 'any navigable stream or bay of the sea or harbor. The locus in
quo here is on the ocean front." Id. at 899, 112 So. at 845.
19. Id. at 898, 112 So. at 844.
20. Two years later the Florida legislature amended the city charter to
authorize the city to control the use of submerged lands along the
ocean front. Fla. Spec. Acts 1927, c. 13101.
21. 93 Fla. at 902, 112 So. at 846.
22. 128 Fla. 79, 174 So. 731 (1937) (Atlantic Ocean).
23. Id. at 84, 174 So. at 733.
24. Fla. Spec. Acts 1925, c. 10486, declared this section of the beach
to be a public highway.
25. 102 Fla. 1047, 137 So. 682 (1931) (Sarasota Bay).
26. Id. at 1054, 137 So. at 685.
27. The case turned on the cause of action; plaintiff finally lost for lack
of proper standing.
28. 32 Fla. 82, 13 So. 640 (1893) (Black River).
29. Id. at 109, 13 So. at 649.
30. Water Resources and the Law 54, n.14 (U. of Mich. Law School
31. 57 Fla. 399, 48 So. 643 (1909).
32. Id. at 403, 48 So. at 645; see Thiesen v. Gulf, F. & A. By., 75 Fla.
28, 78 So. 491 (1918) (Pensacola Bay), in which the Court indicates
that there is no common law right to wharf out to the channel, but
there is a right to wharf out as far as the low-water mark. See also
Deering v. Martin, 95 Fla. 224, 116 So. 54 (1928) (Biscayne Bay).
33. 6 Barn. & Cress. 566, 108 Eng. Rep. 560 (K.B. 1827).
34. 6 Barn. & Cress. at 595, 108 Eng. Rep. at 570.
35. 4 Adol. & Ellis 385, 111 Eng. Rep. 832 (K.B. 1836).
36. That decision expressly rejected the King v. Russel test of general
commercial utility and returned to Lord Hale's earlier rule that the
sole consideration in justifying encroachments into navigable waters
was the effect upon navigation. Hale, De Jure Maris 85; see discussion
in 1 Farnham 529-533.
37. See 1 Farnham 528.
38. Magna Carta, XVI, XXIII (1215); see 1 Farnham, 165-172.
39. See Sullivan v. Moreno, 19 Fla. 200 (1882) (Pensacola Bay);
Broward v. Mabry, 58 Fla. 398, 50 So. 826 (1909) (Lake Jackson).
40. See cases discussed B, supra.
41. That filling is a problem in a number of counties in Florida is docu-
mented by a 1956 water problem study. See Florida Water Resources
Study Comm'n Report of County Committees on Water Problems
(1956), 11.A.6. at 11 (Citrus County), 36 Highlands and Hills-
borough counties), 43 (Lake County), 46 (Leon County), 66 (Pasco
42. 4 Fla. Supp. 85 (1953).
43. After entry of the decree by the lower court the Miami Beach City
Council voted 4 to 2 not to appeal the decree.
44. McDowell v. Trustees of Internal Improvement Fund, 90 So. 2d 715
(Fla. 1956). See also Adams v. Crews, 105 So. 2d 584 (2d D.C.A.
Fla. 1958) (Lake Maitland).
45. The defendants recognized the importance of the navigability classi-
fication and contended that the lake was in fact and in law non-
navigable. Both the trial court and the Supreme Court thought
46. 90 So. 2d at 718. (For equitable reasons on the facts, the Court
declined to require defendants to remove the fill material already in
47. Fla. Laws 1856, c. 791, 1.
48. Fla. Laws 1921, c. 8537.
49. Id. 1.
52. See the candid remarks of Drew, C. J. and Roberts, J., in Trustees
of Internal Improvement Fund v. Claughton, 86 So. 2d 775 (Fla.
53. Fla. Laws 1957, c. 57-362.
54. Fla. Laws 1957, c. 57-362; 1; Fla. Stats. 253.12(1) (1967).
55. Fla. Laws 1856, c. 791 1; Fla. Laws 1921, c. 8537 1.
56. Freed v. Miami Beach Pier Corp., 93 Fla. 888, 112 So. 841 (1927)
("[T]he Riparian Acts of 1856 and 1921 .. are applicable only
to 'any navigable stream or bay of the sea or harbor.' The locus in
quo here is on the ocean front." Id. at 899, 112 So. at 845.
57. Fla. Laws 1921, c. 8537 6.
58. McDowell v. Trustees of Internal Improvement Fund, 90 So. 2d 715
(Fla. 1956) (Lake Ariana).
59. Fla. Laws 1957, c. 57-362 1; Fla. Stat. 253.12(1) (1967).
60. See discussion under The Riparian Right to Wharf in Florida, supra.
61. See C, Wharfing v. Filling, supra.
62. See discussion in A, supra.
63. See Powell on Real Property, pp. 283-344 (rev. ed. 1962); Prosser
on Torts 87-90 (3d ed. 1964).
64. Note that the public navigation right still exists after a conveyance
of the bottom, since it is not an incident of sovereign ownership.
Gies v. Fischer, 146 So. 2d 361 (Fla. 1962) (bulkhead line could
validly be established over submerged bottomland even though title
had previously been conveyed to a private owner; the privately held
land outside of the bulkhead line could not be built upon).
65. This is true, even though it may have been difficult to prevent him
from acting as if he had such right. See 1 Farnham, 165-171. Note
the restraints imposed by Magna Carta XVI.
66. See 1 Farnham 63; Maloney and Plager, Florida's Streams, 10 U.
Fla. L. Rev. 294, 299-300 (1957).
67. Maloney and Plager, Florida's Lakes, 13 U.Fla.L.Rev. 1, 67 (1960).
68. See, e.g., Ellis, Some Legal Aspects of Water Use in North Carolina
(Symposium on the Law of Water Allocation); Agnor, Riparian
Rights in the Southeastern States, 5 S.C.L.Q. 141 (1952).
69. See generally, 2 Farnham, 1364; Maloney and Plager, Florida's Lakes,
13 U.Fla.L.Rev. 1, 31 (1960).
70. See Triple E. Devel. Co. v. Osceola County, 90 So. 2d 600 (Fla.
71. Maloney, Plager, & Baldwin, Water Law and Administration in Flor-
ida, c. 12 (1968) (in process).
72. Note 67, supra.
73. See 28 Halsburg, Laws of England 358 (1914); 1 Farnham 36-40.
But compare 12 B.U.L. Rev. 169 (1932): "Nothing could be more
clear and reasonable than the English common law on this subject.
Water which is an arm of the sea is public and belongs to the
sovereign; water not an arm of the sea, that is nontidal water, .
belongs to the adjoining proprietors," with Annot., 23 A.L.R. 757
(1923): "Three absolutely false premises have been assumed by
[American] courts as a basis for their opinions. These false
premises are that, at common law, only waters in which the tide
ebbed and flowed were regarded as navigable; that there was
distinction in the power of the King over tidal and nontidal waters;
and that he held the title to tidal waters in trust for the people, so
that he could not grant them into private ownership."
74. See generally 1 Farnham 23.
75. 25 Fla. 1, 6 So. 160 (1889).
76. Id. at 18, 6 So. at 161-62.
77. Broward v. Mabry, 58 Fla. 398, 50 So. 826 (1909).
78. See Clement v. Watson, 63 Fla. 109, 58 So. 25 (1912).
79. Tarpon Springs v. Smith, 81 Fla. 479, 498, 88 So. 613, 619 (1921)
(Anclote River) (dictum).
80. E.g., Collins v. Gerhardt, 237 Mich. 38, 211 N.W. 115 (1926);
Village of Bloomer v. Town of Bloomer, 128 Wis. 297, 107 N.W.
974 (1906); Olson v. Merrill, 42 Wis. 203 (1877); see Bucki v.
Cone, 25 Fla. 1, 19, 6 So. 160, 161 (1889) (Suwanee River).
81. Broward v. Mabry, 58 Fla. 398, 412, 50 So. 826, 831 (1909).
82. 87 So. 2d 497 (Fla. 1956) (Lake lamonia).
83. A number of state courts have recently considered navigation by
small boats for recreational purposes significant in determining
navigability. E.g., Kerley v. Wolfe, 349 Mich. 350, 84 N.W. 2d 748
(1957) (lake); State ex rel. Lyon v. Columbia Water Power Co.,
82 S.C. 181, 63 S.E. 844 (1909) (navigable canal); Muench v.
Public Serv. Common, 261 Wis. 492, 53 N.W.2d 514 (1952) (river).
One court stated recreational boating on a waterbody to be "as
sacred in the eye of law as its navigability for any other purpose,"
City of Grand Rapids v. Powers, 89 Mich. 94, 97, 50 N.W. 661, 662
(1891). Other jurisdictions have extended the definition to include
capacity for navigation for pleasure and public convenience, e.g.,
Roberts v. Taylor, 47 N.D. 146, 181 N.W. 622 (1921) (lake);
Hillebrand v. Knapp, 65 S.D. 414, 274 N.W. 821 (1937) (lake), and
a recent Ohio case details the gradual evolution of the law of navi-
gability to encompass recreational uses. Coleman v. Schaeffer, 163
Ohio St. 202, 126 N.E.2d 444 (1955). See also 56 Am. Jur., Waters
84. E.g., Fla. Laws 1872, c. 1907 (Alaqua Creek); Fla. Laws 1860, c.
1220 (Withlacooche River); Fla. Laws 1849, c. 291 (East River).
85. E.g., Memorial [No. 2] (1877) (Ocklawaha River); Memorial [No.
3] (1875) (Withlacooche River); Memorial [No. 4] (1870) (Holmes
Creek). See Gaitanis, Florida Watercourses Declared Navigable, 39
Fla. B. J. 1116 (Dec. 1965).
86. Fla. Laws 1953, c. 28262.
87. Fla. Stat. 192.61 (1953).
88. Fla. Stat. 194.63 (1953).
89. Since 1949, Florida has had a Statutory Revision Department charged
with the duty of systematically and continuously revising the general
statutory law of the state. This is accomplished in the form of a
revised compilation of the general statutes, assembled and published
every two years. This compilation is known as the Florida Statutes,
and the volumes (currently three per compilation) carry the year
in which they are published. Thus, for example, the compilation
published in 1953 was the Florida Statutes (1953).
As part of the process, and to make the volumes the official law
of Florida, the Legislature as its first act of the legislative session
following publication enacts the newly-compiled volumes, declares
them to be the governing law, and repeals all other general laws.
However, the Florida Legislature meets in the Spring of odd-
Snumbered years; the revised statutes are compiled and published in
the Fall of odd-numbered years. While this means that the new
compilation can include the session laws of a general nature that
were just enacted, it also means that the Legislature does not get
around to enacting the newly compiled volumes until almost two
years after publication.
Thus, the Fla. Stats. (1953) were enacted as official law by the
1955 Legislature, as its first legislative act. After the 1955 Legislature
adjourned, the Statutory Revision Department went about preparing
the new compilation, which was entitled Fla. Stats. (1955). These
volumes actually consisted of all general statutes re-enacted at the
beginning of the 1955 legislative session [these were the statutes in
the volumes entitled Fla. Stats. (1953)], and all general acts, revisions,
alterations, repeals, and amendments approved by the 1955 legis-
lature. (All changes initiated by the Statutory Revision Department
in carrying out its duties are required by Fla. Stat. 16.44(1) to be
submitted to the legislature in the form of reviser's bills.) The new
volumes are prima facie evidence of the law until the next legislative
session, in this case in 1957, when they, in turn, are enacted in toto
and become the official law. This cycle is repeated every two years.
90. See Duval v. Thomas, 114 So.2d 791 (Fla. 1959).
91. Expressio Unius Est Exclusio Alterius-expression of one thing is the
exclusion of another. Black's Law Dictionary 692.
92. That date is either June 15, 1953, the date of original enactment or
April 15, 1957, the date of re-enactment as part of c. 271, depending
on the effects of the biennial re-enactment. See discussion infra.
93. The trust applies only to sovereignty lands, defined as navigable
bottoms. Broward v. Mabry, 58 Fla. 398, 50 So. 826 (1909).
94. Estoppel by deed is available against the state, but not when the
conveyed bottoms are sovereignty lands under trust. See Trustees
of Internal Improvement Fund v. Lobean, 127 So.2d 98 (Fla. 1961).
95. See Fla. Laws 1955, c. 29615 7, "Corrections in Florida Statutes."
Chapter 29615 was the 1955 general re-enactment; section 7 con-
tained the reviser's corrections, submitted as reviser's bills pursuant
to the statutory revision procedure. See Fla. Stat. 16.44 (1955).
96. 90 So.2d 715 (Fla. 1956).
97. McDowell v. Trustees of Internal Improvement Fund, 90 So.2d 715
(Fla. 1956) (Lake Ariana).
98. Id. at 717. It may be noteworthy that the court expressly distin-
guished between the subsection and the act as a whole.
99. Fla. Laws 1856, c. 791; Fla. Laws 1921, c. 8537.
100. Fla. Laws 921, c. 8537 6.
101. McDowell v. Trustees of Internal Improvement Fund, 90 So.2d 715,
717 (Fla. 1956) (Lake Ariana).
102. Fla. Stat. 271.06 (1957). Section 271.01 had been repealed by the
1957 Bulkhead Act.
103. "All laws or parts of laws in conflict herewith are hereby repealed."
Fla. Laws. 1953, c. 28262 4.
104. 105 So. 584 (2d D.C.A. Fla. 1958).
105. Adams v. Crews, 105 So.2d 584, 588 (2d D.C.A. Fla. 1958) (Lake
106. Jones v. Christina, 184 So.2d 181 (Fla. 1966); Foley v. State ex
rel. Gordon, 50 So.2d 179 (Fla. 1951). Of course, re-enactment does
not remedy "any unconstitutionality of content," which of course no
legislation could cure. State ex rel. Badgett v. Lee, 156 Fla. 291, 296,
22 So.2d 804, (1945); cf. Massachusetts Bonding & Ins. Co. v.
Bryant, 189 So.2d 614 (Fla. 1966).
107. See Fla. Stat. 16.19 of any particular revision; see also 16.43.
108. "Any revision either complete, partial or topical, prepared for sub-
mission to the legislature, shall be accompanied by revision and
history notes relating to the same, showing the changes made therein,
and the reason for such recommended change." Fla. Stat. 16.44(1)
(1967). This provision has been on the books during this entire
legislative history. See Fla. Stat. 16.44(1) (1953).
109. Foley v. State ex rel. Gorden, 50 So.2d 179 (Fla. 1951).
110. Cf. Fourco Glass Co. v. Transmirra Prod. Corp., 353 U. S. 222, 227
(1957) quoting Anderson v. Pacific Coast S. S. Co., 225 U. S. 187,
198-199 (1912): "The change of arrangement, which placed portions
of what was originally a single section in two separated sections
cannot be regarded as altering the scope and purpose of the enact-
ment. For it will not be inferred that Congress, in revising and
consolidating the laws, intended to change their effect unless such
intention is clearly expressed."
111. Tri-State Enterprises, Inc. v. Berkowitz, 182 So.2d 40, 43 (2d D.C.A.
Fla. 1966); Carmazi v. Board of County Comm'rs of Dade County,
108 So.2d 318, 322 (3d D.C.A. Fla. 1959); Hayes v. Bowman, 91
So.2d 795, 800 (Fla. 1957); Webb v. Giddens, 82 So.2d 743, 745
112. See, e.g., the discussion of Burkhart v. Fort Lauderdale, 168 So.2d
65 (Fla. 1964).
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