Title: "Save our Rivers" or "Save our Property": The Costs and Consequences of Coastal
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Title: "Save our Rivers" or "Save our Property": The Costs and Consequences of Coastal
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Publisher: The Florida Bar Journal
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Spatial Coverage: North America -- United States of America -- Florida
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Abstract: The Florida Bar Journal Article January 1988
General Note: Box 7, Folder 3 ( Vail Conference 1988 - 1988 ), Item 64
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
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Real Property, Probate


and Trust Law


"Save our Rivers" or "Save our Property":

The Costs and Consequences of Coastal

by Joseph W Jacobs and Alan B. Fields


The decision in Coastal Petroleum Co.
v. American Cyanamid Co., 492 So. 2d 339
(Fla. 1986)-a decision widely hailed by the
press as one to "Save our Rivers"-went far
beyond confirming the state's ownership of
lands beneath navigable waters. It inadver-
tently created a title cloud which casts doubt
on the ownership of all of the waterfront
property in the state and often on the own-
ership of land at great distances from any
waterbody. Most will agree that, as a mat-
ter of policy, the state ought to own Florida's
navigable waterbodies-its lakes and riv-
ers-and the lands under those waterbodies.
The Coastuldecision achieved this result by
eliminating many of the summary argu-
ments that could be made for private own-
ership of navigable waterbodies.' The
trouble comes, not when one applies Coastal
to currently navigable waters, but when one
applies Coastal to lands which are cur-
rently-and have been for recorded mem-
ory-high and dry.
Without the benefit of the summary
means of confirming title, eliminated by
Coastal, one must rely on a body of com-
mon law rules and an examination of con-
ditions and occurrences over the last 140
years to determine who, as between the state
and the private owner, owns a given parcel.
In applying those rules, one reaches the con-
clusion that the land hundreds even thou-
sands of yads above the existing waterlevel
may be sovereignty land owned by the state.
For those who bought the land and have
for years farmed it, paid taxes on it, and
even built their homes on it, this is certainly
a disturbing conclusion. Equally signifi-
cantly, and regardless of the actual owner-
ship, the potential for state claims clouds


the title and reduces the marketability of
the property.
To explain the origination of this title
cloud, which we refer to as the "sovereignty
lands problem," we must first review a por-
tion of Florida's real property history.

Historical Background-
Genesis of the Problem
Following the War of 1812, Spain ceded
the State of Florida and its land (subject
only to a few pre-existing land grants) to
the United States. Following Florida's ad-
mission into the Union on March 3, 1845,
title to much of this land passed to the state
government, under several different grants
and legal doctrines. For purposes of this
analysis, only two of these granting doc-
trines need be addressed: The equal footing
doctrine and the Swamp and Overflowed
Lands Act.
Immediately upon becoming a state, the
State of Florida acquired title to all lands
under navigable waters (so called "sover-
eignty lands") through the common law
"equal footing"doctrine. This occurred auto-
matically on March 3, 1845, without any
formal conveyance and without an express
identification of the sovereignty lands con-
veyed. As the name implies, the doctrine was
designed to treat new states on an equal foot-
ing with the original 13 which emerged from
the Revolution with title to their own sov-
ereignty lands.
Some 20 years before Florida became a
state, the United States commissioned a sur-
vey of the new region, directing its surveyors
to "accurately meander, by course and dis-
tance all navigable rivers... all navigable
bayous flowing from or into such rivers;


IT, 0


[and] all lakes or deep ponds." The survey-
ors went forth, surveyed and meandered
those waterbodies they deemed navigable.
No attempt was made to meander or other-
wise draw boundaries along or around other
waterbodies, although the exact extent of
non-navigable waterbodies was noted in the
surveys where the waterbodies intersected
section lines. In due course, these surveys
were completed and submitted to and ap-
proved by the state.
The second, and by volume much larger,
category of lands passing from the federal
to the state government was "swamp and
overflowed" (S&O) lands. In 1850, Con-
gress, to encourage the drainage and im-
provement of swamps and wet lands, passed
the Swamp and Overflowed Land Act of
1850. Act of Sept. 28, 1850, ch. 84, 9 Stat.
519. This act provided for the conveyance
of S&O lands to the states with the expec-
tation that they, in turn, would deed them
to private hands. The idea was that private
interests would drain and reclaim these
lands, making them fit for agriculture or
otherpurposes.
Ultimately some 20 million acres, or
about two-thirds of Florida's land mass,
passed to the State of Florida as S&O lands.
The state, through the trustees of the Inter-
nal Improvement Fund (the Governor and
Cabinet) began actively selling off the S&O
lands. The deeds given by the trustees were
absolute on their face and purported to con-
vey all of the trustees' interest in the land.
Neither these deeds nor the patents from
the federal government (to the state of S&O
lands or to private individuals) made men-
tion of unmeandered waterbodies, even
when such waterbodies were clearly shown


THE FLORIDA BAR JOURNAL/JANUARY 1988 59












0


on the federal surveys. The landowners paid
a set price per acre, with the total based on
the gross acreage in the parcel without any
adjustment for unmeandered waterbodies.
By contrast, when a parcel contained me-
andered waterbodies, the trustees' deeds
carefully reserved (and did not bill the pur-
chaser for) the lands below the meander
lines.
The purchasers paid taxes on this S&O
land, farmed and built homes and other struc-
tures, all without any indication that the
state might claim some interest in the prop-
erty described in their deeds.
The state thus acquired all of the lands
under navigable waterbodies and most of
the adjacent lands by virtue of their char-
acterization as swamp and overflowed
lands. Beyond the federally commissioned
surveys, no inventory or other description
of sovereignty lands has been attempted.
Coastal tells us that soveignty lands may
well lie beneath waterbodies which were not
meandered in the original surveys and that
such lands were implicitly reserved from the
conveyances of S&O lands. Thus, today no
one knows just which lands passed to the
state under the unrecorded transfer of ti-


tie worked by the equal footing doctrine.
Or, from the other perspective, no one
knows just which lands deeded by the trus-
tees purported to convey the state's interest
in sovereignty lands.

Govmnn Lega Doctrines
There are basically five legal doctrines
which in their interactions create the sover-
eignty lands problem. They are:
A. If a given waterbody was navigable on
March 3, 1845, the lands under that water
body are sovereignty lands and ownership
passed to the state-more accurately to the
legislature of the state-under the equal
footing doctrine. The test of sovereignty
lands is navigability in 1845; current navi-
gability, if not irrelevant, at most gives rise
to an inference of 1845 navigability.
B. The dividing line between public and
private ownership of lands adjacent to state-
owned freshwater waterbodies is the ordi-
nary high-water line (OHWL). The most
recent Florida case addressing the issue, con-
cluded "[t]he ordinary high water line
(OHWL) is described as 'the point up to
which the presence and action of the water
is so continuous as to destroy the value of


The Problem Today
The problem in the wake of the Coastal
Decision is one of uncertainty. For years,
the practicing bar, relying on a series of cases
implicitly overruled by Coastal, had believed
that if the state sold land to you, and that
deed contained no exclusion for waterbod-
ies and the official survey showed no navi-
gable waterbody, you owned the land.
Moreover, the bar believed that M RTA and
other title doctrines confirmed this common-
sense result.
Coastal held that the trustees, until mod-
ern times, lacked the power to convey the
state's title to sovereignty lands and accord-
ingly that the trustees' S&O deeds, no
matter how absolute on their face, did not


60 THE FLORIDA BAR JOURNAL/JANUARY 1988


the land for agricultural purposes by pre-
venting the growth of vegetation.'" Board
of Trustees v. Walker Ranch. 496 So. 2d
153,155 (Fla. 5th D.C.A. 1986) quoting Til-
den v. Smith, 94 Fla. 502, 113 So. 708, 712
(1927).
C. Changes in the OHWL resulting from
slow, natural processes (accretion, reliction
and erosion) change the dividing line be-
tween public and private ownership. Avul-
sive changes resulting from sudden or arti-
ficial changes affecting the OHWL do not
affect the boundary between state and pri-
vate ownership. Thus, as the natural move-
ment of waters build up orerode lands along
one side of a waterbody, the line of demar-
cation between public and private owner-
ship adjusts to correspond to the then
existing OHWL. On the other hand, avul-
sive changes do not change this line of
demarcation and over time a significant gap
may develop between the water-line and the
public-private boundary. The boundary be-
tween private and state ownership is then
not the current OHWL, but rather the
OHWL which would exist had there been
no avulsive changes since the date of state-
hood.
D. There is a rebuttable presumption that
waterbodies which were meandered in the
original U.S. government surveys were navi-
gable and conversely that unmeandered
waterbodies were not. This however is not
an absolute rule, but may be challenged in
court.
E. The state does not lose title to any sov-
ereignty lands through the application of
the Marketable Record Title Act (M RTA),
the doctrine of contemporaneous determi-
nation (determination by the original sur-
veyors), or the doctrine of legal estoppel (if
you sell something you don't own and later
acquire it, title passes automatically). This
was the holding of Coastal.


f. 0









convey any sovereignty lands. This leaves
it to the lower courts to identify the sover-
r eignty lands by deciding the questions of
(1) whether a given waterbody was naviga-
ble in 1845 and (2) where the OHWL would
be had there been no avulsive changes in
the last 140 years. Both of these determina-
tions are difficult, requiring fact and expert
intensive proofs, and are likely to yield un-
certain and inconsistent results.
Absent the serendipitous location of a
mid-nineteenth century document demon-
strating navigability, there is no direct
manner of determining whether a given wa-
terbody was navigable on the date of state-
hood. The only consistently available con-
temporaneous records are the original
government surveys, which themselves are
subject to error. Perhaps equally disturb-
ing, at least as to unmeandered waters, is
that the presumption of nonnavigability
runs against state ownership. This suggests
a possibility, if not a probability, that the
state will not, if the issue is pressed, be able
to prove the 1845 navigability of waterbod-
ies which are obviously navigable today.
The determination of the OHWL is more
complex still-it requires an analysis of all
avulsive changes since statehood. In order
to determine the boundary between state
r and private land-which owing to avulsive
changes, likely does not coincide with the
current OHWL-courts must analyze the
interaction of a host of complex factors.
This uncertainty was brought to the fore-
front in Coastal in which the state claimed
(1) that the Peace and Alafia Rivers, north
of Township 39 South, although not me-
andered, were navigable and thus state
property, and (2) that because of avulsive
lowering of the water, the area owned by
the state extended hundreds of yards be-
yond the physical river, past a cypress
swamp to the upland edge of an area of
mixed hardwoods.
More recently the trustees filed and im-
mediately dismissed a quiet title action as
to lands adjacent to the Kissimmee River.
Trustees ofthe Internal Improvement Trust
Fundv. Lait Maxcy Corporation, Case No.
87-2044 (Fla. 9th Cir. Ct. 1987). This ac-
tion restated applicable law in claiming
lands "which lie below the ordinary high
water line of the Kissimmee River as such
line existed immediately prior to [certain
avulsive changes]." Yet the claim, without
specifically describing the extent of the state
claim, listed lands in 25 sections, some more
than two miles from the river (as shown on
pre-1965 maps) as being affected. The De-
partment of Natural Resources (DNR), as
evidenced by documents available in a crimi-


nal trespass case involving the same lands,
takes the position that state ownership in-
cludes thousands of acres of sometimes wet,
sometimes dry, frequently muddy, marsh
and swampland.
Such expansive state claims cast a "sov-
ereignty cloud" over much of the land in
this state. Over 20 million acres were char-
acterized as being"more wet than dry"and
conveyed to the State of Florida as
S&O lands. More recently, Douglas A.
Thompson,assistant chiefofthe DNR Bureau
of Survey and Mapping, wrote "[w]e have
consistently found the OHWL to be 500 to
2000 feet landward from the open water."2
The use of that generalized standard raises
questions as to the ownership of many of
Florida's prime waterfront residences.
Regrettably there is no expedient or af-
fordable means of determining the owner-
ship of a riparian parcel or of preventing
what many would characterize as excessive
ownership claims by state agencies. Absent
judicial determination addressing the fact
and expert intensive questions of(l) whether
a waterbody was navigable in 1845, and (2)
if so, how wide it would be today had there
been no avulsive changes, no one can state
with certainty whether a given parcel
(whether or not riparian) close to an argu-
ably navigable waterbody is in fact avul-
sively exposed sovereignty land. The fact
that an individual has a deed from the state,
has improved the property and has paid
taxes does not matter. It may still be state
land.

The State's Position
The Department of Natural Resources
is charged by F.S. 253.002 (1985) with the
duty of defending the state's title to its prop-
erty. At first blush, DNR seems to be the
principal beneficiary of the post-Coastalun-
certainty. It is in an enviable litigating
position.
It has amassed the technical expertise
needed to wage a sophisticated sovereignty
lands fight. Its strategy for the "reclama-
tion" of the state's lands from existing
deedholders may proceed leisurely, because
there is no statute of limitations or other
bar compelling prompt resolution of the un-
certainty. DNR may, then, continue its
present policy of simply defending any quiet
title actions which might arise and otherwise
bringing the occasional offensive action
when significant state interests are involved.
There is, however, some evidence that the
state's position as Coastars prime benefici-
ary is a mixed blessing. Two examples
demonstrate the potential for disrupting the
interests of the state.


THE FLORIDA BAR JOURNAL/JANUARY 1988 61


T 05










Recently the Suwannee River Water
Management District contracted to pur-
chase from developer, on terms favorable
to the district, wetlands surrounding the
headwaters of the Aucilla River. The de-
veloper's title deraigned from S&O deeds
executed by the trustees in the mid-1800's.
The district, due to the sovereignty lands
problem, was unable to confirm marketable
title and compete the purchase. When asked
its opinion, DNR responded that it believed
the Aucilla was navigable at statehood and
that much ofthe acreage undercontract was
sovereignty land. It would cost $ 0 per foot
to perform the survey needed to draw the
boundary. While all parties concede that the
sale is desirable, the district's land acquisi-
tion program is now stymied.
Three hunters, arrested in a marsh over
a mile from the current banks of the Kis-
simmee River, were charged criminally with
armed trespassing on private property. They
defended by alleging that the land in ques-
tion was sovereignty land and subpoenaed
a DNR surveyor to testify on their behalf.
The state faced a delicious irony. Convic-
tion of the hunter would involve proof
beyond a reasonable doubt that the lands
in question were not sovereignty lands, with
I potentially unpleasant collateral effects
when and if the deedholder seeks to estab-
lish his title.3
In all fairness, one must note that the law
is not consistently in favor of state owner-
ship. The state must seemingly overcome
a presumption that unmeandered waterbod-
ies were nonnavigable. Odom v. Deltona
Corp,, 341 So. 2d 977,989 (Fla. 1976). And


62 THE FLORIDA BAR JOURNAL/JANUA


although no cases have yet addressed the
issue, it logically follows that if a waterbody
is avulsively raised or rerouted, it is then
on private land and arguably subject to fenc-
ing as was done on the Wakulla River.

What the Future Holds
We anticipate a growing sovereignty lands
caseload, as more and more landowners en-
counter mortgages oreales that will not
close, or have permits denied because the
state is alleged to own "their"land. Resolv-
ing these issues under existing law would
be frightfully expensive and a tremendous
burden on an already overburdened judi-
cial system. The DNR estimated that its cost
just to determine the OHWL on the land
in dispute along the Kissimmee would run
between $500,000 and $1 million. Earlier
DNR estimates of the cost to the state of a
comprehensive statewide litigation program
exceeds SI billion.
The sovereignty land problem is not go-
ing to go away. It has been highlighted by
some recent, expansive ownership claims,
but restraint by current officials willonly
defer, not eliminate, the problem. As the
real property bar, title insurers and banks
become increasingly aware of the problem,
more and more titles will be rejected on this
basis. The case by case approach of the ju-
dicial system is ill suited to resolve the prob-
lem and under current law the executive
branch is seemingly powerless to generate
a unilateral remedy. Only the legislature has
the power to arrest this problem and elimi-
nate the title cloud which affects massive
amounts of Florida real property.

























RY1988


Inevitably the sovereignty lands disputes
outlined in this article will arise. Whether
they will reach the proportions feared by
the authors is a matter of fair debate. Since
no current mechanism either within or with-
out government permits comprehensive
tracking of the cases that may be arising
throughout the state, the authors would wel-
come hearing from Bar members whose cli-
ents have faced, or are facing, sovereignty
lands disputes. &i

'g., the Marketable Record Title Act, the
doctrine of contemporaneous determination (de-
termination by the original surveyors) and the
doctrine of legal estoppel (if you sell something
you don't own and later acquire it, title passes
automatically).
2Excerpt from Department of Natural Re-
ourcus Interoffice Memorandum from Douglas
A. Thompson, assistant chief, Bureau of Survey
and Mapping to Lee Rohe, assistant general coun-
sel, dated January 13, 1987. Another portion of
that memorandum indicates that past OHWLde-
terminations made under my supervision [found
the OHWL to be] 1-2 feet below the ground ele-
vaiion of the mature live oak community."
3State v. Juliano, Case No. 86-392 CF (Fla.
19th Cir. Ct. 1986). DNR quickly brought, and
then dismissed, a quiet title action following an
agreement to initiate settlement discussions with
thedeedholder. Trustees of Internal Improvement
Fund v. The Latt Maxcy Corp., Case No. 87-
2044(Fla. 9th Cir. Ct. 1987).




Joseph W Jacobs is a professor at
Florida State University College of
Law in Tallahassee. He received his
B.S. E. E. (electrical engineering)from
Lehigh and J.D. from Yale. Alan B.
Fields is a practicing attorney with
Shackleford.. Farrior. Stallings and
Evans, P.A., in Tampa. He received his
B.A. (economics)from Davidson Col-
lege and J.D. from Florida State Uni-
versity.
The authors jointly wrote Sover-
eignty Lands in Florida: Lost in a
Swamp of Ambiguity, 38 U. Fla. L Rev.
347 (1986), and serve on the Market-
able Record Title Acts and Public
Lands Committee ofthe Real Property.
Probate and Trust Law Section. On be-
half of that committee, they have pre-
pared legislation (including comments
and explanatory materials) to correct
the sovereignty lands problem de-
scribed in this article. That legislation
has been approved in principle for sup-
port by the section.
They write thrs column n on hbhalf of
the Real Property. Probate and Trust
Law Section. David ('. Brennun.
chairman, and Robert .I. Plus, Jr..
editor.




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