Title: Ownership Boundaries Between Non Tidal Sovereignty Submerged Lands And Uplands Or Swamp And Overflowed Lands
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 Material Information
Title: Ownership Boundaries Between Non Tidal Sovereignty Submerged Lands And Uplands Or Swamp And Overflowed Lands
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Language: English
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Spatial Coverage: North America -- United States of America -- Florida
 Notes
Abstract: Memorandum of Law By: L.M. Buddy Blain August 4, 1987
General Note: Box 7, Folder 3 ( Vail Conference 1988 - 1988 ), Item 66
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
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Bibliographic ID: WL00000895
Volume ID: VID00001
Source Institution: Levin College of Law, University of Florida
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LAW OFFICES
BLAIN & CONE, P. A.

L. M. BUDDY BLAIN 202 MADISON STREET
THOMAS E. CONE. JR. TAMPA. FLORIDA 33602
(813 223-3888
CAROLE JOY BARICE August 4, 1987 FAX X613 .28-.422
HALLIE s EVANS Revised August 28, 1987 or COUNEL
DOUGLAS P. MANSON CO
SUSAN K. SCARCELLI Revised January 3, 1988 JOHN P. ORCORAN, JR.


MEMORANDUM OF LAW



BY: L. M. Buddy Blain
RE: Ownership Boundaries Between Non Tidal
Sovereignty Submerged Lands And Uplands
Or Swamp And Overflowed Lands


Query:

Where does private waterfront property end and where does the
state's property begin?

The location of the ordinary high water line is the boundary
between non tidal sovereignty submerged lands, and uplands or
swamp and overflowed lands.

A clear understanding of the meaning and historical significance
of each of these terms is essential.

(A) Sovereignty Submerged Lands. In 1819, the United States
acquired from Spain the territories known as East and West
Florida. The United States government held the territory
under the Constitution and laws of the United States; and,
specifically, "the lands under navigable waters, including
the shores, were held by the United States for the benefit
of the whole people, to go to the future state for the use
of the whole people of the state." State ex rel. Ellis v.
Gerbing, 56 Fla. 603, 47 So. 353, 355(1908).

In 1845, the territories of East and West Florida were
admitted into the Union under "equal footing" with the
original 13 states. Thus, the state of Florida received
"all rights and powers as to property and sovereignty
possessed by the original states of the Union;" Ellis, 47
So. at 355.


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Among the rights that automatically passed to the state was

the right to own and hold the lands under
navigable waters within the state, including
the shores or space between ordinary high and
low water marks, for the benefit of the people
of the state, as such right is as essential to
the sovereignty, to the complete exercise of
police powers, and to the welfare of the people
of the new states as of the original states of
the Union.

Ellis, 47 So. at 356. These sovereignty submerged lands
were received by the state upon its entry into the Union;
there was no express conveyance, deed, or patent between the
United States and the new state of Florida.

(B) Swamp and Overflowed Lands. In 1850, Congress enacted the
Swamp and Overflowed Lands Act which granted to Florida and
other states millions of acres of land which were deemed
then unfit for cultivation. Swamp lands were

such as require drainage to dispose of
needless water or moisture on or in the
lands, in order to make them fit for
cultivation.... Overflowed lands...[were]
those that...[were] covered by non-navigable
waters, or...[were] subject to such periodical
or frequent overflows of water,...(not
including lands between high and low water
marks of navigable streams or bodies of
water...) as to require drainage or levees or
embankments to keep out the water and thereby
render the lands suitable for successful
cultivation.

Emphasis added; Ellis, 47 So. at 357.

.The Act provided an exact procedure to identify the lands
that were granted. Federal surveyors were directed to
establish the boundary lines of tracts that qualified as
swamp or overflowed land. The surveyors were directed to
exclude the beds of navigable water bodies (which had passed
to the state in 1845) by tracing a "meander line" that


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0.o'1









approximated the ordinary high water mark. The surveys,
lists, and plats were reviewed by the Secretary of the
Interior, then sent to the state Governor.

The state selected the land it wanted from the surveys. The
United States then issued to Florida express patents for the
land selected and granted. The state was then free to
convey these swamp and overflowed lands into private
ownership. See Coastal Petroleum v. American Cyanamid, 492
So. 2d 339, TS (Fla. 1986) (Boyd, C.J., dissenting); and
see Petitioner's Petition for a Writ of Certiorari to the
Supreme Court of Florida at 5-8, Mobil Oil Corporation v.
Board of Trustees of the Internal Improvement Trust Fund
of the State of Florida, 492 So.2d 339 (Fla. 1986), for full
discussion of legal history along with direct citations to
Swamp and Overflowed Lands Act, 43 U.S.C. 982 et seq. and
Manual of Instructions to Regulate Operations of Deputy
Surveyors (1855).

(C) Ordinary High Water Line. The historic ordinary high water
line, as it existed in 1845 when the state assumed ownership
of the beds of navigable waters, is, as a general rule, the
original boundary between sovereignty submerged lands and
uplands or swamp and overflowed lands. The Florida Supreme
Court has adopted a clear definition of "ordinary high water
line", but there is controversy over how to prove up the
location of the legally defined OHWL; and the state recently
has been pushing its own unique interpretation of the
meaning of "OHWL".

(i) Legal Definition of Ordinary High Water Line. The
Florida Supreme Court, in Tilden v. Smith, 113 So.708
(1927), expressly defined the OHWL by quoting the
Supreme Court of Minnesota as follows:

"In the case of fresh water rivers and
lakes -- in which there is no ebb and
flow of the tide, but where are subject
to irregular and occasional changes of
height, without fixed quantity or time,
except that they are periodical, recurring
with the wet or dry seasons of the year --
high-water mark, as a line between a
riparian owner and the public, is to
be determined by examining the bed and
banks, and ascertaining where the
presence and action of the water are so


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common and usual, and so long continued
in all ordinary years, as to mark upon
the soil of the bed a character distinct
from that of the banks, in respect to
vegetation, as well as respects the
nature of the soil itself. 'High-water
mark' means what its language imports -
a water mark. It is co-ordinate with
the limit of the bed of the water; and
that only is to be considered the bed
which the water occupies sufficiently
long and continuously to wrest it from
vegetation, and destroy its value for
agricultural purposes. Ordinarily the
slope of the bank and the character of
its soil are such that the water impresses
a distinct character on the soil as well
as on the vegetation. In some places,
however, where the banks are low and flat,
the water does not impress on the soil
any well-defined line of demarcation
between the bed and the banks.

"In such cases the effect of the
water upon vegetation must be the principal
test in determining the location of high-water
mark as a line between the riparian owner
and the public. It is the point up to
which the presence and action of the water
is so continuous as to destroy the value
of the land for agricultural purposes by
preventing the growth of vegetation,
constituting what may be termed as ordinary
agricultural crop."

113 So. at 712, quoting Minnetonka Lake Improvement
(Carpenter v. Hennepin County), 56 Minn. 513, 58 N.W.
295 (Minn. 1894); emphasis supplied.

Continuing in Tilden The Florida Supreme Court then
quoted the Supreme Court of New Hampshire as follows:

"The high-water mark on fresh water rivers
is not the highest point to which the stream
rises in times of freshets, but is 'the line
which the river impresses upon the soil by
covering it for sufficient periods to deprive


-Page 4-






S.0








it of vegetation and to destroy its value for
agriculture.'"
Ibid, quoting Dow v. Electric Co., 69 N.H. 498, 45 A.
350, 76 Am. St. Rep. 189; emphasis supplied.

The Tilden court adopted its OHWL definition in a case
involving the limits of riparian rights; the case did
not involve a boundary dispute. Nevertheless, the
TITden definition has been applied to boundary disputes
and stands as the definitive statement of OHWL in
Florida. See, e.g., Board of Trustees of the Internal
Improvement Trust Fund v. Walker Ranch General
Partnership, 496 So.2d 153, 155 (5th DCA 1986).

The Tilden definition, borrowing on the Minnesota
definition, has its real roots in the definition
created by the United States Supreme Court in Howard
v. Ingersoll, 54 U.S. 381, 427 (1851) (Curtis, J.,
concurring); the underlined portion of the Tilden OHWL
definition is taken directly from the Howard
definition. The emphasis is upon an actual physical
mark. This mixture of influences from federal and
other state definitions is acceptable as most
definitions, variously expressed, tend to mean the same
thing. See Maloney, "The Ordinary High Water Mark:
Attempts at Settling An Unsettled Boundary Line", 13
Univ. of Wyoming Land and Water Law Review 1 (1978) for
an in-depth discussion of the various definitions of
OHWL.

Do not confuse the ordinary high water line with the
mean high water line, which defines the boundary of
sovereignty submerged land in tidal waters. The mean
high water line is a statistical "mean" based on
measurements, over prescribed periods of time, of the
water level; the ordinary line is an actual, physical
line.


(ii) Establishing the Location of Ordinary High Water Line.
In "Technical Aspects of Locating Ordinary High Water
Lines", Fourth Annual Fink, Inc. Water Law Seminar
(January 19-26, 1985), Leslie G. Bromwell, a
professional engineer with Bromwell & Carrier, Inc. of
Lakeland, stated that "the OHWL is a physical mark, and
in the absence of litigation, experienced surveyors


-Page 5-





S.ID









have little difficulty locating it, based on
instructions in the Federal surveying manual, visual
observations, and local experience."

Here is a brief discussion of comments by Mr. Bromwell
and George M. Cole on surveying techniques; and a brief
discussion of case law relative to acceptable evidence
in determining the OHWL.

(a) Non-Expert Testimony. The testimony of non-expert
witnesses can be probative of the OHWL at previous
points in time. In United States v. Cameron, 466
F.Supp. 1099, 1112 (M.D. Fla. 1978), the court
accepted lay testimony as to the extent of Lake
Harney's waters at various times over a 20 year
period, as probative of the location of the OHWL.
Historic photographs and aerial photographs also
were admitted. In Tilden, 113 So. 708, the
testimony of riparian owners was accepted in
determining the ordinary or usual level of Lake
Johns.

(b) Botanical Evidence. The Tilden definition
emphasized the importance of locating the point at
which vegetation for agricultural purposes ceases
to grow, as a result of the continued presence of
water. This definition makes sense when one
remembers that the OHWL marks the boundary between
submerged land and land that is suitable for
cultivation once it is drained or diked.

Cole, in Water Boundaries (1983), states that

usuallyl, ,the most reliable botanical
indicators of the elevation of the
ordinary high water are the lower
limits of upland trees and shrubs.
Upland vegetation is that vegetation
which is killed or injured by the water
standing over its roots for extended
periods.... In Florida, typical
indicator species found near margins
of lakes and streams are such common
upland vegetation as the slash pine
(Pinus elliotti), the live oak (Quercus
virginiana), and the saw palmeto (Serenoa
repens).


-Page 6-









i Page 33.

The Cameron court stressed the absence of upland
or terrestrial vegetation, rather than the
presence of submerged or transitional species. In
Cameron, the uplands owner had erected a dike to
preserve his property for cattle grazing (the dike
didn't solve the problem and a pump had to be
installed); the issue was whether the OHWL was
above or below the dike. The government's
vegetative expert "detected aquatic vegetation at
various places in both sides of the dike, a
finding which led him to conclude that much of the
property was under water for major portions of the
time." 466 F. Supp. 1099, 1113. The landowner's
expert, who viewed the property a year later
during a drier period, "found very little
vegetation of an aquatic nature on either side of
the dike. Instead, ...[he] found that the
dominant species of vegetation was terrestrial -
consisting of bermuda and bahia grass." 466
F.Supp. 1099, 1113.

Where, then, did the OHWL lie? Did it extend as
far upland as aquatic vegetation could be found?
Or did it lie where the terrestrial vegetation
Z stopped? The court found that
[t]he undisputed evidence of terrestrial
vegetation outside the dike as well as
inside makes it impossible to conclude
that such area is so usually covered by
water that it is wrested from vegetation
and its value for agricultural purposes
destroyed. Based on the vegetation test,
the government has failed to prove that
the disputed area lies below the ordinary
high water line.

466 F.Supp. 1099, 1114; emphasis supplied. That
is, if there are both terrestrial and aquatic
species in an area, then that area is above the
OHWL.

The Cameron court did not expressly address the
issue of "transitional species"; this term has


-Page 7-

r`



mr









fI come into general use in connection with Florida's
Sr regulatory program under the Warren S. Henderson
Wetlands Protection Act of 1984, Sections 403.91-
403.929, Fla. Stat. (1985). Under wetlands
regulation, the state has jurisdiction over "the
landward extent of the waters of the state ...
[which is] defined by species of plants or soils
which are characteristic of those areas subject to
regular and periodic inundation by the waters of
the state." Section 403.817(2), Fla. Stat.
(1985). The landward extent of state regulatory
powers is determined by finding the areal extent
of submerged and transitional species compared to
the percentage of upland species. See DER Rule
17-4.022 and Section 403.8171, Fla. Stat. (1985).
Under the DER test, DER may have regulatory
jurisdiction over an area that contains both
aquatic and terrestrial; under Cameron, the state
owns only until terrestrial vegetation begins.

No reported Florida court decision has addressed
the significance of transitional species in
determining the OHWL for boundary purposes. Cole
suggests, however, that the presence of
transitional species may be helpful to the
surveyor. He states, at 33, that

[i]n addition to upland vegetation,
species more tolerant of the presence
of water are also helpful, especially
in water bodies with gently sloping
shorelines. In such areas, distinct
banding of vegetation may be seen,
based on the tolerance for flooding
of the various species present. With
a knowledge of the water tolerance
characteristics of the various species,
a graphic picture of the flooding
characteristics of the water body
may be obtained.

Anyone involved in litigation of the OHWL for
boundary purposes should be aware of DER's
vegetative analysis for wetlands regulation
purposes, and should understand the difference
between aquatic, transitional, and submerged
species; but he should keep clearly in mind the


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T.5









legal definitions of OHWL and acceptable evidence
in boundary disputes. The distinction is stated by
Maloney at page 11: "even where aquatic vegetation
is found some distance inland, in marshland or
other poorly drained areas, for example, the
finding of a realistic OHWL should not be upset."

Just because an area is wet doesn't mean it is
sovereignty submerged land as opposed to swamp
lands or overflowed lands.

When banks of rivers were spoken of,
those boundaries were meant which
contain their waters at their highest
flow....[The line] neither takes in
overflowed land beyond the bank, nor
includes swamps or low grounds liable
to be overflowed, but reclaimed for
meadows or agriculture....

Emphasis added; Maloney at 4-5, quoting Howard v.
Ingersoll, 54 U.S. 381, 415-16 (1851).

In the midst of any confusion over the
significance of terms such as wetlands, uplands,
terrestrial, transitional, and aquatic, it must be
remembered that the real issue is the land's
suitability for cultivation. In Cameron, the land
was suitable for cattle grazing and it thus met
the Tilden test of "having value for agricultural
purposes." Bromwell notes, at page 10 of his
paper, that "[wetland] soils are frequently
cultivated in South Florida as well as many other
flood-prone areas of the world. The action of the
water clearly has not destroyed their value for
agricultural purposes."

(c) Soils Analysis. Soil analysis can also help a surveyor
to locate the OHWL. Cole, however, says, at page 31-
32, "that since rivers often form a wide flood plain
due to seasonal flooding and the meandering process,
this method probably has limited application for such
waters [sic] bodies."

Bromwell suggests that soil analysis may supplement
visual and historical data; the soils examination is
conducted by "extensive hand augering and sampling


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within the bed, natural levee, adjacent floodplain or
wetlands, up to an elevation not influenced by even
major flood events. Pedons, or test pits, can be dug
in order to obtain accurate soil horizon descriptions
and to classify the soils according to taxonomy." The
soils analyst looks at organic content (zero or close
to zero at the OHWL); grain size (coarser material is
within OHWL zone but "sorting can occur during a
relatively short time interval, and may, therefore, be
found at both low water and extreme flood water levels
as well as at the OHWL;" Bromwell); and, erosionall
processes."
Bromwell states that

from a soils viewpoint, wetlands do not
meet the classic tests for determining
the bed of a water body. Wetland soils
are saturated much of the year, due to
downslope groundwater seepage as well as
flooding from the water body. Such soils
are stable, often having well developed
diagnostic horizons...which indicate
stability and downward percolation of
water over a period of several thousand
years. Such soils could not form in the
bed of a river or lake.

In Cameron, the court accepted as evidence the soil
analysis which

provided confirmation of...visual sightings
of terrestrial vegetation....[The expert]
encountered increasingly higher contents
of organic matter in the soil the closer
he came to the dike, which indicated that
terrestrial rather than aquatic vegetation
had populated the soil along the lakeward
slope of the dike and the property enclosed.

466 F.Supp. 1099, 1114.

The surveyor may also look at geomorphological features
-- natural levees, scarps (miniature cliffs), and
ridges. Cole warns against relying too much on
geomorphological evidence in connection with water
bodies with rising or falling water levels, as there


-Page 10-





4 /








could be several sets of these features. In this case,
the geomorphological evidence can be corroborative of
other types of evidence.

(d) Water Level Records. The surveyor may also look at
water level records, but Cole cautions, at 34, that the
period of observation must be long enough but not too
long; the period chosen must take into account natural
periods of fluctuation. Cole says that "it appears
that the ordinary high water is located somewhere
between five percent and twenty-five percent on a stage
duration curve." He recommends that such evidence be
considered for corroborative purposes, only.

Caution should be exercised in regarding water level
records as acceptable evidence. The Cameron court
rejected such records for lack of probative value. The
court found that the particular methodology used was
unsound. (Two water gauge stations, 32 miles apart,
were used). The court relied on the landowner's expert
who stated that the water records failed to take into
account environmental changes over a period of time,
such as channel deepening and flow changes. 466
F.Supp. 1099, 1114, 1109.

Statistical averaging has generally been rejected as
means of determining the OHWL; see Maloney at 30-34 for
in-depth discussion. However, the Cameron court did
acknowledge that reliable statistical evidence

is potentially quite useful in locating
the ordinary high water line of a body
of water whose water levels fluctuate
considerably. Accurate survey data
provide the trier of the fact with an
historical picture of the water levels
of a body of water over a long period
of time and thus enable it to identify
with some degree of certitude the points
which are inundated so frequently as to
be fairly considered within the ordinary
high water line.

466 F.Supp. 1099, 1114; emphasis supplied.

(e) Meander Line. The meander line is not generally
accepted as evidence of the OHWL; see Maloney at 25-29


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for legal discussion. It is correct that the Florida
Supreme Court accepted the meander line of Lake
Okeechobee as a boundary line in Martin v. Busch, 112
So.274 (1927). However, it was accepted only under the
following limitations: "where a meander line is run
under state authority for the purpose of identifying,
locating, and establishing the true line of ordinary
high water mark of a body of navigable water...in such
case the meander line, if so intended... becomes...a
boundary line...." 112 So.274, 284. In Martin, the
survey was conducted in order to locate the OHWL in
connection with a previous state conveyance; thus, the
meander line was expressly conducted to locate the OHWL
as boundary line. Otherwise, the meander line is
acceptable only in rare circumstances. See Maloney;
see Cole at 41, 43.

(f) Current Controversies Regarding the Ordinary High Water
Line. Bromwell states that DNR's recent "methodology,
which largely emphasizes vegetation species
characteristic of wetlands, has led to several
lawsuits, none of which have, as yet, been certified by
a court decision as constituting a valid methodology
for OHWL determination in Florida."

The state's OHWL methodology will be directly at issue
in August, when a Polk County Circuit Court reconsiders
quiet title suits involving the Peace and Alafia
Rivers, after appeals to the Second District Court of
Appeal and Florida Supreme Court. See Coastal
Petroleum Co. v. American Cyanamid Co., 492 So.2d 339
(Fla. 1986), quashing and remanding Board of Trustees
of the Internal Improvement Trust Fund of the State of
Florida v. Mobil Oil Co., 455 So.2d 412 (2d DCA 1984)
and Coastal Petroleum Co. v. American Cyanamid Co., 454
So.2d 6 (2d DCA 1984).

On remand, the trial court will consider the issue of
commercial navigability of the rivers in 1845, and the
location of the OHWL for any navigable portions. The
state is claiming that the historic OHWL of the Peace
River

averages more than a half mile in width,
even though the banks of the river as
surveyed in 1854-55 were found to be 50
to 200 feet apart and are in essentially


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the same location today. While the
Trustees and Coastal admit that their
asserted boundary is far above the present
ordinary high water line, they have
contended that the river was much larger
prior to the 1940's and has been drastically
reduced in size since then because ground
water consumption for residential mining
and agriculture uses have lowered the
water table, strip mining operations
have altered drainage patterns, and a
dam built by the state has reduced the
volume of water flow.

Robert R. Feagin, III, Holland & Knight (Counsel for
Mobil Oil Co.), "The Coastal Petroleum Decision," at
Page 3.

The trial and any subsequent appeals of this case
should provide some answers to current controversy over
the propriety of the state's aggressive stance over
location of the OHWL. The Coastal case will clearly
address the crucial issue: when the OHWL moves, does
the boundary move?


The Ambulatory Ordinary High Water Line and Boundary.

The historic OHWL is the original boundary between sovereignty
submerged lands and uplands. Over time, however, the OHWL may
move landward or waterward; the question then arises whether the
historic OHWL or the present OHWL is the boundary.

(A) The general rule is that the boundary moves if the movement
of the OHWL has been "gradual and imperceptible"; that is,
"that though witnesses may see from time to time that
progress has been made, they could not perceive it while the
process was going on". Board of Trustees of the Internal
Improvement Trust Fund v. Medeira Beach Nominee, Inc., 272
So.2d 209, 211 (2d DCA 1973), citing St. Clair County v.
Lovingston, 90 U.S. (23 Wall.) 46, 68, 23 L.Ed. 59 (1874).

(i) The OHWL may move away from the land when the water
gradually recedes; this is called reliction.

(ii) The OHWL also moves toward the water when solid
materials are slowly and imperceptibly added to the


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shore; this is called accretion.

(iii) The OHWL may move toward the land if water levels
gradually rise or remain higher for longer periods of
time.

(iv) The OHWL also may move toward the land as soil
materials are slowly and imperceptibly borne away by
water or wind; this is through erosion.

The general rule is that the boundary moves in each
instance; the landowner's uplands ownership is extended to
the present OHWL through reliction or accretion; the state's
sovereignty lands are extended to the present OHWL through
erosion or higher water levels.

(B) If the change in the OHWL is sudden and perceptible, the
boundary does not change. This is called avulsion. If a
river suddenly changes course, the state continues to own
the exposed river bed. If a storm deposits material on the
shore suddenly and perceptibly, the landowner does not gain
ownership and may actually lose his riparian status.

(C) It has been stated in several cases, that the Florida rule
is that the boundary changes only if the gradual and
imperceptible movement of the OHWL arises from "natural"
causes. This exception to the general rule arises from the
statement, in Florida cases, that the general rule on
reliction does not apply if the waters recede as a result of
governmental drainage projects. These positions were
incorrect and their legal logic was faulty, as recently
revealed by the Florida Supreme Court in the Sand Key case
(discussed below). The Sand Key case supports the principle
that the boundary should move with the OHWL so long as the
movement is gradual and imperceptible; the natural-
artificial-government drainage distinctions should be
irrelevant.

Florida's water bodies entered the era of water level control by
regulation in 1972 when the Florida legislature mandated the
creation of water management districts throughout the state.
Some water bodies, such as the Kissimmee River and the
Caloosahatchee, have not been in their "natural" conditions since
the late 1800's when state-supported or state-encouraged
channelization projects were undertaken. Thus, the "natural" vs.
"artificial" distinction is unfair since many of Florida's water
bodies have been "artificially" altered by the state or other


-Page 14-





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government activity. Quite often the water level changes are a
S result of the cumulative impacts of several diverse, unrelated
governmental activities.

The distinction is also unworkable as some of the "artificial"
improvements occurred so long ago as to have acquired a "natural"
status.

The focus, in determining whether the present OHWL is the
boundary, should be on: (a) whether the movement of the OHWL was
gradual and imperceptible and (b) whether the current situation
has persisted for a sufficiently long period of time as to be
considered "ordinary".

A Review of Relevant Cases

As mentioned above, the state has argued that the legal
principles of accretion and reliction do not apply when the OHWL
moves as a result of "artificial" activities e.g. water level
regulation or beach stabilization or reclamation. The state's
arguments were apparently accepted by some intermediate appellate
courts, even though the state's theory is contrary to Florida
property law and water law.

Hopefully, the Florida Supreme Court has finally laid the matter
to rest, after 60 years of confusion in the cases. Ever since
Martin v. Busch, 93 Fla. 535, 112 So.274 (Fla. 1927), the state
has claimed the existence of the "artificial causes" rule. The
state has been wrong all that time but its incorrect view was
recognized only by the Second District Court of Appeal. Now, in
the Sand Key case, the Florida Supreme Court has clearly rejected
the state's view and has clearly asserted that there is no
"artificial activities" exception to the principles of accretion
or reliction. This means that the legal boundary does follow
gradual and imperceptible changes in the OHWL, except under
limited circumstances.

A brief of Sand Key will establish the current status of the law,
and a review of relevant pre-Sand Key cases will illustrate their
defects and strengths as affected by Sand Key.

(A) Board of Trustees of the Internal Improvement Trust Fund v.
Sand Key Associates, Ltd., 12 FLW 349 (Fla. Sup. Ct. July 9,
1987).

Sand Key Associates, Limited (Sand Key) owned oceanfront


-Page 15-









property on Sand Key in Pinellas County. In 1974, the state
constructed a jetty one-half mile north of Sand Key's land;
this gradually and imperceptibly caused the accretion of
some five acres on Sand Key's land. Sand Key had no
involvement with the jetty project.

Sand Key filed a quiet title suit against the state in the
Circuit Court of Pinellas County. It sought to eliminate
the state's claim to ownership of the accreted land and
establish its rights to the land under the common law
principle of accretion. The state based its claim on
Section 161.051, Fla. Stat. (1981), which grants the state
ownership to accretions caused by the state's coastal
construction. Sand Key lost in the trial court, which
quieted title in the state and ordered Sand Key to stay off
the accreted portion. The trial court's decision was based
on Section 161.051, which it judged to be constitutional.

Sand Key appealed to the Second District Court of Appeal,
which agreed that Section 161.051 was constitutional but
found that it applied only to accretions to the property
where the coastal construction was located e.g., where the
jetty was constructed. The statute did not apply to a
landowner one-half mile from the state's improvement. In
addition, the Court found that if the statute were to apply
to Sand Key, it would be an unconstitutional taking of Sand
Key's vested property rights without compensation. Thus,
the Court reversed the trial court's quiet title
determination and dissolved the injunction.

The Second DCA ruled squarely for Sand Key but it
nevertheless certified the case to the Florida Supreme Court
as a matter of great public importance.

(B) Martin v. Busch, 93 Fla. 535, 112 So. 274 (Fla. 1927). This
is the case that started it all. Until Sand Key it was
cited for the proposition that the boundary does not follow
OHWL movement, even if gradual and imperceptible, where
artificial means or government drainage operations are the
cause. This is a misinterpretation of Martin, which should
be limited to the facts.

Martin began as a quiet title action against the state. The
case involved land bordering Lake Okeechobee. In 1897, one
Henderson surveyed swamp lands bordering on Lake Okeechobee
and, as payment for his work (as was then common) requested
land. The lands were patented to the state in 1903; in


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1904, the state conveyed a portion of the lands to the
surveyor's heirs. The conveyance included lands to the
shore of Lake Okeechobee, but the particular area included
in the conveyance had not yet been officially surveyed.
Thus, the original state conveyance was to the shore of Lake
Okeechobee but the shore, as of 1904, was not officially
surveyed. In 1914, the surveyor's heirs conveyed to the
plaintiff. The official survey was conducted in 1917-18,
after state drainage of Lake Okeechobee; the official survey
was conducted for the express purpose of locating the
current OHWL. Because of the drainage, the lake waters had
receded, and the 1917 OHWL had moved away from the uplands.
Plaintiff claimed ownership of the exposed former lake
bottom.

The court rejected plaintiff's claim. The plaintiff
apparently tried to argue that the 1917 meander line was
retroactive to the 1904 conveyance from the state to
plaintiff's predecessor in title. This argument was not
successful.

The court, citing no Florida precedent, stated that "[t]he
doctrine of reliction is applicable where from natural
causes water recedes by imperceptible degrees, and does not
apply where land is reclaimed by governmental agencies as by
drainage operations". 112 So. 274, 287. This statement of
law was unnecessary, however, as a 1919 law vested title in
the state to lands, not included as swamp or overflowed
lands, that were submerged, wet or low, and reclaimed by the
drainage works of the Everglades Drainage District. Chapter
7861, Laws of Florida, Acts of 1919. The court's statement
regarding reliction is obiter dictum.

The significance of Chapter 7861 and a companion law,
Chapter 7891, is easy to miss because of the style of the
Martin opinion. Perhaps this is why subsequent citations
have focused on the quotation above. But an understanding
of the relevant current laws will show why Martin should be
limited to its facts.

Chapter 7861 vested the state, in 1919, with title to the
very type of land that the plaintiff in Martin claimed in
his 1923 lawsuit. The law also reserved to the state the
right to regulate the level of Lake Okeechobee. Chapter
7861 applied specifically to land reclaimed by the
Everglades Drainage District, which was created by the
Florida legislature in 1913. Chapter 7861 is discussed in


-Page 17-





S^a








the Martin opinion but its meaning is not clear.

The law is discussed in more detail in Padgett v. Central
and Southern Florida Flood Control District, 178 So.2d 900
(2d DCA 1965). In effect, Chapter 7861 "froze" the OHWL of
Lake Okeechobee as of 1919 and eliminated the riparian right
of reliction. Similar legislation would be held unconsti-
tutional later in State v. Florida National Properties,
Inc., 338 So.2d 13 (Fla. 1976), but apparently a
constitutional attack on Chapter 7861 was not made in the
Martin case. In any event, the court could have relied on
Chapter 7861 to affirm the state's title, without making its
general pronouncement on the law of reliction.
However, the court also relied on Chapter 7891, Laws of
Florida, Acts of 1919. That law vested title in the state
to all marsh, wet or low lands as had then become
permanently reclaimed; it was not specifically addressed to
submerged, wet or low lands reclaimed by the Everglades
Drainage District, as was Chapter 7861. The significant
portion of Chapter 7891 was Section 3, which reserved
riparian rights as they then existed. Again, see Padgett
for a useful discussion of the 1919 legislation.

The Martin court lumped Chapters 7861 and 7891 together in
its discussion. It appears that the general pronouncement
on reliction was designed to circumvent the riparian rights
reservation in Chapter 7891; this was unnecessary since the
court could have relied on Chapter 7861.

Martin should be restricted to its facts for two reasons:
(a) the general pronouncement on reliction is obiter dictum
because it seems to relate to Chapter 7891 when Chapter 7861
was right on point; and (b) the existence of Chapters 7861
and 7891. Instead, Martin is cited for the proposition that
the boundary moves only when the OHWL moves as a result of
natural means.

The Sand Key court carefully examined Martin and explained
that Martin did not involve accretion and reliction. The
court explained the statement in Martin that began the rumor
of the "artificial activities" exception, i.e.: "the
doctrine of reliction is applicale where from natural causes
water recedes by imperceptible degrees, and does not apply
where land is reclaimed by government agencies as by
drainage operations." 12 FLW 349, 352, quoting Martin at
112 So. at 287. The Sand Key court looked at the Ohio case


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8.;3








cited for the quoted statement and found that the Martin
court was discussing the difference between radual and
imperceptible changes (physical reliction) and sudden changes
(no physical reliction). Thus, said the Sand Key court,
"reclamation by a drainage operation is not reliction by
'imperceptible degrees'." 12 FLW 349, 352.

(C) Conoley v. Naetzker, 137 So.2d 6 (2d DCA 1962). This case
is included only because it contains the general
pronouncement that "[ilf the disputed parcel was in fact
reclaimed land resulting from drainage operations, then
defendants as riparian owners on a navigable waterway could
not have acquired title through reliction," citing Martin
137 So.2d 6, 7. The issue of reliction was pronounced
irrelevant by both the trial and appellate courts. It is
not apparent whether the Second DCA in Conoley understood
Martin. If the Second DCA meant, that when there is
deliberate drainage there is no gradual and imperceptible
change-then the quoted statement stands correct in light of
Sand Key. The case sheds no light on the court's meaning;
but, in light of the Second DCA's opinions in Medeira Beach
(discussed below) and Sand Key, the Conoley court may have
understood (and meant) what it said-there was no physical
reliction so the legal doctrine of reliction did not apply.

(D) Padgett v. Central and Southern Florida Flood Control
District, 178 So.2d 900 (2d DCA 1965). This is another case
in which the Martin principle is re-stated even though it is
unnecessary to resolution of the case. Padgett was similar
to Martin in that it also involved Lake Okeechobee and
Chapters 7861 and 7891, but there the similarities end.
Padgett was not a boundary dispute; it involved the riparian
rights of view and access.

The Padgetts received title in 1935 to lands that extended
(expressly) to the 17-foot contour of Lake Okeechobee. The
deeds were expressly executed under Chapters 7861 and 7891,
Laws of Florida, Acts of 1919. This means that, under
Chapter 7861, the state expressly reserved the right to
regulate the level of Lake Okeechobee and required the
grantee to hold the state harmless for any damage suffered
as a result of such water level regulation. Chapter 7861
also reserved to the state the right to enter onto lands
reclaimed by the Everglades Drainage District to construct
dikes or levees. The deed reserved a right-of-way on the
conveyed land for dikes.



-Page 19-






w~









Land below the 17-foot contour line was drained and
reclaimed. There was no dispute that the state owned the
reclaimed land. The issue was the levee the flood control
district was building on the reclaimed lands. The flood
control district brought suit for declaratory judgment that
the building of the levee was not a taking of the Padgetts'
riparian rights of view and access to the lake. The court
held that there was no taking because the deed, and Chapters
7861 and 7891 under which the conveyance occurred, granted
to the state the right to do what it was doing i.e., such
riparian rights had already been given up. The court held
that the deed reservations and the statutes applied to
riparian rights as well as the conveyed lands. Also, the
Padgetts' lands were (admittedly) no longer riparian so they
no longer had any riparian rights.

In the midst of its discussion, the court digressed to say
that "[t]he doctrine of reliction...is applicable to
additions created by the recession of waters from natural
causes; it does not apply to land reclaimed by drainage
operations of governmental agencies," citing Martin and
Conoley. 178 So.2d 900, 904. It is unclear why the court
discussed Martin, a title and boundary case, in the context
of the riparian rights of view and access. Admittedly, both
cases involved Lake Okeechobee, drainage, and Chapters 7861
and 7891. There are no other legal similarities and the
citation of the Martin rule was irrelevant to resolution of
the issues presented in Padgett.

As with the Conoley case, it is difficult to assess the
effect of Sand Key. One may assume that the Second DCA
understood the Martin court when it said that the doctrine
of reliiction does not apply to drainage operations-that is,
there is no gradual and imperceptible change and thus no
physical reliction. If one makes this assumption, then
Padgett is consistent with Sand Key.

(E) Board of Trustees of the Internal Improvement Trust Fund
v. Medeira Beach Nominee, 272 So.2d 209 (2d DCA 1973). This
was a quiet title case, in which the issue of ambulatory
boundaries was clearly presented.

There was accretion to the defendant's beachfront property,
caused partly by a public erosion control and beach
stabilization program begun in 1957. The court flatly
rejected the argument that artificial accretions should be
treated differently from natural accretions. All


-Page 20-




S.^









accretions should belong to the uplands owner unless such
riparian owner causes the accretion; this is the only
exception to the general rule recognized by the
Medeira Beach court. The state also argued that the
boundary did not move (i.e. the defendant did not own the
accreted land) because the accretion was caused by state
police power projects. The court rejected Martin as support
for this argument because: (a) in Martin, the state intended
to cause the water to recede whereas the state in
Medeira Beach did not intend to cause accretion; and (b)
Martin involved reliction, not accretion. (There were
better reasons available to reject Martin but at least the
Medeira Beach court gave it some thought.)

The court reviewed the policy reasons behind the accretion
doctrine and concluded that

freezing the boundary at a point in time,
such as was done in Martin or as is suggested
here by the state, not only does damage to
all [such] ... considerations.., but renders
the ordinary high water mark useless as a
boundary line clearly marking the riparian's
rights and the sovereign's rights.

272 So.2d 209, 213.

Medeira Beach is entirely consistent with Sand Key and was
cited by the Sand Key court in support of its opinion.

(F) Bonelli Cattle Company v. State of Arizona, 414 US 313, 38
L.Ed. 2d 526, 94 S.Ct. 517 (1973). This case is of limited
utility but it should be included in this discussion to
provide background information. The case held, in part,
that federal common law governs disputes over the boundaries
of land abutting non-tidal navigable waters. This holding
was reversed in Oregon v. Corvallis Sand and Gravel Co., 97
S. Ct. 582 (1977).

A state could, however, choose to follow
the principle enunciated in Bonelli, that
when a state changes the course of a water
body or lowers water levels so that formerly
submerged lands are exposed and no navigation
related public goals remain in the exposed
lands, the exposure will be treated as
accretion with a resultant transferring of


-Page 21-





?.;(









title to the accreted lands to the adjacent
riparian owners.

Maloney, at 21.

Bonelli is of limited use, but the court did state that
"[t]he doctrine of accretion applies to changes in the river
course due to artificial as well as natural causes", 414 US
313, 327. The court recognized, as did the Medeira court,
that upland owners should benefit from "artificial"
accretions only if "strangers to the land" (third parties)
cause the conditions.

Sand Key is consistent with the Bonelli court's discussion
of the legal principle of accretion.

(G) State v. Florida National Properties, Inc., 338 So.2d 13
(Fla. 1976). This was a dispute over the boundary of Lake
Istokpoga. The state argued that the boundary should
reflect the 1926 OHWL before artificial drainage operations
conducted by riparian owners. The upland owner argued that
the present OHWL should be the boundary; that the 1926
artificial drainage was irrelevant because it simply
involved expelling flood waters from the 1926 hurricane.
The court found that the present OHWL was the boundary,
which was the same as the OHWL before the hurricane (the
"drainage" did not expose any lake bottom). Thus, reliction
wasn't really involved.

The important thing about Fla. National Properties is that
it held unconstitutional Section 253.151, Fla. Stat., which
mandated that the OHWL be set as of the date of statehood,
for navigable meandered lakes. The court said that the
state relied on this statute for its claim; the state said
that it receded from its reliance on the statute so the
constitutional issue should not be decided. The important
thing is why the statute was unconstitutional; the court
held that it was unconstitutional to fix the boundary line
at a particular point in time. The court quoted the trial
court's opinion which relied on Bonelli (since overruled)
and Florida cases on vested riparian rights. According to
Ma-oney, at 30, the decision should stand because it relied
only partly on Bonelli.

Although reliction wasn't involved, the court nevertheless
relied on Martin, stating that reliction "does not apply
where land is reclaimed by deliberate drainage." 338 So.2d


-Page 22-





1?. P7








13, 18. Note that any "drainage" here was done by the
riparian owners, thus bringing into play the one exception
to the general rule accepted by the Bonelli and Medeira
Beach courts: the riparian should not benefit from any
reliction or accretion that he himself causes. Note also
that the court said there was no "drainage" here -n the
context of the Martin exception, because the water was not
lowered below the OHWL.

If it was unconstitutional, in Fla. National Properties, to
fix the boundary as of the OHWL at a particular point in
time...to deny riparians the right to current and future
reliction or accretion...then it should have been
unconstitutional in Martin but it wasn't addressed in
Martin.

Fla. National Properties is consistent with the Sand Key
holding and reasoning. In Fla. National Properties, as in
Martin as explained by the Sand Key court, the legal
principle of reliction did not apply where there was
deliberate drainage because the movement of the OHWL was not
gradual and imperceptible. The Fla. National Properties
court recognized, as did the Sand Key court, that the legal
principle of reliction applies to artificially caused
physical reliction unless the uplands owner caused or
participated in the artificial activities. Finally, both
courts clearly stated that the rights to current and future
reliction are vested property rights. Those rights cannot
be taken by the state without just compensation (Sand Key)
and cannot be taken by freezing the OHWL at a particular
point in time (Fla. National Properties).

(H) State v. Contemporary Land Sales, Inc., 400 So.2d 488 (5th
DCA 1981). The 5th DCA adhered to Martin. "While the
purposes of the governmental action in this case was to
control the water level of a chain of lakes and not, as in
Martin, for the express objective of reclaiming land,
nevertheless we hold that the result is the same...." 400
So.2d 488, 492.

One could interpret this case as being consistent with Sand
Key if one assumes that the 5th DCA meant that artificially
lowering the lake level did not result in a gradual and
imperceptible exposure of formerly submerged lands. It is
not clear from the opinion whether the Contemporary Land
Sales court meant that there was no physical reliction and
thus the legal doctrine of reliction did not apply; or


-Page 23-






S.)










whether it meant that the legal doctrine of reliction never
applies to artificially caused movements of the OHWL.

(I) Board of Trustees of the Internal Improvement Trust Fund
v. Walker Ranch General Partnership, 496 So.2d 153 (5th DCA
1986). The issue on appeal was the OHWL of Lake Hatchineha
for purposes of determining the jurisdictional boundary
between Polk and Osceola Counties. The case did not involve
the issue of private ownership. It is included here only
because of the court's remarks on water level regulation.

The state argued that the boundary was the "geological high
water mark" which was the area of inundation of 9% over 20
years. This was at 54.3 feet above mean sea level. Walker
claimed the boundary was at 48.5 feet. Water level
regulation began in 1965. The lake level has been between
48.5 feet and 52.5 feet since then. The court said that "it
would be illogical to define the OHWL at 54.3 feet since the
water has not reached that level since artificial control
began over 20 years ago." 496 So.2d 153, 155. The court
said that the OHWL was 52.5 feet.

This case is included because it indicates that water level
regulation should not be ignored in finding the OHWL. If
the water body's level has been regulated for a period of
time sufficient to establish a new OHWL, that should be the
boundary line.

Newspaper articles reported that DNR will appeal this
decision on the basis that the OHWL should be "natural" or
pre-regulation level (which is said to be 1.5 feet higher).
The case was appealed to the Florida Supreme Court but
jurisdiction was rejected. Board of Trustees v. Walker
Ranch General Partnership, 504 So.2d 766 (Fla. 1987).

This case is consistent with Sand Key's emphasis on the
"gradual and imperceptible factor" and its rejection of the
"artificial activities exception" to the legal doctrine of
reliction.



SD2FLCOB.MEM




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