August 28, 1987
RE: The Doctrine of Reliction When Artificially Caused
(An Update to Include Sand Key.)
Barry Lessinger, in his 1976 research report to the Florida
Division of State Planning entitled Legal Ramifications of
Dechannelization of the Kissimmee River, said that the state
still has title to the land below the ordinary high water line
(OHWL) of the Kissimmee River because there was no express grant
of those bottom lands. He cited Martin v. Busch, 112 So. 274
(Fla. 1927). He did not say whether there has been any change in
The general rule on reliction is that a riparian or littoral
owner is entitled to former bottom lands uncovered when water
recedes gradually and imperceptibly. If the reliction results
from artificial causes, the land owner gets title to the relicted
land only if he did not cause the water to recede. If a third
person causes the water to recede, the land owner should be
entitled to the relicted portion.
Martin v. Busch, 93 Fla. 535, 112 So. 274 (1927) has been said to
have made an exception to the general rule. It is 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
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 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 ri 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 the
lands to the plaintiff. The first 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
submerge,, 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; it is not essential to the decision and therefore should
not be construed as binding.
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 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 unconstitutional
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 aw 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
points 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.
In 1973, the United States Supreme Court extended the general
rule of reliction and accretion to include artificial causes if
the accreted land serves no navigational purpose; Bonelli
Cattle Company v. Arizona, 414 U.S. 313 (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
title to the accreted lands to the adjacent
Maloney, "The Ordinary High Water Mark: Attempts at Settling An
Unsettled Boundary Line", 13 Univ. of Wyoming Land and Water Law
Review 1, 21 (1978).
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 Beach court (see below),
that upland owners should benefit from "artificial" accretions
only if "strangers to the land" (third parties) cause the
"1 Florida courts consistently have cited the Martin "rule" without
examining the reason for the "rule" and without questioning the
continued validity of the "rule". The courts usually rely
completely on Martin. Department of Natural Resources v.
Contemporary Land Sales, 400 So.2d 488 (5th DCA 1981); Padgett
v. Central and Southern Florida Flood Control District,
178 So.2d 900 (2d DCA 1965).
The theoretical difficulties with the Martin rule were mentioned,
but not resolved, in Conoley v. Naetzker, 137 So.2d 6 (2d DCA
1962). The court asked whether the legal doctrine of reliction
is involved when a lake level is lowered gradually, but partially
as a result of artificial causes. This interesting question was
In Padgett v. Central and Southern Florida Flood Control
District, 178 So.2d 900 (2d DCA 1965), the Martin principle was
re-stated even though it was 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.
Land below the 17-foot contour line was drained and reclaimed.
There was no dispute that the state owned the reclaimed land.
The dispute was over 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.
SIn 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.
The Second District Court of Appeal, in the very interesting
Board of Trustees of Internal Improvement Trust Fund v. Medeira
Beach Nominee, Inc., 272 So.2d 209 (2d DCA 1973) case, refused to
apply the "rule" of Martin v. Busch. This is the only case,
before Sand Key (see below), in which the court expressly refused
to apply that rule". (The head notes and case brief in the West
Publishing system are incorrect; they represent that this case
followed the general rule, but it clearly did not.) Medeira
Beach was an action to quiet title to accreted land on Sand Key.
The lands accreted as a result of a public erosion control and
beach stabilization program. The court held that the riparian
owner was entitled to the accreted land.
SBoldly breaking with tradition, the Second District Court of
Appeal stated that there was little reason to distinguish between
natural and artificial accretions in general. The court also
made short shrift of the state's argument that a distinction
should be made between (1) artificial accretion, and (2)
artificial accretion produced by the state or municipality in the
exercise of its police power. The court noted the Martin
holding, and distinguished it on the basis that the state in that
situation intended to reclaim the land that was accreted. The
court said that the City of Madeira Beach did not intend to
produce the accretion which occurred.
The court also reviewed the reasons for the doctrine of
accretion. One reason relates to access to the water. If the
riparian owner loses title to the accreted strip, he also loses
access to the water. Another reason was the de minimis doctrine.
The court noted that if the land truly is accreted through a
gradual and imperceptible buildup, the land owner should be
entitled to the accreted portion "regardless of the particular
amount of buildup at a point in time".
Medeira Beach is an interesting case both for the fact that it
was buried by the West Publishing Company and that it boldly
departed from the usual state reliance on Martin. The rationale
of Medeira Beach is not applicable to the Kissimmee situation.
Right of access is not involved in the Kissimmee situation
because any accreted land would be covered with water again as
the dechannelization proceeds. The only effect of granting
riparian owners title to relicted portions along the Kissimmee
River would be that the state would have to repurchase those
strips in order to fill up the River again.
In State v. Florida National Properties, Inc., 338 So.2d 13 (Fla.
1976), the court recited the Martin "rule while engaging in
tortured reasoning to avoid apply the "rule" to the facts before
it. After a hurricane, property owners surrounding Lake
Istokpoga conducted artificial drainage operations to expel flood
waters, and lowered the then lake level. Years later, the
Trustees claimed that the Martin rule affirmed the state's title
to the land between the earlier OHWL (before the hurricane) and
the later OHWL (after the hurricane).
The court agreed that the legal doctrine of reliction does not
apply to deliberate drainage. However, the court found that
there was no deliberate drainage in the case before it. There
was no "lowering of the water level below the normal high-water
mark". No lake bottom was exposed as the action merely returned
the water to its normal level. The property owners around the
lake were entitled to the land down to the present ordinary high-
water line (after drainage) because there had been no change in
the ordinary high-water line (before the hurricane).
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 Maloney, at 30, the Florida National Properties
decision should stand because it relied only partly on Bonelli.
Note that any "drainage" in Florida National Properties was done
by the riparian owners, thus bringing into play the one exception
to the reliction doctrine accepted by the Bonelli and Medeira
Beach courts: the riparian owner should not benefit from any
reliction or accretion that he himself causes.
If it was unconstitutional in Fla. National Properties to fix the
boundary as of the OHWL at a particular point in time, thereby
denying riparians the right to current and future reliction or
"N accretion--then it should have been unconstitutional in
Martin--but it wasn't addressed in Martin.
In 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...." [sic] 400 So.2d 488, 492.
In Board of Trustees of the Internal Improvement Trust Fund v.
Sand Key Associates, Ltd., 12 FLW 349 (Fla. Sup. Ct. July 9,
1987), the Florida Supreme Court reaffirmed that the legal
principle of accretion and reliction applies when the accretion
results from artificial forces-even when the artificial means are
part of a state project-so long as the upland owner did not cause
or participate in the activity that led to the accretion.
Although the facts of Sand Key involved accretion to coastal
property, the same principle should apply to reliction or
accretion to uplands on rivers or lakes. The case simply
reaffirms a basic principle of property law--that upland
ownership embodies vested rights of accretion and reliction. It
also reaffirms a basic principle of water law--that the legal
boundary follows gradual and imperceptible changes in the
property line at the mean high water mark (tidal water) or at the
ordinary high water mark (non-tidal water).
Sand Key Associates, Limited (Sand Key) owns oceanfront 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.
The Second District Court of Appeal reversed the trial court's
quiet title determination, dissolved the injunction, and
certified the case to the Florida Supreme Court as a matter of
great public importance. The Supreme Court held that Section
161.051 applies to accreted land of an upland owner who caused
'" the accretion and does not apply to an upland owner who did not
participate in the improvements which caused the accretions.
The state did not rely solely on Section 161.051 in its argument
to the Florida Supreme Court. It went further and urged the
Court to rule that all accretions caused in part by some type of
artificial construction are state property. The Court flatly
rejected the state's argument. It stated that the rule is, and
always has been, that upland owners have a vested right to new
lands formed by (gradual and imperceptible) accretion or
reliction, whether naturally or artificially caused, so long as
the upland owner did not construct the improvements that caused
the accretions or relictions.
The Court examined Martin v. Busch and declared that the Martin
court said only that "reclamation by a drainage operation is not
reliction by 'imperceptible degrees'." 12 FLW 352. Thus, the
Martin "rule" as cited by the state ever since 1927 is revealed
to be based upon a misunderstanding of the facts and ruling of
Brtin. In Martin, there was no physical reliction--no gradual
and imperceptible exposure of previous bottom lands--thus the
legal doctrine of reliction did not apply. The Court relied, in
part, on Medeira Beach (discussed above) to support its result.
The state also argued that, even if there was a common law right
Sto artificially caused accretions, this right was removed by
Section 161.051. The Court examined the statute and found, as
did the Second DCA, that it does not affect the vested rights of
upland owners who did not cause or participate in the improve-
ments; that is, the statute did not change the common law rule.
The court's majority opinion elicited a sharp and blistering
dissent by Justice Ehrlich, in which Chief Justice McDonald
joined. The majority was composed of Justices Overton (who wrote
the opinion), Shaw, and Barkett, and Retired Justice Adkins.
The dissent claimed that the majority opinion reached the "absurd
result" of 'grant[ing] a private landowner a windfall at the
expense of the public" and that the Court 'is giving away lands
which are held by the state by virtue of its sovereignty, in
trust for all the people." 12 FLW 349, 355, 356.
L. M. Buddy Blain and Hallie S. Evans
Blain & Cone, P.A., Tampa