Title: Legal Issues Involved in OHWL Designation
CITATION THUMBNAILS PAGE IMAGE ZOOMABLE
Full Citation
STANDARD VIEW MARC VIEW
Permanent Link: http://ufdc.ufl.edu/WL00000945/00001
 Material Information
Title: Legal Issues Involved in OHWL Designation
Physical Description: Book
Language: English
 Subjects
Spatial Coverage: North America -- United States of America -- Florida
 Notes
Abstract: Legal Issues Involved in OHWL Designation L.M. Buddy Blain, Esquire
General Note: Box 7, Folder 4 ( Vail Conference 1989 - 1989 ), Item 44
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
 Record Information
Bibliographic ID: WL00000945
Volume ID: VID00001
Source Institution: Levin College of Law, University of Florida
Holding Location: Levin College of Law, University of Florida
Rights Management: All rights reserved by the source institution and holding location.

Full Text








Legal Issues Involved in OHWL Designation
L. M. Buddy Blain, Esquire
Blain & Cone, P.A.
202 Madison Street
Tampa, Florida 33602


The Ordinary High Water Line (OHWL) is the boundary line
between privately-owned uplands and state-owned sovereignty
submerged lands underneath navigable fresh water lakes and
rivers. In the past several years, the battle over exact
location of the OHWL has been escalating. The combatants so far
have been Coastal Petroleum Company, the Florida Board of
Trustees of the Internal Improvement Trust Fund and DNR on the
one side, and various private owners of riparian lands, large and
small, on the other side. The Board of Professional Land
Surveyors has entered into the battle by way of adopting minimum
technical standards for ordinary high water mark surveys.

The points of contention have been several. The parties
have argued over:

(1) Whether DNR and the Board of Trustees have statutory
authority to issue rules governing the methodology of
all OHWL locations, and whether the Board of Surveyors
has statutory authority to issue rules on OHWL surveys;

(2) Whether the OHWL extends to the limit of the flood
plain;

(3) Whether the use of statistical averaging of water body
levels is competent and reliable evidence of the OHWL
location, for title purposes;

(4) Whether it is legally acceptable to set the OHWL at an
elevation above mean sea level and then project that
elevation around the entire boundary of the water body
(the "bowl theory");

(5) Whether state regulation of water levels, for flood
control purposes, negates the usual legal principle
that the title boundary moves when the OHWL moves
gradually and imperceptibly;






1

/1.0/












(6) Whether it is legally acceptable to assess the OHWL
location on the basis of "zones" of "predominant"
vegetation;

(7) Whether statewide legislation on OHWL is desirable or
appropriate;

(8) Whether the OHWL methodology, as proposed by DNR and
the Trustees, would effect an unconstitutional
uncompensated taking of property;

(9) Whether the water management districts have paid for
sovereignty lands under the Save Our Rivers Program
that already belonged to the state;


1. Whether DNR and the Board of Trustees have statutory
authority to issue rules governing the methodology of
all OHWL locations; and whether the Board of Surveyors
has statutory authority to issue rules on OHWL surveys.

There are two separate sets of rules on OHWL. One is
being prepared by DNR staff for adoption by the Board of
Trustees. One has been adopted by the Board of Professional Land
Surveyors, under the Department of Professional Regulation.

On September 30, 1988, the Board of Professional Land
Surveyors (Board) adopted a revised rule on its minimum technical
requirements, Chapter 21HH-6. Contained in these minimum
technical requirements are the definitions and criteria for
determining the location of the ordinary high water mark (OHWM).

The rules for OHWM have been considered by the Board
since March of 1988. A total of five extensive public workshops
were held in considering the OHWM rules. At these workshops,
surveyors, land owners and other concerned individuals gave their
support to the Board's OHWM rules. DNR was present at each of
these workshops, but never gave any input or comments on the
rules. The only time clear opposition to the rule was voiced was
at the last public hearing on September 30, 1988. Mr. Glogua,
Assistant Attorney General, appeared to oppose the definition and
criteria of the rule.

The Attorney General and DNR filed a petition
challenging the OHWM sections of the rules on behalf of the Board
of Trustees of the Internal Improvement Trust Fund (Trustees).
The rule challenge was filed on September 23, 1988. Although the












rule was adopted by the Board of Professional Land Surveyors, it
cannot go into effect until the rule challenge litigation is
resolved.

The rule challenge claims that since the Trustees hold
title to the State's sovereignty lands, "the power of the
Trustees in the area of determining the boundaries of sovereignty
lands is superior" to that of the Board of Professional Land
Surveyors.

Seemingly, it should not make a difference which agency
adopts OHWL rules. The point is to codify the existing federal
and state case law to provide security in property boundaries and
establish statewide standards. However, DNR's rules do not
follow established case law; they create a new and novel method
for determining OHWL. The Trustees' rule, drafted by DNR, would
follow their position set forth in the Lake Kissimmee cases.
That is, the surveyor must examine terrestrial, aquatic, and
"dominant" vegetation. The proposed rule would extend the OHWL
to the flood line; it would use projected elevation around the
water body; and it would ignore reliction or accretion if caused
by artificial means. The Trustees' rule would apply to any OHWL
determination that it may receive, whether performed by
independent surveyors or merely those surveyors retained by the
Trustees.

The rule being considered by the Board of Professional
Land Surveyors would follow the traditional legal doctrines. In
specific contrast to the Trustees' proposed rule, it would focus
on the presence or absence of terrestrial vegetation only. Also,
it would reflect the correct legal principle that boundaries
change when the OHWL moves gradually and imperceptibly, whether
caused by natural or artificial means.

The crucial legal issue here is which agency has the
authority to adopt OHWL surveying rules. Our firm researched
this matter during this past year and concluded that the Board of
Professional Land Surveyors does have rulemaking authority and
that the Board of Trustees does not. The Attorney General of the
State of Florida issued an opinion, upon request of DNR, that the
Board of Trustees does have authority to adopt an OHWL rule. We
have examined the Attorney General's opinion and respectfully
disagree.

No one requested an opinion from the Attorney General
on whether the Board of Professional Land Surveyors has OHWL
survey rulemaking authority, but the Assistant Attorney General












initially assigned to the Board of Surveyors has expressed the
opinion that the OHWL survey rule is within the Surveyors'
authority. Further, the Board of Surveyors possesses clear
statutory authority to adopt rules codifying surveying practices
including OHWL surveys.

The legal issue of the relative authority of the
Surveyors to adopt OHWL surveying rules along with the
determination of the validity of the proposed rule has been
litigated in the proceeding held on November 3 through 23, 1988.
The Hearing Officer will probably issue his Final Order
determining these issues in early to mid-February, 1989.

The Trustees' draft OHWL rules were last reviewed in
public workshops held on October 12, 13 and 14 in West Palm
Beach, Orlando and Tallahassee. A revised draft rule is expected
in January, 1989.

2. Whether the OHWL extends to the limit of the flood
plain.

The issue of whether the OHWL extends to the flood
plain should not be a legal issue at all, given the fact that the
Florida Supreme Court said, 61 years ago in Tilden v. Smith, that
it does not:

[H]igh-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 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 .. [T]hat 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.
*

The high-water mark on fresh water rivers is not the
highest point to which the stream rises in times of
freshets.....(1)

A freshet is a flood, according to Black's Law
Dictionary. (2) The Florida Supreme Court's pronouncement that
the OHWL does not extend to the flood line is not an unusual or



4
//. o,/












unsupported doctrine such that DNR and the Trustees might have
reason to seek to change it; on the contrary, the court's
position is consistent with the opinions of the leading decision
in federal and other state courts. In addition, the pronouncement
in Tilden was reaffirmed by Florida courts in 1986. (3)

Despite the fact that it is overwhelmingly clear that,
legally, the OHWL does not' extend to the flood line, DNR and the
Trustees have urged Florida courts to rule that it does. In the
"Coastal Petroleum" case (4), involving the Peace River, the
state argued that the OHWL was located approximately at the flood
line. The issue was never resolved judicially because the case
was settled. As part of the settlement, Mobil, the uplands
owner, conveyed to the state a conservation easement over Mobil's
lands between the OHWL (as set by Mobil) and the outer limits of
the 25 year flood plain on both sides of the Peace River and the
North Prong of the Alafia River; with fee title conveyances of
the conservation areas to follow in the future.

The same issue has come up in pending litigation in
Polk County and Osceola County, involving the boundary of Lake
Kissimmee. The Lightsey case (5),in Polk County, was filed
first. DNR and the Trustees claim there that the OHWL is located
at 53.1 feet mean sea level, which is the pre-regulation highest
annual flood elevation. This case was scheduled for trial, but
settlement negotiations resulted in a continuance.

Under the proposed settlement, the legal boundary would
be set at an elevation of 52.5, which is the post-regulation
maximum, in areas where there is a ridgeway. In areas where
there is no ridgeway, the boundary would be set at 51.4 feet mean
sea level, which coincides with the OHWL as established by a
study by the Trustees staff in 1976. The parties hope to provide
in their settlement for non-party riparian owners along Lake
Kissimmee and Lake Cypress and Lake Hatchineha, to "opt in" and
elect to be bound by the terms of the settlement. The settlement
also would provide for a conservation easement for all property
below the 53.5 elevation, which is the pre-regulation flood line.

It is unclear at this time whether the proposed
settlement in Lightsey will go through. If it does, it may also
moot the pending Miles case (6), filed in Osceola County, which
involves different Lake Kissimmee landowners but the same issues.
That case was ordered "on hold" until the Lightsey case is
resolved. If Lightsey and Miles settle on these terms,
resolution of the issue of the flood line as boundary will have
to wait.













3. Whether the use of statistical averaging of water body
levels is competent and reliable evidence of the OHWL
location, for title purposes.

This issue is not currently being debated in the
judicial arena, but it has come up in discussions relating to
development of an OHWL rule. It has been addressed judicially
only in the context of federal regulation, by the United States
District Court in United States v. Cameron. (7) The court there
held that averaging of lake levels may be considered as secondary
evidence in establishing an OHWL for federal regulatory purposes,
but the statistical data that was presented to that court was not
sufficiently reliable to be considered as evidence.

4. Whether it is legally acceptable to set the OHWL at an
elevation above mean sea level and then project that
elevation around the entire boundary of the water body
(the "bowl theory").

In the Lake Kissimmee cases, DNR and the Trustees have
argued that the boundary line is, essentially, the pre-regulation
flood line elevation, which should be projected across the entire
lake. In this fashion, they would, so their theory goes, set the
boundary for the entire lake in proceedings involving only a few
property owners. It is, naturally, legally impermissible to bind
non-parties. In addition, the use of projected elevations is
also not legally acceptable.

The legal definitions of OHWL focus upon the effect of
water, its presence and action. OHWL was legally defined by the
Florida Supreme Court in Tilden (8) as a physical mark denoting
the horizontal extent of the sovereignty submerged lands of a
navigable body of water. Florida courts have not approved the
use of statistical averaging, or vertical elevation, to establish
the OHWL for title boundary purposes.
Using elevation as the primary method to establish an
OHWL for boundary purposes is inappropriate for several reasons.
One, it assumes that the water surface forms a
horizontal plane which could exist only within a static pool,
unaffected by wind or by inflow or outflow. The use of elevation
assumes homogeneous conditions around the water body; it ignores
the effect of inflow to the water body and outflow from the water
body that may establish a hydrologic gradient that affects the



6
11.0O(












water's presence and action on the shore. It ignores the effect
of prevailing winds, which can affect the water's presence and
action. It focuses on the level of water measured at one or more
specific points, rather than on the effect of water's presence
and action which are influenced by the myriad of environmental
conditions in and around the water body. It fails to take into
account the physical impacts of the water on the vegetation and
soils of the banks.

Second, overemphasis on elevation could result in the
inclusion within the OHWL of lowlands that are swamp and overflow
lands, rather than sovereignty submerged lands. Merely because
lands are low and wet and within a certain elevation, does not
mean that such lands are beneath navigable waters. They could be
low and wet as a result of surface water flow or ground water
seepage rather than as a result of being a part of a lake or
river.

Finally, the use of elevation, in the case of
freshwater non-tidal bodies, such as lakes, is not proven to be
reliable. There is no accepted scientific method for determining
the appropriate time period during which the elevation should be
examined.
Water elevation has been approved as the primary
indicator of OHWL in one Florida case, which was a
jurisdictional, rather than a title boundary, dispute. In the
Walker Ranch case (9), the court decided the issue of the
judicial jurisdictional boundary between Polk and Osceola
Counties. Sections 7.49 and 7.53 of the Florida Statutes set the
county boundaries with reference to the north and west shore of
Lake Hatchineha. The court decided that the shoreline, and the
judicial jurisdictional boundary should be drawn based upon an
elevation of 52.5 feet, the high water level of the artificially
regulated lake. Shoreline in this case is not the same thing as
OHWL in a title boundary case. Shore in this case was a term
used by the legislature to refer to the boundary, for court
jurisdictional purposes, of a lake that was then known to be
artificially regulated. The court stated that, presumablybl,
the legislature knew about this level at the time it drew the
boundaries in 1967, and thus the boundary was established by the
legislature...."(10)
Elevation evidence, where reliable, ay be a desirable
indicator of regulatory jurisdiction or court jurisdiction-areas
in which certainty is crucial. The line of demarcation for
regulatory purposes should be clear and non-fluctuating. In



7
A1.01












deciding private property boundaries, however, the Florida
Supreme Court has ruled that it is unconstitutional to replace
the traditional OHWL boundary, which allows for water fluctuation
that leads to erosion and accretion and reliction, with an
inflexible uniform boundary line. (11)

The determination of the OHWL for boundary purposes
should be based upon analysis of the factors discussed in the
legal definition of OHWL: a physical mark on the soil; slope of
the bank and character of the soil of the bank and bed; and
presence of terrestrial vegetation. Elevation should never be a
primary indicator of OHWL for title boundary purposes.

5. Whether state regulation of water levels, for flood
control purposes, negates the usual legal principle
that the title boundary moves when the OHWL moves
gradually and imperceptibly.

In the Lightsey case, DNR and the Trustees say that the
effect of 14 years of water level regulation should be ignored.
They say that the boundary should be set at the pre-regulation
flood line, and that the legal doctrine of reliction does not
apply.
The State has previously argued this position and it
was rejected by the Florida Supreme Court in 1987. The rejection
was clear and strong so there should be no misunderstanding.
In the Sand Key case (12), the Florida Supreme Court
reaffirmed the legal doctrine of reliction and accretion, which
is that an upland owner owns any accretions to the upland that
are formed gradually and imperceptibly. The court said that this
rule applies when the gradual and imperceptible accretion of land
results from natural forces. The rule also 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.

This basic principle of water law had been under attack
from DNR and the Attorney General representing the Trustees,
which have argued in several previous cases, that an upland owner
does not have a vested right to accreted land or relicted land
if: (a) the land resulted from any artificial activities,
regardless of the landowner's non-involvement; and (b) if the
land resulted from state projects.



8













In Sand Key, the state urged the court to rule that the
state owns all accretions caused in whole or in part by any type
of artificial activity such as flood control or erosion control
projects. The court flatly rejected the state's argument. It
stated that the rule is 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 participate in the improvements that
caused the accretions or relictions.
Although the Sand Key facts 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
includes vested rights of accretion and reliction; it also
affirms a basic principle of water law-that the legal boundary
follows gradual and imperceptible changes in the OHWL.
Although the Sand Key court was quite clear, DNR and
the Trustees in Lightsey have re-armed themselves with their
defeated argument, stating in their trial brief that "if water
levels are altered and depressed by a hydrological regime brought
about by man-made control, reliction is not legally in effect and
any water level shift downward does not entitle the upland owner
to ownership of the newly exposed bed". (13) They seem to have
overlooked Sand Key, which was issued one year ago, as they fail
to cite it or distinguish it.
This issue was settled by the Florida Supreme Court in
1987 but DNR and the Trustees seem determined to raise it again
and again. It is, therefore, something of an issue in the
overall OHWL controversy.

6. Whether it is legally acceptable to assess the OHWL
location on the basis of "zones" of "predominant"
vegetation.

In the Lightsey case, DNR and the Trustees say, in
their Pre-Trial Legal Memorandum, that "[a] strong visual
indicator of the ordinary high water line can be found where the
lake's plant and tree community changes to a peculiarly upland
community."(14) DNR's draft OHWL rule uses the dominance of
upland and hydrophytic plant species to locate plant community
boundaries in determining the OHWL. (15) This approach would
extend the OHWL landward until the dominant form of plant growth



9

//601












is upland, or terrestrial. This is another legal issue that has
been created as a result of the state's disregard of the
traditional OHWL definition, which limits the OHWL to the point
at which terrestrial vegetation ceases. (16)

7. Whether statewide legislation on OHWL is desirable or
appropriate.

An overwhelming legal issue is whether the OHWL
controversy will be resolved by the judicial, executive or
legislative branch. Given the case-by-case settlement approach
that seems to be favored by DNR and the Trustees, it seems
unlikely that we will get a final judicial determination in the
near future. The matter may well be decided over the rulemaking
authority of the Surveyors and the Trustees.

The legislature has been reluctant to take up the issue of
OHWL determination. Representative Harris had sponsored House
Bill 1215, which was designed to establish a procedure for
conclusively, and within a certain period of time, setting the
OHWL and boundary for all freshwater navigable lakes and rivers
in Florida. It would have required that DNR, within a time
certain, publish a list of all freshwater rivers and lakes
claimed to be navigable. DNR would also be required, again
within a time certain, to establish the OHWL for each such
navigable lake or river. There was a procedure for private
landowners to contest the navigability and OHWL determinations.
The bill was designed to end the current uncertainty
over navigability and land titles that is now being addressed on
a case-by-case, settlement basis. These settlements lack any
value to property owners because they do not qualify as legally
enforceable precedents.
The bill was a good idea, but it was opposed by DNR
which said that the OHWL methodology and navigability
determinations, as required by the bill, would cost the state
30-75% of its sovereignty land. This estimate is based on DNR's
position that the Trustees own to the flood line. DNR also
objected because "seasonally flooded wetlands" would be
destroyed. DNR's opposition on this basis assumes that
"seasonally flooded wetlands" are below the OHWL. These wetlands
are protected by extensive DER and water management regulation.
If DNR is proposing that regulation is not enough to protect
these wetlands then they should purchase the area not attempt to
take them without compensating the landowners.



10

1/ /0













The bill was defeated in the House Natural Resources
Committee. It is possible that another OHWL bill may be
introduced again in the 1989 session. DNR in 1985 prepared
legislation on this subject but it was never considered.

8. Whether the OHWL methodology, as proposed by DNR and
the Trustees, would effect an unconstitutional
uncompensated taking of property.

In the Lake Kissimmee case, the Lightseys argued in
their Trial Brief that judicial enforcement of the state's
position would "deprive their property of its riparian
attributes". Under the position set forth by DNR and the
Trustees, private landowners would lose their access to the
water, because a state-owned strip of land would intervene
between the traditional OHWL and the flood line. The Lightseys
quoted from Sand Key and other cases which state that in Florida,
riparian rights, or the property's contacts with the water, are
valuable property rights in themselves, separate from the realty
itself, that cannot be taken by the state without payment of just
compensation. They concluded in their Trial Brief that it was
obvious that the Trustees were acting with the intent to take
valuable riparian lands without payment of just compensation.
DNR and the Trustees have argued that the land between
the flood plain and the traditional OHWL never belonged to the
private owners anyway, so there never were any riparian rights to
be taken. The issue has not been resolved. However, it is clear
that the traditional expectation of the location of the OHWL does
not even come close to the OHWL location DNR claims under its new
methodology.

9. Whether the water management districts have paid for
sovereignty lands under the Save Our Rivers program
that already belonged to the state.

Another way of looking at this issue is how the "novel"
OHWL theory of DNR and the Trustees can cause headaches for
public bodies as well as for private citizens.
The districts' involvement with the OHWL controversy
began in March, 1987, when Bruce Means, President of the Coastal
Plains Institute, a private corporation, complained to Governor
Martinez about this district's Save Our River purchases on the



11


//H//












Apalachicola and Choctawhatchee Rivers. Dr. Means is a member of
a team contracted by DNR to write an OHWL Surveying Manual. In
his analysis of the purchases, he stated that "[t]he bed of a
river is all the land between the true fast banks (the
floodplain) including the land under the water in the low water
channel as well as the land under the water in the high water
channel". He said that the district had, in effect, purchased
from private owners lands the Trustees owned, the land between
the (traditional) OHWL and the flood line.

The Attorney General, whose office has represented the
Trustees in the Peace River and Lake Kissimmee cases, expressed
to the Executive Director of DNR his concern over whether the
districts were purchasing state owned lands. In July of 1987,
the Secretary of DER, the supervisory agency over the districts,
reported to the Governor that the district purchases were
appropriate even though the surveys did not fix a precise OHWL
location. The Secretary recommended development of a statewide
standard OHWL methodology.

The final results have been the Board of Trustees'
policy statement on Sovereignty Submerged Lands and the Save Our
Rivers Land Acquisition Program and the DNR draft rule on public
trust consideration found at Chapter 18-22C of the September 16,
1988 draft rules.

The policy statement adopted by the Governor and
Cabinet allows the Trustees to waive its claim to sovereignty
submerged land contained in a Save Our Rivers Land Acquisition.
In determining whether to allow the purchase of these lands the
Trustees must find it to be in the public interest. A list of
criteria have been included in the policy.

The draft rule addresses the issue of previously
submerged lands that have been exposed as a result of government
sponsored projects. It asserts that such artificial changes do
not change boundaries, but such changes may result in abandonment
of the public trust interest in the exposed lands. Thus, when a
district wants to purchase lands that DNR asserts are sovereignty
submerged lands as part of a Save Our Rivers Program, the
Trustees may waive their ownership under certain conditions set
forth in the policy statement. The process for these waivers
includes analysis of the district's use of the land and the cost
of litigation to determine the location of the OHWM. The draft
rule and the policy statement make the acquisition of lands more
complicated and time consuming.




12
A1/1Z


~ _












CONCLUSION

The Ordinary High Water Line controversy will continue
well into the future. The Board of Professional Land Surveyors'
OHWM surveying rule, if they successfully prevail in the rule
challenge, will be a substantial first step in resolving these
boundary issues.

FOOTNOTES

1. Tilden v. Smith, 113 So. 708, 712 (1927) (emphasis
added).

2. Black's Law Dictionary, 4th Ed., p. 794

3. Board of Trustees of the Internal Improvement Trust
Fund v. Walker Ranch General Partnership, 496 So. 2d
153 (5th DCA 1986), rev. den., 504 So. 2d 766 (Fla.
1987).

4. Mobil Oil Corporation v. Coastal Petroleum and the
State of Florida, and the Department of Natural
Resources of the State of Florida, and the Board of
Trustees of the Internal Improvement Trust Fund of the
State of Florida, Case No. GCG-82-1089, Tenth Judicial
Circuit, Polk County, Florida.

5. Lightsey v. State of Florida, and the Department of
Natural Resources of the State of Florida, and the
Board of Trustees of the Internal Improvement Trust
Fund of the State of Florida, Case No. GCG-84-451,
Tenth Judicial Circuit, Polk County, Florida.

6. Board of Trustees of the Internal Improvement Trust
Fund, State of Florida v. Miles, Case No. 85-132,
Ninth Judicial Circuit.

7. United States v. Cameron, 466 F. Supp. 1099
(M.D.Fla.1978).

8. Tilden V. Smith, 113 So. 708, 712 (1927):

"In the case of fresh water rivers and lakes -- in
which there is no ebb and flow of the tide, but
which are subject to irregular and occasional
changes of height, without fixed quantity or time,



13
//1/3












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 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."

The court was quoting Minnetonka Lake Improvement
(Carpenter V. Hennepin County), 56 Minn. 513, 58 N.W.
295 (Minn. 1894).

Continuing in Tilden the Florida Supreme Court then
quoted the Supreme Court of New Hampshire as in
Dow v. Electric Co., 69 N.H. 498, 45 A. 350, 76 Am. St.
Rep. 189., 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



14
/1/.//












river impresses upon the soil by covering it for
sufficient periods to deprive it of vegetation and
to destroy its value for agriculture.'"

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
Tilden 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).

9. Walker Ranch General Partnership, Supra note 3.

10. Id. at 157.

11. State v. Florida National Properties, Inc., 338 So. 2d
13 (Fla.1976).

12. Board of Trustees of the Internal Improvement Trust
Fund v. Sand Key Associates, Inc., 512 So.2d 934
(Fla.1987)

13. Defendant's Pre-Trial Legal Memorandum at 12, Lightsey,
supra note 5.

14. Id. at 9.

15. DNR draft rule 18-22B.003, as of September 16, 1988.

16. See Tilden definition at note 8. Also see Cameron at
note 7, in which the court held that the absence of
terrestrial vegetation, not the presence of submerged
or transitional species, was an indication of the OHWL
location. There need not be a predominance of upland
species; if upland species are present then the area
may be above the OHWL and if upland species are not
present, then the area may be waterward of the OHWL.


K01OHWL.SPC
[Global]


_




University of Florida Home Page
© 2004 - 2010 University of Florida George A. Smathers Libraries.
All rights reserved.

Acceptable Use, Copyright, and Disclaimer Statement
Last updated October 10, 2010 - - mvs