Title: Rights of Riparian Owners
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Permanent Link: http://ufdc.ufl.edu/WL00001846/00001
 Material Information
Title: Rights of Riparian Owners
Physical Description: Book
Language: English
Publisher: The Florida Bar Journal
 Subjects
Spatial Coverage: North America -- United States of America -- Florida
 Notes
Abstract: The Florida Bar Journal Article March 1981 Rights of Riparian Owners
General Note: Box 9, Folder 6 ( SF- State Water Policy/Property Rights Issue - 1980-1981 ), Item 103
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
 Record Information
Bibliographic ID: WL00001846
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

Trust Fund, as the owners o discussing the various rights enjoyed
lands, are vested with the by a riparian owner, it should be
authority to hear and decide appeals noted that such rights are subject to
of decisions of DER under Chapter lawful regulation by the state in the
253.5" public interest, and subject to the
Rules and regulations for the authority of Congress with respect to
management and disposition of commerce and navigation."
sovereignty submerged lands are
contained in Chapter 16C-12, Florida Rights of riparian owners
Administrative Code.3" Applications
to purchase lands riparian to uplands Riparian landowners, of course,
may be made by the riparian owner are entitled to the same rights as the
only.31 Sales of lands not riparian to general public with respect to
uplands (i.e., sovereignty islands, navigable waters. Those rights
sandbars, flats exposed at high or low include commerce and navigation,
tide and other similar land not fishing, boating and bathing. There
contiguous to stable uplands) shall be are also certain rights attributable to-
by competitive bid.3* ownership of upland bordering on a
Title to lands filled or developed navigable body of water. These
prior to May 29, 1951, (prior to June riparian rights, incident to navigable
11, 1957 in Dade and Palm Beach waters, are appurtenant to and
Counties) is vested in the upland inseparable from the riparian land.
owner and the Trustees are required These rights generally pass with the
to issue a disclaimer to the upland conveyance of the property,
owner upon proper application.33 although they may be reserved by
dedication or easement.4"
Quitclaim deeds to clear title to They include the right to ingress
sovereignty lands filled after May 29, T egress, the right to ness
1951, but prior to June 11, 1957 and egress, the right to an
(except Dade and Palm Beach unobstructed view of or over the
Counties) may be obtained P m Bthe water, the right to a reasonable use of
Counties) may be obtained from the the water for domestic purposes, the
Trustees upon payment of the the water r omest urse the
appraised value of the parcel in its rght to ave the water kept ree from
unfilled state prior to June 11, 1957.3' pollution, the right to protect riparian
property from injury or trespass by
Although easements across the improper use of the water for
sovereignty lands for public or navigation, the right to prevent
private purposes may be granted at obstruction to navigation or unlawful
the discretion of the Trustees," use of the water or submerged land
certain uses of sovereignty land that restricts the riparian owner from
require leases from the Trustees of the use of his property, and a
the Internal Improvement Trust qualified right to build structures in
Fund.3" These include leases for front of riparian property to facilitate
commercial/industrial docking the use of the waters.
facilities (except those less than 500 A riparian owner has those
sq. ft. or those in existence prior to exclusive rights necessary for the use
March 10, 1970), aquaculture leases, and enjoyment of the riparian
oil and gas leases, and oyster leases. property and any lawfully
The Florida Legislature has conducted business on the property.
recognized that there are certain However, the rights must be
areas of state-owned submerged exercised so as to not injure others."
land that because of their exceptional Furthermore, no riparian owner has
biological, aesthetic and scientific the exclusive right to do business in
value should be preserved essentially the public waters in front of his land;
in their natural condition for the use such a right with respect to
and enjoyment of the citizens of the commerce and navigation belongs to
state.37 There are a total of 34 such the public at large.4" The riparian
aquatic preserves designated within right of ingress and egress to the
F.S. Ch. 258. The Trustees of the water means the riparian owner must
Internal Improvement Trust Fund be permitted direct and unobstructed
have promulgated rules pursuant to access, over the foreshore and tidal
Ch. 120, to provide for the regulation waters, to and from the channel.43
of activities within Florida's aquatic The riparian owner's right to erect
preserves." structures on the submerged lands
The authority of the state to between the shore and the channel is
protect its interest in sovereign not absolute. If erection of a structure
submerged lands is extensive. Before encroaches upon sovereign property


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THE FLORIDA BAR JOURNAL/MARCH 1981 249


103





ENVIRONMENTAL





the state may consent or acquiesce in
allowing a riparian owner to build
structures to facilitate access to and
use of the waters. The privilege to
erect structures is, however, subject
to the superior right of the public to
make use of the waters for navigation
and commerce and also subject to
valid state regulation as previously
discussed.
As noted above, those rights
exclusive to riparian owners may not
be exercised so as to injure the lawful
rights of others. For example, a
riparian owner may not obstruct or
unreasonably impede the navigation
and commerce of others or
monopolize such activities." On the
other hand, the riparian owner has
the right to enjoin the unlawful use of
public'waters by others when special
injury is caused to the use and
enjoyment of the riparian property.
Riparian rights which have been
treated as property rights as


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previously mentioned are subje
governmental regulation. How J,
those special rights may not be taken
away from the riparian owner by
governmental authority without due
process and just compensation.'5
Nevertheless, a riparian owner is
entitled to compensation only where
the state regulation substantially
impairs and infringes upon the
owner's riparian rights. For example,
where the owner's right of ingress
and egress or right to unobstructed
view is only slightly disturbed no
compensation is required.
If the riparian owner can recognize
and respect the public's interest in
protecting the navigable waters of
the state while, concomitantly,
regulatory agencies can recognize
the riparian owner's right to
constructive uses for his waterfront
property, these interests need not
necessarily conflict. o



Martin v. Busch, 112 So. 274, 287, 93 Fla.
535.
SFLA. CoNsr., art. X, (11.
FLA. STAT., 253.12.
FLA. CONST., art. II, 47.


250 THE FLORIDA BAR JOURNAL/MARCH 1981


- I- r ------


'FLA. CONST., art. X, 11.
SBroward v. Mabry, 50 So. 826 (Fla. 1909).
'Odom v. Deltona Corp., 341 So.2d 977
(Fla. 1976).
8 Bucki v. Cone, 60 So. 160 (Fla. 1889).
Broward v. Mabry, 50 So. at 831.
McDowell v. Trustees of the Internal
Improvement Trust Fund, 90 So.2d 715 (Fla.
1956).
Odom v. Deltona Corp., 341 So.2d 977
(Fla. 1976).
FLA. STAT., 1253.12(1).
1" FLA. STAT., 1177.27(15); see aLso Borax
Consolidated Ltd. v. City of Los Angeles, 296
U.. 10 (1935).
Trustees v. Wetstone, 22 So.2d 10 (1909)
and Trustees v. Waulla Silver Springs, Co.,
362 So.2d 706 (Fla. 3d D.C.A. 1978).
Tilden v. Smith, 113So. 708 (1927), 94 Fla.
502.
i" State v. Florida National Properties, Inc.,
338 So.2d 13 (Fla. 1976).
Mexico Beach v. St. Joe Paper Co., 97
So.2d 708 (Fla.App. 1957).
I1 Id.
Ford v. Turner, 142 So.2d 335 (Fla.App.
1962).
'2 FLA. STAT., $161.051.
"' Trustees v. Maderia Beach Nominee, Inc.,
272 So.2d 209 (Fla.App. 1973).
Martin v. Busch, 112 So. 274, 93 Fla. 535.
Schultz v. City of Dania, 156 So.2d 520
(Fla.App. 1963).
FLA. STAT., 4253.03(7).
s Florida Laws 1975, Chapter 75-22.
Albrecht v. Department of Environnental
Regulation, 353 So.2d 883 (Fla. Ist D.C.A.
1978).
Yonge v. Askew, 293 So.2d 395 (Fla. 1st
D.C.A. 1974).
FLA. STAT., 1253.77.
SFLA. STAT., 1253.76.
a It should be noted that all sales, exchanges
and leases of state-owned land are subject to
the notice and hearing requirements of FLA.
STAT., (253.115.
SChapter 1C.-12.03, FLA. ADMIN. CODE.
Chapter 16C-12.04(2), FLA. ADMIN. CODE.
SFLA. STAT., 253.129; Chapter 16C-12.06,
FLA. ADMIN. CODE.
1' FLA. STAT., (253.12; Chapter 16C-12.07,
FLA. ADMIN. CODE.
FLA. STAT., 1253.03, Chapter 16C-12.09
and Chapter 16C-12.10, FLA. ADMIN. CODE.
36 Chapter 16C-12.14, FLA. ADMIN. CODE.
"FLA. STAT,, I258.16, 258.165, and
1258.35-46.
" Chapter 16Q-1.8 Florida Administrative
Code contains nrules for the Biscayne Bay
Aquatic Preserve. These rules became
effective March 20, 1980. Chapter 160-20,
Florida Administrative Coe contains rules for
the aquatic preserves established pursuant to
the Florida Aquatic Preserve Act of 1975. and
were approved by the Tnhtees of the Internal
Improvement Trust Fund on December 16,
1980.
" Freed v. Miami Beach Rec. Corp., 93 Fla.
888. 112 So. 841 (1927).
* O'Brien v. Gale J. Apple, Inc., 253 So.2d
717 (Fla. 2d D.C.A. 1971).
*4 Ferry Pass Inspectors and Shippers Assoc.
v. Whites River Inspectors and Shippers
Assoc., 48 So. 643, 57 Fla. 399 (1909).
I Id.
3 ilayes v. Bowman, 91 So. 795 (Fla. 1957).
* Ferry Pass Inspectors and Shippers Assoc.
v. Whites River Inspectors and Shippers
Assoc.. 48 So. 643, 57 Fla. 399 (1900).
" Duval Engineering and Contracting Co. v.
Sales, 77 So.2d 431 (Fla. 1954).


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