Title: Riparian Rights to Navigable Waters
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Permanent Link: http://ufdc.ufl.edu/WL00001872/00001
 Material Information
Title: Riparian Rights to Navigable Waters
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
General Note: Box 9, Folder 8 ( SF -State Water Policy/Property Rights Issue -Supporting Documents - 1977-1981 ), Item 8
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
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Bibliographic ID: WL00001872
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















i A :A I


Riparian rights to
navigable waters
By I. Henry Dean
Riparian property owners are a
privileged group of landowners in
Florida. What makes them "riparian"
is that they own property bordering a
navigable body of water.' What
makes them "privileged" is that they
enjoy certain rights with respect to
navigable waters in addition to those
rights enjoyed by the public at large.
The strict definition of riparian
owner is "one who owns land on the
bank of a river." An owner of land
abutting a large lake or tidal water
exercises his "littoral rights" but the
terms may be used coextensively,
and will be here.
This article focuses in part on the
extent to which these riparian rights
exist in Florida. But it is impossible to
discuss riparian rights without first
discussing the correlative topic of the
state's interest in the submerged
lands upon which the riparian
owner's land borders. To determine
the state's interest in submerged
lands, one must consider whether a
body of water is navigable, where
state ownership ends and upland
ownership begins, and existing
powers exercised by the state to
protect its sovereign submerged
lands.
Defining sovereign
submerged land
By virtue of its admission to the
Union in 1845, the State of Florida
became the owner of all the
submerged lands under navigable
water, not previously alienated, to be
held in trust for the people of the
state.' Under this common law


rm L LmAt


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concept of "public trust," the state
holds such lands to be used by the
people for various activities,
including commerce, navigation,
fishing, boating and bathing.
The title to all sovereign tidal
submerged bottom lands and all
coastal and intracoastal waters of the
state and all submerged lands owned
by the state by right of its sovereignty
in navigable freshwater lakes, rivers
and streams is vested in the Trustees
of the Internal Improvement Fund.3
The state has the right and duty to
protect Florida's natural resources
and scenic beauty.' In addition, the
Florida Constitution specifically
provides that sovereign submerged
lands may be sold only when the sale
is determined to be in the public
interest."
Navigable waters in Florida
include all lakes, rivers, bays, harbors
or other waters capable of practical
navigation for useful purposes.s In
Florida, the test used to determine
whether a body of water is navigable
or not is "similar if not identical to the
federal title test."7 In order to be
declared navigable under this test, a
body of water must be navigable-in-
fact and meet the following criteria:
(1) It must have been susceptible to
navigation (2) for commerce (3) in its
natural and ordinary condition (4) by
any customary mode of trade or
travel (5) at the date Florida was
admitted to the Union (March 3,
1845).
Furthermore, whether a particular
body of water was navigable at the
time of the state's admission to the
Union vesting title to submerged
lands in the state is a federal question
which, because of the need for
uniformity, must be determined
under federal standards of
navigation. A body of water in
Florida is susceptible to navigation
for commerce if it has a sufficient
capacity and volume of water to float
the country's products (logs, for
example) to market.8 A body of
water continues to be navigable even
though occasional obstructions or
periodic cessation of navigability
causes the body of water to lose its
navigable characteristics.* Factors
considered by the State of Florida
before asserting ownership in a body


I. Henry Dean, Tallahassee, is counsel for
the Board of Trustees of the Internal
Improvement Trust Fund and a graduate of
Florida State Universty, 1974. He was assisted
in the preparation of this article by Kim E.
Streeter, who is a third-year law student at
Florida State University.
He writes this column on behalf of the
Environmental Law Section, Roger D.
Schwenke, chairman, and Robert W. Martin,
Jr., editor.


THE FLORIDA BAR JOURNAL/MARCH 1981 247


of water are its size, length, depth
and width, whether the body of
water was meandered and what use
was being made of the body of water
at the time Florida entered the
Union. The meander line is a factor
to be considered when the
navigability of a nontidal body of
water is in question.
Shortly after the United States
acquired Florida, federal surveyors
established meander lines around
those lakes determined to be
navigable in fact. In Florida, the
presence of a meander line on a
survey plat creates a rebuttable
presumption of navigability.1"
Conversely, absence of a meander
line on the survey plat of a body of
water creates a rebuttable
presumption of nonnavigability,"
although this presumption may be
overcome by factual evidence.
Assuming a body of water is
deemed navigable and state owned,
the next question to be addressed is
where the boundary line is located
dividing state-owned land from
upland riparian property. By
statutory definition submerged lands
are publicly owned lands below the
ordinary high water line of




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ENVIRONMENTAL LP


freshwaters and below the mean high
water line of saltwaters extending
seaward to the outer jurisdiction of
the state." The boundary line
between sovereign submerged lands
and private uplands is therefore
either the Mean High Water Line
(MHWL) or the Ordinary High
Water Line (OHWL).
The MHWL is the intersection of
the tidal plane of mean high water
with the shore. "Mean High Water" is
defined as the average height of the
high waters over a 19-year period."3
The MHWL is the boundary even
though a meander line exists with
respect to that body of water.
However, the Florida courts have
held that when the MHWL is
impossible to locate, and a meander
line had been established and could
be located, the meander line is the
boundary between the sovereign
submerged land and the riparian
upland."1
The OHWL of inland lakes and
rivers is determined by examining
beds and banks and ascertaining
where the presence and action of the
water are so common and usual over
a continuous period of years that the
bed is.of a character distinct from
that of the banks.'" F.S. 253.151
established a methodology for
locating boundary lines in nontidal,
freshwater meandered lakes.
Despite the fact that this statute was
declared unconstitutional in 1976," it
still appears in the Florida Statutes.


I
Obviously water boundaries O.
not remain static. Early Anglo-Saxon
law referred to estates abutting
sovereignty submerged lands as
"movable freeholds." The effects of
accretion, reliction, avulsion and
erosion on the shoreline must be
considered in determining
ownership. Accretion is the gradual
and imperceptible depositing of
solid materials from the water, such
as mud, sand or sediment along the
shore of the riparian upland. Title to
the soil formed by natural accretion
is vested in the upland riparian
owner." A deed to an upland parcel
of land without specific reference to
accretion carries with it title to any
accretion attached unless a specific
contrary intent is shown." In one
Florida case dealing with accretion,
the court held that accreted land
extending laterally from upland
property inured to the upland owner
even though the lateral extension cut
off another riparian owner's direct
access to a particular body of
water." This principle is apparently
unique to Florida.
Where accretion is caused by the
installation of public works projects,
title to any accretions to uplands
remains in the state." However, this
statute may not be applied to vest
title in the state where land was
created by artificial accretion before
the statute took effect in 1965."
Reliction is the term applied to
land formerly covered by water but
which has become uncovered by
recession of the water from the land.
As with accretion, title to the new
upland vests in the riparian owner.
An exception to this rule, however,
occurs when the reliction is a result of
government drainage operations.n
Avulsion is a sudden and


perceptible loss or addition to land
by some sudden or violent action of
nature, for example a hurricane.
Under these circumstances the pre-
avulsion mean high water line
remains the boundary between state
land and riparian upland. In Florida,
there is a presumption that accretion
as. opposed to avulsion caused the
shoreline to change and a party
asserting a change was caused by
avulsion has the burden of proof to
show otherwise."
Erosion is the opposite of accretion
and is also called submergence. It is
the gradual washing away of upland
by operation of the currents or tide.
This shifts the MHWL inland, and
title to the newly covered land vests
in the state.

Sovereignty land management
The Board of Trustees of the'
Internal Improvement Trust Fund is
authorized and directed to
administer all state-owned lands. It is
responsible for the creation of an
overall and comprehensive plan for
development concerning the
management and disposition of
state-owned lands so as to ensure
their maximum benefit and use.*
Prior to the Environmental
Reorganization Act of 1975," the
Trustees of the Internal Improve-
ment Trust Fund processed applica-
tions for dredge and fill permits
pursuant to F.S. 1253.123 and .124.
However, pursuant to Chapter 75-22,
dredge and fill permitting
procedures were transferred to the
Department of Environmental
Regulation [DER]. Applications are
now processed pursuant to Florida
Administrative Code, Ch. 17-4.29.
The standards for granting or
denying dredge and fill permits have
been challenged and found constitu-
tionally sound."
Nevertheless, it has been judicially
recognized that the Trustees of the
Internal Improvement Trust Fund
have broad discretion to grant or
deny uses of state-owned land, and
absent manifest abuse, such
discretion will not be disturbed."
Therefore, although DER processes
dredge and fill permit applications,
the Trustees of the Internal Improve-
ment Trust Fund must still grant
separate authorization for the use of
sovereignty submerged lands prior
to the issuance of any state permit
approving such use." Also, the
Trustees of the Internal Improve-


248 THE FLORIDA BAR JOURNAL/MARCH 1981


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T it Trust Fund, as the owners o discussing the various rights enjoyed
state lands, are vested with thi 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 ste in the
253." public interest, and subjlet to the
Rules and regulations for the authority of Congress with respect to
management and disposition of commerce and navigation.3
sovereignty ,submerged lands are
contained in Chapter 1SC-12, Florida Rights of r4pla ownem
Administrative Code." Applications
to purchase lands riparian to uplands Riparian landowners, o course,
may be made by the riparian owner are entitled to the same rights as the
only.3 Sales of lands not riparian to general public with respect to
uplands (i.e., sovereignty islands, navigable waters. Tho 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 navigble
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.n although they may be reserved by
dedication or easement."
Quitclaim deeds to clear title to education de the a t to
sovereignty lands filled after May 29, They include the right to ingress
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 from the water, the right to a reasonable use of
Co es)D nd be obtam^d t" 0 al
Trustees upon paymentof the the water for domestic purpose the
Trustees upon payment of the ght he th aker tf e
appraised value of the parcel in its t to ave e w ept ee from
unfilled state prior to June 11, 1957. pollution, the right to protect riparian
unfiledstat pror o Jue 1, 197-3 Zf


Although easements across
sovereignty lands for public or
private purposes may be granted at
the discretion of the Trustees,1
certain uses of sovereignty land
require leases from the Trustees of
the Internal Improvement Trust
Fund." These include leases for
commercial/industrial docking
facilities exceptt those less than 500
sq. ft. or those in existence prior to
March 10, 1970), aquaculture leases,
oil and gas leases, and oyster leases.
The Florida Legislature has
recognized that there are certain
areas of state-owned submerged
land that because of their exceptional
biological, aesthetic and scientific
value should be preserved essentially
in their natural condition for the use
and enjoyment of the citizens of the
state." There are a total of 34 such
aquatic preserves designated within
F.S. Ch. 258. The Trustees of the
Internal Improvement Trust Fund
have promulgated rules pursuant to
Ch. 120, to provide for the regulation
of activities within Florida's aquatic
preserves."
The authority of the state to
protect its. interest in sovereign
submerged lands is extensive. Before


i rupery irom injury or trespass oy
the improper use of the water for
navigation, the right to prevent
obstruction to navigation or unlawful
use of the water or submerged land
that restricts the riparian owner from
the use of his property, and a
qualified right to build structures in
front of riparian property to facilitate
the use of the waters.
A riparian owner has those
exclusive rights necessary for the use
and enjoyment of the riparian
property and any lawfully
conducted business on the property.
However, the rights nust be
exercised so as to not injure others."
Furthermore, no riparian owner has
the exclusive right to do business in
the public waters in front of his land;
such a right with respect to
commerce and navigation belongs to
the public at large." The riparian
right of ingress and egress to the
water means the riparian owner must
be permitted direct and unobstructed
access, over the foreshore and tidal
waters, to and from the channel.'3
The riparian owner's right to erect
structures on the submerged lands
between the shore and the channel is
not absolute. If erection of a structem
encroaches upon sovereign property


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THE FLORIDA AR JOURNAL/MARCH 1981 249


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ENVIRONMENTAL Lf





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 toinjure 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. However,
those special rights may not be taken
away from the riparian owner by
governmental authority without due
process and just compensation.4'
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. a



SMartin v. Busch, 112 So. 274, 287, 93 Fla.
535.
SFLA. COS., art. X, ii.
3 FLA. STAT., 3253.12.
4 FLA. CorNr., art. II, 17.


Y


250 THE FLORIDA BAR JOURNAL/MARCH 1981


SFLA. Corn., art. X, 11 .
Bs roward v. Mabry, 50 Se 82 (Fla. 1900).
Odom v. Delta Corp., 341 So.2d 977
(Fla. 1W6).
Bucki v. Cone, 60 So. 100 (Fla. 1889).
Broward v. Mabry, 50 So. at 831.
McDowel v. Trustees of the Internal
Improvement Trust Fund, 80 So.2d 715 (Fla.
1958).
" Odom v. Dekona Corp., 341 So.2d 977
(Fla. 1976).
'. FLA. STAT., 3253.12(l).
" FLA. STAT., 177.27(15); see alo Borax
Consolidated Ltd. v. City of Los Angeles, m8
U.S. 10 (1l35).
4 Trustees v. Wetstone, 22 Soad 10 (189)
and Trustees v. Wakuba Silver Springs, Co.,
382 So.2d 706 (Fla. 3d D.C.A. 1978).
" Tilden v. Smith, 113So. 708 (127), 94 Fla.
502.
" State v. Florida National Properties, Inc.,
338 So.2d 13 (FI. 1076).
SMexico Beach v. St. Joe Paper Co., 97
So.2d 708 (Fla.App. 157).
"s Id.
"* Ford v. Turner, 142 So.Sd 335 (Fla.App.
1982).
0 FLA. STAT., 1161.051.
STrustees v. Maderia Beach Nominee, Inc.,
272 So.d 209 (Fla.App. 1973).
" Martin v. Busch, 112 So. 274, 93 Fla. 535.
1 Schultz v. City of Dania, 156 So.2d 520
(Fla.App. 1963).
" FLA. STAT., f253.03(7).
" Florida Laws 1975, Chapter 75-22.
" Albrecht v. Department of Environmental
Regulation, 353 Soad 883 (Fla. 1st D.C.A.
1978).
SYonge v. Askew, 293 So.2d 305 (Fla. 1st
D.C.A. 1974).
" FLA. STAT., 1253.77.
* FLA. STAT., 1253.78.
SIt should be noted that all sales, exchanges
and leases of state-owned land are subject to
the motie and hearing requirements of FLA.
STAT., I3.15.
a Chapter 16C-12.03, FLA. ADMI. Coa.
* Chapter 16C-12.04(2), FLA. AmIN. Cone.
" FLA. STAT., 1253.129; Chapter e1C-1.06,
FLA. AnmI ConD.
" FLA. STAT., 1253.12; Chapter 10C-12.07,
Fu. AonD CODE.
" FLA. STAT., 1253.03; Chapter 16C-12.09
and Chapter 16C12.10. FLA. ADMN. CODE
SChapter e1C-1214, FLA. ADMIN. CODE.
" FLA. STAT., 925816, 9258.165, and
258s.3-46.
38 Chapter 160-18, Florida Administrative
Code contains rules for the Biscayne Bay
Aquatic Preserve. These rules became
effective March 20, 1980. Chapter 16Q-20,
Florida Administrative Code contains rules for
the aquatic preserves established pursuant to
the Florida Aquatic Preserve Act of 1975, and
were approved by the Trustees of the Internal
Improvement Trust Fund on December 16,
1980.
* Freed v. Miami Beach Rec. Corp., 93 Fla.
888. 112 So. 841 (1927).
4* O'Brien v. Gale J. Apple, Inc., 253 So.2d
717 (Fla. 2d D.C.A. 1971).
41 Ferry Pass Inspectors and Shippers Assoc.
v. Whites River Inspectors and Shippers
Assoc.. 48 So. 643. 57 Fla. 389 (1909).
" Id.
4 Hayes v. Bowman, 91 So. 795 (Fla. 1957).
4' Ferry Pass Inspectors and Shippers Assoc.
v. Whites River Inspectors and Shippers
Assoc., 48 So. 643. 57 Fla. 300 (1909).
5 Duval Engineering and Contracting Co. v.
Sales. 77 So.2d 431 (Fla. 1954).




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