Title: University of Florida Law Review - Riparian Rights in Florida
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Title: University of Florida Law Review - Riparian Rights in Florida
Physical Description: Book
Language: English
Publisher: University of Florida Law Review, Vol VIII, Winter 1955, No. 4
Spatial Coverage: North America -- United States of America -- Florida
Abstract: Richard Hamann's Collections - University of Florida Law Review - Riparian Rights in Florida
General Note: Box 12, Folder 8 ( Collected Materials on Water Law - 1952 -1957 ), Item 9
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
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Bibliographic ID: WL00003081
Volume ID: VID00001
Source Institution: Levin College of Law, University of Florida
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University of Florida Law Review



TITLES James W. Day. 365


TRANSACTIONS Michel G. Emmanuel. 411



PRACTITIONER Bertel M. Sparks 465


FLORIDA Grover C. Herring
Tully Scott 486



Duties, Rights, and Remedies of Real Estate Brokers 513

The UNIVERSIY OF FLORIDA LAW REVIEW is published quarterly (March, July,
October, December) by the students of the College of Law of the University of
Florida. Printed at E. O. Painter Printing Co., DeLand, Florida. Entered as second-
class matter at the post office at Gainesville, Florida, July 1951.
Editorial and business address: Room 116, Law Building, University of Florida,
Gainesville, Florida.
Subscription: $4.00 per annum, regular issues $1.25, symposium issues $2.00;

Copyright 1955 by the University of Florida Law Review






From the end of a trail

a man looks back

For forty years he trod a trail that ran between
his office and his home and for forty years made
every client's problems his problems too. Came
then the day when for the last time he prepared
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that well-worn trail. For the last time too he
closed the covers of a long-familiar book, and as
he pondered how that book had served his needs,
Le Grand J. Woods, Esq. of Corpus Christi,
Texas, of his own accord sat down and wrote
to us

"I am retiring from the practice of law-
but I want you to know how much I have
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along without them and would be very
foolish to attempt to do so. I feel in-
debted to Shepard's Citations for
whatever success I may have had in the
practice of law for 40 years."
What greater tribute could we hope to earn?

Shepard's Citations
Colorado Springs

Pleae mention the Rzvnw when dealing with our advertime




By treaty of February 22, 1819, the Kingdom of Spain ceded "to
the United States, in full property and sovereignty, all the territories
S. known by the name of East and West Florida," with an express
provision that all the grants of land made by Spain before January
24, 1818, should be ratified and confirmed to the persons in possession
of the lands.' In 1845 the Territory of East and West Florida was
admitted to the Union as the State of Florida, on equal footing with
the original states.2
the common law of England the Crown in its sovereign
caat held title to te as o naviga e or tide waters, in u 1g
the space between igh and low water in trust for e people
of te realm,n wl a g ot navigation, commerce, fishing, bathing,
and other easements allowed by law. After the American Revolution
neither proprietary rights in tidal lands within the states nor power
to dispose of such lands was delegated to the federal government by
the Constitution. All nrnpri'ma rights in shores and lands under
nigable waters were teretor ese e s tes several us
Florida acquired e rights, prerogatives, and duties with respect to
navigable waters and underlying lands within its boundaries that
were held by the original thirteen states, except to the extent of their
modification by the cession treaty with Spain.'
According to the laws of Spain, the jigjts of a subject in lands
bounded by navigable waters were derived from the Crown and ex-
tended only to the high-water mark ues otherwise specified b
- an exssgrant. Although the Spanish possessions in America were
held by te brown to be alienable at will, a grant or concession of
lands under navigable waters and. d s was not in accord with

*Circuit Judge, Eleventh Circuit of Florida, 1940-46; President, The Florida Bar,
1948-49; Member of Miami, Florida, Bar.
iTreaty of Amity, Settlement, and Limits, 8 STAT. 252 (1819).
2Pollard v. Hagan, 44 US. (3 How.) 212 (1819); see State ex rel. Ellis v. Ger-
bing, 56 Fla. 603, 610, 47 So. 353, 355 (1908).
aState ex rel. Ellis v. Gerbing, 56 Fla. 603, 47 So. 353 (1908).
tCases cited note 2 supra.



custom. Such lands and waters were held for the public use, and a
~iiveyance of them to private ownership could be consummated only
by a clear showing of sovereign intent.5 Even private ownership
would not preclude public use of the lands and waters unless the lands
were reclaimed and improved for special purposes under Crown
Except for Spanish grants of submerged lands made prior to
January 24, 1818, Florida applies an admixture of common law and
statutory principles in determining riparian rights of its inhabitants.


Determination of Navigability

Since riparian rights on nonnavigable and navigable waters differ,
navigability must be defined. In. j maiorit of jurisdictions navi-
gable waters are defined as those that are navi me
Naviability in act means susceptibility to use con-
ditions as highways of commerce ov
wa-ter may be conducted in at least one of the customary modes.8
The fact that the waters are nual is Ml ais aa is me act at
the entire body, or any portion thereof, is not susceptible of use
thrtQgbo- t the- j thi r. r-ls uavi ailifty f 1iiaflir aqueous

sJover y Costas v. Insular Gov't of Philippine Islands, 221 U.S. 623 (1911);
Apalachicola Land & Development Co. v. McRae, 86 Fla. 393, 98 So. 505 (1923).
eApalachicola Land & Development Co. v. McRae, 86 Fla. 393, 98 So. 505 (1923).
7Arizona v. California, 283 U.S. 423 (1931); The Montello, 87 U.S. (20 Wall.)
430 (1874); TheDaniel Ball, 77 U.S. (10 Wall.) 557 (1870); Bayzer v. McMillan
Mill Co., 105 AB-9W69 So. 923 (1895); Broward v. Mabry, 58 Fla. 398, 50 So.
826 (1909); Schulte v. Warren, 218 Ill. 108, 75 N.E. 783 (1905); Peope v. System
Properties, 189 Misc. 991, 76 N.YS.2d 758 (Sup. Ct. 1947).
-sUnited States v. Utah, 283 US. 64 (1931); Economy Light & Power Co. v.
United States, 256 US. 113 (1921); Blackman v. Maudlin, 164 Ala. 337, 51 So. 23
(1909); Asselin v. Blount, 65 R.I. 293, 14 A2d 696 (1940); Taylor Fishing Club
v. Hammett, 88 S.W.2d 127 (Tex. Civ. App. 1935); Ewell v. Lambert, 177 Va. 222,
13 S.E.2d 333 (1941).
9The Daniel Ball, supra note 7; The Genessee Chief v. Fitzhugh, 53 U.S. (12
How.) 443 (1851); Miami Beach Jockey Club v. Dern, 83 F.2d 715 (D.C. Cir. 1936);
Martin v. Busch, 93 Fla. 535, 112 So. 274 (1927); Clement v. Watson, 63 Fla. 109,
58 So. 25 (1912); Home Real Estate Loan & Ins. Co. v. Parmele, 214 N.C. 63, 197
S.E. 714 (1938).
loUnited States v. Appalachian Elec. Power Co., 311 U.S. 377 (1940); Hallock v.
Suitor, 37 Ore. 9, 60 Pac. 384 (1900).


body can be determined only by scrutinizing all the facts pertaining
In a caseinvolving the Suwannee River above White Springs,12
the Florida Supreme Court held that a navigable stream is a puBlic
highway open to all persons for the business of any floatage to which
it is adapted, and that even though a stream is so shallow as to be
suitable only for the floating f ings and rafts it nevertheless will
be regarded as a public stream and hence navigable in fact. The Court
further held it unessential to navigability that a stream be continuously
suited to floatage at all seasons nf the ear. This decision revised i
moss-covered concept that a stream is not navigable unless it contains
sufficient depth to float v ls.
Twenty years later the Supreme Court expanded its "limited use"
theory of navigability in a decision involving Lake Tackson i
County.3 The lower court held that a United States 2t 7
vested title to thn pyA _wnersh The Supreme
Court, however, held that Lake Jackson had the characteristics of
navigability requisite to state ownership, even though most of the
lake area at ordinary level could be navigated only by flat-bottomed
boatsa awing fm iee to six inches of water and at ordiary low
water lare portions of the bottom of the lake became eosedand
dried out to such an extent thaL.ans a3 and hr d
on the bed. The Court took into consideration the fact that the waters
werfO'tonsiderable area and useful for general navigation in small
boats. It stated that whether the lake had been used for commercial
purposes in the past was immaterial in view of the fact that, by its
nature, such uses could be made in the future. The fact that the lake
went dry at times was disregarded, since in its ordinary state it was v

Navigable waters in Florida include all lakes, rivers, bays, harbors,
or other waters capable of practical navigation for useful purposes.14
In order that a body of water be considered navigate and ,cte re
free for public use, it must, in its natural state, be capable of sustaining a
navigation without the necessity of any improvement or artidcial aid.
A stream is not necessarily subject to tree pumc use merely because it

"United States v. Appalachian Elec. Power Co., 311 US. 377 (1940); Bucki
v. Cone, 25 Fla. 1, 6 So. 160 (1889).
l2Bucki v. Cone, 25 Fla. 1, 6 So. 160 (1889.
sOWA .ary, 5 .Fl 398, 50 So. 82 (1909).
"Martin v. Busch, 93 Fla. 535, 112 So. 274 (1927).


has been rendered navigable by artificial means.15

Common Law Rights

Once a body of water has been found to be navigable in the legal
sense of the term, the Florid2 lhwyr- f__i n dprth of decisions re-
Ssolving common law rights incident to the ownership of contiguous
Slands.The Florida Supreme Court in two decisions, however, as
defined the rights of a riparian owner in relation to navigable waters.
In Fey Pass Pw etors' 6 Shippers' Ass'n v. White River In-
spectors' S Shippers' Ass'n" a riparian owner sought to enjoin the
defendant from depriving it of access to the river front adiacet to
its land and asked enforcement of an asserted exclusive right to use
ute waes nmd snow"i n6oe nugous 0 s t n6s T. Bioti pTaiftif-f'and de-
felua, t-l. ,,gain me logging DSiess. The lower court
dismissed the plaintiff's bill on demurrer. The Supreme Court, in
reversing the lower court, held that under the allegations of the com-
plaint the plaintiff was entitled to reliefagainst total exclusion from
access to the water, but~ xc e right to he use ot waters
and shore existed. On this point the Court, --triTough iet Justice
Whitield, stated:17

"As to mere navigation in commerce upon the public waters,
riparian owners as such have no rights superior to other in-
habitants of the State. A riparian owner may use the navigable
waters and the lands thereunder opposite his land for purposes
of navigation and of conducting commerce or business thereon,
but such right is only concurrent with that of other inhabitants
of the State and mustC exercised subject to the rights of
others.... The right of access to the waters from the riparian
lands may in general be exclusive in the owner of such lands
bu7t as l d othae" navigable waters an the landS there-
under including the shore, the rights of riparian owners and of
others of the public are concurrent, and subject to applicable
rules of law. A riparian owner has a right to enjoin in a proper
proceeding the unlawful use of the public waters or the land
thereunder including the shore which is a part of the bed, when

1sClement v. Watson, 63 Fa. 109, 58 So. 25 (1912).
1e57 Fla. 399, 48 So. 643 (19).
1Id. at 404, 48 So. at 645.


such unlawful use operates as a scialinjury to such riparian
owner in the use and enjoyment of his riparian lands. ... J4-
the absene of a valid statute providing otherwise, the injury
must relate to riparian lands or business-conuc'tedtiet
and not to business conducted on thwterby virtue only of
the gt o aviation."

The Court pointed out that if a person ebStrrts thP mere right of
naigaio and does no special injury to riparian property-,a com-
plainant must seek his remedy through the proper public officials
In Thiesen v. Gulf. F rA Ry_9 the Court pointed out that
r ripan ri sar perty rights and that the riparian owner cannot /
e deprived of trh.ii' u comp;r o ensation. In that case the de-
fendant railway had acquired title from the City of Pensacola to
certain submerged lands contiguous to the plaintiffs land. The city
had obtained the property from the state. After acquiring title the
railway filled in the submerged lands and built docks, wharves, and
other instrumentalities of commerce. The plaintiff, as a riparian
owner, sought damages predicated upon an infringement of his
rights of access and unobstructed view of the waters. Upon rehearing
theupreme Court, in reversing its own decision as well as that of
the lower court, recognized that the plaintiff had validl asserted
common law riparian rights indepen ent of sta ute':w

"Riparian rights we think are property, and being so the
right to take it for public use without compensation does not
exist. The fronting of a lot upon a navigable stream or bay
often constitutes its chief value and desirability whether for
residence or business purposes. The right of access to the
property over the water, the unobstructed view of the bay and
the enjoyment of the privileges of the waters incident to owner-
ship of the bordering land would not in many cases be ex-
changed for the price of an inland lot in the same vicinity. In
many cases doubtless the riparian rights incident to the owner-
shi of the la d were tie princpa it not sole inducement lea-
ing to its purchase by one and ie reason or te price cR
bt e .

1ild. at 406, 48 So. at 646.
1975 Fla. 28, 78 So. 491 (1918).
sold. at 78, 78 So. at 507.


Legislative Revision of the Common Law

a. Act of 1856

Undoubtedly impelled by the commercial potentialities of the
state's 1398-mile coastline,21 its 30.000 lakes and onds,22 and its
countless miles of uplands and tidelands bordering navigable waters,
the Florida Legislature in 1856 enacted chapter 791, entitled "An
Act to Benefit Commerce."2' This act vested fullTine to riparian
shallows in the riparian proprietors in order that the
the shoreline and erect warehouses and w arves. The owners could
prevent encroach N ari te legal action, including the
right to maintain the action of trespass.
It appears at first glance that the Legislature by this act vested
an absoulActikin the riparian owners. subsequent litigation, how-
ever, proved otherwise.24 In State v. Black tvert
the state sought to enjoinm riparian owner from taking phosphate
deposits from the bed of a navigable river. The defendant claimed
title to the phosphate under the Riparian Act of 1856. The.Court
hd that the statute did not give to the riparian owner the right
to take phospates m ees navi streams. It stated
~~~~that-the-soii6_d.L un. puli purpose connecting the
shore and banks of bays, harbors, and streams wi the chann
navige wSaters rana thatinsea td an butwe and un uali-
shore and channel, it
was, so long as the water was not converted int
a mere grant tor a particular and specially deined use.

b. Act of 1921

The Riparian Act of 1856 was limited to lands owned by the
United States or its citizens and affected only land between the channel
and the low-water mark on navigable streams, bays-anrcd h"ibTs"
In 2 the Lei ature extended tl tnf f This act, com-

21WoRLD ALMANAc 102 (1949).
22MoRRI, THE FLORIDA HANDBOOK 70 (3d ed. 1952).
*2r"aM. LEN. LAWS C. 17I, r. (1856).
24Panama Ice & Fish Co. v. Atlanta & St. A.B. Ry.. 71 Fla. 419, 71 So. 608 (1916);
State v. Black River Phosphate Co., 32 Fla. 82, 13 So. 640 (1893).
2532 Fla. 82, 13 So. 640 (1893).
26Fla. Laws 1921, c. 8537, now FLA. STAT. c. 271 (1953).



only known as the uder Bill, vested in the riparian owners on
navigable streams the title to submerged lands from the edge of
the channel to the high-water mark with a provision that the grant
should a lyto only those submerged lands "which have been, or
may be hereaterdLu. Ill .. l I j dv
iipmnved and shall in no wise affitr such mhmerged lands until
actual filled in rermanentl imroved."27
Specifically excluded from the grant of the 1921 act, inter alia,, We,
swamp and overflowed lands, lakes other than tidewater, and public
bathing beaches. or curative reasons the act was designed to take
effect retroactively to the date of passage of the 1856 act.
It has been held that a riparian owner who fills and bulkheads
submerged contiguous lands matures a provisional grant into an
absolute tite and that he cannot be divested of his title even by a
subsequent act of the Legislature.28 After an upland owner bulk-
heads and fills in land within the requirements of the 1921 act, "the
title to the filled in land becomes absolute and equal to that of the up-
The leading case of Holland v. Fort Pierce Financing 6d Construc-
tion Co.SO dealt with an attempt of the Legislature by special act"' to
vest m i Trustees of the Interna imFund itle to
submerged lands in the Indian Rvr L County, that previous
ha een part y anconverted to gain rpaan
owner. tie owner sought to enijoin the -trustees from asserting title
to the lands and from attempting to dispose of lands already filled.
The lower court enjoined the trustees and declared the special act un-
constitutional. The Supreme Court, in affirming, observed that ap-
pellee's bulkheading and filling operations had legal sanction under
the 1921 act, that the conversion stopped short of the edge of the
channel, and that full space was left for the requirements of com-
merce and navigation as provided by the act.
Though titlp t lnds filled pursuant to the Riparian Act of 121
becomes absolute and is not subject to sument, the
riparianowner bfailuretofilor improve ma, under some circum-

27FLA. STAT. 271.01 (1953).
2sHolland v. Ft. Pierce Financing & Constr. Co., 157 Fla. 649, 27 So2d 76 (1946).
29Commodores Point Terminal Co,: Hudnall, 283 Fed. 150 (D.C. Cir. 1922);
Holland v. Fort Pierce Financing & Constr. Co., supra note 28; Trumbull v. McIn-
tosh, 103 Fla. 708, 138 So. 34 (1931).
s0157 Fla. 649, 27 So.2d 76 (1946).
slFla. Spec. Acts 1941, c. 21546.


stances, be deprived of all title and interest in adjacent submerged
In a recent case, Duval Engneering & Contracting Co. v. Sales,3
f the Supreme Court held that the Trustees eT Ier rimrve-
ment fund could withdraw the proVisionaegtae an
La rrparian owner's ronta
performed the condition-of the grant a ta1 'an
improving them. The plaintiffs were fee simple owners of lands
abutting on the St. Johns River in the City of Jacksonville. The
Florida State Improvement Commission, acting for the use and
benefit of the State Road Department, acquired from the Trustees
of the Internal Improvement Fund a perpetual easement in sub-
merged lands adjacent to plaintiffs' upland property, preparatory to
the construction of a bridge. Plaintiffs sought to enjoin construction
of the bridge and to require defendants to institute condemnation
proceedings before making use of the submerged property. The trial
court held that the plaintiffs, as owners of the riparian rights appur-
tenant to their land, were entitled to compensation on the theory of
a vested interest under the 1921 act. The Supreme Court however,
held that submerged lanTh a.. .nhjPrt t' rPverinn t thp stats at any
time before the owner has complied with the improvement provision
of1the ant under me 192 t21 TI te CoU'raIsou Tedfia-taTtoigh
appellees' common law right of ingress and egress and the right to
fish and bathe in the waters of the river might have been slightly im-
paired by off-shore filling operations, these rights were not sufficiently
injured to warrant a ri ht to c sensation. Daanum aa aSZu TMuria
seems to have been regarded with favor in the ruling.
Hence he who hesitates to bulkeadid illtoward the channel
may osehis lgis active rmit at any time estate
the osore s to some Pubic use, leaving the upland owner
with only his ancient rights access ,

Slicabilit A discussion of the Riparian Rights Act
of 192 anaH clt rights attendant to ownership of riparian
uplands would not be complete without an inquiry into the applica-
bility of the act to certain islands, title to hii vested bX statute
in the Trustees of thP T".-.'1 lprniom-1nt Fund.*4 The question
s2Duval Engineering & Contracting Co. v. Sales, 77 So.d 431 (Fla. 1954); Bridge-
head Land Co. v. Hale, 145 Fla. 389, 199 So. 361 (1940).
3377 So.2d 431 (Fla. 1954). But cf. Webb v. Giddens, 82 So.2d 743 (1955).
4FLA. STAT. ; 253.06-.07, i 53.12 193).


presented is whether the owner of an island in a navigable river or
bay may claim the benefits conferred by the Butler Bill upon main-
land riparian owners who bulkhead and fill to the edge of the channel.
It is readily concluded that to allow an island owner to expand his
land area channelward through bottoms and waters "lying in front"
of the island presents a problem quite different from that raised by
permitting a mainland riparian owner to extend and fill in his water
front channelward. This difference is of particular importance when
considered in light of the topographical characteristics and contours
of the shallow bay and harbor areas of this state.
The question was directly presented to the Ilth Judicial Circuit in
1948 when the owner of Burlingame Island, a twenty-acre spoil-filled
island lying off the mouth of me Miami River near the downtown
business section of Miami, instituted an action against the municipality
and the T of the Internal Improvement Fund to quiet tl te
the island as it then existed ieilid bulkhead. The plaintiff also
requested a declaratory decree esttablisRtig -I ight to extend the
island boundaries toward the Miami River channel on the north
and the East Coast Waterway channel on the east, involving an an-
ticipated appropriation of fifty-five acres of bay bottom owned by
the trustees. It was asserted that a proper construction of the Butler
Bill accorded this right to the owners of islands acquired from the
state in the same manner that it was accorded to mainland riparian
owners. It was admitted that the island abutted lengthwise along a
navigable channel, but it was contended that the owner nevertheless
had a right under the statute to fill in other directions to the edges
of other channels.
The trustees and the City of Miami countered by questioning
the plaintiff's title to fifteen of the twenty acres then behind bulkhead
and vigorously denied his right, under the Butler Bill, to appropriate
other state-owned bottoms. The lower court granted a decree quieting
title to the twenty-acre area but declined to riue on1Te hly-hiacre
issue on the premise that the ruling would be premature. Ow defen-
dants' appeal to the Supreme Court itja first h9ldby a division
opinion rendered in January 1954 and as yet unpublished, that the
plaintiff blow had title to thewenty-acre bulkheaded area and that
he was entitled under te 'Buter Bill to a declaratory cecreauthoriz-
ing the bulkheading and filling in of his island to the two channels,
subject only to approval of the United States Government on points
of navigation and commerce.



The Trustees of the Internal Improvement Fund filed a petition
for rehearing and, because of the importance to the public of the
question involved and the effect of the ultimate decision upon the
general welfare, requested-Ay-eoionaa opportunity to reargue
de novo before the full Court. The motion was granted;ianoti .l -
lowing en thy reargument before the Court en banc, the ori al
opinion was wilrawny a four-to-three decision s unre ~,8
and the question answered as follows:

"While it may well be that the Legislature intended the Ri-
parian Rights Acts to extend to islands such as those with which
we are concerned in the City of Tampa case, supra, it is our
opinion that the grant made to owners of land to the low water
mark in the 1856 Act, and extended to owners of land to the
highwater mark by the so-called 'Butler Bill,' Chapter 8537,
Acts of 1921 (now appearing as Chapter 271, Laws of Florida
1953), should be strictly limited to islands of that type and
character. It should not he extended to 'islands, sand bars and
shallow banks,' the title to which was vested in the Trustees by
the Tidelands Acts, supra, or the reasons hereinafter stated.
"o authority need be cited for the proposition that a grant
in derogation of sovereignty must be strictly construed in favor
of the sovereign. And since the grant made by the Butler Bill,
as construed by this court, appears to have gone far beyond the
original intention of the 1856 Riparian Rights Act-which
was limited to filling in and bulkheading as an aid to commerce
and navigation only it is even more important that the grant
therein made should not be extended beyond its terms. Despite
the language of the Butler Bill that the grant therein made
was 'subject to any inalienable trust under which the state
holds all submerged lands and water privileges within its
boundaries,' this court knows, since everyone knows it, that the
Butler Bill has operated to divest the state of its sovereign lands
just as effectively as though a grant thereof without such limi-
tation had been made to a riparian owner. And it would in
our opinion, do violence Qh legislative intent t- ntrln
Sts Acts of 1856 and 1921 as applicable to the
'islands, sand bars aand shallow banks,' the title to whi a
vsted hy thP lg^TurPln the- TrusetPem fLQ1t;e puose of
sale .. ...
s5Trustees of Internal Improvement Fund v. Claughton, No. 24501, Jan. 7, 1955.


A petition for rehearing was filed to the second opinion during the
early part of 1955, but it has not yet been disposed of by the Court.36
Thus the effect of the "fill inac'on n wne TB Wy rlVaer
island is as yet undetermined, with the urges of common sense and
historical precedent undoubtedly supporting the interpretation
adopted in the second opinion.37

c. Special Laws

Practitioners and students of law should be mindful of the fact
that private and public rights in certain bodies of water and lands
riparian thereto in particular counties and sections of the state are

It is beond- -- ..- '- these locaor
restricted rules of law that exist throughout Florida. Suffice it to say
thaI these aanl-to-fnd acts should be searcn ou nd examined for
possible variances or departures from general law in any given riparian
In Dade, Palm Beach, and Monroe counties, for instance, the
Trustees of the Internal Improvement Fun Wave 1trfo
an osnraS, sUDrna if FEraM arac-
teristics, set forth in sections 253.06 and 253.07 of Flo a es
re present. It is to be noted, however, that a 1955 general act
epr repeal of these acts.38 Theega~ dhe
1955 act seems open to serious doubt vin w of its ap aren't violation
of the subject and title clause of the Florida ConstitutLiLn39 The title
anid hrst section ot the act eal exclusively win radLllation and valida-
tion of certain previous conveyances of the Trustees of the Internal
Improvement Fund, whereas the second section interjects an unnoticed
amendment wholly alien to the title. A third and concluding section
repeals the six separate sections of existing law applicable to the three
seThe Supreme Court has ordered reargument on all issues in this case on Jan.
10, 1956.
t Cador suggests that the possibility of a slight personal prejudice born of
professional advocacy should here be confessed, since the writer has been privileged
to serve with the Attorney General of Florida in representing the interests of the
state in the trial and appeal of this case.
SSFla. Laws 1955, c. 29763, 3.
s8FLA. CoNsT. art. III, 16.
40"An Act to provide that certain conveyances of lands by the trustees of the
internal improvement fund are ratified by the enactment of section 253.121, Florida


counties above named. The second and third sections are not even
remotely related to the subject of validation of previous conveyances.



"There is probably no custom more universal, more natural
or more ancient, on the sea-coasts, not only of the United States,
but of the world, than that of bathing in the salt waters of the
ocean and the enjoyment of the wholesome recreation incident

The sun-blessed beaches of Florida are among the finest in the
world; they are the natural playgrounds of the citizens of Florida and
of thousands of tourists who visit the state each year. Their perpetual
preservation for public use is essential to the public welfare an te
continued owt rs r Lra Necessarily, therefore,
the rights of riparian owners must be strictly regulated in the public
interest, and attempts to trespass below the hi h-ter mark by the
appropriation o any ooore or private ur-
pose shoul b vigilantly restrained.
Recognizing the need of preserving the beaches for public use,
the on e
ocean or gulf the right to bilkhead and fill or otherwise appropriate
lana below Ue igh-water mark. T
riparian shores of navigable streams. bavs. and harbors.
In the absence os legislative authorizatiud rny intrusion by the
owner of the upland upon the shore below the ordinary high-water
mark is unlawful and is treated a2 nlmr q P ire or a nuisance.2
Until 1949, however, there was no reported instance in Florida of lega
action on e part ote state or other pubic author to enjon or
suppress a private appropriation of the foreshore.
In February 1949 an action was tile in the th Judicial Circuit'4
by the Dade County Solicitor to abate and remove as a nuisance a
complete pur sture o shore o te famous "hotel row i
/ White v. Hughes, 139 Fla. 54, 58, 190 So. 446, 448 (1939).
/ 42hiTA n v. -UlfM k A_ Rv.. 75 Fla. 28, 78 So. 491 (1918); ANGEUL, TIDE-
WATERS c. 7 (2d ed. 1847).
SSSrtae c vet. T i Yv. Simberg, State ex rel. Marsh v. Simberg, 2 Fla. Supp.
178 (1952), 4 Fla. Supp. 85 (1953).

; *I


MiJ aL pch The City of Miami Beach, one of the defendants, had
enacted certain ordinances in 1948 providing for he establish t
of a "harbor ine" in the AtnlaP Mf arDor inme was subse-
quently set by the engineering office of the city, without regard for
the rights of the public to the use of the beach or foreshore for bathing,
recreation, fishing, boating, or navigation. This line was to. ed
only as a "bulkhead line" for the purpose of marking the eastern or
*U ted b the
city to extend their proprietary uses.
The line fixed by the city extended on the foreshore of Miami
Beach north and south between high and low water marks, and
certain hotel owners were granted permits to fill in the shore and
erect structures to this line. The structures erected were permanent
in nature and resulted in the excusion o ept-
siderable portions of the eacin front of the hotels.
ain sought, in addition to re ii 'ionuisance, a de-
claratory decree to determine whether the cty had authority
permits or structures extenng or e toreshore and, if not, to
en jomin e y rou .irt ug
Charles A. Carroll entered an order severing the suit fortrpr-
pose-s- itu ,, c ,, o ,ain--l'mtn' frih"ia.iidwii-weri and
the ..b .r s e t o}T i...o..am.--
The city took the position that t establishment of a harbor line
was for the purpose of allowing riparian owners to reclaim lands
that had been washed away by the 1926 hurricane and later storms.
On this point the court found that there had been a recession of the
beach line to some extent over the past twenty or thirty years and
that hurricane seas had played some part in the loss of upland soil.
The court held, however, that the instances in which the city had
I, "te- upa I. --orh f,., wi: not
predicated on any Tactuanngsf i l b -s
distinguished from erosion.
SThe court con u ed'that the ocean foreshore or beach is held
by the state in trust for the public for purposes of navigation, fishing,
and bathing, and that any attempt on the part of the- city to authorize
appropriation thereof by a riparian owner should be invalidated.
The city was permanently enjoined from granuing-permits or
other authorizations zoro cconstructiono'i seawalls; Dulieac-sT s,,
Sor UJIILtiijru.' u d -tt ,rorAre an hocwver wia -
muenici o owerhatits in-



action houjot apply to the constriion ncf* jetties
built at rig to the beach for the purpo- villg JlC

puB~g"T~erests, utt2 -.t .j szn h f[ajfl tcT toneretiofl
Scenes or wa s across the foreshore or out into the cean Jnm i
manner as to ob or prevent nltd use of the

The issue of structure remnval incident to nuisance abatement
is yet to be decided, but it -seemlefi rly safe to predict that defenses of

"hardship doctrine, will provide the riparian defendants with a
_ __ec _ _ q_ _ _ _ _ ___ ___"_
The idealist, however, ma~y w t a pli vi on
of public property rights should find sanctuary in any legal doctrine
wenexcet tor eseed an ro ss r ct e
law would have condemned and enjoined the trespass. In this regard,
a "ast grabber" is apparently given a reward that might be denied
the more deliberate taker. A more vigilant enforcement of public
laws and rights would doubtless have prevented these grave losses of
valuable public properties.
The High Seas
The decision of the United States Supreme Court in United States
v. California," the famnL. "Tirp1,2,A," ,-fj ld it l r
in United States v. Louisiana" and United States v. Texas," cofn-
mon y zukpwn as the Submerged Lands Tases, crea J tsL AA.
Friday's right to regulate thie usefi-the inshore waters of the Gulf
of Mexico and h TNI ndt te Z'antro= c te-aaTaceMfsu
merged lands. These doubts, however, now appear to have been
resolved in favor of the state with the passage by Congress of the
153 Submerged Lands Act.47 By this act Congress established a dis-
tance of three eog ca miles from the coast n j L te as
the general offshore limit of the state's rights to submerged lands. It
was'iprovde in-aaiuonTar-ty-tst f
entrance fl u o-td- Uiyin,--or-asm --pproved by Congress prior to the
passage of the act, extended beyond this distance the previously
established distance woua b iugree d .-oSettt Iz c a
443S2 U.S. 19 (1947).
45339 US. 699 (1950).
463S9 U.S. 707 (1950).
4767 STAT. 29 (1953), 43 U.S.C. 3101.



definite limit of three geographical miles from the coast line for states
bordering the Atlantic and Pacific oceans and three marine leagues,
or nine geographical miles, for states bordering the Gulf of Mexico.
Florida's seaward boundaries, therefore, are three geographical miles
on -the Atlantic Ocean and nine geographical miles on- Tegoluf of
Mex.~ico^*'J-M~"------------------- .-


Determination of Ownership

If a lake., pond, ToebE ah4 nact
it isin Florida thatthe bed is subject to private
ownership.48 In fact, the state itself has con a
mill11onst 0acrs ot lancd, much of which consists ot lales an ponds,
without reservation of title to the beds9.
By statute all eos an ootLMl U2i navigable waters are de-
dared to be the property of the state." This result was obtained by
virtue of sovereignty upon admission to statehood long before statu-
tory declaration.51 Snce beds under nonnaviable waters were igored
in the statutory declaration tate hi it is reasonable to
presume that the public police of the a tht tv
be subject to private own-shi,
In RPa"nd y. narlnaga the Florida Supreme Court, in invalidating
a city ordinance prohibiting bathing in a nonnaviaable lake in the
City of Orlando, observed quite pointedly: "... the lake is owned by
the persons whose lots border upon it .... Nor is there any doubt as
a iiatterFo aw Rat nonqiavigale es Isu
ject of private ownership." In a case decided only last year,53 the
Florida Supreme t--LUmn met the question moye directly by holding
that small lakes are susceptible of private ownership in Florida.51
4sMartin v. Busch, 93 Fla. 535, 112 So. 274 (1927); Clement v. Watson, 63
Fla. 109, 58 So. 25 (1912); Pounds v. Darling, 75 Fla. 125, 77 So. 666 (1918).
SeWhitfield, Political and Legal History of Florida, 1 FLA. STAT. ANN. cxii (1953).
5OFLA. STAT. 370.03 (1953).
s5Pollard v. Hagan, 44 U.S. (3 How.) 212 (1819); see State ex rel. Ellis v.
Gerbing, 56 Fla. 603, 47 So. 353, 355 (1908).
5275 Fla. 125, 135, 77 So. 666, 669 19181.
ssCrutchfield v. Sebring Realty Co., 69 So.2d 328 (Fla. 1954).
Mid. at 329: "It is settled by the decisions of this Court that small lakes are
susceptible of private ownership in Florida.... In the instant case the court below
found, and the evidence sustained the finding, that Basket Lake was a non-




ItIu L


It is to be presumed, of course, that the rule of private ownership
applied to a single owner of an over-all lake area will likewise be ap-
plicable when more than one person owns the lands riparian to a
nonnavigable lake or river.
Whether an owner of land riparian to nonnaviablewaters owns
the underlying bed to the center; ol r knet' rf question
will o r tie aqueion, upon whether the eeds in
his hain` o title are sufficient to convey the lands. When no other
intent is ascertainable from the deed, it is generally presumed at
he ielVSiiuw4L us ejia u-i USCu ergeuianu.8 i5
Such iwas' te holding 'o' ile ,o im e Fli- Bmdl~ v.
Ma 56 although direct review was obviatedb the find of the
u ue urm e la WGas igaieand that the bed under-
the waters erere onge to estate ty.


Assuming private ownership of the bed to the center of the sub-
merged area, ri gh t ri therach_ owner is_ ejictd to
the use of the water over his fee or is allowed to use the entire body
^f'',:J^ 'is Sncommon wr s pr-t"pro-
'~"Itiommon law rule makes no distinction between land and
water so far as absolute dominion and control are concerned;57 it
restricts each owner to the use of the water overlying his fee.58 The
civil law rule allows the owner of a portion of the bed to make a
reasoab euse of the surface nf ,htn 'r3 m -Iso one lli as he
navigable lake and that it, and all the land surrounding it was owned by the
plaintiff. It is plain olirf i i ruld not claim any ri ht
to lay their pipes alone t r antn lake shore an wa om
the r l ge-scale iriT h- .. i-. vt em;
ie wen settled that rianrights subsist only for riparian owners and that
those who do not own ircannot claim such rhts."
55 The Uniled States has held that local law determines the extent of a grant
by United States patent of property abutting on nonnavigable waters. Marshall
Dental Mfg, Co. v. Iowa, 226 U.S. 460 (1913); Hardin v. Shedd, 190 U.S. 508 (1903);
Mitchell v. Smale, 140 U.S. 406 (1891). This statement has since been limited to an
assumption that the United States has assented to local construction of the patent
provided it exhibits no conflicting intent. United States v. Oregon, 295 U.S. I
(1935); Oklahoma v. Texas, 258 U.S. 574 (1922).
5858 Fla. 398, 50 So. 826 (1909).
57Lamprey v. Danz, 86 Minn. 317, 90 N.W. 578 (1902).
asSmoulter v. Boyd, 209 Pa. 146, 58 Atl. 144 (1904).



not unduly interfere with the rights of other proprietors.59 Decisions
of the various states are as diverse as they are numerous.u Hae ucity
of Florida decisions on the subject led one writer to remar at in
searching for the Florida rule "the ironic spectre of 30,00 lakes an
no ca sepiuc w aM idee:n Me ca.Se, anatm whether fTorid-a
will ultimately follow the restrictive common law use rule or adopt
the more practicable rule of the civil law remains an open question.
It is submitted that, since Florida is a great tourist state ot wold-
fame for boating, fishing, and yachting, the civil law "reasonable use"
rule would better serve the intCret of t, sat natWhstandin the
fact that as a common law state the common law rule ordinarily
wudte as control ng. Under the latter rule, however,
boaters, skiers, fishermen, and swimmers would be permitted to enjoy
only that portion of the lake waters defined by an extension of their
riparial property lines, or those of their host for the occasion, to the
center of the lake.
It is logical to assume that a state that steadfastly preserves, as
a public trust, the title to the beds of navigable lakes for the use and
enjoyment of the public would look with much more favor upon
the use-in-common rule of the civil law when the nonnavigable use
question is presented for determination. Indeed, had there existed
in old England such things as an abundance of lakes, fast motorboats,
and skiers, the common law rule might have been vastly different.
It should be mentioned that in water consumption cases theJ~LidaX
Su reme Court, in applying the rules of eal right n asonable use
to the takin o waters rom akes by riparian owner have ur-
nished ill apply tHe same doctrines to recreation -
uses of the surface of such water boies.-2

Possibility of Divestment

Through the entire question of private ownership of lands under
waters gle tbe nonnavigable shines the warning light of
Br..rd. a Ufabr- a warning at a court decree may at any time

59Hardin v. Jordan, 140 US. 371, 390 (1891) (dictum).
eoE.g., Mix v. Tice, 164 Misc. 261, 298 N.Y. Supp. 441 (Sup. Ct. 1937); Akron
Canal & Hydraulic Co. v. Fontaine, 73 Ohio App. 93, 50 N.E.2d 897 (1943);
Smoulter v. Boyd, 209 Pa. 146, 58 Atl. 144 (1904); Taylor Fishing Club v. Hammett,
88 S.W.2d 127 (Tex. Civ. App. 1935); see Note, 5 U. FLA. L. REV. 166, 176 (1952).
eMNote. 5 U. FLA. L. REv. 166, 178 (1952).
ezTaylor v. lampa Zual Iu., ou SOW (fla. 1950); Tampa Waterworks Co. v.


i. I


liquidate assumed private ownership of any shallow lake or river
bottom by holding such waters to be navigable. This holding would
automatically vest title in the tato ydia ^ Ptr premise.
in this day of shallow draft skiffs and skis and state consciousness
oLthe vast -;rnera p-oteni' of its oor""z ea
for riparian owners of shallow lakes and rivers of whatever size, depth,
oi Use to enez d Testts su me
fitted with the thorn-studded crown of navigability and be thereby
t muted to state ownership sans compensation or thanks.
/ nation enumeratin the naviable trpams and 1a1sg f th
te wo probably settle the matter; this has been resorted to else-
were. Allcaon soot ex ressio- gn "M exclusio alterius to such
statute would tend to operate as a ti e ra ca on Tffi private
jown Mneunemeratu bodies ot water, a

-Thelga-turie 'in j rather -ohqs rend untested 1953 act6' ma
have relieved the situation by incorpotinw-i-bavi le
waters and Lvarian riXhtn inf0 a bWend of tax assessment matters.
Ftwing'Zconstitutional effectiveness of the act an-
of beyond the tax theme, it would seem that the door has been dosed
to future judicial labors on the question of navigability of lakes and
ponds in certain instances."5

Cyae, 378 56. S o. 780 {189).
.AL. HAm & NAVIGATION CODE $101-106 (1937).
FLA. STAT. 1192.61 (1953).
FLA. STAT. 192.61(2) (1953) provides: "avable waters in this state shall
L e held to extend to any permanent or tranient aers in the formof so-ca
/ 15,f ponds, swamps or overflowed IAns Ivne, r Ind upon areas which have
or oI*ttt M I =c Aitinj gMlc (I* 'h=r
waters." --


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