Title: Opinion File 71-23 thru 71-32
CITATION THUMBNAILS PAGE IMAGE ZOOMABLE
Full Citation
STANDARD VIEW MARC VIEW
Permanent Link: http://ufdc.ufl.edu/WL00003312/00001
 Material Information
Title: Opinion File 71-23 thru 71-32
Physical Description: Book
Language: English
 Subjects
Spatial Coverage: North America -- United States of America -- Florida
 Notes
Abstract: Buddy Blain's Collections - Opinion File 71-23 thru 71-32
General Note: Box 14, Folder 2 ( Opinion File 1961-1971 - 1961-1971 ), Item 100
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
 Record Information
Bibliographic ID: WL00003312
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

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Southwest Florida
Water Managenment Dii
P. 0. BOX 457 BROOKSVILLE, FLORIDA 3351;


DERRILL McATEER, Chairman, Brooksville
S. C. BEXLEY, JR., Vice Chairman, Land OtLale
EDWARD MEDARD, Secretary, Tampa


JOHN A. ANDERSON, Treasurer, St. Petersburg
HERMAN BEVILLE, Bushnell
PETER J. NEGRI, Ocala


August 9, 1971


I AUG


Mr. Myron Gibbons
Post Office Box 1363
Tampa, Florida 33601


strict


LAS VAN der VEER, Yankeetown
E A. WILLIAMS, Leesburg
SON WINES, Lakeland
rwachtmann, Executive Director



.0 1.
^.-.^ ^ ^ .,,,. ^ y o


Ervggf1'


Dear Mr. Gibbons:


As you may recall during the past legislative session, Senator Daniel had
introduce an act to repeal Chapter 10811, Laws of Florida, 1925, common
as the Futch Act. The District prepared the bill and properly advertised i
request of Senator Daniel, but after the disagreement between the Districi
ator Daniel the bill was never introduced. The Futch Act has been constr
many, such as the Trustees of the Internal Improvement Fund, as divesting
of all right, title, and interest to all lands covered by water lying in fron
tract of land on Lake Harris or Lake Griffin, and vesting the full title to I
in the riparian owners.


agreed to
ily known
at the
and Sen-
jed by
the State
Sof any
he same


While the District continues to require a permit for all works on Lake Har is or Lake
Griffin, in the past the Trustees have not required such a permit because of the
Futch Act. The attached memo was prepared for Mr. Twachtmann and he has asked
that a copy be forwarded to you and Mr. Blain for your review.

Very truly yours,




JAKE D. VARN

JDV:nlk

Enclosures


cc: Mr. Blain


Building a modern Ark The "Four River Basins, Florida" project


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1~'Z5


July 29, 1971




MEMORANDUM


TO:

FROM:

RE:


Dale Twachtmann, Executive Director

Jake D. Varn


Present effectiveness of the Futch Act (Chapter 10811, Laws bf Florida, 1925)


Since Senator Daniel failed to introduce the bill to repeal the Futch Act
limited amount of research in an effort to determine the present effective
special act. In order to fully understand the Futch Act it is necessary th
understand the interpretation of two very similar acts, the Riparian Act o
Butler Bill. The Riparian Act of 1856 was an attempt by the Florida Legi
title to submerged lands under navigable waters when said lands were fill
riparians. On its face, this act divested the state of all rights, title and
submerged lands lying in front of any tract of land and vested full title tc
the riparians. In spite of the act's language, in interpreting this act the
Court incorporated the Public Trust Doctrine and declared that the rights
1856 act were contingent upon the riparians' application of the submerg
designated purposes of the statute. In essence, the courts have interpret
title" that vests in the riparians as only a qualified title, contingent upo
improvements to their waterfront property for the benefit of commerce.
Black River Phosphate Company, 13 So. 640 (Fla. Sup. Ct., 1893): Pa
Fish Company v. Atlanta and St. A. B. Ry. Co., 71 So. 608 (Fla. Sup.

In 1921 the Butler Bill was passed. It was a modification of the Riparian
but it did not specifically repeal that act. The two acts are worded esse
same, although the 1921 act added a second paragraph to section one,
the act in line with the prior court decisions construing the 1856 act. T
paragraph provided that "the grant herein made shall apply to and effect
submerged lands which have been, or may be hereafter, actually bulkhe<
in or permanently improved continuing from high water mark in the direct
channel ., and shall in no way effect such submerged lands until act
or permanently improved". An additional change in the Butler Bill was
ment was "subject to any inalienable trust under which the state holds sa
(i.e. Public Trust Doctrine).

The Public Trust Doctrine was enunciated in Illinois Central R. R. v. III
387 (1892) and has served as the foundation for Florida law on the subje
the Public Trust Doctrine means that the state holds title in trust for the
state so that they "may enjoy the navigation of the waters, carry on cor
them, and have liberty of fishing therein, free from obstruction or interf
vate parties. The control of the state for the purposes of the trust can ne


I have done a
ness of that
st you also
F 1856 and the
slature to grant
ed by the
interest to all
these lands in
Florida Supreme
granted by the
d land to the
ad the "full
i their making
lee, State v.
lama Ice &
Ct., 1916).

Act of 1856,
itially the
which brought
ie second
only their
ided or filled
[ion of the
Jally filled in
hat the divest-
id lands"


nois, 146 U. S.
:t. Basically,
peoplee of the
merce over
erence of pri-
:ver be lost,


I









Memorandum
July 29, 1971
.Page Two


except as to such parcels as are used in promoting the interest of the public
can be disposed of without any substantial impairment of the public intere
and waters remaining". In analyzing any cases or acts dealing with public
must distinguish between grants of parcels for improvement of the public ii
which, when occupied, do not substantially impair the public interest in i
waters remaining, and a grant of the whole property in which the public
The first type of grant is permissible since it is not contrary to the Public
Clearly, the intent and effect of the Riparian Act of 1856 and the Butler
the public interest because they sought to promote commerce and navigate
the Futch Act was not intended to be a simple transfer to the riparians of I
submerged lands, but instead, it was a grant for a particular end and spec
designed use. The provisions of the act were such that the public trust, u
property was held, was not lost sight of, but was preserved and promoted.

Since the Riparian Act of 1856 applied only to the submerged lands of na\
bays of the sea and harbors and the Butler Bill specifically exempted fresh
it appears that the Futch Act was an attempt to grant the riparians of Lake
Griffin the same rights that have been granted to the riparians affected b)
1921 acts. Most significantly, the Futch Act is almost verbatim of the Bu
the appropriate wording has been changed to make the act applicable to I
and Griffin.

Interpreting the Futch Act in the same manner as the courts have interpret
Act of 1856 and the Butler Bill, it is my opinion that the Futch Act did nc
ally grant title to the lake bottom to the riparians on Lakes Harris and Gr
Act only made conditional grants to the riparians, and unless they have rr
ments on the submerged lands for the interest of commerce and navigation
title is retained by the State of Florida.

Additional arguments also can be made in support of my opinion. All or I
Butler Bill and the Riparian Act of 1856 remained in effect until 1957 wh4
362, Laws of Florida, 1957, was enacted. Although much of the strength
acts was reduced in 1951 with Chapter 26776, Laws of Florida, 1951, wh
Trustees of the Internal Improvement Fund title to all sovereignty tidal wc
provided that "all laws and parts of laws" in conflict with the act are rep
Butler Bill was specifically repealed by Chapter 57-362, Laws of Florida,
I have found no legislative act which has specifically repealed the Futch
I have found several enactments that impliedly repealed the act.

Article X, Section 11, Florida Constitution, provides, "The title to land;
ble waters, within the boundaries of the state, which have not been alier
held by the state, by virtue of its sovereignty in trust for all the people.
use of portions of such lands may be authorized by law, but only when no


11-2b


c therein, or
;t in the lands
: lands you
iterest, or
he lands and
i interested.
"rust Doctrine.
Will were in
Dn. Likewise,
he title to the
ifically
pon which the


igable streams,
water lakes,
!s Harris and
the 1856 and
tler Bill, except
akes Harris


ed the Riparian
it uncondition-
Iffin. The Futch
ade improve-
, the fee simple


>ortions of the
:n Chapter 57-
of the earlier
ich gave the
ter bottoms and
sealed, the
1957. To date
Act; however,


; under naviga-
iated, ., is
Sale or private
t contrary to


I








Memorandum
July 29, 1971
Page Three


the public interest". Article XII, Section 6 (a) provides, "All laws in ef ect upon the
adoption of this revision, to the extent not inconsistent with it, shall rem in in force
until they expire by their terms or are repealed". Article X, Section 11 ives consti-
tutional status to the Public Trust Doctrine which until now has been merely a rule of
common law status. Through Article X, Section 11 the state asserts its o nership to
the title to lands under navigable waters. This assertion by the state wou d prevent
any riparian from claiming ownership after January 7, 1969, (the effective date of the
constitution) under the Futch Act. The Futch Act and Article X, Section 11, present
a conflict as to the ownership of the bottom of Lakes Harris and Griffin and under
Article XIi, Section 6 (a) the constitutional provision must prevail.

Chapter 70-97, Laws of Florida, 1970, provides in section 2 an amendme t to Chapter
253, Florida Statutes. This section amended Chapter 253 by adding secti n 253. 151,
which deals with the control the Trustees of the Internal Improvement Fun can exer-
cise over the submerged lands under navigable meandered fresh water lak s. Since
Lakes Harris and Griffin are both navigable meandered lakes, the trustee should now
exercise control over these lake bottoms. Although this act does not spe ifically
repeal the Futch Act, it does conflict with the Futch Act and it is my opinion that it
impliedly repeals the Futch Act. Also in 1970 the Legislature further a ended Chapter
253, Florida Statutes, by adding subsection 253.1281 (1). The subsectio provides
that "All special acts granting exceptions to the provisions of this chapter relating to
issuance of dredge or fill permits shall provide that all action on applica ions for such
permits shall be subject to approval of the Board of Trustees of the Intern I improvement
Trust Fund, which shall have the power to reject such permits". This sub section clearly
requires all dredge and fill permits under special acts to be approved by he trustees.
Again, the Futch Act conflicts with this provision and it is my opinion th t this provi-
sion also impliedly repeals the Futch Act.

While it would be desirable to have the Legislature specifically repeal t e Futch Act,
I don't feel that much will be lost if we are unable to do such, since the Futch Act has
little if any effect today.



JDV:nlk 7 0





(" ? 7/1 *
Florida Laws 1921, Chapter 8537 4.'S-ci -of- 9
Florida Laws 1856, Chapter 791


CHAPTER 791, LAWS OF FLORIDA, 1856 ElrPtinph Aa o t8S&

An Act to benefit commerce whereas, it is for the benefit of commerce
that wharves be built and warehouses erected for facilitating the landing and
storage of goods; and whereas, the State being the proprietor of all submerged
lands and waier privileges, within its boundaries, which prevents the ri arian
owners from improving their water tols; therefore,
Section 1. Be it enacted by the Senate and House of Representatives
of the State of Florida in General Assen-bly convened, that the State of Florida
for the considerations above mentioned, divest themselves of all right, title and
interest to all lands covered by water, lying in front of any tract of land owned
by a citizen of the United States, or by ihe United States, for public purposes,
lying upon any navigable stream, or bay of the sea, or harbor, as far as the edge
of the channel, and hereby vest the full title to the same in and unto the ripar-
ian proprietors, giving them the full right and privilege to build wharves into
streams or waters of the bay or harbor as far as may be necessary to effect the
purposes described, and to fill up from the shore, bank or beach, as far as may
be desired, not obstructing the channel, but leaving full space for the require-
ments of commerce, and upon lands so filled in, to erect warehouses or other
buildings, and also the right to prevent encroachments of any other person, upon
all such submerged land in the direction of their lines continued to the channel ,
by bill in chancery, or at law, and to have and maintain action of trespass in
any court of competent jurisdiction in the State, for any interference with such
property, also confirming to the riparian proprietors all improvements w ich may
have heretofore been made upon submerged lands, for the purposes within men-
tioned
Section 2. Be it further enacted, that nothing in this act contained
shall be so construed as to release the title of the State of Florida, or any of its
grantees, to any of the swamp or overflowed lands within the limits of the same,
but the grant herein contained shall be limited to those persons and body corpo-
rate owning lands actually bounded by, and extending to low water mark on
such navigable streams, bays and harbors.


CHAPTER 8537 Laws of Florida 1921 JU8Tb tA.

An Act granting and confirming riparian rights and submerged and filled-
in lands
Be it enacted by the Legislature of the State of Florida;
Section 1. Whereas, it is for the benefit of the State of Florida that
waterfront property be improved and developed; and
Whereas, the State being the proprietor of all submerged lands and water
privileges within its boundaries, which prevents the riparian owners from improving
their water lots; therefore



S1,V.
7.I'






The State of F ..da, for the consideration above me,.,oned, si
any inalienable trust under which the State holds said lands, divest itself
right, title and interest to all lands covered by water lying in front of ar
of land owned by the United States or by any person, natural or artificial
( any municipality, county or governmental corporation under the lows of
lying upon any navigable stream or bay of the sea or harbor, as far as to
edge of the channel, and hereby vests the full title to ihe same, subject
trust in and to the riparian proprietors, giving them the full right and pri
to build wharves into streams or waters of the bay or harbor as far as may
necessary to affect the purposes described, and to fill up from the shore,
or beach, as far as may be desired, not obstructing the channel, but lea
Full space for the requirements of corrmmerce, and upon lands so filled in
warehouses, dwellings or other buildings and also the right to prevent er
ments of any other person upon all such submerged land in the direction
lines continued to the channel by bill in chancery or at law, and to hav
maintain action of trespass in any court of compete; jurisdiction in the
for any interference with such property, also confirming to the riparian I
etors all improvements which may have heretofore been made upon subm,
lands.
T. hi Provided, that the grant herein made shall apply to and affect
Vi those submerged lands which have been or may be hereafter, actually b6
V .te headed or filled in or permanently improved continuously from high water
ck A. in the direction of the channel as practical to equitably distribute the sL
lands, and shall in no way affect such submerged lands-until actually fil
or permanently improved.
Section 2. Nothing in this Act contained shall be so construe
release the title of the State of Florida or any of its grantees to any swa
overflowed lands within the limits of the same, but the grant herein coni
shall be limited to those persons and bodies corporate owning land actua
bounded by and extending to high water mark on such navigable streams
and harbors.
Section 6. Nothing in this Act contained shall be construed t
to lakes, except tide water lakes.


P I, a "a

/ t"S.cliont TJh'Arapte r5 12, a a S t'll

a^ijdr^s^ed.D-$"JS1fF e ---
cc^t o la e Dade acld m eat ou nties-the title
te"over~itFny ti~'wwa ter o"4-ms, ine-loTing all iras, sanderrsTshc
bnks and"s a li islanrds- ade b.J.e-ocessof-drpdging.--thrchajna-i
I ri ed St qf~s .6 vern me-3dlsinJr-s other d_ s anirs aind sla
bapks loaratd in thetl waters-o.f-he State..of-Florida is_-estedja-4,e
Ctbplu'nter' rovIa und
'L"~tu~z~spC-t~-~" rF arrd-Ldkrispen .d-aapmale tir


-2-


iRol
p O
t
Mf~


object to
Sof all
ly tract
I, or by
Florida,
the
to said
vilege
be
bank
/ing
to erect
croach-
)f their
: and
State
,ropri-
;rged

3nly
Ik-
r mark
merged
led in

d as to
rp or
gained
lly
Says

o apply


Ilow
uy the

Trustees
iTe Cs
1-t4is


I





AN AC
Subm
- -Boun
) / Harri
Be It IE

ilpnrlian Secti
riglnt Florida
veloped


CHAPTER 10811-(No. 789).

;T Granting and Confirming Riparian Rights d11
erged and Filled-in Lands to Owners of Lani-.
ded by and Extending to HIighwater Mark of I :,-
is and Lake Griffin in Lake County, Florida.

'nactcd by the Legislature of the State of PFIod::

on 1. Whereas, It is for the benefit of the Sta e o
that water front property be improved an ti,,
;'and





2G650) LAW. OF' Fi01i)lil)A.

Ch)Mp. losi4. ..oridta, in 1 1halfi of said SJ4 uthi L;1ik Comity Spicial I'. 1
1925 aBridge Dist rit 'romiii linte to tilm "'d in such a;no r.:,
as na y be (1emed cxpediient provi(Idc, that Ihe total rir.
cipal r'tount of outstlantiini ohli.ations under this -t sh.:.
at no tuial ;i"',ric-ate ai sum li'eater than Twe-lve' hou Dollars (C ',i'.i i")) andl any sum so issued under th:.
provisions 0 this Act -ia;l be a liability or nciumnbranc,
only against fhe wtaxa!l)e properly witlii the tierit-ic
designated as ;iuh Lake County Sp('cial .:i and Dri
District. /
Gieneranl nw. See. 4. Where t otherwise pro e the provisions hereof, l' provisionslf the Reviscd Geera!
Statute of Florid a, rela to the J(suance of bonds and the
sale of the same, in beCiitJ ofI)ccial ioad and Drit!
Districts shall apply, excezptl ritl., eilec ion shall be caie,
or held to authorize tih issiv''ie of I o'.ns, Interest Deari:;
Time Warrants or Seri/ nuhir tlh provisions of thi
Act, and no Trustee 'o/the sau.i)mhall be appointed.
axpeniu- Sec. 5. Any and a funds driv\'i from the sale of an
turesr. such Bonds, Intercs/'iaring Tiime 'terants or Script a
is authorized unde/t he provisions of thl Act, shall be use
exclusively for saying the outstandingVndcbtedness c
said South Li(County Special Road and Bidge Distrie
arising from/cic construction and maintenance f roads ari
bridges in cid District.
See. 6. All laws and parts of laws in conflict recwi h
are her y repealed.
Sc 7. This Act shall become effective immcdia V
upo its becoming a law.
approved June 2. 1925.
FUTC. AL T


W os; ti["





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'tate







to t1W i.'



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iri it:(~.





foro th".
tract Cd
ina In ("

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'In
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fauc. as.
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ofrr. its

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Grae de -














riplit ZT.
See.;
ntrucd t'


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LAWS OF FLORIDA. 2651

Whereas, The State being the proprietor of all submerged cni,. 10811.
-.d ( lands and water privihe'es within its boundaries, which 1925
prevents the riparian owners from improving their water -----
.al lots; therefore
n The State of Florida, for the consideration above men-
n. toned, subject to any inalienable trust under which tlie
ne State holds said lands, divests itself of all right, title and
,ce interest to all lands covered by water lying in front of any
*g tract of land owned by the United States or by any person,
natural or artificial, or by any municipality, County or
and governmental corporation under the laws of Florida, lying
eral upon either Lake Harris or Lake Griffin in Lake County,
the Florida, as far as to the edge of the channel, and hereby
:dge vests the full title to the same, subject to said trust in and
1ied to the riparian proprietors, giving them the full right and
rin, privilege to build wharves into the waters of the Lake as
this far as may be necessary to effect the purposes described,
and to fill up from the shore, bank or beach as far as may
anb be desired, not obstructing the channel, but leave full space
A as for the requirements of commerce, and upon lands so filled
used in to erect warehouses, dwellings or other buildings and
's of also the right to prevent encroachments of any other person
;rict, upon all such submerged land in the direction of their
and lines continued to the channel by bill in chancery or at law,
and to have and maintain action of tirespmss in any court
with of competent jurisdiction in tlhe State, f.ir any interference
with such property, also confirming to the riparian prop-
;itelv rietors all improvements which may have heretofore been
ately made upon such submerged lands.
See. 2. .Nothing in this Act contained shall be so con- umitntion.
strued as to release the title of the State of Florida or any
of its grantees to any swamp or overflowed lands within
the limits of the said County, but the grant herein con-
tained shall be limited to those persons and bodies corp-
orate owning land actually bounded by and extending to
is and high water mark on such lakes.
Lands See. 3. This Act shall take ciTect as of the day, to-wit: effective
f k, December 27th, 1856, when the Act entitled "An Act to (iato.
Benefit Commerce", was adopted by the Legislature of
Florida, and shall be continuously effective thence forward
lorida: and hereafter; and hereby vests in the riparian prop-
rietors and their grantees and successors, in right, the title,
;tate of right and interest given under the provisions of this Act.
nd do. See. 4. Nothing in this Act contained shall be con- uimtation
strued to prohibit any person from boating, bathing or







1~
4J


2652 LAWS OF FLOlRIA.

chap. 1os12. fishing in water covering the submerged lands creby
1925 granted until such submerged lands shall be filled in or
---- improved by the riparian owner as herein auihorizo .
Sec. 5. This Act shall take effect immediately u on its
becoming a law.
Approved May 27, 3925.


CIAPTEIR 10812-(No. 790).

AN ACT to Authorize and Empower Lake County, 1 lorida,
1o Purchase the Land for and to Establish and i lii.i:
S1"Public Park Ji; S:iil Com1in to be K]nown a .ia' ',lr.'.-i
Pa\ and Providing for the Issuance of Bonds f'- Said
Purse, and Prescribing the Details Thereof.

Be It Eivaled by the Lcgislature of the State f 1lorida:

Sumnmrall Section n edition of the services the soldiers
Park. of Lake Count, Florida, whio served in fe latq "World
War" and in hlNor of the distinguishelC service o' Major
General Charles I\ Suminerall, a citiz,# of Lake oun:it
the Board of Couni Cominisioners y said Lake ounty,
Florida, is hereby athllorized and empowered to urc'has~
certain lands at the j*lction of 1fI} Tavares, Leeb) irg ai!
Clenront public higi~\vvs nea/ the County B idge at
Tavares, in said Countvy.nid/o take title there in tlh
name of said La!ke County.,-rlich said land shall be used
for a public park to be k1n'>, as Summcrall Pairl. That
the area and exact location of s-,d land shall be det riineid:
by the Said Board of County commissioners lihe said
Board of County Coilnissioners further author zed andA
empowered to impro (and beautify lhe said land, urclihaM
and erect suitable j monument or monu tents, and s Achl otlier
memorials as the id Board may deem 'opcr, and to iaini
tain the said p rk in such manner as th said lBo rd may
determine.
Bonds. Sec. 2. o provide for the means of pi chas of sa:
land and or the improvements thereon and taiitcnan,,'
.of the me as a public park tie .said BoardE Cou:!:t
Comli sioners of Lake County, Florida, is here. autlir-

d nominations and for such amounts and to ntu i :
ch time and bear such rate of interest as the s id Co.


nmissioners
that the t(
Thousand
exceed six
shall matu
issue. ThI
determine
provide fo
pay the ii
annually a
crty in sail
See. 3.
its becornin
Approve,





AN ACT 1
Boards o
five Cenl
Such Bo:
terest T}
rrovidinl

lic It Enac

Section I
effect of t:
tees or like
a Count, ci
duty of the
the same ar
for a sum
five cents o
bonds, and
of the delix
Sec. 2. '
to in Scctic
such bonds,
paper of gm
offering su1
generall cir(
such bonds


* *ch, -


-142-




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