Title: Opinion File 76-97 thru 76-122
CITATION THUMBNAILS ZOOMABLE
Full Citation
STANDARD VIEW MARC VIEW
Permanent Link: http://ufdc.ufl.edu/WL00003464/00001
 Material Information
Title: Opinion File 76-97 thru 76-122
Physical Description: Book
Language: English
 Subjects
Spatial Coverage: North America -- United States of America -- Florida
 Notes
Abstract: Buddy Blain's Collections - Opinion File 76-97 thru 76-122
General Note: Box 14, Folder 5 ( Opinions 1976 - 1977 - 1976 - 1977 ), Item 17
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
 Record Information
Bibliographic ID: WL00003464
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








Frcdr. MGR ':

Re Rightl..to lakes which are wholly surrounded
by. -d ,landowner

Thie -tii' ta- distirn6tion that is crucial to, the determination
of igh t i the bed of a lake is one based. bnnavigability. If
it 0. a_ igadft lake, it is owned by the trustees of the Internal
Imp; VreMi nd' foe' tae benefit of the public. If it is non-
na, gblb -liitiw-' ab~tible to private, ownership... The case of
SLo~~I .. it.1' So.2d 5t9 (2d D.C.A. 1962) is the leading
re< altae on narfgable waters. (See case attached) In that
cai '-the.court cited the la4dmark case of Broward v, Mabry, 58
P Fl1 3~~i50,OSO. 0 Esf6- (1909) .iinL that case the. court held Lake
Ja Wdn.1th Le- County. to- be navigable. The opinion stated as
fol .oL.ta

"Wher -a stream or bcdycf. o water is permanent
iiA'char&der, and in itsa:ordinary natural state
is iWifact navigable for useful purposes, and
i -of- sufficient size and. so situated and-condi-
t tne-.that it may be.-used-for purposes common
t. t e public in..the Localit w=- it is located,
such water may be regardedas being of public
character, and the title+to- the land thereunder,
including the shore or space "between ordinary
high and low water marks, when not included in
the valid terms of a grant or conveyance to
private ownership, is held by the State in its
vaoyj g .ca ..tyin, tr. utt.fgor' the' lawful: uses
So a ll']'ple .of'th-le State. Capacity
fOr-n gt oi, nd s-us4 e-for that purpose,
dterenieain- navigable, character'of. waters
with reofwek.e to -.e owership and usie of the
land coverid by therwater.. ." (Emphasis added)

In tee. case of; McDowell v.. .raastees of Internal Improvement
Fu ui, 1 S,.2d' 715 '(Fla. 1956), .thei.-tact tht the lake was useful
-Fo fwas ubsedat least parttAlly to determine that it was
na Lgadib. In that- case, the. court.pointed out that the United
St eBhpreme Codrt has said that.thre lack of. commercial .traffic
is ot dit&erminati e of navigati.ity where private use by. boats
sh ys~ti: a thN streammay be used for similar types of commercial
na .gati,.


J091


"I I


--r- -YBl- Ii








Sep ember 10, 1976
MGC from MGR
Pac< 2


Therefore, according to Lopez v. Smith, supra, it seems
the the capacity for navigation and not the usage for naviga- -
tic is the test as to whether a lake may be navigable.

However, there are a number of cases which stand for the
pro position that small, non-navigable lakes are susceptible of
pri ate ownership. In Crutchfield v. F. A. Sebring Realty Co.,;
69 o.2d 328 (Fla. 1954), the Supreme Court held that although
the defendant's predecessors in title had been given permission
to. ake limited amounts of water from a lake wholly surrounded
by he plaintiff's property, the defendants could not operate -
lax e scale irrigation by draining the waters of the lake inside
of laintiff's land. In this case, the lake was a 64 acre one,
but the court held that it was non-navigable. Further, the
ev ence in the case, showed that the defendants had been pump-
in water from the lake for several years in order to irrigate
the r citrus groves. The Court decided the question by stating
the it is well settled in Florida that small lakes are suscep-
tib e of private ownership and that riparian rights subsist only
for riparian owners; therefore, the defendants were enjoined from
tak ng water from the lake on plaintiff's property. In a more
rec nt case, North Dade Water Co. v. Adken Land Co., 130 So.2d
894 (3d D.C.A. 1961), the court held that the defendant would have
to ischarge sewage effluent into a stream at additional expense
rat er than into two landlocked lakes which were wholly surrounded
by plaintiff's property. In this case, the injunction ran against
the City and the water company, and the court found that since the
pl ntiff was the owner of the land surrounding the lake, he was
alse the owner of-the lake bed. This case makes no determination
as o the navigability of the two lakes; rather it just speaks
of landlocked lakes". Nevertheless, it appears that the City '
con.d not do anything that would be obnoxious to the surrounding
pro erty owner's rights.

Perhaps the most interesting case, is Osceola County v. Triple
E : Pvelopment Company, 90 So.2d 600 (Fla. 1956), in which the
Coi ty was enjoined from further prosecuting a condemnation suit -
to acquire a right-of-way over privately owned land which surround
no navigable inland lakes. The basic reason for the condemnation
su. brought by the County was to acquire an access road through.'
th plaintiff's property to the lakes which were renowned for their r
fi ing. The court, after much discussion about the glories of.
fi ing, stated that this was not a sufficient public purpose to
ju$ ify condemnation of private property. I have enclosed this
cas both because of its holding which was directed against the


_ L4-








Sep ember 10, 1976
MGG from MGR
Pa ls 3

Co ty government, and because it seems to state that a lake .
wh. h is well-known for its fishing would be treated asa-noin- -
na gable body of water. In light of this case, am Inot -ure .. i- .
wh: the state of the law is with regard to lakes surrounded.
by property of a single owner. ; .

CON MLUSION: .- -. -
SIn light of the conflicting law in. te matter, I wouilday -
th i-f- a lake were relatively sma i and surrounded by-te p~rrp-
pe -y of only one land owner, it would probably be held that -
.th bed of the lake- belonged: t that particular- landowner'. -I .
be eeve that the last three cases cited stand for that, propoai--
ti and the quoted portion from. lopez- v.Smith, ara, points .
.u That for a body of water to be- navgable, it mus a of
-su icient size and situated in such a- way that it would .be
us ale by the public in the locality... PFor these re~a ; e --
:li re that it would be questionable whether a state agency could
re late such bodies of water. ''; -'-


vt .. .......... ..






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~ ~ ~ ~ ~ ~ ~ :+ ,+ .+ -.




.... ... +: .. + .. .. ,+._- +-. +,. + .. .. .:.. . :+.: . -' .,













LOPEZ V..SMITH
Cite as, Fla., 145 So.2d 500


d, Fla.
al suit
he de-
>rt for
The
ie de-
SThe
ncellor
rrclaim
eld on
ile his
SThe


it to
lcgal
i-d to
ttion,
and'
ii in
side


wouldd
Sthe


basis


)lves a,
endant
)ut the
:ith the
,njunc-
or will'


i Con-
provide
The
F.S.
ient by
*rior to
miles of
Chan-
is still


Sided
t of
is by
"'t


methods of enforcing a mechanic's lien
does not preclude the remedy in equity.
Nor does the remedy in equity violate
the constitutional guaranty of a trial
by jury. A mechanic's lien was un-
known to the common law and hence
was not triable by .a jury when the
constitutional guaranty was adopted.
**,

See also 36 Am.Jur., Mechanics' Liens,
278; Behrens v. Krusc, 1913, 121 Minn. 90,
140 N.W. 118.

On cross appeal the plaintiff assigns error
in the denial of his motion for production
of documents relating to settlements be-
tween the'defendant and certain contrac-
tors. The motion was based on the premise
that the requested figures are necessary in-
asmuch as the plaintiff's fee is contractually
Fixed at a percentage of total construction
costs. The defendant contends that the
plaintiff was not a party to the disputes and
therefore has no right to examine docu-
ments with reference to any compromise or
settlement. It is further contended on
behalf of the defendant that the documents
are privileged and not within the permis-
sable scope of examination.4 We do not
agree.

[6,.7] The question hinges upon wheth-
er there is good reason to believe that the
documents contain evidence pertinent and
material to the -c"t. The motion must not
be a mere fishing expedition as where the
movant has nothing more than a mere
suspicion. Jacobs v. Jacobs, Fla.1951, 50
So.2d 169. In the present case, however,
the plaintiff was required to supervise the
construction, certify bills for payment and
resolve differences between the owner and
the contractors. The defendant gave
numerous change orders and disputed cer-
tain costs with the contractors. The re-
sults are peculiarly within his knowlevlte.
The conclusion is that the documents were
proper subjects for discovery.


4. I.C.1'., Rules 1.21(b) and 1.28.


F '


Fla. 509


On the direct appeal, the order striking
defendant's motion for a jury trial on his
counterclaim is affirmed. On the cross ap-
peal, the order denying plaintiff's motion
for production of documents is reversed.
Affirmed in part and ,reversed in part.

KANNER, Acting C. J., and SMITH,
J., concur.







Alfonso Ray LOPEZ, Willard D. Miller, East
Coast Land Company, Ruskin-Manatee
Realty Corp., and F & M Sales Corpora-
tion, Appellants,
V.
Duval M. SMITH and May P. Smith, his
wife; Thomas Powell Whitaker and Rob-
ert Dallas Whltaker, as Executors of the
Last Will and Testament of Tom Whitaker,
Deceased; David M. Schwartz and Scenic
Isles, Inc., Appellees.
No. 1971.

District Court of Appeal of Florida.
Second District.
Sept. 21, 1002.
Rechearing Denied Oct. 22, 1902.


Action to establish ownership of cer-
tain island property lying in the Little Man-
atee River in IIillslorouigh County. The
Circuit Court for Ilillshorough County,
John Germany, J., dismissed the complaint
and the plaintiffs appealed. The District
Court of Appeal, Kanner, J., hc!d, inter alia,
that the'evidence sustained the chancellor's
findings that the branches of the river in-
volved were navigable and had been so at
time of statehood and o.riginl survey and
that high water marks amn not meander
lines thereof constituted boundaries of lots
in question.
Affirmed.


r~-lOil










145 SOUTHERN REPORTER, 2d SERIES


1. Navigable Waters 01(3)
Whether stream is navigable for useful
purpose is to be ascertained by applying
existing provisions and principles of law
to particular facts. '
2. Navigable Waters 01(7)
Evidence sustained chancellor's finding
that Little Manatee River in all its streams
and branches in section of land involved
was navigable body of water and that each
branch was navigable at time of statehood
or original survey.
S3. Navigable Waters C46(2)
In absence of exceptions or reserva-
tions, patents and other conveyances of land
shown to border 6n navigable stream or
body of water carry title to ordinary high
water mark and include unmeasured strip
which usually exists between water's edge
and meander line.

4. Boundaries C013
Meander line may constitute boundary
where so intended or where discrepancies
between meander line and ordinary high
water line leave excess of unsurveyed land
so created to clearly and palpably indicate
fraud or mistake.

5. Boundaries 013
Chancellor was not required to apply
meander line as minimum boundary in dero-
gation of ordyi;ary high water marks of
north and south branches of navigable river
in determining intention of government sur-
veyor.

6. Boundaries =13
Obvious discrepancies between plat and
field notes as to traverse lines run by gov-
ernment surveyor with reference to shore
lines of streams whose high water marks
were found by chancellor to constitute
boundaries would not, under circumstances,
vary boundaries as upheld by chancellor
where field notes were reasonably con-
sistent with plat.


7. Boundaries 03(9)
If official plat of government survey
with accompanying corollary documents
supplies data, including landmarks, by which
limits of fractional section may be ascer-
tained, discrepancy in number of acres con-
veyed will not usually permit delineated
boundaries to be altered, without clear
showing of fraud or palpable mistake.

8. Boundaries 0=3(9)
Considerations of 'disparity of quantity
of land did not compel chancellor to substi-
tute that element in determination of bound-
aries of lots in fractional section for other
elements accorded priority in determining
boundaries.

9. Public Lands 01471/2
No survey was necessary for convey-
ance by state of swamp and overflowed
lands which had been conveyed to it by
patent under Swamp and Overflowed Lands
Act of 1850 but it was sufficient only that
lands be identified for purpose of convey-
ance. Act Cong. Sept. 28, 1850, 9 Stat.
519.

10. Judgment 0=570(10)
Defendants in quiet title case were not
bound and stopped by prior order consti-
tuted within circuit judge's dismissal of one
of the parties from tax foreclosure suit.

It. Boundaries C37(1)
Tax assessment data showing certain
discrepancies in acreage and inconsistent as-
sessments could not have effect of establish-
ing title or requiring departure from rules
of boundary in quiet title suit.


Paul Game and Charles II. Ross, Tampa,
for appellants.
Hall, Hartwell & Douglass, Tallahassee,
and Corcoran & Ilenson, Tampa, for ap-
pellees.


iij
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610


510 Fla.











LOPEZ v. SMITH
Cite as, la., 145.8o.2d 500


survey
iments
which
ascer-
es con-
ineated
clear
:e.


quantity
substi-
bound-
r other
mining


7F?- 5 1
Fla. 511


; KANNER, Judge. -
Ownership of certain island property ly-
ing in the Little Manatee River in Hills-
borough County, Florida, comprises the sub-
Sject of the present dispute. Plaintiffs-ap-
Spellants, through the suit below, sought to
quiet title to the islands or parts of islands
Involved, asserting that they are contained
within the boundaries of three fractional
S government lots in Section 12, Township 32
South, Range 18 East. The appeal is from
a final decree of the chancellor dismissing
the complaint and his subsequent order de-
nying petition for rehearing.

Appellant Lopez claims to own a part of
Lot 6, appellant Miller a part of Lot 2, and
Sthe three corporate appellants, East Coast
SLand Company, Ruskin-Manatee Realty
Corporation, and F & M Sales Corporation,
a portion of Lot 5. Appellants, stating that
certain island property falls within their
boundaries, claim under Patent No. 4, issued
in the year 1856 by the United States Gov-
S ernment to the State of Florida under the
Swamp and Overflowed Lands Act of Con-
gress of September, 1850. By that patent,
all the government lots in Section 12 were
S conveyed, totalling an estimated 470.61
S acres. Three of these lots were acquired
Sby.appellants' predecessors in title around
1883 from the Trustees of the Internal Irm-
Sprovement Fund of Florida.

* Defendants-appellees, Duval M. Smith
and May Smith, his wife, the estate of Tom
.'hitaker, deceased, D)avid Schwartz, and
'Scenic Isles, Inc., claim ownership of the
Islands in the Little Manatee River by vir-
rue of their deraignment of title originat--
Sing in Patent No. 33 issued in 1884 by the
S United States Government to the State of
Florida under the Swamp and Overflowed
Lands Act, 9 Stat. 519. Included in the
hlnds conveyed by this patent were an cs-
imnated 300 acres of land described as "The
unsurveyed part of Township 32 South,.
Range 18 East." In June, 1896, the Trus-
Ices of the Internal Improveinent Fund is-
sued to one C. C. Dischong Deed No. 15,199
conveying "The unsurveyed part of Town-


*i


ship 32 South, Range 18 East, except un-
surveyed part of Section 10, and the un-
surveyed Island #1 in E of E0 of See-
tion 20." Dischong is a predecessor in title
of appellees., ... -- -i

The factual source material of this dis- '"
pute goes back for more than a century,
or to the year 1846, when a government sur-
vey of Township 32 South, Range 18 East
was completed, with fiek' not= ag pltt-' .t-- ;
of survey being iled and api i
government. Thre copies i this ht f. i :-..
.survey arc- amng thae._sibia -led t'T1e.-. -*-
cause. ,These are .a& they appear. respec..- : : -
tively, in the public records of Hillsborogh -
County, in the records of.the Department
of the Interior, and in the records of the
Commissioner of Agriculture of the State -:
of Florida. .

Thete ixh its snowt Setion 12 of the -
township to be traversed by the Little Mana-
tee River, which enters th:eisection ohn the '
east as one stream, branches off into thrze
streams, then leaves the western boundary :
in two streams flowing feom east to west-". ""
Islands are indicated by.the plats of survey ,
to lie within and between the branches of
the river. Thie lands lying north of- the
waters o the.Little Minatec River in Sec-
tioal2 are divided into f6urloti nusibcrcd :j
from east.to west jjLots 1, 2, 3, and 4,
-.wVfi c th liiand lyig.aqsuth of the river are
divided into four lota numbered from west
to east as lots 5, 7, and 8. WAc'.es -,
original survey was nadc, the boundaries of. ,
the.section were scureyed and two traverse
lies were run through it cast and west
Irattctions to the gov.eruaent deputy sur- ..
eyoirs required: -" .

: "."Y ou will accurately mean,!er- by
course and distance, altfhitanble rike : :'
_which may bound or pass through your .- .-
district; all navigab~ l layoas lin wag
. from one or into such rivers; all lak :
or deep pouis of suffiicint magnitudee:
a:nd all islands suitable for cultivation.* : -
a .
The -islainls i tlie Littic Manatee'"RTer '
were not ni'aeidered or surveyed.


convey-
rflowell
3 it by
i Lands
ily that

9 aat.


,ere not
1 consti-
I of one
suit.


certain
stent as-
stablish-
,m rules


fora)mpa



for aji.


t. ".












512 Fla.


145 SOUTHERN REPqRTER, 2d SERIES


The cause was originally before this court
on appeal from dismissal of the complaint
by one of the circuit judges of Hillsbor-
ough County, now deceased, and was re-
versed and remanded, as reported in Lopet
v. Smith, Fla.App.1959, 109 So.2d 176, 178.
In our opinion remanding the cause, this
court stated:
"The problem which emerges from
the allegations of the complaint is loca-
-.tion of the boundary lines for govcrn-
Sment lots two, five, and six in section
.-12. --Within this problem are two basic
controlling questions, first, whether
'the meander lines, or whether the
-ordinary, high water marks delineate
the boundaries, and, second, whether all
of the branches of the Little-Manatee
River are navigable.- If the main banks
or the meander lines of the Little Man-
atee River, as described above, com-
prise the boundaries of appellants' lots
two, five, and six, then the islands or
parts of .islands in question would fall
within these lots. If, instead, as the
trial court held, the ordinary high water
S mark of that body of water is the
boundary line and the north and south
branches are navigable, then the islands
Sor parts of islands would not be en-
compassed within the boundaries of
appellants' lots."

-. The problem as framed by the chancel-
lor who heard ,tJe cause on remand read:
"(1) Does the south.traverse line of
Section 12 constitute the northern

1. "The evidence conclusively shows a depth
of inter at inan low tide sufficient for use
Sby oats .of considerable si e and drawing
from one and one-half to two feet of winter
and further finds that all of said strieamis
are used for coninercial purposes and all
of said branlies are navigable in law and
in fact."
2. that the south boundary of
government Lot 2 in Section 12, Town-
ship 3ja Stollth. Ita:age 18 East, is the
highwater mark on the north hank of tlhe
north branch of the Little lManltee River


7, -103 3
^ --- .


1!-

boundary of Lots 5, 6, 7, and 8, and
the north traverse line of said section
constitute the southern boundary line
of Lots 1, 2,3and 4, or
"(2) Does the highwater mark of
Sthe waters of the main branch of the
Little Manatee River constitute the
-northcrn boundary of Lots 5, 6, 7, and
8, and the southern boundary of Lots
1, 2,3, and 4 or
<3) la the north branch of the Lit-
Stie Manatce -River navigable and the
ordinaryhighwater mark on the north
bank thereof the south boundary, of
Lots 1, 2, 3 and 4, and
"(4) Is the south branch of the Little
Manatee Rivet navigable and the ordi-
nary' highatcr mark on the south
bank thereof the north boundary of
. Lots 5, 6, 7 and 8?"
In the opinion portion of his decree, the
chancellor made a comprehensive analysis
of the issues, with specific findings of fact
and of law. Holding that the Little Man-
atec River and its pertinent branches are
navigable in fact and in law,1 the chancel-
lor then concluded by finding "* *
that the patent from the United States to
the State of Florida and deeds from the
State of Florida to the defendants' prede-
cessors in title conveyed good title to all
lands lying between the meandered banks
of the Little Manatee River in Section 12."
He further made findings to the effect
that the boundaries of the government lots
involved do not extend to include the con-
tested island properties.

and that plaintiff Miller has no title to the
Islands describedl in Pararapll 2 of the
Complaint; that the highwater mark on
the south bnnk of the 'oAulh branch of the
Little Manatee River is the north bound-
nry of government Lota 5 and G in said
Rsetion. anld that the plaintiffs 'ast Coast
],Lmnl Company, a iloridn corporation,
I tslkiii-MNianatl Iteity Corp.. a Florida
corporation and F & Ah Sales Corporation,
n Michigan corporation. have no title to
the lands deerrilied in PIurngraph 3 of tihe
Complaint. that lie north of the highwa-
ter mark on the south aide of the south



I


-I


I i 11


- ~n --, k1l-~rln~~~4Q











LOPEZ y. SMITH
Cite as. Fin., 145 So.2d 509


and
action
line

k of
f the
the
,and
Lots

e Lit-
d the
north
ry of

Little
ordi-
south
ry of

ree, the
analysis
of fact
lc Man-
imre

* A
states to
rom the
Sprede-
e to all
d banks
lion 12."
c effect
:ent lots
:he con-


to the
if the
rk (on
of the
'nmnd-
, anhid

tionlll
'ofinn,

,1I toI
.of the
rliwnt
south

r-"


7 -104

Fla. 513


ill


H1


Arguments of appellants may be grouped
generally under two main classifications, one
of which relates to boundaries and the oth-
er of which deals with the question of title.
Considering first the matter of boundaries,
S we find it essential to examine the law ap-
plicable to navigability as this element af-
fects boundaries.

[1] Through the landmark case of Brow-
ard v. Mabry, 1909, 58 Fla. 393, 50 So. 826,
it is pointed out that whether a stream is
navigable for useful public purposes is to
be ascertained by applying existing piovi-
sions and principles of law to the particu-
lar facts of individual cases. The court in
that case,held Lake,Jackson in Leon County
navigable, although at times portions of the
bed were so dry that crops might be plant-
ed and grown and although the principal
uses to which the waters of the lake were
put were for the grazing of cattle, for fish-
ing, and for fowling. The opinion stated:

"Where a stream or body of water
is permanent in character, and in its or-
dinary natural state is in fact naviga-
ble for useful purposes, and is of suf-
ficient size and so situated and condi-
tioned that it may be used for purposes
common to the public in the locality
where it is located, such water may be
regarded as being of a public character,
and the title to the land thereunder, in-
cluding the shore or space between or-
dinary high ,aid low water marks,
When not included in the valid terms of
a grant or conveyance to private own-
ership, is held by the state i iits sov-
ereign capacity in trust for the lawful
uses of all the people of the state .in
S the water and the land, subject to law-
ful governmental regulation of such
uses. Capacity for navigation, not
usage for that purpose, determines the

branch of the Little Manantee River: and
pliniiff fT Lop? hlil' no title to the lilnds
described in I':irnaralph 1 of the Comn-
plaint, and taint mone of tIhe linds clainled
by plaintitiffs IAol. and Miller and de-
scrihedi in P': rlgra ils 1 aind 2 are encom-
passed within the IbouIndlries of govern-
145 So.2d-33


navigable character of waters with ref-
crence to the ownership and uses of the
Island covered by the water. Grants and
conveyances of land bordering on navi-
gable waters carry title in general to
ordinary high-water mark when a valid
contrary intent does not appear.
--- -- ---~'
These principles were affirmed in the
case of Clement v. Watson, 1912, 63 Fla.
109, 58 So. 25. Whether or not waters may
be considered as navigable was stated there:
to depend upon the size, depth, and other
conditions that would make waters in fact
capable of navigation for useful public
puirposes Navigability was amplified in
the case of Martin v. Buscli, 1927, 93 Fla.
535, 112 So. 274, wherein it was said:
"The navigable waters include Jakes,
rivers, bays, or harbors, and all waters
capahie of practical navigation for use-
ful purposes, whether affected-by tides
or not, and whether the water is navi-
gable or not in all its parts towards the
outside lines or elsewhere, or whether
the waters are navigable during the
entire year or not."
Thus capacity for navigation, not usage
for that purpose, determines the navig ale
character of waters with reference to the
ownership asd uses of the land covei'ed by
the water... .
In Baker v. State, Fla.1956, 87 So .24-
497, The Florida Supreme Court observed:
"In State of Oklahoma v. State of-
Texas, 258 U.S. 574, 42 S.Ct. 406, 411,.
66 L.Ed. 771, 776, the Supreme Court
held the settled rile ii this cotpntry to
be 'that navigability in fact -is the test .. .*
of navigability in law, and that wheth- .
er a river is navigable in fact is-to be
determined by inquiring. whether it is -
used, or is susccltilie of bcla used, -.

Sciit lots 2 uml 0, hand ta *itif. S~:
Inis dlrt haerilwil In P'rneraibp :i 4 hih li
north of the wmlonrry -lt th'wflb ik'tn -'on
thief south ban of the eaoth riinad *T itie.
Little Blinnt*i*'tilr'SrI vnelmfiamie
within the Ibundarica of government Lot
5."


1 .















145 SOUTHERN REPORTER, 2d SERIES


i n its natural aind ordinac y condition
Sas a highway for commerce, over which
trade and travel are or may be con-
S -'ducted in the customary modes of trade
a- :nd travelon water. "

-.- The court continued that it had approved a
similar test. of navigability in. Broward v.
Mabry and Clement v. Watson.

In the case of McDowell v. Trustees of
Internal Improvement Fund, Fla.1956, 90
S-o.2d 715; capacity for navigation was at
least partially determined on the basis that
the- lake was 'isel for fishing. It is not-
'."ai hathe t 'United States Supreme Court
has commented that a lack of commercial
traffic is not afbar to a conclusion of nav-
igability where personal or private use by
boats demonstrates the availability of the
streiam for the simpler types of commercial
navigation; See United States v. Appala-
chian Electric Power Co., 1940, 311 U.S.
377, 61 S.Ct. 291, 85 L.Ed. 243.

The use of evidence concerning actual
navigation of a body of water subsequent to
the time of admission to the Union of the
state in which such water is located has
-been deemed admissible for the purpose of
determining the susceptibility of the water
for use as a highway of commerce at the
time the state was admitted to the Union.
See-United States v. Utah, 1930, 283 U.S.
64, 51 S.Ct: 438, 75 L.Ed. 844. See also
56 Am.Jur, Waters, section 193, page 657;
65 C.J.S. Navigable Waters 9, page 60.
The case of State, by Burnquist v. Bollen-
bach, 1954, 241 Minn. 103, 63 N.W.2d 278,
indicated that the state court could consider
evidence of present use and capacity for
purpose of navigation.as bearing on wheth-
er a body of water was navigable within
the Federal test in 1858 when the State of
Minnesota entered the Union.

Appellants argue that there was.no evi-
dence to show navigability of the north and
south branches of the Little Manatee Riv-
er at the time of statehood or of the orig-
inal survey. They believe that the south
branch was formerly but a salt marsh or


slough or bayou lying south of a claimed
peninsula, that a hurricane in 1818 caused
the breaking through of two passes between
parts of the peninsula, that the major por-
tion of the area south of the peninsula,
between it and the high bank of the river
valley, constitutes what is now known as
the south branch, and that the rise in level
of the Gulf of Mexico has caused the salt
marsh to become deeper. As to the geo-
logical history relating to the waters and
lands in the section at that time, appellants
state that the testimony of Dr. Robert O.
Vernon, geologist for the State of Florida,
witness for appellees, that peninsulas ap-
pearing upriver are "a geological repeti-
tion of what is occurring" today, supports
their belief that Goat and Cactus Islands
were once parts of a peninsula attached to
the mainland. Appellces, on the other hand,
point to testimony of Dr. Vernon that the
waters and lands of Section 12 have chang-
ed but little since the time of the original
survey.

It may be noted that Dr. Vernon's tes-
timony indicates that the lands, islands, and
waters in Section 12 have changed but little
for a great many years and that since the
original survey the only significant change
has been a gradual adjustment of the riv-
er to the slowly rising sea' level. Such
criteria as the difference in the soil lay-
ers on the islands compared with the main-
land, difference in elevations of the islands
and the curving lines of the channels sep-
arating them were analyzed. His belief
was that the islands were formed, shaped,
and born of the gradual shifting of the
river channel adjusting to the rising sea
level and not through severance from the
mainland by the force, of the hurricane.
Such a severance, he stated, would have
cut through in straight lines and not in the
gently curving contours of the channels
flowing between the islands. During di-
rect examination he stated:
"There has been very little change
over the past few hundred years in
the river valley,.and what change there


514 Fla.


74-105


I.






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mr
used
veen
por-
sula,
river
n as
level
Salt
gco-
and
plants"
ft O.
rida,
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lands
Ad to
stand,
t the
ang-
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tes-

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p the
iange
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LOPEZ v. SMITH
Cite as. Fla., 145 So.2d 50


has been has been the result of very
slow accretion and erosion of the valley
wall."
The following exchange took place during
cross-examination by counsel for appel-
lants:
"Q. All right. Did I understand
you to testify that in 1843--well, let's
say 1845, which is the time the State
became a state-that this area was
very much as it is today?
"A. Yes, sir."

[2] Without delineating the evidence
bearing upon the question, this court is in
accord with the finding of the chancellor
that the Little Manatee River in all its.
streams and branches in. Section 12 is a
navigable body of water and that each of
these branches,. the north branch, the cen-,
tral or main branch, and the south branch,
is navigable in fact and in law. The ex-
pert testimony of the state geologist here-
tofore quoted indicates that the waters of
the river then were essentially as they are
today. Although appellants as plaintiffs
averred non-navigability in their complaint,
the Little Manatee River was meandered as
navigable, and the waters are navigable
today. We conclude that this status of nav-
igability was applicable at the time of state-
hood, or of the original survey.
In considering boundaries of appellants'
government lots, we must approach this
subject from the i,'rspcctive of our holding
that the Little Manatee River in all its
branches and streams is and was a naviga-
ble body of water. Before dealing with this
matter specifically, it is well to view cer-
tain significant principles of law relating to
boundaries.

[3] A meander line generally is not a
boundary, but it only marks the general con-
tour of a shore; its purpose is to defihe the
sinuosities of the stream and to aid in as-
certaining the quantity of land to be dis-
posed of. In the absence of exceptions or
reservations, patents and other conveyances


of lands shown to border upon a naviga-
ble stream or body of water carry title to
the ordinary high water mark and include
the unmeasured strip which usually exists
between the water's edge and the meander
line. Patton on Titles, Second Edition,
Vol. 1, section 117, page 297; Clark on
Surveying and Boundaries, Second Edi-
tion, section 201, page 209; 73 C.J.S. Pub-
lic Lands 32b., page 682; 11 C.J.S.
Boundaries 30b., page 573; 26 Fla.Jur.,
Public Lands, section 43, page 54; Martin
v. Busch, supra; Lord v. Curry, 1916, 71
Fla. 68, 71 So. 21; Brickell v. Trammcll,
1919, 77 Fla. 544, 82 So. 221; Apalachicola
Land and Development Co. v. McRae, 1923,
86 Fla. 393, 98 So. 505; Tilden v. Smith,
1927, 94 Fla. 502, 113 So. 708; McDowell
v. Trustees of Internal Improvement Fund,
Fla.1956, 90 So2d.715; Lopez v. Smith,
supra. Thus, the Florida jurisdiction has
adhered to the general rule that grants and
conveyances of lands bounded by navigable
waters carry title to the ordinary high
water mark of those waters, making such
high water mark the boundary and not the
meander line.

[4] However, a meander line may con-
stitute a boundary where so intended or
where the discrepancies between the mean-
der line and the ordinary high water line
leave aln excess of uinsurvecycd land so
great as to clearly and palpably indicate
fraud or mistake. 11 C.J.S. Boundaries,
30b., page 574; 73 C.J.S. Public Lands 32
b., page 682; 8 Am.Jur., Boundaries, sec-
tion 31, page 767; Thompson on Real Prop-
erty, volume 6,1962 Replacement, section
3075, page 714; Clark on Surveying and
Boundaries, Second Edition, section 210,
page 215, section 308, page 366; and see
Martin v. Busch, supra; Lo l v.-Curry, ..
supra; Lopez v. Smith, supra. .

One argument of appellants as to bound-
aries is that ".and lying. within the sur-
veyed traverse line of a government lot is -
a part of such lot een if i is sseparted""
by a minor stream frommmrt of much.ot on
the mainland." Stating t ta-the. surveyed











145 SOUTHERN REPORTER, 2d SERIES


traverse lines run according to the field
notes do not follow the sore lines of the
north anl south branches, which they refer
to as minor streams, they cite, among other
cases, United States v. Lane, 1923, 260 U.S.
662, 43 S.Ct. 236, 67 L.Ed. 448, for the
proposition that lands lying within the tra-
verse lines should not be excluded from the
property of the grantees who purchased
the fractional government lots. In the
Lane case certain claimed excessive acre-
age was vested by the court in the de-
fendant lot owners. That case, involving
swamp and overflowed lands, differs factu-
ally from the one at bar in that the dis-
pute was between the government claiming
under a resurvey and the patentees claim-
ing under the original government survey.
The government challenged the accuracy of
the meander line of Ferry Lake, Louisi-
ana, as being so grossly erroneous as to
leave betweci it and the shore of the lake
upon which the government lots bordered
an excess of uniisrveyed land. The court,
in ,rejecting the argiiment that under the
factual situation the meander line was the
proper limit of the lots, commented that
nothing in the circumstances suggested the
conclusion that any fraud was committed or
palpable mistake made by the original sur-
veyor. The lot owners there were resist-
ing an attempt to change the boundary -as
it was shown by the natural monument ,on
the plat, or the shore of Lake Ferry. The.
United States Suprenme Court sustainie the.
efic.icy ,f ''-at natural moniiiiient. Acre-
age. while considered, was held not a con-
tro'ling clement.


Il the instant case, the chancellor through .
his decree also declared the superiority of
the natural monumlents' represented Ivy the
north and south channels of the Little M an-
alce River as against the traverse liiCes
iun pursui.nt to the survey of 18-16.

The Lane case cited and quoted frmn'an
earlier United States Supreme Court de-
cision, Mitchicll v. Smale, 1891, 140 U.S.
406, 11 S.Ct. 819, 35 L.Ed. 4412 wherein
the court in discussing the nature imd cf-


fect of a meander line run along a lake or
shore, stated:
"The official plat made from such
survey does not show the meander line,'
but shows the general form of the lake
deduced therefrom, arid the surround-
iug.fractional lots adjoining and bor-
dcring on the same. The patents when
issued refer to this plat for identifica-
tion of the lots conveyed, and are
equivalent to and have the legal effect
of a declaration that they ciend to and
are bouundd -by the lake or-streanm
Such lake or stream itself, as a natural
object or monument, is virtually and
truly one of the calls of the descrip-
tion or boundary of the premises con-
veyed; and all the legal consequences
of such a boundary, in the matter of
riparian rights and title to land under
water, regularly follow."

An illustration of these principles as ap-
plied in the Florida jurisdiction may be
found in the case of South Florida Farms
Co. v. Goodno, 1922, 84 Fla. 53, 94 So.
672, which cited the .litchell and Lane
cases, among others. The court comment-
ed:

"A section of land, as a legal sub-
divisio pndert the. congressional rules
of sMvey. is a iuile square, and usually
'ciantins 640t acres. When a section is
nif "7t ,hole' or reIlahr in its contents--


that is. where it dres not contain ap-
- proximatcly 640 acres-it may properly
.-be called a 'fractional section.' Where,
b because of the presence of a permanent
body of water, which is approximate-
ly ineandcred in making the survey,
there is a deficiency in the area of a
sectifi*.it-is referred to na a 'fractional
section.' In such cases the water lines,
and not the meander lines, may control
as Louindarics, even though there may
be sonic laId between the meander line
and the water line. See Railroad Co.
v. Sclhurmicir, 7 Wall. 272, 19 LEd.
74; Producers' Oil Co. v. Ilanzen, 238
U.S. 325,35 Sup.Ct. 75,, 59 L.Ed. 1330;


I I.
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516 Fla.










Loepa v. SPITH
Cit e ai.Fla. I.l5 o.2d W00


Greene v. United States [5 Cir.] 274
Fed. 145; Lane v. United States [5
Cir.] 274 Fed. 290; Mitchell v. Smale,
140 U.S. 406, 11 Sup.Ct. 819, 840, 35 L.
iEd. 442; 9 C.J. 190."

[5] The chancellor, after considering all
the evidence presented, including the field
notes and the official plats of survey,, con-
cluded from these that "* the in-
tent and purpose of the surveyor was, and
that he did approximately traverse the
-south branch 'of the river and intended the
waters of said south branch to be the north
boundary of Lots 5, 6; 7, aind 8" and that
"* the north traverse line was run
with every intent and purpose to make the
northernmost waters of the Little Manatee
the southern boundary line of Lots 1, 2, 3,
and 4." The meander line does not usually
act as a boundary in contravention of the
superior quality of a natural monument,
and here the chancellor was not required
to apply it as a minimum boundary in
derogation of the ordinary high water
marks of the north and south branches
of the river.

The next phase of appellants' argument
as to boundaries sets out that "The main
branch of the Little Manatee River is the
boundary of the government lots although
the meander lines run by the government
surveyor do not exactly coincide with the
high water mark of such main branch."
A navigable body of water, as related,
normally is considered the' boundary of
fractional lots such as- those owned by ap-
pellants. Since we have affirmed the find-
ing by the chancellor that the north and
south channels of the river ar'e navigable,
we must in this light consider the argu-
ments of appellants that their fractional
lots do not border those navigable chan-
nels but rather extend on across islands
to the main channel of the Little Manatee
River.
Appellants admit that the official plats
of survey appear to show three branches of
the river in the central and eastern por-


Fla. 517


tion of Section 12 They say, however,
that this resulted from the arbitrary filling
in by the map maker in the office of the
Surveyor General of the space between the
traverse lines on the north and south sides
of the river. ith imaginary shapes unre.
lated to the actual land masses. They state
that, by the field notes, the surveyor in
traversing Section 12, Ist portion south
branch Little Manatee, came to a creek
three chains wide, crossed it, and then
stood on a peninsula composed of what is
now Goat and Cactus Islands, together with
a segment of peninsula in government lot 8.
They claim that this brought the surveyor
to the north side of the south branch onto
that peninsula and conclude that he aban-
doned his traverse of the stream which he
had been referring to as the south branch
and cut across land until he reached the
main branch. The effect of the action of
the surveyor as described by them is urged
to be that the land between the meander
line and.the main branch of the river was
thus unsurvcyed and since not excessive
became a part of the government lots.

[6] The chancellor, finding that there
is "nothing on the plat of survey that the
Court can observe that in any way indicates
that any part or portion of the government
lots on the north side of the Little Manatee
River lie south of the north branch of said
river, nor that any part or portion of the
lots on the south side of said river lie
north of the south branch of said river,"
then found the field notes of the original
survey to be in accord with the plat. In
case of conflict between the plat and the
field notes, however, by the weight of au-
thority, the plat will control. Patton on
Titles, Second Edition, section 312; 9
C.J.S. Boundaries 143, page 221; 11
C.J.S. Boundaries 52; and see Delaware
Securities Corporation v. Kahn, 1937, 129
Fla. 26, 175 So. 779. From our inde-
pendent study of the field notes along with
the other evidence, we find them to be
reasonably consistent when compared with
the plat of survey and conclude that ap-
pellants' arguments that the main branch is


ap-
be
firms

Snt
ent-


illil I IIt fiir


1









. -i


518 Fla.


145 SCOU'IRT N KEPORTFM, 2d SILRIES


their boundary must be rejected. Although
there are obvious discrepancies in thU trav-
erse lines as run by the surveyor with refer-
ence to the actual shore lines, these, under
the circumstances, will not vary the bound-
aries of appellants' government lots as up-
held by the chancellor. We have also con-
sidered the question of avulsion as it con-
cerns boundaries, and, in the light of the
S evidence, we find that theory unsustain-
able. ".: ':

Appellants additionally assert that "Dis-
crepancies in amount of acreage resulting-
from ,different interpretations of informa-
tion concerning boundaries of government
lots can bean important factor in locating
the true boundaries." While it is true that
a disparity in quantity of land is a factor
to be weighed, the Supreme Court of the
United States, in the case of Cragin v.
Powell, 1888, 128 U.S. 691, 9 S.Ct 203,
32 L.Ed.. 566, gave expression to a prin-
ciple which it characterized as well settled,
saying:
"* ;* when lands. are granted
according to an official plat of the
survey of such lands, the plat itself,
: with all its nots,- lines, :descriptions,
a.nd land-marks, becomes i~ S mmch a
part of the grant or deed by which .
they are conveyed, and: controls, S
Sfar as limits are concerned, as if such
descriptive features were written out
upon the face of the deed or the.grant
itself."

*- B [(7] If, thcrcfore, the official plat of sur-
vy. with its' accoinmpnyingl cnrnllnry docu-
nients supplies data, iiicluding landmarks,
by which the limits of a fractional section
S. .may be- asertained, a discrepancy in the
S number of acres conveyed will not usually
permit. the delineated boundaries to be
S- altered, without a clear showing of fraud:
:or palpable mistake. -
n:- the case of Ewe$ltv. Wvagley, 4th
Cir., 1926, 13 F.2d 712, the court cited
and applied several cases considering the
element of quantity, all of which were in


76 -109


accord with the principle that before re-
sort can be had to quantity, the other ele-
ments of description must lose their su-
perior value through ambiguities and un-
certainties. An excerpt from the case of
Powell v. Clark, 1809, 5 Mass. 355, 4 Am.
Dec. 67, an early decision from the Massa-
chusetts jurisdiction, was quoted. That
case, said the Circuit Court of Appeal,
states clearly and succinctly the rule and
the reasons for it. The quoted portion of
the Powell case included the statement
that the words expressing.the quantity of
land do not amount to a covenant but are
merely descriptive of the lands conveyed.
The purchaser, the court pointed out, by
taking the proper measure, that of having
a survey made, could easily ascertain the
contents of the lands being bought prior to
conclusion of the purchase. If the pur-
chaser chose to rely on the estimation of
the seller, an express covenant could have
been introduced into the deed. If the
boundaries of the tracts had contained more
than the quantity expressed, said the
-Massachusetts court, all would have passed
with the deed; and if less was contained,
the purchaser would then have title only
to what in fact was included. The excerpt
I efeirred'to contained the following state-
'ment:
"* In a conveyance of land by
deed, in which the land is certainly
bounded, it is very immaterial whether
any or what quantity is expressed;
for the description by the boundaries
Sistochisive." '

It is intlrcsting in this connection to
note that the Supreme Court of Florida,
in the case of Martin v. Busch, supra, in-
volving submerged lands, said:
"* A conveyance of all of
an unsurveyed fractional township or
section of swamp and overflowed lands
which borders on a navigable lake or
other body of navigable water, carries
title to the true line of ordinary high-
water mark that has been or that
should thereafter be legally estab- *


-C--~I r-I~IICCUZ)I





I III


Slashed; and, if the acreage sl
the conveyance of swamp an
I I flowed lands is less than the tr
age outside of the true line of c
high-water mark of the adjace
igable water, such deficit does
1.' thorize an extension or contra
the true water line or give the
it any sovereignty land within or
lower or lake side of the tru
id line. The grantee takes with
)f 'that the conveyance of swai
nt overflowed land does not in la'
ef any sovereignty lands, and t
re .trustees of the swamp and ove
lands as such have no auth
by convey sovereignty lands."


I

i:

I


The Supreme Court of Florid
man v. Simon, 1933, 109 Fla. 19
222, an ejectment case, quoted
earlier Florida case of Stonewall
Co. v. Peyton, 1897, 39 Fla. 72
440, as follows:
"'When a line was actually
a division made in an original
of land by the United States
ment, and the line or divisi
marked by corners or natural
and such survey be established
cordance with the United Sta
notes, the grantee in a patet
the government will take accoi
such actual survey, notwiths
any mistaken *and.distances, or the quantity
stated to be conveyed.'"

[81 Although quantity is at
carefully to be weighed when th
criteria have failed, the chancel
judgment, as trier of the facts,
the other elements involved in
tion of boundaries had not been
have lost their preferential statu
not think that, under the situa
considerations of quantity comic
to substitute that clement for those
the authorities have accorded pr
' We proceed now with tlie cot
of appellants' position as to title.


LOPEZ v. SMiTH Fla. 519
Cite as, Fla., 145 So.2d 509
stated in assert that "After the State of Florida
d over- conveyed the title to lands described in the
ue acre- complaint to predecessors in title of ap-
rrdinary pcllants, the state could not convey the
nlt nav- title thereto to predecessors in title of ap-
not au- pellees." Delineating their deraignment of
action of title and the number of acres involved in
grantee each conveyance of the government lots or
on tie parts of lots, appellants contend in summa-
e water tion that "* thereafter the State
I notice of Florida had title to no land within the
mp and exterior surveyed boundaries of Section 12
w cover except sovereignty land and therefore could
hat the not convey any more land in that section
:rflowed to predecessors in title of appellees, or to
ority to anyone else."

It may be noted that this argument raises
a, in Alt- again the question of acreage to support
6, 147 So. appellants' claim. It also interposes the
from the issue of sovereignty rights as being pre-
Phosphate elusive of appellees' claim, concerning
6, 23 So. which we shall comment later in this opin-
ion.
run and
survey Since the natural monuments repre-
govern- sented by the waters of the south branch
on was and the northernmost waters of the Little
objects, Manatee River comprise the boundaries
d in ac- recognized by the chancellor, his findings
tes field on this subject in the light of the instru-
nt from ments of conveyance and the other evi-
rding to dence amount to a judicial declaration
standing that appellants had never been conveyed
courses the contested property.
of land
It is true that the courts will with great
reluctance allow a claimant pursuant to a
n element subsequent resurvey to disturb rights ac-
e superior quired in lands by a grantee deraigning
Isor in his title from patents issued under the original
bor in his
found that survey. See United States v. State In-
teia vestment Co., 1924, 264 U.S. 206, 44 S.Ct.
determina-
289, 68 L.Ed. 639; Kelsey v. Lake Childs
shown to
SCo., 1927, 93 Fla. 743, 112 So. 887; Lake
sn here, Childs Co. v. Kelsey, 1931, 103 Fla. 590,
tion here,
yelled him 137 So. 690; Cf. Title 43, Public Lands,
St which section 772, U.S.C.A., page 85. However,
c to which
Siorit. who acquired what rights under the orig-
Inal survey is precisely the question before
isidcration this court. We are here concerned, not
They first with a claimant seeking to overturn rights


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ng
he
to
ir-
of
ive
Lhe

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sed
ied,
nly
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ite-



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, in-


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rr
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or
irs


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145 SOUTHERN REPORTER, 2d SERIES


acquired under an original survey on the
strength of a later resurvey, but with the
necessity to review a judicial determina-
tion relating to the boundaries of lands as
reflected by the documents of the same
original survey. The limits of the proper-
ties claimed by the respective parties must
depend upon the intent and actions of the
original surveyor and of the land depart-
ment officials, and it is to the documents
executed by them that the chancellor large-
ly turned for elucidation. We think his
conclusion is supported by substantial com-
petent evidence.

[9] A further contention of appellants
as to this aspect of the case is that ap-
Spellcces have no title to any of the islands
|; described in the complaint because the
deed from the state to their predecessors
in title did not convey title to any land in
Section 12, did not describe any land with
sufficient accuracy to identify it, and be-
cause the described 75 acres of the .un-
surveyed part of the township hlas never
been officially surveyed or identified. Ap-
pellecs counter that no survey was neces-
sary for conveyance of swamp and over-
flowed lands but that it was sufficient only
that the lands- be identified for purposes
:! of the conveyance.

+. The case of South Floridi Farms Co. v,
]* Contdino, 1922, 84 Fla. 532, 94 So. 672, il-
g -, ` -though not factually parallcl2. vas one
Svhermncr the Florida Supreme Court recog-
i : ni m-' that no survey of swainp and over-
i;.. fl owed lands is necessary as a prcrequijsite
to valid conveyances of such lands. The
court in its opinion inade-the following
Statement: :-
"The act, of Congress granting
S" swamp and overflowed lands to the
States is not a grant of such lands by
kgal subdivions. It grants 'the whole
of the swamp anl overflowed lands,
made tmnfit thereby for-cultivation.'
S US.Comp.St. 495 .The act -
quires the Secretary of the Treasury to
tran.smit to the Governor of. the state
": accurate lists and plats of the. lands


granted, and upon request to issue
patents therefore.
'"Where the whole of a township or
of a section is 'swamp and over-
flowed land' that is 'wet and unfit for
cultivation,' within the meaning of the
"act of Congress of September 28,
1850, a subdivisional survey of the
township or section would not be nec-
essary to enable the Secretary of the
Interior to determine whether 'the
greater part of' the township or sec-
Stion is 'wet and unfit for cultivation,' so
as to-be covered by the grant; but in
such cases the lists and plats of the
lands may be made by reference to
surveyed lines and their projected ex-
tensions or to natural boundaries, and
patents may be issued for the lands
that are within the grant according to
such lists and plats whether the lands
be surveyed or unsurveyed."
The coirt concluded:
"As the plaintiff, the South Florida
'Farms Company, claims under the
patcint covering the unsurveycd por-
tions of sections 28 and 30, and as the.
defendant claims under the patent cov-
ering 'the whole or fractional sections
S28, 30,' which do not cover the un-
surveyed portions of the sections, the
.verdict and judgment for the dcfend-
afifare erroneous, since the lands de-
scribed in the declaration cover the un-
surveyed portions of the sections to
which the plaintiff shows title, and no
superior right by adverse possession
or otherwise of the defendant is estab-
lished.; ;

In Wright v. Roseberry, 1887, 121 U.S.
488 7 S.Ct. 985, 30 L.Ed. 1039, the court
:-eclared that the difficulty of identifying
swamp and overflowed lands could not de-
f.it' or impair the effect of the granting
clause by whomsoever such identification
was required to be made but that, when
idcntifi.e, the title would become perfect
as of the date of the act. The patent,
continued the court, would be evidence of


1-I


:'1



-*4
i'
S









i-Id


c.


520 Fla.













F.


LOPEZ v. SMITH
Cite as, Fla., 145 So.2d COO


issue


tip or
over-
it for
>f the
r 28,
f the
nec-
3f the
* the
r sec-
on,' so
but in
of the
ace to
ed ex-
.s, and
lands
ling to
: lands




F a
er the
:d por-
I as the
:nt cov-
sections
the un-
ans, the
defend-
inds de-
the un-
tions to
and no
possession
is estab-


121 U.S.
the court
identifying
ild not de.
e granting
identification
that, when
me perfect
lhe patent,
vr- ce of


Fla. 521


. I










3
Si




-'











'o .










'I'


such identification and declaratory of the
title conveyed. It was further. stated that
the function of the patent is to make the
description of the lands defniitc and con-
clusive as between the. United States and
Sthe State. The following observation was
also made by the court:

"The result of these decisions is that
the grant of 1850 is one in pracscnti,
passing the title to the lands as of its
late, but requiring identification of
the lands to render the title perfect;
that the action of the secretary in
identifying them is conclusive against
collateral attack, as the judgment of a
special tribunal to vvhich the determi-
nation of the matter is intrusted; but,
when that officer has neglected or
failed to make the identification, it is
competent for the grantees of the
state, to prevent their rights from
being defeated, to identify the lands
in any other appropriate mode which
will effect that object."

All the lands involved in this controversy
were conveyed as swamp and overflowed
lands by patent to the State of Florida un-
Sder the Swamp and Overflowed Lands
Act of Congress of September, 1850. The
chancellor, having made his holding as to
appellants' boundaries, then concluded that
the description, "all unsurveycd part of
Township 32 South, Range 18 East
S* *accoi'-ng to the official plats
of survey *," had a definite, dis-
tinct, and well-understood meaning to the
Trustees of the Internal Improvement
Fund, grantees of Patent 33 and grantors
' of deed 15,199 under which appellees claim
title to the islands involved.


played as exemplified by exhibit 7 was to
prepare a map of the township involved
in a sale. That map indicated what 1Ind
had been sold by the trustees to different
purchasers. As sections or other parts
of the township were sold, the practice was
to. write on the map within that portion of
the township sold the number of the. Trus-
tees' deed. Examination of exhibit 7 re-
veals that it depicts the sale.of many par-
cels of land, with the number 11,659 in-
dicating sales by the trustees to Florida
Land and Impiovement Co. That number'
appears on the map to represent convey-
ances of all the government lots in the
township, including Lots 2, 7, and- 8.
Across that portion of the map of the town-
ship showing islands in the Little Manatee
River is written the number 15,199, or the
number of the deed to Dischong under
which appellees base their claim.

It appears that this exhibit, representing
as it does a part of the land sales records
of the State of Florida, could justifiably
have been considered by the chancellor
along with the other evidence.

Appellants advance certain documents
showing various conveyances in their de-
raignment of title. However, we do not
find that either Patent No. 4 by which the
fractional lots were conveyed to the State
of Florida nor the deed by which the Trus-
tees of the Internal Improvement Fund
conveyed the fractional lots to appellants'
predecessors in title give any indication
that it was intended the government lots
should embrace the islands or parts of
islands in question.

[10, 11] Without detailing the other ar-
guments of appellants, we may state that
we find no basis for a holding that appellees
are bound and stopped by a prior order
constituted within a circuit judge's dis-
missal of one of the parties from a tax
foreclosure suit. Neither can we say -that
the tax assessment data introduced in evi-
dence showing certain discrepancies in
acreage and inconsistent assessments can
have the effect of establishing appellants'


Exhibit 7 of appellees, considered along
with the other evidence by the chancellor
in deciding that the controverted islands
vested in appellees under the description
contained within their conveyance, is a
part of the land sales records of the State
; of Florida. According to the testimony of
an employee of the State of Florida hav-
ing custody of land records, the method em-
145 So.2d-33V1/
" '


l: t11


IG i6













145 SOUTHERN REPORTER, 2d SERIES


4I1rl4U .1


title or of requiring a departure from the
rules of boundary.

It mut be remembered, that lands of the
sort here contested were considered almost
valueless during the early history of our
state. The jurisprudence of Florida as well
as that of other states includes many cases
through which the courts have been con-
fronted with the necessity to interpret data
made to a degree opaque, not only by the
passage of time, but by the questions aris-
ing from discrepancies. In this regard, a
statement made by the United States Su--
preme Court in the case of United States.
v. Lane, supra, concerning lands along, the
shore of a lake in Louisiana which had
been surveyed in the year 1839 may have
some pertinence:

"Considering the circumstances in
respect to the character and value of
the lands, the wildness and remoteness
of the region, and the difficulties sur-
rounding the work of the surveyors,
the failure to run the lines with more
particularity was not unreasonable, and-
we are coristrainid to agree with the
lower court in holding that the waters
of the lake, and not the traverse line,
constitute the boundary."


judicated in appropriate proceedings in-
which the State is a party litigant.

The record on appeal in this cause is an
enormous one, encompassing many lengthy
exhibits, documents, and the pleadings, as
well as over one thousand pages of testi-
mony, much of it of a technical nature. At
the request of all the parties, the chancel-
lor personally visited and traversed by boat
each of the streams in the principal areas
of dispute, not regarding the visit as evi-
dence, but viewing its results as valuable to
him in more thoroughly understanding the
evidence ahd testimony. We have carefully
considered the record, the. decree of the
chancellor, and the able presentations of
counsel and have concluded that substantial
competent evidence supports the chancel-
lor's decision. The final decree is affirmed.
Affirmed.

ALLEN, A. C. J., and LOVE, WIL-
LIAM K., Associate Judge, concur.


Frances F.-THOMAS and Edwin Thomas,


Where a surveyor had been sent -i 1846 her husband
into a wilderness area of Florida .consist-- .
ing of .fthes ialdetlss swamp' lnd over- :Thomas Powell WHIl
flowed lands, beset with all the difficulties las Whitaker, as Ex
attendant upon survey of lands of that :an4 Testament of
nature, the courses which he ran might un- ceased; Duval M. S
-dcrstandabl5~ folTow at times along lines his wife; Appellees.
which were more or less variant -Also tin- No.
derstandable, then, is the general role that Distrct Court of
the natural monuments represented by the second
.. .. shore lines ordinarily prevail over the me- -
Sept.
: nr --..ndcr lines. .
.. hearing Denl
-- Various matters ha'e- been raised which "
:: -.involve sovereignty rights of the State of
: Florida. We therefore iaiuse to inter- Quiet title suit.
-. ct that any rights which the State of:_ Hillslbrough Count
Florida ina haye or may subsequettly at- rendered judgment
iprt with refrcuce to the property in fcndants appealed.
a '- lved arienot prejudiced by any holdings Appeal held that lov
Swhch 'we here hake but should -he -ad-- sufficient competent
1er cl _-


d, Appellants,
V.
AKER and Robert Dal.
coutors of the Last Will
Tom Whitaker, De-
mith and May P. Smith,


1970.


Aplpal of Florida.
District
21, Jfe2.
led Oct. 22, 1902.


The Circuit Court for
y, John Germany, J.,.
for plaintiffs and de-
The District Court of
ier court had before it
evidence to support


522 Fla.


I..





"..
4'i .4. ;


4,~:


,, -


- 4


W,
KV Wj"MR SYSI
El


'












600 Fla.


90 SOUTHERN REPORTER, 2d SERIES


It


I ii


'



N:
FI~


OSCEOLA COUNTY, a political subdivision
of the State of Florida, et al., Appellants,
V.
TRIPLE E DEVELOPMENT COMPANY, .
a corporation, Appellee.
Supreme Court of Florida.
En Dane.
Sept. 20, 1956.


Rehearing Denied. Dec. 4, 1950.


Owner of tract of land brought suit
against county to enjoin county from fur-
ther prosecuting condemnation suit to con-


"JI4


demn a right of way. over the privately
owned land to nonnavigable lakes lying
entirely within the boundaries of the tract
of land, so that the public could boat and
fish on the lakes. The Circuit Court for.
Osccola County, Frank A. Smith, J., en-.
tered judgment adverse to the county, and
the county appealed. The Supreme Court,
Tcrrell, *J., held that the lakes were sus-
ceptible of private ownership and that coun-
ty was not entitled to condemn the right
of way.. .


Frances STRUCK, Appellant,'
v.
CITY OF MIAMI, a municipal corporation,
Appellee..

Supreme Court of Florida.
Special Division A.
: Oct 17, 1050.

Rehearing Denied Dec. 4, 150.

Appeal from Circuit Court, Dade Couin-
ty; Marshall C. Wisehcart, Judge.

Carr & O'Quin, Miami, for appellant.
J. W. Watson, Jr., and Robert M. Haver-
field,. Miami, for appellee.

PER CURIAM.
The briefs of counsel and the record in
this case having been carefully examined,
and no error having been made to appear,
it is ordered that the judgment appealed
from be affirmed. See Richmond v. Florida
Power & Light Co., Fla., 58 So.2d 687.

DREW, C. J., IHOBSON and THOR-
NAL, JJ., and KNOTT, Associate Justice,
concur. .


,"- I


l3W
i .: lo
.. Waters and Water Courses <=109 .
Nonnavigable inland lakes and ponds
are subject to private ownership and, when
so owned, neither the public nor tIe owner
of adjacent lands, whose title extends ohly
to the water's edge, has a right t boat or
fish on such waters.

2. Waters and Water Courses C=109
A lake or pond entirely within'the
boundaries of a single tract of land belongs
to the owner of the land as an appurtenant
thereto. '


3. Eminent Domain 013


'I


S: Private property can be condemned on-
ly when it will serve a public purpose.


4. Eminent Domain =171
Condemnation of private property will,
not be permitted to encourage a trespass.,.

5. Eminent Domain C=19
Where owner of land owned non-:
navigable lakes lying entirely within the)
boundaries of the owner's land, the county,
could not condemn a right of way from:
the main highway to the shores of the,
lakes for purpose of enabling the public to
boat and fish on the lakes.

6. Waters and Water Courses 0=109 ': "u
Nonnavigable lakes, which lay within
boundaries of a single tract of land, were.


Judgment affirmed.


-d I


777 7777777llai wn!WRIMWRWWW


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- -- -- -----~- ~-~~-~~?rr~*~tsHpss.i~:r J~iiii* firH~3Yl~i~ki~ ~~a~gl:)~Ce~~9~8~ls~Y~f~: pB~ -`I ``h; u~l~l










76-115

OSCEOLA COUNTY v. TRIPLE E DEVELOPMENT COMPANY Fla. 601
l iW 1 A rl ,eA 2


lakes lyinl
of the track
1I0 boat


a ih, n.,n
pypne Court
en:,Were sos
niAthat conn





:MBtbari

Ip and, 'wh

efends ou
-M to-boat
^^~y;- -






.- belog f


: l. -
- "7-.a "!'a



oanemned oi
purpose.,


property w
a trespass*.


-owned nc
ty- within t
4d, the court
of way, fre
horses of I
thepublic


=1089


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-1.


ty -


C.
to::
4- i


;Lawrence Rogers, of Rogers & Kelley
O Ond. S. Thacker, of Thacker & Thacker,
ssimmee, for appellants.
S.W. J. Steed, of Steed & Steed, Orlando,
6t for,,appellecs. .
t ... -
ITERRELL, Justice.
",,This.litigation arose out of two fishing
holes in Osceola County, known, locally as
Buck Lake and Cat Lake. Each lake is
Sless than 500 acres in area; they are about
ne mile apart, without water ; connection,
IcI near the Rissimmee-Melbourne High-
,.ay; are said to be good fishing holes and
jm6 far as the record shows hive bepn used
o .that purpose by the ancestors of the
Sminoles and the citizens of Osccola
countyy since the time St. Peter' and the
f iciples fished in the.Sea of Galilee and
*spread its fame as a fishing hole. The said
.ikes, including the land on. which they
't'locatcd, were conveyed to the State of
Florida more than 100 years ago and the
,tite in turn conveyed them to. the pred-
,,:issors in title of appellee long before
Grover Cleveland fished in Hobe Sound
Martin County) and called its attention to
die country as a fishing hole." A little
ihile ago the people of Florida ,voted the
lws off the open range and the appellee
Owncr countered by enclosing the lands on
'ihich Buck and Cat Lakes arc located with
a large acreage of other lands in'a cow
0 So.2d-38%


.susceptible of private ownership by the
F ler of the land.

i Eminent Domain .:274(1)
,t..Where county brought suit to con-
if9 a right of way over privately owned
Wlnid in order to furnish a public way over
ite land to shores of nonnavigable lakes
located entirely within the boundaries of
.,t".,ract of land, so that the public could
V)ot and fish on the lakes, though" county
nad no right to condemn the right of way,
5omunty would be enjoined from further
Scouting the condemnation suit. *
1 ^',,' .l r .. . -" .. ,, : ,.. ...
M --I t -I


pasture, depriving the pubic of their use
as fishing holes. This act aroused public
indignation and precipitated this litiga-
tion. ; .. .
* The appellants, County Commissioners
of Osceola County, brought a condemnation
suit to acquire a right-of-way from the
main highway to the shore of Buck and
Cat Lakes, one of which would be about
one-quarter of a mile and the other little
more than a mile in length. At this-point,
ownership of the lands changed and the
new defendant countered with a suit for
declaratory decree and for injunction
wherein the petition prayed that the con-
demnation suit be'stayed and the plaintiffs
therein be enjoined from prosecuting it
further. Motion of defendant -Osceola
County to dismiss was overruled, answer
was filed and motion to strike portions of
which was granted. At the hearing on bill
and answer,-final decree was entered re-
straining. Osccola County and its agents
from further,prosecuting the condemnation
suit. This appeal is from the final decree
and the order striking portions of the an-
sw er. ,,; ,:+. .

The partiess have complicated the; case
by urging ten questions, seven on the part
of appellants and three on the part of ap-
pellee. In oilr view, thi controversy is
much more simple and may- be resolved by
answering the question, who owns Buck
and Cat Lakes. When this is done, other
questions become unimportant and recede
from the picture.
In his final decree, the chancellor found
(1) it is admitted that Buck and Cat Lakes
are not navigable; (2) that plaintiff is the
owner of the lands surrounding said lakes;
(3) said lakes have been recently included
in plaintiff's pasture and the public is de-
nied access to them; (4) neither of said
lakes was meandered by United States
survey, that the State of Florida was grant-
ed the entire sections, including the lakes
located thereon, by the United States gov-
ernment without reference to or inclusion
of the waters of the lakes; (5) the State of


.-h lay witl
of land, wt
r"


41 l


I -
I _I ~r~l~S


.v uo.*u uw










602 Fla.


0o SOuTHERN REPORTER, 2d SERIES


Florida conveyed the lands described there-
in to the predecessors in title of the plain-
tiff herein, that said deeds made no refer-
ence to the waters of said lakes and that
the lands adjacent to and under the waters
of said lakes became the'property of the
predecessors in title of plaintiff; (6) that-
said lands have been returned for taxa-
tion, that plaintiff is the owner of and has
annually paid taxes on the lands adjacent
and lying beneath the waters of Buck and
Cat Lakes; (7) that appellants have in-.
stituted and have pending a suit seeking
to condemn a right-of-way from the pres-
eant public highway to -the water's edge
of each of said lakes; (8) that the build-
ing of said road would prevent plaintiff
from exercising exclusive use of the waters
of said lakes


Based on these findings, which are amp
supported by the record, there can be
question of appellee's title to Buck ai
Cat Lakes, the lands under them and tl
lands adjacent to them, including the lan
Involved in the condemnation suit. T
record also discloses that the condemn
Stion suit was the product of a "pub
clamor and a petition filed by numero
citizens" following the enclosure of sa
lakes in appellee's pasture. The sole .m
S tivating purpose of the condemnation si
w'at was to 4scre a, one-way access to t
S. waters of'said lakes. The gist of the Pe
ti dtori to -condmn was concisely stated
S.-d tiese words: "We feel that 'the right
-take fish frof the freshkwaters of Oscee
'County is one. of the most valuable ass<
: we have to offer our residents and touris
I and furthermore, that fresh water fishi
S is a privilege we all should be able to t

S In their giievance w have compass
for appellants. Since before'the time
St. Peter, fishing has been the -sport
all classes and appears to incrnese
popularity with' -the years. Preside i
S ings, senators, jutdges-in fact all lev
of tihe social structuirc-fin solace in fii
S" ':: hi. Indeed we are told,that the' St;
Si Road Department will no longer consist
ih ^ -^ '- *; i- -.* -* ^ : ^


*ly
no
nd
he
ds
he
a-
lie
..e


letting a contract for a bridge over any
kind of a stream or waterway without in-
cluding catwalks and galleries for the
benefit and comfort of those who love to
fish. The fascination for it becomes so
enticing at times that its devotees, white
and colored, will let the tares and crab
grais choke the cotton and corn' to death
if there is a fishing hole in reach. We are
cited to no law, however, that permits the
yearning of the public or any sector of .it
to appropriate one's property for' that
purpose in the-manner. proposed here.'
It may comronrt appellants a bit to p6int
-out that they are not in a class by them-
selves in that their fishing privileges have
been curtailed. Account of the fact that
Sthe weatherman cut off the water during
';. the rainy season of 1954 ,and. 1955, scores
of fishing holes in north and central
Florida went dry forcing lovers of the
piscatorial art to resort to more dependable
waters with their boats and "kickers" to
indulge their craving to fish. Many have
turned their fishing holes into turnip
patches but so far as I know, none have
sought recourse from the weatherman. '
'. ,, .. i


[1,2] In Hardin v. Jordan, 140 U.S.'
371, 393, 11 S.Ct. 808, 35 L.Ed. 428, 437,
the court pointed out two schools of
thought with reference to the ownership of
inland lakes and ponds; under the .Mas-
sachusetts i.ule- when one purchases. land
ordirig a- lake or pond, his line extends
only 'to the water's edge. The water in
such lakes belongs to the people. This
.rule is at variance with the common law
'rule, as well as the majority rule in this
country which is that non-navigable inland
lakesrind ponds are subject to private own-
ecrship. and when so :owned, neither the
public nor, the -owner of- adjacent lands,
whise title extends only to the water's
edge,-has a right to boat or fish upon said
waters A -lake or pond entirely within'
.the boundaries of a single tract of land
: belongstao the owner of the land as an ap-
purtenant thereto. 56 Am.Jur. 53S,
Waters, Sec. 51; Nichols on Eminent
-. .


I -.


Doa

is
Las
of. h
vey d
wit o
erv ti<
hav I

,4
in t is
ed, ea
S that
S dog I
as e \
but c
the an
of al:
pro ria
gov rn
prc isc
S dc ed
pur osc
cou ge


pur se
- fur sh
to t e v
so t at
the.
S pose t
and der
oss ssi
for pt
S mitt db
S Co. 0
83; Sp
617, 110
Co., nc.
31 .2d
Wat on,

[6 7)
Lak w.
ship tl;
pelle ti
dem atioi
dead end
public mi















over any
without in-
for the
Slove to
Comes so
kes, white
and crab-
Sto death
We are
.rnnits the
actor of it
for that
i here.

it to point
by them-
leges have
fact that
ter during
)55, scores
td central
-rs of the
dependable
kickers" to
1r.- \have
ntd .urnip
none have
herman.

,140 U.S.
1. 428, 437,
schools of
ownership of
r the Mas-
hases land
N:ne extends
'r water in
-iple. This
.fttmon law
rute in this
: ,lt inland
Sate ow


-10A ltnl
*rI her th





i *rs 1

i <'
I- tan


OSCEOLA COUNT IPLE E VELOPMENT COMPA
TRIPLEAN


Slte aa, Fla.,
Domain, Vol. 2, page 129, Sec. 5.79. .See
also Annotations, 5 .A.L.R. 1056. Florida
is committed to this rule. Buck and Cat
slakes were not meandered, the Trustees
f. the Internal Improvement Fund con-
.heyed them more than seventy.years ago
without deduction for water, without res-
ervation for public use and taxes on them
have been regularly imposed and paid.

(3,4] When so owned tnder the law
in this state, a fishing hole may be protect-
,d, leased or conveyed in the same manner
that one would a saddle-horse or a bird-
dog. He could not trot it down the road
as he would a bird-dog or a saddle-horse,
u!.he could dispose of it or hold it under
the same rules as he would any other item
t realty. It might also be subject to ap-
propriation as other items of realty, but
government in this country rests on the
premise that private property can be con-
lemned only when it will serve a public
Wrpose. It will not be permitted to en-
0urage a trespass.


(5] The pleadings reveal that the sole
purpose of the condemnation here was to
irnish a public way over private property
othe water's edge of Buck and Cat Lakes
that the public could boat and fish on
em. .The county, in other words, pro-
ses to appropriate appellee's property
d deny it the enjnP., ,lt of peaceful
session. Such an appropriation is not
ra public purpose and will not be per-
tted by condemnation. Isleworth Grove
v. Orange County, 79 Fla. 208, 84 So.
Spafford v. Brevard County, 92 Fla.
.'110 So. 451; Pcavy-Wilson Lumiber
Inc. v. Brcvard County, 159 Fla. 311,
So.2d 483, 172 A.L.R. 168: Clement v.
tson, 63 Fla. 109, 58 So. 25.


5,7] It follows that Buck and Cat
tS were susceptible of private owner-
; that they were in fact owned by ap-
ne; that the sole purpose of the con-
non proceedings was to irovie a
-ed road to them in order that the
iC might comnmlit a trespass; no public


necessity is shown for such a road so it
was a proper act to enjoin. Since we
reach this conclusion, it is unnecessary to
discuss other questions argued.

The judgment appealed from is there-
fore affirmed.
Aflirmed.


TIIOMAAS, ROBERTS, TIIORNAL
and O'CONNELL, JJ., concur.


DREW, C. J., and JONES, Associate
Justice, concur specially.

RE Chief Justice (cncing sp
iRE Chief Justice (concurring spe-
cially),


76-117

FLa 603


I concur only in the conclusion reached
n the foregoing opinioli that, under the
facts established by the record in this
cause, the action of the Board of County
ommlissioners of Osceola County, in at-
empting to use the powers of eminent do-
lain to acquire the right of way solely for
ie purpose of constructing a road across
nd through the land of appellees to the
ge of the lake, was abuse of discretion
d, consequently, an unlawful exercise of
ch power..


Had the road been condemned for the
purpose of reaching a county park, play-
ground or other public area adjacent to the
shores of said lake or had land been in-
cluded in the condemnation along the
shores of the lake for some lawful coun-
ty recreational or public purpose, then I
think the County Commissioners would
have been acting clearly within the scope
of their power and such action would have
been lawfully taken.


t

tl
at
ed
al
su


The question of whether the plblic has
a right to use the surface of said lake for
boating and fishing is not in my opinion
properly presented by this record.
I am authorized to state that Mr. As-
sociate Justice JONES concurs in these
views.


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,90 So.2d Goo a


:7.^ ^ S





GIBuONS, 7 CKEI, McEWEN, ..TIIT, COFER & TAUB
-A ORNEYS AND COUNS.LI., T LAW
C0 MADISON STREET. P.O. BOX 1303
TAMPA. FLORIDA 33601 o U. G IBBo. IL.S -1o.
(813) 228-7841 : JMarn T x. BLARIX PHILIP LAxZAnA
JOSUPH B. COFPLR JAMUS N3. )IC RWZ
THOMAS R. CONK, JR. MALCOLM P. MICLEKR, III
A. VLr BCER DYCHKIM r. BRADFORD MILLER
J. MICHAEIL VORD WILLIAM R. PLATr
ARTHUR a. OIBBOX* SHARON E. SELK
MYRON a. OIBnnox ARMINX I. NMITU. JR.
Ja aary 12, 1976 oBIr c. o.IB.os RciARU TK.v
NAM M. GIBIOXLS THKODORE C. TAUD
JOlr A. OUTTON. JR. W r. A TUCKER
VICTORIA 1. H3UNT JA(CUrI.IM B. WIIATIE
ROViXV V. I A. H


R ert L. Watson, Director **-
Re 1 Estate Division
Sc thwest Florida Water
Snagement District i
P. 0. Box 457
Br oksville, FL 33512


Re: Navigation Rights,
Channel "G" Salinity Barrier

De r Mr. Watson:

Ba ed upon my research and the cases cited herein, it is my opin-
io< that property owners owning land adjacent to Rocky Creek or
Ch nnel "G" do not have a.constitutionally protected right of pass-
ii by boat from their property to the adjacent waters of upper
01 Tampa Bay, which would require payment of just compensation
w n lost as a result of construction of the proposed salinity
b rier. This is true even where navigation of Rocky Creek or
C nnel "G" will be prohibited by the proposed barrier. It would
n be true where the sole access to a person's property is via
t Creek or Channel.

Tr controlling law on the right of navigation for riparian own-
e is enunciated in the case of Carmazi vs. Board of County
C missioners (3rd., D.C.A., Fla., 1959) 108 So. 2d 318. In this
c e, persons owning land adjacent to the Little River in Dade
C nty (riparian owners) and the Central and Southern Flood Con-
tiol District obtained a declaration of their respective rights
c ncerning the proposed construction of a dam on the Little River
ich would prevent the riparian owners from reaching the waters
c Biscayne Bay by boat from their property.

7ie riparian owners challenged the right of Central and Southern
t construct the proposed dam on a number of different grounds,
r mely:
(a) That Central and Southern had failed to obtain the
correct permit under Title 33, United Statps Code, 401 (the
Federal Rivers and Harbors Act); and
(b) That Central and Southern had ab sed its administra-
tve discretion in its selection of a site for the dam.


_____ F-





GIBONS. T KER. McEWEN, COFER & TAUB ___ NGOUR LETTER OF
S 3 January 12, 1976
SHEET NO.
76-119 -2-

T principal challenge, however, was directed toward the effect
o the proposed dam. The riparian owners contended that the con-
s. auction of the dam would deprive them of their property rights
w Ihout prior payment of just compensation as required by the
s te and federal constitutions. The alleged property right for
w .ch the riparian owners claimed compensation was the right of
na igation or, in other words, the right of passing by boat from
t ir property to the adjacent waters of Biscayne Bay.

B :h the trial and appellate Courts ruled in favor of Central and
S ithern. The alleged right of navigation was held not to be a
p perty right for which just compensation must be paid when inter-
f ed with or impaired by the construction of a dam. The appellate
C rt reasoned that the eminent domain statutes protect only pri-
v e rights; not rights which accrue to the public as a whole.
T right of navigation was held to be a right common to the pub-
1 i in general. Riparian owners were held not to possess or own
a additional rights of navigation different or superior to
tase shared concurrently with the public. Accordingly, the
C rt ruled in favor of Central and Southern.

T rationale and holding in the Carmazi case has been upheld and
a Eirmed a number of times. In 1960, the Carmazi ruling was de-
t minative of an action brought to challenge construction of a
ss t water control dam. The Court ruled that the riparian owners
e not losing any property rights, nor were any property rights
ing impaired. Central and Southern Flood Control District vs.
iffith (3rd D.C.A., Fla., 1960) 119 So. 2d. 423.

I 1965, the construction of a fixed span bridge was challenged
riparian owners alleging impairment of navigation to be a com-
ensable property right. The Court ruled against the riparian
ners finding only an impairment of the public right of naviga-
ton for which they were not entitled to compensation. Moore vs.
Sate Road Department (1st D.C.A., Fla., 1965) 171 So. 2d. 25.

i 1973, during the course of condemnation proceedings, riparian
oners asserted a claim for compensation based upon the fact that
instruction of the proposed salinity barriers upstream from their
operty would prevent navigation to the waters of Biscayne Bay.
e claim for compensation was rejected even though it was shown
at navigation was necessary for business purposes. James vs.
ntral and Southern Flood Control District (3rd. D.C.A., Fla.,
73) 281 So. 2d. 402.

stly, it should be noted that the position taken on this point
the Florida Courts appears to be the position of the weight of
ithority throughout the country.







GI4B NS. TL


KER, McEWEN. S HW pFER & TAUB


3 OUR LETTER OF
January U, 1976
s~HEa Np.
76-120- ,


MBER OF POTENTIAL PROBLEM AREAS STILL REMAIN TO BE RESQLOVZD.-
n review of my research materials, it became apparent that -a -
ber of additional matters still need to be resolved, namely:-
1. Acquisition of title to the bottomlands beneath the
ucture.
2. Acquisition of necessary additional permits..: -:
3. Decision as to effect of structure on the water linec-
tream. If lands of riparian owners upstream or downstream are
ng to be flooded by the structure, condemnation may be necessary.
4. Consideration of costs/benefits of a boat lift-.Qr?"lock"
;ility. I do not recommend that no consideration be giventto
ioat lift or "lock" facility. On the contrary, I recommend-that-
Ls be analyzed in detail. If the proposed structure is seriously
illenged, the absence of a boat lift or "lock" type facilityy. -
Duld be clearly supported by previous investigation and.decision
the Board. -

ry truly yours, -


omas E. Cone, Jr.

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0MO TO OPINION FILE

ROM: AFD

E : Ownership of a lake completely surrounded by land
owned by a single owner.

questions Presented:

1. -Is the lake navigable?

2. If non-navigable, can the owner utilize the
lake as any other item of realty?

conclusions:

1. No.

2. Yes.

reasoning:

SThe distinction between a navigable body of water and
on-navigable body of water is perhaps the single most important
distinction in the law of water rights. If a body of water is
avigable, most American jurisdictions, including Florida, con-
ider the bed to be owned by the State in trust for the people.
f a body of water is non-navigable, the bed is subject to private
ownership the same way as any tract of dry land. Maloney and
lager, Florida's Lakes, 13U. Fla. L. Rev 1,67 (1960).

The test of navigability is based on the commercial
utility of the body of water in question. The early cases used
he "saw log test." Bucki v. Cone, 6 So. 160, 161 (1889). The
ore recent trend has been to move toward a test of current
commercial potential rather than a test of commercial history, which
s the federal view expressed in Davis v. United States; 185 F2d
38-943 (9th Cir.), Cert. denied, 340 U. S. 932 (1950): "The cap-
bility of use by the public for purposes of transportion and
commerce afford the true criterion of navigability..."

The case that seems most similar to this case at han4. is
)sceola County, et al v. Triple E. Development Co. 90 So. 2d
00 (Fla. 1956). This case involved two lakes, each one under
00 acres. The lakes were not meandered and the Trustees conveyed
hem out without deduction for water purposes and without reser-
ation for public use. Taxes on the lakes had been regularly impose
and paid by the owner. The lakes were held to be non-navigable.
the lake involved in the case at hand is not meandered and if the
trustees have made no reservations when it was deeded out, it







t6--~-2 21


would appear to be non-navigable under the Osceola County case.

Another case indicating this conclusion is Hill v.
tcDuffie, 196 So 2d 790. This case involved Alligator Lake which
insisted of 800 to 1,000 acres. It was held to be non-navigable
although boating, fishing and other related activities were
conducted on Alligator Lake.

Florida Statutes S 373.071 through 373.251 excluFe .
akes owned by a single owner. It would appear that the legis-
ature made a determination that the Water Resources Law should
ot be applicable to lakes owned by a single owner. Although not
inclusive, it would further indicate that the lake in question
s non-navigable.

In other states, when the lake is on a single tract with
ne owner, and the lake was found to be in no way connected with
another body of water, the State has been denied the power to reg-
ilate. Milton v. State, 221 S. W. 461 (Ark:, 1920); State v.
riggs; 175 Atl. 362, Aff'd, 187 Atl. 199 (N. J., 1936).

If the bed of a lake is owned by one owner, he can
dispose of it and hold it as he would any other item of realty.
)sceola County v. Triple E. Development Co. 90 So 2d 600.
rhis apparently includes filling it in or building upon it.
baloney and Plager, Florida's Lakes, 13 U. Fla. L. Rev. 1, 68,(1960)

There appeared to be a tendency to place a lake on a
single tract with one owner in a separate class than all other
lakes. However, I was unable to find a specific reference point
upon which to base this conclusion.


.l.i-~i ^ --i-i. I -






F


I. Navigable Waters 01(3)
Whether stream is navigable for useful
purpose is to be ascertained by applying
existing provisions and principles of law
to particular facts. '
2. Navigable Waters 01(7)
Evidence sustained chancellor's finding
that Little Manatee River in all its streams
and branches in section of land involved
was navigable body of water and that each
branch was navigable at time of statehood
or original survey.
3. Navigable Waters 046(2)
In absence of exceptions or reserva-
tions, patents and other conveyances of land
shown to border dn navigable stream or
body of water carry title to ordinary high
water mark and include unmeasured strip
which usually exists between water's edge
and meander line.

4. Boundaries 0~13
Meander line may constitute boundary
where so intended or where discrepancies
between meander line and ordinary high
water line leave excess of unsurveyed land
so created to clearly and palpably indicate
fraud or mistake.

5. Boundaries C-13
Chancellor was not required to apply
meander line as minimum boundary in dero-
gation of ordinary high water marks of
north and south branches of navigable river
in determining intention of government sur-
veyor.

6. Boundaries C1l3
Obvious discrepancies between plat and
field notes as to traverse lines run by gov-
ernment surveyor with reference to shore
lines of streams whose high water marks
were found by chancellor to constitute
boundaries would not, under circumstances,
vary boundaries as upheld by chancellor
where field notes were reasonably con-
sistent with plat.


7. Boundaries C>3(9)
If official plat of government survey
with accompanying corollary documents
supplies data, including landmarks, by which
limits of fractional section may be ascer-
tained, discrepancy in number of acres con-
veyed will not itsually permit delineated
boundaries to be altered, without clear
showing of fraud or palpable mistake.

8. Boundaries 03(9)
Considerations of 'disparity of quantity
of land did not compel chancellor to substi-
tute that element in determination of bound-
aries of lots in fractional section for other
elements accorded priority in determining
boundaries.

9. Public Lands 0-1471/2
No survey was necessary for convey-
ance by state of swamp and overflowed
lands which had been conveyed to it by
patent under Swamp and Overflowed Lands
Act of 1850 but it was sufficient only that
lands be identified for purpose of convey-
ance. Act Cong. Sept. 28, 1850, 9 Stat.
519.

10. Judgment 0570(10)
Defendants in quiet title case were not
bound and stopped by prior order consti-
tuted within circuit judge's dismissal of one
of the parties from tax foreclosure suit.

II. Boundaries C37(1)
Tax assessment data showing certain
discrepancies in acreage and inconsistent as-
sessments could not have effect of establish-
ing title or requiring departure from rules
of boundary in quiet title suit.



Paul Game and Charles II. Ross, Tampa,
for appellants.
Hall, Hartwcll & Douglass, Tallahassee,
and Corcoran & Henson, Tampa, for ap-
pellees.


II 1








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145 SOUTHERN REPORTER, 2d SERIES


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