Title: Opiniion File 76-172 thru 76-174
CITATION THUMBNAILS ZOOMABLE
Full Citation
STANDARD VIEW MARC VIEW
Permanent Link: http://ufdc.ufl.edu/WL00003472/00001
 Material Information
Title: Opiniion File 76-172 thru 76-174
Physical Description: Book
Language: English
 Subjects
Spatial Coverage: North America -- United States of America -- Florida
 Notes
Abstract: Buddy Blain's Collections - Opiniion File 76-172 thru 76-174
General Note: Box 14, Folder 5 ( Opinions 1976 - 1977 - 1976 - 1977 ), Item 25
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
 Record Information
Bibliographic ID: WL00003472
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



SBoNs, tMcEWzEN. .iTH, COFE TAUB
ONS, ;, / 1M
NBYS AND COUNSILLOR8 AT LAW
006 MADISON STRE1r. P.O. BOX 1363
TAMPA. FLORIDA 33601 on.ar o o. G rs. s162.03To
(818) 228.7841 L.R. jsmr Ma. AIX A.mP m. LAZXnAUA
JOsPM A. coraU JAMBS M. MCWEwa
TROMAS COlNE JR. MALCOLM P. MICKLIR, III
A. PrLTCHER DTOBCHS BRADPORD MILLRR
J. MICHAIL FORD WILLIIAM PLATT
ARTMUR OIBBONB SHARON 3. SILK
MTRON 0. OIBBONS ARMIN H. 8MITS. JR.
J 1ary 12 197 6OBERT 0. OIBBONS RICHARD K. ST.I
luary 12, 1976 AM .. GIBBONS THEODORV C. TAUS
JOWH A. OUTION. JR. Wo. BARIEK TUCKER
VICTORIA L. RUNT JAC1V. IK B. WIIAT
RORNST V. IL


R bert L. Watson, Director RKKL
R al Estate Division
S uthwest Florida Water
management District
S0. Box 457
ooksville, FL 33512


Re: Navigation Rights,
Channel "G" Salinity Barrier

Iar Mr. Watson:

Ssed upon my research and the cases cited herein, it is my opin-
n that property owners owning land adjacent to Rocky Creek or
annel "G" do not have a.constitutionally protected right of pass-
g by boat from their property to the adjacent waters of upper
d Tampa Bay, which would require payment of just compensation
en lost as a result of construction of the proposed salinity
rrier. This is true even where navigation of Rocky Creek or
annel "G" will be prohibited by the proposed barrier. It would
bt be true where the sole access to a person's property is via
ae Creek or Channel.

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

he riparian owners challenged the right of Central and Southern
o construct the proposed dam on a number of different grounds,
amely:
(a) That Central and Southern had failed to obtain the
correct permit under Title 33, United States Code, 401 (the
federal Rivers and Harbors Act); and
(b) That Central and Southern had abused its administra-
ive discretion in its selection of a site for the dam.





76-173
GiBSONS. JCKER. MCEWEN. ("H. COFER & TAUB CONTINUING OUR LETTER OF
January 12, 1976
SHEET NO.
-2-


e principal challenge, however, was directed toward the effect
Sthe proposed dam. The riparian owners contended that the con-
Sruction of the dam would deprive them of their property rights
vthout prior payment of just compensation as required by the
ate and federal constitutions. The alleged property right for
v ich the riparian owners claimed compensation was the right of
r vigation or, in other words, the right of passing by boat from
]eir property to the adjacent waters of Biscayne Bay.

Sth the trial and appellate Courts ruled in favor of Central and
Southern. The alleged right of navigation was held not to be a
poperty right for which just compensation must be paid when inter-
:red with or impaired by the construction of a dam. The appellate
Surt reasoned that the eminent domain statutes protect only pri-
Ste rights; not rights which accrue to the public as a whole.
Tie right of navigation was held to be a right common to the pub-
.c in general. Riparian owners were held not to possess or own
y additional rights of navigation different or superior to
iose shared concurrently with the public. Accordingly, the
)urt ruled in favor of Central and Southern.

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

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

S1973, during the course of condemnation proceedings, riparian
: ners asserted a claim for compensation based upon the fact that
instruction of the proposed salinity barriers upstream from their
coperty 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.

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







SGIet ONS, T CKER. McEWEN. Sai CH. COFER & TAUB CONTINUING OUR LETTER OF
January 12, 1976
SHEET NO.
-3-


A UMBER OF POTENTIAL PROBLEM AREAS STILL REMAIN TO BE RESOLVED.
U n review of my research materials, it became apparent that a
n er of additional matters still need to be resolved, namely:
1. Acquisition of title to the bottomlands beneath the
ructure.
2. Acquisition of necessary additional permits.
3. Decision as to effect of structure on the water line
stream. If lands of riparian owners upstream or downstream are
ing to be flooded by the structure, condemnation may be necessary.
4. Consideration of costs/benefits of a boat lift or "lock"
cility. I do not recommend that no consideration be given to
boat lift or "lock" facility. On the contrary, I recommend that
is be analyzed in detail. If the proposed structure is seriously
alleged, the absence of a boat lift or "lock" type facility
would be clearly supported by previous investigation and decision
the Board.

ry truly yours,



omas E. Cone, Jr.


EC:lsc




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