Title: District Courts of Appeal - Real Property-Riparian Rights-Land Owner Whose Land Adjoins Artificial Non-Navigable Lake and Includes a Portion of the Lake Bed Has Right to Reasonable Use of Entire Lake
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Title: District Courts of Appeal - Real Property-Riparian Rights-Land Owner Whose Land Adjoins Artificial Non-Navigable Lake and Includes a Portion of the Lake Bed Has Right to Reasonable Use of Entire Lake
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Spatial Coverage: North America -- United States of America -- Florida
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Abstract: Jake Varn Collection - District Courts of Appeal - Real Property-Riparian Rights-Land Owner Whose Land Adjoins Artificial Non-Navigable Lake and Includes a Portion of the Lake Bed Has Right to Reasonable Use of Entire Lake (JDV Box 86)
General Note: Box 22, Folder 5 ( Administrative Orders, Dist. Courts of Appeal, Judicial Opinions - 1982 ), Item 4
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DISTRICT COURTS OF APPEAL 669


,onpanies' standing had been rebuffed and that, although it is
true, as the order states, the service companies had two oppor-
tunities to file amended petitions, neither of these amendments
had dealt with the question of standing; this may well have been
because the prior rulings indicated no need to do so. Evidence
presented at the hearing included references to portions of the
rules which affect the service companies' ability to obtain or re-
tain certification by the Department of Labor and Employment
Security and information relevant to those provisions. See, e.g.,
Rule 38F-5.40 and 38F-5.41. Under these circumstances, we
think petitioners should have been given another opportunity
to amend their petition.
The remaining question is whether the dismissal of St.
Joseph's Hospital, Inc., the self-insured intervenor was proper.
Alice P. specifically held that the 14 day period in which a peti-
tion must be filed is jurisdictional and a subsequent attempt to
add parties cannot give validity to an otherwise invalid proceed-
ing. Thus, the dismissal of St. Joseph's was proper at the time.
Under the circumstances of our ruling concerning giving the
service companies an opportunity to amend, it follows that if
the service companies fail to establish that they have standing,
St. Joseph's will likewise have no standing. If the service com-
panies succeed in establishing standing, then the motion to add
St. Joseph's as a party should be reconsidered on the merits at
that time.
AFFIRMED in part, REVERSED in part, and REMANDED
for further proceedings consistent with this opinion.
(Booth and Shivers, JJ., Concur.)

*

"Real Property-Riparian Rights-Land Owner Whose
Land Adjoins Artificial Non-Navigable Lake and
Includes a Portion of the Lake Bed Has Right to
Reasonable Use of Entire Lake


HERBERT C. ANDERSON and JOAN ANDERSON v. SAM BELL,
GEORGE BELL and JAMES E. ESTES. 1st District. Case No. XX-279.
March 25, 1982. Ah Appeal from the Circuit Court for Leon County.
Hartwell, Judge.
W. J. Oven, Jr. of Oven, Gwynn & Lewis, Tallahassee, for Appellants.
Gordon D. Cherr of Frates, Jacobs, Farrar, Novey, Blanton & Poole, Talla-
hassee, for Appellees.

(JOANOS, J.) Appellants seek review of a declaratory judgment
in which the lower court determined they did not have exclusive
rights to a man-made lake and the subsequent denial of an injunc-
tion which would have prohibited appellees from using that
portion of the lake which overlies the land owned by appellants.
We affirm.
In 1965, appellants purchased a large tract of land containing
a small non-navigable creek which led to the center of the prop-
erty where a low swampy area was located. Appellants excavated
the area, cleared the land, secured an easement from adjacent
land owners, and constructed an earthen dike across the creek.
The flooding that resulted became a lake that has existed for
fourteen years. The resulting lake inundated a large part of
appellants' property as well as a portion of the property owned
by the adjacent land owners. In the easement deed the adjoining
land owners retained "title to and beneficial use of all said lands
S* except for the right to flood portions, thereof .. .." Appellee
George Bell now owns the adjoining land so inundated. The lake
bed is therefore, currently owned by appellants and George Bell.


LL


Appellees Sam Bell and James Estes do not own any land on
the lake but use the lake for fishing by entering the lake from
George Bell's property presumably with his permission. At
some point appellants requested that appellees stop using the
lake. Appellees refused. Subsequently, appellants filed a
declaratory action seeking definition of their right to exclusive
use of the lake and for an injunction prohibiting appellees' use
of that portion of the lake which overlays appellants' flooded
property. The trial court determined appellants do not have
the right to exclude others who have lawful access from the
portion of the lake overlying appellants' property and, there-
fore, declined to issue the injunction.
In Florida, the law as to non-navigable natural lakes has
been clear. Owners of property with portions including part
of a lake bottom have a right to use all of the waters of the
lake so long as they do not unreasonably interfere with the
rights of others. Duval v. Thomas, 114 So.2d 791 (Fla.
1959). While it is not quite as clear, our study of Silver Blue
Lake Apartments, Inc. v. Silver Blue Lake Home Owners
Association, 245 So.2d 609 (Fla. 1971) convinces us that
the same law has been extended to include man-made artifi-
cial lakes.
In Silver Blue Lake, the Supreme Court found valid a restric-
tive covenant limiting use of an artificial lake to members of a
homeowners association. However, the court also stated:
In our view, as an abstract proposition, the right of
owners of a portion of the bed (of an artificial lake, which
is found as a fact from the evidence to be a non-navigable
lake,) to rent their rights to use of the water surface to
tenants of an apartment complex on the land including a
portion of the lake bed, is only the right of lawful and
reasonable use not detrimental to other owners or lawful
users ....
Id. at 612.
We consider the Supreme Court's opinion to reflect that were
it not for the restrictive covenants, the apartment tenants in
that case would have had access to the entire surface of the
artificial and non-navigable lake because their landlord owned
some of the submerged lake bed. Thus, it is implicit in the
opinion that the same rights pertaining to use of a lake exist
in regard to artificial lakes as well as natural lakes.
Although there is no finding below that this lake is non-
navigable, appellants admit the area in its natural state is a
small, non-navigable creek which traverses a low swampy area.
The test for navigability in Florida is whether the waterway
in its natural state can potentially provide for commercial
use. Odom v. Deltona Corp., 341 So.2d 977 (Fla. 1977). This
area obviously could not so provide.
In following the logic enunciated in Silver Blue Lake, we
conclude that a land owner whose land adjoins an artificial
lake and includes a portion of the lake bed enjoys the right
to reasonable, lawful use of the entire lake. We further hold
that fishing and boating are reasonable uses of the lake pro-
vided that those uses do not interfere with the rights of others
similarly situated to enjoy use of the area.
We are aware that our rationale here may conflict with
the reasoning set forth in Publix Super Markets, Inc. v. Pear-
son, 315 So.2d 98 (Fla. 2d DCA 1975). In the Publix case.
the Second District Court of Appeal refused to regard
Silver Blue Lake as extending the Duval principle of riparian
rights to a body of water created by the digging of some
limestone pits. That Court sought to distinguish Silver Blue
Lake from the situation before them on the basis that the


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13:' \onh N\Jm, Sir-ect P0.! Ott.e Bo\ 42~-. Tallah's-ee. Forida 32303 Phone 1904) 22123171


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DISTRICT COURTS OF APPEAL 42/~2


Supreme Court case was concerned with a factual situation in
which ... the water body was specifically incorporated into
the subdivision and the deeds of conveyance to the property
owner fronting the water contained deed restrictions allowing
said owners to use the lake." 315 So.2d at 100. We question
whether the Supreme Court's opinion can be so restricted. How-
ever, we are not required to answer that question. The Publix
case dealt with a property owner's desire to fill in some water
fi;l-d phosphate pits and thereby cutoff a neighboring property
owner's access to the surface waters of some of those pits. Our
opinion here does not involve the issue set forth in Publix which
was brought above when an owner sought to fill in his property
which had been submerged artificially. We note specifically
that Appellees.here do not challenge and have even conceded that
Appellants could fill in their land so there is no more lake. They
merely assert and we agree that so long as the lake exists Appel-
lants cannot prevent adjoining land owners who own a portion
of the lake bottom and their guests from reasonable, lawful use
of the entire lake. We believe that the Silver Blue Lake case
compels that result.
Accordingly, the final judgment below is AFFIRMED.
(Robert Smith, C.J., and Thompson, J., Concur.)

*
Administrative Law-Parole and Probation Commission
-Presumptive Parole Release Date Determination-
Severity Offense Characteristic Required to Reflect
Offense for Which Convicted-Improper to Utilize
Robbery as Aggravating Factor Where Conviction Was
For Attempted Robbery

JAMES LOWE v. FLORIDA PAROLE AND PROBATION COMMISSION.
Ist District. Case No. AE-209. March 25, 1982. An Appeal from an Order
of the Florida Parole and Probation Commission. Charles J. Scriven, Com-
missioner. James Lowe, in proper person, for Appellant. Malcolm S.
Greenfield, General Counsel; and Catherine L. Dickson. Assistant General
Counsel, Florida Parole and Probation Commission, for Appellee.

(PER CURIAM.) On appeal from a determination by the Parole
and Probation Commission setting petitioner James Lowe's pre-
sumptive parole release date (PPRD), he raises a number of
points which merit consideration with regard to the manner in
which the date has been calculated.
Petitioner was convicted of "attempted robbery" (Case No.
79-18326), and in a separate case, he was convicted of "attempted
robbery with a deadly weapon" and other charges (Case No. 79-
19701).
In determining Lowe's PPRD, the Commission correctly
assigned him a salient factor score of seven due to various con-
siderations, including a very lengthy past record. Based on his
salient factor score, he was placed in a high matrix time range,
receiving thirty-nine months because of the "attempted robbery"
conviction (Case No. 79-18326). When a salient factor score of
seven is involved, a matrix time range of 18 to 33 months would
normally be assigned for "attempted robbery"1, but in this
case the Commission apparently took note of a presentence
investigation report that indicated Lowe had been armed while
committing the attempted robbery (Case No. 79-18326). There-
fore, the Commission assigned Lowe to the proper severity
offense characteristic for "attempted armed robbery." See Rules
23-19.01(6); 23-19.05 IV, Fla.Admin.Code. The Commission
then added 18 months outside the matrix time frame, because of
the aggravating factor that, as shown in a presentence investigation


report, although only convicted of "attempted robbery." Lowe
had actually consummated the robbery.
Although we affirm the salient factor score determination,
we find that the PPRD was based on the wrong severity offense
characteristic and use of an improper aggravating circumstance
outside the matrix time frame. The severity offense character-
istic must reflect the offense for which Lowe was convicted.
McKahn v. Florida Parole and Probation Commission, 399
So.2d 476,478 (Fla. 1st DCA 1981); Rule 23-19.01(1), Fla.
Admin.Code. The written judgment in the record indicates
that Lowe was convicted of "attempted robbery," not "at-
tempted robbery (armed)," as reflected by the Commission
action form. Consequently, the Commission is required by its
own rules to assign the severity offense characteristic for
"attempted [unarmed] robbery." Rule 23-19.05 III, Fla.
Admin.Code. Pursuant to Rule 23-19.01(6), Florida Adminis-
trative Code, however, the Commission was justified in placing
Lowe in the offense severity characteristic for unarmed rob-
bery, since he had actually consummated the offense.
The Commission's error herein was in taking notice of the
armed nature of the attempted robbery in determining the
severity offense characteristic and in thereafter aggravating
for consummation of the offense. The consummation of the
underlying offense in cases wherein the prisoner has been con-
victed of an attempt is an improper aggravating factor since
it has already been considered, pursuant to Rule 23-19.01(6),
in setting the severity offense characteristic. Jacobson v. Florida
Parole and Probation Commission, 407 So.2d 611 (Fla. 1st
DCA 1981); Sec. 947.165(1), Fla.Stat. (1979).
Although it was improper for the Commission to consider
the armed nature of the attempted robbery in setting the matrix
time range, the Commission does have the discretion in certain
instances to set a presumptive parole release date outside the
matrix time frame based on an aggravating circumstance in
which a dangerous weapon has been used in the commission
of a crime. Rule 23-19.03(1)(a)1, Fla.Admin.Code.
Lowe further complains that the Commission's action form,
a typewritten document, notes that this is Lowe's third
attempted armed robbery. In fact, Lowe asserts that he
has been convicted of only two attempted armed robberies.
However, the Commission argues that there was merely a
transcriber's error made in transcribing information from the
handwritten Commission voting sheet to the formal action
form; that the handwritten voting sheet indicates that the
assignment of 39 months was based on the fact that this
was petitioner's second attempted armed robbery and that the
Commission will correct the transcription error on remand, if
so ordered.
We have considered the other points raised by appellant and
find them to be without merit.
AFFIRMED in part and REVERSED in part with direc-
tions to establish appellant's PPRD consistent with this
opinion. (McCord, L Smith, and Wentworth, JJ., Concur.)

1. Rule 23-19.05 IV. 10., Florida Administrative Code, specifies
a matrix time range of 24 to 39 months for an individual with a
salient factor of 7 for conviction of unarmed robbery. Lowe, having
been convicted of attempted robbery, would be placed in the next
lowest offense characteristic as noted in Rule 23-19.05 III, Florida
Administrative Code, because Rule 23-19.01(6), Florida Administrative
Code, requires attempts to be scored one severity offense characteris-
tic lower than the underlying offense.
*


THE F.(ORII)A I.AW \VIKI .Y is a piulhlication of ludlcil.l and \dilin sIlra;live Research Associates, Incorlporatd.
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4, _2 118 22


DISTRICT COURTS OF APPEAL




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