Title: District Courts of Appeal - Real Property-One Who Has No Rights in Artificial Canal Greater Than Rights of Public Generally Has No Standing to Complain of Improper Exercise of Riparian Rights by Owners of Property Abutting Canal-Unincorporated Association Owning No Property is Without Standing
CITATION THUMBNAILS PAGE IMAGE ZOOMABLE
Full Citation
STANDARD VIEW MARC VIEW
Permanent Link: http://ufdc.ufl.edu/WL00004491/00001
 Material Information
Title: District Courts of Appeal - Real Property-One Who Has No Rights in Artificial Canal Greater Than Rights of Public Generally Has No Standing to Complain of Improper Exercise of Riparian Rights by Owners of Property Abutting Canal-Unincorporated Association Owning No Property is Without Standing
Physical Description: Book
Language: English
Publisher: Judicial and Administrative Research Associates, Inc.
 Subjects
Spatial Coverage: North America -- United States of America -- Florida
 Notes
Abstract: Jake Varn Collection - District Courts of Appeal - Real Property-One Who Has No Rights in Artificial Canal Greater Than Rights of Public Generally Has No Standing to Complain of Improper Exercise of Riparian Rights by Owners of Property Abutting Canal-Unincorporated Association Owning No Property is Without Standing (JDV Box 86)
General Note: Box 22, Folder 5 ( Administrative Orders, Dist. Courts of Appeal, Judicial Opinions - 1982 ), Item 5
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
 Record Information
Bibliographic ID: WL00004491
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


DISTRICT COURTS OF APPEAL


Real Property-One Who Has No Rights in Artificial,
SNavigable Canal Greater Than Rights of Public General-
ly Has No Standing To Complain of Improper Exercise
of Riparian Rights by Owners of Property Abutting
Canal-Unincorporated Association Owning No
Property is Without Standing

JOHN G. IMMER, individually and for and on behalf of the owners of
property in THE MOORINGS SUBDIVISION, and THE MOORINGS
PROPERTY OWNERS ASSOCIATION v. ALBERT L. WEINTRAUB
and SARA LEE WEINTRAUB, his wife; JONATHAN KISLAK;
MORTON VARAT and ANITA VARAT, his wife; and HAGEN V.
TAUDT and ROSEMARIE TAUDT, his wife. 3rd District, Case No.
80-1231. March 16, 1982. Appeal from the Circuit Court for Dade
County, Friedman, Judge. Adams & Ward and Robert C. Ward, for
appellants. Philip T. Weinstein; Michael J. Freeman; Fine, Jacobson,
Block, Klein, Colan & Simon and Stuart L Simon; Silverstein & Hellman,
for appellees.
(SCHWARTZ, J.) As the owner of a non-abutting lot in the
Moorings subdivision who was granted by dedication the right
to the "use and enjoyment" of an artificial but navigable canal
within the boundaries of the subdivision to the east of his prop-
erty, the plaintiff-appellant Immer possessed no rights in or to
the canal beyond those possessed by the public generally. Game
and Fresh Water Fish Commission v. Lake Islands, Ltd., 407
So.2d 189 (Fla. 1981); Silver Blue Lake Apts., Inc. v. Silver Blue
Lake Home Owners Ass'n, 245 So.2d 609, 615 (Fla. 1971)
(Ervin, C.J., dissenting); 65 C.J.S. Navigable Waters Sec. 1
(1966). Accordingly, he did not have standing to maintain the
instant action, which complains that the defendants, who own
parcels which are not within the subdivision, but which abut the
canal on the opposite or east side, are improperly exercising
riparian rights of access by maintaining docks and boats in the
waterway. See Alden v. Pinney, 12 Fla. 348, 390 (1869);
Sullivan v. Moreno, 19 Fla. 200, 220 (1882).1
The other plaintiff, the Moorings Property Owners Associa-
tion, is an unincorporated association which itself owns no prop-
erty whatever and thus all the more clearly may not assert such
a claim. See United States Steel Corp. v. Save Sand Key, Inc.,
303 So.2d 9 (Fla. 1974); Hemisphere Equity Realty Co., Inc.
v. Key Biscayne Property Taxpayers Ass'n, 369 So.2d 996, 1001
(Fla. 3d DCA 1979).
On the sole ground of lack of standing-and specifically
without deciding the substantive issue of whether the defendants
in fact possess riparian rights to the canal-the judgment entered
below is therefore Affirmed.
(Ferguson, J., concurs. Ezell, Boyce F., Jr., (Ret.), AJ.,
concurs in part and dissents in part.)

1. It should be noted that the riparian owners in the Moorings sub-
division, whose lots on the west bank face the defendants' across the
canal, all filed specific disclaimers of interest in this litigation. See
Alden v. Pinney, supra, indicating that these owners could maintain
the action; cf. 65 C.J.S., supra, Section 75.

Ezell, Boyce F., Jr. (Ret.), A.J. concurring in part and dissenting
in part: I concur with the majority opinion insofar as it affirms
the trial court's finding that the Moorings Property Owners
Association, an unincorporated association, owning no property
whatever in the Moorings subdivision did not have standing to
maintain the instant action. H. Trawick, Fla.Prac. & Proc. Sec.
4-2 (1979 ed.); 24 Fla. Jur. Parties, Section 7, p. 188; U.S. Steel
Corp. v. Save Sand Key, Inc., 303 So.2d 9 (Fla. 1974); Hemis-
phere Equity Realty Co., Inc. v. Key Biscayne Property Tax-


payers Association, 369 So.2d 996, 1001 (Fla. 3d DCA 1979).
However the majority opinion fails to resolve or treat the issue
decided by the trial court that the appellees, Albert L. Wein-
traub, et al., possess riparian rights to the artificial navigable
waterway in Coconut Grove, Florida known as "The Mobrings
Canal."
In 1925, Henry C. Shimp, the owner of a tract of land in
Coconut Grove that abutted on Biscayne Bay, conveyed his
property to his own corporation known as The Moorings, Inc.
In that same year, The Moorings, Inc., platted the property,
indicating that a canal and yacht basin were to be dug on the
property. The work on the canal and basin commenced in
March, 1926, and was completed in April, 1927. By deed dated
April 19, 1929, The Moorings, Inc., sold to Harriet Parsons
James all of the land located on the north side of the canal.
The legal description in the deed made no reference to riparian
rights vis-a-vis the canal. The deed, however, granted to James
"all tenements, hereditaments and appurtenances, with
every privilege, right, title, interest and estate reversion,
remainder and easement thereto belonging or in anywise
appertaining." [Emphasis supplied.]
Following its conveyance to James, The Moorings, Inc.,
filed a revised plat of The Moorings, eliminating from the
Moorings Subdivision the property that had been conveyed to
James and dedicating the streets, avenues, ways, yacht basin
and canal "to the free and perpetual use and enjoyment of
the present or future owner or owners of any and all of the
lots in the said 'The Moorings'." James was not a party to
the revised plat.- In January, 1930, James recorded a plat
called Four-Way Lodge, which encompassed the lands con-
veyed by The Moorings, Inc., to her together with other lands
owned by James. Appellees are the present owners of por-
tions of the land conveyed by The Moorings, Inc., to James.
Pursuant to appellant's suit to enjoin appellees from the
riparian use of the navigable canal abutting their lots, the trial
court ruled that the deed of conveyance from The Moorings,
Inc., to James carried and conveyed riparian rights as such
rights were not-expressly excepted or reserved in the convey-
ance. Appellant's prayer for injunctive relief was denied and
he appealed.
A deed of conveyance to lands abutting a navigable water-
way, containing no exclusion of riparian rights, effectively
conveys riparian rights to the grantee. See, Florida East
Coast Ry. Co. v. Worley, 49 Fla. 297, 38 So. 618 (1905);
City of Eustis v. Firster, 113 So.2d 260 (Fla. 2d DCA 1959).
The Moorings, Inc. undisputably conveyed property abutting
a navigable waterway to James by a deed containing no reser-
vation of riparian rights. In fact, the deed in question con-
veyed to James "... all... appurtenances" attaching to the
land. It is clear that riparian rights are part of the bundle of
rights which are appurtenant to lands bordering navigable
waterways. In Pike Rapids Power Co. v. Minneapolis, St. P. &
S.S.M.R. Co., 99 F.2d 902,908 (8th Cir. 1938), cert. denied,
305 U.S. 660, reh. denied, 306 U.S. 667, cert. denied, 306 U.S.
640 (1939), it was noted that
"... at common law the owner of land bordering on a
navigable stream has certain exclusive rights to the use of
the bed of the stream adjacent to his land and to the use of
the water flowing thereover. Such rights are called riparian
rights, and are said to be appurtenant to the title to the
abutting land. A deed conveying the fast land on the shore
carries title to the appurtenant riparian rights." [Emphasis


THE FLORIDA LAW WEEKLY is a publication of Judicial and Administrative Research Associates. Incorporated.


3/26/82


I







3/26/82


supplied.]
This general proposition has been recognized in Florida. See,
City of Eustis v. Firster, supra, at 261 ("... Riparian rights
appurtenant to lands bounded by navigable waters are derived
from the common law as modified by statute...").
Appellant claims, however, that riparian rights are not con-
veyed by virtue of a deed to land abutting an artificially created
body of water, unless such rights are expressly granted. Appel-
lant relies on cases dealing with the denial of public rights in
artificially-created waterways. Appellees, however, are not
claiming a public right of access to the canal at issue in this case,
but rather are relying on their riparian rights as abutting
landowners.2
Appellant's reliance on Silver Blue Lake Apartments, Inc. v.
Silver Blue Lake Home Owners Association, Inc., 245 So.2d 609
(Fla. 1971), is totally misplaced. The developer of the artificial,
non-navigable lake and abutting property in Silver Blue deeded
the lake bottom by means of a deed containing a clause restrict-
ing the use of the lake to members of the Home Owners' Associa-
tion in return for the Association's agreement not to contest the
developer's rezoning application. The court in that case proper-
ly determined that tenants of an apartment building abutting
the lake could not have unrestricted use of the lake. The dis-
tinction between Silver Blue and the instant case could not be
more apparent. Initially, it should be noted that the court in
Silver Blue was dealing with a non-navigable, landlocked lake.
Secondly, it is undisputed that the initial owner of the abutting
land, on which the tenants resided, had subjected the land to
a deed restriction in favor of the Home Owners' Association. No
restrictions existed in the deed to James in the instant case, nor
can such restrictions be implied.
Appellant has cited several decisions recognizing distinctions
between artificial and natural bodies of water, insofar as the
application of riparian rights is concerned. Yet, no such dis-
tinctions have been drawn, nor could be drawn, as to navigable
bodies of water, whether artificial or natural.3
It was within the power of The Moorings, Inc., to have ex-
cluded riparian rights to the canal in its deed to James, and its
failure to dp so vested James and her successors in title with
said rights.

1. The evidence introduced in the lower court showed that a seawall
was constructed along the banks of the canal on appellees' property. We
find no legal significance in the construction of this seawall as it affects
appellees' riparian rights.
2. Moreover, it has been long recognized that,
"Where owners of different parcels of land conduct water across
the same in an artificial channel, and do not define their respective
interests in the water, their reciprocal rights thereto are to be
measured and determined as if they were riparian owners upon a
natural stream." Bollinger v. Henry, 375 S.W.2d 161, 166 (Mo.
1964).
This principle is analogous to the case at bar. The Moorings, Inc.'s
failure to specifically exclude riparian rights in its deed to James requires
a determination of the parties' rights in the canal as if the parties were
riparian owners upon a natural water course.
3. Appellees cite to Section 197.228(1), Fla.Stat. (1979), which
expressly provides that, "Riparian rights are those incident to land
bordering upon navigable waters ... They are appurtenant to and are
inseparable from the riparian land... Conveyance of title to or lease
of the riparian land entitles the grantee to the riparian rights running
therewith whether or not mentioned in the deed or lease of the upland."
Although I do not base my decision on the foregoing statute, I feel that
it is an accurate codification of the common law.
4. See, e.g., Montgomery v. Carlton, 99 Fla. 152, 162, 126 So. 135,
139 (1930), where it was noted that, "It is a general principle running
through the law pertaining to the construction of deeds that they are to


. be construed most strongly against the grantor and most beneficially
for the party to whom they are made..."
*

Contracts-Misrepresentation Relating to Future
Act is Not Actionable Fraud


RONALD R. SLEIGHT v. SUN AND SURF REALTY, INC. 3rd
District, Case No. 80-2400. March 16, 1982. Appeal from the Circuit
Court for Dade County, Silver, Judge. Lee, Schulte, Murphy & Coe
and Jack M. Coe, for appellant. Maurice Jay Kutner, for appellees.

(JORGENSON, J.) Ronald Sleight, defendant below, appeals
from an adverse judgment following a jury trial awarding Sun
and Surf Realty, plaintiff below, $20,000 actual damages and
$100,000 punitive damages. The alleged cause of action
arose out of a real estate commission agreement involving the
sale of the Hurricane Motor Lodge in Monroe County, Florida.
Count 2 of the amended complaint (the only count involving
Mr. Sleight) sounded in common law fraud and conspiracy to
defraud. Evidence adduced during the course of the trial
disclosed that the cooperating brokers had agreed to a reduced
commission of $20,000 (secured by a promissory note) which
was to be paid some six months after the closing. The closing
occurred on February 1, 1978. Neither broker took any ac-
tion to collect the commission until after August, 1978.
Florida law is well-settled that a misrepresentation must
ordinarily relate to a past or existing fact to be the basis of a
claim for relief sounding in fraud. Upchurch v. Mizell, 50 Fla.
456, 40 So. 29 (1905). A false statement amounting to a
promise to do something in the future is not actionable fraud.
Stoler v. Metropolitan Life Insurance Co., 287 So.2d 694
(Fla. 3d DCA 1974); Evans v. Gray, 215 So.2d 40 (Fla. 3d DCA
1968), cert. denied, 222 So.2d 748 (Fla. 1969); 27 Fla.Jur.2d,
"Fraud and Deceit" Sec. 24. The record before us is entirely
devoid of any evidence to support a theory of fraud or con-
spiracy to defraud. Accordingly, the judgment below is re-
versed and this cause is remanded with directions to enter
judgment for appellant.
Reversed and remanded with directions. (Hendry, Baskin &
Ferguson, JJ., Concur.)


Criminal Law-Juveniles-Grand Larceny-Failure
to Prove Value of Stolen Goods

G. B., a juvenile, v. STATE. 3rd District, Case No. 81-556. March 16,
1982. Appeal from the Circuit Court for Dade County, Adele Segall
Faske, Judge. Bennett H. Brummer, Public Defender and Robert R.
Schrank, Assistant Public Defender, for appellant. Jim Smith, Attorney
General and Steven R. Jacob, Assistant Attorney General, for appellee.

(PER CURIAM) G.B., a juvenile appeals from an adjudication
of delinquency for burglary and grand larceny. The State con-
cedes the only point on appeal, i.e., that the adjudication
should be reduced to petit larceny because the State failed to
prove that the property G.B. was charged with stealing had a
value of $100.00 or more as required by Section 812.014,
Florida Statutes-(1979).
Accordingly we affirm the adjudication of delinquency for
burglary and remand to the trial court for purposes of reducing
the adjudication of delinquency for grand larceny to an adjudi-
cation of delinquency for petit theft.
(Hendry, Baskin and Ferguson, JJ., concur.)
*


THE FLORIDA LAW WEEKLY is a publication of Judicial and Administrative Research Associates. Incorporated.
1327 North Adams Street. Post Office Box 4284. Tallahas.ee, Florida 32303. Phone (904) 222-3171.
---- -- ----.-----------------------------I


DISTRICT COURTS OF APPEAL


--F





a I




University of Florida Home Page
© 2004 - 2010 University of Florida George A. Smathers Libraries.
All rights reserved.

Acceptable Use, Copyright, and Disclaimer Statement
Last updated October 10, 2010 - - mvs