Title: Memorandum re Background information relating to public lands, beaches, and related topics
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Permanent Link: http://ufdc.ufl.edu/UF00052651/00001
 Material Information
Title: Memorandum re Background information relating to public lands, beaches, and related topics
Alternate Title: Florida Legislative Council and Legislative Reference Bureau. Memorandum re Background information relating to public lands, beaches, and related topics by Jim Lowe, Legal Analyst. Seaward Limits of Upland Ownership, Nature and Effect of General Riparian
Physical Description: Book
Language: English
Spatial Coverage: North America -- United States of America -- Florida
General Note: Box 5, Folder 11 ( SF MEAN ANNUAL FLOOD ), Item 15
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
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Bibliographic ID: UF00052651
Volume ID: VID00001
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,A ND" '32304
c / .AND ---
TELEPHONE 224-9111

.'.: December 4, 1968


Re: Background information relating to public
lands, beaches, and related.topics

From: Jim Lowe, Legal Analyst

The following are brief background statements
designed to give an acquaintance with the terms and
legal considerations commonly involved in the develop-
ment of legislation relating to public lands, beach
erosion and related topics:


"Sovereignty lands," which are more
specifically described by statute as "sovereignty tidal
and submerged bottom lands," (253.12, F. S.), are lands
lying under the navigable waters of the state which are
owned by the state by virtue of its sovereignty. Such
lands include the shores or spaces, if any, between
ordinary low watermark and ordinary high watermark. With
certain exceptions such lands include all islands, sand-
bars, and all shallow banks located in the navigable
waters of the state, including all coastal and intracoastal
waters. Trustees of I.I. Fund v. Claughton (1956, Fla.)
86 So. 2d 775.

"Upland" property or "riparian upland property"
is that property which is landward of the mean high water
mark, and is most commonly known as waterfront property.

"Shores" or "Tidelands" are lands that are
daily covered and uncovered by the ordinary ebb and flow
of normal tides of the public navigable waters of the
state. Accordingly, the shores of the navigable waters
that the state holds for the use of the public are those
lands that border on such navigable waters and lie between
ordinary high and low watermarks. The term "shores,"
however, does not include lands that do not immediately
border on such navigable waters. Nor does the term include
lands that are covered by waters that are not susceptible
of navigation for useful public purposes, such as mud flats,
shallow inlets, and lowlands covered more or less by waters,


either permanently or at intervals, where such waters are
not, in their .ordinary condition, useful for public navi-
gation. Lands not covered by navigable waters and not
included in. the shore space between ordinary high and low
watermarks immediately bordering on navigable waters are
subject to private ownership, at least when the public
rights of navigation, etc., are not thereby unlawfully
impaired. State ex rel. Ellis v. Gerbing 56 Fla. 603, 47
So. 353 (1908); Clement v. Watson 63 Fla. 109, 58 So. 25

"Mean high watermark" is defined by the United
States Coast and Geodetic Survey as the average height of
all the high waters at a particular place over a consider-
able period of time. Due to theoretical considerations of
an astronomical character, the mean high tide line should
be established on the basis of an average of 18.6 years.

Under certain circumstances the line of mean
high water is difficult to ascertain. Nevertheless,
whenever the duty of determining it is imposed or assumed,
the best evidence obtainable and the best methods available
must be utilized. Thus, marks on the ground or on local
objects that are more or less permanent may be considered
in connection with competent testimony and other evidence
in making such determination.

Whenever the line of ordinary high watermark
is duly explained and established by competent authority,
that line should be regarded as the true line, unless it
is impeached for fraud or mistake. Adkins, Fla. Real
Property Law 88.02, and Martin v. Busch (1927) 93 Fla.
535, 112 So. 274.


Section 271.09, F. S., defines riparian rights
in Florida. Generally "riparian rights" are those incident
to land bordering upon navigable waters. They are rights
of ingress, egress, boating, bathing and fishing and such
others as may be or have been defined by law. Among the
common law rights of those who own land bordering on
navigable waters, apart from rights of accretion and
reliction (see Number 3 below), are the right of access
to the water from the land for navigation and other purposes
expressed or implied by law, the right to a reasonable use
of the water for domestic purposes, the right to the flow
of the water without serious interruption by upper or lower
riparian owners or others, the right to have the water kept
free from pollution, the right to protect the abutting
.property from trespass and from injury by the improper use


of the water for navigation or other purposes, the right
to prevent obstruction to navigation or an unlawful use
of the water or of the shore or bed that specially injuries
the riparian owner in the use of his property, the right to
use the water in common with the public for navigation,
fishing and other purposes in which the public has an
interest. A riparian owner has a right to enjoin in a
proper proceeding the unlawful use of the public waters or
the land thereunder including the shore which is a part of
the bed, when such unlawful use operates as a special injury
to such riparian owner in the use and enjoyment of his
riparian lands. A more detailed discussion appears at
34 Fla. Jur., Water and Watercourses, pp. 257-295, Adkins,
Fla. Real Estate Law 88.01-88.05, and in the article
"Riparian Rights in Florida," by Richard Hunt, 8 Fla. Law
Review 393.


Riparian owners may find their property enlarged
or decreased by the gradual processes of accretion or erosion.
"Accretion," broadly defined, is the increase of riparian
land by the gradual deposit by water of solid materials. There
is no accretion where the addition to land is caused artifi-
cially. "Erosion" is the opposite of accretion, or the
decrease of riparian land by the gradual working of the water
upon it. Riparian land may also become enlarged or decreased
where the water recedes or rises by a gradual and imperceptible
natural process. This process is known as "reliction" or
"dereliction." Under all these circumstances the descriptive
boundaries of the riparian owner actually change. It is
possible that such an owner could, over the years, lose his
entire lot through erosion. See Municipal Liquidators v.
Trench 153, So. 2d 728 (1963).

These gradual processes are to be distinguished from
"avulsion" which is defined as a sudden and perceptible loss
or addition to land by extreme action of the elements, or
the sudden change in the course or bed of a stream. In such
an instance the boundaries of property owners do not change.
A very interesting case on this point is Siesta Properties v.
Hart (1960) 122 So. 2d 218.


The 1965 Florida Legislature revised Chapter
161, F. S., the Beach and Shore Preservation Act, by making
the State Board of Conservation responsbile for issuing
permits to persons, towns, etc., desiring to make coastal
construction for shore protection such as sea walls, groins,


jetties, etc. The Board is authorized to enforce rules
governing proper construction. A system of procedures
for erosion control was established and participation in
federal projects authorized. Two or more counties having
beach preservation districts may organize cooperative

Additions or accretions to the upland caused by
erection of improvements or erosion control structures
under the provisions of Chapter 161, F. S. (Beach and
Shore Preservation Act), remain the property of the state
unless previously conveyed.

Some common shore or channel protection devices
are as follows:

(a) "Groins" are shore protection devices,
usually built perpendicular to the shoreline, for widening
or protecting a beach by trapping sand or by retarding
loss of beach materials. Groins are relatively narrow and
may extend from less than 100 feet to several hundred feet
into the surf from a point well landward of any possible
shoreline recession.

(b) "Jetties" differ from groins in that they
are much longer and much more massive. They are placed
in the entrances of harbors to protect the channels used
by ships.

(c) "Revetments" are facings of stone, concrete,
etc. built to protect a shore or beach against erosion.
Like seawalls they protect both the'land and improvements
from damage by waves. However, revetments are not retaining
walls. They are sloping structures which are supported by
the earth behind them. The lower or seaward portion is
generally stepped to break up and reduce wave action.


(a) Offshore activities:

The Butler Bill or 1921 Act which granted
riparian upland owners on navigable streams the title
to submerged lands from the edge of the channel to the
high watermark, and which was interpreted to provide that
such an owner who fills and bulkheads such submerged lands
matures a provisional grant into an absolute title, was
repealed in 1951 as to all counties but Dade and Palm Beach
and as to these also in 1957, when the Trustees of the
Internal Improvement Fund were given the power to regulate


the filling of such lands. Section 253.129, F. S., provides
the procedure for the fixing of bulkheads and for making
application for the filling of lands.

A "bulkhead line" is an imaginary line which places
a seaward limitation upon the artificial filling and develop-
ment of submerged sovereignty lands. When bulkhead lines
are established under the provisions of Chapter 253, lands
lying between the mean high water line and the bulkhead line
may be sold only to the upland riparian owner and to no other

Generally, the board of county commissioners or other
local authority under authority of the Trustees of the Internal
Improvement Fund, has the power to set bulkhead lines and grant
applications for the filling of land. However, the 1967 Legis-
lature, in adopting the "Randell Act" required the consideration
of biological and ecological surveys prior to the selling of
submerged lands, the setting of bulkhead lines or the granting
of dredge and fill permits. These surveys are designed to
determine the value of a particular area of submerged land in
terms of marine productivity.

A "dredge and fill permit" not only allows an upland
owner to fill submerged lands, within the bulkhead line, which
he has purchased from the state, but ordinarily allows him
to obtain or "dredge" the necessary fill material from adjacent
state owned submerged land. The area from which this fill
material is dredged is known as a "borrow area" or "borrow pit."

Controversy over the approval of a bulkhead line or
the granting of a dredge and fill permit most commonly arises
when an "estuary" or "estuarine area" is involved. An "estuary"
is an area where the salt water of the ocean or gulf is
affected by and mingles with a source of fresh water, such as
at the mouth of a river. The resulting mixture of salt and
fresh, or "brackish" water creates a highly productive area
for marine life.

(b) Upland activities:

Sections 161.051 and 161.061, F. S., provide for
regulation and possible removal of coastal construction which
extends below the mean high watermark, and thus, over
sovereignty lands. As to the question of regulating upland
structures above high watermark, see Op. Atty. Gen. 65-119.
It was there stated that there appears to be no specific
statutory authority which would allow the Florida Board of
Conservation to regulate coastal construction above the mean
high water line on privately owned property, even though
such construction would have a material physical effect on
existing coastal conditions or have an adverse effect on
public interests.


The establishment of a construction setback line
would provide statutory authority for the regulation of
coastal construction above the mean high water line. A
"construction setback line" is an imaginary line which
places a limitation on the proximity of upland construction
to the mean high water line, in much the same way as
"building lines" limit inland construction to so many feet
from the property line.


In addition to the terms discussed above,
there are several others which are likely to be encountered:

(a) "Littoral drift" is the flow of sand along the
shore line caused by wave action and the prevailing winds.
It is generally in a North to South direction, and most
often spoken of in relation to the Atlantic Coast. Sand
is continually being withdrawn from beaches "upstream" and
being deposited on other beaches "downstream." A groin or
jetty will interupt the littoral drift and cause a buildup
of beach material.

(b) A "sand transfer plant" is a mechanical means
of moving sand across the mouth of an inlet. Generally such
a plant would employ a dredge and pipeline to transfer sand
trapped on the updrift side of a jetty to a point on the
beach on the downdrift side of the inlet.

(c) "Spoil" is generally excavated or dredged
material which is removed from an inlet or channel to aid
navigation. Though for navigational purposes it is something
which must be gotten rid of, it is often desirable beach
material which could be used to replenish eroded beaches.

(d) "Beach nourishment" is simply the furnishing
of new or additional sand or other beach material to an
eroded beach in order to rebuild it to its previous pro-
portions or to maintain it against further erosion.

(e) The "bluff line" is a natural line along the
top of a bluff which is commonly at or near the landward
extent of a beach. It is sometimes contended that no
construction should be allowed between the bluff line and
the water, because of the unstable beach surface which is
subject to shifting and eroding and also because the
existence of such structures accelerates erosion between
them and the water as well as on adjacent beaches.



The question of the extent of Florida's Gulf
Coast boundaries was finally settled by the United
States Supreme Court in the case of United States v.
Florida (1959), 363 U. S. 121, which held "that the
Submerged Lands Act (of 1953) grants Florida a three-
marine-league belt of land under the Gulf, seaward
from its coastline, as described in Florida's 1868
Constitution." A certain amount of confusion remains
in this area, however, primarily because it is difficult
to determine where the Atlantic Coast meets the Gulf
Coast in Monroe County, and also because in 1962 the
people adopted a new Article I (Boundaries) to Florida's
Constitution which appears to have made a significant
change in the wording around which this problem revolves.
The boundaries section of the new revised Constitution
was designed to place the state in the most advantageous
possible position with respect to historical boundary


County boundaries, at least for certain purposes,
appear to extend seaward as far as the state boundaries.
In the case of Lipscomb v. Kaloroukas (1931) 133 So. 104,
which involved the jurisdiction of Taylor County over a
case relating to the taking of commercial sponges, it was

"Section 1 of Article 8 of the Constitution pro-
vides as follows:

'The State shall be divided into political
divisions to be called counties.'

It therefore appears that all of the State of
Florida was required to be divided into counties, and
therefore it must be construed that counties bordering
on the Gulf of Mexico include that area within the gulf
adjacent to the upland and out to the state boundary line.
Unless otherwise provided by statute, the rule applying to
the territorial boundaries of riparian rights should be
applied to locating the boundary lines of counties from
the shore line to the state line in the gulf, and that
is that upon reaching the high-watermark the line is
extended into the water at right angles with the shore

This same provision was restated in Section 1 of
Article VIII of the new revised Constitution.

It is interesting to note that if, in fact, county
boundaries extend at right angles to the shore line, some
counties which are not otherwise contiguous, may be so as
to their offshore boundaries.

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