Title: Board of Trustees of the International Improvement Trust Fund v. Sand Key Associates, Ltd.
Full Citation
Permanent Link: http://ufdc.ufl.edu/WL00000898/00001
 Material Information
Title: Board of Trustees of the International Improvement Trust Fund v. Sand Key Associates, Ltd.
Physical Description: Book
Language: English
Spatial Coverage: North America -- United States of America -- Florida
Abstract: Board of Trustees of the International Improvement Trust Fund v. Sand Key Associates, Ltd. 12 FLW 349 (Fla. Sup. Ct. July 9, 1987) By L.M. Buddy Blain and Hallie S. Evans
General Note: Box 7, Folder 3 ( Vail Conference 1988 - 1988 ), Item 69
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
 Record Information
Bibliographic ID: WL00000898
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


HALLIE S. EVANS (813) 223-3888
Board of Trustees of the Internal Improvement Trust Fund v.
Sand Key Associates, Ltd.,
12 FLW 349 (Fla. Sup. Ct. July 9, 1987).
By L. M. Buddy Blain and Hallie S. Evans

The Florida Supreme Court has reaffirmed the long-standing
principle of water law that an upland owner owns any accretions
to the upland that are formed gradually and imperceptibly. This
rule applies when the gradual and imperceptible accretion of land
results from natural forces. The rule also applies when the
accretion results from artificial forces-even when the artificial
means are part of a state project-so long as the upland owner did
not cause or participate in the activity that led to the

This basic principle of water law, known as the legal doctrine of
reliction and accretion, had been under attack from the state of
Florida. In several cases, the state has argued that an upland
owner does not have a vested right to accreted land (land
gradually and imperceptibly built up by the deposit of soil) or
Srelicted land (land exposed gradually and imperceptibly by the
recession of the water) if: (a) the land resulted from any
artificial activities, regardless of the landowner's non-
involvement; and (b) if the land resulted from state projects.
The state's arguments were apparently accepted by some
intermediate appellate courts, although never in cases where the
issue of land ownership was clearly presented.

This case is significant to Florida water law. Although the
facts involved accretion to coastal property, the same principle
should apply to reliction or accretion to uplands on rivers or
lakes. The case simply reaffirms a basic principle of property
law-that upland ownership embodies vested rights of accretion and
reliction-and a basic principle of water law-that the legal
boundary follows gradual and imperceptible changes in the
ordinary (fresh, non-tidal water) or mean (tidal) high water
line. Nevertheless, the court's majority opinion elicited a
sharp and blistering dissent by Justice Ehrlich, in which Chief
Justice McDonald joined. The majority was composed of Justices
Overton (who wrote the opinion), Shaw, and Barkett, and Retired
Justice Adkins.


Sand Key Associates, Limited (Sand Key) owns oceanfront property
<^1 on Sand Key in Pinellas County. In 1974, the state constructed a
jetty one-half mile north of Sand Key's land; this gradually and
imperceptibly caused the accretion of some five acres on Sand
Key's land. Sand Key had no involvement with the jetty project.

Sand Key filed a quiet title suit against the state in the
Circuit Court of Pinellas County. It sought to eliminate the
state's claim to ownership of the accreted land and establish its
rights to the land under the common law principle of accretion.
The state based its claim on Section 161.051, Fla. Stat. (1981),
which grants the state ownership to accretions caused by the
state's coastal construction. Copy attached. Sand Key lost in
the trial court, which quieted title in the state and ordered
Sand Key to stay off the accreted portion. The trial court's
decision was based on Section 161.051, which it judged to be

Sand Key appealed to the Second District Court of Appeal, which
agreed that Section 161.051 was constitutional but found that it
applied only to accretions to the property where the coastal
construction was located e.g., where the jetty was constructed.
The statute did not apply to a landowner one-half mile from the
state's improvement. In addition, the Court found that if the
statute were to apply to Sand Key, it would be an unconsti-
tutional taking of Sand Key's vested property rights without
compensation. Thus, the Court reversed the trial court's quiet
title determination and dissolved the injunction.

The Second District Court of Appeal ruled squarely for Sand Key
but it nevertheless sent the matter to the Florida Supreme Court.
The Florida Appellate Rules allow an intermediate court, on its
own motion or by suggestion of a party, to certify to the Florida
Supreme Court that a particular pending issue is of great public
importance. The Supreme Court may accept or reject the case.

The Sand Key case was certified to the Florida Supreme Court,
which accepted jurisdiction and rendered its decision for Sand


The Supreme Court stated that the question presented was, whether
the state has title to land accumulated on waterfront property
when the accumulation occurred slowly and imperceptibly and was
not caused by the waterfront owner. It stated that the answer
was, that Section 161.051 applies to accreted land of an upland
owner who caused the accretion and does not apply to an upland
owner who did not participate in the improvements which caused
the accretions.

The state did not rely solely on Section 161.051 in its argument
to the Florida Supreme Court. It went further and urged the
Court to rule that all accretions caused in part by some type of
artificial construction are state property. (The state had
raised this argument in several previous cases.) The Court
flatly rejected the state's argument. It stated that the rule


is, and always has been, that upland owners have a vested right
Sto new lands formed by (gradual and imperceptible) accretion or
reliction, whether naturally or artificially caused, so long as
the upland owner did not construct the improvements that caused
the accretions or relictions.

The state also argued that, even if there was a common law right
to artificially caused accretions, this right was removed by
Section 161.051, which directs that all artificially caused
accretions belong to the state. The Court examined the statute
and found, as did the Second DCA, that it does not affect the
vested rights of upland owners who did not cause or participate
in the improvements; that is, the statute did not change the
common law rule.

The dissent claimed that the majority opinion reached the "absurd
result" of "grant[ing] a private landowner a windfall at the
expense of the public" and that the Court "is giving away lands
which are held by the state by virtue of its sovereignty, in
trust for all the people." (12 FLW 349, 355, 356 Ehrlich, J.,

[161.051 Coastal construction by persons,
firms, corporations, or local authorities.
---Where any person, firm, corporation, county,
municipality, township, special district, or
any public agency shall construct and install
projects when permits have been properly issued,
such works and improvements shall be the property
of said person, firm, corporation, county,
municipality, township, special district, or any
public agency where located, and shall thereafter
be maintained by and at the expense of said
person, firm, corporation, county, municipality,
township, special district, or other public
agency. No grant under this section shall affect
title of the state to any lands below the mean
high-water mark, and any additions or accretions
to the upland caused by erection of such works
or improvements shall remain the property of the
state if not previously conveyed. The state shall
in no way be liable for any damages as a result
of erections of such works and improvements, or
for any damages arising out of construction,
reconstruction, maintenance, or repair thereof,
or otherwise arising on account of such works or
improvements. (Emphasis added.)]


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