5F, LLC v. Dresing
| Citation | 142 So.3d 936 |
| Decision Date | 16 July 2014 |
| Docket Number | No. 2D13–2793.,2D13–2793. |
| Parties | 5F, LLC, Appellant, v. Robert DRESING, Sarah F. Dresing husband and wife; and Northern Trust Company, as Trustee for the Michael W. O'Shaughnessy Trust, Appellees. |
| Court | Court of Appeal of Florida (US) |
OPINION TEXT STARTS HERE
Jason A. Lessinger and David M. Levin of Icard, Merrill, Cullis, Timm, Furen & Ginsburg, P.A., Sarasota, for Appellant.
J. Matthew Belcastro and Harold N. Hume of Henderson, Franklin, Starnes & Holt, P.A., Fort Myers, for Appellees.
5F, LLC, challenges the order granting final summary judgment in favor of Robert Dresing, Sarah F. Dresing, and the Northern Trust Company, trustee for the Michael W. O'Shaughnessy Trust (collectively referred to as the Dresings). The lower court found that the Dresings, as riparian land owners, have a common law right to construct a pier on submerged land owned by 5F which abuts the Dresings' property and that 5F is collaterally estopped from obtaining relief due to the resolution of prior litigation. Because we conclude that the Dresings' riparian rights include the right to construct a pier upon privately owned submerged lands, we affirm the final summary judgment; however, we conclude that collateral estoppel did not bar 5F's lawsuit.
Mr. and Mrs. Dresing and the Northern Trust Company own adjacent lots extending to the mean high water line 1 in the Boca Grande Isles subdivision in Lee County. The State of Florida originally owned all of the land which became Boca Grande Isles, as well as the submerged lands surrounding Boca Grande Isles. By 1958, 5F's predecessor in title, Sunset Realty Corporation (Sunset), had acquired all of this land from the State.2On December 16, 2010, the submerged land involved in this case was conveyed to FFF, LLC, and subsequently, on June 9, 2011, to 5F.
On March 15, 2010, the Dresings obtained the necessary permits from Lee County to construct a pier extending from their property onto the submerged land owned by 5F. Permit revisions were made in October 2010, and construction began thereafter. The completed structure was inspected and approved by Lee County on December 3, 2010. At that time, the submerged lands were owned by FFF; the Dresings made no attempt to obtain consent from FFF to construct the pier, and FFF made no objection to the pier during its construction or thereafter.
Some seven months after construction had been completed, 5F advised the Dresings of its objection to the pier by letter dated July 11, 2011. This notice was followed by a complaint filed on August 6, 2012, wherein 5F sued the Dresings for declaratory relief, ejectment, trespass, and trespass damages. The Dresings filed an answer and affirmative defenses claiming a riparian right to construct the pier, as well as arguing the applicability of the doctrines of collateral estoppel, equitable estoppel, and balancing of the conveniences. Both sides moved for summary judgment. The lower court ruled in favor of the Dresings, finding that as riparian owners 3 they had a common law right to build the pier and also finding that 5F was collaterally estopped from raising its claims due to earlier litigation. This appeal followed.
There is no dispute in our case that the Dresings own to the high water mark and there is no contention by 5F that the pier in question extends beyond the low water line or interferes with navigation or the public's superior rights to use the water. In ruling for the Dresings, the lower court cited three Florida Supreme Court cases, Hayes v. Bowman, 91 So.2d 795 (Fla.1957), Williams v. Guthrie, 102 Fla. 1047, 137 So. 682 (1931), and Freed v. Miami Beach Pier Corp., 93 Fla. 888, 112 So. 841 (1927), for the principle that as a matter of law, the Dresings, as riparian owners, had a common law right to construct the pier at issue.
The central issue here is whether the Dresings have a common law right to “wharf out,” in this case, to construct a dock or a pier on land that is privately owned by 5F. We begin by looking to the origin of Florida's riparian rights, the English common law.
Under the common law of England the crown in its sovereign capacity held the title to the beds of navigable or tide waters, including the shore or the space between high and low water marks, in trust for the people of the realm who had rights of navigation, commerce, fishing, bathing, and other easements allowed by law in the waters. This rule of the common law was applicable in the English colonies of America.
After the Revolution resulting in the independence of the American states, title to the beds of all waters, navigable in fact, whether tide or fresh, was held by the states in which they were located, in trust for all the people of the states respectively.
Brickell v. Trammell, 77 Fla. 544, 82 So. 221, 226 (1919). When Florida became a state, it was admitted “on equal footing with the original states.” Id. That is, title to all submerged land in Florida rested with the State of Florida, and “[t]he shore or space between high and low water mark is a part of the bed of navigable waters, the title to which is in the state in trust for the public.” Ferry Pass Inspectors' & Shippers' Ass'n v. White's River Inspectors' & Shippers' Ass'n, 57 Fla. 399, 48 So. 643, 644 (1909). Riparian holders were defined, at common law, as “those who own land extending to [the] ordinary high-water mark of navigable waters.” 4Brickell, 82 So. at 227. And “[r]iparian rights are incident to the ownership of lands contiguous to and bordering on navigable waters.” Ferry Pass, 48 So. at 644.
Among the common-law rights of those who own land bordering on navigable waters apart from rights of alluvion and dereliction 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 injures 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.
As to a riparian owner's right to build piers or wharves specifically, the supreme court stated:
Subject to the superior rights of the public as to navigation and commerce, and to the concurrent rights of the public as to fishing and bathing and the like, a riparian owner may erect upon the bed and shores adjacent to his riparian holdings bath houses, wharves, or other structures to facilitate his business or pleasure; but these privileges are subject to the rights of the public to be enforced by proper public authority or by individuals who are specially and unlawfully injured.
Further, “[t]he exclusive rights of a riparian owner are such as are necessary for the use and enjoyment of his abutting property and the business lawfully conducted thereon; and these rights may not be so exercised as to injure others in their lawful rights.” Id.
In the 1909 decision in Ferry Pass, the Florida Supreme Court set forth in detail the common law rights of riparian owners. It specifically included, as a privilege or qualified right, inferior to the rights of the public as to navigation and commerce but concurrent in other aspects, the benefit of building “wharves, or other structures to facilitate his business or pleasure.” 48 So. at 645. The supreme court has consistently affirmed the language of Ferry Pass, with some clarification and limitation usually relevant to the applicable law at the time of the case or to a particular set of facts. For example, subsequent to its decision in Ferry Pass, the court in Thiesen v. Gulf, Florida & Alabama Railway Co., 75 Fla. 28, 78 So. 491, 501 (1917), reh'g granted, (1918), considered both whether riparian owners whose lots did not extend to the low water mark had the right to “wharf out”—“to construct wharves, docks, and piers”—beyond the low water mark “out into the bay to the channel” pursuant to the Riparian Act of 1856,5 as well as whether those riparian owners had a common law right to “wharf out” beyond the low water mark, “out into the bay to the channel.”
In Thiesen, a riparian owner whose lot extended only to the high water mark sued a railroad company claiming that the railroad company had deprived him of his riparian rights by filling in the submerged land in front of his property and constructing tracks thereon. Mr. Thiesen asserted that the railroad company's actions interfered with his rights of access, ingress and egress, and his right to construct wharves from his property to the low water mark and into the channel of the Pensacola Bay. The narrow question before the court involved construction of wharves “beyond the low-water mark to the channel,” id. at 502, under both the Riparian Act of 1856 and common law where the riparian owner's title extended only to the high water mark.
After determining that the Riparian Act of 1856 was inapplicable to Mr. Thiesen because his title did not include the land between the high water mark and the low water mark, the court determined that the common law did not afford Mr. Thiesen the right to construct wharves “out into the bay to the channel” beyond the low water mark. Id. In so holding, the supreme court quoted with approval the language of Ferry Pass that a “ ‘riparian owner may erect upon the bed and shores adjacent to his riparian holdings bathhouses, wharves, or other structures to facilitate his...
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