Anderson v. Bell

• Decision Date: 09 June 1983
• Docket Number: No. 61979,61979
• Citation: 433 So.2d 1202
• Parties: Herbert C. ANDERSON and Joan Anderson, Petitioners, v. Sam BELL, George Bell and James E. Estes, Respondents.
• Court: Florida Supreme Court

Page 1202

433 So.2d 1202

Herbert C. ANDERSON and Joan Anderson, Petitioners, v. Sam BELL, George Bell and James E. Estes, Respondents.

No. 61979.

Supreme Court of Florida.

June 9, 1983.

W.J. Oven, Jr. of Oven, Gwynn & Lewis, Tallahassee, for petitioners.

Jerome M. Novey of Frates & Novey, Tallahassee, for respondents.

ADKINS, Justice.

We have for review a decision of the District Court of Appeal, First District, Anderson v. Bell, 411 So.2d 948 (Fla. 1st DCA 1982), which expressly and directly conflicts with a decision of the second district. Publix Super Markets, Inc. v. Pearson, 315 So.2d 98 (Fla. 2d DCA 1975), cert. denied, 330 So.2d 20 (Fla.1976). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const.

The facts which were stipulated to by counsel are as follows: The plaintiff below, Anderson, purchased a tract of land in 1965 from John Swisher. A small non-navigable creek traversed from north to south through the property. Anderson owned all lands contiguous to the creek, and it is not asserted that defendant had any interest in the water in its natural state. The plaintiff excavated the lowlands and constructed an earthen dam which resulted in a lake of substantial size. The construction, which began in 1966 or 1967, was completed in 1975.

As a result of the lake's creation, several parcels of land surrounding the lake were partially flooded. One of the flooded parcels was owned by Jessie Lewis and Madeline Watson who subsequently sold the tract to Sam Bell (defendant below). Prior to selling the land, Lewis and Watson brought an action against Anderson for damages incurred to their land as a result of the partial flooding. That action resulted in a settlement agreement whereby Lewis and Watson conveyed a flowage easement to Anderson in exchange for $10,000.

The easement, which describes the portion of land at issue, gives Anderson the right and privilege to flood the land, but expressly reserves title and beneficial use of the lands (except for the flowage rights) to the grantor. The easement also expressly reserves the grantee's right to discontinue the flowage at any time.

The instant action was brought by Anderson against Sam Bell and two other individuals (who were guests of Bell's) to enjoin them from fishing and boating upon the surface waters that lie above the bottom land owned by Anderson. Anderson does not contend, however, that Bell is precluded from using the lake surface above the land owned by Bell.

Although exact dimensions are not contained within the record, a scaled aerial photograph, which was stipulated as accurate by counsel, has been roughly sketched and appears as an appendix to this opinion. It reveals that the portion of bottom land owned by Bell appears to be over one acre. This amounts to only a small relative portion of the total lake area. (See Appendix).

The trial court found for Bell, and refused to enjoin his use of the entire lake for fishing and boating. The first district affirmed, holding that there is no distinction between natural lakes and man-made lakes for purposes of determining the respective rights of adjoining landowners. They found that our decision in Duval v. Thomas, 114 So.2d 791 (Fla.1959), was applicable in both cases, and that an adjoining landowner is entitled to the reasonable lawful use of the entire lake. Id. at 949.

The cases on this issue, particularly in Florida, are somewhat limited. However, we find several Florida decisions that are relevant, and believe a brief discussion of them is helpful.

In Osceola County v. Triple E Development Co., 90 So.2d 600 (Fla.1956), the plaintiff brought a condemnation action against the defendant to acquire a right-of-way to two lakes situated entirely within the bounds of defendant's property. We held that a "lake or pond entirely within the boundaries of a single tract of land belongs to the owner of the land as an appurtenant thereto." Id. at 602. Because the public had no necessity for the access, the condemnation right was denied.

In Duval v. Thomas, 114 So.2d 791 (Fla.1959), the Court was asked to determine the relative rights of two or more people who owned portions of the bottom land in a lake. The Court distinguished Triple E as only applicable when the lake is owned entirely by one landowner so that it is "impossible for anyone to reach it except by trespassing." Id. at 793. The Court also stated that the Triple E decision amounted to a recognition of elements of both the civil and common law doctrines in that a lake could actually be exclusively owned. However, the Court chose to adopt the civil doctrine when ownership of the bottom lands vested in more than one person. This rule allows each landowner, who owns portions of the bottomlands, to the reasonable use of the lake which includes fishing, swimming and boating. The Court in Duval took judicial notice of Florida's tourist industry of which fishing and boating are an important part, and stated that a contrary rule would result in immeasurable damage. Id. at 795.

The Duval decision was not expressly limited to natural lakes nor extended to man-made lakes. Therefore, the respective rights of contiguous landowners in a man-made lake remained unanswered.

In Silver Blue Lake Apartments v. Silver Blue Lake Home Owners Association, 245 So.2d 609 (Fla.1971), the Court once again was called upon to determine the rights of parties in a non-navigable lake. In this case, however, the lake involved was man-made. The apartment owner had purchased the lakefront land, which included three feet of bottom land, from Freeman. Freeman was also the previous owner of the remaining lake bottom land. However, he had conveyed this land to the homeowners association. The deed from Freeman to the homeowners association contained a restriction limiting use of the lake to the homeowners association members. The subsequent deed from Freeman to the apartment owners did not mention the restrictive clause in the previous deed; however, it was expressly subject to restrictions of record and the trial court found that the apartment owner had actual notice of the restriction. The Court held that the restriction was enforceable under the doctrine of equitable servitudes notwithstanding the fact that the apartment owner was not privy to the restrictive contract. Therefore, the apartment owner and his lessees could be properly enjoined from beneficial use of the lake. Although the decision was founded upon the doctrine of equitable servitudes, the Court also answered a certified question from the district court concerning the tenants' rights to use the lake absent the servitude. The Court 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; such use may be held to be subordinate to valid deed restrictions, reservations, agreements or other title burdens.

Id. at 612. This language formed the basis for the plaintiffs' argument in Publix Super Markets, Inc. v. Pearson.

In Publix, a dispute arose over the respective contiguous property owners' rights in an artificial water body. The water body was formed as a result of phosphate mining which left large pits that became filled with water and assumed the characteristics of a large lake (approximately 47 acres). The water-body was shaped like a hand with five elongated "fingerlike" portions which connected at one end. The plaintiffs in that case owned property which extended into part of the easternmost pit on which they had built homes of substantial value. The complaint surfaced when the defendant, Publix, attempted to landfill portions of the western pits in order to construct a shopping center on the property. There was no contention that Publix did not own the land where the excavation was planned, nor was it contended that the excavation would cause an ecological disruption to the remaining waters. The only argument by the landowners was that, as riparian owners on this body of water, they enjoyed the right to the beneficial use of the surface waters of the entire body for fishing and boating.

The district court held that the plaintiffs had no riparian rights in the water, and could not enjoin Publix from filling in the lake. Although the court did not articulate any specific policy reasons for the natural/artificial dichotomy, they did indicate that the holding was in accordance with the general rule. 315 So.2d at 99 n. 2. The court distinguished the Silver Blue Lake case without addressing the aforementioned language, thereby limiting the Duval holding to cases involving natural watercourses.

The Silver Blue Lake dicta is, admittedly, subject to various interpretations. However, we believe the proper interpretation is that the holder of a leasehold estate enjoys the same rights to the use of an adjoining water body as the landlord--lawful and reasonable use. The Silver Blue Lake Court did not expressly hold, nor was the question presented, whether the owner of a portion of the lakebed on a non-navigable man-made lake has the same rights as if it were a natural lake. The question of what is an actual lawful use is the subject of the decision in the case sub judice, and is properly decided only when the issue is squarely presented to the Court.

For reasons that we will articulate, we now hold that the owner of property that lies adjacent to or beneath a man-made, non-navigable water body is not entitled to the beneficial use of the surface waters of the entire water body by sole virtue of the fact that he/she owns contiguous lands.

At the outset we note that this is the established rule in other jurisdictions as well as the common law. See Brasher v....