Belvedere Development Corp. v. Department of Transp., Div. of Admin.
| Decision Date | 11 July 1985 |
| Docket Number | No. 62172,62172 |
| Citation | 476 So.2d 649,10 Fla. L. Weekly 375 |
| Parties | 10 Fla. L. Weekly 375 BELVEDERE DEVELOPMENT CORPORATION, et al., Petitioners, v. DEPARTMENT OF TRANSPORTATION, DIVISION OF ADMINISTRATION, Respondent. |
| Court | Florida Supreme Court |
William L. Coalson, of Greene, Greene, Falck & Coalson, Jacksonville, for petitioners.
Alan E. DeSerio and Margaret-Ray Kemper, Appellate Attys., and John H. Beck, Gen. Counsel, Tallahassee, for respondent.
This cause is before us on petition to review the decision of the Fourth District Court of Appeal in Belvedere Development Corp. v. Department of Transportation Division of Administration and Palm Beach County, 413 So.2d 847 (Fla. 4th DCA 1982), in which that court certified the following question to be a question of great public importance:
DOES FLORIDA LAW PERMIT RIPARIAN (OR LITTORAL) RIGHTS TO BE SEPARATED FROM RIPARIAN LANDS?
413 So.2d at 851. We have jurisdiction. Art. V, § 3(b)(4), Fla. Const.
This case commenced with the filing of a complaint in eminent domain by the Department of Transportation to condemn certain lands adjoining and contiguous to Lake Worth in Palm Beach County, Florida. The Department sought to acquire the property in fee simple absolute, with an express reservation to the landowners which provided:
Reserving unto the Defendant the rights to use and enjoy the riparian rights of and pertaining to said lands, including the rights to bulkhead and fill, said lands as provided by law, which are not in conflict with the interests of the Florida Department of Transportation in the construction and maintenance of said public highway.
The petitioners, Belvedere Development Corporation and Colonnades, Inc., answered the complaint in eminent domain alleging that the lands sought to be acquired by the state were only a portion of petitioners' lands and the taking thereof and the use to which they would be put would cause severance damages to the remaining adjoining lands of the petitioners.
The case went to trial and the jury returned verdicts finding (1) that the compensation awarded to petitioner Colonnades was $15,800 for the value of the land taken and $0 for severance damages, for a total award of $15,800; and (2) the compensation awarded to petitioner Belvedere was $2,385 for the value of the land taken and $0 for severance damages, for a total award of $2,385. The trial court entered final judgments pursuant to the verdicts and an appeal followed.
On appeal, the petitioners raised seven points. However, the district court found that only one issue warranted any extended discussion--whether riparian rights could be enjoyed by an owner of non-riparian land? The court's decision to uphold the jury's award was based on its conclusion that the only Florida Supreme Court decisions relevant to the issue supported the Department's position. 413 So.2d at 850 (citing Burkart v. City of Fort Lauderdale, 168 So.2d 65 (Fla.1964) and Caples v. Taliaferro, 144 Fla. 1, 197 So. 861 (1940). The court also discussed a decision of our First District Court of Appeal, Peebles v. Canal Authority, 254 So.2d 232 (Fla. 1st DCA 1971), in which the condemnor acquired the fee simple title to the property taken without limiting the estate or use involved. The Peebles court held that it was improper for the condemnor's appraiser to take into consideration the condemnor's allowance of access to the river based on the condemnor's usual policy of allowing such access. The court stated:
It is established law that privileges in the property taken, (in this case, access to a body of water) the enjoyment of which is not compatible with the exercise of the title taken (here, a fee simple absolute) by the condemning authority, cannot be considered in awarding compensation unless they are formally established by the condemnation proceeding. Privileges ... which are merely permissive and subject to revocation by the condemning party at any time cannot be availed of in reduction of damages.
Id. at 233 (citations omitted).
The district court in the instant case found that the condemnor had made it clear in its petition that the riparian use of the property was reserved to the petitioners except insofar as it might conflict with the limited interests of the Department. The court also found that the order of taking followed Peebles and specified that the riparian rights were reserved to the petitioners. Accordingly, they found that the express reservation of rights, coupled with the evidence adduced at trial, was a sufficient basis upon which the jury could determine its award. 413 So.2d at 850.
The petitioners argue that the attempted reservations of riparian rights by the Department in the legal descriptions attached to the order of taking are ineffective. They contend that a person or entity must own the lands bordering on navigable waters for there to be riparian rights; in other words, riparian rights are appurtenant to and are inseparable from the riparian land. Petitioners quote the following authority:
The source of riparian rights is ownership of dry land bordering or abutting on a navigable waterbody ... riparian rights are an inherent aspect of upland ownership, and not severable from it. §§ 21.6 and 34.3, Maloney, Plager and Baldwin, Water Law and Administration, The Florida Experience, University of Florida Press, 1968.
In addition, they rely on the following language from Florida Jurisprudence to support their contention that the respondents have become the owners of the riparian rights appurtenant to these lands:
The land to which the owner holds title must extend to the ordinary high watermark of the navigable water in order that riparian rights may attach. Conveyance of title to or lease of the riparian land entitled the grantee to the riparian rights running therewith whether or not mentioned in the deed or lease of the upland. 34 Fla.Jur., Waters, § 126, et seq.
Because the petitioners' property was taken in fee simple absolute without an award for severance damages, petitioners argue in conclusion, a taking has occurred in violation of article X, section 6 of the Florida Constitution.
The respondent, the Department of Transportation, contends that Florida is among those jurisdictions that follow the majority rule that riparian rights may be devised separate from the lands to which such rights attach. In 1916 this Court stated:
A conveyance of land to which riparian rights to submerged lands are attached ... may carry the riparian rights, unless such rights are reserved or a contrary intent appears from the conveyance.
Panama Ice and Fish Co. v. Atlanta and St. Andrews Bay Railway, 71 Fla. 419, 423, 71 So. 608, 610 (1916). See also Burkhart v. City of Fort Lauderdale; City of Tarpon Springs v. Smith, 81 Fla. 479, 502, 88 So. 613, 621 (1921).
Implicit in the foregoing cases is the principle that riparian rights may sometimes be severed from the ownership of the land to which they attach. If this were not so, decisions which resolve how and to whom to allocate riparian rights would not even arise. There is nothing novel about the notion of finding a legal separateness of an incorporeal interest such as a riparian right. The law has long recognized the separateness of nonpossessory property interests, including incorporeal heriditaments and future interests.
However, we are persuaded by the concerns voiced by Judge Hersey in his special concurring opinion and agree that following this general rule in all situations often leads to rather absurd results. Judge Hersey stated:
[Riparian] rights basically include (1) general use of the water adjacent to the property, (2) to wharf out to navigability, (3) to have access to navigable waters and (4) the right to accretions.
How could it seriously be contended that appellants in this case retain any of those rights despite the language in the Order of Taking (the functional equivalent of a deed)? They have no easement or other retained rights to enter upon appellee's land. If a dock is built by appellants it will have to be free-standing, without contact with appellee's land. And how are they to "use" the water, say for swimming, when they have no access to it other than by boat? And consider the horrendous problem of accretions!
In 1917 this Court defined riparian rights in Thiesen v. Gulf, Florida and Alabama Railway, 75 Fla. 28, 78 So. 491, 507 (1917):
Riparian rights we think are property, and being so the right to take it for public use without compensation does not exist. The fronting of a lot upon a navigable stream or bay often constitutes its chief value and desirability whether for residence or business purpose. The right of access to the property over the water, the unobstructed view of the bay and the enjoyment of the privileges of the waters incident to ownership of the bordering land would not in many cases be exchanged for the price of an inland lot in the same vicinity. In many cases doubtless the riparian rights incident to the ownership of the land were the principal if not sole inducement leading to its purchase by one and the reason for the price charged by the seller.
Although riparian rights are property, they are unique in character. The source of those rights is not found within the interest itself, but rather they are found in, and are defined in terms of the riparian upland. In most cases, therefore, it is not difficult to find that riparian rights are an inherent aspect of upland ownership and are not severable from it.
Thus, in the context of condemnation of property, we think the condemnor should be unable to reserve the...
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