Board of Trustees of the Internal Imp. Trust Fund v. Sand Key Associates, Ltd.

• Decision Date: 09 July 1987
• Docket Number: No. 66372,66372
• Citation: 512 So.2d 934,12 Fla. L. Weekly 349
• Parties: 12 Fla. L. Weekly 349 BOARD OF TRUSTEES OF THE INTERNAL IMPROVEMENT TRUST FUND, Petitioner, v. SAND KEY ASSOCIATES, LTD., Respondent.
• Court: Florida Supreme Court

Page 934

512 So.2d 934

12 Fla. L. Weekly 349

BOARD OF TRUSTEES OF THE INTERNAL IMPROVEMENT TRUST FUND, Petitioner, v. SAND KEY ASSOCIATES, LTD., Respondent.

No. 66372.

Supreme Court of Florida.

July 9, 1987.

Rehearing Denied Sept. 9, 1987.

Steven A. Been, Asst. Gen. Counsel, Dept. of Natural Resources, Tallahassee, for petitioner.

Richard J. Salem of Richard J. Salem, P.A., Tampa, and William J. Kimpton of Dunbar, Kimpton, Burke, Boyer, Roman and Schafer, P.A., Clearwater Beach, for respondent.

OVERTON, Justice.

This is a petition to review Sand Key Associates, Ltd., v. Board of Trustees of the Internal Improvement Trust Fund, 458 So.2d 369 (Fla. 2d DCA 1984), in which the district court upheld the constitutionality of section 161.051, Florida Statutes (1981), determined that it did not apply to the accreted land of the waterfront property owned by Sand Key Associates, and certified the following question as one of great public importance:

Pursuant to section 161.051, Florida Statutes (1981), is the state entitled to accreted land of only the upland owner of the improved property or to the accreted land of all upland littoral owners, whether or not they participated in or contributed to the improvement?

Id. at 371. We have jurisdiction, article V, section 3(b)(4), Florida Constitution, and approve the district court decision. We answer the question by holding 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 issue in this cause is narrow, but has broad ramifications for Florida's waterfront owners. It concerns the state's right to claim title to land accumulated on waterfront property when the accumulation occurred slowly and imperceptibly and was not caused by the waterfront owner.

Sand Key began this action by filing suit to quiet title to lands it alleged had gradually and imperceptibly accumulated over ten years on its beachfront property. The Trustees of the Internal Improvement Trust Fund claimed that public beach renourishment, authorized under chapter 161, Florida Statutes, created the accreted lands out of submerged sovereignty lands, and that, pursuant to section 161.051, these accreted lands remain state property. The trial court entered a partial final summary judgment in favor of the Trustees. Before its ruling, the trial court found: (1) a public entity had constructed a jetty; (2) Sand Key's waterfront property extends approximately one-half mile south of this jetty; (3) "the gradual and imperceptible accumulation of soil to [Sand Key's] upland was the result of accretion "; (4) "neither [Sand Key] nor anyone acting on its behalf ... caused or contributed to [the] accretion." (Emphasis added.) The trial court then upheld the constitutionality of section 161.051, and construed it, in accordance with the Trustee's interpretation, to mean that

the State of Florida validly holds title to all accretion to the upland, whether proximate or remote, of any person which results from works and/or projects specifically described in the said statute, and not only to accretion to the upland of a person who has constructed or installed such a work or project.

(Emphasis added.) The trial court concluded by denying Sand Key possession of the accreted land.

The district court reversed, holding:

To the extent that section 161.051 applies to other upland littoral owners who neither participated in nor contributed to the improvement, the statute is in derogation of the common law and must be strictly construed. The presumption is that no change in the common law is intended unless the statute explicitly so states....

Section 161.051 does not explicitly state that it applies to all upland littoral owners. Therefore, construing the statute strictly, we hold that it applies only to the upland owner of the improved property. Section 161.051 does not affect Sand Key's vested right to accretion on its property.

458 So.2d at 371 (citation omitted). The district court concluded that the trial court judgment "effectively divested Sand Key of its littoral rights without compensation" and held that "the disputed five acres of accreted property, all future accretions on the property and all property rights incident thereof belong to Sand Key." Id.

In this proceeding, the Trustees raise three claims of title to the accreted lands. First, they claim that all accretions caused in part by some type of artificial construction are state property, asserting that, although Florida's waterfront property owners are entitled to accretions and relictions which result from natural causes, they are not entitled to accretions or relictions that result only in part from artificial causes. Second, the Trustees assert that, even if prior law granted waterfront owners title to artificially caused accretions, section 161.051 changed the law and established an exception to the right to the accretions. Third, the Trustees contend that Martin v. Busch, 93 Fla. 535, 112 So. 274 (1927), controls under these circumstances and mandates state ownership of the accretions. Under each contention, the Trustees assert that the state owns the accreted land and that this Court need not consider whether the affected waterfront owner contributed to causing the accretion.

We find the Trustees' contentions are without merit. They disregard Florida case law establishing and applying common law riparian and littoral rights, misconstrue section 161.051, and misinterpret Martin v. Busch.

Common Law Definitions and Principles

Because of the Trustees's position, it is appropriate to review common law definitions and principles. The term "riparian owner" applies to waterfront owners along a river or stream, and "littoral owner" applies to waterfront owners abutting an ocean, sea, or lake. Cases and statutes, however, have used "riparian owner" broadly to describe all waterfront owners. "Accretion" means the gradual and imperceptible accumulation of land along the shore or bank of a body of water. "Reliction" or "dereliction" is an increase of the land by a gradual and imperceptible withdrawal of any body of water. "Avulsion" is the sudden or perceptible loss of or addition to land by the action of the water or a sudden change in the bed of a lake or the course of a stream. "Gradual and imperceptible" means that, although witnesses may periodically perceive changes in the waterfront, they could not observe them occurring. See generally Black's Law Dictionary (5th ed. 1979); F. Maloney, S. Plager & F. Baldwin, Water Law and Administration--The Florida Experience 385-92 (1968); 65 C.J.S.. Navigable Waters §§ 81, 86, 93 (1966). In Philadelphia Co. v. Stimson, 223 U.S. 605, 32 S.Ct. 340, 56 L.Ed. 570 (1912), the United States Supreme Court, in defining this phrase, explained:

[For the change to be perceptible, it] is not enough that the change may be discerned by comparison at two distinct points of time. It must be perceptible when it takes place. "The test as to what is gradual and imperceptible ... is, that though the witnesses may see from time to time that progress has been made, they could not perceive it while the process was going on."

Id. at 624, 32 S.Ct. at 346, quoting County of St. Clair v. Lovingston, 90 U.S. (23 Wall.) 46, 68, 23 L.Ed. 46 (1874) (citations omitted).

This Court has expressly adopted the common law rule that a riparian or littoral owner owns to the line of the ordinary high water mark on navigable waters. State v. Florida Natural Properties, Inc., 338 So.2d 13 (Fla.1976); Hayes v. Bowman, 91 So.2d 795 (Fla.1957); Brickell v. Trammell, 77 Fla. 544, 82 So. 221 (1919); Thiesen v. Gulf F. & A. Ry. Co., 75 Fla. 28, 78 So. 491 (1918). We have also held that riparian or littoral rights are legal rights and, for constitutional purposes, the common law rights of riparian and littoral owners constitute property. Hayes; Brickell; Thiesen; Feller v. Eau Gallie Yacht Basin, Inc., 397 So.2d 1155 (5th DCA 1981). Riparian and littoral property rights consist not only of the right to use the water shared by the public, but include the following vested rights: (1) the right of access to the water, including the right to have the property's contact with the water remain intact; (2) the right to use the water for navigational purposes; (3) the right to an unobstructed view of the water; and (4) the right to receive accretions and relictions to the property. See Hughes v. Washington, 389 U.S. 290, 88 S.Ct. 438, 19 L.Ed.2d 530 (1967); County of St. Clair; Hayes; Brickell; Thiesen. In Brickell, we said these riparian or littoral rights are "property rights that may be regulated by law, but may not be taken without just compensation and due process of law," Brickell, 77 Fla. at 561, 82 So. at 227, and we recently reaffirmed that principle in Florida National Properties, Inc.

The common law right of a riparian or littoral owner to accretions or relictions has a significant historical foundation. Blackstone set forth this right:

And as to lands gained from the sea, either by alluvion, by the washing up of sand and earth, so as in time to make terra firma; or by dereliction, as when the sea shrinks back below the usual watermark; in these cases the law is held to be, that if this gain be by little and little, by small and impercetible degrees, it shall go to the owner of the land adjoining.... [T]hese owners being often losers by the breaking in of the sea, or at charges to keep it out, this possible gain is therefore a reciprocal consideration for such possible charge or loss.

2 W. Blackstone, Commentaries *261-62 (emphasis in original). In Banks v. Ogden, 69 U.S. (2 Wall.) 57, 67, 17 L.Ed. 818 (1864), the United States Supreme Court recognized accretions and relictions as a vested property right:

Almost all jurists and legislators ... both ancient and modern, have agreed that the owner of the ...