Board of Trustees of Internal Imp. Trust Fund v. Medeira Beach Nominee, Inc.

• Decision Date: 26 January 1973
• Docket Number: No. 71-812,71-812
• Citation: 272 So.2d 209
• Parties: The BOARD OF TRUSTEES OF the INTERNAL IMPROVEMENT TRUST FUND of the State of Florida, Appellant, v. MEDEIRA BEACH NOMINEE, INC., a Georgia corporation, Appellee.
• Court: Florida District Court of Appeals

Page 209

272 So.2d 209

63 A.L.R.3d 241

The BOARD OF TRUSTEES OF the INTERNAL IMPROVEMENT TRUST FUND of the State of Florida, Appellant, v. MEDEIRA BEACH NOMINEE, INC., a Georgia corporation, Appellee.

No. 71-812.

District Court of Appeal of Florida, Second District.

Jan. 26, 1973.

Robert L. Shevin, Atty. Gen., Jerry E. Oxner, Asst. Atty. Gen., and M. Stephen Turner, Gen. Counsel, Board of Trustees, Tallahassee, for appellant.

Theodore C. Taub, of Gibbons, Tucker, McEwen, Smith, Cofer & Taub, Tampa, for appellee.

LILES, Acting Chief Judge.

This is an appeal from a final summary judgment in the Circuit Court for Pinellas County, ruling that the state had no interest in accreted lands and quieting title thereto in appellee.

Appellee, Medeira Beach Nominee, Inc., is owner of a tract of land on Sand Key in the City of Madeira Beach. The property lies between Gulf Boulevard and the waters of the Gulf of Mexico. The deeds conveyed all riparian rights and the westerly boundary was the mean high tide line. In February, 1971, appellee began construction of improvements, including a seawall upon the accreted land. In April, appellant Board of Trustees of the Internal Improvement Trust Fund on the State of Florida sued to enjoin further construction on the property for a distance approximately 115 feet landward of the existing mean high tide line, claiming same to be sovereignty lands. Appellee cross-claimed seeking to quiet title to the property and obtain a judicial determination of the westerly boundary. The trial judge granted summary judgment for appellee on its cross-claim.

The lands in dispute, or some undetermined part of them, were accreted in front of appellee's riparian uplands apparently as a result of a public erosion control and beach stabilization program, the first phase of which was completed in 1957 by the City of Madeira Beach. The program was financed by bond issue and special assessment of beachfront property. The 1957 program consisted of 37 wooden groins constructed on the beach below the existing mean high tide line, one of which was located in front of appellee's property. In 1968 the wooden panels of some or all of the groins were replaced with concrete slabs. These projects were carried out with the permission and authorization of the appropriate state and municipal agencies. While the parties agreed below that the natural processes of accretion were influenced by these projects, the trial court made no findings on the issues of when, where, how much and proximate cause. This was because these issues were not deemed material, the trial judge having determined that appellee would hold title to all the accreted lands even if no accretion would have occurred but for the state projects.

The question is: Does a strip of accreted land become the property of the upland riparian owner even where the accretion is the result of a lawful exercise of the police power by a municipality to prevent beach erosion?

Accretion is the gradual and imperceptible addition of soil to the shore of waterfront property. The test as to what is gradual and imperceptible is, that though witnesses may see from time to time that progress has been made, they could not perceive it while the process was going on. St. Clair County v. Lovingston, 90 U.S. (23 Wall.) 46, 68, 23 L.Ed. 59 (1874). Title to accreted lands by the great weight of authority vests in the riparian owners of abutting lands. Brickell v. Trammell, 77 Fla. 544, 82 So. 221 (1919); Mexico Beach Corp. v. St. Joe Paper Co., 97 So.2d 708, 710 (1st D.C.A.Fla.1957); cert. den. 101 So.2d 817 (1958).

The fact that the strip of land involved was true accretion is not in dispute. The disagreement between the parties appeared to be whether the established rule of law should be followed or whether there should be recognized or created an exception to the general rule. One exception to the general rule is that accretion does not belong to the riparian owner where the riparian himself causes the accretion. E.g., Brundage v. Knox, 279 Ill. 450, 117 N.E. 123 (1917); State v. Sause, 217 Or. 52, 342 P.2d 803 (1959). The reason for this exception is that since land below the ordinary high water mark is sovereignty land of the state, to permit the riparian owner to cause accretion himself would be tantamount to allowing him to take state land. Here the defendant riparian owner did nothing to cause the accretion to the uplands. Therefore, under the facts of this case, there is no exception to the general rule as stated above.

Historically, courts have attempted to distinguish between natural accretions and artificial accretions caused by the riparian owner. There is little authority for distinguishing between natural and artificial accretions generally. St. Clair County v. Lovingston, 90 U.S. (23 Wall.) 46, 23 L.Ed. 59 (1874). That case holds that whether the accretion is the effect of natural or artificial causes makes no difference. Contra, People v. Hecker, 179 Cal.App.2d 823, 4 Cal.Rptr. 334, 343 (2nd Dist.Div.1 1960); South Shore Land Co. v. Petersen, 230 Cal.App.2d 628, 41 Cal.Rptr. 277, 279 (1st Dist.Div.2 1967). The instant case is very similar in that the accretions there were caused by the erection of a dike connecting an island with the main shore of Illinois. The city of St. Louis, exercising its police power, caused the accretion, albeit unintentionally. The United States Supreme Court held that the riparian right to future alluvion or accretion is a vested right similar to the rights of a tree owner to the fruits of the tree.

The state urges that the court make a distinction between artificial accretion and artificial accretion produced by the state or municipality in the exercise of its police power. To do so would be usurping the authority vested in the Legislature to make sweeping changes in property rights assuming constitutional problems are properly avoided.

It would appear at first blush that Martin v. Busch, 93 Fla. 535, 112 So. 274 (1927), represents some support of authority for such a distinction. Upon examination the court in that case ruled that land exposed by a state program of draining Lake Okeechobee remained the property of the state even though that land was now upland of the ordinary high water mark. The court said:

'If to serve a public purpose, the state, with consent of the federal authority, lowers the level of navigable waters so as to make the water recede and uncover lands below the original high-water mark, the lands so uncovered below such high-water mark, continue to belong to the state.' Id. 41 Cal.Rptr. at 287.

It therefore appears that decision deprived the upland owner of his status as a riparian. In order for the instant case to be analogous, the groin project of the City of Madeira Beach would have had to be intended to produce the accretion which occurred and the groin system would have to be in fact the cause of the accretion. Even if this were shown, we would not be inclined to follow the court's treatment of reliction in Martin in this case dealing with accretion.

There are four reasons for the doctrine of accretion: (1) De minimis non curat lex; (2) he who sustains the burden of losses and of repairs imposed by the contiguity of waters ought to receive whatever benefits they may bring by accretion; (3) it is in the interest of the community that all land have an owner and, for convenience, the riparian is the chosen one; (4) the necessity for preserving the riparian right of access to the water. See, St. Clair County v. Lovingston, 90 U.S. (23 Wall.) 46, 67, 23 L.Ed. 59 (1874); Maloney, Plager and Baldwin, Water Law and Administration: The Florida Experience, page 386 (1968).

An additional reason behind the doctrine of accretion relates to the riparian owner's ability to use his land. The ordinary high water mark is well established as the dividing line between private riparian and sovereign or public ownership of the land beneath the water. This dividing line was not chosen arbitrarily.

The use of this dividing line has been reaffirmed in Hughes v. Washington, 389 U.S. 290, 88 S.Ct. 438, 19 L.Ed.2d 530 (1967), where the court reaffirmed the Lovingston accretion doctrine in a contest between the state and a private riparian. There the court said:

'Any other rule would leave riparian owners continually in danger of losing access to water which is often the most valuable feature of their property, and continually vulnerable to harassing litigation challenging the location of the original water lines.' Id. at 293-294, 88 S.Ct. at 440-441.

It is apparent that the reasoning behind this line is demonstrated in the day to day utilization of the waterfront property by its riparian owner. Although the mean or high water mark is an average over a number of years, the daily mark of a high tide on the shore gives both the riparian and the public notice of their possible use of the land on either side of the mark. Freezing the boundary at a...