Board of Trustees of Internal Imp. Trust Fund v. Walker Ranch General Partnership, 85-1698

• Decision Date: 21 August 1986
• Docket Number: No. 85-1698,85-1698
• Citation: 11 Fla. L. Weekly 1842,496 So.2d 153
• Parties: 11 Fla. L. Weekly 1842 BOARD OF TRUSTEES OF THE INTERNAL IMPROVEMENT TRUST FUND, State of Florida, Appellant/Cross-Appellee, v. WALKER RANCH GENERAL PARTNERSHIP, et al., Appellees /Cross-Appellants.
• Court: Florida District Court of Appeals

Page 153

496 So.2d 153

11 Fla. L. Weekly 1842

BOARD OF TRUSTEES OF THE INTERNAL IMPROVEMENT TRUST FUND, State of Florida, Appellant/Cross-Appellee, v. WALKER RANCH GENERAL PARTNERSHIP, et al., Appellees /Cross-Appellants.

No. 85-1698.

District Court of Appeal of Florida Fifth District.

Aug. 21, 1986.

Rehearing Denied Oct. 28, 1986.

Andrew S. Grayson and Lee R. Rohe, Asst. Gen. Counsels, Tallahassee, for appellant/cross-appellee.

Michael L. Rosen and F. Alan Cummings of Holland & Knight, Tallahassee, for appellee/cross-appellants.

COBB, Judge.

The issue for determination on this appeal is the jurisdictional boundary between Polk and Osceola Counties. The cause began when appellant, Board of Trustees of the Internal Improvement Trust Fund, State of Florida (Trustees), filed a petition for a temporary restraining order in the Circuit Court of Osceola County to prevent appellees, Walker Ranch General Partnership, et al. (Walker), from cutting any trees below the high water mark of Lake Hatchineha. The trial court initially enjoined the cutting of the trees which grow beneath a line corresponding to 54 feet mean sea level.

Following the issuance of this order, the Trustees filed an amended complaint for trespass, conversion, permanent injunctive relief, reclamation and civil theft. Walker filed a motion to dismiss for lack of subject matter jurisdiction, claiming that the lands involved were located in Polk, rather than Osceola County. At hearing, the issue revolved around the definition of "shore" found in the statutory description of each county's boundaries. Both section 7.49, Florida Statutes (1985), which describes Osceola County, and section 7.53, Florida Statutes (1985), which describes Polk County, contain references to "along the west and north shore of Lake Hatchineha."

The Trustees claim that the jurisdictional boundary between the counties is the upper extremity of the shore, or the ordinary high water line, a point they claim is located at 54.3 feet above mean sea level. The 54.3-foot figure comes from a study done by one Ernest Bishop in 1966, wherein he determined what he called the "geological high water mark," based on the area where the water made contact with the bank for at least nine percent of the time over twenty years. Walker claims that the boundary between the counties is the lower extremity of the shore, or the ordinary low water line, located at 48.5 feet above sea level. This figure was supplied by the testimony of Thomas Brooks, the superintendent of maintenance for the South Florida Water Management District, who testified that since 1965 the lake has been artificially maintained at a maximum low and high water level of 48.5 feet and 52.5 feet, respectively. The trial court, apparently relying on precedent from King Solomon, determined that the proper boundary was at 50.5 feet above sea level, a point halfway between the regulated high and low water mark. In this case, however, unlike its biblical counterpart, both parties cried out, and both have appealed.

Both parties agree that Lake Hatchineha is located in Osceola County. See Clemons v. Chase, 120 Fla. 429, 162 So. 917 (1935). ¹ Thus, the higher the boundary, the more area within Osceola County, since Polk County constitutes the uplands. Both parties also agree on the definition of what a "shore" is: "the ground between the ordinary high and low water marks." See State ex rel Ellis v. Gerbing, 56 Fla. 603, 47 So. 353 (1908); State v. Contemporary Land Sales, Inc., 400 So.2d 488 (Fla. 5th DCA 1981). The trial court also adopted this definition in its final order.

It is well established in Florida that private ownership does not extend below the ordinary high water mark of adjoining navigable waters. ² State v. Contemporary Land Sales, Inc., supra. The Trustees claim the same mark should constitute the "shore" and thus establish the boundaries of Osceola and Polk Counties.

The ordinary high water line (OHWL) is described as "the point up to which the presence and action of the water is so continuous as to destroy the value of the land for agricultural purposes by preventing the growth of vegetation." Tilden v. Smith, 94 Fla. 502, 113 So. 708, 712 (1927). The high water mark on fresh water rivers is not the highest point to which the stream rises in times of freshets, but is the line which the river impresses upon the soil by covering it for sufficient periods to deprive it of vegetation and destroy its value for agriculture. Tilden, supra. In the instant case, it would be illogical to define the OHWL at 54.3 feet since the water has not reached that level since artificial control began over 20 years ago. This is not a situation where scientific examination of the bank is required to determine the high water mark, since the high water mark of 52.5 feet is reached and known by administrative control.

Walker contends that the low water mark is the proper boundary for the counties, relying primarily on a 1912 New York case, People v. Kyser, 78 Misc. 68, 138 N.Y.S. 801 (1912). In Kyser, the defendant was convicted of illegal fishing. A question arose as to which county the offense occurred in. The defendant contended that the fishing was done in a county other than the one in which he was convicted, since his fishing occurred in an area which was normally dry. The boundary between the counties ran "along the south shore of Oneida Lake." The court noted the law in New York which holds that lakefront owners are deemed to be the owners to the low water mark, and that a grant bounded by the shore of a fresh water river conveys the land to the water's edge at low water. From those cases, the court held that it was apparent that the shore of the lake was the edge of water at the low water mark. The court noted, however, that strictly speaking, the word "shore" would be applied to a strip of land fronting upon tidewater, between the high and low water marks. The judge held that the boundary should be permanent and not dependent on the shift of the level of the lake, and thus held it was the low water line.

Initially, it should be noted that, as pointed out, New York allows ownership of land to the low water line, whereas Florida allows private ownership only to the high water mark. ³ Additionally, the fears of the fluctuating boundary expressed by the court in Kyser would not occur with the boundary fixed at the ordinary high water level, since the boundary would be permanent, not dependent upon where the water would be at times of drought or flood.

The only Florida case discussing the term "shore" as a boundary is Axline v. Shaw, 35 Fla. 305, 17 So. 411 (1895), in which the deed in question described the land in part as "to the shore of Orange Lake; thence northwesterly, with said shore of said lake, ..." The court, in determining that no riparian rights existed under the deed, stated:

... One of the boundaries of her land is the shore of Orange Lake. In conveyancing, the word "shore," as applied to the sea and to tidal waters, has a definite and generally understood signification. It means that portion of land at the water's edge which is daily covered and daily left bare by the rising and falling of the tides. Gould, Waters, §§ 3, 28; Black, Law Dict. tit "Shore"; Storer v. Freeman, 6 Mass. 435 (text, 439). As applied to inland waters, so exact a definition cannot be given. The word generally has only application to large bodies of water, as lakes and large rivers, and means the land adjacent thereto. Webst. Int. Dict. If a boundary upon the "shore" of the lake is an equivalent term to a boundary upon the "lake" itself, or the "waters of the lake," then Mrs. Axline is a riparian proprietor; otherwise, she is not. We do not think the expressions are equivalent. Her land is bounded by the shore. The shore is land. The word "shore" is an antithetic term to that of "water." Their significations, instead of being synonymous, are the opposites of each other Therefore, the boundary is land, and not water. Her land being bounded by the shore of the lake, the idea is excluded that it is bounded by the lake itself or the waters thereof. The deed of Mrs. Axline does not even convey the shore. It conveys "to the shore." A deed conveys all within the boundaries, but does not convey the boundary itself.... There is a manifest difference between land bounded by...