Duval v. Thomas

CourtUnited States State Supreme Court of Florida
Citation114 So.2d 791
PartiesElizabeth J. DUVAL, Petitioner, v. Vernon T. THOMAS and Ruby Lee Thomas, Respondents. Marian HRUBY, Petitioner, v. Vernon T. THOMAS and Ruby Lee Thomas, Respondents.
Decision Date17 July 1959

Mabry, Reaves, Carlton, Fields & Ward and O. K. Reaves, Tampa, for Elizabeth J. Duval, petitioner.

G. Richard Christ, Tampa, for Marian Hruby, petitioner.

John S. Berry, Tampa, for respondents.

THOMAS, Chief Justice.

These two cases have reached this court via petitions for certiorari to review a decision of the District Court of Appeal, Second District, which decided both appeals in one opinion. Duval v. Thomas, Fla.App., 107 So.2d 148. Because of the identicalness of the salient facts and the points of law involved we will treat them in the same manner.

Briefly, the reason this court entertains jurisdiction is the apparent conflict among our decisions and consequently between some of them and the one of the District Court of Appeal in the instant case, with reference to the application of the common law and civil law doctrines to the rights of owners of property such as we will now describe.

In order more clearly to present the facts, we will, at the outset, record a rough sketch of the locale.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

Further to simplify the statement of fact we will refer to the respondents, who were successful in the circuit court and District Court of Appeal, as 'Thomas' and to the petitioners, owners of adjoining land, as 'Duval' and 'Hruby'. The lake is nonnavigable and land-locked and is wholly owned by the parties litigant and, presumably, by others who are not parties to this litigation.

The controversy arose when Duval placed a barrier of soil in the lake along the north boundary of her property to the corner common to the land of herself Hruby and Thomas, and Hruby constructed a fence on her west line from the shore to the common corner. By these methods Thomas' use of the lake was restricted to the small 'wedge-shaped' area defined by his east and south lines and the lake shore between them.

Thomas sought relief from this obstruction against his access to the lake and was awarded a decree.

The chancellor held that the actions of Duval and Hruby served no proper purpose and constituted an unreasonable use of the portion of the lake affected so he ordered them to remove the barriers they had constructed and to restore the natural shore line and, moreover, he enjoined them from a repetition of their actions in this respect.

The ultimate question is whether an owner of property with certain of its boundaries under the water of a lake, such as Lake Calm, has exclusive dominion over it and, by the same token, is confined to his own boundaries or whether all similarly situated owners may use all of the lake for boating, bathing and fishing so long as none interferes with the rights of the others.

It is argued that under the common law doctrine only the owner could use the water overlying his fee, Smoulter v. Boyd, 1904, 209 Pa. 146, 58 A. 144, 66 L.R.A. 829, while under the doctrine of the civil law the whole lake could be used by any owner of a part of the bottom subject, of course, to the rights of those in like situation. Snively v. Jaber, 1956, 48 Wash.2d 815, 296 P.2d 1015, 57 A.L.R.2d 560. In view of the presence in Florida of literally thousands of lakes the question is one of considerable importance.

With this brief preface, we go now to a consideration first of the common law doctrine and a study of the reasons it should be accepted, or rejected. In effect, the District Court of Appeal after a learned discussion of the legal questions presented held that the civil law doctrine did apply and affirmed the chancellor's decision.

On behalf of one of petitioners it is asserted that the decision of the District Court of Appeal collides with the ruling of this court in Osceola County v. Triple E. Development Company, Fla., 90 So.2d 600, in which they think this court embraced the common law rule because of the language that inland lakes are subject to private ownership and when so owned are not accessible to the public or adjacent owners whose titles extend only to the water's edge. But it seems to us that the controlling facts in that litigation are so unlike those with which we are dealing that the judgment did not amount to a commitment of this court to the common law as distinguished from the civil law principle.

The lake in question was entirely owned by one corporation, so that it was impossible for anyone to reach it except by trespassing. The attempt to open the lake to the use of the public was made by condemnation to secure a right-of-way from a nearby highway to the shore. Obviously, an easement for a 'public way over private property' was sought in order to admit the public to the lake. 'Such an appropriation * * * [was held not to be one] for a public purpose' and was disapproved. We consider that it would not be logical to place the county in that case in the same position as Thomas in this one, or the owner of an entire lake in the same position as Duval and Hruby. There was no pretense that property appropriated by eminent domain would have amounted to more than an easement to the water's edge over private property of the lake owner.

The decision that a lake could be actually owned was a recognition by the court of an element both of the civil and common law doctrines, but it did not bind us to the latter. And, inasmuch as but one owner was then involved the opinion does not aid us in determining relative rights when a lake is owned by two or more persons.

A study of the decision in Pounds v. Darling, 75 Fla. 125, 77 So. 666, L.R.A.1918E, 949, does not reveal any language that could be said to recognize a common law doctrine that each owner of a portion of a lake bed should be restricted to the use of the water within the boundaries of his property. It was merely held in that case that the city of Orlando could not prevent owners of lots abutting a lake from bathing in its water because such would amount to taking property without due process of law, but the litigation did not involve a decision about the rights of the owners of the bed in relation to one another. We do not construe the decision as a pronouncement that in such a situation each owner could disport only within the confines of his own land lines. The question was, rather, whether or not all owners...

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  • Stone v. Wall
    • United States
    • Florida Supreme Court
    • June 17, 1999
    ...customs and present day conceptions of right and justice.'" Hoffman v. Jones, 280 So.2d 431, 435-36 (Fla.1973) (quoting Duval v. Thomas, 114 So.2d 791, 795 (Fla. 1959)). "[C]ontemporary conditions must be met with contemporary standards which are realistic and better calculated to obtain ju......
  • T.M.H. v. D.M.T.
    • United States
    • Florida District Court of Appeals
    • January 26, 2012
    ...to prevail in Florida unless modified by statute.”). Courts must observe the common law when it is plainly stated. Duval v. Thomas, 114 So.2d 791, 795 (Fla.1959). Florida's statutory scheme also recognizes the birth mother as the legal mother of the child to whom she gave birth. As both par......
  • Lincenberg v. Issen
    • United States
    • Florida Supreme Court
    • July 30, 1975
    ...of contributory negligence is a part of our common law by virtue of prior judicial decision, it is also true from Duval (Duval v. Thomas, 114 So.2d 791 (Fla.1959)) that the Court may change the rule where great social upheaval dictates. It has been modified in many instances by judicial dec......
  • Wehby v. Turpin
    • United States
    • Alabama Supreme Court
    • February 20, 1998
    ...at 493; see Anderson v. Bell, 433 So.2d 1202 (Fla.1983) (distinguishing that case from the court's earlier decision in Duval v. Thomas, 114 So.2d 791 (Fla.1959), discussed infra, in which the Florida Supreme Court had adopted the civil law rule); Black v. Williams, 417 So.2d 911 (Miss.1982)......
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