Hayes v. Bowman

• Decision Date: 04 January 1957
• Parties: Warwick J. HAYES and his wife, Olive Hayes and M. Parker Abbott and his wife, Esther S. Abbott, Appellants, v. J. Warren BOWMAN, Richard H. Misener and L. Carle McEvoy, Jr., Appellees.
• Court: Florida Supreme Court

Page 795

91 So.2d 795

Warwick J. HAYES and his wife, Olive Hayes and M. Parker Abbott and his wife, Esther S. Abbott, Appellants, v. J. Warren BOWMAN, Richard H. Misener and L. Carle McEvoy, Jr., Appellees.

Supreme Court of Florida, Special Division A.

Jan. 4, 1957.

Lindsey & Cargell, St. Petersburg, for appellants.

Henry Esteva, St. Petersburg, for appellees.

THORNAL, Justice.

Appellants Hayes and Abbott, who were plaintiffs below, seek reversal of a final decree of the Chancellor in a declaratory judgment proceeding involving alleged riparian rights of the parties in the tidal waters of Boca Ciega Bay.

Although many incidental questions are propounded, the determining point is whether a fill proposed by the appellees would, when constructed, encroach upon was common law riparian rights of appellants.

An understanding of the opposing contentions will be assisted by a drawing of the land and proposed fill, all of which is set out as follows:

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

Prior to the institution of this suit appellees and their predecessors were owners of a portion of the mainland on the western shore of Boca Ciega Bay. They acquired a parcel of submerged lands in the Bay from the Trustees of the Internal Improvement Fund. By dredging and filling they built a subdivision known as Brightwater Beach Estates shown in the foregoing drawing. The northern tier of lots comprising Block 4 is located on a narrow dredged-in penisula approximately 1750 feet long in an easterly direction from the mainland toward the Channel. Lots A and B, Block 4, constitute a parcel of land across the eastern extremity of said Block 4. Blocks 1, 2 and 3 are dredged-in 'fingers' or peninsulas constructed in a southeasterly direction from the southern boundary line of said Block 4. Block 3 is the easternmost of these three fingers. Appellants' property is Lot 11, Block 3. It is located on the easterly side of the Block. Consequently, the front of appellants' lot faces the waters and Channel of the Bay. The sidelines of appellants' lot run in a generally northeasterly-southwesterly direction.

Appellees own Lots A and B above meentioned. The south line of these lots is about 200 feet north of thee neortherly line of appellants' lot.

On October 22, 1954, appellees acquired from the Trustees of the Internal Improvement Fund an additional strip of submerged land 270 feet in width extending from the easterly edge of Lots A and B a distance of 2300 feet easterly toward the Channel. Appellees now propose to dredge and fill this newly acquired submerged land. Appellants filed a complaint to enjoin the proposed operation. The Chancellor entered a summary final decree for the appellees. Hence, this appeal seeking reversal of the decree.

It is the contention of the appellants that as upland owners of land bounded by navigable waters they enjoy certain common law riparian rights to an unobstructed view of the Bay, as well as a right of ingress and egress to and from their land over the waters of the Bay from and to the Channel. They contend that these rights exist in an area over the waters of the Bay to be determined by extending their side lot lines in a northeasterly direction to the Channel. They assert that appellees' proposed fill 2300 feet easterly of said Lots A and B toward the Channel would therefore completely bi-sect the corridor over and through which they are entitled to enjoy their riparian rights and reach the Channel. In other words, they contend that the common law riparian rights of an upland owner abutting navigable waters are exclusive against all interference in that area over the waters established by an extension of the side lines of the upland lot to the Channel.

It is the position of the appellees that when the Channel substantially parallels the shoreline the common law riparian rights of the upland owner are to be established in an area measured by lines drawn perpendicularly from the thread of the Channel to the corners of the property of the upland owner. By applying this rule they contend that the construction of the proposed fill would not in any way interfere with the area vouchsafed to appellants for the exercise of their common law rights.

A cautious analysis and a thorough understanding of the nature of the sovereign's proprietorship of submerged lands under tidal waters is suggested by this record. To paraphrase the language of Judge Learned Hand in Jackson & Co. v. Royal Norwegian Government, 2 Cir., 177 F.2d 694, 702, 'out of the rivers of ink that have been written on this subject' certain fundamental principles have emerged which are entitled to careful examination and restatement. In our democracy the State's title is in the nature of the sovereign proprietorship as it existed at common law. We must at the same time understand and give due regard to the littoral and riparian rights of the upland owners. These are appurtenances to private property which are entitled to due recognition and protection. The vital aspect of the problem in Florida is acutely demonstrated when we look to our general coastline of 1197 statute miles and our detailed tidal shoreline, including bays, sounds and other bodies measured to the head of tidewater, which measures 8426 statute miles. See The World Almanac, 1955, p. 258. The expanding importance of the situation is underscorded by the enactment of the so-called Submerged Lands Act of 1953 by the Congress of the United States. 67 Stat. 29, 43 U.S.C.A. § 1301 et seq. See State of Alabama v. State of Texas, 1954, 347 U.S. 272, 74 S.Ct. 481, 98 L.Ed. 689. For earlier views of the Supreme Court of the United States, see Shively v. Bowlby, 1893, 152 U.S. 1, 14 S.Ct. 548, 38 L.Ed. 331; Skiriotes v. State of Florida, 1941, 313 U.S. 69, 61 S.Ct. 924, 85 L.Ed. 1193; Toomer v. Witsell, 1948, 334 U.S. 385, 393, 68 S.Ct. 1156, 92 L.Ed. 1460; and contrast United States v. State of California, 1946, 332 U.S. 19, 67 S.Ct. 1658, 91 L.Ed. 1889.

At common law, although admittedly there was some divergence of view, the title to all land under tidal waters below high water mark belonged to the Crown. These waters and the lands which they covered were held by the king in trust for the use of all his subjects. The primary uses were navigation, bathing and fishing. Thus it was that the title, jus privatum, was held by the king as sovereign but the dominion, jus publicum, was vested in him for the benefit of the people. At least from the time of Sir Matthew Hale (1609-1676) this was the accepted rule, except in cases where an individual had acquired rights in the submerged lands by express grant which did not interfere with navigation, and other riparian right such as fishing. Thus arose the doctrine of the so-called 'inalienable trust' whereby the sovereign held the legal title for the equitable use of his subjects. See Moore's, History and Law of the Foreshore and Sea Shore.

With the colonization of the Western hemisphere this became the accepted doctrine among the thirteen original states and the territories. Shively v. Bowlby, 152 U.S. 1, 14 S.Ct. 548, 38 L.Ed. 331; Martin v. Waddell's Lessee, 1842, 16 Pat. 367, 414, 10 L.Ed. 997; Skiriotes v. State of Florida, 313 U.S. 69, 61 S.Ct. 924, 85 L.Ed. 1193. The rule has been varried slightly in some states by statute.

Subject to certain statutory variations which we hereafter point out, it is well settled in Florida that the State holds title to lands under tidal navigable waters and the foreshore thereof (land between high and low water marks). As at common law, this title is held in trust for the people for purposes of navigation, fishing, bathing and similar uses. Such title is not held primarily for purposes of sale or conversion into money. Basically it is trust property and should be devoted to the fulfillment of the purposes of the trust, towit: the service of the people.

However, consonant with the common law rule, the State may dispose of submerged lands under tidal waters to the extent that such disposition will not interfere with the public's right of navigation, swimming and like uses. Moreover, any person acquiring any such lands from the State must so use the land as not to interfere with the recognized common law riparian rights of upland owners (an unobstructed view, ingress and egress over the foreshore from and to the water). Thiesen v. Gulf, F. & A. Ry. Co., 75 Fla. 28, 78 So. 491, L.R.A.1918E, 718; Hicks v. State, 116 Fla. 603, 156 So. 603; Pembroke v. Peninsular Terminal Co., 108 Fla. 46, 146 So. 249; State v. Gerbing, 56 Fla. 603, 47 So. 353; State ex rel. Landis v. Rosenthal, 109 Fla. 363, 148 So. 769; Tampa Southern Railroad Company v. Nettles, 82 Fla. 2, 89 So. 223. Upland owners have been granted additional statutory riparian rights which must be recognized. These we mention hereafter.

This power of the State to dispose of submerged tidal lands has assumed important proportions in recent years. Valuable subdivisions have been built on dredged-in fill. Large areas have been leased to those who would speculate in drilling for oil. Increased interest in this type of land bears forebodings of even more complex problems in the future. These lands constitute tremendously valuable assets. Like any other fiduciary asset, however, they must be administered with due regard to the limitations of the trust with which they are impressed. Merrill-Stevens Co. v. Durkee, 62 Fla. 549, 57 So. 428; Martin v. Busch, 93 Fla. 535, 112 So. 274; Brickell v. Trammell, 77 Fla. 544, 82 So. 221; Deering v. Martin, 95 Fla. 224, 116 So. 54.

The custodians of this trust are the Trustees of the Internal Improvement Fund. See Chapter 253, Florida Statutes, F.S.A. Prior to 1951 the Trustees were authorized to sell tidal lands upon which the waters were not more than three feet deep at high tide and which were separated from the mainland by a channel not less than five feet deep at high tide, and also...