Lee v. Williams
| Decision Date | 30 March 1998 |
| Docket Number | No. 96-2560,96-2560 |
| Citation | 711 So.2d 57 |
| Parties | 23 Fla. L. Weekly D881 Robert V. LEE, III, and Mirte Deboer Lee, etc., Appellants, v. Robert L. WILLIAMS and Lillian D. Williams, etc., Appellees. |
| Court | Florida District Court of Appeals |
Arnold H. Slott of Slott & Barker, Jacksonville, for Appellants.
B. Thomas Whitefield of Morford & Whitefield, P.A., Jacksonville, for Appellees.
Michael L. Rosen, Executive Director, Tallahassee, Amicus Curiae, for Florida Legal Foundation, Inc.
F. Perry Odom and Suzanne B. Brantley, Tallahassee, Amicus Curiae, for the State of Florida Board of Trustees of the Internal Improvement Trust Fund.
It is a compelling feature of our legal system that often far-reaching legal questions do not come to the courts for resolution until two or more ordinary citizens who have become antagonists require its resolution. This is such a case. The parties to this case are neighbors and their dispute is over the appellants' right to construct a boatlift. It appears that resolution of the dispute requires us to reconsider who owns the nonnavigable tidelands of Florida.
The basic facts that are not in dispute appear as follows in the final judgment of the lower court:
Plaintiffs, Robert V. Lee, III, and Mirte Deboer Lee, Husband and Wife, are the owners of property described as Lot 12 of Butler's Replat of Butler's Subdivision, according to the plat thereof recorded in Plat Book 7, page 15 of the public records of St. Johns County, Florida. Defendants, Robert L. Williams and Lillian D. Williams, Husband and Wife, own Lot 13 (except the SE 140 feet thereof). The Lees' and Williams' lots are contiguous. The westerly boundary of the Williams' lot is defined as the centerline of Butler's Branch, a small waterway shown on the plat of Butler's Replat. Lees' northern boundary is Julington Creek, a navigable body of water. The waters of Butler's Branch and Julington Creek join at the northwest end of the Lees' property.
Fred Ward was the owner of Lot 13 in 1960 when he entered into an agreement with Fred G. Hafers, owner of lands abutting the western and northern boundaries of Lot 13. The agreement permitted Ward to excavate a navigational canal or ditch to run northerly through and across Lot 13 from the northerly right-of-way line of Wentworth Avenue, through and across the conflux of Butler's Branch and Julington Creek and into Julington Creek. The owner of Lot 13 was granted a perpetual easement and right-of-way over and upon the canal.
In 1961 when Ward sold the northerly portion of Lot 13 to the Williams, the canal had been excavated. Initially the canal bank was further from the common boundary of Lots 12 and 13 than it is today. Mr. Williams testified that in 1961 had the Lees' boatlift been erected where it is today, it would have been on dry land. Over the years as a result of boat wakes, and the action of the elements the canal bank eroded toward the common boundary line.
In the mid-1980's the then owner of Lot 12, without the Williams' permission, constructed a bulkhead along the then existing bank of the canal that was near the common boundary. The surveys in evidence show the greater portion of the bulkhead protecting Lot 12 was built on Lot 13. At one point, the bulkhead encroaches five (5) feet over the common boundary onto Lot 13. Mr. Williams testified he thanked the owner for bulkheading part of Williams' property and that he and the owner of Lot 12 never had any dispute as to the ownership of the property where the bulkhead was located.
The Lees purchased Lot 12 in 1993. Sometime in October of 1994, the Lees without the permission or knowledge of the Williams, caused a boatlift to be constructed in the canal adjoining the previously constructed bulkhead. The boatlift is located entirely within Lot 13. According to Mr. Lee's testimony the boatlift was constructed so that it will support a roof. The Williams protested construction of the boatlift, tempers flared, angry words were spoken, this law suit was filed and a temporary injunction obtained against the Williams.
* * *
At issue in this case is whether the canal, which traverses nonnavigable tidelands within the Williams' lot, is privately owned by appellees or whether it is sovereignty land available for public use. Resolving the dispute in favor of the Williams, the trial court concluded that Clement v. Watson, 63 Fla. 109, 58 So. 25 (1912) was dispositive. In Clement, Thomas Watson was sued by Waldo Clement for excluding him from fishing privileges in waters which were affected by the daily ebb and flow of the ocean tides. The disputed property was a cove surrounded by property owned by Watson's wife, except its 300-foot wide mouth which merged with a river. A sandbar traversing the mouth of the cove was almost bare at low tide but was covered at high tide. The cove waters, which had originally been shallow and nonnavigable, had been dredged so that a 16-foot wide channel rendered it accessible by small craft. The Watsons' home was near the cove and their wharf extended from the land into the cove.
The trial court refused Clement's requested jury instruction that Watson was not entitled to private or exclusive ownership or control of waters subject to the daily ebb and flow of the tides. At the conclusion of the trial, the court entered a directed verdict in favor of Watson.
Affirming the trial court, the supreme court noted that the state holds for public use navigable waters and the lands under such waters, including the shore or space between high and low water marks. Defining navigable waters as those waters which "by reason of their size, depth, and other conditions" are navigable for useful public purposes, it emphasized that waters are not navigable merely because they are affected by the tides. The court distinguished between sovereignty and privately-owned lands in the following way:
The shore of navigable waters which the sovereign holds for public uses is the land that borders on navigable waters and lies between ordinary high and ordinary low water mark. This does not include lands that do not immediately border on the navigable waters, and that are covered by water not capable of navigation for useful public purposes, such as mud flats, shallow inlets, and lowlands covered more or less by water permanently or at intervals, where the waters thereon are not in their ordinary state useful for public navigation. Lands not covered by navigable waters and not included in the shore space between ordinary high and low water marks immediately bordering on navigable waters are the subjects of private ownership, at least when the public rights of navigation, etc., are not thereby unlawfully impaired. [citations omitted].
Id., 58 So. at 26-27 (emphasis added). See also City of Tarpon Springs v. Smith, 81 Fla. 479, 88 So. 613 (1921). The Clement court determined that Watson owned the cove, including its attendant fishing privileges.
Based on Clement 1, the court in this case concluded that the dredging of a navigable canal across Butler's Branch, a nonnavigable waterway, did not render the branch navigable for purposes of determining ownership of the canal. The court found further, consistent with Clement, that the branch could not be deemed navigable merely because its waters were tidal and flowed into the navigable waters of Julington Creek. The court acknowledged that sovereign ownership of land is, in some states, based upon whether waters are tidal. The court concluded that the majority of states, including Florida, base the determination on whether the water is navigable. See Art. X, § 11, Fla. Const.; 2 § 253.12(1), Fla. Stat. (1995); 3 Coastal Petroleum Co. v. American Cyanamid Co., 492 So.2d 339, 342 (Fla.1986), cert. denied, 479 U.S. 1065, 107 S.Ct. 950, 93 L.Ed.2d 999 (1987). Clement is clear, it has never been overruled 4 and the facts are analogous to the facts of this case.
Urging that the trial court's reliance on Clement is misplaced, appellants and the State of Florida, through the Board of Trustees of the Internal Improvement Fund ["Trustees"], appearing as amicus curiae, contend the landmark 1988 decision of the United States Supreme Court in Phillips Petroleum Co. v. Mississippi, 484 U.S. 469, 108 S.Ct. 791, 98 L.Ed.2d 877 (1988), supersedes Clement and compels the conclusion that all of Florida's tidelands, both navigable and nonnavigable, including the land on which the Lees' boatlift is constructed, are sovereignty lands of the state.
In Phillips Petroleum, the issue before the Supreme Court was whether Mississippi, upon its entrance to the union in 1817, took title to lands lying under nonnavigable tidally influenced waters in the Gulf of Mexico. The Supreme Court, citing Shively v. Bowlby, 152 U.S. 1, 14 S.Ct. 548, 38 L.Ed. 331 (1894), characterized as its longstanding precedent that the states, upon their entry into the Union, received ownership of all tidelands or lands under waters, including the shore or space between high and low water marks, subject to the daily tidal ebb and flow. At the same time, however, the court reiterated that real property law is for the individual states to develop and administer, that the public trust doctrine is a common law doctrine and that individual states are free to define the limits of lands held in public trust and to recognize private rights in such lands. It explained that some states have chosen to depart from the common law rule limiting crown ownership to the soil under tidal waters. In those states, the public trust interest in tidelands is based on navigability rather than the ebb and flow rule.
The three critical holdings of Phillips Petroleum are these:
1) The states, upon entry into the Union, received ownership of all lands under waters subject to the ebb and flow of the tide. 5
2) This fact is based on "well-established," "consistent," "long-standing precedents of the court since the...
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