Odom v. Deltona Corp.

• Decision Date: 30 November 1976
• Docket Number: 47086,Nos. 46980,s. 46980
• Citation: 341 So.2d 977
• Parties: 7 Envtl. L. Rep. 20,314 Howard ODOM et al., etc., Appellants, v. The DELTONA CORPORATION, Appellee. BOARD OF TRUSTEES OF the INTERNAL IMPROVEMENT TRUST FUND, Appellant, v. The DELTONA CORPORATION, Appellee.
• Court: Florida Supreme Court

Page 977

341 So.2d 977

7 Envtl. L. Rep. 20,314

Howard ODOM et al., etc., Appellants, v. The DELTONA CORPORATION, Appellee.

BOARD OF TRUSTEES OF the INTERNAL IMPROVEMENT TRUST FUND, Appellant, v. The DELTONA CORPORATION, Appellee.

Nos. 46980, 47086.

Supreme Court of Florida.

Nov. 30, 1976.

As Corrected On Denial Of Rehearing Feb. 15, 1977.

Robert L. Shevin, Atty. Gen., and Kenneth F. Hoffman, Asst. Atty. Gen., for Game and Fresh Water Fish Commissioners, and Ross A. McVoy, Asst. Gen. Counsel, Tallahassee, and John R. Boehm, Research Associate, Daytona Beach, for Bd. of Trustees, Internal Improvement Trust Fund, appellants.

L. Grant Peeples and William L. Earl, of Peeples, Earl & Blank, Miami, for appellee.

William A. Leffler, III, Sanford, Frank A. Ford, Bartow, and William E. Scherman, of Landis, Graham, French, Husfeld, Sherman & Ford, DeLand, and Robert Bruce Snow, Brooksville, for amici curiae.

BOYD, Justice.

In this matter we are reviewing a direct appeal ¹ from the Circuit Court of the Second Judicial Circuit of Florida in and for Leon County. The judicial reasoning and clarity of the trial court's opinion is of such nature that we consider it advisable to publish it in its entirety followed by our own observations.

'FINAL SUMMARY JUDGMENT

'This cause came on for consideration of the Plaintiff's Motion for Summary Judgment and the Court having considered the pleadings, affidavits, depositions, admissions, and all other papers and documents filed in the cause, and having read the briefs and memoranda of counsel and heard arguments, and being otherwise advised, it is

'ORDERED, ADJUDGED AND DECLARED:

'1. The said motion is found to be well taken, as there is no genuine issue of material fact and the plaintiff is entitled to judgment as a matter of law to the extent herein declared.

'2. This is an action for declaratory and injunctive and other relief against the defendant Board of Trustees of the Internal Improvement Fund (hereafter referred to as 'Trustees') and Game and Fresh Water Fish Commission (hereafter referred to as 'Commission'). The Attorney General was permitted to intervene. The plaintiff will be referred to as 'Deltona'. The issues involved the respective rights and duties of the parties in the areas of certain nonmeandered lakes or ponds located within the primeter of lands in Volusia and Hernando Counties to which Deltona has or had paper title in connection with the development of communities known as Deltona Lakes Subdivision (Volusia County) and Spring Hill Subdivision (Hernando County). Deltona Claims to own the lakes in question under various chains of title originating either in U.S. Patents or deeds of the Trustees of land acquired by the state under the Swamp and Overflow Lands Grant Act of September 28, 1950 (sic). The Trustees claim that the lakes are the waters, beds and shores of navigable waters which are held by the state in trust for the public by virtue of the state's sovereignty. The controversy arises out of certain activities of Deltona to develop the lands for community purposes which involves certain drainage, dredging and other alterations to the shores, bottoms and waters of certain of the lakes. The Trustees and the Commission, through their officers and agents, have sought to interfere with such activity contending that such are violations of F.S. 253.123, 253.124 and F.S. 370.035 because of lack of permits required, and the development of the lake areas will interfere with the environmental ecology and conservation of natural resources.

'3. The real question involved is the status of such lakes as to whether they are the private property of Deltona or are vested in the state as sovereignty lands in trust for the people.

'4. By stipulation, confirmed by Order dated June 26, 1974, the defendants and the Intervenor Attorney General have waived and released all claims or assertions of jurisdiction, except certain reservations of mineral rights and road rights of way, in the properties described below:

'(a) Hernando County;

Sections 1, 2, 11, 12, 22, 25, 26, 31, 34 and 35, Tp. 23 S, R 17 E; Sections 4, 5, 6, 7, 8, 9, 15, 17, 18, 19, 20, 21, 22, 27, 28, 29, 30 and 34, Tp. 23 S, R 18 E; those portions of Sections 13, 14, 23, 24, 27, 28, 29, 32 and 33 Tp. 23 S, R 17 E not within the defined perimeters and which do not constitute shoreline of or about certain bodies of water known as Hog Pond, Hunter's Lake, and Weekiwachee Prairie Lake, according to the Official United States Government Quad Map.

'(b) Volusia County:

Sections 2, 3, 8, 11, 12, 13, 17, 18, 19, 20, 24, 25, 28, 29, 30, 31, 32, 33, Tp. 18 S, R 31 E; Sections 24, 25 and 36, Tp. 18 S, R 30 E; Sections 5 and 6, Tp. 19 S, R 31 E; those portions of Sections 9, 10, 14, 15, 21, 22, 23, 26, 27, 34, 35, Tp. 18 S, R 31 E, and those portions of Sections 1, 2, 4, 11, Tp. 19 S, R 31 E, not within the defined perimeters and which do not constitute shoreline of or about certain bodies of water known as Three Islands Lake, Dupont Lake, Theresa Lake, Louise Lake, Big Lake, Lake Hutchinson, Elizabeth Lake, Anne Marie Lake, Sidney Lake, Diana Lake, and portions of Lake Butler Chain according to the Official United States Government Quad Map.

Therefore, this judgment pertains only to such areas and properties not included in the above described land.

'5. It is undisputed that all of the lands have been government surveyed and the official surveys did not meander any of the lakes involved. It is also established that all the area of the lakes is included within the perimeters of the lands described in U.S. Patents and Trustees' deeds to grantees who became private owners and that no reservations were made for public use and no deductions for water were included. Most of these instruments were executed prior to the turn of the century, but some were as late as 1952. It also is not contested that Deltona and its predecessors in title have paid the taxes levied on these properties and that they have been vested with the fee simple paper title of record for more than 30 years and that there is nothing of record purporting to divest them of such an estate.

'6. The rights of the defendants to interfere with the lakes in the area is based upon a claim that the lakes involved are navigable bodies of water and that the shore, bed and waters are held by the Trustees, as agents of the state, as sovereignty lands of the state in trust for the public.

'7. It is clearly established as the law in this jurisdiction that by virtue of its statehood, Florida holds the title to the waters, shores and beds of all navigable waters in trust for the people for the purposes of navigation, commerce, fishing, bathing and other easements allowed by law in the water. Such trust is governmental and cannot be wholly alienated, but by appropriate means there may be granted to individuals titles to limited portions or there may be given limited privileges so long as it does (not) divert them from their proper use for public welfare or relieve the state of its control and regulation. Broward v. Mabry, 58 Fla. 398, 50 So. 826; State v. Black River Phosphate Co., 32 Fla. 82, 13 So. 640. It is also recognized that properties acquired by the state under the Swamp and Overflow Grant Act of 1850 do not cover or include lands under navigable waters as such were already held by the state in trust by virtue of sovereignty, State v. Gerbing, 56 Fla. 603, 47 So. 353 (1908) and a deed from the Trustees of I.I. Fund purporting to convey lands acquired under the 1850 Act of Congress would not convey sovereignty lands. Martin v. Busch, 93 Fla. 535, 112 So. 274. These principles have been consistently recognized and applied and are not to be doubted. However, whether or not a particular area is that of a navigable body of water and thus sovereignty property held in trust is a question of fact and dependent upon whether or not the body of water is permanent in character and, in its ordinary and natural state, is navigable for useful purposes and is of sufficient size and so situated and conditioned that it may be used for purposes common to the public in the locality where it is located. Broward v. Mabry, supra. See also Bucki v. Cone, 25 Fla. 1 (6 So. 160) and Clement v. Watson, 63 Fla. 109, 58 So. 25.

'8. It is to be noticed that navigable waters and their shores and bottoms are in a number of dissimilar forms such as seas, bays, tidewater inlets, rivers, and lakes. Particular difficulty arises in reference to fresh water lakes whose size, depth and relationship to other water bodies vary from a body like Lake Okeechobee of a vast area to bodies variously referred to as ponds, sloughs, and lakes which contain relatively few acres and which may vary considerably from time to time depending upon rainfall and other natural influences. The legal tests of navigability are at best broad guidelines and it is not surprizing that so many disputes have arisen on this issue. As it is equally well settled that non-navigable bodies are subject to private ownership, Pounds v. darling, 75 Fla. 125, 77 So. 666; Clement v. Watson, supra; Baker v. Jones (1956) 87 So.2d 497, there is often the conflicting claim of private owner and that of the state, as trustee, to the same area. Also, the riparian rights and limitations of owners of lands bordering on navigable waters or claims that such rights exist have been the subject of much controversy when the fact of navigability is an issue.

'9. The basis of the title status of sovereignty lands rests initially on the common law of England under which the Corwn held the title to the beds of navigable and tide waters, in trust for the people of the realm who had rights of navigation, commerce, bathing, and fishing and other recognized easements. This rule was applicable to the English colonies and after the Revolution resulting in independence of the American states, title to the beds of all waters, navigable in fact, was held by...