State ex rel. Wilcox v. T. O. L., Inc.

• Decision Date: 16 January 1968
• Docket Number: No. 1189,1189
• Citation: 206 So.2d 69
• Parties: STATE of Florida ex rel. Thomas W. WILCOX, Henry F. Erfurt, John G. Ellis, Jr., Charles A. Baldwin, Vernon Stanford, Frederick M. Armstrong, Paul L. Chell, David E. Barns, Herbert R. Moss and George Johnson, Appellants, v. T.O.L., INC., a corporation existing under the laws of the State of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 69

206 So.2d 69

STATE of Florida ex rel. Thomas W. WILCOX, Henry F. Erfurt, John G. Ellis, Jr., Charles A. Baldwin, Vernon Stanford, Frederick M. Armstrong, Paul L. Chell, David E. Barns, Herbert R. Moss and George Johnson, Appellants, v. T.O.L., INC., a corporation existing under the laws of the State of Florida, Appellee.

No. 1189.

District Court of Appeal of Florida, Fourth District.

Jan. 16, 1968.

Palmer W. Collins, of Collins & Clark, Indian Harbour Beach, for appellants.

Robert L. Nabors, of Crofton, Holland, Starling & Goshorn, Titusville, for appellee.

GONZALEZ, JOSE A., Jr., Associate Judge.

Appellants are boat owners and yachtsmen who own property abutting certain waterways in Brevard County, Florida. These dedicated public waterways flow into a larger waterway known as the Mosquito Control Canal upon which they have normally operated their boats and thereby gained access to the Banana River and the sea.

They appeal a final decree dismissing their action to enjoin an alleged public nuisance, to wit: The construction by a private corporation of a fixed span bridge across said canal.

This construction will effectively close the northern terminus of the Mosquito Canal to most marine traffic, although access to the ocean will continue to be available through the southern end.

The facts disclose that the Mosquito Control Canal runs north and south and was dug by Brevard County across an area of uninhabited mangrove swamp in 1954. Lateral drainage ditches running east and west were also dug about every half mile. The canal proper is some 100 feet wide and has a depth of 14 to 18 feet.

Subsequently, a number of residential subdivisions were platted in the area which bordered the main canal and other newly created waterways. The platted waterways were specifically dedicated to public use.

Appellants purchased waterfront homes in these subdivisions and have been accustomed to using these platted waterways or canals as well as the Mosquito Control Canal for boating purposes.

The canal has been used continuously and extensively by appellants and the public generally for both pleasure and commercial navigation since its construction in 1954.

In 1962, Tam-O-Lark Corporation granted an easement over the canal to Brevard County fully vesting it with rights '* * * to use, maintenance, and operation of the said mosquito drainage control canal, * * *'

In 1965, Appellee, T.O.L., Inc., platted a subdivision known as 'The Moorings' along the west bank of the canal and in 1966 began construction of the fixed span bridge which is the subject of this litigation.

This improvement was required by the Board of County Commissioners of Brevard County so as to give access to a sewage treatment plant to be constructed on the west side of the canal by appellee. This plant will provide sewer service to the proposed subdivision.

The construction of the bridge and erection of the sewer plant is a prerequisite to approval of appellee's proposed plat by the Board of County Commissioners.

A performance bond was furnished by appellee conditioned upon completion of the improvement as required by law. See J. T. Newton Co. v. Martin Develop. Co. of Cocoa Beach, Florida, Fla.App.1966, 193 So.2d 464, for the statutory authority for the performance bond requirement and the purpose thereof.

The bridge upon completion will become public property and public thoroughfare.

Appellee owns the land on both the east and west sides of the canal but, for all that appears, does not own the land underlying the canal.

In August, 1966, appellee began construction of the bridge and this suit followed.

Appellants maintain that the Mosquito Canal is a permanent, navigable public waterway and that the proposed bridge constitutes a public nuisance which will daily interfere with their right to use the canal for navigation and for marine ingress and egress to their respective properties.

The parties agree that no question of prescriptive rights is involved.

Appellee argues that it is constructing the bridge in question pursuant to the express mandate and requirement of the Board of County Commissioners of Brevard County and hence the structure cannot be deemed a public nuisance.

Public and navigable waterways are public highways upon which the public is entitled to travel either for business or pleasure. See Bucki v. Cone, 1889, 25 Fla. 1, 6 So. 160.

Assuming arguendo that the waterway in question is indeed a public navigable waterway, it does not follow that appellants have a perpetual and inalienable right to navigate thereon.

The government, through the exercise of the police power, may impose reasonable restrictions on the use of property in the interest of public health, safety and welfare and the enjoyment of all rights and property are subject to a valid exercise of this power. Sharrow v. City of Dania, Fla.1955, 83 So.2d 274; City of Miami Beach v. Ocean and Inland Co., 1941, 147 Fla. 480, 3 So.2d 364.

Admittedly, the public right of free navigation upon the public waters of this state is protected by law. See Alden v. Pinney, 1869, 12 Fla. 348; 56 Am.Jur., Waters, § 218; see also F.S. Sec. 861.02, F.S.A.1965, Obstructing watercourse and F.S. Sec. 861.05, F.S.A.1965, Obstruction to navigation by bridges. This protection, however, cannot be extended to mean that the exercise of this right cannot be properly regulated or limited under the police power in the interest of the general welfare.

The possession and enjoyment of all rights is subject to the valid exercise of the police power which is an aspect of sovereignty, and all persons and property are subject to restraints and burdens necessary to secure the comfort, welfare and safety of the people. Sharrow v. City of Dania, supra.

In this instance, a portion of the police power of the state has been delegated by statute to a particular public body.

A county has the right to open and close public roads and highways where...