State v. Florida Nat. Properties, Inc.

• Decision Date: 14 July 1976
• Docket Number: No. 45787,45787
• Citation: 338 So.2d 13
• Parties: 7 Envtl. L. Rep. 20,095 STATE of Florida and Board of Trustees of the Internal Improvement Trust Fund, Appellants, v. FLORIDA NATIONAL PROPERTIES, INC., etc., Appellee.
• Court: Florida Supreme Court

Page 13

338 So.2d 13

7 Envtl. L. Rep. 20,095

STATE of Florida and Board of Trustees of the Internal Improvement Trust Fund, Appellants, v. FLORIDA NATIONAL PROPERTIES, INC., etc., Appellee.

No. 45787.

Supreme Court of Florida.

July 14, 1976.

Rehearing Denied Oct. 14, 1976.

Robert L. Shevin, Atty. Gen., Thomas A. Harris, Asst. Atty. Gen., and Kenneth G. Oertel, Tallahassee, for appellants.

Kenneth L. Connor and Robin Gibson of Gibson & Connor, Lake Walers, for appellee.

BOYD, Justice.

This cause is before us on appeal from the Circuit Court, Highlands County. The trial court in its final judgment passed upon the constitutionality of Section 253.151, Florida Statutes, giving this Court jurisdiction of the direct appeal. ¹

Section 253.151, Florida Statutes, reads as follows.

'253.151 Navigable meandered fresh water lakes

'(1) The submerged lands located under navigable meandered fresh water lakes shall be considered as a separate class of sovereignty lands. Such separate class of sovereignty lands shall not be construed to be of the same character as tidal lands, streams, watercourses, or rivers or as lakes attached to tidal waters by means of navigable watercourses, but, rather, shall be administered in accordance with the provisions of this section.

'(2) For the purposes of this section:

'(a) 'Board' means the board of trustees of the internal improvement trust fund.

'(b) 'Boundary line' means the line which separates the sovereignty lands of the state from those of a riparian upland owner. Such boundary line shall be described in terms of elevation above mean sea level of the state as indicated on the bench mark of the United States Coast and Geodetic Survey nearest the respective navigable meandered fresh water lake.

'(c) 'Elevation' means the distance above mean sea level as established by official United States Coast and Geodetic Survey bench marks.

'(d) 'Usufructuary right' means the temporary right of using the land lakeward of the boundary line to the existing waterline. The term shall not be construed to convey to any riparian owner the right to erect permanent structures of any type upon sovereignty lands without the express consent of the board.

'(e) 'Commercial operation' means the operation of any facility located on submerged land in navigable meandered fresh water lakes for the purpose of earning a profit from such operations.

'(3) The boundary line shall be established by, or under the supervision of, the board by use of one or more of the following procedures:

'(a) Where physical evidence exists indicating the actual water's edge of any navigable meandered fresh water lake as of the date such body came under the jurisdiction of the state, regardless of where the water's edge exists on the date of the determination of the boundary line, the water's edge as evidenced on the former date shall be deemed the boundary line.

'(b) Where sufficient physical evidence cannot be found, or in conjunction with such physical evidence as may exist, affidavits of local, longtime residents attesting to the average levels of such lakes shall be used. Such affidavits shall not be used unless they can be dated back to a period of time at least twenty-five years prior to July 1, 1970.

'(c) Where gauging stations have been installed and continuous data at lake water elevations have been obtained therefrom for a period of no less than ten consecutive years, such data may be used for ascertaining the boundary line at such lake.

'(d) Actual on-site examination of the terrain (landward and lakeward of the existing waterline) and of plant life, including upland and aquatic, by qualified personnel and the other physical indications of present and past waterlines which shall be deemed reasonable may be used in determining the boundary line. This investigation may include public hearings, as well as examination of existing docks, structures, and other physical evidence which may properly be construed as germane to the location of the boundary line.

'(4) A boundary line shall become effective only after a description of its location has been approved by the formal action of the board and this description has been published in a newspaper of general distribution in the county where located at least once a week for three consecutive weeks. The boundary line elevation shall then be placed in the public records of the county or counties in which the navigable meandered fresh water lake is situated. A suitable monument shall be placed in or on such lake as a permanent point of reference so that all interested persons may be able to determine the physical boundary line by proper survey and projection onto the shoreline.

'(5) The riparian owner shall have the usufructuary right over lands lakeward of the boundary line down to the existing waterline, but such riparian owner shall not deny the use of the water above the established boundary line to any other owner or to the general public so long as such public does not come onto the land above the existing waterline. A riparian owner shall have the right of ingress and egress to and from the water for purposes of boating, swimming, fishing, skiing, and similar activities and shall:

'(a) Be granted the privilege of clearing the aquatic vegetation, except woody plants of a diameter greater than two inches, measured at the base, out in the water to the extent necessary to enable him to use the public waters reasonably for boating, swimming, skiing, fishing, and similar activities. If an area greater than one fifth of an acre is to be cleared within a period of three months, a permit must be applied for and granted by the board.

'(b) Be permitted to fill to combat erosion. However, in no case shall this section be construed to grant a riparian owner the right to add on land out into the main body of the water in such a manner as to constitute an encroachment upon the sovereignty submerged bottoms to gain more property or to restrict others from reasonable use of the water. A permit from the board shall be necessary for such fill projects to combat erosion.

'(c) Be granted usufructuary right in any strip of land which may be exposed due to natural recession of the waters, between the boundary line and the existing waterline.

'(6) Any authorized dock, boathouse, or other structure, erected under permit, shall be for the sole use and control of the riparian owner.

'(7) Nothing contained in this section or § 253.12(1) shall be construed as affecting privately owned lakes, streams, watercourses, or submerged lands.

'(8) The board shall promulgate such rules and regulations as may be necessary to carry out the purposes of this section.'

The facts of this case are as follows.

Appellee-Plaintiff is a riparian owner of certain lands in Highlands County bordering Lake Istokpoga, a navigable lake. The ordinary high-water mark of Lake Istokpoga was meandered at different points and different times by U. S. Government surveyors in the late 1800's and early 1900's. Lake Istokpoga was meandered in the area of Appellee's property in 1928. Appellee deraigns its title back to certain warranty deeds issued by Appellant-Trustees of the Internal Improvement Trust Fund, the Trustees having previously received the lands by a swamp and overflow lands grant from the U. S. Government. The land was acquired by Appellee for the purposes of development and of resale as a residential community on the shores of Lake Istokpoga because of this, a need to do some work in the navigable waters of Lake Istokpoga arose. Approximately four years prior to the filing of this action, a dispute arose between the Trustees and Appellee as to the location of the boundary lines between the sovereignty bottom lands of the Lake and Appellee's upland property. Efforts to resolve the dispute were fruitless; the Trustees maintained that, pursuant to Section 253.151, Florda Statutes, the boundary line should be located at a contour 41.6 feet above mean sea level, a boundary unacceptable to Appellee since this proposal laid claim to approximately half of Appellee's purchased property (generally, throughout the trial Appellee claimed that the ordinary high-water line was at an elevation of approximately 38.5 feet above mean sea level).

Throughout the proceedings the Trustees maintained that the ordinary level of the Lake was permanently and artificially lowered during the 1920's as the result of certain drainage operations conducted by property owners surrounding the Lake; it was the Trustees' position that the unauthorized drainage of the Lake by the riparian owners could not be considered to have decreased the State's ownership and that the ordinary high-water line as it existed in 1926 would remain the legal boundary between State and private ownership. The evidence showed that some of the riparian owners had exercised selfhelp by dynamiting obstacles from a drainage canal to return the Lake to an ordinary level and to expel flood waters from farm lands following the historic 1926 hurricane. Therefore, Appellee's position was that any lowering of the Lake was legally reliction and that the present ordinary high-water line, regardless of the historical contour of the Lake, is the appropriate boundary between private and State-owned land. The testimony clearly shows that the survey notes, made after the mean level of the Lake was lowered, reflect that this lowering resulted in the exposure of only marshland, not of lake bottom. Furthermore, the surveyor's notes continue to say that the Lake is contained in a well-defined basin with an almost continuous shore rim which is timbered with good timber, mostly shore variety, giving positive proof of the location of the lakeshore before the drainage operations were put into effect. There was additional testimony that this timbered shore rim, which ranged from 3 to 10 chains wide between the lakeshore and Istokpoga marsh in Section 13, and from 2 to 5 chains wide in Section 12, is...