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Odom v. Deltona Corp.

Citation: 7 ELR 20314
No. Nos. 46980, 47086, 341 So. 2d 977/(Fla., 02/15/1977)

Affirming the trial court's grant of plaintiff-appellee's motion for summary judgment, the court rejects alleged state reservation of title in nonmeandered lakes within lands held by paper title for more than 30 years by plaintiff development company.

Plaintiff sought a declaratory judgment against the Board of Trustees of the Internal Improvement Fund regarding rights in certain nonmeandered lakes and ponds within lands to which plaintiff held paper title.Defendants claimed that the lakes are waters, beds, and shores of navigable waters held by the states in public trust by virtue of the state's sovereignty. The lands are government surveyed, but the lakes were not meandered. The lands were deeded to plaintiff without reservations for public use.Plaintiff and its predecessors in title have paid the property taxes and been vested with the fee-simple paper title for more than 30 years.

Public trust sovereignty property is dependent upon navigability and the usefulness in fact of the waters. The legal tests of navigability are only broad guidelines, but the "true test is natural navigability or capable navigability at the time statehood was acquired." Florida's test for navigability is similar to the federal title test which depends upon the water body's potential for commercial use in its ordinary and natural condition. Baker v. State, 87 So. 2d 497 (Fla. 1956). In Florida, meander creates a rebuttable presumption of navigability. Conversely, nonmeandered lakes are rebuttably presumed non-navigable. This theory was adopted by the lower court, relying upon legislative enactments. The old survey work of meandering must be accepted as correct since the state itself has constantly relied upon it.

The court relies upon the Marketable Record Title Act, Fla. State [1973] ch. 712, which clears any title that has been in existence for at least 30 years. Since the state should conform to the same standard as it requires of its citizens, lands conveyed without reservation can be reacquired only with appropriate justification and compensation. Equitable estoppel is also available against appellants because state officials operating under color of law have previously acquiesced in the development of the land surrounding the chain of lakes over which the litigation arose, and such development would necessarily include modification of lake bottoms. Finally, the court holds unconstitutionally vague a statute making it a misdemeanor to fail to obtain a permit for dredge-and-fill activities because the legislative assumption that meandering of fresh-water lakes denotes navigability is not necessarily a conclusion.

In a partial dissent, Judge Sundberg argues that the Marketable Record Title Act, which is aimed at settling title questions to private lands, could not divest the people of Florida of lands held in trust for them. In addition, he dissents from an adverse judgment against the Attorney General on counterclaims alleging public wrongs because the counterclaims are not dependent on title to the lake bottoms. Judge Sundberg concurs, however, in the decision regarding title to nonmeandered freshwater lakes.

The full text of this opinion is available from ELR (16 pp. $2.00, ELR Order No. C-1111).

Counsel for Appellants
Robert L. Shevin, Attorney General; Kenneth F. Hoffman, Ass't Attorney General
Dep't of Legal Affairs, The Capitol, Tallahassee FL 32304
(904) 488-3583

Counsel for Appellee
L. Grant Peeples, William F. Earl
Peeples, Earl & Blank
Suite 3636, One Biscayne Tower, Miami FL 33131
(305) 358-3000

Boyd, J., joined by Adkins, Hatchett & Melvin, JJ.; Sundberg, J., concurs in part and dissents in part, joined by Overton, C.J., & England, J., in part; England, J., dissents.

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]