State v. Florida National Properties, Inc.

No. 45787 (338 So. 2d 13) (Fla. July 14, 1976)

ELR Digest

In a dispute over the boundary line between state-owned bottomlands and private riparian rights to the uplands on a navigable freshwater lake, the court affirms the trial court's judgment holding unconstitutional the statute fixing a specific and permanent boundary line.

Section 253.151, Florida Statutes, covers navigable meandered freshwater lakes, and subsection (3) thereof declares that one method of determining the boundary line between state-owned lands and those of the riparian upland owner is the actual water's edge at the date the body of water came under the state's jurisdiction. Appellee is a riparian owner and acquired its lands for ourpose of development and resale as a residential community on the shores of Lake Istokpoga. Appellee brought an action for declaratory judgment because the state claimed ownership of uplands along a contour more than three feet higher than the present high water mark, which claim would take a substantial portion of appellee's property. The state's claim was based on the argument that its ownership should extend to the ordinary high water line as it existed before the lake was permanently and artifically lowered by drainage operations conducted by surrounding property owners. The drainage was carried out to return the lake to an ordinary level by expelling flood waters resulting from a 1926 hurricane.

Relying on Hughes v. Washington, 389 U.S. 290 (1967) and Bonelli Cattle Co. v. Arizona, 414 U.S. 313, 4 ELR 20094 (1973), the trial court rejected the notion that boundary lines may be fixed by a state at the date of its entry into the Union and held that federal law must govern, including the requirement that riparian owners were entitled to natural and artificial accretions. Subsection (3), therefore, is unconstitutional. Since he subsection cannot oe separated from the remaining portions of the statute because there is no severability clause, § 253.151 is invalid in its entirety.

The Florida Supreme Court affirms this decision even though the state retreated from its reliance on § 253.151. The court holds that the state's efforts to fix specific and permanent boundaries were improper, and § 253.151 is unconstitutional in its entirety. Although the court holds that the doctrine of reliction, whereby a riparian owner obtains ownership of new uplands created by recession of the waters bounding the owner's property, does not apply where land is reclaimed by deliberate drainage, in this instance the self-help drainage by riparian owners merely returned the water to its normal level after the hurricane and did not expose and lake bottom. Appellee is entitled to the land down to the present ordinary high-water line because of its location, therefore, and not because of the doctrine of reliction. In dictum, however, the court notes that failure by the state to restrain an artificial lowering of the water table for a long period might in some circumstances constitute laches or estoppel. Finally, the court holds that the property line separating state and riparian rights is the ordinary high-water mark in meandered freshwater lakes and that such line is subject to change from natural causes or with the joint consent of the state and private riparian owners.

England, J., concurs in the decision on setting the boundary but dissents from the declaration of unconstitutionality of the entire § 253.151, as being unnecessary, arguing that other provisions of the statute regulate private activities in connection with sovereign lands. Also, the lack of a severability clause should be no impediment to the court's separately dealing with the unconstitutional subsection. Hatchett, J., concurs in the view that riparian landowners take title to new lands created by accretion and reliction and agrees that riparian owners should not be divested of title when they restore their property to its ordinary state after a catastrophe. He dissents, however, from the decision regarding the validity of § 253.151. In his view, the pleadings indicate that § 253.151 ought not control the question presented, and therefore the court need not pass on the validity of any portion of the statute to decide the parties' rights to the property in dispute.

The full text of this opinion is available from ELR (9 pp. $1.25, ELR Order No. C-1101).

Counsel for Defendant-Appellant
Robert L. Shevin, Attorney General
Thomas A. Harris, Asst. Attorney General
Kenneth G. Oertel
Department of Legal Affairs
The Capitol
Tallahassee FL 32304
(904) 488-3583

Counsel for PlaintiffAppellee
Kenneth L. Connor
Robin Gibson
Gibson & Connor
115 N. First St.
Lake Wales FL 33853
(813) 676-8584

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

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]