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LEGAL SIGNIFICANCE OF

THE MEAN HIGH WATER LINE

 

What is the legal significance of the Mean High Water Line in Florida and why must we survey it?

 

The Florida State Constitution, Article X, Miscellaneous Section 11 states as follows:

Section 11. Sovereignty lands - The title to lands under navigable waters within the boundaries of the state, which have not been alienated, including beaches below mean high water lines, is held by the state, by virtue of its sovereignty, in trust for all people. Sale of such lands may be authorized by law, but only when in the public interest. Private use of portions of such lands may be authorized by law, but only when not contrary to the public interest.

Am./H.J.R/792/1970/adopted/1970

 

AND

 

In 1974 the Florida Legislature determined that: " … the mean high water line as the boundary between state sovereignty lands and uplands subject to private ownership as well as the necessity for uniform standards and procedures with respect to the establishment of local tidal datums and the determination of the mean high water…"

 

Chapter 177.26 F.S.

 

The Legislature also authorized the Florida Professional Surveyor and Mapper as the only personnel qualified to establish the mean high water line.

 

Now let's look at that paragraph in detail.  First, a few definitions.

 

"Mean High Water line" means the intersection of the tidal plane of mean high water with the shore.

"State sovereignty land" or "sovereignty submerged lands" means the title to all sovereignty tidal and submerged bottom lands located in navigable waters, and includes all coastal and intracoastal waters of the state. Title is vested in the Board of Trustees of the Internal Improvement Trust Fund (the Governor and the Cabinet) often referred to as TIIFT or simply the Trustees.

 

By this time you may be scratching your head asking:  Who gave the submerged land to the Trustees? And why?

 

As each new State entered the Union she received those lands beneath "tide waters" or "navigable waters" and the waters themselves to hold, in trust for the citizens of the new State. In Florida, those submerged lands are vested in the Board of Trustees of the Internal Improvement Trust Fund (TIIFT) and are managed by the Division of State Lands, Department of Environmental protection. In other words each new State enjoys the same rights, sovereignty and jurisdiction as the original thirteen states. These "rights" concerning lands beneath either "tide waters" or "navigable waters" have confused Federal and State courts for more than 200 years. The 1988 U.S. Supreme Court case, Phillips Petroleum v. Mississippi, pivoted around whether Mississippi received in trust all lands beneath tide waters, regardless of navigability of those tide waters, when she entered the Union in 1817, or whether she received in trust only those lands beneath waters that were navigable-in-fact at the time of statehood. The Supreme Court ruled that all lands beneath tide waters, regardless of navigability of those tide waters, were received by the State when she entered the Union. In layman terms this ruling is known as the "toothpick sailboat test" of navigability. That is to say - submerged lands beneath tidal waters, subject to daily periodic tidal effects, are navigable if the hypothetical "toothpick sailboat" will float on the water.

 

What about the uniform standards to establish local tidal datums and why is the Land Surveyor is involved?

 

In Chapter 177, Part II, F. S., Coastal Mapping, the 1974 Legislature established the Office of Coastal Boundary Surveying and Mapping under the Department of Natural Resources, now known as the Bureau of Survey and Mapping, under the Department of Environmental Protection: " To develop uniform specifications and regulations for tidal surveying and mapping coastal areas of the state."

 

Chapter 177.29 (2) (f)

 

Finally, Chapter 177.36 of the Act specifically identifies: " … qualified personnel licensed by the Board of Professional Surveyors and Mappers or by representatives of the U. S. Government when approved by the Department." as the only personnel authorized to perform mean high water line surveys.

 

Douglas A. Thompson, PLS II

Authored: September 1994

Paul T. O'Hargan, PSM

Update: July 1998

 


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