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The Public Trust Doctrine: Historic Protection For Florida's Navigable Rivers And Lakes
(Originally published in the Florida Bar Journal in April, 2001)

Introduction

This past Spring, in what was perhaps the most controversial environmental issue of Florida's 2000 Legislative Session, the Legislature considered but failed to pass legislation concerning ownership of "sovereignty lands" - Florida's publicly owned rivers and lakes.(1) During the session, it became evident that there was a substantial amount of confusion surrounding the Public Trust Doctrine. Originally a common law doctrine, the Public Trust Doctrine is now a constitutional doctrine which protects the public status of navigable water bodies. The purpose of this article is to provide the legal and historical foundation of this doctrine in an effort to assist in the understanding of the issues raised by the proposed legislation.

The Public Trust Doctrine

Navigable rivers, lakes, and tidelands are held in a public trust which imposes a legal duty upon the state to preserve and control them for public navigation, fishing, swimming, and other lawful uses.(2) Because the essential feature of the doctrine is that lands beneath navigable water bodies are not held for the purpose of sale or conversion into private ownership, strict limitations are imposed on the state's ability to transfer the water bodies, or parts thereof, into private hands.(3) Now incorporated into the Florida Constitution,(4) the Florida Supreme Court has stated that this constitution provision represents a codification of prior case law.(5) The doctrine is an expression of an ancient rule; water bodies capable of being utilized for useful public purposes were recognized and protected as public property by the laws of Spain,(6) England,(7) and even Ancient Rome.(8)

Sovereignty Lands

Because title to lands beneath navigable water bodies passed "as an incident of sovereignty," the lands are legally referred to as "sovereignty lands."(9) The trust over these lands devolved in the new state by operation of law, without the necessity of any deed, inventory, patent, or survey by the federal government.(10) Ownership is not based on a legal description in a deed, but on the nature of the water body itself. Instead of record title, the navigable character of the water body creates notice of public ownership.(11) The boundary of navigable freshwater lakes and rivers is the ordinary high water line.(12) The public has the right to make all lawful uses of sovereignty lands up to this boundary line, including use of the shore or space between ordinary high and ordinary low water marks.(13)

Navigable Lakes and Rivers

The Public Trust Doctrine protects the public status of "navigable" water bodies. Florida case law defining "navigability" is clearly established. A waterway is navigable if at the time of statehood in 1845,(14) it was used or was capable of being used,(15) as a highway for waterborne trade or travel(16) conducted by the customary modes of that period.(17) Navigability does not require year-round capacity for navigation, but does require capacity for navigation in the water body's ordinary state.(18) Contemporary capacity for navigation in vessels of the size used for transporting passengers and goods in the statehood period is substantial evidence of navigability.(19) McDowell v. Trustees of Internal Improvement Fund, 90 So. 2d 715, 716 (Fla.1956)). Artificial water bodies or waterways rendered navigable through improvement by dredging are not legally navigable.(20) Customary modes of waterborne trade and travel in the mid-1800s included steamboats,(21) barges,(22) dugout canoes,(23) and home-made skiffs,(24) all of which were used to transport passengers, products of the country, and produce from local farms.(25) Navigability must also be understood in the context of the land transportation system that existed at the time of statehood. Railroads were virtually non-existent. In 1845, the only railroad in the state ran from Tallahassee to St. Marks, operated on wooden rails, and had carts pulled by mules.(26) Engines didn't arrive until eleven years later.(27) Roads were little better. The legislature declared that public roads were in satisfactory condition so long as the tree stumps left in the road were less than 12 inches high,(28) the few bridges that existed washed out during times of high water, and uncertain ferry service provided crossing of all the major streams.(29) As a result, lakes and streams were by far the most reliable public highways for moving goods and people.

Proving Navigability

Given the extensive recorded archives of Florida''s rich history, facts establishing navigability are not difficult to ascertain. In the 1997 trial over a landowner's attempts to close Fisheating Creek to the public, the Attorney General's Office produced documentary evidence of an 1842 naval expedition on the Creek using 30-foot long dug-out canoes and evidence of early 20th century navigation to trading posts on the waterway.(30) Based on this evidence, a jury deliberated for less than two hours before returning a verdict that Fisheating Creek was navigable. In the previous navigability case which settled in 1987, the Attorney General's Office marshaled evidence of navigability of the upper reaches of the Peace River including historical newspaper accounts describing the navigability of the river for steamboats,(31) evidence of small scale traffic by commercial fisherman in more recent years,(32) and photographs of a sunken boat near the River's headwaters.(33) In both cases, the navigability of the respective waterways was common knowledge among the people of the locale because the rivers had been used for generations as public waterways.(34)

Federal Public Lands Surveys and Navigability

When the United States acquired Florida from Spain in 1821, the federal government established a new territory and began the task of surveying and selling the newly acquired federal lands.(35) Among many other tasks, surveyors were instructed to approximate the shoreline of navigable waters by surveying a series of straight-line segments called "meander" lines.(36) Lakes and rivers which were the subject of these meander surveys are referred to as "meandered" water bodies. Surveying conditions, however, were extremely adverse in the wilds of early Florida. Hostile native Americans were a constant threat, as were the large numbers of alligators and snakes that populated the densely vegetated and marshy shores of Florida's lakes and streams. These conditions, combined with the complete absence of any consistent standard to guide meandering decisions of the surveyors in the field,(37) produced haphazard navigability determinations. In fact, only a very small number of Florida's navigable lakes and rivers were the subject of meander surveys - large portions of the St. Johns River, the Kissimmee River, the Chipola River, the Oklawaha River, and the Peace River were not meandered, even though all of these rivers bore steamboat traffic during the water transportation era.(38) Florida courts have recognized that meandering is an unreliable indicator of whether a particular water body was navigable. For that reason, meandered water bodies are given a weak presumption of navigability and non-meandered lakes and streams are given a similarly weak presumption of non-navigability when the issue of navigability is tried in court.(39)

Historical Deeds Did Not Convey Sovereignty Lands

Proponents of sovereignty lands legislation during the past session asserted that the proposed legislation represented good public policy because it protected the "private property rights" of landowners whose title derived from swamp deeds.(40) The "I have a deed" argument is not new. The first time the Florida Supreme Court rejected a riparian landowner's claim that a swamp deed conveyed sovereignty lands into private hands was in 1908,(41) and no subsequent case disturbed that long-standing rule.(42) Nevertheless, the legislative debate in the 2000 session revealed that the "I have a deed" argument retains emotional appeal, regardless of its legal and constitutional invalidity. That appeal is lost when the argument is placed in historical context.

Swamp Lands and the Internal Improvement Fund

Through acts of Congress, the federal government granted Florida various categories of land after it became a state. In 1845, the federal government granted the new state 500,000 acres of "internal improvement lands."(43) The intent of this grant was that the lands be sold to fund improvements to roads, canals, and navigable streams for the purpose of aiding internal communications.(44) In 1850, the federal government found itself in the position of holding vast areas of swamp lands in many of the new states including Florida.(45) Burdened by these unsaleable lands, Congress simply gave them away to the states in which they were located.(46) The expectation was that the states would convey these lands to large companies which would then be responsible for drainage and reclamation.(47) In an attempt to orderly manage these federal land grants, the 1855 Florida legislature created the Internal Improvement Fund which consisted of title to internal improvement lands and swamp lands and all proceeds from the sale of such lands.(48) The legislature then vested title to the internal improvement lands and swamp lands in the "Trustees of the Internal Improvement Fund" (the Governor and Cabinet)(49) and gave them authority to sell and transfer the lands as prescribed by statute.(50)

As anticipated, the Trustees made bulk transfers of swamp lands to drainage companies, canal companies, and railroads. In terms of sheer scale, these transfers were immense. Some railroad companies were granted 10,000 to 25,000 acres of swamp land per mile of railroad or canal constructed.(51) Industrial mogul Hamilton Disston purchased four million acres at 25 cents per acre in one single transaction in 1881, and eventually received title to some six million acres.(52) In all, more than 20,000,000 acres of swamp land were received by the state from the federal government.(53) Included in these vast swamp deeds were lands that were not swamp at all.(54) The Disston swamp deeds included large portions of the Central Florida Ridge - valuable agricultural uplands - as well as navigable lakes and streams that the federal surveyors had failed to meander. For example, almost all of Fisheating Creek was encompassed within 900,000 acre and 300,000 acre swamp deeds issued to Disston companies.(55)

Legal Effect of Swamp Deeds

Within a short time after these swamp deeds were issued, the Florida Supreme Court was presented with the question of whether swamp deeds with legal descriptions based upon improperly performed federal surveys had the legal effect of removing navigable lakes and rivers from the public trust and conveying them into private ownership. In State ex rel. Ellis v. Gerbing, 47 So. 353 (Fla. 1908), a riparian (waterfront) landowner in Nassau County claimed private ownership of part of the bed of the Amelia River on the basis of a swamp deed.(56) In unanimously rejecting his claim, the Florida Supreme Court held that a swamp deed "does not affect the title held by the state to lands under navigable waters by virtue of the sovereignty of the state."(57) Because the marsh lands lay below the ordinary high water mark of the Amelia River, they were not "swamp and overflow lands" within the meaning of the act but sovereignty lands which the Trustees of the Internal Improvement Fund had no authority to convey.(58) The identical issue was addressed in Martin v. Busch, 112 So. 274 (Fla. 1927), a case involving a swamp deed that encompassed lands beneath the shallow, vegetated waters of Lake Okeechobee. In once again ruling that swamp deeds did not convey lands below the true ordinary high water line of navigable water bodies, the court reiterated the law that grantees of swamp deeds always understood "that the conveyance of Swamp and Overflowed land does not in law cover any sovereignty lands,"(59) and that the Trustees of the Internal Improvement Fund had no authority to convey navigable waters into private ownership.(60)

The rationale underlying both Gerbing and Martin was that the Trustees of the Internal Improvement Fund could not convey what they did not own. Lands beneath navigable waters were not the property of the Trustees because the Internal Improvement Fund contained only internal improvement lands and swamp lands. These principles were reaffirmed as recently as 1986 by the Florida Supreme Court in Coastal Petroleum v. American Cyanamid, 492 So. 2d 339 (Fla. 1986) in which the court reiterated that grantees of swamp deeds and their successors in interest have never had "any moral or legal claim" to ownership of navigable waters.(61) This established law is also reflected in standard title insurance policies. Since the early part of this century, these policies have excepted land under navigable waters from coverage. These standard exceptions reflect the title insurance industry's acknowledgment that swamp deeds have never affected the public trust status of navigable waters.(62)

The Ordinary High Water Boundary of Navigable Rivers and Lakes

The ordinary high water boundary is just what the words suggest - the ordinary or normal reach of water during the high water season.(63) The term "ordinary" excludes floods and other extraordinary high water events but includes the average or normal reach of high water of each year.(64) By way of comparison, the ordinary low water mark is the point the water reaches when the water body is at its usual and common or ordinary stage.(65) The boundary does not have a permanent fixed location on the ground because it is ambulatory, gradually shifting in response to natural processes such as erosion and accretion.(66)

Establishing the Boundary

Methods used to located this boundary are strictly a matter of state law.(67) Two 1927 Florida Supreme Court cases provide the indicators which are used today to locate the ordinary high water boundary in Florida.(68) In Tilden v. Smith, 113 So. 708 (Fla. 1927), the court recognized Florida's varying topography and differentiated indicators based on whether a water body has a steep-banked or flat-banked profile.(69) On low, flat-banked water bodies there is usually no clear mark on the ground, and the boundary is located where the presence of the water prevents the cultivation of ordinary agricultural crops.(70) In Martin v. Busch, 112 So. 274 (Fla. 1927), the court explained that ordinary high water on flat-banked water bodies with shallow, vegetated shorelines can also be determined by locating water marks on local objects such as trees and dock pilings.(71) On steep-banked water bodies, the boundary is located by an observable physical mark on the ground where the presence and action of the water has wrested the bank of vegetation.(72)

The Florida Supreme Court has also addressed the issue of distinguishing between swamp lands, granted by the 1850 swamp lands act, and sovereignty lands, which had been placed in a public trust five years earlier in 1845. In both Gerbing and Martin, the riparian landowners contended that the lands at issue met the description of the overflow lands in the swamp lands act,(73) i.e., lands that are periodically subject to overflow but which were capable of being reclaimed for agriculture by means of levees, drains, and embankments.(74) The court, however, rejected the argument that the shallow vegetated shores which are submerged during the rainy season were conveyed by swamp deeds. Instead, under Florida law, the ordinary high water boundary encompasses all lands beneath waters which are part of a navigable lake or water body whether or not the water is navigable in all its parts towards the outside lines or elsewhere.(75)

Attempts to Redefine The Ordinary High Water Boundary

Following the Florida Supreme Court's rejection of the "I have a deed" argument in 1986, the parties in Coastal Petroleum v. American Cyanamid were sent to trial on the issues of navigability and the ordinary high water boundary. The cases had originally been filed because phosphate companies who owned land bordering on the Peace River were potentially liable for tens of millions of dollars worth of phosphate which allegedly had been mined from the river's bed.(76) Because the river bed extended from the ordinary high water line on one side to the ordinary high water line on the other side, there was an extraordinary financial incentive for the phosphate companies to argue for as narrow a river as possible in order to minimize their potential liability. As a party in one of the lawsuits, Mobil Mining and Mineral invented a novel ordinary high water theory that clearly reflected this incentive.

According to its trial brief, the boundary on all Florida water bodies was the point where the river had wrested the bed of terrestrial vegetation.(77) Since terrestrial vegetation was defined to include all vegetation except floating weeds such as water lilies and water hyacinth,(78) the boundary line was located waterward of all cypress trees, including those growing in the bed of the river. The fact that the lands might be submerged for six to nine months of an average year was answered by the assertion that high water which occurred during the six month rainy season was merely an "annual rise" which should be eliminated from the determination of ordinary high water.(79) The justification offered for these indicators was that all lands upward of this line fit the description of "swamp and overflowed lands"(80) and could be used for "agricultural purposes" such as cypress timber operations and low water season cattle foraging.(81) According to the Mobil Theory, "if the water on the land is not useful for navigation and the lands can be made useful by agriculture (by diking and draining), then it is outside the [ordinary high water mark]."(82) Legal authority for this theory was an amalgamation of excerpts from federal cases and state cases from states other than Florida.(83) Tilden was quoted but the part of the case which describes low flat-banked water bodies and requires use of the "agricultural crop test" rather than the "wresting of vegetation test" on this type of water body was omitted through the use of ellipses.(84) Having eliminated the existence of both the high water season and the shallow vegetated shore, the Mobil Theory was an attempt to convert the shores of Florida's flat-banked waterways into private property. The phosphate cases settled in 1987 in large part because the Attorney General's Office produced evidence that ordinary high water determinations made by Mobil itself prior to the commencement of the phosphate litigation (and the invention of the new ordinary high water theory) matched the state's ordinary high water line determination.(85)

Less than a year after the Peace River settlement, the Board of Professional Land Surveyors proposed administrative rules governing the conduct of ordinary high water surveys.(86) The rules, which closely followed the Mobil Theory, had been written for the Board by attorneys for the phosphate companies and other major landowners.(87) When the Attorney General's Office challenged the proposed rules as being contrary to Florida law, Mobil Mining and Minerals, Agrico Chemical Company, International Minerals & Chemical Corporation, the Florida Land Council, Lykes Bros. Inc., A. Duda & Sons, the Corporation of Jesus Christ of Later Day Saints, Inc., the Shoreline Owners and Residents Association, Drake Ranch, the Florida Citrus Mutual, the Florida Farm Bureau, the Florida Sugar Cane League, the Florida Forestry Association, and the Florida Cattleman's Association all intervened to defend the new Mobil Theory.(88)

The proposed rules defined "terrestrial vegetation" as all land plants that don't require standing or flowing water for support, classified cypress trees as "terrestrial vegetation," declared that the boundary was an actual, observable, physical mark where the water prevented the growth of "terrestrial vegetation," declared that the boundary did not take in swamps or low grounds liable to be overflowed but reclaimable for agriculture, and declared that the boundary did not take in lands that were too low and wet to be reclaimed but which were suitable for cattle to range upon as unenclosed pasture.(89) As a result, the boundary line was placed at the most waterward cypress tree or where the most waterward cow could forage on aquatic vegetation. After a three week administrative hearing, the proposed rules were declared illegal on the ground that Florida's established water boundary law "cannot be modified by creation, mischaracterization, addition, omission, or substitution of legal principles by Board rule" which was "precisely" what the Administrative Law Judge found that the proposed rules aimed to accomplish.(90)

Unsuccessful in the judicial forum, private riparian landowners took the issue to the legislature during the 1988, 1989, and 1990 legislative sessions.(91) The proposed legislation defined the ordinary high water line as "an observable physical mark" where the water prevented the growth of all "terrestrial vegetation." "Swamp lands" were "deemed" to be above the ordinary high water line and were then defined to include: 1) overflowed lands subject to periodic flooding during the "annual wet season;" 2) lands subject to periodic or frequent overflows that required levees to keep out the water to make them suitable for cultivation; and 3) lands on which grew "cypress trees and other exposed vegetative matter of a type inconsistent with navigability."(92) The bills never made it out of committee.

Efforts to redefine Florida's ordinary high water boundary seemed to finally be derailed when, in 1994, the Second District Court of Appeal relied upon longstanding Florida law in handing down its decision in Macnamara v. Kissimmee River Valley Sportsmans' Ass'n., 648 So. 2d 155 (Fla. 2d DCA 1994). In this case, a waterfront landowner constructed a barbed wire fence across part of Lake Hatchineha, an admittedly navigable lake. The area enclosed by the fence was shallow, vegetated lake margin which contained cypress and other aquatic trees and marsh vegetation. Boaters had regularly used the area in controversy for fishing in kicker boats, and the disputed portion of the lake bed was submerged at times of both normal and high water. The outer line of the barbed wire fence ran along the outside of a spoil island created when the Kissimmee River canal was dug in the 1960s. At trial and on appeal, the private riparian landowner was represented by one of the intervenor's attorneys from the Land Surveyors case,(93) and a surveyor who was on the Board of Professional Land Surveyors at the time the ordinary high water rules were proposed testified as an expert witness in support of the landowner's position.(94) The issues were well-briefed on both sides. The Board of Trustees intervened in the case after the trial; two private property rights foundations filed amicus briefs during the appeal.(95) The Second District ruled that the area between the spoil island and the shore was vegetated lake bottom below the Lake's ordinary high water line and that the spoil island was retained in public ownership. The ordinary high water determination was confirmed by ordinary high water marks on dock pilings of an old steamboat landing and by locating the line at which oranges (an ordinary agricultural crop) were grown. The opinion clearly sets forth Florida's longstanding ordinary high water boundary law and is in agreement with the findings of the administrative law judge in the Land Surveyors' case. The Second District rejected the following arguments made by the landowner and the private property rights organizations: 1) that Florida ordinary high water boundary law did not differentiate between flat-banked and steep-banked water bodies; 2) that in all cases the boundary had to be an observable physical mark on the ground that ordinary people could "readily ascertain"; 3) that the boundary did not include areas submerged during the annual high water season; 4) that the boundary was located on all water bodies at the line where the water had wrested vegetation; and 5) that the boundary did not include any lands which could be "used for cattle to range upon as natural or uninclosed pasture."(96) Review was denied by the Florida Supreme Court.(97)

Proposed legislation during the 2000 session mirrored prior redefinition attempts. Draft bills variously declared: 1) that "all lands subject to such periodical overflows of water as to require drainage or levees or embankments to keep out the water and thereby render the lands suitable for successful cultivation are not sovereignty lands below the ordinary high water mark"; 2) that all lands covered by water resulting from "seasonal rains" were above the boundary if the lands could be reclaimed by use of levees; 3) that all lands which were underwater during the frequent rains of the wet season but which when dry might be susceptible for use by foraging cattle were excluded from the boundary; 4) that the ordinary high water mark was not the highest point the water reached during times of freshets or floods (a correct statement of the law) but then defined "freshets" as including "all seasonal rises caused by rains"; and 5) that the ordinary high water mark had to be an observable physical boundary that landowners can "readily identify."

Conclusion

The Public Trust Doctrine imposes a legal duty on the state to preserve and control title and use of all lands beneath navigable water bodies, including the shore or space between ordinary high and ordinary low water, for public use and enjoyment. The people of this state have raised the protection afforded by the doctrine to constitutional stature. In the most recent challenge to this doctrine, the Florida Supreme Court relied upon this constitutional provision in reconfirming longstanding Florida law that swamp deeds do not create a private property interest in sovereignty lands. Attempts to use swamp deeds as a justification to legislatively redefine the ordinary high water boundary and thus transfer all or part of the shore to the adjacent private owner are similarly inappropriate and unconstitutional.

Footnotes:

(1) Bills were introduced in both the House (HB1807) and the Senate (SB1824). Each of these bills continually metamorphosed during the session. The original house bill sought to overrule American Cyanamid and the century of case law cited therein and would have conveyed approximately half a million acres of non-meandered navigable water bodies to private riparian landowners. Proponents called the legislation "The Florida Land Title Protection Act." It generated a firestorm of controversy. See, e.g., Editorial, Land Grab Bill, St. Petersburg Times, April 26, 2000; Editorial, Jeb's Veto Pen Should Be Poised to Kill Arrogant Land-grab Measure, Tampa Tribune, March 20, 1 000; Editorial, Landowners Attempt Public Land Grab, Daytona Beach News Journal, March 24, 2000.

(2) Coastal Petroleum, Inc. v. American Cyanamid, 492 So. 2d 339, 342-43 (Fla. 1986); State ex rel. Ellis v. Gerbing, 47 So. 353, 355 (1908).

(3) Broward v. Mabry, 50 So. 826, 829-30 (Fla. 1909).

(4) Art. X, § 11 reads: "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 the 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."

(5) American Cyanamid, 492 So. 2d at 344.

(6) Apalachicola Land & Development Co. v. McRae, 98 So. 505, 517-18 (Fla. 1923); Geiger v. Filor, 8 Fla. 325, 336-37 (1859); Trustees v. Webb, 618 So. 2d 1381, 1382 (Fla.1st DCA 1993).

(7) Geiger v. Filor, 8 Fla. 325, 336-37 (1859); Broward v. Mabry, 50 So. 826, 829 (Fla. 1909).

(8) Geiger, 8 Fla. at 336-37. In 1823, Congress memorialized the public status of such waters in the new territory of Florida when it declared that all the "navigable rivers and waters in the districts of East and West Florida shall be, and forever remain, public highways." Act of Congress, March 3, 1823, 3 U.S. Stats. 754.

(9) American Cyanamid, 492 So. 2d at 342.

(10) Id.

(11) Martin v. Busch, 112 So. 274, 285-86 (1927); American Cyanamid, 492 So.2d at 343.

(12) Until 1974, the ordinary high water mark was the boundary of both freshwater and tidal water bodies. The boundary of tidally influenced water bodies is now statutorily defined as the "mean high water line," the location of which can be derived using gauging data from tidal stations. §177.25(14)-(15), Fla. Stat.

(13) Broward, 50 So. at 830.

(14) Odom v. Deltona Corp., 341 So. 2d 977, 988 (Fla. 1976).

(15) Broward, 50 So. at 830.

(16) Id.; Clement v. Watson, 58 So. 25, 26 (Fla. 1912).

(17) Baker v. State, 87 So. 2d 497, 498 (Fla. 1956).

(18) Broward, 50 So. at 83 1.

(19) Board of Trustees v. Florida Public Utilities Co., 599 So. 2d 1356, 1358 (Fla. 1st DCA 1992) (citing Lopez v. Smith, 145 So. 2d 509, 513 (Fla. 2d DCA 1962), Broward, 50 So. 826 at 830; Baker v. State, 87 So. 2d 497, 498 (Fla. 1956); McDowell v. Trustees of Internal Improvement Fund, 90 So. 2d 715, 716 (Fla. 1956)).

(20) Clement, 58 So. at 26 (dredging of navigation channel into non-navigable cove did not render cove navigable at law); Picciolo v. Jones, 534 So. 2d 875, 877-78 (Fla. 3d DCA 1988) (artificially created canal not navigable at law); Trustees v. Ball, 300 So. 2d 741 (Fla. 1st DCA 1974) (per curiam affirmance of circuit court opinion determining that dredging of rock to create navigation channel did not render river navigable at law).

(21) See Mueller & Purdy (eds.), the Steamboat Era in Florida (1984).

(22) For example, barge traffic is evidenced by the following newspaper advertisement from the Florida Whig: For Freight or charter. My barge ROUGH AND READY, carrying one hundred and seventy bales cotton, is now in Fine order, with an experienced Captain and crew, will ply regularly, during the business season, between this place and Apalachicola. Freighting done on the most Favorable terms. Apply to ISSAC WIDGEON or the captain on board. Marianna, Oct.28, 1848.

(23) Dugout canoes were used throughout Florida during the water transportation era. The Museum of Florida History in Tallahassee has an extensive collection of dugout canoes and archives on canoe uses. For example, the Louis, which is displayed in the museum foyer, is a four foot wide, thirty foot long dug out canoe that was constructed in the 1800s and was used through the early 1900s to haul passengers and freight on the St. Johns and its tributaries.

(24) See Johnson, Highways and Byways of the South 14-15 (1904) describing a planter setting off to market from his farm on the Miami River in a skiff loaded with potatoes, cabbages,poultry, eggs, tomatoes, and bananas.

(25) Broward, 50 So. at 829 (describing navigability in terms usefulness of the water body for transport of products of the community in which the water body is located).

(26) Tebeau, a History of Florida 142-43 (1971) (hereinafter "Tebeau").

(27) Supra at 1 43.

(28) Page 95, Laws of the Territory of Florida, 1822.

(29) Tebeau, supra note 26, at 140-41.

(30) The trip had been recorded in the personal diary of one of the Marines. The diary was subsequently published in a military history journal. Evidence of early 2Oth century use was provided by deposition testimony of an elderly gentleman who lived near the Creek his entire life. Evidence supporting his account included newspaper accounts and photographs.

(31) Newspaper articles are a readily available source of information on the day to day use of a water body.

(32) Deposition testimony of commercial fisherman who had used the River.

(33) The boat was over 80 feet long and was known as "The Mayflower." It was the subject of an underwater archeological excavation during the course of the trial.

(34) The landowner in the Fisheating Creek case had operated had year round canoe rental and livery service on the Creek for almost two decades. In the Peace River case, Polk County at one time operated a boat lift at the River's headwaters and still maintains two boat ramps in the upper reach of the waterway which was in dispute.

(35) The system for surveying and selling the land was developed to raise money to pay off federal debts and to encourage settlement and development of territories to the point where they would qualify for statehood, C.A. White, A History of the Rectangular Survey System (1983) (hereinafter "White").

(36) Florida Public Utilities Corp., 599 So.2d atl 357 n.2.

(37) Surveying instructions provided no definition of "navigability" to guide the surveyors. White, supra note 37, at 326.

(38) Id.; See Edward A. Mueller, Perilous Journeys: a History of Steamboating on the Chattahoochee, Apalachicola, and Flint Rivers, 1828 - 1928 (1990); Mueller & Purdy (eds.), the Steamboat Era in Florida (1984); Edward A. Mueller, Steamboating on the St. Johns (1980). Other examples abound. For example, federal surveyors failed to meander the shoreline of 4334 acre Lake Poinsett in Brevard County and mapped the lakes miles from its correct location. Township plats and field notes from the federal surveys are available online at the Department of Environmental Protection's State Lands Land Boundary Information Systems website at http://www.labins.org/

(39) Odom, 341 So. 2d at 988-89.

(40) See Randall J. Holcombe, Florida's State Sovereignty Claims: A Government Taking of Private Property Without Compensation, JAMES MADISON INSTITUTE BACKGROUNDER 6-7 (July 1998). Mr. Holcombe is not an attorney. The article was written with the assistance of Michael Rosen and the Florida Legal Foundation (hereinafter "Holcombe").

(41) Gerbing, 47 So. 353 (Fla. 1908).

(42) American Cyanamid, 492 So. 2d at 343.

(43) Whitfield`s Notes: Governmental, Legal, and Political History of Florida 232; Vol. III: Helpful and Useful Matter, Fla. Stat. (1941) (hereinafter "Whitfields' Notes").

(44) Supra.

(45) Act of Congress of September 28, 1850, Ch. 84, 9 U.S. Stats. 519.

(46) Id. See also Tebeau, supra note 26, at 189.

(47) Whitfield's Notes, supra note 43, at 232.

(48) Supra at 232-33.

(49) Supra.

(50) Ch. 610, Acts of 1855.

(51) See, e.g., Ch. 503 3, Laws of Florida (1901) (granting the Florida Ship and Canal Company 25,000 acres of swamp lands for each lineal mile of canal constructed.).

(52) Tebeau, supra note 26, at 278-80.

(53) Whitfield's Notes, supra note 43, at 232.

(54) Tebeau, supra note 26, at 278.

(55) Trustees' Deed No. 12933 dated December 15, 1884; Trustees' Deed No. 13101 dated May 13, 1885.

(56) Gerbing, 47 So. at 354. The landowner argued that the lands at issue were salt marshes and not river, that his title deraigned from a swamp deed issued by the Trustees of the Internal Improvement Fund based on a swamp land patent from the federal government, that this deed contained a legal description which included the lands at issue, and that the deed was therefore proof that the United States and Florida considered these lands to be swamp lands and not sovereignty lands. Id.

(57) Id. at 357.

(58) Id. at 354.

(59) Martin, 112 So. at 28 5.

(60) Id. at 283-85. The legislature did not transfer title to sovereignty lands beneath fresh water navigable rivers and lakes to the Trustees until 1969. Ch. 69-308, Laws of Florida (1969).

(61) American Cyanamid, 492 So. 2d at 342-43.

(62) For example, Kansas City Title Insurance issued a policy of Florida Audubon in 1960 which excepted from coverage "the title or rights of the Insured in any property ... to tide lands, or land comprising the shores and bottom of navigable waters.

(63) Tilden v. Smith, 113 So. 708, 711 (Fla. 1927) (citing 9 C.J. Boundaries 193 (1916) which states that the boundary on non-tidal streams and lakes is "the point to which the water rises at its average highest stage"); see also Macnamara v. Kissimmee River Valley Sportsmans' Ass'n, 648 So. 2d 155,159 (Fla. 2d DCA 1994).

(64) Tilden, 113 So. at 711.

(65) Board of Trustees of Internal Imp. Trust Fund v. Walker Ranch General Partnership, 496 So. 2d 153, 155-56 n.3 (Fla. 5th DCA 1986).

(66) David G. Guest, The Ordinary High Water Boundary on Freshwater Lakes and Streams: Origin, Theory, and Constitutional Restrictions, 6 J. Land Use & Envtl. L. 205, 209, 225-27 (1991).

(67) Macnamara, 648 So. 2d at 159 (holding that neither Federal decisions nor formulations for locating the boundary which have been adopted by different states have any bearing on Florida's legal ordinary high water boundary).

(68) Tilden v. Smith, 113 So. 708 (Fla. 1927); Martin v. Busch, 112 So. 274 (Fla. 1927).

(69) Tilden, 113 So. at 712.

(70) Id..

(71) Martin, 112 So. at 283.

(72) Tilden, 113 So. at 712.

(73) Act of Congress of September 28, 1850, Ch. 84, 9 U.S. Stats. 519.

(74) Gerbing, 47 So. at 357; Martin, 112 So. at 284. The legal rationale for this holding is that in 1850, at the time of the swamp lands grant, the federal government no longer held title to the beds of Florida's navigable water bodies, title to such lands having passed to Florida by operation of law in 1845.

(75) Martin, 112 So. at 283. See also, Macnamara, 648 So. 2d at 159 (citing the record in Martin to show that the Martin court was addressing a controversy over a non-navigable cove on the margin of Lake Okeechobee).

(76) See Mobil Oil Corp. v. Coastal Petroleum Co., 671 F.2d 419 (C.A.11 Fla.1982) (providing history of lawsuit for conversion of phosphate allegedly mined from beneath the Peace River); Coastal Petroleum Co. v. International Minerals & Chemical Corp., 709 F. Supp.1092 (N.D. Fla. 1988) (stating that Coastal Petroleum sought $800,000,000 in damages for conversion of phosphate).

(77) Mobil Oil Corporation's Trial Brief Regarding the Ordinary High Water Mark, Mobil Oil Corporation v. The State of Florida et al., Case No. GCG-82-1089, Tenth Judicial Circuit, Polk County, Florida (October 12, 1987) at pp. 14-15 (hereinafter "Mobil Trial Brief').

(78) Mobil Oil Corporation's Motion for Pre-Trial Ruling and for Order in Limine Regarding the Ordinary High Water Mark, Mobil Oil Corp. v. The State of Florida, Case No. GC-G-82-1089, 10th Judicial Circuit (October 19, 1987), at p. 14-15 (hereinafter "Pre-Trial Ruling").

(79) Mobil Trial Brief, supra note 77, at 16.

(80) Supra at 8-1 0.

(81) Supra at 12.

(82) Supra at 20.

(83) Supra at 11120. The brief quotes Tilden but omits the section discussing the location of the boundary on low flat-banked water body. Id. at 13. Mobil attempted to justify the use of 60 years of non-Florida case law by stating that "courts in other jurisdictions have had occasion to consider the issue in greater depth." Pre-Trial Ruling, supra note 78, at 12-13.

(84) Mobil Trial Brief, supra note 77, at 15-16.

(85) The evidence consisted of a series of permits for various locations on the river which required the companies to produce and ordinary high water line determination. In some instances, the companies' new ordinary high water line was below prior ordinary low water determinations. Permitting on that stretch of the river dated back to almost the turn of the century.

(86) Board of Trustees v. Board of Professional Land Surveyors, DOAH Case No. 88-4710RP (1989). On appeal, the rules were invalidated on the basis that the rules exceeded the rulemaking authority of the Board. Board of Trustees of Internal Imp. Trust Fund of State of Fla. v. Board of Professional Land Surveyors, 566 So. 2d 1358 (Fla.1st DCA 1990).

(87) The administrative law judge found as a matter of fact that "a substantial number of the suggestions" and "extensive contributions" were made by lawyers for the phosphate mining companies and by lawyers for the Florida Land Council. Id. at paragraph 6. Authority for the definition of "ordinary high water mark" in the proposed rule was Tilden, Goose Creek Hunting Club, Inc. v. United States, 518 F.2d 579 (Ct. Cl. 1975); Howard v. Ingersoll, 54 U.S. 3 81 (1851), and a law review article written by a California lawyer who represented land developers in litigation with the state entitled The Riparian Developer's Dilemma: Locating the Boundary of Navigable Rivers and Lakes, Real Property, Probate and Trust Journal (Fall 1983). Notably absent was any citation to either Gerbing or Martin. Id. at paragraph 31.

(88) Id.

(89) Id. at paragraphs 18, 24, and 31.

(90) Id. at paragraph 83.

(91) Fla. House Bill 1215 (1988); Fla. HB 328 (1989); Fla. HB 2269 (1990). The text of the bill had been suggested in a law review article written by attorneys who strongly objected to the Florida Supreme Court's decision in American Cyanamid. Joseph W. Jacobs & Alan B. Fields, Sovereignty Lands in Florida: Lost in a Swam of Ambiguity, 38 Univ. Fla. L.R. 347. (1986). On the issue of the location of the ordinary high water line, the article asserts that the only Florida appellate decision addressing the ordinary high water line is Tilden. Martin and Gerbing are not cited. Id. at 387.

(92) Id.

(93) Macnamara, 648 So. 2d at 157; Board of Trustees v. Board of Professional Land Surveyors, DOAH Case No. 88-471ORP (1989) (appearances).

(94) Mr. Daniel Gentry was a member of the Board at the time the rules were proposed. He then testified for the Macnamara's as their expert on the location of the ordinary high water boundary.

(95) Macnamara, 648 So. 2d at 157-58. The Southeastern Legal Foundation and the Florida Legal Foundation filed amicus briefs. Id. at 157. In their motions, both organizations described themselves as private property rights organizations. Motion of Florida Legal Foundation, Inc. for Leave to File Amicus Curiae Brief, Case No. 93-2494 (October 14, 1993); Southeastern Legal Foundation's Motion for Leave to File Brief Amicus Curiae, Case No. 93-2494 (October 25, 1993).

(96) Initial Brief of Amicus Curiae Florida Legal Foundation, Inc., Case No. 93-2494 at pp. 3-7 and 19-20; Initial Brief of Appellant Roger Macnamara, Case No. 93-2494 at pp. 32-33 and 37-38. The rationale for these arguments was that lands that were submerged only during the high water season were valuable for agriculture or grazing during the low water season and therefore excluding these lands from the ordinary high water boundary would promote "the most advantageous use of the lands." Initial Brief of Florida Legal Foundation at p. 23.

(97) Macnamara v. Kissimmee River Valley Sportsmans' Ass'n, 651 So. 2d 1195 (Fla. 1995).

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