IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED
CRAIG A. MARLOWE,
Appellant,
v. Case No. 5D21-2407 LT Case No. 2005-CA-0186
CITY OF ST. AUGUSTINE, KEVIN VAN DYKE, MARCY A. VAN DYKE, PAUL A. LEONARD AND SUSAN J. LEONARD, TRUSTEES OF THE LEONARD FAMILY REVOCABLE LIVING TRUST DATED 23RD JANUARY, 2007, ET AL,
Appellees.
________________________________/
Opinion filed July 14, 2023
Appeal from the Circuit Court for St. Johns County, Kenneth J. Janesk, Judge.
Michael J. Korn, of Korn & Zehmer, PA, Jacksonville, for Appellant.
Isabelle C. Lopez, City Attorney, St. Augustine, and Michael Cavendish, of Cavendish Partners, P.A., Jacksonville, for Appellee, City of Saint Augustine. Rebecca Bowen Creed, of Creed & Gowdy, P.A., Jacksonville, and Bruce B. Humphrey and Lauren E. Howell, of Birchfield & Humphrey, Ponte Vedra Beach, for Appellees, Kevin Van Dyke and Marcy A. Van Dyke.
Gary S. Edinger, of Benjamin, Aaronson, Edinger & Patanzo, P.A., Gainesville, for Appellees, Paul A. Leonard and Susan J. Leonard, Trustees of the Leonard Family Revocable Living Trust Dated 23rd January, 2007.
LAMBERT, J.
Craig A. Marlowe appeals the final summary judgment entered against
him and in favor of the City of St. Augustine (the “City”) and Kevin and Marcy
A. Van Dyke (the “Van Dykes”). Marlowe also appeals the order denying his
motion for attorney’s fees as a sanction against the City, filed pursuant to
section 57.105(1), Florida Statutes (2020). We affirm, without further
discussion, the order denying Marlowe’s section 57.105(1) motion for
attorney’s fees. However, for the reasons that follow, we reverse the final
summary judgment and remand for further proceedings consistent with this
opinion.
2 FACTS AND PROCEDURAL HISTORY
Marlowe initially filed the underlying lawsuit in 2005 against the owners
of a single parcel of real property that is directly adjacent to real property
owned by Marlowe in St. Augustine, Florida. What began as a dispute
between two neighboring properties regarding riparian rights—based on
Marlowe’s allegation that the neighbors’ dock obstructed and interfered with
his riparian rights (particularly his right to build his own dock that accesses
the navigable waters of Hospital Creek)—evolved into a complicated
multiparty litigation involving several nearby properties, as well as disputes
over the correct property boundaries and the historical ownership of the
subject waterfront land dating back to Spanish colonial Florida in the early
nineteenth century.
The City and the Van Dykes were later added as defendants
because—though Marlowe did not assert any claim directly against them—
they were found by the trial court, in an earlier order on a motion to dismiss
filed by a different defendant, to be “indispensable parties” based on the
possibility that a determination as to Marlowe’s riparian rights might affect
the riparian rights appurtenant to nearby waterfront properties owned by the
City and the Van Dykes, respectively. Specifically, the City owns a thirty-foot
right-of-way road called San Carlos Avenue, part of which borders the entire
3 northern boundary of Marlowe’s property. San Carlos Avenue allegedly runs
all the way to Hospital Creek, which is east of all of the separate tracts of
land owned by the parties to the lawsuit. The Van Dykes own the waterfront
real property immediately north of San Carlos Avenue, which separates their
property from Marlowe’s property. The other defendants in the initial stages
of the underlying litigation1 own property bordering the south of Marlowe’s
property.
During the earlier stages of this litigation, Marlowe had apparently
obtained a title opinion that advised him that a dissolved corporation, St.
Augustine North Beach and Toll Bridge Company (“Toll Bridge Company”),
not Marlowe, owned the easternmost portion of what Marlowe had
considered to be his own property. Marlowe would later acknowledge that,
as a result, he discontinued actively pursuing resolution of the instant lawsuit
for over seven years while he took steps that he believed were necessary to
acquire the subject property from Toll Bridge Company via adverse
possession.
In early 2017, Marlowe filed a fifth amended complaint in which he
1 As of the date that the summary judgment was entered, the neighboring property and dock that were owned by the original defendants had come under ownership of the appellees Paul A. Leonard and Susan J. Leonard, Trustees of the Leonard Family Revocable Living Trust Dated 23rd January, 2007 (“the Leonards”).
4 added Toll Bridge Company as a defendant, together with “any and all
unknown parties claiming by, through, under and against St. Augustine North
Beach & Toll Bridge Company who may be dead or alive, if said unknown
parties may claim an interest through said company as spouses, heirs,
devisees, grantees, or otherwise.” Marlowe alleged for the first time that Toll
Bridge Company owned all of the relevant waterfront land south of San
Carlos Avenue other than the waterfront land owned by Marlowe and, thus,
they were the only parties to the lawsuit who had riparian rights appurtenant
to property south of San Carlos Avenue.
The following year, Marlowe filed a sixth amended complaint, which is
the operative complaint. Marlowe revealed in this complaint that he had filed
a separate lawsuit solely against Toll Bridge Company to quiet title and that,
in November 2016, he obtained a default judgment against Toll Bridge
Company. In that default judgment, the trial court found that when Marlowe
acquired his property, Toll Bridge Company “may have had some right, title,
and/or interest” in part of the property—specifically, the easternmost part of
the property, nearest to Hospital Creek—but that Marlowe had become the
true record titleholder of that property by virtue of adverse possession. The
5 default judgment further found that, as to “any or all accreted[2] lands that
may be appurtenant to [the subject property acquired by Marlowe through
adverse possession],” Marlowe “has the superior right to the accreted lands
east of and appurtenant to [that subject property], subject to any other
lawfully superior claims of adjacent owners to the accreted lands, if any.”
Returning to the operative complaint in the underlying case, Marlowe
asserted three causes of action requesting: (1) a declaration as to his riparian
rights; (2) an injunction ordering the Leonards and another defendant 3 to
remove their docks and restraining the defendants from further interfering
with his riparian rights; and (3) quiet title and a declaration that Marlowe owns
“the accreted property adjacent to his upland property,” including a portion
of allegedly accreted land claimed by the Leonards. Marlowe’s claims in the
underlying lawsuit depended upon Marlowe owning waterfront property and
2 Black’s Law Dictionary defines “accretion” as “[t]he gradual accumulation of land by natural forces, esp[ecially] as alluvium is added to land situated on the bank of a river or on the seashore.” Accretion, Black’s Law Dictionary (3d Pocket Ed. 2006). 3 Between the initiation of the lawsuit and the filing of the sixth amended complaint, Marlowe had added as defendants the owners of the property immediately south of the Leonards’ property, Christopher and Georgia C. Park (the “Parks”). The Parks also had a dock between their property and Hospital Creek, and Marlowe had alleged that both the Leonards’ dock and the Parks’ dock interfered with his riparian rights. The Parks have not participated in this appeal.
6 the riparian rights thereunto appertaining.
After the various parties filed their responses to this sixth amended
complaint, the City filed a motion for summary judgment. The City argued
that it, and not Marlowe or Toll Bridge Company, owned that easternmost
part of the land claimed by Marlowe as his own, including all lands east of
Marlowe’s property to the waters of Hospital Creek. The City asserted that
Marlowe could not have obtained that easternmost waterfront land because,
when he purchased the property in 2004, the prior owner of Marlowe’s
property who sold it to him did not own that easternmost waterfront portion.
The City next asserted that Marlowe could not have obtained that
easternmost waterfront property from Toll Bridge Company as a result of the
default judgment because Toll Bridge Company did not own that land. As
evidence in support of its summary judgment motion, the City filed, among
other documents, records from the St. Johns County Property Appraiser
identifying the easternmost waterfront portion of the land claimed by Marlowe
(as well as the waterfront land separating from Hospital Creek all of the
parcels south of Marlowe’s property that are owned by other defendants)—
i.e., the land that Marlowe argued had been owned by Toll Bridge Company
and that he subsequently acquired through adverse possession—as Tax ID
Parcel 1493300000 that is owned by the City.
7 The City thirdly argued that the default judgment obtained by Marlowe
against Toll Bridge Company in the separate suit was void as a matter of law
because it was obtained against a “non-existent” entity for which there are
no records substantiating its “existence” later than the 1930s. The City
reminded that since it was never joined as a party in Marlowe’s separate suit
against Toll Bridge Company, the default final judgment entered in that case
had no res judicata effect against it.
The City also argued that while Toll Bridge Company operated a horse-
drawn railway car over a nearby bridge in the 1910s and 1920s and that Toll
Bridge Company had some deeded interest in some of the disputed land at
that time, the land held by Toll Bridge Company was not waterfront property.
Instead, the City argued that there had always been unsurveyed and
unplatted sovereignly owned land between the privately owned property
involved in this case and Hospital Creek. 4
Lastly, the City asserted in its motion that Marlowe’s claim to ownership
of the disputed waterfront land is fatally flawed due to Marlowe’s failure to
4 The City did acknowledge that some new land had been formed along the subject waterfront stretch between the 1920s and the present—although the City asserted that it was formed by “dumped street sweepings during years of public works projects,” as opposed to natural accretion—but the City maintained that there had always been some sovereign land between Hospital Creek and the privately owned land in that specific location.
8 plead the necessary element of “state action.” According to the City,
Marlowe was suing a sovereign entity for a determination of the sovereign’s
property rights but the trial court lacked subject matter jurisdiction over the
claim because Marlowe failed to allege some “state action” by the City in the
form of a taking or infringement upon Marlowe’s private property rights.
Marlowe filed a response to the City’s summary judgment motion. He
asserted that in the early 1800s (prior to the United States acquiring Florida
from Spain), Spain transferred the subject waterfront property into private
ownership and that the surveyed and platted property owned by Toll Bridge
Company was originally waterfront property—and was so as late as the
1920s. Therefore, Marlowe asserted that all of the unplatted land between
Toll Bridge Company’s original property and Hospital Creek is new land
(whether formed by accretion or the City’s filling activities), title to which was
vested in Toll Bridge Company, as owner of the immediately upland property,
and was now vested in him, as a result of the default final judgment entered
in the separate suit finding adverse possession.
Marlowe further responded that the City’s “state action” argument was
unavailing because he had not sought judicial determination as to the City’s
ownership interest in any land; rather, the City was only added as a
defendant because the trial court believed it to be an indispensable party due
9 to the possibility that a determination of Marlowe’s riparian rights might affect
the City’s riparian rights arising from its neighboring waterfront property (i.e.,
San Carlos Avenue).
The Van Dykes filed their own motion for summary judgment. They
joined in and adopted the arguments raised by the City in its summary
judgment motion, explicitly emphasizing the argument that Marlowe
possesses no riparian rights because he does not own the unplatted
waterfront land between the easternmost platted property and Hospital
Creek. The Van Dykes also argued that even if Marlowe were found to have
riparian rights, any determination of Marlowe’s riparian rights could not affect
their riparian rights because their waterfront property and Marlowe’s property
are separated by San Carlos Avenue and thus not immediately adjacent.
Lastly, the Van Dykes asserted that Marlowe’s claim against them was time-
barred under section 95.12, Florida Statutes (2004).
Lastly, Marlowe filed his own motion for partial summary judgment. He
asked that the trial court hold that the eastern boundary of the subject platted
property was originally waterfront and is, thus, riparian property and that he
owns that easternmost portion of the platted property east of and
appurtenant to his undisputed property, as well as “all accretions” east of his
10 Following a hearing on the three summary judgment motions, the trial
court entered an order granting the City’s and the Van Dykes’ motions and
denying Marlowe’s motion and thereafter entered final summary judgment
consistent with its order. The trial court first concluded that it lacked
jurisdiction to determine ownership of the unplatted land because Marlowe
failed to satisfy the “state action” requirement raised by the City, as he did
not show or even allege any “deprivation, taking or infringement” by the City
against his private property interests.
The trial court then proceeded to engage in “a complete analysis of the
arguments.” It first found that the summary judgment evidence did not
support Marlowe’s claim that the subject waterfront property was transferred
into private ownership by Spain in the early 1800s. It instead concluded that
the evidence established beyond a genuine dispute of material fact that the
unplatted land east of Marlowe’s property and separating the platted property
from Hospital Creek was owned by the City as sovereign.
The trial court then addressed the default judgment obtained by
Marlowe against Toll Bridge Company. The court did not find the default
final judgment to be void, stating that it “[did] not wish to question or rewrite
the history of another case,” but concluded that it was “not inclined to give
any further validity to a default decision against a company that stopped
11 existing decades before Marlowe even purchased the property.”
As to the summary judgment in favor of the Van Dykes, the trial court
found that even if Marlowe possessed riparian rights, under this court’s
decision in Lake Conway Shores Homeowners Ass’n v. Driscoll, 476 So. 2d
1306 (Fla. 5th DCA 1985), any determination as to those rights could not
affect the Van Dykes’ riparian rights because the Van Dykes’ property does
not “adjoin” Marlowe’s property. The court also separately found that any
riparian rights claim asserted by Marlowe against the Van Dykes was time-
barred by section 95.12.
On appeal, Marlowe asserts numerous arguments in support of his
request that this court reverse the summary judgment. Applying the de novo
standard of review, see Volusia Cnty. v. Aberdeen at Ormond Beach, L.P.,
760 So. 2d 126, 130 (Fla. 2000), we find that four of Marlowe’s arguments
merit reversal of the final summary judgment.
I.
Marlowe argues that the trial court erred in finding that it lacked subject
matter jurisdiction under the “state action” theory forwarded by the City. As
previously indicated, the trial court explained that “state action” required that
“there must be some deprivation, taking or infringement by the sovereign
against a private citizen’s property interest before that private citizen can
12 request [that the court] determine the sovereign’s property rights.” We
reverse on this issue for two reasons.
First, Marlowe did not allege that the City took some affirmative action
depriving or infringing against his property interests. Marlowe sought a
declaration as to his own riparian rights, injunctive relief against the owners
of two pieces of private property with two corresponding private docks, and
to quiet title to the easternmost waterfront portion of what he claimed to be
his own property. Marlowe did not allege, nor did his complaint appear to
contemplate, that the City might have some claim to that land. Marlowe later
added the City as a defendant in response to the trial court’s finding, in an
earlier order that it entered on a motion to dismiss filed by a prior defendant,
that the City was an indispensable party because its riparian rights arising
from the City’s ownership of adjacent property might be affected by a
determination of Marlowe’s riparian rights, if any.
It was the City, in fact, that first suggested sovereign ownership of the
property that Marlowe claimed to own. The City filed its motion for summary
judgment and presented evidence in the form of records from the St. Johns
County Property Appraiser that conflicted with Marlowe’s evidence as to
ownership. To the extent that the City’s subsequent claim of ownership over
land to which Marlowe sought to quiet title somehow transformed Marlowe’s
13 claim into one seeking a determination of a sovereign’s property rights, the
City’s claim of ownership in derogation of Marlowe’s claim of ownership that
he based on deeds and the default judgment against Toll Bridge Company
would arguably satisfy the requirement of a “deprivation, taking, or
infringement.”
Second, the authorities cited by the trial court in its order do not support
the City’s “state action” argument. In Blessey v. Walton County, Case No.
3:18cv1415/MCR/CJK, 2018 WL 4291735 (N.D. Fla. Sept. 7, 2018), a
beachfront property owner filed suit in federal court seeking a declaration
that Florida’s common law “customary use doctrine”—providing that “the
public maintains a right to use the dry sand beach adjacent to the mean high-
water line without interference by the property owner”—was unconstitutional.
Id. at *1. To demonstrate the injury to his own property that was a
prerequisite to obtaining the declaration that he sought, the plaintiff alleged
only that the county was “intending” to assert “customary use” over all
shoreline in the county, including shoreline owned by the plaintiff. Id. at *2.
The federal district court found that until the county actually asserted
customary use over the plaintiff’s property, his requested declaratory relief
was premature. Id. at *4 (“Addressing a challenge to the common law
doctrine with no state action and no concrete or immediate threat of injury
14 would require [the court] to make a constitutional determination based on
hypothetical facts” and “in the abstract, which [the court] may not do.” (citing
Gagliardi v. TJCV Land Tr., 889 F.3d 728, 733 (11th Cir. 2018); In re
Checking Acct. Overdraft Litig., 780 F.3d 1031, 1038 (11th Cir. 2015))).
Blessey is inapposite to the resolution of the instant case. Marlowe’s
complaint does not seek a declaration as to some future action that the City
is considering, and Marlowe’s complaint alleges an actual injury supporting
his requested relief—that is, Marlowe alleges that his neighbors’ docks
interfere with his riparian rights. Therefore, unlike the plaintiff in Blessey,
Marlowe is not seeking a declaration “in the abstract” or “based on
hypothetical facts.” Gagliardi is likewise inapposite to the instant case. See
Gagliardi, 889 F.3d at 732–34 (holding that a property owner’s lawsuit in
federal court seeking declaratory and injunctive relief against a city related
to the city’s approval of the building of a religious center in a residential area
became moot when other property owners sued the city in state court
seeking to block that same project and successfully obtained for all similarly
situated property owners the relief that the Gagliardi plaintiffs sought in
federal court).
II.
We next address the default judgment that Marlowe obtained against
15 Toll Bridge Company in the separate suit. Marlowe argued, among other
things, that the default final judgment evidenced his interest in a portion of
the subject real property. In granting summary judgment to the City, the trial
court stopped short of declaring the default final judgment against Toll Bridge
Company to be void. It did, however, express that it was “not inclined to give
any further validity to a default decision against a company that stopped
existing decades before Marlowe even purchased the property.” To the
extent that the trial court, in the context of a summary judgment, disregarded
the default judgment because Toll Bridge Company was a long-dissolved
Florida corporation, the court erred.
Marlowe served his quiet title complaint upon Toll Bridge Company by
publication. “Service of process by publication may be made in any court on
any party identified in [section 49.021, Florida Statutes], in any action or
proceeding” to, inter alia, “quiet title or remove any encumbrance, lien, or
cloud on the title to any real or personal property within the jurisdiction of the
court.” § 49.011(2), Fla. Stat. (2015).
“Where personal service of process or, if appropriate, service of
process under [section] 48.194[5] cannot be had, service of process by
Section 48.194, Florida Statutes (2015), controls personal service of 5
process outside of the State of Florida.
16 publication may be had upon any party, natural or corporate, known or
unknown, including,” inter alia, “[a]ny corporation or other legal entity,
whether its domicile be foreign, domestic, or unknown, and whether
dissolved or existing, and, when described as such, the unknown assigns,
successors in interest, trustees, or any other party claiming by, through,
under, or against any named corporation or legal entity.” § 49.021(2), Fla.
Stat. (2015). This statute does not provide any time limit on how long a
corporation may be dissolved and still be served by publication. Therefore,
the trial court’s premise in the proceeding below in which it apparently
weighed and then summarily disregarded evidence of the default judgment
because Toll Bridge Company has long been dissolved was incorrect. 6
6 To the extent that the City and the Van Dykes argue, and the trial court implied, that the default judgment could be declared void based on lack of personal jurisdiction over Toll Bridge Company, actions that are in rem or quasi in rem, which would include Marlowe’s quiet title action against Toll Bridge Company, do not require the establishment of personal jurisdiction over a defendant landowner. See Hinton v. Gold, 813 So. 2d 1057, 1059 (Fla. 4th DCA 2002) (citing McDaniel v. McElvy, 108 So. 820, 830 (Fla. 1926); T.J.K. v. N.B., 237 So. 2d 592, 594 (Fla. 4th DCA 1970); Wolf v. Indus. Guar. Bancorp., 281 So. 2d 598, 599 (Fla. 3d DCA 1973)); Miccosukee Tribe of Indians of Fla. v. Dep’t of Envtl. Prot. ex rel Bd. of Trs. of the Int. Imp. Trust Fund, 78 So. 3d 31, 33 (Fla. 2d DCA 2011). However, a trial court obtains jurisdiction in such actions “only after the plaintiff wishing to bring suit complies with the requirements of due process,” which requires “that the defendant be given fair notice and a reasonable opportunity to be heard before a judgment is rendered.” Hinton, 813 So. 2d at 1059–60 (citing Ryan’s Furniture Exch. v. McNair, 162 So. 483, 487 (Fla. 1935); Wyatt v. Haese, 649 So. 2d 905, 907–08 (Fla. 4th DCA 1995)). Service of process
17 Neither the Van Dykes nor the City presented any evidence or
argument that Marlowe failed to comply with Florida’s service of process by
publication statutes, nor did the trial court make any such finding.
Furthermore, to the extent that the trial court found that the default judgment
was unenforceable because, as a matter of law, the City, and not Toll Bridge
Company, owned the subject property, we conclude that there are genuine
disputes of material fact that preclude summary judgment. See Fla. R. Civ.
P. 1.510(a) (requiring a showing “that there is no genuine dispute as to any
material fact” and that “the movant is entitled to judgment as a matter of law”
before a summary judgment may be granted).
At the summary judgment hearing, both Marlowe and the City
presented and relied upon the original 1924 plat map of the development
area encompassing all of the parties’ subject properties. The plat map
identified Toll Bridge Company as the owner of the proposed development.
Marlowe presented a chain of deeds arguably supporting Toll Bridge
Company’s ownership of the subject property, including the easternmost
by publication, when effected in compliance with statutory requirements, satisfies this due process requirement for in rem jurisdiction. See, e.g., Honegger v. Coastal Fertilizer & Supply, Inc., 712 So. 2d 1161, 1162 (Fla. 2d DCA 1998) (citing Bedford Comput. Corp. v. Graphic Press, Inc., 484 So. 2d 1225, 1227 (Fla. 1986); Est. of Bobinger v. Deltona Corp., 563 So. 2d 739, 748 (Fla. 2d DCA 1990)).
18 portion of the surveyed and platted property in dispute.
That easternmost portion of the surveyed and platted property was
dedicated as a roadway in the 1924 plat map. However, the road was never
built, and the dedicated right-of-way was expressly abandoned by the City
by ordinance in 1966. Because Toll Bridge Company may arguably have
held title to the entire dedicated-then-abandoned roadway, 7 comprising the
easternmost boundary of the surveyed and platted property, this evidence
materially conflicted with the evidence presented by the City through the St.
Johns County Property Appraiser records that attributed ownership of the
subject waterfront property to the City. The City argued that this showed its
ownership of the unplatted land between the platted property and Hospital
Creek, which appears to include the eastern one-half of the dedicated-then-
abandoned roadway comprising the eastern boundary of the platted
property. This genuine dispute of material fact as to whether the City or Toll
Bridge Company owned the easternmost portion of the platted property
7 See Pelican Creek Homeowners, LLC v. Pulverenti, 243 So. 3d 467, 470–71 (Fla. 5th DCA 2018); Lehmann v. Cocoanut Bayou Ass’n, 269 So. 3d 599, 608–10 (Fla. 2d DCA 2019). We reject, without further discussion, the City’s and the Van Dykes’ argument that section 177.085(2), Florida Statutes (1972), undermines Marlowe’s theory as to Toll Bridge Company’s ownership of the easternmost portion of the subject platted property. See Pelican Creek Homeowners, 243 So. 3d at 472–73; Lehmann, 269 So. 3d at 613–14.
19 when Marlowe obtained the default judgment against Toll Bridge Company
in adverse possession was not resolvable through summary judgment.
Second, while the City maintains that there have always been
unsurveyed and unplatted sovereign lands between the subject platted
property and the waters of Hospital Creek, Marlowe asserted that the platted
property (particularly, the dedicated-then-abandoned roadway comprising
the eastern boundary of the platted property) was originally waterfront
property and that all of the unplatted waterfront land to the east was newly
formed since the dedication of the plat in 1924. The summary judgment
evidence on this issue is conflicting, with some maps from the 1920s
depicting a large and undefined space between the creek and the platted
property, with other maps from the 1920s suggestive that the creek’s waters
ran closer to the platted property. One map also depicted the waters of the
creek bordering and slightly overlapping the platted property.
This disputed fact bears upon ownership of all of the land between the
platted property and Hospital Creek. If the platted property was waterfront
property, then the upland owner of the easternmost portion of platted
property could have arguably held title to the newly formed land adjacent
thereto, whether that land was formed by accretion or by the City’s filing
activities. Compare Walton Cnty. v. Stop Beach Renourishment, Inc., 998
20 So. 2d 1102, 1111–12 (Fla. 2008) (recognizing the riparian/littoral 8 right to
ownership of accretions), with § 253.12(9), Fla. Stat. (1993) (granting, under
certain circumstances, the state’s right, title, and interest in tidally influenced
land that has been created by fill before July 1, 1975, to “the landowner
having record or other title to all or a portion thereof or to the lands
immediately upland thereof and its successors in interest”). This Court need
not, and we therefore do not, reach the hypothetical issue of whether Toll
Bridge Company, if it owned originally waterfront property and if the new land
was formed by the City’s filling activities, could have obtained title to the
newly formed land pursuant to section 253.12(9). The genuinely disputed
factual issues of who owned the easternmost portion of the platted property
and whether the platted property was originally waterfront property—not to
mention the unsettled issue of whether the newly formed land was created
by accretion, by fill, or by a combination of both—render erroneous the trial
court’s summary judgment.
III.
Turning to the summary judgment entered in favor of the Van Dykes
8 “Riparian” technically refers to rights appurtenant to ownership of property abutting a river or stream, while “littoral” refers to rights appurtenant to ownership of property abutting an ocean, sea, or lake. Nevertheless, Florida case law and the Florida Statutes often use the terms interchangeably. See Stop Beach Renourishment, 998 So. 2d at 1105 n.3.
21 on Marlowe’s claim of riparian rights, the trial court, citing to this court’s
decision in Lake Conway Shores, determined that whatever may be the
riparian rights of Marlowe, they could not affect the Van Dykes’ riparian rights
because the Van Dykes’ property was not directly adjacent to Marlowe’s
property. We reverse.
Lake Conway Shores does not support this conclusion that the
determination of a waterfront property owner’s riparian rights could only
possibly affect the riparian rights of immediately adjacent waterfront property
owners. See 476 So. 2d 1306. The only relevant holding from Lake Conway
Shores, which is not dispositive of the instant parties’ summary judgment
motions, is that using the “prolongation of property line” method (i.e.,
extending the interested parties’ property lines into the navigable waters to
determine the areas in which the parties may exercise their respective
riparian rights) cannot be used if it eviscerates another waterfront property
owner’s riparian or littoral rights. See id. at 1308–09. Here, a “riparian
survey” filed by Marlowe similarly used the “prolongation of property line”
method to draw “riparian boundaries,” but the “riparian lane” proposed in the
survey veered toward and even cut across the Van Dykes’ property.
The Florida Supreme Court’s opinion in Hayes v. Bowman, 91 So. 2d
795 (Fla. 1957), is instructive. The parties in that case disputed the proper
22 location of riparian or littoral lanes. Id. at 798. Each party used different
angles to prolong their property line into an available channel. Id. The
Florida Supreme Court recognized the bedrock common law riparian rights
of “an unobstructed view” and “access,” holding that
the common law riparian rights to an unobstructed view and access to the Channel over the foreshore across the waters toward the Channel must be recognized over an area as near “as practicable” in the direction of the Channel so as to distribute equitably the submerged lands between the upland and the Channel.
Id. at 801.
The court, however, observed the difficulty at times in protecting and
establishing these rights, holding:
It is absolutely impossible to formulate a mathematical or geometrical rule that can be applied to all situations of this nature. The angles (direction) of side lines of lots bordering navigable waters are limited only by the number of points on a compass rose. Seldom, if ever, is the thread of a channel exactly or even approximately parallel to the shoreline of the mainland. These two conditions make the mathematical or geometrical certainly [sic] implicit in the rules recommended by the contesting parties literally impossible. We must therefore search elsewhere for a solution to this admittedly difficult problem.
Id.
In other words, the court appeared to appreciate that when determining
23 riparian rights, there is no exclusive right to any geometrically drawn “riparian
lane.” In some circumstances, such as with a relatively straight shoreline
and consistently straight navigable channel, those rights might look like or
take the shape of straight “lanes” with docks, but that is often not true:
Riparian rights do not necessarily extend into the waters according to upland boundaries nor do such rights under all conditions extend at right angles to the shore line. Our own precedents are completely inconsistent with the appellees’ view that such rights extend over an area measured by lines at right angles to the Channel. It should be borne in mind that littoral or riparian rights are appurtenances to ownership of the uplands. They are not founded on ownership of the submerged lands. It is for this reason, among others that we cannot define the area within which the rights are to be enjoyed with mathematical exactitude or by a metes and bounds description.
Id. at 802.
From these principles, we conclude that the fact that the Van Dykes’
property is not directly adjacent to Marlowe’s property does not show,
beyond a genuine dispute of material fact, that a determination of Marlowe’s
riparian rights could not possibly affect the Van Dykes’ own riparian rights.
The trial court, therefore, erred in entering summary judgment in favor of the
Van Dykes on this basis.
The trial court also held that Marlowe’s claim against the Van Dykes to
set the riparian rights was barred by the seven-year statute of limitations
24 codified in section 95.12. This statute provides, in its entirety:
No action to recover real property or its possession shall be maintained unless the person seeking recovery or the person’s ancestor, predecessor, or grantor was seized or possessed of the property within 7 years before the commencement of the action.
§ 95.12, Fla. Stat. (2004).
As such, the plain language of section 95.12 applies to actions
involving the recovery of real property or its possession. Here, Marlowe did
not assert a claim against the Van Dykes seeking the recovery or possession
of real property; rather, as indicated, the Van Dykes are joined because a
determination as to Marlowe’s riparian rights could affect the Van Dykes
riparian rights arising from their nearby waterfront property. We find that the
trial court erred in ruling that Marlowe’s claim against the Van Dykes was
time-barred by section 95.12.
In summary, we reverse the final summary judgment entered in favor
of the City and the Van Dykes, and we remand for further proceedings
consistent with this opinion.
REVERSED and REMANDED.
WALLIS and HARRIS, JJ., concur.