Gies v. Fischer
This text of 146 So. 2d 361 (Gies v. Fischer) is published on Counsel Stack Legal Research, covering Supreme Court of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
Howard GIES and Kenyon M. Heenan, and Wife, Lucille E. Heenan, Appellants,
v.
Charles R. FISCHER, R. Hosey Wick, Edward H. LaVoie, Harry R. Chadwick, Jr., and A.L. Anderson, As and Constituting the Board of County Commissioners of Pinellas County, Florida; and, As Such, Composing and Constituting the Governing Authority of the Pinellas County Water and Navigation Control Authority, Appellees.
Supreme Court of Florida.
Adrian S. Bacon of Bacon & Hanley, St. Petersburg, for appellants.
Richard W. Ervin, Atty. Gen., and Robert C. Parker, Asst. Atty. Gen., for appellees.
DREW, Justice.
The appellants challenge a decree of the Circuit Court for Pinellas County as a decision directly passing upon and sustaining the validity of Chapter 57-362, Laws of Florida, 1957, Section 253.122, Florida Statutes, F.S.A., against attack on constitutional grounds. Appellants in the court below and here assert the unconstitutionality of the action taken pursuant to that law in that it deprives them of their property without due process of law, is a taking of private property without just compensation, is a denial of the equal protection of the law, impairs the obligation of a contract, and is an unlawful and unconstitutional delegation of the legislative authority.[1]
*362 The statute in question[2] authorizes, in brief, local governing bodies to fix a bulkhead line offshore from lands or islands "bordering on or being in the navigable waters of the county, as defined in § 253.12," beyond which line any filling "shall be deemed an interference with the servitude in favor of commerce and navigation with which the navigable waters of this state are inalienably impressed." From a decision of the governing authorities in Pinellas County, setting a bulkhead line over and precluding filling upon a portion of submerged lands owned by appellants in Boca Ciega Bay, an appeal was taken, resulting in a decree reversing the action of county authorities because "to hold that a bulkhead line may be established at a location as was done in this case would require a holding that the act is unconstitutional, and this the Court will not do when it can be construed in such a fashion as to render it constitutional." F.S. Sec. 253.122, F.S.A., was construed to authorize the establishment of a bulkhead line only at a point where, in fact, "a further extension of land or islands outward would be an interference with the servitude in favor of commerce and navigation." The cause was remanded, permitting the establishment of a line across the appellants' property provided there be strict adherence to the standards set by the law regarding necessity in the prevention of interference with the public rights.
From a consideration of all related provisions of the act, we conclude that the court properly construed the statutory language, ruled upon its validity as so construed, and disposed of the cause before it in accordance with those views.
Appellants' preliminary contention is that Section 253.122, authorizing bulkhead lines "offshore from any existing lands or islands bordering on or being in the navigable waters of the county, as defined in § 253.12," (e.s.) incorporates the exclusion in the latter section[3] of all "submerged lands heretofore conveyed" from lands vested by that section in the trustees of the *363 internal improvement fund. The more reasonable assumption, in our opinion, is that the definition incorporated by reference is simply the definition of navigable waters in Sec. 253.12 as "all coastal and intracoastal waters." Fortifying this construction, i.e. that the intention of the act was to authorize establishment of bulkhead lines on lands privately as well as publicly owned at any point where further extension of fill would impair the inalienable public rights specified, is the ancillary provision of Section 253.123[4] of the act to the effect that the only purchasers of lands from the trustees who need not comply with Sec. 253.122 are those holding fill permits approved previous to the enactment.
The objections to the decree upon constitutional grounds are necessarily premised upon a contention that the statute could not lawfully authorize the establishment of a bulkhead line, for any reason, upon submerged lands to which appellants hold title by deraignment from a duly confirmed conveyance from the trustees of the internal improvement fund to their predecessors.
We think, however, that the limitations of the act as construed place it squarely in line with the decisions defining the nature of the state's title in sovereignty lands in general, and the restrictions inherent in its powers of alienation.[5] A conveyance of such lands will, of course, to the full extent of the grantor's power, vest in the purchaser the rights of use and control normally accompanying title, and the doctrine of estoppel, applied heretofore[6] against the trustees in this field, may further bolster title to areas where fill operations have been accomplished. Even if, however, that doctrine should operate in the latter situation to cut off all residual public rights, or create a conclusive presumption that the public servitudes were not at the time impaired so as to require that any subsequent impairment be corrected only by exercise of the power of eminent domain, we find that in the circumstances of this case the doctrine cannot prevent enforcement of the controverted statute.
Under the rule of the cited cases there can be no doubt that in the absence of some overriding necessity a conveyance of public lands or rights in lands which actually results in the impairment of the public servitudes, referred to in the statute here involved, must fail. Tested by that principle, no rights lawfully vesting under previous conveyances will be infringed by a proper application of this legislation, and whether it is sustained as police regulation or an exercise of retained power under the trust doctrine governing sovereign lands, the decree appealed in this case should be affirmed.
It is so ordered.
ROBERTS, C.J., and TERRELL and HOBSON, JJ., concur.
THOMAS, J., dissents.
*364 THOMAS, Justice (dissenting).
It is my view that the court should not assume jurisdiction of this cause. The order of the circuit judge to whom the landowners appealed from a decision of the Pinellas County Water and Navigation Control Authority was not final. It is true that the circuit judge held Chapter 57-362, Laws of Florida, Acts of 1957, constitutional but he remanded the cause to the Board for the establishment of a bulkhead line in accordance with his view that the line had to be fixed at a place beyond which filling of the land would interfere with commerce and navigation.
Therefore, when the cause gets back to the Authority for aught we know that body will fix the line at a location that will be acceptable to the parties who are now complaining.
Furthermore, there is no indication in the record that the bulkhead line as established by the Authority has ever been approved or disapproved by the Trustees of the Internal Improvement Fund. Under Sec. 253.122 it is evidently necessary that such approval or disapproval be expressed by the Trustees as a basis for appeal and that the time for appeal is computed from the date of approval or disapproval.
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146 So. 2d 361, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gies-v-fischer-fla-1962.