STATE, ETC. v. Contemporary Land Sales, Inc.

400 So. 2d 488
CourtDistrict Court of Appeal of Florida
DecidedMay 20, 1981
Docket80-375
StatusPublished
Cited by13 cases

This text of 400 So. 2d 488 (STATE, ETC. v. Contemporary Land Sales, Inc.) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
STATE, ETC. v. Contemporary Land Sales, Inc., 400 So. 2d 488 (Fla. Ct. App. 1981).

Opinion

400 So.2d 488 (1981)

STATE of Florida, DEPARTMENT OF NATURAL RESOURCES, Appellant,
v.
CONTEMPORARY LAND SALES, INC., Appellee.

No. 80-375.

District Court of Appeal of Florida, Fifth District.

May 20, 1981.
Rehearing Denied July 8, 1981.

*490 Jack W. Pierce, and S. Sherman Weiss, Tallahassee, for appellant.

John F. Bennett, of Fishback, Davis, Dominick & Bennett, Orlando, for appellee.

COWART, Judge.

This case involves the application of the Marketable Record Title Act (§ 712.01 et seq., Fla. Stat. (1963)) to the title to land exposed by the lowering of the water level of a freshwater lake by a state water control agency.

The original U.S. Government survey, made in 1848, shows Section 18, Township 23 South, Range 26 East, as a fractional section with a couple of hundred acres of land on the west edge bordered on the east by the meandered shore of the navigable, non-tidal, fresh waters of what is now known as Lake Louisa in Lake County, Florida. Descriptions in the deeds in the chain of title refer to the fractional aspect of the section until a conveyance recorded December 23, 1938, described the land conveyed as the northwest quarter of the southwest quarter of the section. That description was used until a conveyance on August 29, 1966, described the property conveyed by metes and bounds as:

Begin at the SW corner of NW 1/4 of SW 1/4, Sec. 18, Tp. 23 S, R 26 E, and run thence north 36° 24' east 600 ft., thence east 964 ft., more or less, to the east line of said NW 1/4 of SW 1/4, thence south 482.9 feet, more or less, to the southeast corner of said NW 1/4 of SW 1/4, thence west 1320 feet, more or less, to point of beginning.

By various mesne conveyances this property, so described was conveyed to Contemporary Land Sales.

Lake Louisa is part of the Clermont chain of lakes whose water table was artificially lowered by a spillway constructed about August 8, 1956, by the Oklawaha Basin Recreation and Water Conservation Control Authority, an agency of the State of Florida.

At this time the description in the deed to Contemporary covers (a) some land which was original upland, (b) some land which was originally beneath the waters of Lake Louisa but has now been exposed by the lowering of the water level (i.e., land below the original high water mark and above the present lake level or "reclaimed lake bottom"), and (c) some land that is still beneath the present waters of Lake Louisa. Contemporary and its predecessors in title have paid ad valorem property taxes on the entire parcel described above for at least the last ten years.

Contemporary brought a quiet title action alleging the Marketable Record Title Act (§ 712.01 et seq., Fla. Stat. (1977)) extinguished all claims of the State to the property described above. The trial court entered summary judgment quieting Contemporary's title to those portions of the property in question lying west of a contour line running at an elevation of 96.4 feet NGVD[1] along the present shore of Lake Louisa. *491 The defendant State of Florida, Department of Natural Resources, appeals.

The State does not challenge the judgment quieting Contemporary's title to the original uplands and Contemporary did not appeal the trial court's judgment in effect denying Contemporary's action to quiet title to the portions of lands described above which are still underwater. Therefore, in this case we are concerned only with the title to land formerly, but not now, covered by the waters of Lake Louisa.

The original thirteen colonies became sovereign entities and owned the beds of their navigable waters. They did not give up that ownership when they formed the United States of America. Barney v. Keokuk, 94 U.S. 324, 24 L.Ed. 224 (1877); Pollard's Lessee v. Hagan, 44 U.S. 212, 11 L.Ed. 565, 3 How. 212 (1845); After the United States acquired West and East Florida from Spain in July, 1821, the lands under the navigable waters thereof, including the shores, were held by the United States for the benefit of the whole people, to go to the future state for the use of the whole people thereof. Ex parte Powell, 70 Fla. 363, 70 So. 392 (1915). States subsequently admitted to the Union have an equal status and when Florida was admitted as a state on March 3, 1845 (5 Stat. 742), by virtue of its sovereignty, it became the owner of all the land under navigable bodies of water within the state.[2] These lands are called sovereignty lands. Merrill-Stevens Co. v. Durkee, 62 Fla. 549, 57 So. 428 (1911); Broward v. Mabry, 58 Fla. 398, 50 So. 826 (1909). See also Shively v. Bowlby, 152 U.S. 1, 14 S.Ct. 548, 38 L.Ed. 331 (1894). Under common law doctrine the State of Florida in its sovereign capacity holds title to the beds of navigable waters, including the shore or the space between high and low water marks, in trust for the people of the state who have rights of navigation, commerce, fishing, boating and other public uses. Brickell v. Trammell, 77 Fla. 544, 82 So. 221 (1919); Broward v. Mabry. Subject to these public rights the Legislature of the State of Florida has control over such sovereign trust lands but, it is said, may sell parts of such lands to private ownership when the public and private rights are not impaired. State ex rel Ellis v. Gerbing, 56 Fla. 603, 47 So. 353 (1908). Therefore the lands originally under the waters of Lake Louisa were sovereign lands.

The title to the uplands in question passed to the State of Florida as swamp and overflowed lands under the Act of September 28, 1850 (9 Stat. 519) and was conveyed into private ownership by the Trustees of the Internal Improvement Fund in 1883. Swamp and overflowed lands within the meaning of the act did not include any lands below navigable waters.[3] Conveyances of uplands, including swamp and overflowed lands, for ordinary private ownership purposes do not extend below the ordinary high-water mark of adjoining navigable waters and do not include sovereignty lands. While ordinarily a meander line is not necessarily a boundary line when conveyances do not expressly make the meander line one of the calls of the boundary, (Lord v. Curry, 71 Fla. 68, 71 So. 21 (1916)), the meander line shown on the original government survey is evidence of the ordinary high-water mark of the body of navigable water and of the boundary between the sovereignty lands below the high-water mark and uplands or lands under private ownership which are above the high-water mark. However, owners of uplands bordering navigable water usually have riparian rights, including the right to an increase of their lands by accretion and reliction. Accretion is the extension of land area due to a gradual, natural and imperceptible build up of additional land by the accumulation of alluvium material. Reliction is a similar increase of land area due to the lowering of the water level by natural causes. Under the doctrine of accretion and reliction, the added land belongs to the riparian owner, even as against the sovereign rights of the State. Mexico Beach Corporation v. St. Joe *492 Paper Company, 97 So.2d 708 (Fla. 1st DCA 1957), cert. denied, 101 So.2d 817 (Fla. 1958).

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400 So. 2d 488, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-etc-v-contemporary-land-sales-inc-fladistctapp-1981.