Dredging up the Butler Act.

• Author: Steinmeyer, Edwin A.
• Position: Florida riparian law

Two decisions seem to balance the true purpose of the Butler Act and the changed perspective of the state's balance between preservation and progress.

The Butler Act was passed in 1921 and essentially reenacted the earlier Riparian Act of 1856. Like the Riparian Act, the purpose of the Butler Act was to create and stimulate commerce and to encourage upland riparian owners to improve their waterfront property.[1] In order to accomplish this purpose, waterfront owners were permitted under the act to obtain title to submerged lands adjacent to their uplands by bulkheading, filling, or permanently improving the submerged lands.[2] Although it was repealed by implication in 1951,[3] and expressly in 1957,[4] the Butler Act continues to affect the title to submerged lands that were so improved prior to its repeal.

In the recent decision, City of West Palm Beach v. Board of Trustees of the Internal Improvement Trust Fund, 714 So. 2d 1060 (Fla. 4th DCA 1998), the Fourth District Court of Appeal, on motion for rehearing, withdrew its earlier opinion[5] adopting the rationale utilized by the Third District Court of Appeal in State Board of Trustees of the Internal Improvement Trust Fund v. Key West Conch Harbor, Inc., 683 So. 2d 144 (Fla. 3d DCA 1996), substituting in its place a conflicting opinion holding that dredging is not a "permanent improvement" under the Butler Act.[6]

Reversing not only itself but also a slow trend of judicial expansion of the activities considered to be permanent improvements under the Butler Act, the Fourth District Court of Appeal rejected the Third District's case-by-case approach to determining whether certain types of dredging operated to convey title under the act. Although soon the Florida Supreme Court should render the ultimate pronouncement on the issue,[7] the court, along with the First and Third districts, has, at least tacitly, already decided it.

In Holland v. Fort Pierce Financing & Construction Co., 27 So. 2d 76 (Fla. 1946), the court addressed the applicability of the Butler Act to extensive improvements the Fort Pierce Financing and Construction Company had made to its riparian uplands and the abutting submerged lands. Among the "improvements" recognized by the court and included within the grant of title under the Butler Act was the dredging of channels, boat slips, turning basins, and a deep water channel across the Indian River.[8] The court noted that each of these activities was necessary to make the improvement usable as a whole.[9]

The Train Begins to Roll

Later, in Jacksonville Shipyards, Inc. v. Department of Natural Resources, 466 So. 2d 389 (Fla. 1st DCA 1985), the First District Court of Appeal used the term "improvements" to describe, inter alia, dredging of open waters between piers and docks.[10] Although it did not explicitly rule that dredging constituted a permanent improvement under the act, the court clearly recognized the dredged area as an improvement, and included the dredged area within the submerged lands disclaimed to Jacksonville Shipyards, Inc., under the Butler Act.[11]

Finally, the Third District Court of Appeal expressly addressed the issue of whether dredging constituted a permanent improvement under the Butler Act in Key West Conch Harbor.[12] The first court to address the question specifically, the Third District, found that the dredging at issue constituted a permanent improvement, but declined to rule as such across the board, deferring to a case-by-case approach.[13] To assist in making...