Murky Bottoms: Sovereign Submerged Land, Riparian Rights, and Locating the Highwater Line.

• Author: Reynolds, George S., IV

Imagine you are sitting in your law office one afternoon when an old client calls and he's upset. He just received a cease-and-desist letter in the mail commanding him to remove a dock he constructed for a lakefront property recently purchased as a vacation home. One of his new neighbors believes the construction of the dock violates Florida law and is threatening to sue if it is not immediately removed. You continue to discuss the matter with your client and learn that prior to starting construction, he inquired with the Florida Department of Environmental Protection and the regional water management district who informed him that construction of the dock would not require a permit from either agency. The dock is also not significant enough in size or scope to require a building permit from the local government. Your client asks you: What basis does the neighbor have for sending the demand letter?

Eager to help an old client, you take on the matter. You conduct some research and learn that the neighbor owns the land submerged beneath the water immediately bordering your client's property. The neighbor claims that the construction of the dock trespasses onto his land and your client must first purchase an easement from him before construction may proceed. Moreover, the price of the easement demanded by the neighbor is hefty. You start brainstorming what options your client might have and an idea pops into your head: riparian rights. You don't really know what they are, but you know they exist. You also know that they are appurtenant property rights to upland properties bordering navigable waters and have something to do with sovereign submerged land. Your client owns uplands bordering waters capable of navigation (hence his construction of the dock), and it occurs to you that he may have a case. After a few more unsuccessful phone calls with the neighbor haggling over the price of an easement, you prepare a complaint for declaratory and injunctive relief and explain to your client that if any progress is to be made on construction of the dock, he will need to sue.

Legal disputes concerning riparian rights often include murky legal issues such as sovereign submerged land, the public trust doctrine, and the location of the highwater line that can lead to what may appear to be contradictory results to the greenhorn. Depending on the circumstances, your client may have riparian rights to the waterbody. This article explains key legal concepts associated with riparian rights, as well as how riparian rights can depend on whether the waterbody was artificially created or navigable in its natural state. Exploring the legal basis for this distinction in the analysis below could benefit both you and your client in contemplating whether to sue the neighbor.

What is Sovereign Submerged Land?

Sovereign submerged land lays beneath navigable waters and is owned by the state for use by the public, primarily for the purposes of navigation and commerce, but other public uses are also included. (1) Title to this land vested in the state when Florida became a state in 1845 under what is known as the "equal footing" doctrine of the U.S. Constitution. (2) Sovereign submerged land is encumbered by the public trust doctrine whereby the state holds title to the land in trust for the people of the state, and the state may only dispossess such land when it furthers the public interest. (3)

Under the English Common Law, title to the land beneath tidally influenced waterbodies was held by the King. (4) The public could access these waters for purposes of navigation, fishing, and commerce subject to the King's law. (5) Upon the conversion of the American colonies to states, this facet of the English Common Law became a background principle of state property law with the state replacing the King as sovereign. (6) American courts would extend the scope of submerged land encumbered by the public trust doctrine beyond tidally influenced waterbodies to naturally navigable fresh waterbodies that are not subject to the ebb and flow of the tide. (7) Waterbodies that are subject to the public trust doctrine, particularly those that are fresh waterbodies, are referred to as "navigable" waters. (8) To be "navigable," a particular waterbody must have been susceptible to navigation in its ordinary condition at the time of statehood. (9)

Based upon the "equal footing" doctrine of the U.S. Constitution, when a new state enters the union, it does so on the same terms and with the same benefits as the original 13 colonies. (10) Thus, upon statehood, all submerged land beneath navigable waters within Florida become sovereign submerged land and encumbered by the state's public trust doctrine. However, because the public trust doctrine is a creature of state law, states are free to change its scope and may limit the extent of submerged land subject to the doctrine. (11) Such determinations frequently occur in state courts through judicial decisions interpreting the doctrine's scope and application to specific parcels of submerged land that are the subject of litigation. One such example is the Florida Supreme Court's decision in Clement v. Watson, 58 So. 25 (Fla. 1912), which could be argued to have made a narrow interpretation of the public trust doctrine's scope. (12) Close to a century after the opinion was issued, Clement would prove to be a seminal example of state prerogative over the scope of submerged land subject to the public trust doctrine.

The waterbody at issue in Clement was a cove of shallow water adjacent to the New River Sound in Dade County. This cove was influenced by the ebb and flow of the tides but only due to an artificial improvement--the dredging of a channel--to allow for small craft access. Even with this improvement, a sand bar blocked access to the cove during low tides. Clement was a fisherman who filed suit to recover damages from an alleged assault after Watson excluded Clement from fishing in the cove, presumably by force. Under the facts presented in this case, the Florida Supreme Court found the cove was not navigable in its natural state (i.e., when Florida became a state in 1845) and, therefore, not subject to the public trust doctrine even though it was capable of tidal influence. (13) Besides affirming that Watson did not unlawfully assault Clement for fishing in his cove, the opinion in Clement also sets an early and definitive boundary on the scope of Florida's public trust doctrine. The decision holds that waters merely affected by the tides have never been considered "navigable" in Florida and explicitly excepts from the public trust doctrine privately owned land:

that do not immediately border on the navigable waters, and that are covered by water not capable of navigation for useful public purpose, such as mud flats, shallow inlets, and lowlands covered more or less by water permanently or at intervals, where the waters thereon are not in their ordinary state useful for public navigation. (14) Key to the court's decision in Clement is the rationale that "[t]he fact that a part of the cove was made navigable by artificial means after it became private property did not take away the right of the owner to control the fishing privileges therein subject to law." (15) The presence of an artificial improvement impacting navigability was, thus, an influencing factor in the Florida Supreme Court's decision to limit the scope of submerged land subject to Florida's public trust doctrine. While the court could have fashioned a favorable outcome for Watson on narrower grounds by focusing on the presence of an artificial improvement to navigability, the opinion in Clement set forth a definitive boundary for all submerged land within the state that might be subject to Florida's public trust doctrine. This definitive boundary is the holding that the scope of submerged lands...