Sovereignty lands in Florida: it's all about navigability.

• Author: Peyton, Daniel W.
• Position: Part 1 - Lands lying below or adjacent to waterways

Controversies involving the ownership of so-called "sovereignty lands" lying below or adjacent to our nation's waterways have been raging for as long as our country has existed. They have involved issues ranging from border disputes between states to fishing rights in remote tributaries, and from the right to exploit subsurface minerals to building piers and bulkheads.

At issue in every case is the question of where the line is drawn between adjoining ownerships. While the combatants may be private citizens as in Lee v. Williams, 711 So. 2d 57 (Fla. 5th DCA 1998), rev. denied, 722 So. 2d 193 (Fla. 1998), which will be analyzed later, the battle in Florida ultimately becomes one between a private riparian landowner whose recorded title overlaps the nonrecorded interest of the state claimed by virtue of its sovereignty and the trustees of the Internal Improvement Trust Fund which holds sovereignty lands in trust for the people of Florida.

In one corner stands the private landowner (sometimes an individual, but due to the high cost of litigating such disputes, more often a corporation or private interest group) arguing that he has paid for, occupied, used, and been taxed on all the lands described in his deed. In the other corner stands the state, a formidable opponent in its own right, which is supported by a host of "seconds" including public and private environmental groups and the public at large for whose benefit the state maintains its interest.

It is the purpose of this article to examine the historical development of the sovereignty lands controversy in Florida. Statutory and case law will be reviewed and an analysis of various commentaries is included in an effort to illuminate both the consistencies and divergences of opinion as to what the law is or should be, and the issues raised in sovereignty lands disputes that have provoked such commentary. Focusing on the navigability issue, particular emphasis will be given to the U.S. Supreme Court decision in Phillips Petroleum Co. v. Mississippi, 484 U.S. 469 (1988), and the Florida case of Lee v. Williams.

Historic Development of Florida Law

* State Constitution and Statutory Law

An analysis of the law as it applies to any issue in any state must begin with the basics: constitutional and statutory law. In Florida, the state constitution addresses the issue of sovereignty lands in Article X, [section] 11 where it states: "The title to lands under navigable waters, within the boundaries of the state, which have not been alienated, including beaches below mean high water lines, is held by the state, by virtue of its sovereignty in trust for all the people." (1) This constitutional provision establishes what the state owns by virtue of its sovereignty, "lands under navigable waters," and for what purpose these lands are held "in trust for all the people." Title to these lands, (2) as well as administration, management, and control, is vested in the Board of Trustees of the Internal Improvement Trust Fund. (3)

These sovereignty lands are excepted from the Marketable Record Title Act (4) and are thus not subject to being extinguished by provisions of the act which might otherwise negate an interest for which no recorded evidence of ownership appears in the past 30 years. Further, sovereignty lands, like all other state lands, are not subject to adverse possession. (5)

* Selected Cases: 1859-1986

With its multitude of rivers, lakes, and streams, it is no surprise that Florida has had its share of disputes between riparian landowners (both private versus private owner and private versus state) wherein the issue of sovereignty lands was the focal point. Following is a review of some of the most often cited cases on this issue.

1) Geiger v. Filor (1859). In addressing a dispute involving the construction of a city wharf, the Florida Supreme Court in 1859 acknowledged the state's ownership of sovereignty lands when it decided Geiger v. Filor, 8 Fla. 325 (1859). Citing the U.S. Supreme Court's decision in the 1845 Alabama case of Pollard v. Hagan, 44 U.S. 212 (1845), the Florida court stated: "On the change of government which took place by the treaty of Spain transferring Florida to the United States, and afterwards on the assumption by the people of a state government, the right to the shores of navigable waters and the soils under them enured, first to the General Government and then to the State" (6)

Since the Filor decision, the Florida Supreme Court has been called upon on numerous occasions to address and attempt to define this ownership of the state which is as illusory in its application as it is settled in its legal existence.

2) State v. Black River Phosphate (1893). In State v. Black River Phosphate, 13 So. 640 (Fla. 1893), the court was confronted with the issue of ascertaining the character of the title of the state to lands under navigable waters. (7) The Black River Phosphate Company was taking phosphate from the bed of Black Creek which was both tidal and navigable-in-fact. (8) Black River's claim to the land was based on The Riparian Act of 1856 (Sections 454, 455 Revised Statutes) which granted "title" to riparian owners, giving them the right to build wharves into the waters of the state. (9)

Stating that the Riparian Act must be strictly construed in favor of the state or public, the court held that nothing passed to the riparian owners that was not denoted in clear and special words. (10) The purpose of the act was found in the words "full right and privilege to build wharves," (11) and there was no intention that the general rights of the public be impaired.

The significance of this case is that the court, citing U.S. Supreme Court cases as authority, concluded that the navigable waters of the state and the soil beneath them are the property of the state held for the use and enjoyment by all the people of the state, and the government as fiduciary is limited in its powers by the real nature and purposes of the tenure of the same. (12)

3) Ellis v. Gerbing (1908). In 1908, in Ellis v. Gerbing, 47 So. 353 (1908), the court further defined sovereignty lands by distinguishing them from swamp and overflowed lands which were conveyed to the state by the federal government in 1845. (13) These swamp and overflowed lands were then given by the Florida Legislature to the Internal Improvement Fund (later becoming the Trustees of the Internal Improvement Trust Fund) which subsequently sold them to private individuals. (14)

Gustav Gerbing, claiming title by way of a swamp and overflowed lands deed from the Trustees of the Internal Improvement Trust Fund to Samuel A. Swann, staked off a portion of the Amelia River (between the high and low water mark) for his private oyster beds. (15) His exclusion of the public from the staked area precipitated a lawsuit brought by the state ex rel Ellis. In upholding the state's claim, the court described sovereignty lands as those that are covered and uncovered by the ordinary daily tides of public navigable waters, distinguishing them from swamp lands (those requiring drainage to dispose of needless water to make them fit for useful cultivation) and overflowed lands (those covered by nonnavigable waters or subject to periodic overflows of water, salt or fresh but not including lands between high and low water marks of navigable streams or bodies of water, nor lands covered and uncovered by the ordinary daily ebb and flow of normal tides of navigable waters). (16)

The significance of this decision, at least as one commentator sees it, is that it establishes tidelands not immediately bordering upon navigable waters as nonsovereign, not subject to the trust doctrine, and susceptible to private ownership. (17)

4) Broward v. Mabry (1909). "Where a stream or body of water is permanent in character and in its ordinary natural state is in fact navigable for useful purposes, and is of sufficient size and so situated and conditioned that it may be used for purposes common to the public in the locality where it is located, such water may be regarded as being of a public character and the title to the land thereunder ... is held by the state in its sovereign capacity...." So said the court in Broward v. Mabry, 50 So. 826 (1909), when title to lands underlying Lake Jackson were in dispute.

In this case, the successors in interest to an owner of lots located in fractionalized sections adjoining and including Lake Jackson, which were acquired by patent from the U.S. Government without reservation as to the submerged lands in front thereof, discovered that the state also claimed ownership of the lake via the Swamp Land Grant Act of Congress of 1850. (18) Believing the state was about to sell the lands, Mabry sought to enjoin such sale and remove the cloud from his title. (19)

The parties to the action were in agreement regarding the character of Lake Jackson. It was described as a body of water that at mean water is two feet deep or less except in a few basins of eight to 10 feet in depth; covered with water grasses, except in the basins; ordinarily capable of navigation by flat...