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

AuthorPeyton, Daniel W.
PositionPart 2 - Lying below or adjacent to waterways

In 1988, the U.S. Supreme Court considered the issue of state sovereignty lands in the case of Phillips Petroleum Co., et al v. Mississippi, et al., 484 U.S. 469 (1988). The dispute in this case arose when the State of Mississippi, claiming a public trust interest, issued oil and gas leases to lands for which private claimants held title. (1) The disputed lands, while admittedly nonnavigable, are subject to the ebb and flow of the tides and are adjacent to a navigable stream. (2)

Phillips Petroleum v. Mississippi (1988): The Ebb and Flow Question as to Tidelands

When the titleholders sued to quiet their title, the chancery court held that the lands in question were public trust lands. This decision was affirmed by the Supreme Court of Mississippi and, on certiorari, the U.S. Supreme Court also affirmed in a 5-3 decision.

Relying on Shively v. Bowlby, 152 U.S. 1 (1894), as "the seminal case in American public trust jurisprudence," (3) and Knight v. United States Land Association, 142 U.S. 161 (1891), the court "reaffirmed" its "longstanding precedents" holding that the states, upon entering the Union, became owners of "all lands under waters subject to the ebb and flow of the tide." (4)

Noting that the states have public trust interests in tidal lands other than navigation, such as bathing, swimming, and fishing, etc., (5) the petitioner's navigability-in-fact test was rejected. Also rejected was Phillips' claim that Phillips and its predecessors in title had developed reasonable expectations based on their record title and by virtue of having paid taxes on the land for over 100 years. (6) The court acknowledged the importance of honoring reasonable expectations in property rights, (7) but found Phillips' expectations less than reasonable because Mississippi law has consistently held that the state holds "title to all the land under tidewater." (8)

It is important to note that, in response to Phillips' contention that the original states did not claim title to nonnavigable tidal waters, the court stated that "[i]t has been long established that the individual states have the authority to define the limits of the lands held in public trust and to recognize private rights in such lands as they see fit." (9)

In the dissenting opinion in Phillips in which Justice Stevens and Justice Scalia joined, Justice O'Connor voiced her opinion that only navigable bodies of water and their borders, bays, and inlets are held in public trust, stating that "[t]his court has defined the public trust repeatedly in terms of navigability," (10) opining that "[n]avigability, not tidal influence, ought to be acknowledged as the universal hallmark of the public trust." (11)

Reasoning that the development of the public trust doctrine, consistent with its common-law heritage, has as its purpose the preservation of navigable waterways for the common use of transportation, (12) Justice O'Connor, in making her point, quotes Packer v. Bird, 137 U.S. 661 (1891), which states, "[i]t is, indeed, the susceptibility to use as highways of commerce which give sanction to the public right of control over navigation upon [navigable waterways], and consequently to the exclusion of private ownership, either of the waters or the soils under them."

In addition to the navigability issue, Justice O'Connor addresses the equity of the majority's opinion, observing that the case "concerns more than cold legal doctrine." (13) Criticizing the majority for recognizing a claim that "appears belated and opportunistic," (14) she notes that Mississippi showed no interest in the lands in question for any of the public uses not related to navigability until such time as it was in the state's interest to lease the lands to a private party for exploitation of underlying minerals. (15) Arguing that during this long period (16) of the state's disinterest, the holders of record title not only relied on their title as validation of their ownership, but also paid taxes on land the court now says they never owned. The net effect of the majority's decision could, according to Justice O'Connor, result in "thousands of blameless record owners and leaseholders of land" being dispossessed of "land that they and their predecessors in interest reasonably believed was lawfully theirs." (17)

Lee v. Williams (1998): The Florida Judiciary's Latest Word on Sovereignty Lands

"It is a compelling feature of our legal system that often far reaching legal questions do not come to the courts for resolution until two or more ordinary citizens who have become antagonists require its resolution. This is such a case."

So begins the opinion of the Fifth District Court of Appeal in the case of Robert V. Lee and Mirte Deboer Lee v. Robert L. Williams and Lillian D. Williams, 711 So. 2d 57...

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