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FactorFiction

Beach Fanatic
Feb 18, 2016
494
409
A few BCC meetings ago, there was mention that some beaches in South Walton might be subject to customary use and some might not. To my knowledge, none of the case law in Florida to date covers expanses of beach anything like 26 miles long (or 18 or so if we remove the state parks). Seems like a pretty bold move to make all of the non-state park beaches in Walton County subject to a customary use ordinance when the BCC is almost certainly going to be hit with multiple lawsuits.

I also wonder if the insurers that insure County government are likely to keep insuring them when there are almost constant lawsuits around here, especially if the County does not prevail.
 

catmoney

Beach Comber
May 23, 2009
41
16
Can you explain WHY you think public custom in Walton is ancient (how long is ancient?), reasonable (what is reasonable?), how it is without interruption, or free from dispute. I understand your opinion but what do you based your opinion on? To just say it applies is not enough. What is the historical application of these criteria?

In the Trepanier/Daytona case you quoted, the property owners prevailed and there was no valid custom confirmed on their Daytona property. Correct?

Property owners have come to the table. Mike Huckabee, yes that Mike Huckabee, proposed Beach Share to the commissioners. Got NO response from the commissioners, that I know of, and push back in the public forum in the papers from property right opponents. Dave R had his emotional cry for "This sand is your sand, this sand is my sand". Except even if owners should not prevail, by law, owners still own the sand. So Dave R should look for another slogan.
EDITORIAL: ‘Beach Share’ worth reviewing in South Walton

What have commissioners, you, and other outspoken opponents of property rights offered but to have owners give away rights for a "tax" break" (of little worth relative to the right's value to the owner) or defend against legislation/litigation to take property rights they have today? That's more like commissioner extortion with tax payer's money and commissioners may get nothing in return of the tax payers millions (and may have to pay the owners legal fees too).

Churchill said something like; When we have run out of money (or options to throw money at, if custom fails); Now we have to think (to find solutions)! Except property owners will be in a much stronger position if they prevail.

If you are willing to bet on the deed discrepancies why don't you file suite or commissioners litigate to clear the deeds first? That's would be clear cut compared to claiming custom. You'd be a public hero to prevail with that.

First of all it doesn't matter what I think or what you think, it matters what the court think. However, The Court in Tona Roma thought the use of the beach in Daytona was ancient or they would have found for the property owner. I believe the beach in Walton County has been used just as long as the beach in Daytona. Like may others I have generations of family that tell me so. Not to mention their is a museum in Ft. Walton that says the Native Americans use the coast line long before anyone owned the beach. Is that enough for the courts, that I don't know and neither do you. I don't know what the courts will say is reasonable, but sitting by the waters edge in a chair enjoying the cold beverage of my choice seems reasonable to me. The Court in Tona seemed to think this kind of activity was reasonable. I know its been without interruption and free from dispute in blue mountain, grayton and seagrove for at least forty years because I've been a frequent user of the beach in those places for that period of time and never saw a no trespassing sign until a few years ago. Now I'm sure you will tell me how I'm wrong, but why don't you prove that I'm wrong. You keep asking for facts, give us your facts and what you base your opinion on.

I don't know what the ultimate decision was in the Tepanier case. The case I quoted was an appeal from a summary judgment in favor of the county. You are correct the Court over turned the summary judgment and sent it back to the trial court to flesh out the facts. If you know the ultimate outcome please share it with me.

I read the article you quoted about Mr. Huckabee's plan. I'd be all for it, however I doubt very many owners would participate, but lets give it a shot. I'm not an outspoken opponent of property rights. I got into this discussion by answering a question you asked.

You are exactly right if the property owners win they will be in a very strong position.

I'm sure I would be a hero, and if I had the time and expertise, I would run some of the titles and see if I'm right or not. I don't have standing to maintain a suit, I've not been asked to leave anyone's property. I happen to own property that has beach access, so I can go to the beach anytime I please. I also frequently use a public access and have never had a problem finding a spot on the beach. or been asked to move.

I empathize with the beach front owners. I wouldn't want a bunch of drunks making a bunch of racket in the back of my home either. I think if this is happening they should be able to call the sheriff and he should remove them or arrest them. However, I also believe if people want to sit by the water's edge and enjoy the beach they should be allowed to do so.
 

Lucas Reynolds

Beach Lover
Aug 29, 2016
59
13
63
Santa Rosa Beach
You keep asking for facts, give us your facts and what you base your opinion on.

You and property right opponents have the burden of proof to eliminate or substitute public customary use, with evidence and facts, superior to legally recognized private property right of use, enjoyment, and exclusion 1,000 owners have had, have today in title, and pay property taxes on. I think based on many hundreds of years of historic limits of common-law doctrine of custom, you should learn about for yourself, any one of the many criteria that is not satisfied invalidates a custom claim and I doubt many, if any, of the criteria can be proven on 1,000 Walton owner private properties. Only million$ of tax payers dollars will pay to litigate that.

Do you know how much beach the court ruled on in Tona-Rama? All private county beach property? All private Daytona city beach property? or One commercial parcel with 225 square feet of contested beach property? What other Daytona private property has custom been validated on? Because the court ruling was so lacking in defining custom criteria, as I pointed out previously, I think the best you can say about Tona-Rama is that the court did not dismiss custom as a legal claim to private property out of hand in FL. That's why the bar to take Constitutionally protected private property rights are set so high.
 
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catmoney

Beach Comber
May 23, 2009
41
16
You and property right opponents have the burden of proof to eliminate or substitute public customary use, with evidence and facts, superior to legally recognized private property right of use, enjoyment, and exclusion 1,000 owners have had, have today in title, and pay property taxes on. I think based on many hundreds of years of historic limits of common-law doctrine of custom, you should learn about for yourself, any one of the many criteria that is not satisfied invalidates a custom claim and I doubt many, if any, of the criteria can be proven on 1,000 Walton owner private properties. Only million$ of tax payers dollars will pay to litigate that.

Do you know how much beach the court ruled on in Tona-Rama? All private county beach property? All private Daytona city beach property? or One commercial parcel with 225 square feet of contested beach property? What other Daytona private property has custom been validated on? Because the court ruling was so lacking in defining custom criteria, as I pointed out previously, I think the best you can say about Tona-Rama is that the court did not dismiss custom as a legal claim to private property out of hand in FL. That's why the bar to take Constitutionally protected private property rights are set so high.

That's what I figured the same old rhetoric common law this and common law that. I know what the common law says about custom, but if you are so sure you know more than me, educate me, I'm always eager to learn. Do you have some secret source of law, is it Blackstone, Tiffanay of property, wikipedia, what is it? The Court in Florida has already said what they believe the definition of custom is, and that is what I will rely on. As far as I know custom has not been validated on any other Daytona property, or any other property in Florida. I find it incredible that this issue has not been decided in Florida already. I agree that Tona does not define the way to prove custom, but to say the Court merely refused to dismiss custom out of hand is wrong, the Court said the theory of custom exists in Florida and that means it may exist in Walton County. Just imagine, the beaches that I grew going to, and in the good old days were a redneck paradise may decide the future of access to all the beaches in Florida.
 

Lucas Reynolds

Beach Lover
Aug 29, 2016
59
13
63
Santa Rosa Beach
That's what I figured the same old rhetoric common law this and common law that. I know what the common law says about custom, but if you are so sure you know more than me, educate me, I'm always eager to learn. Do you have some secret source of law, is it Blackstone, Tiffanay of property, wikipedia, what is it? The Court in Florida has already said what they believe the definition of custom is, and that is what I will rely on. As far as I know custom has not been validated on any other Daytona property, or any other property in Florida. I find it incredible that this issue has not been decided in Florida already. I agree that Tona does not define the way to prove custom, but to say the Court merely refused to dismiss custom out of hand is wrong, the Court said the theory of custom exists in Florida and that means it may exist in Walton County. Just imagine, the beaches that I grew going to, and in the good old days were a redneck paradise may decide the future of access to all the beaches in Florida.


I know I should keep to little sound bites but to answer your question and try to explain my and many private property owners position I cannot.

You have made it clear you know all that you need to know about custom and its history. "I know what the common law says about custom ...". Same old rhetoric...". There is no secret. Just do the work, ask the questions, and study the history, facts, and law. The information is available if you look. You may not agree with other interpretations but at least you look it up for yourself. The doctrine of custom is ancient (many many centuries not decades). English common law has addressed custom longer than the United States of America has been a county. American jurisprudence has relied on historic English application of custom since 1776. American reverence of individual rights and property rights are cornerstones of the Constitution and the bar to take those individual rights is set very high. Reread the previous discussions, I've asked the questions anyone who is interested in customary rights should ask themselves, and suggested sources for information to base objective opinions, on those histories and facts. Blackstone is a good start.

I doubt that all the property owners will exercise their property rights, rights owners have had and have today, to exclude all people from their property all the time. Especially respectful people owners give “license” to use their property. But owners next to or near public beach perpendicular-thoroughfares and regional public beaches, and there’s 32,369 feet of public beaches for the public to use, have every right to private use, enjoyment, exclusion, and enforcement of the property rights they paid for and pay taxes on each year; just like you do. Commissioners and the TDC should educate the public to respect private properties and if unobtrusively marking the publicly owned beach boundaries, like Walton has done with beach vendor-use areas, helps clarify property boundaries for the public and Sheriff, what’s wrong with that? Then if property is not marked; it is private property and you should respect that. The sky is not falling and it won’t. Demand for the beach in the long term will not drop if some or even all owners want to exercise their property rights. They may have to pay for the use just like at the parks and private renters do now. Public education of beach etiquette, private property rights, and enforcement, is the key - in my opinion.

Right now FL statutes define what signs are needed to mark property boundaries. Commissioners solution; usurp state trespass statutes and ban all signs. And to take private property rights not by prescription, or dedication but by a historically-narrow legal-doctrine of custom because that’s all commissioners have left. It costs commissioners themselves nothing to spend million$ of tax payer dollars to try but what if they fail? You have 1,000 very angry property owners with recognized property rights and angry tax payers who lost million$ for nothing; who all vote too. Maybe commissioners should work with property owners now. You’ll say ya but what if commissioners win? Then the stakes have changed and what individual right is next to claim customary rights on? Public hunting on private property? You may trust commissioners big-brother politics that much but I do not.

I understand those who have their own concept of customary-use based on emotional slogans and voodoo economics at the expense of Constitutional rights, that property owners have today, without knowing what custom has been over the centuries, are frozen in their believes. They have nothing of consequence to lose personally, like property owners do. I will still take that bet on defective property deeds too.
 

catmoney

Beach Comber
May 23, 2009
41
16
I know I should keep to little sound bites but to answer your question and try to explain my and many private property owners position I cannot.

You have made it clear you know all that you need to know about custom and its history. "I know what the common law says about custom ...". Same old rhetoric...". There is no secret. Just do the work, ask the questions, and study the history, facts, and law. The information is available if you look. You may not agree with other interpretations but at least you look it up for yourself. The doctrine of custom is ancient (many many centuries not decades). English common law has addressed custom longer than the United States of America has been a county. American jurisprudence has relied on historic English application of custom since 1776. American reverence of individual rights and property rights are cornerstones of the Constitution and the bar to take those individual rights is set very high. Reread the previous discussions, I've asked the questions anyone who is interested in customary rights should ask themselves, and suggested sources for information to base objective opinions, on those histories and facts. Blackstone is a good start.

I doubt that all the property owners will exercise their property rights, rights owners have had and have today, to exclude all people from their property all the time. Especially respectful people owners give “license” to use their property. But owners next to or near public beach perpendicular-thoroughfares and regional public beaches, and there’s 32,369 feet of public beaches for the public to use, have every right to private use, enjoyment, exclusion, and enforcement of the property rights they paid for and pay taxes on each year; just like you do. Commissioners and the TDC should educate the public to respect private properties and if unobtrusively marking the publicly owned beach boundaries, like Walton has done with beach vendor-use areas, helps clarify property boundaries for the public and Sheriff, what’s wrong with that? Then if property is not marked; it is private property and you should respect that. The sky is not falling and it won’t. Demand for the beach in the long term will not drop if some or even all owners want to exercise their property rights. They may have to pay for the use just like at the parks and private renters do now. Public education of beach etiquette, private property rights, and enforcement, is the key - in my opinion.

Right now FL statutes define what signs are needed to mark property boundaries. Commissioners solution; usurp state trespass statutes and ban all signs. And to take private property rights not by prescription, or dedication but by a historically-narrow legal-doctrine of custom because that’s all commissioners have left. It costs commissioners themselves nothing to spend million$ of tax payer dollars to try but what if they fail? You have 1,000 very angry property owners with recognized property rights and angry tax payers who lost million$ for nothing; who all vote too. Maybe commissioners should work with property owners now. You’ll say ya but what if commissioners win? Then the stakes have changed and what individual right is next to claim customary rights on? Public hunting on private property? You may trust commissioners big-brother politics that much but I do not.

I understand those who have their own concept of customary-use based on emotional slogans and voodoo economics at the expense of Constitutional rights, that property owners have today, without knowing what custom has been over the centuries, are frozen in their believes. They have nothing of consequence to lose personally, like property owners do. I will still take that bet on defective property deeds too.

I have done the research and know the history of custom. I also know that the law evolves and you can not simply draw conclusions from history. I also know the Courts in the State of Florida have recognized customary use as a legal doctrine. I have said this entire discussion, that I don't know what the Court will do and neither do you.

While you may believe beach front owners can exclude the public from the beach, and you may be right, I think that is what the Court will tell us eventually. I agree if the Court finds that custom does not exist the owners will be mad, and who could blame them. I'm all for compromise, and I wish the two sides would come together and find a reasonable solution.

My concept of customary use is based on the case law of the State of Florida and other states not on slogans or economics. I haven't mentioned either. As I said, I know the history and the cases have discussed the history and found that custom does exist in Florida. If a resolution is not reached we will see if it exists in Walton County.

Maybe I will hit the lottery tomorrow and have time to run some titles and we will see who is right on the deeds, if not I'll have to wait a few years to retire.
 

FactorFiction

Beach Fanatic
Feb 18, 2016
494
409
What I find interesting is that there has been no attempt by the County (that I'm aware of) to bring together a contingent of customary use proponents and beachfront owners in an advisory committee of sorts. As was mentioned earlier, Gov. Huckabee proposed some ideas and I'm sure there are others who would participate constructively in discussions. Someone asked me recently if I thought that tourists were the cause of this whole situation. I don't think so, although there is no question that more people multiply the issues. These are some reasons that I think this situation has reached critical mass:

1) More stuff on the beach: tents, umbrellas, huge coolers, "toys/games", food, trash and sometimes much more like: generators, party setups, and so on. You get the idea.
2) More people who believe that they need to set up on the beach from sun up to sun down, thanks to sunscreen, shade devices, huge coolers, see #1.
3) "Reserving" the beach and "Race to the Beach": This isn't about ENJOYING the beach, this is about reserving a substantial section of PRIME beach all day whether the people are using it or not. Vendor setups are a part of this item.
4) Attitudes!!!!! There are plenty of comments about beachfront owner attitudes. What about the people who want to use the beach? Parking in no parking areas, parking in beachfront owner's driveways, using beachfront owner's decks, water, walkovers, equipment, dunes for toileting. Chime in folks. I'm sure there is more.
5) Abuse of dunes: Dogs in dunes, toileting in dunes, game equipment (balls, frisbies, other) in dunes.

I'm sure there is more, but this is enough to get my point across. This isn't just about MORE people, it is about what people feel they are entitled to do on the beach and bring to the beach. Once upon a time, people were respectful of people's property/belongings. People didn't bring more than they could carry easily in one trip. They packed their "stuff" in and packed it out. They cleaned up after themselves. They used a towel or blanket/quilt to sunbathe, they fished or played games AWAY from people who were trying to relax at the beach. They didn't stay from sun up to sun down. They didn't "reserve" their space on the beach. They came, stayed long enough to enjoy swimming, fishing, walking, sunbathing, and then they cleaned up, packed up, and left. In my opinion, for whatever it is worth, THESE and maybe more, are the reasons that we are where we are today.

This is not a one sided issue. It's time that everyone recognizes that there are multiple issues to resolve for all of us to get back to enjoying the beach as friends, neighbors, and guests.

Additions offered by others:
TDC
 
Last edited:

LarsAtTheBeach

Beach Fanatic
Jul 19, 2008
704
326
What I find interesting is that there has been no attempt by the County (that I'm aware of) to bring together a contingent of customary use proponents and beachfront owners. As was mentioned earlier, Gov. Huckabee proposed some ideas and I'm sure there are others who would participate constructively in discussions. Someone asked me recently if I thought that tourists were the cause of this whole situation. I don't think so, although there is no question that more people multiply the issues. These are some reasons that I think this situation has reached critical mass:
1) More stuff on the beach: tents, umbrellas, huge coolers, "toys/games", food, trash and sometimes much more like generators, party setups, and so on. You get the idea.
2) More people who believe that they need to set up on the beach from sun up to sun down, thanks to sunscreen, shade devices, huge coolers, see #1.
3) "Reserving" the beach and "Race to the Beach": This isn't about ENJOYING the beach, this is about reserving a substantial section of PRIME beach all day whether the people are using it or not. Vendor setups are a part of this item.
4) Attitudes!!!!! There are plenty of comments about beachfront owner attitudes. What about the people who want to use the beach? Parking in no parking areas, parking in beachfront owner's driveways, using beachfront owner's decks, water, walkovers, equipment, dunes for toileting. Chime in folks. I'm sure there is more.
5) Abuse of dunes: Dogs in dunes, toileting in dunes, game equipment (balls, frisbies, other) in dunes.

I'm sure there is more, but this is enough to get my point across. This isn't just about MORE people, it is about what people feel they are entitled to do on the beach and bring to the beach. Once upon a time, people were respectful of people's property/belongings. People didn't bring more than they could carry easily in one trip. They packed their "stuff" in and packed it out. They cleaned up after themselves. They used a towel or blanket/quilt to sunbathe, they fished or played games AWAY from people who were trying to relax at the beach. They didn't stay from sun up to sun down. They didn't "reserve" their space on the beach. They came, stayed long enough to enjoy swimming, fishing, walking, sunbathing, and then the cleaned up, packed up, and left. In my opinion, for whatever it is worth, THESE and maybe more, are the reasons that we are where we are today.

This is not a one sided issue. It's time that everyone recognizes that there are multiple issues to resolve for all of us to get back to enjoying the beach as friends, neighbors, and guests.
You left out the TDC...
 
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