Can you prove the Indians didn't have orgies on the beach if front of your glass doors?
Brad Drake Hosting Town Hall Meetings on Customary Use July 16 & 17
- Thread starter Teresa
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Does any body read the laws? Florida Statute 163.035. The local government complaint is de novo - look it up. The local government is the Plaintiff with the burden of proof to show a limited old English doctrine of common law custom is superior to the US Constitution protected property rights.
Old English? How about plain English?
IMO..alot of this could have/would have been avoided if they would just require the property owners prove they own the property. Show a current survey that clearly states where the MHWL is and not some wet sand/dry sand BS. All the sand is wet at some point and gets dry real quick in the Florida sun. I cant live next to a vacant lot anywhere else in this county,call the cops on someone for trespassing then not prove that I actually own the property. All the people are saying that he/she/them are trying to take their property but I havent seen anyone offering up a current survey to show it belongs to them. I am not talking about some plat picture on some website, I am talking about a current ,stamped by a registered surveyor, legally binding, survey. I have seen people posting aerial plat pictures but I can do that with Google maps and any photo editing program on any computer. Those surveys would put alot of the "confusion" to rest but no one seems to want to produce one. The DEP required one for them to get a permit to build, the bank required one to loan them money, how about the sheriff require one to prove where the MHWL is. Could it be that the surveys show that the MHWL is alot closer to the toe of the dune than they want people to know?
To the extent the remark or someone's interpretation of same was not jestful, remember that under the law, the beach owner does not have to prove anything. The burden of proof lies entirely with the county, and the court enters the proceedings with the presumption that there has been no customary use.
In your hypothetical, the county would have to prove that Hiawatha and his tribemates did in fact have the orgies in question, and that such activities were ancient, reasonable, uninterrupted, and without contention. I can easily imagine orgies suffering multiple episodes of interruption and contention. That would be reasonable, given the ancient nature of orgies.
Reading the statute might help. While the county may file for CU simultaneously on as many properties as it chooses, it must prove each case separately. Under the law, there can be no mass declaration of CU, as proof of all the elements is required on EACH parcel.
Beach owners have no obligation to refute anything the county says since the county must prove all of the elements in each parcel where CU is claimed. One would expect those owners to have their own individual counsels and their own research to counter county arguments.
It's delicious to be an attorney in such matters. Vacation in Aruba? Heck, why don't we get together and buy the darn place with our fees from this one!
Sara wasn't being hyperbolic when she said the county should spend 40 or 50 million bucks if that was what it took. The county legal fees and expenses, no doubt ignoring the value of employee time, are presently said to be in excess of $5 mil. I can't vouch for that figure, but it will ultimately be a drop in the bucket before the last dog is dead in this hunt.
My point, however silly I presented it, was based on comments by Larry Jones, who said the county’s strategy would be, most likely, to craft the ordinance to recognize customary care to the entire stretch of Walton beaches, and then individual owners could contest that. He also said they had archeologists lined up to testify. Probably not that many orgies, but generally, tribes of Indians roamed these beaches in search of good fishing, continuously, until the Spanish came with their particular orgies. I hope they present the Spanish breast plate that was found west of Grayton back 30 years ago. Then, of course, there should be a lot of photos of white people fishing and riding jeeps, and then the BFO’s would be obligated to prove that this continuous horde of people did not pass along the dry sand of Their Beach. Makes you want to become a lawyer, doesn’t it?
It would be up to the county to show that this use occurred on a specific parcel, not just somewhere on the beach. Also up to the county to show uninterrupted and uncontested use on each specific parcel where the county proved such activity occurred. It'a parcel by parcel, with the burden of proof on the county.
This will be a long, expensive court battle with no guarantee of victory for either side. And this definitely does not imbue me with a desire to become a lawyer defending the county.
Were I to have selected the law as my career path, I would prefer to be in the role of the Pacific Legal Foundation guys, defending pro bono the Constitutional rights of all citizens against the aggression of government as it transgresses those rights so routinely every day in so many areas.