Eastern Lake Outfall Parcel Purchase

Public Workshop: Ordinance which would define and regulate the public’s customary use of the beaches

You are hereby notified that the Walton County Board of County Commissioners will hold a Public Workshop on Wednesday, October 19, 2016 from 4:00 PM to 7:00 PM. The meeting will be held at the South Walton Courthouse Annex located at 31 Coastal Centre Blvd., Santa Rosa Beach, FL.

The purpose of this meeting is to discuss an ordinance which would define and regulate the public’s customary use of the beaches in Walton County.


____________________


Notices of Public Hearings: Waterways and Beach Activities and Customary Use of the Dry Sand
NOTICE OF PUBLIC HEARING ONE

The Walton County Board of County Commissioners proposes to adopt the following by ordinance:

AN ORDINANCE AMENDING WALTON CODE OF ORDINANCES CHAPTER 22, THE “WALTON COUNTY WATERWAYS AND BEACH ACTIVITIES ORDINANCE”; DELETING SECTION 22-52, WHICH MAKES NO FINDING OF FACT THAT THE PUBLIC EITHER HAS OR HAS NOT CUSTOMARILY USED THE BEACH; PROVIDING FOR PURPOSE, LEGISLATIVE FINDINGS, SEVERABILITY, INCLUSION IN THE CODE, AND AN EFFECTIVE DATE.

You are hereby notified that a Public Hearing on the ordinance will be held on October 25, 2016, beginning at 9:00 a.m., or as soon as possible to that time, at the Walton County Courthouse located at 571 U.S. Highway 90 East, DeFuniak Springs, Florida.

Lucas Reynolds, I do not get [1] daily trash pickup at my property, county employees cleaning my property, volunteers protecting wildlife on my property, [2] intensive law enforcement on my property, [3] government employees stationed on or near my property to save visitors from endangering themselves or [4] government cleanup and restoration in the event of a natural disaster. I also do not get [5] millions of government funds spent on advertising to help me make money on my property. You are getting all of these benefits, so how is it that the taxpayers provide all these trappings and then cannot even throw a towel down and sit for a few minutes?

Sorry I wish I could make simple short answers to your points but this is not a simple topic as you try to make it.

Danny, again you did not answer the previous questions about customary-use but pivot to an unrelated questions. First how are any of your points criteria to claim customary-use on private property? There is no customary-use "benefits" criteria as you describe or please provide the basis and facts how they apply for a customary use claim on private property. Second point. (1) most property owners have NOT asked the TDC to pick up trash on their property, the TDC took that upon themselves, and in FACT many owners have told the TDC to not place trash receptacles on their property and not to drive on their property, spoiling their pristine beach property they maintain. Same with (2) law enforcement, owners have not asked for law enforcement to drive up and down their private property multiple times a day, Sheriff Adkinson made that decision, some owners do not want the Sheriff driving day and night over their private property and have asked him to stop doing it. The Deputies are great at doing their jobs; but their time would be better spent enforcing laws on 30A and Scenic Hwy 98, and could respond faster to calls on the beach if they were on 30A and Scenic 98. (3) Fire department life guards are on public property, not private property, and they respond to emergencies wherever they occur just like they would at your house.

(4) Tax payer beach fortification; that most owners never asked for and recently rejected (even Dave Rauschkolb was against beach fortification). Walton county could not just dump 3.8M cubic yards of substandard (color and content) sand from off-shore on private property because it would be in economic interest of non-property owners - because the US Corps of Engineers recognized ALL littoral private property rights and needed property easements to accomplish and failed. Because owners have that right to exclude others from their private property without their permission. The beaches have been here for thousands(?) of years and will likely be here long after for many generations more; unless you have some facts otherwise.

(5) Millions of government (TDC) funds spent on advertising!? Property owners did not ask the TDC to tax tourist 5% bed tax to spend millions on unneeded advertising. Business owners like Dave Rauschkolb’s restaurants benefit more from the bed tax on owner’s properties to advertise to bring more tourist. Tourist demand is there and tourist will come regardless if the TDC advertises or not. I hear all the time we do not want to be like Destin. Has tourism declined in Okaloosa/Destin and Panama City over the years? Seems like demand is increasing without the TDC's "help". If the TDC is such a good deal let the businesses that benefit, like Dave R’s, who feel that the TDC and advertising is a good return on investment pay for it, not tourist. I say save the tourist $20M every year and stop the TDC from taxing them. Let the tourist spend their additional $20M on the local economy and create more jobs than the TDC ever could.

Read this question carefully; how many MORE tourist have come to Walton because of TDC advertising than would have come without advertising? Not how many total tourist come to Walton; because most are going to come anyway. I’d guess not many to warrant a tax of $20M a year. Poor RoI.

You forgot about (6) code enforcement driving daily over private property declaring personal-property on private-property “abandoned” (legal abandonment is not overnight), entering private property and taking other people’s personal property without an owner’s permission. Do that in your front yard and where I come from and that’s theft. Ticket them if they are in violation of the code. Many tourist leave stuff on the beach BECAUSE Walton will pick it up a dispose of it for them instead of disposing of it themselves. I bet private property owners police their own private property better than Walton ever could or will.

(7) You also forgot about flood insurance. Do you think you should have rights to private property because owners have flood insurance, would that mean you should have an interest in private property of the flood victims in Houston, TX, Baton Rouge, LA, St Louis, MO, and Columbia, SC inland too? Because there is only one government flood insurance carrier that I know of. And would you be OK with property owners maintaining their ALL their property rights if they are self-insured?

Enough of that; the discussion is what are the historical limits and criteria of custom and how would it apply to Walton private property? Can you explain historical limits of customary use? Without these high limits on common-law custom claims anyone could claim customary use for anything; like being able to deer hunt with dogs on private property because hunters have a tradition and custom of decades of doing it on private property.

Does this answer your question Lucas Reynolds

CUSTOM

If the public has a right to drive and park on appellant's privately owned platted lots, it most likely will be through application of the law of "custom." Florida's Supreme Court first recognized the public's "customary" right to the use of Florida's privately owned dry sand beaches in the Tona-Rama decision. 294 So. 2d at 74. There the court said: The beaches of Florida are of such a character as to use and potential development as to require separate consideration from other lands with respect to the elements and consequences of title. The sandy portion of the beaches . . . [have] served as a thoroughfare and haven for fishermen and bathers, as well as a place of recreation for the public. The interest and rights of the public to the full use of the beaches should be protected. 294 So. 2d at 77. The court recognized that the public may acquire a right to use the sandy area adjacent to the mean high tide line by custom when “the recreational use of the sandy area . . . has been ancient, reasonable, without interruption and free from dispute . . . .” Id. at 78. The recognition of a right through "custom" means that the owner cannot use his property in a way that is inconsistent with the public’s customary use or “calculated to interfere with the exercise of the right of the public to enjoy the dry sand area as a recreational adjunct of the wet sand or foreshore area.” Id. Trepanier et al v. County of Volusia 965 So. 2d 276; 2007 Fla. App

You are mixing cases. Which party prevailed in the Thepanier case? Might want to read the both cases, rulings, and legal conclusions again. Danny or Dave R you seem to be knowledgeable opponents of private property rights would you care you to address the Trepanier and Tona-Rama case facts and how these facts might apply to Walton private properties? I'm guessing not but it would be educational if you did.

Gailforce, thanks for your input. I understand your frustration. I hope you understand that while the execution of several things I mentioned may currently be lacking, the intent of many Walton County citizens is to help take care of the beaches which are our crown jewel and the motor for our economy. I do not like all the turmoil and would prefer that we work to find common ground. But in fact there has been millions spent on the beaches and the beaches get services that no other Walton County property owner gets. In the past after storms the BCC has spent millions on emergency rebuilds and refurbishments. I vividly remember the amount of county equipment on the beaches repairing damage to the beach. I understand not wanting a tent full of drunks behind your house running a generator and a boom box. But you must understand that people have been sunbathing, swimming and fishing on that same beach for decades and that inhibiting that will cost people their livelihood.

Danny how does beach services most owners did not ask for on their property and for some owners feel impose on apply to the to the common-law of custom? Want to take a referendum of individual property owners to see if they would (1) want Walton beach services and give up their right of who can use their property without permission that they pay for the right to use themselves or (2) give up beach services and have their property rights respected by Walton county commissioners?

Why don't you and Walton take care of the 32,369 feet of Walton public beachfront, 38.2 acres of dry sandy beach at Walton’s Regional accesses, and the 3 state parks 5,838 acres for public use with beachfront, restrooms, parking, and camping property and individual private property owners will take care of their private property. No more turmoil.

You are mixing cases. Which party prevailed in the Thepanier case? Might want to read the both cases, rulings, and legal conclusions again. Danny or Dave R you seem to be knowledgeable opponents of private property rights would you care you to address the Trepanier and Tona-Rama case facts and how these facts might apply to Walton private properties? I'm guessing not but it would be educational if you did.

I'm not mixing anything, I'm simply quoting how the courts in Florida have defined customary use. I have read the case, the Trepanier case I cited was case where the trial court granted the county's motion for summary judgement and the appellate court reversed the trial court’s grant of summary judgment, finding that the general issues of material fact had not been resolved. The appellate court did agree with the trial court that if the public has a right to access the beach by custom, there is no taking and the land owners are not entitled to money for the public’s access of the beach.

I don't know what happened to the case when it went back to the trial court. If you do, I would love for you to point me to the result, so that I can read that.

You say both cases, I'n not sure what other case you are talking about. I quoted one case Trepanier. If you are talking about Tona Rama, the court in Trepanier quoted it not me.

I'm not mixing anything, I'm simply quoting how the courts in Florida have defined customary use.

Sorry, I wish I could make simple answers to difficult questions.

CatMoney, you at least had an answer. Thanks. It’s a partial answer to the question of what are the historical criteria and limits to a claim of custom I think. Danny claims to know what the historic custom criteria are but refuses to explain when asked. Which limits his credibility on the subject of customary-use to just his opinion and emotional outcries that the sky is falling if commissioners do not litigate custom against 1,000 Walton private property owners -- at the cost of million$ of tax payer dollars and the likelihood of getting nothing in return, I think. If you don’t understand historical common-law custom how can you have an informed opinion if it applies in Walton? But understanding custom takes study and time.

No, I do not know what the trial court ruled after the Appellate court found for the property owners. I’m guessing they just found for the property owners or we would have heard about it again. I hope the property owners got their attorney fees paid by the county.

“Customary-use” as Danny and Dave R use it is not an independent legal idea that is unique to private property with its own criteria made of whatever Commissioners, Danny or Dave hope it to be to get what they want regardless of individual Constitution private property rights. That’s a slippery slope. Custom as a source of common-law has a history and precedent. And many legal scholars more informed than me think that American courts, FL Supreme Court, Texas, and Oregon too have twisted and ignored the historical precedent of custom to suite their political (Big brother) desires that they cannot obtain public property rights legally any other way but to claim custom. Why wouldn't the Commissioners claim prescription or dedication instead of custom?

I see now where you copied the section the Appellate court for reference states; “In Florida, courts have recognized that the public may acquire rights to the dry sand areas [any property area it does not have to be dry sand] of privately owned portions of the beach through the alternative methods of prescription, dedication, and custom.” The court talked about all three ways for the public to gain access to private property without owner permission. Then summarizes the FL Supreme Court Tona-Rama recognition of public customary use you copied. The summary was not an agreement but a restatement of Tona-Rama for reference.

It looked like you had done what many private property rights opponents do by “cherry picking” sections they agree with out of context of the law or ruling. The Appellate court in the next paragraph states; “This appeal requires us to confront several issues relating to the law of "custom" applied to Florida's beaches that have not directly been confronted before.” “If Tona-Rama did not establish a "customary" right, as a matter of law, how is the right established in an individual case such as this one?”

In discussing how a customary right is established, a key Appellate court statement is; “IF [emphasis added] the only source of a right claimed as "custom," is that a certain thing has been done in a certain way in a certain place for so long that no one can remember when it wasn't done that way, the inability to offer evidence of the custom suggests the weakness of the claim.” Danny and Dave R read that carefully. I read that to say; time is not enough, you need more for a valid custom so you need to know what all the criteria are. Because if the bar is so low then anyone could claim custom about anything done for a "long" time.

That’s the question. What are the historical precedents and limits of common-law custom claims on private property? England since the Middle Ages legally had to deal with quantifying what common-law custom was and wasn’t and abuses with the claim of custom if not limited, hundreds of years before there was an United States of America. American jurisprudence has relied on English common-law custom as precedence since 1776.

Much of American common law is based on the leading legal treatise discussing the doctrine of custom by Sir William Blackstone's "Commentaries on the Laws of England". Blackstone described the limits of custom. So maybe study Blackstone treatise on custom would be a good start to understand what a valid custom is and isn’t. That’s why the bar is set so high because individual private property rights are so highly treasured. Blackstone also stated; "So great moreover is the regard of the law for private property, that it will not authorize the least violation of it; no, not even for the general good of the whole community."

Custom is not just time and even then the time has to be ancient, not 54 years or as long as Danny can remember as he has suggested. And an economic benefit of the majority at the expense of individual private property rights is not a custom criteria either. When all else fails claim custom.

Let’s start talking facts and stop the emotional opinions and name calling about greedy, elite property owners and stop the Commissioners legislating, then litigating, against 1,000 of its citizens to take the property rights owners have today. What if property owners prevail? Millions of tax dollars wasted and Commissioners will HAVE to deal with angry beachfront property owners then. Private property owners should not have to bear the economic burden of inept Commissioners by claiming customary-use. There are 32,369 feet of public beaches and 5,800+ acres of public parks with parking, restrooms, and camping; if that's not enough for Commissioners, Danny, or Dave R then buy the property rights like owners have and respect owner property rights that they have had and have today.

Sorry, I wish I could make simple answers to difficult questions.

CatMoney, you at least had an answer. Thanks. It’s a partial answer to the question of what are the historical criteria and limits to a claim of custom I think. Danny claims to know what the historic custom criteria are but refuses to explain when asked. Which limits his credibility on the subject of customary-use to just his opinion and emotional outcries that the sky is falling if commissioners do not litigate custom against 1,000 Walton private property owners -- at the cost of million$ of tax payer dollars and the likelihood of getting nothing in return, I think. If you don’t understand historical common-law custom how can you have an informed opinion if it applies in Walton? But understanding custom takes study and time.

No, I do not know what the trial court ruled after the Appellate court found for the property owners. I’m guessing they just found for the property owners or we would have heard about it again. I hope the property owners got their attorney fees paid by the county.

“Customary-use” as Danny and Dave R use it is not an independent legal idea that is unique to private property with its own criteria made of whatever Commissioners, Danny or Dave hope it to be to get what they want regardless of individual Constitution private property rights. That’s a slippery slope. Custom as a source of common-law has a history and precedent. And many legal scholars more informed than me think that American courts, FL Supreme Court, Texas, and Oregon too have twisted and ignored the historical precedent of custom to suite their political (Big brother) desires that they cannot obtain public property rights legally any other way but to claim custom. Why wouldn't the Commissioners claim prescription or dedication instead of custom?

I see now where you copied the section the Appellate court for reference states; “In Florida, courts have recognized that the public may acquire rights to the dry sand areas [any property area it does not have to be dry sand] of privately owned portions of the beach through the alternative methods of prescription, dedication, and custom.” The court talked about all three ways for the public to gain access to private property without owner permission. Then summarizes the FL Supreme Court Tona-Rama recognition of public customary use you copied. The summary was not an agreement but a restatement of Tona-Rama for reference.

It looked like you had done what many private property rights opponents do by “cherry picking” sections they agree with out of context of the law or ruling. The Appellate court in the next paragraph states; “This appeal requires us to confront several issues relating to the law of "custom" applied to Florida's beaches that have not directly been confronted before.” “If Tona-Rama did not establish a "customary" right, as a matter of law, how is the right established in an individual case such as this one?”

In discussing how a customary right is established, a key Appellate court statement is; “IF [emphasis added] the only source of a right claimed as "custom," is that a certain thing has been done in a certain way in a certain place for so long that no one can remember when it wasn't done that way, the inability to offer evidence of the custom suggests the weakness of the claim.” Danny and Dave R read that carefully. I read that to say; time is not enough, you need more for a valid custom so you need to know what all the criteria are. Because if the bar is so low then anyone could claim custom about anything done for a "long" time.

That’s the question. What are the historical precedents and limits of common-law custom claims on private property? England since the Middle Ages legally had to deal with quantifying what common-law custom was and wasn’t and abuses with the claim of custom if not limited, hundreds of years before there was an United States of America. American jurisprudence has relied on English common-law custom as precedence since 1776.

Much of American common law is based on the leading legal treatise discussing the doctrine of custom by Sir William Blackstone's "Commentaries on the Laws of England". Blackstone described the limits of custom. So maybe study Blackstone treatise on custom would be a good start to understand what a valid custom is and isn’t. That’s why the bar is set so high because individual private property rights are so highly treasured. Blackstone also stated; "So great moreover is the regard of the law for private property, that it will not authorize the least violation of it; no, not even for the general good of the whole community."

Custom is not just time and even then the time has to be ancient, not 54 years or as long as Danny can remember as he has suggested. And an economic benefit of the majority at the expense of individual private property rights is not a custom criteria either. When all else fails claim custom.

Let’s start talking facts and stop the emotional opinions and name calling about greedy, elite property owners and stop the Commissioners legislating, then litigating, against 1,000 of its citizens to take the property rights owners have today. What if property owners prevail? Millions of tax dollars wasted and Commissioners will HAVE to deal with angry beachfront property owners then. Private property owners should not have to bear the economic burden of inept Commissioners by claiming customary-use. There are 32,369 feet of public beaches and 5,800+ acres of public parks with parking, restrooms, and camping; if that's not enough for Commissioners, Danny, or Dave R then buy the property rights like owners have and respect owner property rights that they have had and have today.

I don't think that it is a partial answer. That is how the Court's in Florida have defined customary use. They have also stated that the right to use the land can be based on custom and that the right to exercise this use is superior to the fee title owner.

I don't know what happened either. It could still be pending although is hard to imagine because that opinion is nine years old. However, if it were resolved you would think there would be a news paper article about it. I can't find one. If you find it point it out to me, as I said I would love to know.

I guess if the statutes passed in other states and cases granting customary use were unconstitutional someone would appeal those to the federal courts and they would decide that. To my knowledge that has not happened. It really doesn't matter what legal scholars say, the courts make the decision.

I copied what the court found was the definition of customary use. The language did come from Tona Roma and they quoted it with acknowledgement that it was precedent. I do agree with you, I don't know why they wouldn't try prescription as well. To claim by dedication there mus be a dedication in the past and I'm sure the county can't prove that for the entire coast line, but they may be able to in certain spots. I think what the should do is go to the source deeds and see what the description is in those deeds. If the description is not to the mhwl, then they should investigate how it was changed. If was changed with judicial process then the burden would be on the supposed fee owner to prove ownership.

I didn't cherry pick anything, I simply quoted the Florida courts definition of customary use. I agree if you read the entire section on custom its not simply time that must be proved. However, they court tells us what those things are it has to be reasonable, without interruption and free from dispute . I don't know if the county can prove this or not.

As far as English Common Law goes, we don't really go by that. Although it may influence a decision, its not the law. It has been supplanted by statutes and over 200 years of case law. Blackstone may be historically relevant is some instances, but really just as a historic reference.

You are right the private property owners have their right to their property. The questions is do others have the right to use the property through custom. I don't know the answer to that, and while I respect your opinion and you are clearly well versed on the subject, neither do you. A judge somewhere down the road will tell us. I also agree it will be vary expensive for both sides.

Judge: State Agency must keep deer-dog hunters off private property | WZEP AM 1460

See who the Attorney is here. (Hint - its Theriaque)

Plays both sides of the fence folks...

That's what attorneys do. They are paid advocates.

Judge: State Agency must keep deer-dog hunters off private property | WZEP AM 1460

See who the Attorney is here. (Hint - its Theriaque)

Plays both sides of the fence folks...

The deer-dog hunters should have claimed customary-use to hunt on the private property. Wonder what Theriaque's defense would have been then?
But since the judge agreed with Theriaque and ruled hunters could not violate the private property owner's rights to exclude the hunters we will likely never know.

Has anyone changed their mind?

I don't think that it is a partial answer. [The question I asked Danny; what is the historical custom criteria? Did Tona-Rama define the criteria is applied? You may think it an irrelevant question but law is defined by legal history.] That is how the Court's in Florida have defined customary use. [The Appellate court even said the 1974 Tona-Rama didn’t answer the all the questions or clarify how a custom right is established. Devil is in the historical details.] They have also stated that the right to use the land can be based on custom and that the right to exercise this use is superior to the fee title owner. [I agree FL court did not dismiss custom out of hand IF it can be proven by ALL the evidence required for a valid custom claim only for local parcels].

I guess if the statutes passed in other states and cases granting customary use were unconstitutional someone would appeal those to the federal courts and they would decide that. To my knowledge that has not happened. [Because each claim if custom has different facts, locale is important consideration of a valid custom historically and what other states do does not apply in FL.] It really doesn't matter what legal scholars say, the courts make the decision. [Read all those court superscripts and footnotes - many are legal scholars the courts rely on.]

I copied what the court found was the [their] definition of customary use [there are other courts that can overrule this court]. The language did come from Tona Roma and they quoted it with acknowledgement that it was precedent. I do agree with you, I don't know why they wouldn't try prescription as well. To claim by dedication there must be a dedication in the past and I'm sure the county can't prove that for the entire coast line, but they may be able to in certain spots. [You got it. Commissioners haven’t claimed prescription or dedication because the chance of success is nil and the cost would be great. Other counties have tried and failed. Customary use is all commissioners have left. It costs commissioner nothing but tax payer’s million$ to try, and pander for votes instead of protect Constitutional property rights. And commissioners can tax more money if needed.] I think what they should do is go to the source deeds and see what the description is in those deeds. If the description is not to the MHWL, then they should investigate how it was changed. [If there was any inkling of deed discrepancies, Walton would have done that by now. Dream on.] If was changed with judicial process then the burden would be on the supposed fee owner to prove ownership.

I didn't cherry pick anything [I said you didn’t cheery pick, like many others do, but it looked like it at first read. Sorry.], I simply quoted the Florida courts definition of customary use. I agree if you read the entire section on custom it’s not simply time that must be proved. [Wow, that’s progress! Danny and Dave R can’t get past that and likely they will tell you they never will.] However, they court tells us what those things are it has to be reasonable, without interruption and free from dispute. [But the Tona-Rama court did not define them and many argue are incomplete. Courts will rely on the criteria that have been defined over the centuries. Like the Appellate court did in this case.]. I don't know if the county can prove this or not. [If you could, would you bet $10,000 of your own money and pay to property owners if owners prevail based on what you and the commissioners know about custom and the chances commissioners will prevail? Each property owner will have to defend their property rights against commissioners with tens or hundreds of thousands of dollars each. If not why not and why should informed tax payers allow commissioners to risk millions of their tax dollars and likely not prevail? How much infrastructure could commissioners build with the millions litigating against 1,000 property owners? Remember Danny economic benefit of the claimant to private property is not a custom criteria.]

As far as English Common Law goes, we don't really go by that [Never claimed English common law was the law here]. Although it may influence a decision, it’s not the law. It has been supplanted by statutes and over 200 years of case law.[It is a source relied on by the courts. Ignore at your own risk of understanding historically what custom is and is not.] Blackstone may be historically relevant is some instances, but really just as a historic reference. [Even the US Supreme Court reference Blackstone in its opinion as was considered in the Appellate court notes. Seems relevant to the courts.]

You are right the private property owners have their right to their property. [Commissioners do not. But it’s not their million$.] The questions is do others have the right to use the property through custom. I don't know the answer to that, and while I respect your opinion and you are clearly well versed on the subject, neither do you. [But inept political decisions are made on misinformation and misunderstanding of what custom is and is not over the centuries and will cost tax payers millions and likely not get anything for it. I agree, only judges who understand custom as defined over the centuries and hear the facts from attorneys paid by tax payer’s million$ will decide. Understanding custom historically could help tax payers understand the risk, cost, and hold the commissioners accountable if they fail.] A judge somewhere down the road will tell us. I also agree it will be vary expensive for both sides.

Has anyone changed their mind?

Has who changes their minds about what?

The deer-dog hunters should have claimed customary-use to hunt on the private property. Wonder what Theriaque's defense would have been then?
But since the judge agreed with Theriaque and ruled hunters could not violate the private property owner's rights to exclude the hunters we will likely never know.

LOL ^^^
Can I set a tree stand in a beach vendors back yard?

Has who changes their minds about what?

With regard to this whole thread. Has anyone had a change of heart, seen the other perspective and agreed, changed their mind, supported someone else's view of what is true and correct?

Bob, it's never happened yet, so don't hold your breath.

I don't think that it is a partial answer. [The question I asked Danny; what is the historical custom criteria? Did Tona-Rama define the criteria is applied? You may think it an irrelevant question but law is defined by legal history.] That is how the Court's in Florida have defined customary use. [The Appellate court even said the 1974 Tona-Rama didn’t answer the all the questions or clarify how a custom right is established. Devil is in the historical details.] They have also stated that the right to use the land can be based on custom and that the right to exercise this use is superior to the fee title owner. [I agree FL court did not dismiss custom out of hand IF it can be proven by ALL the evidence required for a valid custom claim only for local parcels].

I guess if the statutes passed in other states and cases granting customary use were unconstitutional someone would appeal those to the federal courts and they would decide that. To my knowledge that has not happened. [Because each claim if custom has different facts, locale is important consideration of a valid custom historically and what other states do does not apply in FL.] It really doesn't matter what legal scholars say, the courts make the decision. [Read all those court superscripts and footnotes - many are legal scholars the courts rely on.]

I copied what the court found was the [their] definition of customary use [there are other courts that can overrule this court]. The language did come from Tona Roma and they quoted it with acknowledgement that it was precedent. I do agree with you, I don't know why they wouldn't try prescription as well. To claim by dedication there must be a dedication in the past and I'm sure the county can't prove that for the entire coast line, but they may be able to in certain spots. [You got it. Commissioners haven’t claimed prescription or dedication because the chance of success is nil and the cost would be great. Other counties have tried and failed. Customary use is all commissioners have left. It costs commissioner nothing but tax payer’s million$ to try, and pander for votes instead of protect Constitutional property rights. And commissioners can tax more money if needed.] I think what they should do is go to the source deeds and see what the description is in those deeds. If the description is not to the MHWL, then they should investigate how it was changed. [If there was any inkling of deed discrepancies, Walton would have done that by now. Dream on.] If was changed with judicial process then the burden would be on the supposed fee owner to prove ownership.

I didn't cherry pick anything [I said you didn’t cheery pick, like many others do, but it looked like it at first read. Sorry.], I simply quoted the Florida courts definition of customary use. I agree if you read the entire section on custom it’s not simply time that must be proved. [Wow, that’s progress! Danny and Dave R can’t get past that and likely they will tell you they never will.] However, they court tells us what those things are it has to be reasonable, without interruption and free from dispute. [But the Tona-Rama court did not define them and many argue are incomplete. Courts will rely on the criteria that have been defined over the centuries. Like the Appellate court did in this case.]. I don't know if the county can prove this or not. [If you could, would you bet $10,000 of your own money and pay to property owners if owners prevail based on what you and the commissioners know about custom and the chances commissioners will prevail? Each property owner will have to defend their property rights against commissioners with tens or hundreds of thousands of dollars each. If not why not and why should informed tax payers allow commissioners to risk millions of their tax dollars and likely not prevail? How much infrastructure could commissioners build with the millions litigating against 1,000 property owners? Remember Danny economic benefit of the claimant to private property is not a custom criteria.]

As far as English Common Law goes, we don't really go by that [Never claimed English common law was the law here]. Although it may influence a decision, it’s not the law. It has been supplanted by statutes and over 200 years of case law.[It is a source relied on by the courts. Ignore at your own risk of understanding historically what custom is and is not.] Blackstone may be historically relevant is some instances, but really just as a historic reference. [Even the US Supreme Court reference Blackstone in its opinion as was considered in the Appellate court notes. Seems relevant to the courts.]

You are right the private property owners have their right to their property. [Commissioners do not. But it’s not their million$.] The questions is do others have the right to use the property through custom. I don't know the answer to that, and while I respect your opinion and you are clearly well versed on the subject, neither do you. [But inept political decisions are made on misinformation and misunderstanding of what custom is and is not over the centuries and will cost tax payers millions and likely not get anything for it. I agree, only judges who understand custom as defined over the centuries and hear the facts from attorneys paid by tax payer’s million$ will decide. Understanding custom historically could help tax payers understand the risk, cost, and hold the commissioners accountable if they fail.] A judge somewhere down the road will tell us. I also agree it will be vary expensive for both sides.

Law is defined by precedent and statutes. Tona Roma is precedent. It is the law in Florida today, it may change and be more defined in the future, but it's all we can look to today. I do agree that the problem with Tona Roma is, it doesn't give you a clear picture of what evidence is required to prove custom.

I agree the custom of each state will differ. Although you could make the argument that the entire coastline of the U.S. has been used for the purposes of recreation and fishing since before recorded history. However, the laws of other states have just as much influence, if not more, than these legal scholars we keep talking about. Many times a state court, that doesn't have much law on an issue, will look to a state that has already faced the issue to see how they handled it, and that state's decision may be adopted or at least influence the first state's decision. However, you are right courts also look at scholarly papers. You can't look at either as the ultimate answer, as I said that will come from the court.

I disagree that prescription could not be used. However, I'm sure the lawyers have looked at all the options and must feel that custom is the most likely win for the county. Of course, there is nothing that says they couldn't try both. I also disagree about discrepancies in some deeds. I may not bet $10,000.00 that the county wins on custom, but I will bet that if someone did take the time to trace back to the source deeds, they would find some deed descriptions altered without judicial approval.

I think our discussion boils down to this, you believe the county can't prove their case based on common law, Blackstone and legal scholars, and I believe their is a chance to prove the case based on legal precedent from Florida and other states.

With regard to this whole thread. Has anyone had a change of heart, seen the other perspective and agreed, changed their mind, supported someone else's view of what is true and correct?

Bob Wells, if one person takes the time to study and understand better the history of custom and customary use because of the questions I’ve asked and the points I’ve made, even to dispute them, it’ll be worth the effort. You should be skeptical but open minded. From the comments I’ve read, not many understand what common-law custom is and is not - or open to the facts when facts do not fit their expectations. Don’t believe Danny, Dave Rauschkolb, me, or anyone else but do your due-diligence, listen to the issues, understand the history of custom, understand common-law custom, the facts, and make an informed opinion about what is at risk, personal property rights, and the costs. Both monetary and Constitutional rights.

Why couldn’t deer-dog hunters claim customary rights on private property? Deer-dog hunting has been going on for many decades, before 1970, since before Danny can remember, on the same private properties by many of the same local hunters. Those property owners should have known that hunting in the Blackwater Forest and on their private property has been permitted by US Fish & Wildlife for decades when they purchased their property. Sound familiar? According to comments by Danny that would be enough for hunters to claim customary use wouldn’t it?

Catmoney quoted Tona-Rama that included, ... reasonable, without interruption, and free from dispute. What’s unreasonable about hunting, when has hunting in FL been interrupted, and how has hunting been disputed? Why shouldn’t deer-dog hunters have the right to use all rural Florida private property where hunting is permitted is their custom?

Dave Rauschkolb would just exclaim your deer is our deer to hunt and hail the commissioners for their courage to legislate and litigate against the private property owners to allow hunters and dogs to kill deer on private property as it has been since the Native Americans.

Previous FL courts have not explained or defined how the common-law criteria is applied and how custom is validated based on historical precedent as the Trepanier case demonstrated. Respected legal scholars think the history of custom is were to go to understand custom and requires additional criteria to limit and validate customary rights to private property because private property rights are so cherished by those who have come before us. Do you know what those historical custom criteria are? I’ve suggested where to look for them.

Why couldn’t deer-dog hunters claim customary use on private property? Why did the judge rule in favor of the private property owners? I would like to know what Theriaque’s property rights arguments were.

Law is defined by precedent and statutes. Tona Roma is precedent. It is the law in Florida today, it may change and be more defined in the future, but it's all we can look to today. I do agree that the problem with Tona Roma is, it doesn't give you a clear picture of what evidence is required to prove custom.

I agree the custom of each state will differ. Although you could make the argument that the entire coastline of the U.S. has been used for the purposes of recreation and fishing since before recorded history. However, the laws of other states have just as much influence, if not more, than these legal scholars we keep talking about. Many times a state court, that doesn't have much law on an issue, will look to a state that has already faced the issue to see how they handled it, and that state's decision may be adopted or at least influence the first state's decision. However, you are right courts also look at scholarly papers. You can't look at either as the ultimate answer, as I said that will come from the court.

I disagree that prescription could not be used. However, I'm sure the lawyers have looked at all the options and must feel that custom is the most likely win for the county. Of course, there is nothing that says they couldn't try both. I also disagree about discrepancies in some deeds. I may not bet $10,000.00 that the county wins on custom, but I will bet that if someone did take the time to trace back to the source deeds, they would find some deed descriptions altered without judicial approval.

I think our discussion boils down to this, you believe the county can't prove their case based on common law, Blackstone and legal scholars, and I believe their is a chance to prove the case based on legal precedent from Florida and other states.

[Tona-Rama] is the law in Florida today...

Can you describe what Tona-Rama law is and how it applies to to FL private property or more specifically Walton private property is subject to custom so I understand? To just say it applies is not enough.

Yes, time and tax payers million$ will tell. I would bet you a large sum of money about the deed discrepancies and 1,000 private property owners will be forced to bet/spend their money they will prevail against Walton legislation/litigation to take their recognized property rights they have had and have today and pay taxes on by a narrow legal doctrine of custom.

Lucas Reynolds, in fact I do remember the days when dog hunting was prevalent in Walton County and I remember the controversy that erupted when the law changed to make it very difficult to dog hunt. The difference between the two is that a state law was changed that made dog owners responsible for their animals and imposed criminal sanctions. No such law has been passed either way in regards to the beach. Many of my relatives dog hunted and their argument was that people had been hunting in that manner since the Indians. But the state changed the law and that was that. The simple fact is that we can all debate this question until doomsday but unless state law is changed, the courts will decide. I have no idea who will prevail but I do believe it is a fight worth fighting. Because private beaches are a major change in our way of life and a major part of our economy depends on large areas of pristine, open beaches. There should be a compromise on this issue that prevents one side or the other achieving total victory and the other total defeat, but I fear it has gone too far and we will have to see what the courts do.

My purpose was to find one person whose view, opinion, idea, vision has been changed by the discourse here. I understand the views are strong and opinions are unlikely to change. I have always believed no one gets everything they want and finding middle ground should be the goal. Unfortunately working together and finding common ground is one of the things that has fallen by the wayside as politicians have set the example in not working for the good of the people they represent but their politics. That is why, in my opinion, we can't get a budget passed in congress, why Zika Funding was difficult to pass. It just seems we can't come up with reasonable solutions to a difficult issue. Just my thoughts.

Lucas Reynolds, in fact I do remember the days when dog hunting was prevalent in Walton County and I remember the controversy that erupted when the law changed to make it very difficult to dog hunt. The difference between the two is that a state law was changed that made dog owners responsible for their animals and imposed criminal sanctions. No such law has been passed either way in regards to the beach. Many of my relatives dog hunted and their argument was that people had been hunting in that manner since the Indians. But the state changed the law and that was that. The simple fact is that we can all debate this question until doomsday but unless state law is changed, the courts will decide. I have no idea who will prevail but I do believe it is a fight worth fighting. Because private beaches are a major change in our way of life and a major part of our economy depends on large areas of pristine, open beaches. There should be a compromise on this issue that prevents one side or the other achieving total victory and the other total defeat, but I fear it has gone too far and we will have to see what the courts do.

“But the state changed the law and that was that.” Please Danny when you make statements of facts can you present or explain the fact. What specific state law are talking about? If the law was so final and clear why did the private property owners have to litigate against Fish & Wildlife and hunters to stop deer-dog hunters from trespassing?

“... but unless state law is changed, the courts will decide.” What current state law needs to be changed for public use of private property without permission or license?

“... major part of our economy depends on large areas of pristine, open beaches.” You keep saying it and I’ll keep reminding you, if you understand common-law customs, the economic benefit of the claimant is not justification for a valid custom claim on private property. Look it up.

“... but I fear it has gone too far and we will have to see what the courts do.” Why don’t you and the commissioners ask the Walton tax payers who will foot the bill for millions of dollars if its gone too far? Property owners don’t get a choice but to protect their rights.

My purpose was to find one person whose view, opinion, idea, vision has been changed by the discourse here. I understand the views are strong and opinions are unlikely to change. I have always believed no one gets everything they want and finding middle ground should be the goal. Unfortunately working together and finding common ground is one of the things that has fallen by the wayside as politicians have set the example in not working for the good of the people they represent but their politics. That is why, in my opinion, we can't get a budget passed in congress, why Zika Funding was difficult to pass. It just seems we can't come up with reasonable solutions to a difficult issue. Just my thoughts.

My purpose is to elicit those interested in customary-use to understand it. Most of the comments I read, especially from outspoken opponents of property rights, are not based in fact, based on emotional outcries to justify the means, or just wrong and I have pointed out the facts of the matter based on research of common-law custom available to anyone who will take the time and look for it. You may not agree with my references or interpretation but explain why with facts too. Let’s discuss the facts of custom. What is common-law custom - and to do that you have to understand historically what custom is and is not. If you can’t answer a few questions about custom you have no credibility and people should take your opinions for what they are - unsubstantiated opinions. Then what is the point of this forum?

Bob, could you or someone answer the question about custom; “Why couldn’t deer-dog hunters claim customary use on private property?” Danny claims some unknown state law that made it “very difficult to dog hunt.” but apparently did not stop hunters from trespassing and property owners had to litigate to protect their property rights, and doesn’t site the law or explain it, so that his opinion.

Can you describe what Tona-Rama law is and how it applies to to FL private property or more specifically Walton private property is subject to custom so I understand? To just say it applies is not enough.

Yes, time and tax payers million$ will tell. I would bet you a large sum of money about the deed discrepancies and 1,000 private property owners will be forced to bet/spend their money they will prevail against Walton legislation/litigation to take their recognized property rights they have had and have today and pay taxes on by a narrow legal doctrine of custom.

I can give my opinion abut how it applies, but that is all it is, unless they appoint me as Judge. Has the public used the beaches of Walton County for recreation since ancient times? I think so, I'm sure at least as long as the public in Daytona. Is that use reasonable? I think so, at least as reasonable as the use in Daytona. Has it been without interruption and free from dispute? Yes until very recently. I'm sure you have a different opinion based on common law, legal scholars and Blackstone.

I'll take that bet regarding deeds.

If the property owners and/or the county doesn't want to spend the money, they could come to the table with reasonable solutions or in an effort to find middle ground, as Bob Wells suggested. Many times both sides are disappointed with a court's decision. If the two sides could come to an agreement they can both live with, everyone will be better off. I hope they can do this, however like Bob Wells said that is uncommon these days.

Could a compromise be that the county rents or purchases portions of private property?