Eastern Lake Outfall Parcel Purchase

[Bob Wells]

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?

 

[Lake View Too]

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

 

[catmoney]

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.

 

[Lucas Reynolds]

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.

 

[Lucas Reynolds]

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.

 

[Danny Glidewell]

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.

 

[Bob Wells]

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]

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.

 

[Lucas Reynolds]

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.

 

[catmoney]

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.