FL Supreme Court, Tona-Rama (
full report)
Even if it should be found t h a t such an easement had been acquired by prescription, the defendant-owner could make
any use of the land consistent with, or n o t calculated t o
i n t e r f e r e with, the exercise of the easement by the public.
See Tifjfany, (Third Edition), V o l . 3, Section
811. The erection of the sky tower was consistent with the
recreational use of the land by the public and could not i n t e r -
fere with the exercise of any easement the public may have acquired
by prescription, i f such w e r e the case.
The beaches of Florida are of such a character as to
use and potential development as to require separate consideration
from other lands w i t h respect to the elements and consequences
of t i t l e . The sandy portion of the beaches are of no
use for farming, grazing, t i m b e r production, or residency--
the t r a d i t i o n a l uses of land--but has served as a thoroughfare
and haven for fishermen and bathers, as w e l l as a place of
recreation for the public. The i n t e r e s t and r i g h t s of the public
to the f u l l use of the beaches should be protected. Two states,
Oregon and Hawaii, have used the "customary r i g h t s doctrine" to
afford the r i g h t s in beach property. State ex rel. Thornton v.
Bay, 254 O r e . 584, 462 P.2d 671 (1969); In re: Ashford, 50 Hawaii
314, 440 P.2d 76 (1968). See also Fla. Law Review, Easements:
Judicial and Lesislative Protection of the Public's Riqhts i n
Florida's Beaches by W. Roderick Bowdoin, Vol. XXV, No. 3, pp 586-
590 (Spring 1973).
As stated in Tiffany Real Property, (Third Edition), Vol,
3, 935:
"In England, persons of a certain l o c a l i t y
or of a certain class may have, by immemorial
custom, a right to make use of land belonging
t o an individual. Thus, there may be a custom
for the inhabitants of a certain town t o dance
or play games on a particular piece of land
belonging t o an individual, or to go thereon
in order to get w a t e r . So there may be a custom
for fishermen to dry nets on certain land,
or for persons in a c e r t a i n t r a d e ( v i c t u a l e r s )
to erect booths upon c e r t a i n p r i v a t e land during
a f a i r . The custom, to be valid, 'must have
continued from t i m e i m m e m o r i a l , without
i n t e r r u p t i o n , and as of r i g h t ; it must be
c e r t a i n as to the place, and as to the
persons; and it must be c e r t a i n and reasonable
as to the subject matter or r i g h t s
created,
. . .
"Occasionally i n t h i s country it has
been decided t h a t r i g h t s to use p r i v a t e
land cannot thus be created by custom, f o r
the reason t h a t they would tend so to burden
land as to i n t e r f e r e with its improvement
and a l i e n a t i o n , and also because there can
be no usage i n t h i s country of an i m m e m o r i a l
character. In one state, on the other hand,
the existence of such customary r i g h t s is
affirmed, and i n others t h i s is assumed in
decisions adverse to the existence of the
r i g h t i n the p a r t i c u l a r case." (pp. 623-
624)
If the r e c r e a t i o n a l use of the sandy area adjacent to mean
high tide has been ancient, reasonable, without i n t e r r u p t i o n
and free from dispute, such use, as a matter of custom, should
not be i n t e r f e r e d with by the owner. [/SIZE]However, the owner may
make any use of his property which is c o n s i s t e n t with such public
use and not calculated to i n t e r f e r e with the exercise of
the r i g h t of the public to enjoy the dry sand area as a recrea
t i o n a l adjunct of the w e t sand or foreshore area.
This r i g h t of customary use of the dry sand area of the
beaches by the public does not create any i n t e r e s t in the land
itself. Although t h i s r i g h t of use cannot be revoked by the
land owner, it is subject to appropriate governmental regulation
and may be abandoned by the public. The r i g h t s of the owner of
the dry sand area may be compared to r i g h t s of a part-owner of
a land-locked nannavigable lake, as described i n Duval v, Thomas,
114 So.2d 791 (Fla. 1959).
Testimony was presented t h a t the p u b l i c ' s presence on
the land and its use of the land was not adverse to the i n t e r -
est of defendant, but r a t h e r t h a t the defendant's Main S t r e e t
p i e r relied on the presence of such seekers of the sea for its
business. Thus, the issue of adversity was c l e a r l y raised and
the evidence f a i l e d to show any adverse use by the public. In
fact, the construction of the sea t o w e r was c o n s i s t e n t with the
general recreational use by the public.
may continue t o use the dry sand area for t h e i r usual recre-
The general public
a t i o n a l a c t i v i t i e s , not because the public has any i n t e r e s t
i n the land i t s e l f , but because of a r i g h t gained through
custom to use t h i s p a r t i c u l a r area of the beach as they have
without dispute and without interruption for many years.
The decision of the D i s t r i c t Court of Appeal is quashed
and t h i s cause is remanded to the D i s t r i c t Court with instructions
to f u r t h e r remand the same to the t r i a l court for the
purpose of entering f i n a l judgment for defendant.
It is so ordered.
Lovely 'tar too. Did I ever say 
kittyness. Well it's never 2 late 2 say 
, now is it?
