Open question for beach front homeowners, their lawyers and their politician friends

[lazin&drinkin]

I have the Miller Report for the ancient part. I have a pretty good hunch that 8,000 affidavits might be examined to prove people were enjoying these beaches during the general times I’m talking about. I do not have day to Day info and neither do you. My point is the people that have bought property here through the ages have been aware of the friendly freedom and unobstructed customary use. Please provide documentation of anything that would disprove this. And do it in court, not here.

The Miller Report is farcical, and I'm being as charitable as possible. And your ignorance or willful disregard of the law is tiresome. The mandated presumption of any judge hearing a CU suit MUST be that the allegation of CU is WRONG, and the burden of proof lies entirely with the county. The BFO does not have to put up a defense, though he may do so. The BFO has no burden of proof whatsoever.

 

[twinbrew]

This is obviously an issue that folks are passionate about on both sides. I keep seeing a few mantras being repeated over and over, however, that may require some clarification. People keep throwing out the notion that customary use is some attempt to reach back into English common law to trump the U.S. Constitution. You all realize that English common law is the basis for large bodies of law in the United States today and that was by design right? Most of the contract law (excluding the UCC), tort law, and even property law we have in place found its origins in English common law as developed by American courts. The Constitution and the common law are part of the same legal system. Thus, I find it odd to demonize "common law." One of the common law concepts that we adopted from English common law is the notion that property owners may hold title to a parcel but that others can, through use, obtain rights in that property. It is not usurping some right under the Constitution to own forever whatever is in your deed. It is a concept as old as the Republic itself. With regard to customary use, no less an authority than the Florida Supreme Court has said that customary recreational use of the beaches by the public is a recognized right that is not contrary to private property interests. See City of Daytona Beach v. Tony-Rama, Inc. , 294 So.2d 73 (Fla. 1974). That use, however, has to be proven. It does not automatically apply to every piece of sandy beach. In the Alford case, the plaintiffs tried to argue that the only authority that could establish customary use was a court. The USDC disagreed and found Walton County did not act ultra vires when it adopted its customary use ordinance. In other words, it was ok to establish customary use by ordinance rather than through a court action. HB631 undid that and now requires court action. The reason I raise all of this is simply to point out that anytime someone says they "own" the beach or have private property rights in the beach, they are simply assuming the answer to the question rather than answering it. If the public can establish customary use over the parcel, then you assume the answer incorrectly. If the public can't establish customary use over the parcel, then you have assumed the answer correctly. And finally, even with customary use, no one is divesting the owner of property. There is simply a right in the public to use the beach for recreational purposes so long as it does not interference with the other bundle of rights that the property owner has in the property. Sorry for the long post.

 

[jodiFL]

Those fish look like they are on "dry sand" to me. Lets see how quick the "wet sand" the public is only suppose to walk on becomes " public foreshore beach seaward of the MHWL" when tons of dead fish start washing up.

 

[FactorFiction]

I got another open question for you, since there seems to be real evidence that Rick Scott's Red Tide is heading this way in medium concentrations (which could go higher at any time), who is gonna clean up the f**king dead fish? You? In Panama City Beach, I have heard, they have trucks that vacuum them up every morning. So now it appears your arrogance could cause a public health crisis. Unintended consequences can be very unfortunate.

Lake View Too, last time we had red tide, nobody picked up the dead fish on any private property that I saw. Did that happen somewhere in Walton County that I don't know about?

 

[Dave Rauschkolb]

Lawsuit Challenging Customary Use Doctrine in Florida Fails

A Walton County beachfront property owner’s attempt to challenge the doctrine of custom has failed in District Court for the Northern District of Florida.

InBlessey v. Walton County, Plaintiff sought a declaration that Florida’s common law customary use doctrine is unconstitutional under the Fifth and Fourteenth Amendments of the U.S. Constitution.

The Florida Supreme Court has previously recognized, in City of Daytona Beach v. Tona-Rama, Inc., the public’s right of customary use exists in a Florida beach if the recreational use of the sandy area adjacent to the mean high tide has been ancient, reasonable, without interruption, and free from dispute.

In acknowledging the existence of this right, the Supreme Court correctly observed that the use of Florida’s beaches is inherently different from that of other Florida lands, and “require separate consideration from other lands with respect to the elements and consequences of title.” “The interest and rights of the public to the full use of the beaches should be protected,” the Court proclaimed. (City of Daytona Beach v. Tona-Rama, Inc., 294 So. 2d 73 (Fla. 1974))

Florida’s highest court further celebrated the significance of Florida’s beaches to the public as follows:

“[n]o part of Florida is more exclusively hers, nor more properly utilized by her people than her beaches. And the right of the public of access to, and enjoyment of, Florida’s oceans and beaches has long been recognized by this Court.”…

“There is probably no custom more universal, more natural or more ancient, on the sea-coasts, not only of the United States, but of the world, than that of bathing in the salt waters of the ocean and the enjoyment of the wholesome recreation incident thereto. The lure of the ocean is universal; to battle with its refreshing breakers a delight. Many are they who have felt the lifegiving touch of its healing waters and its clean dust-free air. Appearing constantly to change, it remains ever essentially the same.”

As Justice Rodgers of the Northern District of Florida notes in her September 7thorder, “[c]onsistent with this case law and effectively codifying that common law, the Florida Legislature recently enacted a statutory procedure that must be followed before a governmental entity may seek to regulate a parcel of property based on the customary use doctrine. See Fla. Stat. § 163.035 (H.B. 631 effective July 1, 2018).”

Therefore, with both the Florida Supreme Court and state legislature recognizing the doctrine of custom as source of public beach access rights, it is unclear how or why Plaintiff Blessey sought to sue Walton County over the doctrine of custom.

Justice Rodgers dismissed the case for lack of subject matter jurisdiction. In reaching this decision, the Court agreed with the County that Blessey’s allegations, which “are essentially nothing more than a challenge to the common law doctrine itself, are insufficient to demonstrate a live case or controversy as well as a concrete or imminent injury for purposes of Article III standing.” Article III of the U.S. Constitution limits the jurisdiction of federal courts to actual cases and controversies. “Essentially, Blessey asks the Court to address his constitutional challenge to the common law doctrine in the abstract, which it may not do,” reads the Court’s order.

The Court was not persuaded that the County’s mere assertion of intent to hold a public hearing and initiate the statutory process required by H.B. 631 had deprived Blessey of any constitutional protection or injured any property right. Accordingly, the Court dismissed the lawsuit.

Walton County continues to move ahead with the new process outlined in H.B. 631. While its original hearing scheduled for September 8 has been postponed, the hearing will take place November 3rdat 9 a.m., at a to be determined location. Members of the public can help the county protect the public’s customary use rights by submitting an affidavit speaking to your use of the beach. Instructions and affidavit forms may be found on the county’s website, hereand here. For more information please visit https://www.co.walton.fl.us. Surfrider encourages other Florida counties to proceed with this new process in protection of the public’s customary rights

 

[Lake View Too]

Lake View Too, last time we had red tide, nobody picked up the dead fish on any private property that I saw. Did that happen somewhere in Walton County that I don't know about?

As far as I know, Walton County hasn't experienced a real large scale fish kill. But, South Florida has never experienced a fish kill near to the magnitude of the one they are experiencing now. I think we are going into new territory with the cutbacks in water monitoring, and the cuts in DEP funding. Rick Scott's legacy will smell like rotten fish for quite a while. (What? I got off message. So what, sue me.) I just find it interesting and ironic that Panama City Beach already had working plans in place to clean up their significant fish kill every morning, and their beaches look outstanding, while our BFO's are putting up posts and fences to make sure whatever fish might wash up will stay for a long time. Stinks.

 

[FloridaBeachBum]

This is obviously an issue that folks are passionate about on both sides. I keep seeing a few mantras being repeated over and over, however, that may require some clarification. People keep throwing out the notion that customary use is some attempt to reach back into English common law to trump the U.S. Constitution. You all realize that English common law is the basis for large bodies of law in the United States today and that was by design right? Most of the contract law (excluding the UCC), tort law, and even property law we have in place found its origins in English common law as developed by American courts. The Constitution and the common law are part of the same legal system. Thus, I find it odd to demonize "common law." One of the common law concepts that we adopted from English common law is the notion that property owners may hold title to a parcel but that others can, through use, obtain rights in that property. It is not usurping some right under the Constitution to own forever whatever is in your deed. It is a concept as old as the Republic itself. With regard to customary use, no less an authority than the Florida Supreme Court has said that customary recreational use of the beaches by the public is a recognized right that is not contrary to private property interests. See City of Daytona Beach v. Tony-Rama, Inc. , 294 So.2d 73 (Fla. 1974). That use, however, has to be proven. It does not automatically apply to every piece of sandy beach. In the Alford case, the plaintiffs tried to argue that the only authority that could establish customary use was a court. The USDC disagreed and found Walton County did not act ultra vires when it adopted its customary use ordinance. In other words, it was ok to establish customary use by ordinance rather than through a court action. HB631 undid that and now requires court action. The reason I raise all of this is simply to point out that anytime someone says they "own" the beach or have private property rights in the beach, they are simply assuming the answer to the question rather than answering it. If the public can establish customary use over the parcel, then you assume the answer incorrectly. If the public can't establish customary use over the parcel, then you have assumed the answer correctly. And finally, even with customary use, no one is divesting the owner of property. There is simply a right in the public to use the beach for recreational purposes so long as it does not interference with the other bundle of rights that the property owner has in the property. Sorry for the long post.

Thanks twinbrew. Good summary but you make many assumptions. If you read back over many previous posts, I for one, refer not to common law as a whole, as you assume, but the old English common law doctrine of custom and custom claims on private property in particular. Blackstone 1765 Commentaries being the most well know old English common law treatise, including real property, with many more than 4 custom criteria to determine a valid custom, then litigated in a court. Is there any old English common law that protects private property from the King or government taking property? Why did the founding fathers include that right in the Bill of Rights? Yes, eminent domain, prescriptive easement, dedications, and ancient custom are all common law that could change the bundle of fee simple property rights BUT the assumption is that property title has ALL the rights forever in the deed until a court finds otherwise - that’s due process isn’t it? Like a criminal defendant is innocent until proven guilty. A concept as old as the Constitution itself. I legally “own” the beach property described by the deed with all littoral rights, there is NO assumption when asked. No question I own all littoral rights to the property until proved in court otherwise. The commissioners have the burden of proof to the question of private property rights - not the beachfront owner.

Toma-Rama was a prescriptive easement complaint to remove an amusement observation tower on 225 sq ft of commercial beachfront. FSC rejected the prescriptive easement based on the prescriptive easement evidence that would remove the beach tower and inserted their own finding of custom that kept the tower from being destroyed. FSC custom criteria that legal scholars have found lacking and not well defined. FL courts then attempted to better define the FSC custom criteria. Even if real property custom does not violate the Constitution can you define or reference the historical legal common law custom criteria of Ancient? Reasonable? Without interruption? Free from dispute? Can anyone out there? Are there any other historical precedent custom criteria previous courts have used that are not listed? Only one ancient custom criteria not proven defeats the claim of custom.

 

[FloridaBeachBum]

Justice Rodgers dismissed the case for lack of subject matter jurisdiction.

Dave R, as a Surf Rider member did you help write this rubbish Surf Rider blog? I’m not going to point out the blog picking and choosing parts and pieces of the ruling not included. In summary the court said it was not ready for Federal Court but your blog left out the most important part; dismissed WITHOUT PREJUDICE. Allowing the Plaintiff to file again when the case is ready for Federal Court after November 3, 2018.

 

[twinbrew]

Actually the Florida Supreme Court set out its view of English custom law and how it should be applied in Florida in the quote below. It
has been the law in Florida since 1974. And Florida is not the only state to recognize customary use as a legal concept embedded in the common law. On your point of assumptions, you and I may have a dispute as to whether you breached a contract. If you simply say, "I did not breach" it does not mean that you didn't. It means you assert that you didn't. As you point out, a court will decide. To be sure, I would have to put forth proof that you breached and the court would have to agree with me. On that I think we are in absolute agreement. But it does not mean that you did not breach simply because you said you did not. There is an unresolved dispute. That is exactly what we have here and the dispute will be resolved one way or the other. If a court determines that there has been customary use of a parcel all along, then all the claims that I own the beach and have the right to exclude others will turn out to have been incorrect. Like I said, this is obviously an emotional issue but it is a legitimate dispute over property rights that the courts will have to resolve. Each side will have their arguments but you can't just assume the answer and customary use is not some crack-pot theory invented at the 11th hour.

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 are of no use for farming, grazing, timber production, or residency the traditional uses of land but has 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. *78 Two states, Oregon and Hawaii, have used the "customary rights doctrine" to afford the rights in beach property. State ex rel. Thornton v. Hay, 254 Or. 584, 462 P.2d 671 (1969); In re: Ashford, 50 Haw. 314, 440 P.2d 76 (1968). See also Fla. Law Review, Easements: Judicial and Legislative Protection of the Public's Rights in 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 locality or of a certain class may have, by immemorial custom, a right to make use of land belonging to an individual. Thus, there may be a custom for the inhabitants of a certain town to dance or play games on a particular piece of land belonging to an individual, or to go thereon in order to get water. So there may be a custom for fishermen to dry nets on certain land, or for persons in a certain trade (victualers) to erect booths upon certain private land during a fair. The custom, to be valid, `must have continued from time immemorial, without interruption, and as of right; it must be certain as to the place, and as to the persons; and it must be certain and reasonable as to the subject matter or rights created.' ... "Occasionally in this country it has been decided that rights to use private land cannot thus be created by custom, for the reason that they would tend so to burden land as to interfere with its improvement and alienation, and also because there can be no usage in this country of an immemorial character. In one state, on the other hand, the existence of such customary rights is affirmed, and in others this is assumed in decisions adverse to the existence of the right in the particular case." (pp. 623-624)
If the recreational use of the sandy area adjacent to mean high tide has been ancient, reasonable, without interruption and free from dispute, such use, as a matter of custom, should not be interfered with by the owner. However, the owner may make any use of his property which is consistent with such public use and not 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.

This right of customary use of the dry sand area of the beaches by the public does not create any interest in the land itself. Although this right of use cannot be revoked by the land owner, it is subject to appropriate governmental regulation and may be abandoned by the public. The rights of the owner of the dry sand area may be compared to rights of a partowner of a land-locked nonnavigable lake, as described in Duval v. Thomas, 114 So. 2d 791 (Fla. 1959).

 

[FloridaBeachBum]

Actually the Florida Supreme Court set out its view of English custom law and how it should be applied in Florida in the quote below. It
has been the law in Florida since 1974. And Florida is not the only state to recognize customary use as a legal concept embedded in the common law. On your point of assumptions, you and I may have a dispute as to whether you breached a contract. If you simply say, "I did not breach" it does not mean that you didn't. It means you assert that you didn't. As you point out, a court will decide. To be sure, I would have to put forth proof that you breached and the court would have to agree with me. On that I think we are in absolute agreement. But it does not mean that you did not breach simply because you said you did not. There is an unresolved dispute. That is exactly what we have here and the dispute will be resolved one way or the other. If a court determines that there has been customary use of a parcel all along, then all the claims that I own the beach and have the right to exclude others will turn out to have been incorrect. Like I said, this is obviously an emotional issue but it is a legitimate dispute over property rights that the courts will have to resolve. Each side will have their arguments but you can't just assume the answer and customary use is not some crack-pot theory invented at the 11th hour.

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 are of no use for farming, grazing, timber production, or residency the traditional uses of land but has 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. *78 Two states, Oregon and Hawaii, have used the "customary rights doctrine" to afford the rights in beach property. State ex rel. Thornton v. Hay, 254 Or. 584, 462 P.2d 671 (1969); In re: Ashford, 50 Haw. 314, 440 P.2d 76 (1968). See also Fla. Law Review, Easements: Judicial and Legislative Protection of the Public's Rights in 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 locality or of a certain class may have, by immemorial custom, a right to make use of land belonging to an individual. Thus, there may be a custom for the inhabitants of a certain town to dance or play games on a particular piece of land belonging to an individual, or to go thereon in order to get water. So there may be a custom for fishermen to dry nets on certain land, or for persons in a certain trade (victualers) to erect booths upon certain private land during a fair. The custom, to be valid, `must have continued from time immemorial, without interruption, and as of right; it must be certain as to the place, and as to the persons; and it must be certain and reasonable as to the subject matter or rights created.' ... "Occasionally in this country it has been decided that rights to use private land cannot thus be created by custom, for the reason that they would tend so to burden land as to interfere with its improvement and alienation, and also because there can be no usage in this country of an immemorial character. In one state, on the other hand, the existence of such customary rights is affirmed, and in others this is assumed in decisions adverse to the existence of the right in the particular case." (pp. 623-624)
If the recreational use of the sandy area adjacent to mean high tide has been ancient, reasonable, without interruption and free from dispute, such use, as a matter of custom, should not be interfered with by the owner. However, the owner may make any use of his property which is consistent with such public use and not 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.

This right of customary use of the dry sand area of the beaches by the public does not create any interest in the land itself. Although this right of use cannot be revoked by the land owner, it is subject to appropriate governmental regulation and may be abandoned by the public. The rights of the owner of the dry sand area may be compared to rights of a partowner of a land-locked nonnavigable lake, as described in Duval v. Thomas, 114 So. 2d 791 (Fla. 1959).

The assumption is there is no breach. You have the burden to prove a breach. We are talking real property; not contracts. You have a big IF; "If a court determines that there has been customary use of a parcel". No emotion here. At least you have done some homework; unlike most who post. I want property rights facts and law please; not your sand is my sand slogans (not you but others). There are 47 out of 50 states that do not recognize ancient common law customary rights to all private beaches.