Public vs Private Beach

[BlueMtnBeachVagrant]

From a publication on Florida DEP's website, page 26 - just after an analysis of Tona-Rama:​

Written by​

Stephen Holland
Center for Tourism Research and Development
Department of Recreation, Parks and Tourism​

Jeffry Wade and Richard Hamann
Center for Governmental Responsibility
College of Law
University of Florida
Gainesville​

.....from page 26

"Although "customary use" may form the basis for a right of beach access, there are several issues concerning its potential appicabilityin Florida. First it is not clear in Florida what character of customary use will allow an assertion that the public has rights to perpendicular or lateral access to beach areas landward of MHWL. The numbers of people required to have exercised such customary use, and over what period of time, have not been addressed by Florida courts. The doctrine is problematic in that, at least according to the Tona-Rama decision, it does not limit the owner's development of the land, consistent with the customary uses. This raises unanswered questions concerning what types of development would be considered consistent with the public's use of beaches for recreational purposes. The geographic applicability of the doctrine is also not clear, and it may require application on a case-by-case basis, raising the potential for litigation in each instance."

Once again this is clear. Once again this is written by people with a better handle on the issue than you. Once again this is what the Florida Attorney General has stated.​

​

SJ, I'll casually remind you of this reference each time you continue to bring up customary use. As it mentions above, "The numbers of people required to have exercised such customary use, and over what period of time, have not been addressed". ​

I never have received a straight answer from you or anyone else for that matter when I directly and repeatedly asked you the very same question. And again, if the courts can't figure out, what makes you think you can? ​

​

You at least acknowledge you're not a lawyer. So Judge Joe, its your turn. I'll chase your tail if you chase mine.​

 

[Smiling JOe]

just because they have not been specifically addressed on each particular property, doesn't mean anything other than as people are arrested for sitting quietly on the beach, the courts will have to decide. What is new about that? I have not argued that, and until the Courts decide, I'll continue to sit quietly on the beach. I may even continue after the courts make a determination. No biggy to me. Go ahead and call the Sheriff on me.

 

[BlueMtnBeachVagrant]

From a private property owner's perspective, according to the private property laws, you would have been better defending the property a long time ago. In reality, the first owners who had the property deeded should have been defending the property, to establish their boundary. Since none of the previous owners consistently stopped the public from using the beach for sunbathing or other recreation, they have essentially given up some rights to the property.

I don't want you to become a greedy beach front owner. I am just telling you about the real estate law as it relates to customary use of private property. IMO, it is too late to start defending it now, as The Retreat and others are doing.

Your quote goes with my reply above.

And aren't you are JUST a real estate agent, not a real estate attorney? Don't tell me about (your interpretation of) real estate law.

And regarding "defending it now", I'll defend my property anytime I see fit. Don't you worry yourself.

 

[BlueMtnBeachVagrant]

... people are arrested for sitting quietly on the beach...

You don't hear too good or your memory is awful. Again, nobody ever got arrested for JUST sitting quietly on a beach. You're picking up on REV Jeremiah's tactics.

 

[Smiling JOe]

I was speaking of people being arrested in the future.

Just curious, have you read Trepanier et al v. County of Volusia?
It's an interesting 30 pages of reading. Here are a couple of snip-its.

The circuit court turned effective title of much of the lots to the County, ruling that (quoting from the 5th District Court of Appeals opinion):

"This court declares that the defendant, COUNTY OF VOLUSIA, on behalf of the
public, holds a superior claim to possession and use of the beach landward of
the mean low water mark of the Atlantic Ocean to the place where there is marked change in material or physiographic form, or to the line of permanent vegetation in accordance with the definition set forth in Fla. Stat. section 161.54(3) (2004).

Plaintiffs are permanently enjoined from impeding public access to the beach or from acting in any manner inconsistent with the free use of the beach by the public,
including access by motor vehicle, subject to the regulatory power of the County of Volusia."
**********
From the District Court hearing the appeal:
"Finally, we agree with the trial court's analysis of the "takings" issue. If the law
recognizes that the public has a customary right to drive and park on Appellants'
property as an adjunct of its right to other recreational uses of that property, as
recognized in Tona-Rama, then no takings claim can be made out."

 

[Smiling JOe]

How about this one:
"Under Downing v. Bird, 100 So. 2d 57 (Fla. 1958), the activity giving rise to the
prescriptive easement must be both on the property of another and inconsistent with the
owner?s use and enjoyment of the land. Id. at 64. As explained by the court in Tona-
Rama, ?f the use of an alleged easement is not exclusive and not inconsistent with the
rights of the owner of the land to its use and enjoyment, it would be presumed that such
use is permissive rather than adverse. Hence, such use will neve r ripen into easement.?
Tona-Rama, 294 So. 2d at 76-77. The burden is on the claimant to prove that the
public?s use of the owner?s property was adverse. Id. at 76."

 

[Smiling JOe]

From the Florida 5th District Court of Appeals, Trepanier et al v. County of Volusia:
"The common law public trust doctrine is embodied in Article 10, section 11 of the
Florida Constitution. Under that provision, title to the portion of the beach below the
mean high water line is held by the state in trust for all the people. The “beach,”
however, includes more land than what is set aside for the people under the public trust
doctrine. The area above the mean high water line is subject to private ownership. ?
177.28(1), Fla. Stat. (2005). See also Clement v. Watson, 58 So. 25, 26 (Fla. 1912). In
Florida, courts have recognized that the public may acquire rights to the dry sand areas
of privately owned portions of the beach through the alternative methods of prescription,
dedication, and custom. S. Brent Spain, Florida Beach Access: Nothing but Wet
Sand?, 15 J. Land Use & Envtl. L. 167, 171-172 (1999)."

 

[BlueMtnBeachVagrant]

SJ,

See Link. Again it is absolutely rediculous to compare Volusia County (Daytona Beach) with Walton County. But only someone like you would...someone blinded with the urge to always be right at any cost.

Why don't you threaten a sit-in and get arrested at Rosemary? Seaside? Watersound? Watercolor? Retreat? ...all private beaches...with large and well funded HOAs...most with "no trespassing" signs and willing to enforce it (and have in the past).

I'll tell you and the others why you won't. It's because you're full of hot air and lip service.

You have taken this whole thing to a definite personal level from you to me. Kind of wimpy in my opinion.

Why don't you and the others make your "statement" at Seaside or the Retreat? You'll get your names and pictures in the paper. You'll have your chance to take them to court and prove customary use. You'll get to meet the Sheriff face to face. In short all your dreams will come true. You will become local folk heroes. You'll be famous and revered. Isn't this what you're really looking for?


If you're going to talk the talk then walk the walk and quit threatening little ole me by telling me to call the Sheriff on you for sitting on my little piece of paradise. I should call your parents first for being a bully.


AND again you still haven't ANSWERED what constitutes customary use.

 

[Smiling JOe]

I really don't understand what you are saying. I don't stage a sit in because I have no desire to do so to organize a group of people. I just do what I do, and that does include sitting on the beach. I've done so numerous times on the beach in front of The Retreat, and I do so at least once a week in Seaside. To my knowledge, I haven't had my chance in court, because no one has ever asked me not to sit on the beach.

Personally, I could care less if you were not involved in the issue, so your involvement isn't a personal issue with me. I don't even know you.

You keep saying that customary use has not been defined, but it is defined by the Courts. It is very obvious to me that if you had read the cases I have cited, you would see that, but go ahead, continue to stick your head in the sand.

From the 5DCA:
"Florida's Supreme Court first recognized the public's "customary" right to the use of Florida's privately17 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."

(A period of twenty years was specifically defined as "ancient." )

For the record, I have not threatened you. When you make a statement like that, it is difficult to want to address you any further. Good day.

 

[BlueMtnBeachVagrant]

I really don't understand what you are saying. I don't stage a sit in because I have no desire to do so to organize a group of people. I just do what I do, and that does include sitting on the beach. I've done so numerous times on the beach in front of The Retreat, and I do so at least once a week in Seaside. To my knowledge, I haven't had my chance in court, because no one has ever asked me not to sit on the beach.

Like I asked Bear one time, then what's the problem?

Personally, I could care less if you were not involved in the issue, so your involvement isn't a personal issue with me. I don't even know you.

I some somehow find that disingenuous.

You keep saying that customary use has not been defined, but it is defined by the Courts.

Show me already! - in language we all can understand. Via courtesy I've distilled information for you in the past so you didn't have to thumb through hundreds of pages or be a legal wiz to understand someone else's quoted interpretation. Can't you at least return the favor?

It is very obvious to me that if you had read the cases I have cited, you would see that, but go ahead, continue to stick your head in the sand.

Does anyone else know what SJ is talking about? PLEASE???

For the record, I have not threatened you. When you make a statement like that, it is difficult to want to address you any further. Good day.

Didn't you just say "I may even continue after the courts make a determination. No biggy to me. Go ahead and call the Sheriff on me." ?
Is that not a threat? Sure seems like one. And wasn't that directed at me?

Good night.