Supporting Property Rights

[Shannon Lince]

I believe strongly in property rights as well, but I also understand that real property law is complicated and property rights vested in owners are not always absolute and unqualified. I'm genuinely interested in the views of BFO owners. Which leads me to ask 2 questions of BFO's. For your personal parcel, has the public never used your dry sand area for recreational purposes during the time you owned it (and you can exclude the short period of CU by ordinance). In other words, do you believe your dry sand has always been treated as private? Second, if CU was defeated and I showed up by myself with a fishing rod and a chair at 6:00 a.m. and sat 10 feet out of the wet sand on your property, would your intention be to ask me to leave? I expect I'll get a cavalcade of responses that you want the right to tell me to leave regardless of whether you exercise it, but I'm asking what your approach would be as a pure matter of personal interaction. Is that what you would do?

Well let's start with your first statement. Property rights are absolute (read Tiffany) unless limited by law. Unfortunately, many here want to define by fiat what property rights are or are not on beach property and run to the "rights are not absolute" argument. So I reject your premise and you might want to spend a few days reading Tiffany on fee simple. No doubt real property and land use law is complex - but that complexity doesn't default to limitation, but the opposite.

As to your next two question - no the "public at large" has never used my parcel or most private parcels in Walton county. If you mean have random non-owners occasionally used the parcel --- with or without my knowledge --- well that's a given. But you didn't ask that. You asked if the "public" used it and that means something entirely different - the public means everyone and anyone, in any quantity, continuously and notoriously (not covertly) and the answer is "no".

Second question. First I would not have any knowledge you were there as I would not be awake at 0600, and ten feet off wouldn't really catch my eye if you were there when I was. If you MADE yourself noticeable by staying there all day and returning day after day, and/or setting up camp, or loud noises or bothering people --- yes, I would inform you this is private property and you need to do this somewhere else. The key here is, are you making yourself a nuisance or presenting your presence in such a way that suggests you are "occupying" my property obnoxiously. And no, you don't have "Customary Use" --- you have CONSENT.

This is a core legal problem with custom vs. public trust. You and the residents of Walton county may have some degree of claim of custom on a parcel - what does not transfer is that into a public easement. This is why there are 7 criteria of custom - one of them being "certain persons".

 

[FloridaBeachBum]

In other words, do you believe your dry sand has always been treated as private? Second, if CU was defeated and I showed up by myself with a fishing rod and a chair at 6:00 a.m. and sat 10 feet out of the wet sand on your property, would your intention be to ask me to leave?

1. "treated as private"? If you mean legally recognized as private; YES. Since the title of the land was granted I can license whomever I what or not to use my private property to the MHWL - not wet sand.
2. If you are Dave Rauschkolb, Daniel W. Uhlfelder, Jackie Markel, any of the recent commissioners, Larry Jones, REALTORS Keith Dean, Josh Summers, or Liz McMasters - Yes I'd ask you to leave. List is not all inclusive but you get the idea.

 

[twinbrew]

Well let's start with your first statement. Property rights are absolute (read Tiffany) unless limited through the rule of law. Unfortunately, many here want to define by fiat what property rights are or are not on beach property and run to the "rights are not absolute argument". So I reject your premise and you might want to spend a few days reading Tiffany on fee simple.

As to your next two question - no the "public at large" has never used my parcel or most private parcels in Walton county. If you mean have random non-owners occasionally used the parcel --- with or without my knowledge --- well that's a given. But you didn't ask that. You asked if the "public" used it and that means something entirely different - the public means everyone and anyone, in any quantity, continuously and notoriously (not covertly) and the answer is "no".

Second question. First I would not have any knowledge you were there as I would not be awake at 0600, and ten feet off wouldn't really catch my eye if you were there when I was. If you MADE yourself noticeable by staying there all day and returning day after day, and/or setting up camp, or loud noises or bothering people --- yes, I would inform you this is private property and you need to do this somewhere else. The key here is, are you making yourself a nuisance or presenting your presence in such a way that suggests you are "occupying" my property obnoxiously. And no, you don't have "Customary Use" --- you have CONSENT.

This is a core legal problem with custom vs. public trust. You and the residents of Walton county may have some degree of claim of custom on a parcel - what does not transfer is that into a public easement. This is why there are 7 criteria of custom - one of them being "certain persons".

Thanks for responding. I appreciate it. So what I hear you saying is you are ok with the peaceful use of your dry sand so long as it is not obnoxious or a nuisance (e.g. change my example above to someone showing up with their family of 4 at 8 a.m. that just wants to build sand castles and clean up all their trash when they leave). The reason I ask is if most BFO's are ok with that type of non-nuisance use, why couldn't this all be resolved by some form of agreed upon easement for recreational use with appropriately strict restrictions that balance everyone's interests. Would you support something like that?

 

[Shannon Lince]

1. "treated as private"? If you mean legally recognized as private; YES. Since the title of the land was granted I can license whomever I what or not to use my private property to the MHWL - not wet sand.
2. If you are Dave Rauschkolb, Daniel W. Uhlfelder, Jackie Markel, any of the recent commissioners, Larry Jones, REALTORS Keith Dean, Josh Summers, Liz McMasters - NO.

#2 --- I'll only add the other CU zealots (et al.) Absolutely - ZERO CONSENT.

 

[twinbrew]

1. "treated as private"? If you mean legally recognized as private; YES. Since the title of the land was granted I can license whomever I what or not to use my private property to the MHWL - not wet sand.
2. If you are Dave Rauschkolb, Daniel W. Uhlfelder, Jackie Markel, any of the recent commissioners, Larry Jones, REALTORS Keith Dean, Josh Summers, Liz McMasters - Yes I'd ask you to leave.

1. No, I mean have you actively excluded third-parties when they used your dry sand.
2. I'm not so I assume you wouldn't ask me to leave.

 

[Shannon Lince]

Thanks for responding. I appreciate it. So what I hear you saying is you are ok with the peaceful use of your dry sand so long as it is not obnoxious or a nuisance (e.g. change my example above to someone showing up with their family of 4 at 8 a.m. that just wants to build sand castles and clean up all their trash when they leave). The reason I ask is if most BFO's are ok with that type of non-nuisance use, why couldn't this all be resolved by some form of agreed upon easement for recreational use with appropriately strict restrictions that balance everyone's interests. Would you support something like that?

That's not what I said at all. I am not willing to grant a right to the public on my property. I have 100% interest in my property - why would I dilute that to the public? Why? Do you really understand what a public use easement is legally? I'm not sure you do (by your comments).

 

[twinbrew]

If the answer to 1 is "no, the public has not consistently used my dry sand area" then aren't you going to win any customary use case with regard to your parcel? And wouldn't a court decision resolve this issue for you once and for all? There would then be clarity.

 

[FloridaBeachBum]

If the answer to 1 is "no, the public has not consistently used my dry sand area" then aren't you going to win any customary use case with regard to your parcel? And wouldn't a court decision resolve this issue for you once and for all? There would then be clarity.

Yes a court decision is the only way for Walton commissioners to claim public rights on private property - unlike their 2017 declaration without due process. It will only cost Walton taxpayers millions for commissioners to try (it's not their millions $). Why do you think beachfront owners should have to pay millions(?) to defend their fee simple Constitutional property rights and like it?

 

[Shannon Lince]

If the answer to 1 is "no, the public has not consistently used my dry sand area" then aren't you going to win any customary use case with regard to your parcel? And wouldn't a court decision resolve this issue for you once and for all? There would then be clarity.

What do you mean "win"? If you mean successfully defend my property interest against the claim? Spending a lot of treasure and time?

Most cases supporting custom including Florida's reflect a high degree of judicial activism. Custom is a highly controversial doctrine in American law. I'll leave it there.

 

[twinbrew]

Well let's start with your first statement. Property rights are absolute (read Tiffany) unless limited by law. Unfortunately, many here want to define by fiat what property rights are or are not on beach property and run to the "rights are not absolute" argument. So I reject your premise and you might want to spend a few days reading Tiffany on fee simple. No doubt real property and land use law is complex - but that complexity doesn't default to limitation, but the opposite.

As to your next two question - no the "public at large" has never used my parcel or most private parcels in Walton county. If you mean have random non-owners occasionally used the parcel --- with or without my knowledge --- well that's a given. But you didn't ask that. You asked if the "public" used it and that means something entirely different - the public means everyone and anyone, in any quantity, continuously and notoriously (not covertly) and the answer is "no".

Second question. First I would not have any knowledge you were there as I would not be awake at 0600, and ten feet off wouldn't really catch my eye if you were there when I was. If you MADE yourself noticeable by staying there all day and returning day after day, and/or setting up camp, or loud noises or bothering people --- yes, I would inform you this is private property and you need to do this somewhere else. The key here is, are you making yourself a nuisance or presenting your presence in such a way that suggests you are "occupying" my property obnoxiously. And no, you don't have "Customary Use" --- you have CONSENT.

This is a core legal problem with custom vs. public trust. You and the residents of Walton county may have some degree of claim of custom on a parcel - what does not transfer is that into a public easement. This is why there are 7 criteria of custom - one of them being "certain persons".

I understand what fee simple means but will concede I am not anything approaching an expert on it. As you point out, "property rights are absolute unless limited by law." I completely agree. But the important part is "unless limited by law." The concept of customary use where established by sufficient evidence has been the law in Florida since 1974. Therefore, where the elements are met, customary use is an instance where "absolute" property rights are "limited by law." Right?

On use, you say random non-owners have occasionally used the parcel (sometimes with your knowledge and sometimes without). "That's a given." You say that the public hasn't used it. Where do we draw the line between the public and random "non-owners?" I mean if different "random" people have engaged in recreational use of your dry sand and they do it frequently, that starts to sound a bit like continuous, notorious, public use to me. I mean they are not hiding their use right? And we are not talking about a 2,000 acre parcel where you may not even know people are there. These are all issues that would need to be resolved in any litigation over customary use.

I don't expect we will agree on these points but I appreciate your willingness to discuss them.