Walton County Customary Use in the News

[Lake View Too]

"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 clear dustfree air. Appearing constantly to change, it remains ever essentially the same.”

March 25, 1974
City of Daytona Beach v. Tona-Rama, Inc., 294 So.2d 73 (1974)

 

[Matt J]

Let's see how the next few summers go. My predictions:

Lower heads in beds, people have choices and if getting to the beach is going to be a hassle they'll go elsewhere.

The listings are already coming online for houses that don't confirm to the new rental regulations so lots of empty mega homes.

Eventually it will spill over into everything else and the complaints will start that things are closing.

 

[Laser Shark]

If CU supporters would just read and understand what they post about and not just react with emotion it would be clearer why Walton dismissed almost 1,100 of 1,194 private beachfront properties. Sorry for the length but lots of context.

Context. City of Daytona Beach v. Tona-Rama, Inc., 294 So.2d 73 (1974).
Tona-Rama, Inc. (beach amusement park owner too) was the plaintiff and petitioner. McMillan and Wright, Inc. (Space Needle beach amusement) was the defendant. The lower trial and appeal courts ruled for T-R had shown a prescriptive easement (not customary use of private property) on the McM beach space needle and had to remove the competing amusement ride.

The Florida Supreme Court (FSC) ruled AGAINST Tona-Roma prescriptive easement complaint (not a customary use case) against (for) McMillan & Wright. FSC injected on its own comment, suggestion, and observation (in an opinion that is not necessary to resolve the case, and as such, it is not legally binding on other courts).

The FSC T-R sited 1939 White v Hughes. First, White was struck by driver Hughes - “Atlantic Ocean between the high and low water marks”. On PUBLIC foreshore, between the State owned high and low water marks (wet sand), property - NOT private property. Second, FSC restated “The [lower] trial court instructed the jury that the public in using the beach for the purpose of bathing and recreation had "rights at least equal" to the rights of motorists on that part of the beach. This [lower trial court previous] instruction was held to be [in] error, the [lower] Court saying: There is probably no custom more universal ...” FSC stated this lower instruction about public right and vehicle rights on a beach “highway” were in error. Because FSC states the public have a superior right to vehicles on the State's beach highway; not use of private property. CONTEXT is key.

“The Sovereign state may in the interest of the general welfare authorize the beach or shore to be appropriately used as a public highway. And most of our Florida beaches, when the tide is out, afford marvelously perfect highways, ...”

White v Hughes. “For the above reasons we hold that the right of the public to use the beach for bathing and recreational purposes is superior to that of the motorists driving automobiles thereon." 190 So. 446, pp. 448-450.” Nothing about public customary use of private property.

After FSC rejects T-R prescriptive easement FSC recites Tiffany Real Property, (Third Edition), Vol. 3, § 935. Then states with no FL legal precedence (remember FSC is to interpret law, not make it) “If the recreational use of the sandy area adjacent to mean high tide has been [1] ancient, [2] reasonable, [3] without interruption and [4] free from dispute, such use, as a matter of custom, should not be interfered with by the owner.”

1912 Tiffany; The custom, to be valid, "must have continued from [1] time immemorial (not “ancient” which FSC did not define), [2] without interruption, and as of right; [3] it must be certain as to the place, and [4] as to the persons; and it [5] must be certain and [6] reasonable as to the subject matter or rights created.” That's 6 criteria, not 4.

FSC also discussed “rights of a partowner of a land-locked nonnavigable lake” too. Dicta, not law.
T-R vote was 2 Concurs, 2 Dissents, 1 Concurs in part and dissents in part; entering final judgment for defendant (McMillan) against T-R prescriptive easement. Not a resounding ruling for customary use of private property but did not reject CU out right leaving us with the legal mess we have today.

 

[BlueMtnBeachVagrant]

Some property owners may not have intervened in the lawsuit because they are fine with the public using the beach recreationally as has happened for many years.

Since you posted the news article titled "Court finds that Walton County has proved customary use on 95 beach parcels", I'll respond to your comment above as I assume you believe the county proved customary use on 95 properties even though those 95 parcels did not intervene. My contention is that the county DID NOT PROVE ANYTHING regarding customary use and the county prevailed only by default. That is my point.

So if one does not intervene, then it's ok for the government to confiscate your private property rights? You're making a BIG ASSUMPTION why some owners (max of 95 out of 1194 parcels) did not intervene... that they are ok with the public using their property.

Here are a few explanations of those who elected not to intervene:

1. Their parcel is located far enough away from a public access that the public cannot conveniently access it anyway. Why spend legal fees on something that in the end won't really change beach usage density on their property?

2. Some people have been owners of beach front property for many, many years. They got in "on the cheap" and don't necessarily have the funds to hire an attorney. On the other hand, you may have a relatively new beach front owner who is financially stretched with increasing insurance rates, taxes, etc. Or you may have an owner who knew they were going to sell and decided not to intervene since the results would not benefit them.

3. With all the somewhat effective hype that customary use has existed since "time immemorial", there were probably some who felt that they would lose the case and decided not to spend the money to fight what they perceived was a losing battle.

4. I'm confident that were some who were misguided as to if the county was to lose the customary use case, that they would somehow benefit without having to hire an attorney.

Fighting the county cost a lot of people a lot of money just to defend their private property rights. It cost us over $50,000 to defend our parcel.

So when you said, "Some property owners may not have intervened in the lawsuit because they are fine with the public using the beach recreationally as has happened for many years", you might be right for a very small few. But the other explanations are more likely.

 

[Laser Shark]

There are at least 4 of the 95 that claim that they receive title after December 2018 when the litigation was filed. Walton notified 2018 owners when litigation was filed. Walton never notified individual title holders (but could have-PA knows) after 2018 that their property was part of the Walton litigation. Post 2018 owners did not know about Walton’s litigation and summary judgment until after the order and notified of the summary judgement (SJ) and have made motions to void their property from the CU summary judgment because they were not afforded due process. Motions are, Walton named their parcels in the litigation but not the current title holder (after 2018) to defend their rights. A property "parcel" can not be a defendant in litigation. Walton has to notify an owner of the property to enable a due process legal defense, if they choose. No doubt that happened for all 95 since Walton ONLY named parcels in 2018 litigation; did not notify title holders after 2018. Wonder how many more "non-interveners" just don't know about the summary judgement and will make motions to void SJ? Will be interesting how judge rules on these motions and how that affects other 91 properties.

 

[leeboy]

Welcome to the thread with Buzzards descending on a beloved family member's funeral.

True colors flying.

 

[Matt J]

Private beachers explaining their position:

 

[Jimmy T]

Do the beach codes apply to the new "private" beaches? Is code enforcement even allowed on them?

 

[Lake View Too]

Do the beach codes apply to the new "private" beaches? Is code enforcement even allowed on them?

Good questions. What if someone was drowning in front of PRIVATE BEACH ? Can individuals walk past the orange cones to help save them?

 

[conch]

Since you posted the news article titled "Court finds that Walton County has proved customary use on 95 beach parcels", I'll respond to your comment above as I assume you believe the county proved customary use on 95 properties even though those 95 parcels did not intervene. My contention is that the county DID NOT PROVE ANYTHING regarding customary use and the county prevailed only by default. That is my point.

So if one does not intervene, then it's ok for the government to confiscate your private property rights? You're making a BIG ASSUMPTION why some owners (max of 95 out of 1194 parcels) did not intervene... that they are ok with the public using their property.

Here are a few explanations of those who elected not to intervene:

1. Their parcel is located far enough away from a public access that the public cannot conveniently access it anyway. Why spend legal fees on something that in the end won't really change beach usage density on their property?

2. Some people have been owners of beach front property for many, many years. They got in "on the cheap" and don't necessarily have the funds to hire an attorney. On the other hand, you may have a relatively new beach front owner who is financially stretched with increasing insurance rates, taxes, etc. Or you may have an owner who knew they were going to sell and decided not to intervene since the results would not benefit them.

3. With all the somewhat effective hype that customary use has existed since "time immemorial", there were probably some who felt that they would lose the case and decided not to spend the money to fight what they perceived was a losing battle.

4. I'm confident that were some who were misguided as to if the county was to lose the customary use case, that they would somehow benefit without having to hire an attorney.

Fighting the county cost a lot of people a lot of money just to defend their private property rights. It cost us over $50,000 to defend our parcel.

So when you said, "Some property owners may not have intervened in the lawsuit because they are fine with the public using the beach recreationally as has happened for many years", you might be right for a very small few. But the other explanations are more likely.

$50,000 to DEFEND your parcel ? You make it sound like a foreign army was going to land on YOUR beach and establish a fort. { Well that did happen a lot in past history}
The reality is you are "defending your parcel" from normal people, locals and tourist.

It must really bug you when you realize you financed both sides of the litigation.

Here is a FACT, our local economy is based almost exclusively on TOURISM.
IE, Families coming down to enjoy THE BEACH, and spend those vacation dollars
that keep our economic engine running. They don't want hassles, or drama, they just want to hang out on the beach by the water. If that becomes to much of a hassle,
then no tourist and no tourist money, no money no economy, no economy no jobs, well you get the picture.
I advise you, and all the other beach front owner fighting the county, to keep in the back of your mind the fact that YOUR beach could very easily GO AWAY in the next big hurricane to hit here.
It has happened many many times in the past, and will happen again.
Just check out some pictures of Mexico Beach after Michael, a short five years ago.