STUDY OF THE EFFECT OF SHORELINE AND CHANNEL GEOMETRY ON THE DIVISION OF RIPARIAN RIGHTS h report to the Florida Department of Natural Resources under contract #€3507 to the Department of Civil Engineering University of Florida, Gainesville, 32612 By David W. Cibson associate Professor and Program Director sury a: Mapping Department Engineering December, 1986TABLE OF CONTENTS Introduction The Problem ......---4+5+ History of the Problem .. purpose of this Study and Report ..- review of Existing Bllocation Methods In General ...eeeeee Apportionment of Tidal Flats ..- ons along River onments of Lakes .... Ploride's ¥ y of Riparian Righ Hayes v. Bowman . The Right to View The Right of Ingress and Egress .. Methods of the Corps of Engineers ......Page conclusions from the Literature Search .-.++-++++ 34 : Recommended Procedures and Water Body Classifications... 37 Summary -seeeeee sees seers ce 42 Figures ..- pondob0e0cseqcs" ceeeeee 46 List of References -..--+++eeereee wee 44 LIST OF FIGURES FIGURE 1 Boca Ciega Bay Showing Brightwater Beach Estates 2 MNep of Boca Ciega Bay ‘to 2 Smaller Scale } FIGURE 3 Plot of Brightwater Beach Estetes FIGURE 4 Sketch of Bowman's Proposal Extension FIGURE § A Typicel Shoreline =INTRODUCTION | The Problem Locating riparian rights in sovereign waters has always presented geometric problems of construction, as reflected in a considerable diversity of court opinions. This in turn has caused concern for Florida's Department of Natural Resources jn that agency's mission of managing state lands which include sovereign submerged lands. With increasing use of Florida's coastal areas, potential problems are quite numerous, and financial impacts are indeed great if @ marine dock or lease impinges on the riparian rights of @ nearby pland owner. Geometric considerations create an infinite variety of situations that need allocations. Parcels could front on the open ocean, an ocean bay, @ lake, an estuary stream, OF @ flowing frewshwater stream. The shoreline geometry is primary concern and may be generally str ight, a shallow cove, 2 deep cove, or pocked with numerous indentations and projections. The existence of a navigation channel wii) affect methods of division. When taken in total, the possible combinations are great and that hes apparently boggled the minds of numerous courts that ave attempted adoption of general rules. Further complication is caused by individualcharacteristics of various riparian rights. Whereas riparian rights are often lumped into @ single group for allocation purposes, these rights are actually @ bundle of individual priveledges attached to parcels fronting on water bodies. The right to new lands formed by accretions or relictions, the right to view, the right to access to the navigation channel, the right of access to navigable waters (docking), and the right to fill have also been individually recognized by courts in Florida as well as in other jurisdictions across the nation resulting in increased complexity of the issue It is apparent from study of the found literature that one court deciding @ right to view case may establish a method that a second court hearing an accretion case will attempt to al ly. Ané many times, these methods are all lumped into the general subject of “apport: onment of riparian one technique will apply to ell the riparian rights. With Florida's statehood, in 1845 the te became custodian of sovereign lands, including submerged lands of navigable water ways. In early years, the preponderance of | water created problems for those interested "developing" | Florida into an attractive environment for residence end commerce. To promote development, prevalent early policies of the state supported efforts to drain the swamps, and bulkhead the margins of the bays. Some submerged land was s014 to reise cash and support development. Throughout the page 4v.S., florida was viewed as a reptile-infested swamp not fit. for residence. The land speculation boom of the 20's heightened efforts to Lift Florida's "tropical paradise" image in the eyes of lang buyers. Florida's legislature helped by passing laws to expand riparian rights and permit filling and bulkheading as a means of decreasing the coastal thicket of vegetation, reducing mosquito and reptile populations, creating panoramic views of water bodies, and providing access to deep water for navigation purposes. With the crash of Florida's land boom, activity Giminished until post-war years when economic recovery egain fueled coastel development. in the 1950's and 60'S, expanded % ights to fill and bulkhead were explo a by developers to create new land out of @ swamp or coastal margin. Long peninsulas extended new land into ocean bays and waterways iglands connected by causeways were created for @ multitude of reasons. puring this period, title to sovereign lands resided in the Internal Improvement Trust Fund lorida. The governor and cabinet sat as Trustees and created numerous laws ané administrative policies regulating disposition and regulation of submerged land sales, éredge and £i11 permits, approval of coast] structures such as private docks and marinas built on state lands, and submerged land leases. In all these activities, there was need to recognize the jocetion of riparian rights of upland owners so that state activity did not’injure these rights. It is & uniauesituation whereby the state has ownership of submerged lands, put private individuals also have certain uses granted by common law. Conflicts between the state's interests and those of waterfront private owners have occured frequently. ue to environmental concerns, bulkheading and filling was virtually stopped by the early seventies. State laws have been revised to reflect @ near-complete turnaround in resarés to official attitudes toward coastal development But the state is still left with problems created by previous policies. In addition, marine environment protection must Pe considered in its leasing and dock approval programs, When coupled with increased waterfront property vaiues, there is an increasing occurance of problems wherein the state needs to know @ precise location of private riparian rights so as to effectively regulate activities. this Study and Report. this research is intended to analyze existing methods for making allocations of riperian rights together with @ study of Gifferent shoreline configurations resulting in e set of recommended procedures to be followed so as to maintein legal validity. Following receipt of contract documents in January, pac, a literature search was begun in an attempt to find pertinent materials on the subject of allocation of riparian rights. The search consisteé of library work, competes searches, interviews, research in the archives, and mailquestionaires sent to local jurisdictions. Found materials have since been analyzed, and there has resulted a general understanding of the larger aspects of the problem as well as a detailed appreciation of the great geometric difficulties encountered in riparian rights allocation. To help resolve the issue, a classification scheme has been devised for waterbodies, shorelines, and channels. Standards have been developed to aid in classification. Alternate allocation methods have been identified for the various types of geometries. A “best fit" method has been proposed for all water bodies. Tr report presents the final project results. ‘Two copies of the literature search were delivered previously. NG ALLOCATION METHODS Allocation methods can be classified several ways: (1 by the type of water body, (2) by the riparian right being allocated, or (3) by the configuration of shore Water bodies could be (1) open ocean, (2) ocean bays (3) navigable rivers, (4) non-navigable streams, or (5) lakes. When classified according to riparian right, a major division is made between those techniques that (1) apportion new lands formed along the margin of a water body or (28 those that divide the water space itself. New lands may be formed by accretion or reliction and must be divided among upland owners in an equitable fashion. A considerable amount of literature has developed on this issve, particularly in the case of aried lake beds, oz abandoned river channels. Techniques of this type are relatively Gefinite in that methods are well known, and their application will usually leaé to an acceptable solution Rights that apportion the water space itself include (1 the right to tidal flats between high and low water marks (recognized in some jurisdictions), (2) the right ingress and egress for access to navigable water (Gocking and wharfing), (3) the right of direct access to the main navigation channel, (4) the right of view (recognized in Floziéa, and the notorious (5) right to fill. For each right, a different con: ation of equity may exist, so that in concept each right could have its own allocation method. Others have recognized wnigue treatment cf the right to dock within case law separate from techniques for the aggregation of remaining riparian rights. (clark, another useful classification for ellocation methods pertains to whether (1) the near shore is being divided or (2) the entire water body is being divided. The right to Gock generally stops at @ depth of weter suitable for navigation which is usually close to shore. Division of tidal flats is usually @ near-shore problem es is allocation small accretions and relictions. But in other amstances, the entire water body must be divided todetermine equity in allocation of dried lake beds, dividing the right to fill (prior to 1970 in Florida), and determining the right of direct access to the navigation channel. Methods may also be arranged according to the shore's shape, channel proximity, channel shape, and water body geometry. Shores may be either straight, gently curving, on a shallow cove (slight indentation), a deep cove (major indentation), or contain numerous small pockets and projections. A channel may affect riparian rights if nearby, but would have little effect if far away. The channel itself may be straight or curved. On rivers, the stream's thread takes the place of a channel for apportionment problems Water bodies could be infinite in size (ocean), round (lakes), oblong (lakes), linear in shape (rivers) with parallel margins, or open bays or coves off of a larger water body. To focus attention, it must be recognized that the need to apportion an entire water body is remote in Florida. Most problems of concern are on tidal water bodies or on lake margins where the ne: shore problems of docking and marinas create the allocation need. The right to fill requires @ a look at an entire water body because of the chance that it may be filled by numerous different owners, but today filling is no longer a viable consideration. To be more particular, the right to dock and the right to view are creating the mejor conflicts. This research and report has thusly concentrated in that area of concern with @ look at inter-relationships with apportionment of new lands.Apportionment of Tidal Flats. Riparian rights allocations of tidal flats in colonial America are described in several references (Angel, 1826) , 1969) (Brown, 1969), and due to the (angel, 1856) (Pranke: early period in U.S. history, these techniques have been @ consideration of many cases in all jurisdictions. The body of law in Maine and Massachusettes relating to seashores is derived from the colonial ordinance of 1647, not solely from the common law of England (Frankel). It was adopted as a result of a struggle between the colonists the mother country England in which the colonials asserted their right to control lands and waters of the colony. The ordinance provided that the upland proprietor shall have ownership cf tidal flats to the low water mark or to 2 line 100 rods from high water whichever is closer. However, the owner cannot hinder passage of boats through sea creeks oF coves to other men's lands. No reference wes made to the particular issue of docking or to the extension of riparian rights into the water body itself past low water. With this es a bese, case law developed in that region in the 1700's and 1800's that further refined methods of apportioning tidal flats. Many features of that law seem to have formed the base for other decisions throughout the country even for the more general issue of extending riparian rights into the water. Frankel enumerates salient points from numerous cases in pave 10Massachusettes and Maine (1) The intention of the ordinance was to give each owner the flats in front of his land, of equal width at low water as at high water. (2) The right is limited by the nearest channel from which the tide never ebbs. (3) The direction of the side lines on the flats is not governed by those on the upland (4) Where the shore is relatively straight, a line is to be drawn according to its general course at high water and the side lines of parcels shall extend at right angles with the shore line. (5) Around a headland (the reverse of a cove consisting of projection of lané into water), side lines diverge towaré low water. (6) In @ shallow cove with no navigation channel, @ base line may be run across the cove's mouth, and parallel lines constructed perpendicular with the base. (In this case, it ow refers to @ slight indentation is presumed of the shore.) (7) In a@ deep cove (presumed to be 2 deep indentation) & base line across the mouth is proportioned according to length of shore of eac! owner, ané straight lines converge from shore points to these proportional points on the bese (8) The direction of side lines in 2 covemay by the course of channels in, the vicin ty. (9) After passing the mouth of a cove, lines may diverge if necessary to preserve the proportions of 4estates. (10) An agreement between coterminous owners will govern the direction of lines. In addition, these specific methods are governed by the general concepts of equity: (2) Each upland owner is entitled to a fair (equitable) share of the flats. No owner can be deprived of access to the outer line regardless of the amount of frontage owned. (2) The rules are flexible, and no fixed rule can be 1aié down which may be applied to all cases. in each casey ionment aust be achieved. an equitable appor (3) Lines are to be run in the most direct course from high water to low water lines.& pivision of Riparian Rights on River Rivers deserve special treatment due to their linear form with generally parallel banks and nearby channel. > valuable annotation on this subject has been found (65 ALR 24 143), and important aspects will be summarized. General Principals. a riparian tract's frontage on the river controls the apportionment, not its acreage, upland configuration, oF girection of sidelines. There appears to be very little gisagreement here in all areas of this research- the general direction of the shore should be measured without regard to numerous indentations and projections. The question of how to "smooth" the shore will pe analyzed later. dines must be drawn from the bank to an outer line so that each parcel obtains an equitable share of the appurtenant erea of the river. No one can be cut from the “outer line" Rules are subject to variation in order to prevent an ineguity. Each owner shell have a proportionate share of the tine of navigability, where the weter first becomes navigable. considerable confusion has been caused by confounding things quite dissimilar such as in the application of methods tor lakes without @ thread to rivers that have a definite linear form.Usually division lines are straight from inner to outer line. Only one case indicated a required bend in @ division line. Where the shore is straight, run out at right angles with the general course of the shore. Another court held that lines should be produced at right angles with the thread (outer line) back to shore points. The apportioned water surface should be as directly as possible in front of the upland parcel. There is a minor number of cases that have extended upland boundaries, but mainly in the case where seciton lines are crossing rivers. The actual shore line should be used instead of @ meander line. Riparian lines can be fixed by agreement, specifications in deeds and plats, and by acquiescence. Perpendicular projection methods are most often applied where the shore is reasonably straight. the base line from which @ perpendicular is constructed may be either (1) the thread of the river, (2) the general course of the river, (3) the channel line, (4) the official pierhead, bulkhead, or harbor line, (5) the line navigability, or (6) the shore. | perpendiculars with the Threa! the thread of a stream is well known to be the division |line £ non-navigable streams, and therefore is also used in apportionment of riparian rights. Side lines are constructed to make right angles at the thread. Perpendiculars with the thread create inequities when the shore has a cove or indentation. Blso in navigable streams, the thread of the stream is often used as the outer line, and perpendiculars are constructed to it, especially in Michigan, but also in many jurisdictions. This technique appears to be dominant nationwide. The “normal to the thread” rule was not applied to @ river 3-4 miles in width. Special technigues must be used where @ division is located at the confluence of two streams. The cases holding normals to the “course of the are actually proposing the same techniques as in the to thread." Perpen iculars are noted es giving the shortest and most direct access to the streal erpendiculars to the Channel A few cases have used the channel line for constructing perpendiculars. in Plorida, @ string of decisions have held “normal with channel" due to wording in the 1856 and 1921 state statutes (with the latter being known as the Butle: extended the right of wharfing and filling to the nearestedge of the channel. Dividing lines perpendicular with the channel provide the nearest access. Rhode Island is the onlyother state with a s decision. perpendiculars with Established Lines. in some localities officials have for some reason established a line in the water such as a “harbor line" (presumed to be established by a harbor master es a limit within which the water surface must be entirely clear for navigation) or “pierhead line” (a set line that limits the right to wherf), 1). Where or “bulkhead line" (a set limit of the right to these lines exist, they ahve been occasionally used as # base Zor constructing perpendiculars. Where the river is 2 to 3 miles wide, an established pierheaé line was used as evidence of a line of navigabi proportioning an outer line is not suitable in some cases because it would involve adjusting lines of those not ting perpendiculers at as party to the suit at hand whi an established line does not involve other prope?ties Rhode Island has had 2 sequence of cases in which normals were constructed with a "harbor line". Pilling appears to have been a significant factor in the decisions. In fact channel line and harbor line appear to be used interchangeably.This technique is mainly applieé to apportioning the near-shore wharfage area on navigable streams when the bank is relatively straight so that no one would have an inequitable share of the outer line, the line of navigability. Decisions have been held this way in Oregon, California, Louisana, Maryland, New Jersey, New York, North Carolina, Ohio, vennsylvania, South Carolina, and Virginia. rojection as Nearly ané practicable in the Channel's Direction. Florida's supreme court case Hayes v. Bowman held that there is no mathematical construction to be epplied, but that each riparian owner shail exercize the rights of view and channel access over an area as near "as practicable" in the Girection of the channel. The court could not define the arez with mathematical exactitude. or Channels. bg oporti on Curvine Shores When the shore or channel is curving, the usual method is to give each owner a proportionate share of the outer line which mey be the channel, thread, or the line of deep water. on @ sweeping curve of 2 large river, proportionate allocation will be achieved by constructing normals with the shore. ods of apportionment are similar to those used inearly colonial times for tidal flats in Massachusettes. Rulings support porportionate methods in Massachusetter, Maryland, New York, Virginia, New Jersey, and Washington. The line of navigability is the most common outer line employed for apportionment. Division of Riparian Riohts on Lakes. Similar to the previous discussion on rivers, an excellent annotation (14 ALK 4th 1028) has been found n overview of principles held by courts nationwide on methods pertaining to lakes. Important aspects will be summarized. on lakes, rights to the water area are most correctly called “Littoral rights", but the general term "riparian rights” will be used herein. In General Where 2 lake shore line is substanially a straight line, project lines normal with the shore, but some cases imply that this division only applies from the shore to the line of navigability. on large navigable lakes, the line of navigability is apportioned in numerous cases. on circular lakes, the “pie method" may be appro} on long lakes, "a2 thread of the lake" may be employed Cases on apportionment of rivers, tide lands, accretions, andérelictions have frequently been cited bycourts hearing lake cases. one court applied the remedy of a 30 ft. buffer zone in which neither party could build a dock. The zone centered on the upland boundary extension. Central Point Extension The technique has been applied in Idaho, Minnesota, and South Dakota to cases in which the lake is substantially round, but cited cases pertained to division of new lands, not docking. When the length approaches about double the width, @ central point should not be used. In certain circumstances, exclusive littoral rights such 2s docking should not be apportioned by the center point method. e Lake's on long lakes, it may be considered a stream with @ center line or "thread". Division lines may be eonstructed At the lake ends, they converge to @ normal to the thread center-type point. Another case did not use the center point method at the ends, but apportioned @ single center line being the lake's longest diameter. Cited cases most often refer to division of new lands, not docking. Page 18For docking on a relatively straight shoreline, courts have held that lines should be constructed normal with the general line of the shore. This has been recognized in Idaho, Indiana, Washington, and Wisconsin. projection Bisecting Curved Shoreline. one court, when determining ownership of a jetty, determined a dividing line by bisecting the angle formed by the front lines of the two parties’ lots. This is similar the Maine method for tide lands. ity, Curved Shoreline. proportionate Division of the Line of Navigabil the exclusive use of the near-shore erea fo: Gocking, courts have extensively proportioned the deep water, Supporting cases were cited from i » and Washington. Michigan, Ohio, Wisco! In a Michigan docking case, the court apportioned a line Limits for the apportionment were found by of 15 Zt. dept besecting the two shores forming headlands at either end of the cove in question. one Michigan case apportioning fishing rights on a small bay within a larger bay of Lake Huron, developed two base lines, one across the large bay's mouth, and one across the headlands of ten small bay. Each was apportioned according to respective frontages, resulting in a bend in the total ‘y a aline. An Ohio case on wharfing, cited teh need for & proportioning of the outerline and settled on perpendiculars constructed at a breakwater extended back to shore as a reasonable apportioning method in that case A Wisconsin case (Northern Pine Land v. Bigelow apportioned the line of navigability and determined the total deep water line between headlands of the cove should be used. Another wisconsin case had particular difficulty in determining which set of points to use as the cove's limits Finding suitable termiral points appears to be av ery critical aspect of this technique. one cse in Washington did not approve of apportioning @ line of navigability. When using a line of @ ft. depth certain owenrs were left with as little as 6 ft. on the deep water line, and the judge ruled this to be ineguitable There was a navigation channel between the shore and the ft. depth line, and the judge apport oned it stating that gives adequate access to deep water. A Michigan case stated thet on large, deep navigable lakes, the center point or thread-of-the-lake methods should not be used because the lakes' deep water is not subject to exclusive use by upland owners es the near-shore area is. tension of Upland Boundaries. Courts have extended upland boundaries when they intersect the shore approximately at right angles and the Page 20shore was relatively straight. = But in most eses, that method was not employed. Apportionment of Entire Lake Area Michigan has had a string of cases in which the entire lake area is to be apportioned for ice harvesting, or due to drastic reliction. In general, the water area is divided proportion to frontage. In one case, the judge ruled that dividing lines should only be used only in the near-shore area, and that the center of the lake could be apportioned in any manner, but areas of division should be in proportion to frontage. There appears a distinction made when the entire lake is | subject to "appropriation" by the upland owners, as opposed to the large, deep lake that will never have its entire surface subject to private riparian rights. Page 21FLORIDA'S HISTORY OF RIPARIAN RIGHTS ALLOCATIONS Florida's position among the other states appears to be somewhat unigue due to the dominating influence of state statutes granting riparian owners title under stated conditions of submerged lands out to the channel's edge along rivers, ocean bays, and harbors. Freshwater lakes were excluded. The Riparian Act of 1856 promoted commerce by granting the right to build docks and fill from the shore to channel (Visdez,1970). Prom the preamble wording, it is clear thi commerce was the overriding factor, and that state ownersh of submerged lands presented an obstacle. "Whereas, it is for the benefit of commerce that wharves be built and warehouses created # x facilitating the landing and storage of goods; ang whereas, the State being the proprietor of all submerged lands and water priveleges within its boundaries, which prevents the riparian owners irom improving their water lots,....+." (Maloney, 1968). As to methods of allocation for the grant, the s gives references to the channel in, "..civing them (riparian owners) the ull right and privilege to build wharves into streams or waters of the bay or harbor as far as may be necessary to affect the purposes described, and to fill up from the shore, bank or beach as far as may be desired, not obstructing the channel, but leaving full space for the ements of commerce addition, the grant gave 22the right for riparian owners to prevent encroachments "...of any other person upon all such submerged land in the direction of their lines continued to the channel...". This second wording implies an extension of upland boundaries. In 1911, confusion surfaced in court (Merrill-Stevens Co. vs Durkee) where owners along the St. Johns River were disputing ownership of a row of pilings. The court found that the proper division line should not be an extension of vpland boundaries, but should run "...at right angles from the ends of complainant's shore line to the edge of the channel." This decision went along with the national trend along rivers of apportioning rights by perpendiculars from the thread or channel, and it gave a judicial contsruction to the legislative wording of 1856. The "Butler Bill" wes enacted in 1921 (Visdez,1970) and confirmed the grant of 1856. Perhaps in reaction to uncertainties on allocations, the 192] act inserted additional wording concerning the direc’ lines, "...the grant herein made shall apply to and a only those submerged lands which have been, or may hereafter, actuelly be bulkheaded, filled in, or permanently improved, continvously, from high water mark in the direction channel, or as near in the direction of the channel as practicable to equitably distribute the submerged lands..." This woréing did not state specific directions. If the act had used the term "as near as possible", a minim @istance path along a perpendicular constructed at the channel would be called for. But "as near as practicable”implies that lines should run along the minimum length path unless an inequitable solution results, and in that case, lines should stay as perpendicular with the channel as possible to achieve an eguitable solution. Lakes and bathing beaches were excluded Prior to the Butler Bill, the Trustees of the Internal Improvement Trust Fund were granted authority to sell certain shallow submerged lands and islands as they saw fit (Maloney, 1968). Florida's trust fund was created to hold the les to certain state lands such as swamp and overflowed lands granted the state by the U. S. Government in 1850. Later, submerged lands that came to Florida by its sovereignty were sransfered to the fund under management of the Trustees, which were the governor and cabinet Lands bulkheaded and filled under the Butler Bill were cont med by the courts in the name of riparian owners. In 1942 the Trustees attempted to claim some resided on formerly submerged land, but the State Supreme ected title i Cou ; not the state % ps (Maloney, 1968). In the post-war years, there was an outbreak of bay fills for residential land development purposes and in an attempt to regain control of submerged lands, the legislature repealed the Butler Bill in 1951 (Maloney, 1968). Title of all submer ed lands wes given to the Trustees, but riparian owners still had the right to fill es long as the submerged lands were first purchased from the Trustees. Research has not disclosed the precise techniques used g a °by the Trustees to allocate the right to fill, but review of several sales indicate that if the upland lines were approaching the shore nearly at right angles, and if extended would intersect the channel close to perpendicular, then property lines were extended. Legislated procedures for submerged land sales required that a public notice be given before any sale. Additionally, the trustees were instructed to see that private riparian rights were not interfered with in the sale of submerged lands (Maloney, 1969). Apparently, if no adverse responses were received, the Trustees could have considerable discretion in the terms and geometry of @ sale. ayes v. Bowman. Perhaps the most commonly cited Florida case on riparian rights allocation is Haves v. Bowman, a 1957 Florida ion that confirmed the right of access to Supreme Court dec the channel and view in a direction "as near as practicable" in direction of the channel. During this period, the Butler Bill having been repealed in 1951, developers such as Bowman w active in building new developments on led lanaés placed on submerged property purchased from the state. Figure 1 depicts Boca Ciega Bay in Pinellas County south and west of downtown St. Petersburg. Figure 2 shows the same bay at a smaller scale. The land mass between the bay and gulf is Long Key, a typicel barrier island which in its naturel state had sandy beaches on its Gulf side and mangrove colonies on the bay. Quite apparent is theprevalence of waterfront that conforms to smooth geometrical form as a result of bulkbeading and filling. Of particular note are the three large peninsulas of land jutting into the bay from the east side of Long Key. Since the original shore line must have been a smooth arc cutting across the base of these peninsulas, it is obvious that they were built from material dredged from the bay bottom and placed behind bulkheads. The southernmost of the three largest peninsulas is named Brightwater Beach Estates. Its westerly portion that contains the three fingers was built in 1951 by J. Warren Bowman on submerged lands purchased from the Trustees according to the recorded plat shown in Figure 3. Warwick J. Bayes bought lot 11, block 3, @ Jot on the bay side of the last finger having a beautiful view across the bay. Bowman, upon finishing the first portion of Brightwater Beach Estates, proposed to extend the development toward the channel with a H-shaped addition as indicated in Figure 4 Evidently anticipating such e desire, Bowman had created "Lot A" on the plat. He had it deeded to himself, thereby retaining title and riparian rights in his name. | Furthermore, restrictive covenants were placed in the deeés to Hayes and other waterfront owners that restricted their right to fill. Hayes, the plai’ iff, objected to the proposed extension citing the loss of view and loss of direct access to the channel. Bowman modified the proposal so that just the main street area was extended without the cffending "H" Pace 26shape. Hayes still filed suit stating that even that extension deprived him of view and direct access. The trial court held for. Bowman, and Hayes appealed to the supreme court. Bowman argued that it is established that when the shore is straight, the division lines should be constructed perpendicular with the channel as in rivers. On the other hand, Hayes asserted that his lot lines should be extended for the riparian lines. Of the two arguments, the weight of case law in Florida and the nation called for some proportionate method as opposed to extending lot iines. In Geciding for Bowman, the high court relied heavily on @ survey map that constructed division lines perpendicular with the west channel line and extended them back to Hayes’ front let corners. in making such a division, the court was in line with the 1921 Butler Bill wording. It is interesting to note that many recent courts have cited Hayes v. Bowman but only the statement, "no geometric 1 cases", not the particular geometrical construction applied, or to the relative indicates importance of individual riparian rights. that the most important result of the case is that it reconfirms the courts! freedom to decide the broad question of eguity case by case. However, the position of administrative agencies is vastly different. Especially in the routine processing of dock permits and lease documents, there should be some rules of construction applied to individual cases in order to identify areas of concern. Thismay be done realizing that the court structure is still available to test the larger questions of overall equity. Since Hays v. Bowman, very little has changed in regards to court direction on riparian lines. Florida's legislature replaced the 1951 statute with the "Bulkhead Act of 1957" which limited the right to fill to a specific line called the bulkhead line. In 1967 this act was modified to require an ecological stuéy, ané in 1970 the Trustees closed down all sale of submerged lands (Visdez,1970). Many of the Trustees’ functions were transfered to the newly created Department of Natural Resources in the seventies, and since then, that agency has been managing the public lands and related permitting functions. The Right to View. Several comments should be made about the importance of Hayes v. Bowman. Firstly the right of view was @ major consideration. Since Florida is perhaps the only state that recognizes view as a @ riparian right, but it is considered as secondary to primary rights sucn as ingress and egress (Maloney, 1968). The two Florida cases that have confirmed view, Theisen v. Guif F. 6 B. Ry. and Haves v Bowman have both implieé that it is of secondary importance to other riparian considerations.’ More importantly, the Florida courts have on three occasions denied relief for loss view when direct access to the water was not materially affected by the offending structure (Maloney, 1968). In Freed v. Miami Beach Pier Corp, Florida's high court Dane OFpermitted a municipal pier build at an angle with shore on the extension of lot lines to stay only becasue of the time Geley before suit way filed. In the decision, Chief Justice Whitfield stated that on straight coast lines, riparian rights are measured perpendicular with the shore, and if suit had been brought earlier in the construction process, an injunction would have ben issued Bowman's attorney, in a filed brief of reply (Bsteva, 1955), outlined a summary of the right of view's subordinate nature: "It seems elementary to point out that to grant a reparian owner an unrestricted right of view across the waters in all directions must necessarily destroy all rights lling, for any £ of Gredging and fi ing will of necessity impeir the existing panorama. "...To grant a riparian owner such an unrestricted right of view would, of course thwart the purposes of Chapter 271.01 F.S.A., which has been stated by this Supreme Court - most recently in the case of Daval Engineer and Constructrion Company v. Sales 77 So. 24 431 - that the purposes of this act was 'to encourage the Gevelopment of land and the improvement of the foreshore in the interest of commerce and navigation'". The court's thinking wes apparently dominated by consigerations of dredging and filling, and it made the Gecision on those grounds, in light of the possibility that all waterfront owners mey some day £il1 out to the channel's edge. The right of view wes merely "tacked on" to lie in the same corridor. Today, the main conflict is fought between the right ofingress and egress to navigable waters (docking) and the right to view. Once again, the former right is of primary economic concern to riparian owners, and in the event of dispute would probably prevail over view if Hayes v. Bowman thinking were applied. Indications of this trend were exhibited in a 1980 dispute between a marina owner and an adjoining land owner. Even though the marina docks were found by the Trustees to be violating riparian rights division lines, it was pointed out that the complaintant covlé still gain access to navigable waters, and the docks still stand todey, even though boats are not permitted dockage on one side of the docks. Whereas filling was dominant in the days of Hayes v. Bowman, and authorities had to consider apportionment of the entire submerged land out to the channel's edge, tcday's conflict between docking and view is 2 near-shore problen. If the right of view were preserved over the same area as docking priviledges, then there is little or no chance today that view will be cur The Right of Ingress and Egress. Florida has recognized since 1856 the need for riparian owners to get boats from shore to channel for navigation. This right has been generally termed ingress and egress In the early days of pioneer Florida, owners of properties fronting on ocean bays such es the Indian River were growers and thusly shipped products and supplies over the waterways which were the main transportation arteries of Pace 29the Gay. The sidewheel steamboat or sailboat were prevalent in that time, and they needed water of perhaps 8 ft deep for navigation. These larger boats could not reach shore, so materials were loaded into smaller boats for transfer to shore. To avoid this costly process, owners could build a dock or a filled wharf across the shallows out to the edge o the channel so that the large boat could merely tie up and discharge its cargo. The 1856 statute encouraged this to be done by granting title to the shallows out to the channel. This right was eventually transformed into the right of filling for residential purposes as previously discussed wherein the occupants of a bulkheaded residential lot no longer shipped by water. The water in front of the bulkhead was usually deep enough for the boats used in recreational boating, sailing, and perhaps fishing. Developers often dredged a deeper channel from the bulkheaded lots out to the channel es a navigational convenience. Today, the dredging of new channels and the filling and bulkheading of lots is past. The waterfront owner apparently hes two distinct rights emerging in the area of ingress and egress (1) the right of access to navigable waters, and (2) the right of direct access to the channel. The first deals with the need to get to water deep enough for navigation, perhaps four feet for typical recreational boats. At bulkheaded lots, this right is often satisfied with a mere marginel dock due to the deep water immediately in front of the bulkhead. At other properties, & dock must be built over the shallows out to the proper depth. Page 30The second right, that of direct access to the chan was the immediate subject of Hayes v. Bowman. It is presumed h the demise of that this right still operates today, but filling, it is difficult to see how disputes can arise. Once a riparian owner has @ dock built to navigable water, then the remaining expanse of open water provides many choices of @irection to reach a main navigational channel. The right of direct access is there if the boater whishes to exercize it, but other boaters may be using the same open water surface. ght is non-exclusive, whereas Therefore, this second this research finds the first one to be usually viewed exclusive in the name of the riparian owner. In Ferry Pass y. White River Inspectors’ ang Inspectors' & Shippers' Ass! Shippers' Ass'n 58 So. 25 (1912) Chief Justice Whitfield of Florida's Supreme Court, one acknowledged for writing much of the high court decisions on riparian rights, wrot Phe right of access to the waters from the riparian be exclusive in the owner of such lands may in gener: lands, but as to the use of the navigable waters and the lands thereunder including the shore, the rights riparian owners and of others of the public are concurrent, ané subject to applicable rules of law." This gives further credence to the view that today’s siparian rights are generally near-shore problems thet should be dealt with in a near-shore solution.METHODS OF THE CORPS OF ENGINEERS under several federal statutes, namely Section 1049 of the River and Harbor Act of 1890, and Section 404 of the Clean Water Act, the Corps of Engineers is authorized to regulate coastal waters (Heimer, 1986). In their dock approval process, these statutes authorize inspection of several listed factors such as navigation, water quality, economics, and property ownership considerations. Historically, the protection of coastal areas for navigation comprised the Corps main involvement. All coastal structures have been permitted after a determination of whether navigation would be hindered. More recently, issues of water quelity have been receiving more attention in the permitting process. In regards to property ownership considerations, the Corps are not concerned as much with the precise location of of access to the wat individ In essence, if the permitting process absolutely deprived someone rom access to the water, then it becomes a taking tute actions to recover issue where riparian owners can inst rights that have been denied. The goal is to find some way that the owner can access navigable water and the channel without hindering federal interests. not be In © intracoastal waterway, docks permitted closer than 100 ft from the nearest bottom edge o: the channel, unless in it is a 5 ft marginal pier.on water bodies not a part of a federal navigation project such as rivers, individual structures should not occupy more than 25¢ of the waterway's width, so that at least 50 % of the waterway will remain open. Of course comments received from surrounding owners through the public notice process are also considered. Corps permits are divided into two types, regional and individual, and each of these has two forms making a total of four types of permits available. Regional permits are classified into (1) nationwide permits and (2) general permits. Twenty six nationwide permits have been issued for certain activities and the Jacksonville processes about 1600 applications per year in that category. General permits are issued by the Jacksonville district for certain areas and approximately 2000 applications are processed each year in this category. If a proposed structure is within the area that a general permit covers, s needed. Gener: it number SAJ- then no further permit pe: 20 covers private single-family piers in Florida. Docks for residential uses are permitted to be built to a depth of 4 £t (presumed from mean low water). ts are either (3) letters of permission Individual perm for minor projects or (4) full individual permits for major projects. About 400 letters of permission are issued each year and nearly 1000 individual permits are considered. In total, the Jacksonville district processes about 5000 permits per year.CONCLUSIONS FROM LITERATURE SEARCH From the preceeding discussions, certain guiding principles can be digested in regard to shoreline and channel geometry and the associated riparian rights for various water | bodies. (1) Docking is a near-shore consideration and is limited by the line of deep water (line of navigability, or line of navigation). The great weight of research indicates that when docking is the primary issue, courts will usually apportion the space between the shore and the line of navigability. Hays v Bowman was not a docking case, it dealt primarily with the right to fill. (2) In considering docking when the shore is relatively straight on a large body of water (one without a nearby channel or thread) such as the ocean, a large lake, ocean bay, or wide river, the dominant construction makes division the shore lines perpendicular with the general direction extended to the line of navigable water the opposite bank, channi In a wide river thread are so far away from the property in question, there is little effect of the shape of those features on & dockins localized problem o: gThe shore's general direction requires smoothing 0: smaller indentations and projections. (3) Along a straight river without a marked channel and the opposite bank is in proximity to the area of concern, the dominant technique is to construct dividing lines perpendicular with the stream's thread the stream's thread should be found as the median line of the water surface during ordinary stages of water height. Detailed mathematical technigues exist for finding threads of water bodies (Simpson, 1986). (4) Blong a river or other water body with a nearby marked navigation channel and a regular shore, most courts construct perpendiculars with the nearest limit of the channel as opposed to the thread It appears that the proximity of any established outer line will most likely be used by courts for the apportionment using perpendiculars if the shore is relatively streight. (5) The direction of upland boundaries is largely there is 2 ignoreé when apportioning riperian rights, but i minor deviation in direcection from that recommended for riparian rights division, they may be extended This recognizes thet extension of upland boundaries is still the most natural method for riparian rights allocation, and thet in some cases, minor variations from the perfect @irection will not cause ineguities.(6) When the shore is irregular in the form of a cove or projection into an ocean, ocean bay, lake, or river, most courts apportion the line of deep water to divide docking rights as opposed to any perpendicular method. The shore in Hayes v. Bowman was relatively straight and the channel was relatively parallel , and therefore there was not opportunity for that court to consider the line of navigability approach (7) Methods of apportionment designed for the whole water body such as the center point method in lakes, thread of lakes, perpendiculars to channels or threads, should be used mainly for those riparian rights that reguire appropriation of the entire water surface They may also be used to determine direction but not the terminus of near-shore division lines when they give substantially the same apportionment as 2 near-shore method. This would be true in round lakes with concentric weter depth contour lines, along rivers with parallel banks and parallel channel, and along long lakes with consistent water depth contours. (8) Riparian rights may conflict with each other, and an order of priority is implied in court decisions. The right to view has not been ranked very high in Florida case law, and usually resides in the same area of a more dominant riparian right. Page 36This indicates that techniques should be developed for apportioning the near-shore right of ingress and egress to navigable waters as a primary riparian right. The right of view will occupy the same limits provided no obvious inequity results. (9) The apportionment of the line of deep water is the most universal technique for division of docking rights that will give the same solution as more traditional techniques in many cases and will follow dominant national case law where the shore is irregular. This technique is recommended for further development. RECOMMENDED PROCEDURES AND WATER BODY CLASSIFICATIONS In explaining allocation procedures, reference will be made to Figure which was constructed rather at random to ries. It is presumed that show numerous cases of water bound the main considerations are docking, view, and access to navigation channels. Lots surrounding the water show 2 typical pattern in which a series of lots with parallel lines is created along a relatively straight portion of shore. Another group of lots further along the shore having parallel es will meet the first subdivision creating an odd sized lot that is a prime candidate for a riparian rights dispute. Along the river from the south upstream from point "a",By the body would be classified firstly as being a narrow stream where the opposite bank is of a consideration, and secondly as having parallel banks without coves and projectons. There are two distinct regions identified, (1) a broad sweeping curve, and (2) a relatively straight section | The main technique to be applied here is the “perpendicular with the stream's thread" method. The banks | being the limit of water at its ordinary stage would be determined. A median line would be constructed exactly midway between the banks. Perpendiculars would be constructed at the thread and produced back to the shore points. Private docking rights would stop at the line of deep water. On the broad curve, the thread would be an arc, and normals with that thread would essentially be radial lines. On the straight section, and in the series of small curves approaching point , the thread would be a series of straight lines. Immediately before point "a" the shallow cove on the east bank would be a consider tion. Assuming that the deep portion of river is all suitable for navigation, -then the thread would still be determined and perpendiculars constructed. Downstream of point "2", 2 maintained and marked channel exists that would take over from the thread for the apportionment base line. The channel probably has an east and west edge, and perpendiculars would be constructed at the nearest edge and run back to shore The deep cove on the ezst bank could be termed a pocket Page 38and would require special treatment. Inequities are obvious lot lines were extended, person "A" would be entirely cut off from navigable water and the channel. If the previous technique of perpendiculars from the channel were applied, then person "B" would receive nothing. Therefore, the line of navigability should be apportioned Finding the cove limits would be the critical decision The headlands of the cove would be identified as points "b" and "c", the places where the east river bank departs its generally parallel course and enters the cove. Points b' and c! would be established directly opposite shore points using perpendiculars with the line of navigability. Between b' and ne of navigability would be divided in proportion to frontange. Straight lines would run back to shore points. ioned. y The deep water portion of the cove would not be app Now, on the east side of the Ocean Bay, it is recognized that the shore and channel are diverging from each other. Since docking is a near-shore consideration, then a near- shore solution is called for. The choices here would be (1 project lot lines, (2) dividing lines perpendicular with the shore, or (3) proportional division of the line of navigability. The rather drastic dip in the shoreline at lot line "e" would cause some problems with the perpendicular method because it is to be used only when the shore is relatively straight. Once that problem area is identified, go each direction to places where the basic methods perpendicular with shore or ict line projection cause no problems, and between those points proportion the line ofdeep water. The deep water area out to the channel would not be apportioned. At the inlet, the proximity of the channel is an important consideration, and perpendiculars would be dropped from it such as at point "a". The large cove on the north side of the bay calls for apportioning the line of navigability. Again, the main question would be determining the apportionment limits. There is a well defined headland on the cove's west end at "h", but on the east side, the cove's beginning is not so well defined. As a guideline for thought, there is no use apportioning lots on which a more basic method works, therefore start at the point of greatest ineguity, point "i" in this case, and go in each direction until straight line projections will intersect the line of navigability at nearly right an S well clear of the problem area such as at "3" in this case. Apportionment between "h" and "3" will give each owner @ portion of the line of deep weter for constructing a dock. A problem is found for the lot at point "i". Due to small frontage, that lot will receive e very small portion of Geep water frontage, perhaps not enough to build a dock on without conflict with the aéjoiners. Reasearch has not found cases that have spoken to this situation in particular, so future considerations may be made here. The west side of the bay duplicates situations already @iscussed until the small non-navigable cove is reached at "k". Apportionment of the line of navigability would give Page 40a) the lot at "k" practically no deep water frontage. At this point some severe questions arise. Perhaps the owners around that marshy cove do not have the right of ingress and egress to navigable waters. Apportionment of the right of access to the non-navigable waters would be an easy matter of using the center-of-a-lake in conjunction with the thread-of-a-lake as done for long lakes. However, to solve this question, several jegal questions would need addressing outside of the scope of this report. At point "1", the channel becomes proximate, and Perpendiculars with the channel would be used along the west river bank until that ine was replaced with the thread upstream of "a". ' The freshwater lake has numerous docking problems due to upland boundary configuri ‘tions. Two approaches are possible. The m traditional one would establish center points in the semi-circular lake ends together with a thread midway between the banks as shown. Around the lake ends lines would radiate from center points to shore points, and long the. thread perpendiculars would be constructed and run back to sh points, However, such a division will proguce an inequity at the cove on the west side for the lot at "s". Joining the lot corners with the center point will yield 2 slim region of access to deep water. Therefore, on irreguler lakes such as this one, apportioning the line of navigability would solve the cove problems. Places are identi ied where mere extension of lot lines intersect the deep water ne at rightangles, such as at * 1 "0", "pT, “cM, and "rm. Between those limits, the line of navigability would be proportioned to shore frontage. Such a technique localizes a solution to the precise area of ineguity. It must be mentioned that the size of the lake determines whether 2 "whole lake apportionment" is used or a nei shore method applies. In this case, the lake would be termed a smaller style lake in which the threads and center points are not completely remote to the near-shore situation. On larger lakes, apportioning the line of navigability should become dominant to solve the near-shore problems of docking. On the other hand, the lake is small h regular shoreline, the two.techniques give the same result. SUMMARY Riparian rights allocation requires a multitude o: considerations, but for docking, courts have usually turned to apportionment of @ line of navigability except where 2 nearby river thread or navigation channel will cell for a perpendicular construction. Even for the more regular water bodies such as rivers, round lakes, and pg lakes without shore indentations, apportioning the line o: navigability will give substantially the same results as other methods e water surf that apportion the en ce. It is believed that this technique could be applied with geometric certainty to the wide majority of situations with geometric certainty, and Gue to the near-shore characteristics of the docking process,@ near-shore solution such as this is most sui table. significant amount of national case law backs up the technique. Pace £3 Aa? LIST OF REFERENCES AND CASES Angel, Joseph K., 1826. A Treatise on the Right of Property in Tidewaters, Harrison Gray, Boston. Angel, Joseph X., 1956. A Treatise on the Right of Property in Tidewaters, Sth Ed., ittle Brown and Co., Boston. Annotation on apportionment and division of area of river as between riparian tracts fronting on the same bank, in absence ¢ agreement or specification, 65 ALR 24 143. Annotation on allocation of water space among lakefront owners absence of agreement or specification, 14 ALR 4th 1028. Brown, Curtis M., 1969. Boundary Control and Legal Principles, 2nd Ed., Wiley. Esteva, Henry 3., 19: Reply brief of Appellees, st. Petersburg. Frankel, Moses M., 1969. Law of Seashore Waters and Water Courses, Murrey Printing Company, Forge Villge, Mass. Ferry Pass Inspectors' & Shippers' Ass'n. v. White River (cont.) Page 44inspectors’ and Shippers' Ass'n., 1512, 58 So. 25. Freed v. Miami Beach Pier Corp, 1927. 93 Fla 888, 112 So. B41. Hayes v. Bowman, 1957. 91 So.2d 795. Heimer, Bert, 1986. Interview at the U. S. Corps of Engineers district office in Jacksonville. Maloney, Frank E.; Plager, Sheldon J.; and Baldwin Fletcher N., 1968. Water Law and Administration, the Florida Experience, University of Florida Press. Stevens Co. v. Durkee, 1911. 62 Fla 549, 57 So. 428. Simpson, James A., 1986. Toward a Simplified Medial Line Computation, Proceedings of the 1986 ASPRS - ACSM Fa: convention, Anchorage. Theisen v. Gulf F. & A. Ry., 1918, 75 Pla. 28, 78 So. 491. Visdez, Fred, 1970. Paper presented at Palm Beach Junior College, Lake Worth, Fl.Page 46 |“valaol4 "“ALNNOD SV114h ‘WOraIONVa SNAOL ‘2-NOILDAS ~H-101 Aha NAIAGO 40 Layd ¥ ONITG / SOLV.LSa Nova ULV LOT ¢ eySKETCH OF BOWMAN'S PROPOSAL EXTENSION FIGURE Page 49aa CO —— ALLOCATION OF RIPARIAN RIGHTS Si SNES N 5138 : \ - —"——-— MAINTAINED CHANNEL | DEEP WATER PAGE 7 ————— SHORE-MEAN HIGH WATER |