Gies v. FischerGies v. Fischer
The appellants challenge a decree of the Circuit Court for Pinellas County as a decision directly passing upon and sustaining the validity of Chapter 57-362, Laws of Florida, 1957,
From a consideration of all related provisions of the act, we conclude that the court properly construed the statutory language, ruled upon its validity as so construed, and disposed of the cause before it in accordance with those views.
Appellants’ preliminary contention is that
The objections to the decree upon constitutional grounds are necessarily premised upon a contention that the statute could not lawfully authorize the establishment of a bulkhead line, for any reason, upon submerged lands to which appellants hold title by deraignment from a duly confirmed conveyance from the trustees of the internal improvement fund to their predecessors.
We think, however, that the limitations of the act as construed place it squarely in line with the decisions defining the nature of the state‘s title in sovereignty lands in general, and the restrictions inherent in its powers of alienation.5 A conveyance of such lands will, of course, to the full extent of the grantor‘s power, vest in the purchaser the rights of use and control normally accompanying title, and the doctrine of estoppel, applied heretofore6 against the trustees in this field, may further bolster title to areas where fill operations have been accomplished. Even if, however, that doctrine should operate in the latter situation to cut off all residual public rights, or create a conclusive presumption that the public servitudes were not at the time impaired so as to require that any subsequent impairment be corrected only by exercise of the power of eminent domain, we find that in the circumstances of this case the doctrine cannot prevent enforcement of the controverted statute.
Under the rule of the cited cases there can be no doubt that in the absence of some overriding necessity a conveyance of public lands or rights in lands which actually results in the impairment of the public servitudes, referred to in the statute here involved, must fail. Tested by that principle, no rights lawfully vesting under previous conveyances will be infringed by a proper application of this legislation, and whether it is sustained as police regulation or an exercise of retained power under the trust doctrine governing sovereign lands, the decree appealed in this case should be affirmed.
It is so ordered.
ROBERTS, C.J., and TERRELL and HOBSON, JJ., concur.
THOMAS, J., dissents.
It is my view that the court should not assume jurisdiction of this cause. The order of the circuit judge to whom the landowners appealed from a decision of the Pinellas County Water and Navigation Control Authority was not final. It is true that the circuit judge held Chapter 57-362, Laws of Florida, Acts of 1957, constitutional but he remanded the cause to the Board for the establishment of a bulkhead line in accordance with his view that the line had to be fixed at a place beyond which filling of the land would interfere with commerce and navigation.
Therefore, when the cause gets back to the Authority for aught we know that body will fix the line at a location that will be acceptable to the parties who are now complaining.
Furthermore, there is no indication in the record that the bulkhead line as established by the Authority has ever been approved or disapproved by the Trustees of the Internal Improvement Fund. Under
It is my conclusion that the appearance here is premature.
In the light of the circuit judge‘s ruling, it would appear that any discussion of the constitutionality of the relevant act would amount only to an academic adventure.
I am constrained to dissent.
Notes
“(1) Subject to the formal approval of the trustees of the internal improvement trust fund, the board of county commissioners of each county or governing body of any municipality, after public hearing of which at least thirty days prior notice has been given by publication of such hearing for three consecutive weeks in a newspaper having general circulation in the county, are hereby authorized on their own initiative to locate and fix a bulkhead line or lines offshore from any existing lands or islands bordering on or being in the navigable waters of the county, as defined in § 253.12, within all or part of the territorial area of the county as the board of county commissioners in its discretion may determine, provided however that where any bulkhead line has been located and fixed by any municipality pursuant to statutory authority, such bulkhead line shall be accepted and adopted by the county commissioners of the county wherein such municipality is located as its bulkhead line within the territorial area of such municipality subject to the provisions of this chapter. Any bulkhead line when so fixed or ascertained and established shall represent the line beyond which a further extension creating or filling of land or islands outward into the waters of the county shall be deemed an interference with the servitude in favor of commerce and navigation with which the navigable waters of this state are inalienably impressed.”
“(1) Except submerged lands heretofore conveyed by deed or statute, and submerged lands in navigable fresh water lakes, rivers and streams, the title to all sovereignty tidal and submerged bottom lands, including all islands, sandbars, shallow banks and small islands made by the process of dredging of any channel by the United States government and similar or other islands, sandbars and shallow banks located in the navigable waters, which shall include all coastal and intracoastal waters, of the state, is vested in the trustees of the internal improvement trust fund. The trustees of the internal improvement trust fund may sell and convey such islands and submerged lands if not determined by the trustees to be contrary to the public interest upon such prices, terms and conditions as they see fit. * * *”