Riparian Rights in Florida: Docking and Wharfing

Ownership of waterfront property is particularly desirable in Florida and often involves unique real property considerations.  It is often difficult to distinguish where the private land rights cease and the sovereign land ownership begins.  As a result, a subset of real property law has emerged to address what is called “riparian rights.”  This blog post will discuss the rights of the riparian owner to construct a dock or wharf out to the navigable channel of submerged lands owned by the State.

Riparian rights include the rights of ingress, egress, docking, boating, bathing, fishing and even the right to an unobstructed view of the water.  Examples of situations that riparian rights address include: (1) the general use of water adjacent to property, (2) wharfing out to navigability in the channel, (3) actual access to navigable waters; and, (4) the right to accretions. Shore Village Property Owners’ Ass’n, Inc. v. State Dept. of Environmental Protection, 824 So.2d 208 (Fla. 4th DCA 2002). Walton Cnty. v. Stop the Beach Renourishment, Inc., 998 So.2d 1102, 1111 (Fla.2008), aff’d, Stop the Beach Renourishment, Inc. v. Fla. Dep’t of Envtl. Prot., 560 U.S. 702, 130 S.Ct. 2592, 177 L.Ed.2d 184 (2010).  Such rights inure to the owner of the upland; however, the actual land covered by the water is not owned by the upland owner.

As people began developing their waterfront property, docking rights became an area of dispute.  The construction of a dock does not vest the waterfront property owner with title in the submerged lands underneath the dock. Williams v. Guthrie, 137 So. 682 (1931). Docking is a near-shore consideration and is typically limited by the line of deep water (line of navigability).  The line of navigability is defined as that location off shore where the depth of water is sufficient for navigation.  Image if everyone was able to construct docks as long as they wanted.  The result would be a morass of docks that block the channel and impede water traffic.

The Florida Department of Environmental Protection has developed some considerations in “Estimating Riparian Rights Lines for Docks.”  This document provides good references and demonstrates docking rights as they are impacted by a bending coastline.  The first step in analyzing a riparian docking issue is to determine who owns the land upon which the dock is being constructed.  Is it privately owned land or land owned by the State of Florida.  Regardless, the body of law on docking in Florida is rather well developed.

Recently, the Second District Court of Appeals held there is a common law qualified riparian right or privilege to construct piers or wharves from the riparian owner’s land onto submerged land to the point of navigability but not beyond the low water line, subject to the superior and concurrent rights of the public and to applicable regulations. 5F, LLC v. Dresing, 142 So.3d 936 (Fla. 2d DCA 2014).  The issue in that case was whether the Dresings had a common law right to “wharf out” for construcing a dock or a pier on land owned by 5F, LLC, a private landowner. The Court analyzed the history of Florida Riparian Rights for docking or wharfing to the navigable channel, and what follows is largely a summary of that history and a discussion on many docking cases in Florida.

Under the common law of England the crown in its sovereign capacity held the title to the beds of navigable or tide waters, including the shore or the space between high and low water marks, in trust for the people of the realm who had rights of navigation, commerce, fishing, bathing, and other easements allowed by law in the waters. This rule of the common law was applicable in the English colonies of America.  See Dresing at 939.  After the Revolution resulting in the independence of the American states, title to the beds of all navigable waters, whether tide or fresh, was held by the states in which they were located, in trust for all the people of the states respectively.  Id. 940; see also Brickell v. Trammell, 77 Fla. 544, 82 So. 221, 226 (1919).

When Florida became a state, it was admitted “on equal footing with the original states.” Id.  That is, title to all submerged land in Florida rested with the State of Florida, and “[t]he shore or space between high and low water mark is a part of the bed of navigable waters, the title to which is in the state in trust for the public.” Ferry Pass Inspectors’ & Shippers’ Ass’n v. White’s River Inspectors’ & Shippers’ Ass’n, 48 So. 643, 644 (1909).  Riparian holders were defined, at common law, as “those who own land extending to [the] ordinary high-water mark of navigable waters.” Brickell, 82 So. at 227. And “[r]iparian rights are incident to the ownership of lands contiguous to and bordering on navigable waters.” Ferry Pass, 48 So. at 644.

As to a riparian owner’s right to build piers or wharves specifically, the Supreme Court has stated:

Subject to the superior rights of the public as to navigation and commerce, and to the concurrent rights of the public as to fishing and bathing and the like, a riparian owner may erect upon the bed and shores adjacent to his riparian holdings bath houses, wharves, or other structures to facilitate his business or pleasure; but these privileges are subject to the rights of the public to be enforced by proper public authority or by individuals who are specially and unlawfully injured. Id. at 645.

Further, “[t]he exclusive rights of a riparian owner are such as are necessary for the use and enjoyment of his abutting property and the business lawfully conducted thereon; and these rights may not be so exercised as to injure others in their lawful rights.” Id.

In Thiesen v. Gulf, Florida & Alabama Railway Co., 78 So. 491, 501 (1917), the Court considered whether riparian owners whose lots did not extend to the low water mark had the right to “wharf out”—“to construct wharves, docks, and piers”—beyond the low water mark “out into the bay to the channel” pursuant to the Riparian Act of 1856, as well as whether those riparian owners had a common law right to “wharf out” beyond the low water mark, “out into the bay to the channel.”  After determining that the Riparian Act of 1856 was inapplicable to Mr. Thiesen because his title did not include the land between the high water mark and the low water mark, the Court determined that the common law did not afford Mr. Thiesen the right to construct wharves “out into the bay to the channel” beyond the low water mark. Id.

Ten years after the Thiesen decision, the Supreme Court considered a dispute between adjacent riparian owners in Freed, 112 So. 841. There, a corporation constructed a pier that encroached upon the submerged land in front of Mr. and Mrs. Freed’s property. The submerged land was owned by the State. Since the pier was constructed pursuant to the proper authority and the Freeds were on notice of the construction but only took legal action after construction had begun and large sums of money had been expended, the Supreme Court denied the Freeds’ request for an injunction. Id. at 844–45. In ruling for the corporation, the Supreme Court, citing both Ferry Pass and Thiesen, recognized a “qualified right” to “erect wharves or piers or docks in front of the riparian holdings to facilitate access to and the use of the navigable waters, subject to lawful state regulation and to the dominant powers of Congress.” Id. (citations omitted).  The lesson learned in this case is that when an adjoining landowner begins construction of a dock, the neighboring land owner must act quickly in order to obtain an injunction to challenge the construction.

In Williams, a 1931 decision, the Supreme Court yet again confirmed the riparian right to erect piers and wharves, stating, “in this state riparian owners have the riparian right to construct wharves from the upland to reach the navigable water, when not objected to by the sovereign or specially forbidden by statute.” 137 So. at 685; see also Game & Fresh Water Fish Comm’n v. Lake Islands, Ltd., 407 So.2d 189, 191 (Fla.1981) (reaffirming the riparian rights set forth in Ferry Pass ); Adams v. Elliott, 128 Fla. 79, 174 So. 731, 733 (1937) (“Riparian or littoral upland owners may construct appropriate piers or whar[ves] over and across the beach to reach the water for authorized purposes….”), overruled on other grounds by Brown v. State, 237 So.2d 129 (Fla.1970). The riparian privilege or right is qualified not only by the necessity of obtaining a license from the State but by the predominant rights of the public in navigable waters such that “even when the title [to submerged lands] is in private parties a recovery of possession is subject to the rights of the public in the waters.” Williams, 137 So. at 684–85 (citing Bass v. Ramos, 58 Fla. 161, 50 So. 945, 948 (1909) (recognizing that submerged lands are held in trust for the public)).

Although it did not involve the building of wharves or piers, the 1957 Hayes decision is of particular importance given the fact that Hayes involved the interplay of riparian rights and the rights of the owners of privately held submerged lands. The Hayes and the Abbotts (submerged landowners) acquired submerged land from the State, dredged and filled it, and built a peninsular subdivision with “fingers” or smaller peninsulas extending from the main peninsula. Thus, a number of the lots were surrounded by navigable water, Boca Ciega Cay.

The submerged landowners subsequently acquired additional submerged lands surrounding the lots and proposed to dredge and fill that land.  Three riparian owners filed suit to enjoin the filling, claiming that filling would interfere with their common law riparian right to an unobstructed view of the bay and the right of ingress and egress to the channel.  Hayes, 91 So.2d at 798. The Supreme Court ruled in favor of the submerged landowners. Id. at 801. However, the court recognized that “any person acquiring any such [submerged] lands from the State must so use the land as not to interfere with the recognized common law riparian rights of upland owners (an unobstructed view, ingress and egress over the foreshore from and to the water).” Id. at 799.

In Belvedere Development Corp. v. Department of Transportation, 476 So.2d 649 (Fla.1985) (Belvedere II), although it quashed the Fourth District’s opinion in Belvedere Development Corp. v. Department of Transportation, 413 So.2d 847 (Fla. 4th DCA 1982) (Belvedere I), the Florida Supreme Court quoted with approval the special concurrence of Judge Hersey that riparian owners have the right, among others, ‘to wharf out to navigability.’ ” Belvedere II, 476 So.2d at 651 (quoting Belvedere I, 413 So.2d at 851 (Hersey, J., concurring)). This language has subsequently been relied upon by the Fourth District in multiple opinions. See Bd. of Comm’rs of Jupiter Inlet Dist. v. Thibadeau, 956 So.2d 529, 534 (Fla. 4th DCA 2007); Shore Vill. Prop. Owners’ Ass’n, Inc. v. Fla. Dep’t of Envtl. Prot., 824 So.2d 208, 211 (Fla. 4th DCA 2002); Tewksbury v. City of Deerfield Beach, 763 So.2d 1071, 1071 (Fla. 4th DCA 1999).

Board of Trustees of the Internal Improvement Trust Fund v. Medeira Beach Nominee, Inc., 272 So.2d 209 (Fla. 2d DCA 1973), was a case addressing title to accreted lands as between the Board of Trustees and the riparian owner, this court expressly recognized a “qualified common law right to wharf out to navigable waters in the absence of a statute.” Id. at 214 (citing Freed, 93 Fla. 888, 112 So. 841; Williams, 102 Fla. 1047, 137 So. 682).

In Krieter v. Chiles, 595 So.2d 111 (Fla. 3d DCA 1992), a riparian owner was denied permission by the Trustees to construct a dock on submerged land in a park held in trust by the Trustees. The court recognized that the riparian owner’s right of ingress and egress by wharfing out was only a qualified right and, as such, the Trustees had the authority to prohibit its construction because it was in the public interest to do so. Id. at 112–13 (citing Graham v. Edwards, 472 So.2d 803, 807 (Fla. 3d DCA 1985). See also Hayes, 91 So.2d at 799 (“[T]he State may dispose of submerged lands under tidal waters to the extent that such disposition will not interfere with the public’s right of navigation, swimming and like uses. Moreover, any person acquiring any such lands from the State must so use the land as not to interfere with the recognized common law riparian rights of upland owners (an unobstructed view, ingress and egress over the foreshore from and to the water)”).

The Tewksbury v. City of Deerfield Beach, 763 So.2d 1071 (Fla. 4th DCA 1999) decision addressed privately owned submerged lands and the scope of a riparian owner’s right to erect a dock, specifically whether that right included the operation of an outdoor dining area on the dock.  And although the court noted that “[t]he fact that this case concerns privately-owned submerged land as opposed to sovereign lands owned by the State of Florida makes it somewhat unique,” the Court; however, did not consider that a factor in determining the scope of the riparian owner’s right “to wharf out to navigability,” Id. at 1071–72.

In conclusion, with the subset of property law known as riparian rights, Florida law recognizes that waterfront property ownership often results in disputes and litigation among neighboring landowners and the state concerning the use of the shorelines and waterways.  Riparian rights ensure that the rights of such property owners are weighed fairly and equitably concerning their ownership of waterfront property.  Ultimately, the goal of riparian rights is to promote a policy of “reasonable use” of the shared shorelines and waterways among the respective private property owners.

For more information of Riparian Rights read these blog articles:

• Accessing Navigable Water: Allocation Of Riparian Rights Among Landowners
• Riparian Rights In Florida: The Right To Accretions And Relictions
• Riparian Rights in Florida: The Right to a Waterfront View