PATRICK W. BRANNON and KATHRYN C. BRANNON, Appellants, 

v. 

STEVEN W. BOLDT, MARY ANNE PITTMAN, THOMAS BRIZZI, SAIRA BRIZZI, DANE DISANO, SHARON DISANO, HARRY GIESCHEN, CINDY A. GIESCHEN, GEORGE HARTMAN, MARY HARTMAN, PHYLLIS WELLMAN HAINSWORTH, TOM HOLDSTEIN, NANCY HOLDSTEIN, THEODORE HENTER, MARY HENTER, LARRY LYNCH, ROBIN ROBERSON, HAROLD H. MAZHIMER, THELMA R. MAXHIMER, ALLEN E. OSTER, SUZANNE OSTER, HELEN B. POND, STEVEN SANDERS, CYNTHIA A. SANDERS, CHARLES SCIANDRA, DORIS SCIANDRA, MICHAEL J. SIEBER, REA SIEBER, MARK P. TOGNA, JULIANNE MARTIN, and RUTH VINCENT, Appellees.

COURT OF APPEAL OF FLORIDA, SECOND DISTRICT

May 5, 2006, Opinion Filed 

Appeal from the Circuit Court for Pinellas County; Susan F. Schaeffer, Judge. 


Richard M. Hanchett of Trenam, Kemker, Scharf, Barkin, Frye, O'Neill & Mullis, P.A., Tampa, for Appellants.

Henry G. Gyden, John R. Blue, Sylvia H. Walbolt, and Lee H. Rightmyer of Carlton Fields, P.A., St. Petersburg, for Appellees. 


WHATLEY, Judge. GALLEN, THOMAS M., ASSOCIATE JUDGE, Concurs. KELLY, J., Concurs in part; dissents in part. 

WHATLEY, Judge.

The Appellees brought an action for declaratory and injunctive relief concerning their rights in an easement. The Appellees are the dominant estate holders. Patrick Brannon and Kathryn Brannon own the land comprising the easement and are the servient estate holders. The Brannons filed an answer asserting affirmative defenses and filed a counterclaim and a third-party complaint. The counterclaim sought to extinguish the easement rights of the Appellee lot owners. After a bench trial involving testimony from eighteen witnesses, voluminous items of evidence, and a view of the property, the trial court entered final judgment for the Appellees. We affirm.

The easement runs to Boca Ciega Bay. It measures 22 feet wide and 347 feet in length. The easement was platted in 1953 and is recorded in the public records of Pinellas County. A dock was constructed in 1957 or 1958 and was destroyed by a hurricane in 1960. No dock has been rebuilt to date. The easement language states: "22-foot easement for ingress, egress and utilities." We concur with the trial court that this language is unambiguous. As the trial court aptly noted: "This court further finds that an easement providing 'ingress and egress' over lands reaching navigable waters necessarily conveys the riparian rights associated with those lands. Cartish v. Soper, 157 So. 2d 150 (Fla. 2d DCA 1963)."

Cartish is controlling in the case at bar. It discusses easement rights and riparian rights and notes in that case: "That riparian rights were included within the scope of the reservation of the private parkway for the owners of lots in the subdivision and that riparian rights were impliedly reserved as an incident thereto." 157 So. 2d at 153. Likewise, in our case, riparian rights were impliedly reserved in the easement and incidental thereto. A dock, by way of example, is a classic riparian right. Here, the easement contained no limitation on the ingress and egress to Boca Ciega Bay. See Hume v. Royal, 619 So. 2d 12, 14 (Fla. 5th DCA 1993) (concluding that construction of a dock was improper where "the express language of the easement is clear that construction of a dock was not contemplated within the terms of the easement."); see also Lanier v. Jones, 619 So. 2d 387, 388 (Fla. 5th DCA 1993) (holding that "insofar as riparian rights are necessary to or consistent with the purposes of the easement, they are impliedly granted to appellees and, as a corollary, reserved from the appellant fee owners.").

The extent of an easement depends on the intention of the parties at the time it was created, which is determined by the language of the granting instrument, the situation of the property, and the surrounding circumstances. However, an easement carries with it by implication the right to do what is reasonably necessary for the full enjoyment of the easement itself. Generally, the rights of an easement owner are measured and defined by the purpose and character of the easement.   An easement must be exercised in a reasonable manner.20 Fla. Jur. 2d Easements  41 (2000).

We note that neither the trial court nor this court was the first court to conclude that this easement was unambiguous. On December 5, 1958, a final decree was entered in a lawsuit styled Bernard G. Guillaume and Ethylle Guillaume, his wife, Plaintiffs v. William Norris and Virginia Norris, his wife, Defendants, Chancery No. 48,803, and recorded in the public records of Pinellas County. The Guillaume court stated: "The Court further finds that the plat of Bay Park Gardens was not ambiguous in any respect and that the designation of the 22-foot east-west easement for ingress, egress and utilities created an easement for the benefit of Tract 'C' as well as all of the other lots and tracts in the subdivision."

The uses which the trial court found to exist are reasonable, contemplated, and such that the Appellees have the full enjoyment of the easement and attendant riparian rights. The uses included the right to fish, boat, and enjoy views of and over the waters. These rights, as the trial court noted, also include the right to build a properly permitted dock or observation platform. However, the lack of a dock or related structure will not defeat or frustrate the other rights of the Appellees.

Further, the Brannons were on ample notice of the easement at the time of their purchase in December 2000. They even required the sellers to escrow $ 7500 at closing to fund their attempt to extinguish the easement.

Lastly, we note that even if the language of the easement had been found to be ambiguous, the historical testimony at the trial would have supported the same result. [*1] 

We affirm the remaining issues without discussion.

Affirmed.

GALLEN, THOMAS M., ASSOCIATE JUDGE, Concurs. 

KELLY, J., Concurs in part; dissents in part. 


KELLY, Judge, Concurring in part; dissenting in part.

The majority opinion affirms the trial court's determination that each of the twenty-two subdivision lot owners has an easement arising by implication from a reference in their deeds to the subdivision plat showing the easement; that riparian rights [*2] are implicit in the easement; that the riparian rights that are implied in the easement are unlimited in their scope and specifically that they are in no way limited by what all parties have agreed is the unambiguously stated purpose of the easement; that the easement was not extinguished by frustration of purpose, abandonment, adverse possession, or estoppel; that the Brannons' next-door neighbors, the Henters, who are also appellees, have a right to use the easement for vehicular access to their backyard; and that the Brannons unreasonably interfered with that right by putting a gate up across their driveway and by parking cars there. I concur with the majority that we should affirm the trial court's determination that the lot owners have an easement and that the easement was not extinguished. I dissent from the majority opinion to the extent that it stands for the proposition that a platted easement for "ingress, egress and utilities" that terminates at navigable waters necessarily entitles the easement holder to the full panoply of riparian rights afforded to the owner of riparian property regardless of whether those rights are consistent with the "purpose and character" of the easement. I would also reverse the trial court's determination that the Brannons' driveway gate is an unreasonable burden on the Henters' right to use the easement to access their backyard.

Some elaboration on the facts and clarification of the lot owners' argument will aid in understanding the issues addressed in this dissent. All of the parties are residents of Bay Park Gardens subdivision in St. Petersburg, Florida. The original plat shows the easement running over the southern side of Tracts A and B, which at that time were separate, undeveloped tracts. See Appendix 1. The Brannons are the current owners of the property shown on the plat as Tracts A and B. The easement runs over the southern part of the Brannon property from the eastern end or front of the property down the Brannons' driveway, alongside their garage, living room and kitchen, and through their backyard where it terminates at the waters of Boca Ciega Bay. It is bounded by an ingress-egress easement running north to south adjacent to the eastern boundary of Tract C. The Henters are the current owners of Tract C.

Initially, Tracts A and B were owned by the primary developer of Bay Park Gardens, Chestley Davis. Mr. Davis built a seawall and the dock that was later destroyed. The dock was to be used by the residents of the subdivision; however, the north side of the dock was reserved for the exclusive use of the residents of Tracts A and B.

In 1958, the Davises conveyed Tracts A and B to William and Virginia Norris. At that time, Tract C was owned by the Guillaumes. A dispute arose between the Norrises and the Guillaumes when the Norrises built a wall to separate Tract C from Tracts A and B. Tract C had been developed by its owners so they had no vehicular access to their backyard except via the easement. Thus, the wall prevented them from accessing their backyard. As noted by the majority opinion, this dispute resulted in a decree that granted the owners of Tract C access down the easement "as is reasonably necessary" to enter their backyard, and it ordered the Norrises to remove a twenty-foot segment of the wall to allow access to Tract C. The Norrises and Guillaumes later entered into a stipulation that permitted the owners of Tracts A and B to install a gate of their choosing in the twenty-foot opening; however, no owner of those lots has done so. 

The Brannons purchased Tracts A and B in December 2000. The current dispute arose when the Brannons erected two gates across the easement. They placed a decorative security gate across their driveway at the front of the property and a gate and wooden lattice-type fence closing off their entire backyard. This gate is locked and therefore a portion of the easement is inaccessible to the lot owners.

The lot owners sued and sought a declaration that by virtue of the plat, the owners of the twenty-two lots in the subdivision had an easement by implication across the Brannons' property and that they "own[ed] the right to use the East-West Easement for the purposes of ingress to and egress from Boca Ciega Bay, together with all riparian rights appurtenant thereto." Referring to property rights as a "bundle of sticks," the lot owners' specific argument was that, 

when the developers of the Subdivision conveyed property rights to create the East-West easement, they also implicitly and inherently conveyed the riparian rights associated with what is now the Brannons' property. Thus, under Florida law . . . they inherently and implicitly gave the landlocked property owners in the Subdivision an important "stick," being a wide range of riparian rights. Thus, the lot owners argued, 

the entire Subdivision enjoys riparian rights as a result of the easement, all property owners in the Subdivision are permitted to enjoy the normal benefits of the waterfront within that 22-foot easement. Such landlocked 'neighbors' may conduct activities such as fishing, boating, and even enjoying an unobstructed view of the water. The Henters claim that they have the right to unobstructed access to their backyard via the easement and that the gate across the driveway constitutes an unreasonable obstruction, as do cars parked in the Brannons' driveway.

The trial court rejected the Brannons' various defenses and found that the easement was created for the benefit of the owners of Tract C to provide vehicular access to and from their backyard and for the benefit of the entire subdivision to provide access to and from the waters of Boca Ciega Bay. The court also found that because the easement provided for "ingress and egress" over lands reaching navigable waters, it "necessarily conveys the riparian rights associated with those lands." The trial court stated that included the right to fish, to boat, "and most importantly, as this is the riparian right enjoyed most often by the plaintiff lot owners in this case, to enjoy a clear and unobstructed view over the waters." The trial court also found that the lot owners had the right to build a dock or observation platform. The trial court found that the Brannons' driveway gate was an unreasonable obstruction to the Henters' right of passage and ordered it removed, and it placed some restrictions on the manner in which cars can be parked in the driveway.

Both the lot owners' argument and the majority opinion reflect some confusion regarding the nature of riparian rights that must be dispelled before the merits of the majority opinion can be addressed. Specifically, they both fail to appreciate that some of the riparian rights the lot owners claim by virtue of the easement are not rights that are "associated" with riparian lands, and moreover, as members of the public the lot owners already have these riparian rights. 

Riparian rights are rights to use the water. Broward v. Mabry, 58 Fla. 398, 50 So. 826, 829 (Fla. 1909). There are two categories of riparian rights. Id. at 830. The public has the right to use navigable waters for navigation, commerce, fishing, and bathing "and other easements allowed by law." Id. Owners of riparian land share these rights with the public. Id. The public's right to use navigable waters or the shore derives from the public trust doctrine. See Hayes v. Bowman, 91 So. 2d 795, 799 (Fla. 1957). The doctrine embodies the common law rule that the sovereign held title to all the land below the high water mark in trust for the use of the people. Id.

The specific nature of the trust in favor of all the subjects . . . was that those subjects should have the free use of such waters and shores. The waters . . . were of common right, public for every subject to navigate upon and fish in . . . the shore was also of common right public. The use of each was in the subjects for the inherent privileges of passage and navigation and fishing, as public rights. 

State v. Black River Phosphate Co., 32 Fla. 82, 13 So. 640, 644 (Fla. 1893); see also U.S. Steel Corp. v. Save Sand Key, Inc., 303 So. 2d 9, 14 (Fla. 1974) (Ervin, J., dissenting) ("The citizens of this state have long been accorded in common, under the inalienable trust doctrine, the use and enjoyment of navigable waters, tidelands, and sovereignty areas for bathing, boating, fishing and other recreational uses."); Hayes, 91 So. 2d at 799 (noting that the principle uses of the water were navigation, bathing, and fishing). 

Thus, the right to use the waters and the shore for "navigation, fishing, bathing, and similar uses" is not a right associated with ownership of riparian land as suggested by the majority opinion. The fact that the Brannons are riparian owners does not give them any greater right to use the waters of Boca Ciega Bay than any member of the public would possess, including the lot owners. See Game & Fresh Water Fish Comm'n v. Lake Islands, Ltd., 407 So. 2d 189, 192 (Fla. 1982); Ferry Pass Inspectors' & Shippers' Ass'n v. White's River Inspectors' & Shippers' Ass'n, 57 Fla. 399, 48 So. 643, 644-45 (Fla. 1909).

Riparian owners have additional rights that they do not share with the public. 48 So. at 644-45. Those rights include, among other things, the exclusive right to access the water from their property, the right to wharf out to navigable waters, and the right to make their access to the water commercially available to the public. Id.; Bd. of Trustees of Internal Improvement Trust Fund v. Medeira Beach Nominee, Inc., 272 So. 2d 209, 214 (Fla. 2d DCA 1973). Additionally, riparian owners take title to land added to their property by accretion and reliction. [*3] Sand Key, 512 So. 2d at 936.  Florida's courts have also stated that riparian owners have the right to an unobstructed view over the waters. [*4]  Thiesen v. Gulf, F. & A. Ry. Co., 75 Fla. 28, 78 So. 491 (Fla. 1917). Florida has traditionally considered these special rights to be property rights that may not be taken without just compensation and due process. Id. at 507.

As for the merits of the majority opinion, I agree that Cartish, 157 So. 2d 150, is the controlling case on the issue of whether and to what extent the lot owners have riparian rights. My problem with the majority opinion is that it does not follow Cartish. Cartish does not state that "an easement providing 'ingress and egress' over lands reaching navigable waters necessarily conveys the riparian rights associated with those lands." [*5]  Cartish states just the opposite: "Proceeding from the premise, admitted by appellants, that easement rights may be created by implication, it is clear that such riparian rights necessary and incidental to access and egress from the Bay were implicit in the reservation of the Parkway." Id. at 153 (emphasis supplied). We reiterated the point, later concluding that "insofar as riparian rights are necessary to or consistent with the purposes of the easement, they are impliedly granted to appellees . . . ." Id. at 154. It seems to me that the words "necessary and incidental to access and egress to the Bay" or "necessary to or consistent with the purposes of the easement" must have some meaning, and that they cannot, as the majority opinion holds, mean that the lot owners' riparian rights are limitless. 

An examination of Cartish illustrates those words mean exactly what they say. In Cartish, the easement holders, lot owners in a platted subdivision, sought to enjoin the owner of the servient estate from objecting to their "application and right" to rebuild a dock extending from the end of the easement into the waters of Boca Ciega Bay. Id. at 150. The subdivision plat showed a forty-foot strip of land labeled "Private Parkway" running between two waterfront lots beginning at the boundary to their east and terminating at Boca Ciega Bay. The plat stated that the parkway was reserved as "a private parkway or passageway for all purchasers of lots in said subdivision . . . each owner having an easement of passage for ingress to and egress from the waters of Boca Ciega Bay." Id. at 152. 

At some point, Cartish, who owned the lot bordering the parkway on the north, became the owner of the northern half of the parkway. Id. The dispute with Soper arose when Cartish successfully blocked Soper's attempt, on behalf of the lot owners, to build a dock extending from the parkway into the bay. Id. Soper sued for declaratory relief and an injunction to prevent Cartish from objecting to the lot owners' application for a permit to build a dock. Id. at 150. Cartish argued that riparian rights belonged to the owner of the fee and as easement holders, the lot owners did not have any riparian rights and therefore did not have the right to build a dock. [*6] The court concluded that " 'riparian rights were included within the scope of the reservation of the private parkway for the owners of lots in the subdivision and that riparian rights were impliedly reserved as an incident thereto.' " Id. at 153. Based on this, the trial court enjoined Cartish from obstructing construction of the dock. 

On appeal, Cartish again argued that riparian rights belonged to the owner of the fee. Id. at 153. Soper argued that the homeowners had the right to build a dock because, in the absence of a reservation of riparian rights by the grantor of the easement, those rights could be implied in the easement. See Cartish, 157 So. 2d at 153 (stating that Soper relied on Feig v. Graves, 100 So. 2d 192 (Fla. 2d DCA 1958) in support of his argument); Feig, 100 So. 2d at 195 (Fla. 2d DCA 1958) ("Riparian rights were not reserved in the case at bar. In the absence of such a reservation whether these rights are included within the scope of a 'dedication' depends upon the purpose for which the easement was granted and the location of the property burdened with the easement."). This court accepted Soper's argument that riparian rights could attach to the easement and then looked to the purpose of the easement to determine whether the building of a dock was a proper use of the easement. Cartish, 157 So. 2d at 153-54 ("[I]nsofar as riparian rights are necessary to or consistent with the purposes of the easement, they are impliedly granted to [the easement holder]."). The plat stated that the easement was " 'an easement of passage for ingress to and egress from the waters of Boca Ciega Bay.' " Id. at 152. Because the purpose of the easement was ingress and egress to and from the waters of Boca Ciega Bay, we concluded that the right to build a dock "to facilitate access to the waters is implied." Id. at 153-54.

We analogized the lot owners' claim to the claim the easement holders made in Feig. In Feig, the plaintiffs had an implied easement over a platted walkway bordered on one side by the shoreline of Bass Lake and on the other side by their lots. 100 So. 2d at 194. Over time the water in the lake had receded so that the shore line was seventy or eighty feet from where it was shown on the plat. Thus, the shoreline no longer bordered the walkway as platted. The defendants owned the land burdened by the walkway. They claimed the exclusive right to use the land between the original shoreline shown on the plat and the current shoreline. This cut off the plaintiffs' access to the lake.

To preserve their access to the lake, the plaintiffs argued riparian rights attached to the walkway, and because they had an easement by implication over the walkway, they were also entitled to use the rights that attached to the walkway. Id. at 194. Specifically, they argued that because riparian rights attached to the walkway, the walkway was enlarged by accretion or reliction so that it extended to the shoreline and so did their easement. See id. The trial court agreed, and this court affirmed noting that when an easement is dedicated, the dedicator may reserve all riparian rights appurtenant to the land, but where riparian rights are not reserved, whether they are included within the scope of the easement depends on the purpose of the easement and the location of the property. Id.

In Cartish, this court analogized building a dock to extending an easement over accreted land, stating, "[j]ust as accreted land would necessarily be burdened by the easement as a necessary implication of the reservation, so too the right to build a dock to facilitate access to the waters is implied." 157 So. 2d at 153-54. The fact that Cartish analogized the right to build a dock to the right to accretions is significant for two reasons. First, it illustrates what we meant in Cartish when we referred to rights that are "necessary to or consistent with the purposes of the easement." Second, if the easement gave Soper and the others limitless riparian rights, why would we have found it necessary to analyze whether the right to build a dock was analogous to the right to use accreted land? Such an analysis would have been unnecessary if as the majority concludes, "an easement providing 'ingress and egress' over lands reaching navigable waters necessarily conveys the riparian rights associated with those lands." 

The majority opinion's citations to Lanier v. Jones, 619 So. 2d 387 (Fla. 5th DCA 1993), and Hume v. Royal, 619 So. 2d 12 (Fla. 5th DCA 1993), do not lend any support to its position. On the contrary, they confirm that the purpose of an easement dictates the extent to which an easement holder has the right to use the riparian rights associated with the easement. [*7] In Hume, the Royals had an express easement by grant for pedestrian access only to the intercoastal waterway "up to and including the established bulkhead." 619 So. 2d at 13. The easement further stated that it was "not intended to serve as access for vehicular traffic, boats, trailers, automobiles, and the like." Id. The Humes owned the servient land, and they sued the Royals to force them to remove a dock they had built at the end of the easement. Noting that courts are required to honor the express intentions of the parties to an easement, the appellate court agreed with the Humes that the dock should be removed because the "express language of the easement is clear that construction of a dock was not contemplated within the terms of the easement" and "[n]o evidence was introduced to show that a dock was needed to facilitate pedestrian access to the bulkhead." Id. at 14. 

In Lanier, the owners of land subject to an easement for ingress and egress to the St. John's River conceded that the owner of a riparian right has the right to build a dock. 619 So. 2d at 388. Nevertheless, they argued that the easement holders should have to remove the dock they had already built at the end of their easement. They objected to the dock because it interfered with their riparian rights and their right to a view, privacy, and quiet enjoyment of their property; it increased the burden on the servient estate; and it was not needed to facilitate access to the water. Id. Noting that Cartish was consistent with "well established law that a dominant estate easement owner is entitled to prepare, improve, maintain, or repair the easement in order to facilitate its use," the court looked at whether the dock was necessary to facilitate the use of the easement and whether it interfered with the servient owner's riparian rights. Id. Because the evidence established that the dock was necessary to facilitate their use of the easement and that it did not interfere with the servient owners' riparian rights, the court determined that the servient owners were not entitled to relief. Id. at 388-89.

Here, the trial court found that the language of the easement was unambiguous, that it was for the benefit of the entire subdivision, and that its purpose was "to provide access to and from the waters of Boca Ciega Bay." No one has challenged this finding by the trial court. The evidence supports a finding that the dock is necessary to facilitate access to the bay. In fact, the Brannons have argued that without a dock, access to the bay is impracticable because of the height of the seawall. Therefore, I agree that we should affirm the trial court's order to the extent it concludes the lot owners have the right to build a dock at the end of the easement, provided they can obtain the necessary governmental approvals.

On the other hand, the majority opinion's approval of the trial court's determination that the lot owners can stand in the easement to fish and "to enjoy a clear and unobstructed view over the waters" is clearly contrary to Cartish. First, as noted above, the "right to fish" is the right to go out in the water and fish. Second, these activities are not "necessary to or consistent with" ingress and egress to the bay which is the undisputed purpose of the easement. In fact, the lot owners make no claim that any of these rights facilitate access to the bay--rather, they simply want to be able to enjoy these activities in the easement itself. The majority opinion states that these uses are "reasonable" and "contemplated" and "such that the Appellees have the full enjoyment of the easement and attendant riparian rights." If the test is whether the Appellees can "have the full enjoyment of the attendant riparian rights," then the Appellees also have, among other things, the right to make their access to the water commercially available to the public; however, I doubt the majority would sanction that use of the easement. As for what was "contemplated," the language of the easement tells us what was contemplated--ingress and egress. It is not reasonable to suggest that a twenty-two-foot wide ingress/egress easement was to act as the functional equivalent of a waterfront park for the twenty-two homes in the subdivision. The analysis in the majority opinion completely ignores the limited purpose of the easement.

The use of an easement is always limited by the purpose for which it was granted. See Sinclair v. Clay Elec. Co-op, Inc., 584 So. 2d 1065, 1066 (Fla. 5th DCA 1991) ("While [an easement] carries with it, by implication, the right to do what is reasonably necessary for the full enjoyment of the easement, the easement is restricted to the purposes for which it was granted. The owner of an easement may not unduly burden the servient estate.") (citations omitted). The extent of an easement implied by a plat depends on the intent of the parties. Easton v. Appler, 548 So. 2d 691, 694 (Fla. 3d DCA 1989) (citations omitted). When the language creating the easement is unambiguous, the intention of the grantor must be ascertained from the language of the granting instrument. Walters v. McCall, 450 So. 2d 1139 (Fla. 1st DCA 1984); see also Restatement (Third) of Prop.: Servitudes  4.1 cmt. (h), 4.10 cmt. (d) (2005). 

As noted by the majority, the trial court determined that the language of the easement was unambiguous and that its purpose was to provide ingress and egress to the waters of the bay. Because the use of the easement is restricted to ingress and egress, it is neither "reasonable" nor "contemplated" "that the Appellees [would] have the full enjoyment of the easement and attendant riparian rights." By concluding that the lot owners can stand in the easement to fish or enjoy the view, the majority has impermissibly expanded their rights beyond the purpose for which the easement was granted. Compare Blazina v. Crane, 670 So. 2d 981, 983 (Fla. 2d DCA 1996) (finding that an easement document was ambiguous and holding that parol evidence was needed to determine whether the grantor of an easement for ingress and egress to a beach intended a portion of the easement to be used as a waterfront sitting area where the easement widened from four feet to twelve feet when it reached the beach); Avery Dev. Corp. v. Village by the Sea Condo. Apartments, Inc., 567 So. 2d 447, 449 (Fla. 4th DCA 1990) (finding that an easement for ingress and egress does not grant an easement for parking). 

I also dissent from the majority's affirmance of the trial court's conclusion that the gate the Brannons constructed across their driveway unreasonably obstructed the Henters' use of the easement to access to their backyard. The trial court correctly determined that the Brannons had the right to erect a gate across the easement if it did not "interfere unreasonably with the right of passage." In considering whether the driveway gate unreasonably interfered with the right of passage, the trial court stated that it was required to follow BHB Development, Inc. v. Bonefish Yacht Club Homeowners Association, Inc., 691 So. 2d 1174 (Fla. 3d DCA 1997); otherwise, it would have concluded that the gate was not an unreasonable burden. The trial court concluded that the outcome in BHB turned on the fact that the gate made it necessary for those using the easement to exit their car to open and close the gate, and that this fact made the gate an impermissible interference with the easement owners' right of passage. Because the Brannons' driveway gate imposed the same burden on the Henters, the trial court concluded that the Brannons had to remove it.

The trial court was not required to follow BHB. That case is distinguishable. The Henters' and the Brannons' rights were subject to a stipulation that allowed the owner of the Brannon property to install a gate in the wall between their lot and the Henters' lot, something the Brannons have not done. Under this stipulation, the Brannons have the absolute right to install a gate, the installation of which will necessarily require the Henters to exit their car to open and close the gate.   Hence, the single gate the Brannons installed in the driveway, while not in the location contemplated in the stipulation, imposes no greater burden on the Henters' use of the easement than would a single gate in the location specified in the stipulation. This fact distinguishes this case from BHB. Because the driveway gate does not place any additional burden on the Henters' use of the easement beyond what was already contemplated by the stipulation, the trial court erred in concluding that was an unreasonable burden. I would reverse on this issue as well. 

[EDITOR'S NOTE: SEE ILLUSTRATION IN ORIGINAL] 


[*1]  Such testimony was elicited with regard to the abandonment issue raised by the Brannons.,

[*2] "In common usage 'riparian' is generally used to define property having water frontage. In fact, the term 'riparian' refers specifically to land abutting non-tidal or navigable river waters whereas 'littoral' refers to the land abutting navigable ocean, sea, or lake waters." Kester v. Tewksbury, 701 So. 2d 443, 444 n.2 (Fla. 4th DCA 1997). Although the use of "riparian" in this case is technically incorrect, it is consistent with the accepted usage in Florida cases. Bd. of Trustees of the Internal Improvement Fund v. Sand Key Assoc. Ltd., 512 So. 2d 934 (Fla. 1987). 

[*3] "Accretion" means the gradual and imperceptible accumulation of land along the shore or bank of a body of water. Sand Key, 512 So. 2d at 936. "Reliction is an increase of the land by a gradual and imperceptible withdrawal of any body of water. Id.

[*4] The right to a view over the water is not one of the rights traditionally listed as a common law riparian or littoral right. Judicial recognition of this concept appears to have originated in Florida in 1917 with Thiesen, 75 Fla. 28, 78 So. 491. It appears no other state recognizes the right to a view as a riparian right. Florida's recognition of this right has generated a fair amount of interest because of this court's decision in Lee County v. Kiesel, 705 So. 2d 1013, 1015 (Fla. 2d DCA 1998). In Kiesel, this court held that because the right to an unobstructed view over the water is a common law riparian right vested in the owner of riparian property, it is a property right that may not be taken or destroyed without paying just compensation to the owner. Lee County was required to compensate the owners of waterfront property when it constructed a bridge that blocked their view over the water. This appears to be the only case where a Florida court has found that a riparian owner's view was obstructed.

[*5] This quotation in the majority opinion is from the trial court's order, and it is how the trial court characterized our holding in Cartish. It is not a statement found in our opinion in Cartish. The majority opinion's other quotation from Cartish is similarly misleading. The quoted material is from the chancellor's final decree; it is not something that originated from this court as the quotation marks suggest.

[*6] Riparian rights were at the center of the dispute in Cartish because nonriparian property owners do not have the right to build on submerged land, title to which is vested in the "sovereign" in trust for people. A riparian owner has the right to use the land under the water and the shore adjacent to the property to erect docks or other structures to facilitate his business or pleasure, "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." Ferry Pass, 48 So. at 645.

[*7] Cartish speaks of granting riparian rights to the easement holder to the extent that they are necessary to or consistent with the purpose of the easement and alternatively of finding riparian rights implicit in the easement to the extent the rights are necessary and incidental to the purpose of the easement. However phrased, the result is the same. 



PATRICK W. BRANNON and KATHRYN C. BRANNON, Appellants,

v. 

STEVEN W. BOLDT, MARY ANNE PITTMAN, THOMAS BRIZZI, SAIRA BRIZZI, DANE DISANO, SHARON DISANO, HARRY GIESCHEN, CINDY A. GIESCHEN, GEORGE HARTMAN, MARY HARTMAN, PHYLLIS WELLMAN HAINSWORTH, TOM HOLDSTEIN, NANCY HOLDSTEIN, THEODORE HENTER, MARY HENTER, LARRY LYNCH, ROBIN ROBERSON, HAROLD H. MAZHIMER, THELMA R. MAXHIMER, ALLEN E. OSTER, SUZANNE OSTER, HELEN B. POND, STEVEN SANDERS, CYNTHIA A. SANDERS, CHARLES SCIANDRA, DORIS SCIANDRA, MICHAEL J. SIEBER, REA SIEBER, MARK P. TOGNA, JULIANNE MARTIN, and RUTH VINCENT, Appellees.

COURT OF APPEAL OF FLORIDA, SECOND DISTRICT

958 So. 2d 367

January 24, 2007, Decided 

Affirmed in part, reversed in part, and remanded. 


Richard M. Hanchett and Marie Tomassi of Trenam, Kemker, Scharf, Barkin, Frye, O'Neill & Mullis, P.A., Tampa, for Appellants.

Henry G. Gyden, John R. Blue, Sylvia H. Walbolt, and Lee H. Rightmyer of Carlton Fields P.A., St. Petersburg, for Appellees. 


ALTENBERND, Judge. FULMER, C.J., and NORTHCUTT, CASANUEVA, SALCINES, STRINGER, DAVIS, SILBERMAN, KELLY, CANADY, VILLANTI, JJ., n4 Concur. WHATLEY, J., Concurs in part; dissents in part.

Judges Wallace and LaRose are recused from this case.


BY ORDER OF THE COURT:

Appellants' motion for rehearing, rehearing en banc, or certification filed May 22, 2006, is granted to the extent that the opinion dated May 5, 2006, is withdrawn and the attached en banc opinion is substituted therefor. The motion for rehearing, rehearing en banc, or certification is denied in all other respects.

EN BANC 

ALTENBERND, Judge.

This court has elected to review en banc a very narrow, but significant issue:

What rights do the residents in a neighborhood receive, as dominant estate holders under an implied easement created by a denotation on a plat map of an "easement for ingress and egress" to a body of water, when the servient estate is part of a residential lot on which there exists an occupied family dwelling?

The issue in this case arises directly from a dispute over the interpretation of this court's opinion in Cartish v. Soper, 157 So. 2d 150 (Fla. 2d DCA 1963). In Cartish, this court considered whether the dominant estate holders of a similar easement received riparian rights that could allow them to rebuild a dock at the water's edge of the servient estate. We held:

Proceeding from the premise, admitted by appellants, that easement rights may be created by implication, it is clear that such riparian rights necessary and incidental to access and egress from the Bay were implicit in the reservation of the Parkway. Just as accreted land would necessarily be burdened by the easement as a necessary implication of the reservation, so too the right to build a dock to facilitate access to the waters is implied.

Accordingly, insofar as riparian rights are necessary to or consistent with the purposes of the easement, they are impliedly granted to appellees and, as a corollary, reserved from the appellant fee owners. Cf. Feig v. Graves, supra; City of Tarpon Springs v. Smith, 1921, 81 Fla. 479, 88 So. 613; Geiger v. Filor, 1859, 8 Fla. 325.157 So. 2d at 153-54.

Unlike the dominant estate holders in Cartish, the lot owners in the neighborhood involved in this case are not primarily seeking to build a dock. Instead, they are seeking the right to sit and stand on the lands within the easement to fish, watch fireworks, watch the sunset, and generally enjoy the view of Boca Ciega Bay. The servient estate--that is, the land subject to the easement--is otherwise owned and occupied by the Brannons, subject to the "easement for ingress and egress" given to the other lot owners by virtue of a notation on the relevant plat map. The Brannons perceive their neighbors to be trespassers on their property when they remain within the easement for periods longer than reasonably necessary to gain access to the water. The neighbors perceive that they have the right to stay within the easement for as long as they wish in order to enjoy their "riparian" rights.

If "good fences make good neighbors," [*1] it is also true that bad easements can make for bad neighborhoods. The judges of this court have struggled to apply the Cartish tests--"such riparian rights necessary and incidental to access and egress" and "necessary to or consistent with the purposes of the easement"--in this case. It appears from the concurring opinion in Cartish that the judges in that case did not resolve the broader issue that faces us today. See 157 So. 2d at 154 (White, J., concurring specially). Realizing that there are many neighborhoods in Florida affected by similar plat maps and that confusion in this area of the law can create great friction and hostility within a neighborhood, we have concluded that this matter is one of "exceptional importance" warranting the collective judgment of all active members of this court. See Fla. R. App. P. 9.331(a). We likewise certify to the Supreme Court of Florida the issue stated at the beginning of this opinion as a question of great public importance. 

 I. THE BASIC LAYOUT OF BAY PARK GARDENS 

This case involves a neighborhood that is west of Park Street on 37th Avenue North in St. Petersburg, Florida. Thirty-seventh Avenue essentially dead ends at Boca Ciega Bay. This neighborhood was platted as "Bay Park Gardens" in 1953. It was designed to include twenty-two lots along 37th Avenue North and four tracts of land near the water's edge. The four tracts were designated A, B, C, and D (Appendix A, Plat Map). The original developer was Chestley E. Davis. In 1958, he sold tracts A and B to William and Virginia Norris, who built a personal residence on the two lots. Thus, for all practical purposes, these two tracts have been a single lot since the late 1950s. As explained later, the Brannons now own the home built by the Norrises.

An examination of the original plat map reveals much about Mr. Davis's vision as a developer. None of the lots along 37th Avenue North had direct access to the water. The two most valuable tracts, C and D, each had approximately 100 feet of waterfront with the tracts extending down to the mean high-water mark. Without an easement, there would have been limited ability to have a driveway into tracts C and D, and no ability to reach tracts A and B. Thus the development was platted with a twenty-two-foot-wide easement running north and south at the eastern edge of tracts C and D, primarily to give automobile access to those lots. At the north end of this easeAment, Mr. Davis designated an easement running east and west. Mr. Davis placed the entire twenty-two-foot east/west easement on tracts A and B, the land he developed for himself (Appendix B, Detail from Plat Map). The entire grant of easement states: "22' easement for ingress & egress and utilities."

If Mr. Davis had only been concerned about motor vehicle traffic, the east/west easement could have ended at the eastern property line of tract B. However, he extended the twenty-two-foot easement to the mean high-water mark. By reference to the plat map in the deeds of all of the lots, the purchasers of those lots were given an easement by implication providing them with ingress and egress to the water at the mean high-water mark. Thus, the purchasers of the lots knew that although they would not own waterfront property, they were purchasing the right to reach the water in a conAvenient manner.

The vision of developers and the reality of development have often parted ways in Florida. In this case, Mr. Davis built a dock on the easement in 1957 or 1958. He reserved the north side of the dock for the owner of tract B, and he reserved the south side of the dock for the owners of the other lots. The dock was short-lived. It was destroyed by a hurricane in 1960 and was never rebuilt. The Norrises built their home on tracts A and B, positioned so the easement runs down the driveway, adjacent to the garage and very close to their living room and kitchen before it enters the backAyard. Thus, at least psychologically, anyone who owns the home on tracts A and B will always have a sense that neighbors are invading their personal space when the neighbors use the easement.

The owners of tracts C and D, as well as Mr. Davis, also built a seawall on this property in 1957 or 1958. Like so many other seawalls, this wall kept the sea out, but it also tended to erode the beach available to the public below the mean high-water mark. Oysters built up adjacent to the seawall. At this time, there is little, if any, public beach below the mean high-water mark at the edge of the easement where any normal person would choose to fish or enjoy a sunset. Thus, the easement now runs to a location of little or no value to someone who holds only public riparian rights.

II. THE FIRST EASEMENT DISPUTE 

This case is not the first dispute arising from this easement. When Mr. Davis and his wife conveyed tracts A and B to William and Virginia Norris in 1958, tract C was owned by the Guillaumes. A dispute arose between the Norrises and the Guillaumes when the Norrises built a wall to separate tract C from tracts A and B. Tract C had been developed using a layout that provided no vehicular access to the Guillaumes' backyard except via the easement. Thus, the wall prevented them from accessing their backyard.

On December 5, 1958, a final decree was entered in a lawsuit styled Bernard G. Guillaume & Ethylle Guillaume, his wife, Plaintiffs v. William Norris & Virginia Norris, his wife, Defendants, Chancery No. 48,803, and recorded in the public records of Pinellas County. The Guillaume court stated:

The Court further finds that the plat of Bay Park Gardens was not ambiguous in any respect and that the designation of the 22-foot east-west easement for ingress, egress and utilities created an easement for the benefit of Tract "C" as well as all of the other lots and tracts in the subdivision.

This final decree granted the owners of tract C access down the easement "as is reasonably necessary" to enter their backyard, and it ordered the Norrises to remove a twenty-foot segment of the wall to allow access to tract C. The Norrises and Guillaumes later entered into a stipulation that permitted the owners of tracts A and B to install a gate of their choosing in the twenty-foot opening; however, no owner of those lots has done so.

This earlier lawsuit did not name the other neighbors as parties and did not address what, if any, riparian rights the neighbors may have by virtue of the language on the plat map. Thus, while we agree that the brief phrase, "22' easement for ingress & egress and utilities," is not ambiguous, the earlier lawsuit did not discuss the Cartish test or resolve the nature of the "riparian rights necessary and incidental to access and egress," 157 So. 2d at 153, that are at issue in this case.

III. THIS EASEMENT DISPUTE 

The Brannons purchased tracts A and B in December 2000. By that time, tracts C and D were no longer owned by the Guillaumes but were owned by Mr. and Mrs. Henter. The Brannons installed two gates across the easement. They placed a security gate across their driveway at the front of the property and a second gate closer to the water that closed off their entire backyard. This gate is locked, rendering a portion of the easement inaccessible to the owners of the other lots in the neighborhood. As a result of these gates, a dispute over the easement erupted again and the entire neighborhood became interested in their rights to the easement.

The Henters and the other lot owners sued and sought a declaration that by virtue of the plat, the owners of the twenty-two lots in the subdivision had an easement by implication across the Brannons' property and that they "own[ed] the right to use the East-West Easement for the purposes of ingress to and egress from Boca Ciega Bay, together with all riparian rights appurtenant thereto." The lot owners' specific argument was that

when the developers of the Subdivision conveyed property rights to create the East-West easement, they also implicitly and inherently conveyed the riparian rights associated with what is now the Brannons' property. Thus, under Florida law . . . they inherently and implicitly gave the landlocked property owners in the Subdivision a . . . wide range of riparian rights.Thus the lot owners argued that

the entire Subdivision enjoys riparian rights as a result of the easement, [and] all property owners in the Subdivision are permitted to enjoy the normal benefits of the waterfront within that 22-foot easement. Such landlocked "neighbors" may conduct activities such as fishing, boating, and even enjoying an unobstructed view of the water.The Henters also claimed that they had the right to unobstructed access to their backyard via the easement and that the gate across the driveway constituted an unreasonable obstruction.

Following a lengthy evidentiary hearing, the trial court rejected the Brannons' various defenses and found that the easement was created for the benefit of the owners of tract C to provide vehicular access to and from their backyard and for the benefit of the entire subdivision to provide access to and from the waters of Boca Ciega Bay. The court also found that because the easement provided for ingress and egress over lands reaching navigable waters, it "necessarily conveys the riparian rights associated with those lands." The trial court concluded that these rights included the right to fish, to boat, "and most importantly, as this is the riparian right enjoyed most often by the plaintiff lot owners in this case, to enjoy a clear and unobstructed view over the waters." The trial court also found that the lot owners had the right "to build a properly permitted dock or observation platform," although it apparently is unlikely that such a permit could be obtained at this time in light of strengthened environmental regulations. Finally, the trial court found that the Brannons' driveway gate was an unreasonable obstruction to the Henters' right of passage and ordered it removed. It also placed some restrictions on the manner in which cars can be parked in the driveway.

The Brannons appealed the final judgment. Initially, this court issued a divided opinion in which an associate judge participated in the majority. Brannon v. Boldt, 2006 Fla. App. LEXIS 6865, 31 Fla. L. Weekly D1260 (Fla. 2d DCA May 5, 2006). The majority affirmed the trial court's final judgment in all respects.

As to the dispute between the Brannons and the Henters concerning access to the Henters' property and the interference of the gates, this court en banc now also affirms that portion of the trial court's judgment without further discussion. Thus, we limit our en banc discussion to the nature and extent of the riparian rights transferred to the lot owners as an easement by implication. [*2] 

IV. RIPARIAN RIGHTS NECESSARY TO AN IMPLIED EASEMENT 

This is not a case involving an express easement where the rights are explained in detail in a recorded document. Instead, it is a case where the easement is implied from the recorded plat map. See, e.g., Tortoise Island Cmtys., Inc. v. Moorings Ass'n, 489 So. 2d 22 (Fla. 1986), quashing but adopting dissenting opinion in 460 So. 2d 961 (Fla. 5th DCA 1984).  Thus the issue is not what rights could be transferred to the lot owners in an express easement, but rather what riparian rights must be transferred to the lot owner because they are necessary to or consistent with the purposes of the implied easement.

Riparian rights are rights to use the water. [*3] Broward v. Mabry, 58 Fla. 398, 50 So. 826, 829 (Fla. 1909). There are two categories of riparian rights. Id. at 830. The public has the right to use navigable waters for navigation, commerce, fishing, and bathing and "other easements allowed by law." Id. Owners of riparian land share these rights with the public. Id. The public's right to use navigable waters or the shore derives from the public trust doctrine. See Hayes v. Bowman, 91 So. 2d 795, 799 (Fla. 1957). The doctrine embodies the common law rule that the sovereign held title to all the land below the high-water mark in trust for the use of the people. Id.

The specific nature of the trust in favor of all the subjects . . . was that those subjects should have the free use of such waters and shores. The waters . . . were of common right, public for every subject to navigate upon and fish in without interruption; . . . the shore was also of common right public. The use of each was in the subjects for the inherent privileges of passage and navigation and fishing, as public rights . . . .State v. Black River Phosphate Co., 32 Fla. 82, 13 So. 640, 643 (Fla. 1893); see also Hayes, 91 So. 2d at 799 (noting that the principle uses of the water were navigation, bathing, and fishing). 

Private riparian rights to navigable waters are given to those whose land extends to the high-water mark. As explained in Broward:

Those who own land extending to ordinary high-water mark of navigable waters are riparian holders who, by implication of law, and in addition to the rights of navigation, commerce, fishing, boating, etc., common to the public, have in general certain special rights in the use of waters opposite their holdings; among them being the right of access from the water to the riparian land and perhaps other easements allowed by law. These special rights are easements incident to the riparian holdings, and are property rights that may be regulated by law, but may not be taken without just compensation and due process of law.50 So. at 830. Florida has recognized greater private riparian rights than merely the right of access to and from the water. In Florida and in most other states, riparian owners take title to land added to their property by accretion and reliction. See Bd. of Trustees of the Internal Improvement Fund v. Sand Key Assocs., Ltd., 512 So. 2d 934, 936 (Fla. 1987). Most notably and apparently unique to Florida, riparian owners have the right to an unobstructed view over the waters. See Thiesen v. Gulf, Fla. & Ala. Ry. Co., 75 Fla. 28, 78 So. 491, 507 (Fla. 1917); see also Lee County v. Kiesel, 705 So. 2d 1013, 1015 (Fla. 2d DCA 1998).

In this case, of course, there is no dispute that all of the parties have public riparian rights in the waters of Boca Ciega Bay. Thus, they are all free to boat and swim in the waters of the bay. If and when accretion were to add a sandy beach below the mean high-water mark in front of the seawall on the Brannons' property, all members of the public could use that beach if they entered from the water, and the residents of this neighborhood would clearly be free to use the easement to gain access to the public beach to fish, watch fireworks, enjoy sunsets, and engage in typical beach activities.

But the current reality is that little or no land exists below the mean high-water mark at the location of the easement. From the record, it appears that the only way to fish or view a sunset from this location would require the use of land above the mean high-water mark and within the easement. This land is owned by the Brannons subject to the easement rights of the lot owners.

Under the holding in Cartish, it is clear that the lot owners have the legal right by virtue of the easement to apply for a permit to place a dock on the edge of the Brannons' property, giving them access to the water. As mentioned earlier, this legal right is apparently illusory at this time because other zoning and environmental regulations may not authorize a dock. The long-existing seawall would make it impossible to launch any sizeable craft from this location, but the lot owners do have a right of access to cross the Brannons' property with a canoe, a small boat, or a floatation device that could be launched over the seawall.

However, the primary right that the lot owners wish to possess is the right to view the water from the land within the easement. If the easement by implication gives them all of the riparian rights of the Brannons, including the right to a view, then there is a good argument that they can view the water, sunsets, and fireworks from this portion of the Brannons' backyard.

We conclude that in the absence of a more elaborate written easement, the purpose of this implied easement is merely to give the lot owners access, i.e., ingress and egress, to the water and to the public riparian rights possessed by all people below the high-water mark. See Feig v. Graves, 100 So. 2d 192 (Fla. 1958) (explaining that purpose for which the easement was granted determines the riparian rights necessarily included within such an easement). To achieve that purpose they receive the right to cross the Brannons' property in a reasonable amount of time, but they do not receive the right to fish from or remain on the Brannons' property for extended periods. The right to view the water, albeit a private riparian right, is not a right necessary to or consistent with the purpose of this implied easement.

By way of analogy, we note that this property also borders on a public park. If the easement had been given as an ingress and egress easement to the public park, no one would argue that the lot owners received the right to linger in the easement. They would merely receive the right to cross the easement to reach and enjoy the public park. We conclude that the right of ingress and egress to the location where public riparian rights commence, i.e., the mean high-water mark, is essentially no greater than the right of ingress and egress to an adjacent parcel of land.

In sum, the lot owners have the legal right to build a dock at the water's edge of this easement if otherwise permitted by law. They have the right to cross the property without undue delay to reach any area below the mean high-water mark where public riparian rights exist. They may cross the property to launch any small boat, canoe, or floatation device that can be reasonably launched from the existing seawall. They do not have the right to remain within the easement for extended periods to view the water, fireworks, or the sunset.

Affirmed in part, reversed in part, and remanded.

FULMER, C.J., and NORTHCUTT, CASANUEVA, SALCINES, STRINGER, DAVIS, SILBERMAN, KELLY, CANADY, VILLANTI, JJ., Concur. 

WHATLEY, J., Concurs in part; dissents in part. 


WHATLEY, Judge, Concurring in part; dissenting in part.

I concur in part and dissent in part. I concur as to the majority's conclusion regarding the gate issue. I respectfully dissent as to the majority's conclusions regarding the scope and use of the easement by the dominant estate owners (lot owners). The issue is the same as was before the court in Cartish: Whether riparian rights were implicit in the easement rights reserved to the benefit of the lot owners. 157 So. 2d at 153. It is of no bearing whether the fee owner has erected a dwelling on the land or whether that dwelling is occupied.

The easement measures 22 feet wide and 347 feet in length, terminating at the waters of Boca Ciega Bay. I concur with the trial court and the 1958 final decree that the easement language is unambiguous. As the trial court aptly noted: "This court further finds that an easement providing 'ingress and egress' over lands reaching navigable waters necessarily conveys the riparian rights associated with those lands. Cartish v. Soper, 157 So. 2d 150 (Fla. 2d DCA 1963)." Cartish is the controlling case. It involved an easement in the same subdivision and to the same body of water as in this case. In addition, the language of the easement was virtually identical. The majority also found the easement language to be unambiguous, yet limited the use of the easement to the construction of a dock (if allowable) and to entry into the waters of the bay. This is where I believe the majority in the present case erred. The majority concluded that without a "more elaborate written easement," the rights of the lot owners are vastly restricted. The opposite is true. An easement such as this cannot arise without the participation of the fee owner. [*4] Here, that was Mr. Davis. Davis could have inserted limiting language in the easement, but he did not. Feig, 100 So. 2d at 195, confirmed this premise in stating: "A dedicator may reserve all riparian rights appurtenant to the land encumbered by the easement dedicated." Limiting language was contained in the easement in Hume v. Royal, 619 So. 2d 12 (Fla. 5th DCA 1993). In contrasting Cartish, the Hume court stated: "The easement granted in Cartish simply did not contain the restrictive language which we find in this case." Id. at 14. The lot owners in Cartish were seeking more than simply the right to construct a dock.  The Cartish court stated: "In response to appellees' prayer for a declaration of rights in the easement, the able chancellor determined that riparian rights were implicit in the easement rights reserved to the benefit of appellees." 157 So. 2d at 153. 

Cartish did not limit the riparian rights of the lot owners seeking use of the easement. Riparian rights are few in number. The trial court delineated the riparian rights the lot owners could enjoy. They included the right to fish and enjoy views of and over the waters. These rights, as the trial court noted, also include the right to build a properly permitted dock or observation platform. However, the lack of a dock or related structure will not defeat or frustrate the other rights of the lot owners.

Even if the easement had been found to be ambiguous, the historical testimony at trial would have supported the same result. [*5]

Lastly, it has been noted that the terms riparian rights and littoral rights are now used interchangeably. Technically, riparian rights apply to a river or stream. Regarding riparian rights, Black's Law Dictionary states: "Term is generally defined as the right which every person through whose land a natural watercourse runs has to benefit of stream as it passes through his land for all useful purposes to which it may be applied." Black's Law Dictionary 1327 (6th ed. 1990). Riparian rights have become the common parlance, yet in our case the rights are actually littoral. Black's Law Dictionary defines littoral rights as "[r]ights concerning properties abutting an ocean, sea or lake rather than a river or stream (riparian). Littoral rights are usually concerned with the use and enjoyment of the shore." Id. at 934. 

[See Appendix A]

[See Appendix B] 

I would affirm the trial court in all respects.


[*1] Robert Frost, "Mending Wall," Seven Centuries of Verse: English and American, 588 (Charles Scribners Sons, 3d ed., 1967).

[*2] The dissent suggests that it is of "no bearing" whether the owner of the servient estate has erected a dwelling on the parcel. While Judge Whatley may be entirely correct on this point, we have kept the issue on appeal as narrow as the facts of this case permit.

[*3] "In common usage 'riparian' is generally used to define property having water frontage. In fact, the term 'riparian' refers specifically to land abutting non-tidal or navigable river waters whereas 'littoral' refers to the land abutting navigable ocean, sea, or lake waters." Kester v. Tewksbury, 701 So. 2d 443, 444 n.2 (Fla. 4th DCA 1997). Although the use of "riparian" in this case is technically incorrect, it is consistent with the accepted usage in Florida cases. See Bd. of Trustees of the Internal Improvement Fund v. Sand Key Assocs., Ltd., 512 So. 2d 934 (Fla. 1987).

[*4] In most instances the easement is created by the owner of the fee. 20 Fla. Jur. 2d Easements  13 (2000). 

[*5] Such testimony was elicited with regard to the abandonment issue raised by the Brannons.


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