March 26, 2014

Florida state agency tries to renege on 130-year old land sale

By Christina M. Martin Attorney

Florida has some great legal protections for private property. For example, the Bert J. Harris Act passed in 1995, was designed to protect private property from government actions that “inordinately burden, restrict, or limit private property rights” but that may not rise to the level of an unconstitutional taking. Unfortunately, that spirit of respect for private property seems to have been forgotten by more than one government agency, including the Board of Trustees of Florida’s Internal Improvement Trust Fund (“the Board”).

The Board is trying to take property that it sold more than 130 years ago, claiming that it never had the authority to sell the land in the first place. At issue is submerged land, so called “swamp and overflowed lands” that the federal government conveyed to the state of Florida in 1856 at the state’s request. (Florida government already owned the land under the deeper “navigable” waters.) The Board sold some swamp and overflow lands to a wealthy manufacturer in 1881, in order to pay off massive debts that were incurred in the U.S. Civil War. The manufacturer, in turn, eventually sold that land – including the Coffee Pot Bayou – to other parties. Eventually, Richard and Kelly Ware bought one small piece of the property in the Coffee Pot Bayou, which currently houses a dock.

In 1856, Florida’s own surveyors claimed that the bayou was not navigable when the state requested ownership of the bayou from the federal government. But now the Board is claiming that the 1881 conveyance of portions of the Coffee Pot Bayou was invalid because the bayou was actually “navigable” and not “swamp or overflow lands,” contrary to the claims of the state’s surveyors. If the bayou was navigable, then the land was part of the “public trust,” meaning that under the Florida Constitution, the land may only be sold by the state if it is in the public’s interest.

The age of the claim alone raises some interesting legal and equity issues. For example, the Wares have offered evidence that the bayou was truly swamp or overflow land and that today’s navigability is due solely to dredging after the sale. But their ability to get first-hand witnesses of the dredging or to find the individuals who surveyed the land is long gone. Similarly, the Wares relied on the deed issued by the state. Should the state now be able to benefit from both the sale price and the subsequent improvements of good-faith buyers by claiming it lacked authority to sell its land?

Whatever one’s thoughts are on the public trust doctrine, it is sad that the State of Florida would attempt to profit at the expense of good faith buyers. If the government wants the land that it sold (whether or not the sale was authorized under the doctrine), it should use its power of eminent domain to buy it back. The alternative is to renege on its 130-year-old sale and take the Wares’ and other dock owners’ properties without paying for it. The Board is entrusted with guarding the public trust. But if the Board cannot respect the contract and property rights of each individual with whom they deal, then how can it be trusted to respect the rights of the public?

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