Who Owns the Beach? Part 1


This is part 1 of a series of posts on beach access in Walton County, Florida

Conflict between beach-front property owners and the public (including both tourists and locals who don’t live on the beach) is increasing in Walton County.  People who have for decades used the beach for recreation – walking, running, swimming, sailing, surfing, paddleboarding, and just hanging out – feel threatened by beach-front property owners who want to protect what they see as their property from uses by non-owners.  Those who own tourism-dependent businesses, including beach front rentals, want to insure that tourists have access to the beach to keep them returning.  Those who own beach front property object to tourists who litter the beach, block their views with tents and chairs, disturb their peace and quiet, and damage the beach and dunes.

A recent legal case resulted in beach-front owners successfully obtaining title to beach area adjacent to their platted lots, including areas containing two dune walk-overs that have been used by the public for years.  This case, and a number of well-publicized confrontations between beach users and beach owners, have brought this issue to the forefront in Walton County.  The Walton County Board of County Commissioners will hold a public hearing at 5:00 p.m. on March 16, 2016, at the Emerald Coast Middle School to discuss the issue.  This article is an attempt to summarize some of the legal doctrines involved in this issue.

The Public Trust Doctrine

Centuries of legal precedent have addressed potential conflicts between public and private use of property and have attempted to balance competing interests for the greatest benefit of society.  The Ch’in dynasty in China (249-207 B.C.E.) protected public access to the water.  At least as far back as the Institutes of Justinian (530 C.E.), most western law has regarded running water, the air, the sea, and the seashore as property common to all and therefore owned by none.  The United States, and by extension Florida, inherited this concept through the English common law.  The Florida Constitution provides that the sea and the beach up to the point of mean high water are considered to be held by the state in trust for the public.  Some states have extended this principle across the dry sand of their beaches; Florida, so far, has not.

There are several issues that immediately arise when a property owner tries to establish where, exactly, their property ends and public land begins.  Mean high water is defined by the federal government as the average height of high tides over a period of 18.6 years, and most states follow the same sort of rule.  Short of having an engineer and a surveyor calculate and mark the boundary every year or so, this average doesn’t provide an easy way for a property owner to determine their boundary line.  The rule most often cited by property owners – that they own the dry sand, while the public owns the wet sand – tends to either understate or overstate the amount of property that is publically owned depending on whether there has been a recent high tide.  Further, most property owners don’t realize that their property boundary is constantly changing.  Between beach erosion and rising sea levels, most beach front owners own less and less land each year, a trend that shows no sign of slowing.

Ownership and Use of the Dry Sand

Within the United States, any state with a coastline has struggled with the issue of control over their beaches.  Some states, notably New Jersey, Oregon, Hawaii, Texas, and Michigan have established wide-ranging public access to their beaches under a variety of theories.  Other states, including Florida, are still litigating the right to public access.

The main Florida case to consider use of the dry sand beach is City of Daytona Beach v. Tona-Rama, Inc., 294 So.2d 73 (Fla. 1974).  In that case, the plaintiff sought to preclude the defendant from constructing an observation tower on the beach, arguing that the public had acquired a prescriptive easement over the area through many years of uninterrupted use.  The Florida Supreme Court disagreed with that argument, finding that although the public had long used the beach for bathing, sunning, and other recreational uses, those uses were presumed to be permissive.  Only if the public could establish that their use of the property was “open, notorious, continuous and uninterrupted” and that their use was inconsistent with the rights of the landowner could they establish a prescriptive easement.

Instead, the Florida Supreme Court relied on the doctrine of customary use to resolve the issue.  The court summarized this doctrine as follows:

If the recreational use of the sandy area adjacent to mean high tide has been ancient, reasonable, without interruption and free from dispute, such use, as a matter of custom, should not be interfered with by the owner.  However, the owner may make any use of his property which is consistent with such public use and not calculated to interfere with the exercise of the right of the public to enjoy the dry sand area as a recreational adjunct of the wet sand or foreshore area.

This right of customary use of the dry sand area of the beaches by the public does not create any interest in the land itself.  Although this right of use cannot be revoked by the land owner, it is subject to appropriate governmental regulation and may be abandoned by the public. . . .

The general public may continue to use the dry sand area for their usual recreational activities, not because the public has any interest in the land itself, but because of a right gained through custom to use this particular area of the beach as they have without dispute and without interruption for many years.

The court found that the defendant’s observation tower was a reasonable use that did not interfere with the public’s customary use of the beach area and allowed the observation tower to remain.

Where some states (most notably Oregon) have used a similar doctrine to establish the right of customary use throughout the state, case law in Florida has limited Tona-Rama to specific pieces of property where the factual predicate of long-term use has been established.  In other words, under Florida law customary use “requires the courts to ascertain in each case the degree of customary and ancient use the beach has been subjected to and, in addition, to balance whether the proposed use of the land by the fee owners will interfere with such use enjoyed by the public in the past.”  Reynolds v. County of Volusia, 659 So.2d 1186 (Fla. 5th DCA 1995).   Thus, absent a specific lawsuit establishing the extent and nature of customary use, the public is relegated back to the area below the mean high water line.

There are other approaches that Florida and other state courts have considered in public access cases, but none of them have garnered general support.  The states that have ensured public access to beaches have generally done so through state-wide legislation.  Approaching the determination on a parcel-by-parcel, lawsuit-by-lawsuit basis is simply unworkable in the long run.  Currently there is no precedent in Florida for a local government – city or county – to make a “customary use” determination for its jurisdiction.