STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
ALEXANDER BREST TRUST, )
)
Petitioner, )
)
vs. ) DOAH CASE NO. 88-0378
) DEPARTMENT OF NATURAL RESOURCES, )
)
Respondent. )
)
)
COMMODORES POINT TERMINAL )
CORPORATION, )
)
Petitioner, )
)
vs. ) DOAH CASE NO. 88-0522
) DEPARTMENT OF NATURAL RESOURCES, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice this cause came on for formal hearing before P. Michael Ruff, duly designated hearing officer, in Jacksonville, Florida, on April 20, 1988. The appearances were as follows:
APPEARANCES
For Petitioner: J. Michael Lindell, Esquire
Suite 620, Blackstone Building
233 East Bay Street Jacksonville, Florida 32202
For Respondent: Ross S. Burnaman, Esquire
Assistant General Counsel Florida Department of Natural Resources
3900 Commonwealth Boulevard Douglas Building, Suite 1003 Tallahassee, Florida 32399
BACKGROUND
This cause arose upon petitions for formal proceeding filed by Alexander Brest Trust (Brest) and Commodores Point Terminal Corporation (CPTC), with The Florida Department of Natural Resources (DNR). In this proceeding DNR acts on behalf of the Board of Trustees of the Internal Improvement Trust Fund (Board) in accordance with Section 253.002, Florida Statutes. The Petitioners are
challenging DNR's intended decision to deny disclaimers of title to certain submerged lands in the St. Johns River, adjacent to Petitioner's uplands. See Section 253.129, Florida Statutes. Specifically, the submerged lands for which the disclaimers of title are sought consist of the water bottoms in which the berthing channels serving the Petitioners port facilities, are excavated. The channels and submerged lands at issue are contiguous with and parallel to the bulkheaded uplands owned by the Petitioners.
Prior to hearing, the two proceedings were consolidated, pursuant to Rule 22I-6.011, Florida Administrative Code. The parties have submitted a pre- hearing stipulation by which they agree that The Division of Administrative Hearings has jurisdiction regarding this matter. Strictly speaking, however, jurisdiction is an issue of law which cannot be stipulated to, and thus created, by agreement of the parties. The forum either has jurisdiction or it does not, based upon extant codified or non-codified legal principles. Accordingly, the issue of jurisdiction will be dealt with and determined in the Conclusions of Law herein. In essence, in one sense, this amounts to the rather novel situation of an administrative proceeding to "quiet title" to the subject lands. Quiet title questions are within the exclusive jurisdiction of the circuit courts of Florida. However, the agency asserts, and the parties agree, that the decision to deny a disclaimer of title by the agency herein, may be heard in this forum since that decision is, in effect, a decision which affects the "substantial interests" of the Petitioners, as envisioned by Section 120.57(1), Florida Statutes. The cause thus proceeded to hearing with these considerations in mind.
Petitioner presented six witnesses, one of them by deposition, and 24 exhibits at the hearing, Exhibits 21-22.6 were admitted as corroborative hearsay only. See Section 120.58, Florida Statutes. The Respondent produced one witness and eight exhibits, all except Exhibit 7 being admitted into evidence.
Subsequent to the hearing, the parties elected to transcribe the proceedings and agreed upon an extended briefing schedule, to commence after the filing date of the transcript. The parties ultimately, timely filed Proposed Findings of Fact and Conclusions of Law, which have been treated in this recommended order and are specifically addressed in the appendix attached hereto and incorporated by reference herein.
The issue to be resolved in this proceeding concerns whether the disclaimer to any title in the subject submerged lands should be granted to Petitioners.
Incorporated in that general issue is the question of whether the berthing channels dredged by Petitioners in the early part of this century, and as maintained thereafter, constitute "permanent improvements" to the lands in question, such that, pursuant to the "Butler Act," Chapter 8537, Laws of Florida, 1921, Sections 1 and 3, the title to those submerged lands became vested in the Petitioners and/or their predecessors in title.
FINDINGS OF FACT
The Petitioners, Alexander Brest Trust and Commodores Point Terminal Corporation, have respectively filed applications with The Department of Natural Resources, pursuant to Section 253.129, Florida Statutes, and the "Butler Act," Chapter 8537, Laws of Florida, 1921, for issuance of "disclaimers" to certain lands situate in Duval County, Florida and the City of Jacksonville, consisting of water bottoms of the St. Johns River lying adjacent and contiguous to the Petitioner's upland, bulk-headed property.
The Respondent, DNR, is an agency of the State of Florida charged with implementation of Chapter 253, Florida Statutes relating to sovereign submerged lands. It serves as the staff to the Board of Trustees of the Internal Improvement Trust Fund, pursuant to Section 253.002, Florida Statutes. The department has the authority to process applications for disclaimers to state lands under the provisions of Section 253.129, Florida Statutes and Section 18- 21.014, Florida Administrative Code.
The Alexander Brest Trust is the owner of a parcel of property adjacent to the St. Johns River, located in Jacksonville, Duval County, Florida. That parcel was bulkheaded and backfilled during the period from 1915 to 1917. Commodores Point Terminal Corporation is the owner of a parcel of land adjacent to the St. Johns River located in Jacksonville, Duval County, Florida, which parcel was also bulkheaded and backfilled during the period from 1915 to 1917. The two parcels are contiguous and adjacent.
Prior to the bulkheading and backfiling by Brest and CPTC's predecessors in title, the area landward of the bulkhead included submerged lands with water depths of up to eighteen feet below mean high water. The material used by the predecessors-in-title to backfill behind the bulkhead was obtained by dredging an area waterward of that bulkhead. The Respondent has already issued disclaimers of title for the area of land enclosed by and landward of the bulkhead. The Petitioners are the current owners of the upland properties which are contiguous to the subject submerged property and their predecessors in title owned the property prior to 1915.
The Respondent has initially elected to deny the applications as to the subject property, on the basis that the dredging activity took place on numerous occasions which demonstrated that the dredging was not a "permanent improvement" within the meaning of the above-cited provisions of law. Moreover, the department maintains that there is no legal requirement that disclaimers be given for "maintenance dredging" of submerged lands, on the theory that such maintenance dredging might constitute a permanent improvement for purposes of the "Butler Act." The department states that this is particularly true when the submerged lands in question are seaward of an existing "bulkhead line."
The subject property, including the uplands, were undeveloped as of 1856, the date of the passage of the Riparian Act of 1856," Chapter 791, Laws of Florida (1856). During the year 1910, the Secretary of War, (predecessor to the United States Army Corps of Engineers (Corps), recommended to Congress additional improvements to the Jacksonville Harbor based upon a finding that "the terminal facilities in Jacksonville are rapidly being developed to keep pace with the increased facilities afforded navigation by the deepened channel and the rapidly increasing business of the city." The Secretary of War stated that "sufficient undeveloped waterfront still remains for the establishment or betterment of terminal facilities for some time to come." The Secretary of War opined that the present and prospective commerce of that port demanded an improved channel and that the benefits to be derived would justify the cost of the thirty foot channel to be dredged. In due course, the Corps dredged the so called "Arlington Cut" channel in 1910 or thereabouts. It was located approximately 2,000 feet off-shore from the CPTC parcel and did not continue around Commodores Point and the bend in the river, so that it did not lie in a south or southwesterly direction off the Brest property at that time. Thereafter, and sometime in the mid-1930's, another channel was excavated by the Corps, the so called "terminal channel," which is west of the Arlington Cut and does lie off shore of the Brest property. Some sort of channel existed in the river prior to 1910, however, as the Secretary of War's statement contemplated
an "improved channel" or a "deepened channel" and also referenced that terminal facilities in Jacksonville were being developed, and referred to the rapidly increasing business of the city and generally to the already ongoing commerce of that port. The St. Johns River would of course have its own natural channel consisting in essence of a continuous line parallel with the natural course of the river, and in the river, characterized by its greatest depths.
The United States Army Corps of Engineers, as a matter of policy, requires local port operators to provide and maintain adequate terminal facilities for commerce before the Corps will recommend deepening of federally maintained channels. This would include a requirement that the local port operators deepen their own berthing channels where necessary to receive the benefit of the federal channel improvements.
In 1914, three Jacksonville families, the Cummers, Coachmans and Taliaferros owned the undeveloped lands in question, which later became known as the Commodores Point Terminal. On April 9, 1915, these three families together organized and chartered a corporation named as "Commodores Point Terminal Company." The corporation was organized in order to maintain, own and operate "warehouses, storage yards, terminals, elevators, presses, tanks, scales and other devices for loading and unloading merchandise; wharves, docks, vessels, boats and water craft of all kind for the purpose of furnishing terminal storage and forwarding facilities and for receiving, retaining, caring for and delivering every class of movable property." The Articles of Incorporation also announce the purpose of carrying on the business of ship owners and agents for lines of ships and other water craft, performing towing and lighterage, to, and generally dealing in, all articles suitable for the construction, equipment and operation of marine craft of every kind and the loading, unloading and discharging of such water craft; the design, construction and repair of vessels, ships, boats and water craft and the maintenance of drydocks, wharves, piers and all structures in connection with the warehousing, forwarding and shipping business. The respective lands of these families, depicted in Petitioner's exhibit 4, were then conveyed to the new corporation.
During 1914 and 1915, the corporation retained engineers who prepared detailed plans and specifications for development of the lands in question into modern port facilities. The construction plans, dated 1914, called for the construction of a concrete and steel bulkhead system along the line depicted on the plans in Petitioner's exhibit 3. Those plans identified the pre-development shoreline and prevailing water depths prior to the bulkheading and backfilling of the uplands. The 1914 plans also identified the location of certain rock strata located in the submerged lands beneath the bulkhead line. See Petitioner's exhibit 3. The original contour of the river bottom prior to construction of the steel bulkhead is shown by Petitioner's exhibit 4 consisting of the original 1915 construction drawings showing the "strata on line of bulkhead." The 1915 plans then clearly show that the berthing channels were excavated to a depth of thirty feet along side of the bulkhead. Those plans also clearly identify the length of the new bulkhead and the corresponding length of the berthing channels. The various sections of bulkhead exceed 5,000 feet in length. In excess of 4,200 feet of that bulkhead length is embedded in the underlying rock strata indicated on the plans.
Construction of the bulkhead and the corresponding berthing channels parallel to it, required excavation of considerable amounts of rock, in addition to softer materials such as sand, clay and silt. Silt actually constituted a very small proportion of the material originally excavated from the berthing channels in front of the bulkhead.
By April 11, 1916, as shown by the corporate minutes for that date, construction for the terminal facility was well underway. The corporation by that date had already invested approximately $127,000.00 in bulkheading for the property. The filling of the upland portion behind the bulkhead area was getting underway, but rock removal had become a problem. Those minutes contain an estimate of costs of $35,000.00 for six months effort at removing rock and noted difficulty in placing support beams for the bulkhead because of a second strata of hard rock that was encountered which would require blasting. These same corporate minutes authorized a contract for removing the rock at a cost of
88 cents per cubic yard, compared with 8 cents per cubic yard being paid for dredging of softer material. Thus it can be seen that removing rock during that time cost approximately eleven times the cost of removing the same quantity of softer fill material.
Corporate minutes of a board meeting during 1916 show that, as of October 1916, a fifteen hundred and ninety foot section of bulkhead had required the excavation of eighty-three thousand six hundred and ninety four cubic yards of sand compared to twenty eight thousand nine hundred eighteen cubic yards of rock. The rock therefore constituted in excess of twenty-five percent of the materials excavated out of that major section of the berthing channels. From November 10, 1915, through March 2, 1917, approximately 1,278,539 cubic yards of fill material had been excavated at a total cost of $91,465.63. The terminal facility was thus nearing its completed stage at this time with completion of extensive upland development, in terms of wharves and other terminal facilities, in addition to the bulkhead and berthing channels.
The terminal facility was thus substantially completed by 1920 and in operation. Improvements to the berthing channels continued throughout the 1920's and wharf houses were constructed to house and store ship cargos.
During the 1920's and 1930's, the terminal facility was engaged in a thriving shipping business for incoming and outgoing cargos. This fact is illustrated by photographs taken during 1932 of the terminal facility, admitted into evidence as Petitioner's exhibit 20, which demonstrate the channels, bulkheads, platforms, wharf houses, railroad tracks and vessels forming a part of the facility and its active commercial business at this time. These photographs depict deep draft ships drawing between 20 and 30 feet of water moored in the berthing channels along side the bulkhead and wharves. The photographs also depict certain large boulders which had been removed from the berthing channels and are representative of the rock required to be excavated to install the channels. Additionally, photographs, dated 1921, admitted into evidence show extensive commercial activity by deep draft ocean-going vessels using the berthing channels shortly after the terminal facility was completed and therefore shortly after the initial dredging of the berthing channels.
Mr. Alexander Brest testified that, beginning in 1926, he maintained an office approximately 150 feet from the Commodores Point bulkhead. He established that the vessels depicted in the photographs, in evidence in Petitioner's exhibit 20, are representative of the types of ships that utilized the terminal facilities and the berthing channels during the years involved.
Sometime around 1935 or possibly shortly prior thereto, the Corps of Engineers relocated the "federal channel" away from the Arlington Cut and routed it to run directly along the north side of the Commodores Point Terminal facility, the so called "terminal channel." Based upon the policy described by Mr. Sam Isenberg, a longtime employee of the Corps, to the effect that adequate
terminal facilities must exist before federal channel improvements will be authorized, a reasonable inference is drawn from these facts that the Commodores Point Terminal facility constituted a major port terminal facility by 1935 for ocean-going traffic, sufficient for the government to justify re-location and improvement of its channel.
In 1938 the corporation was maintaining a depth of 30 feet of water in front of its bulkhead and in the berthing channels in order to continue to accommodate ocean-going commerce. By that date, the terminal facility had been expanded to also include four wharf houses beside the railroad tracks and related platforms. The significance of the Commodores Point Terminal facility to commerce continued into the 1940's and further federal improvements were made to the terminal channel excavating it to a depth of 34 feet. The federal improvements would not have been authorized in the absence of adequate terminal facilities such as those at Commodores Point, including the fact that during the 1940's a portion of the Commodores Point property was being used for government operated shipyard building "liberty ships." It Is also established that by the early 1940's, the federal channel in question followed the entire bulkhead line from the north end of Commodores Point Terminal all the way around the point to the portion of river front now owned by the Alexander Brest Trust.
All the improvements regarding the channels and their access to the federal channel were constructed to serve the upland terminal facility improvements as, essentially, a unified commercial port facility. See Petitioner's exhibit 14C-1 and 2 in evidence. The uplands presently owned by Commodores Point Terminal Corporation and the Alexander Brest Trust continue to be utilized for the berthing of commercial vessels and attendant commerce to this day, although their business has declined somewhat since the 1950's, due to increased competition from the Jacksonville Port Authority commercial facilities for ocean-going ships. Nevertheless, ocean-going vessels drawing in excess of thirty feet of water continue to use the facility. The terminal facility would be unable to function without the berthing channels as originally dredged and as presently configured. Those channels have permitted the facility to be used to load and unload and otherwise accommodate large ships and tankers for over fifty years on a continuous basis. As shown by the testimony of Mr. Isenberg and the survey dated January 1987, in evidence, the lands for which Petitioners seek the disclaimer are not so wide and extensive as to result, by the disclaimer, if granted, in an interference with navigation and commerce on the St. Johns River.
Considerable evidence was introduced as to the distinction in quantity, character and cost between the original excavation dredging of the berthing channels and subsequent maintenance dredging, as that relates to the question of whether the dredging of the channels constituted a permanent improvement to the realty involved.
In this connection, Mr. Kreis testified that the most recent maintenance dredging took place in 1986. That involved removal of eighty-five hundred and eighty-seven cubic yards of material. The testimony of Mr. Ray established that maintenance dredging for the Commodores Point berthing channels has averaged approximately 4,000 cubic yards of material per year if it were averaged out over the period of time dating back to 1961. The original dredging for construction of the berthing channels from 1915 to 1917 involved the removal of 1,278,539 cubic yards of material, approximately twenty-five percent of which was solid rock. Thus, the quantity of silt and other soft materials dredged on an annual basis represents only about .3 percent of the original quantity of materials excavated from the channels.
Mr. Isenberg and Mr. Ray have considerable experience in the dredging business and explained the significant difference in character, difficulty and costs between the original excavation dredging of the channels, as opposed to mere maintenance dredging. Mr. Isenberg explained that the original dredging of the river channel or the deepening of a the river channel below the previous depth involved removal of rock. This has to be done with a large cutter dredge, which is operated by a large diesel engine. If the rock is very hard, it must be drilled and blasted before the dredge can pick it up. Commonly accepted engineering practice requires removal of rock to slightly over specified depth so that subsequent maintenance dredging operations will not require the use of a rock cutter head and will allow removal of any accumulated silt at a small fraction of the cost of having to use rock cutting equipment. Maintenance dredging thus basically involves only removal of silt and light sands. As established by Mr. Ray, dredging of silt or sand requires only light weight, "standard" type of dredging equipment, however, a special dredge would have to be obtained in order to dredge rock. Samples of rock removed from the berthing channels at Commodores Point, displayed at hearing, revealed that it is a very hard type of "chert." Once such rock is removed from a channel, of course, it does not return and subsequent channel dredging is basically a sweeping operation. It is done as periodic maintenance of the original and already- constructed channel, unless that channel is later required to be deepened.
Mr. Lake Ray is a Registered Professional Engineer in the State of Florida, as well as a licensed land surveyor. He has extensive background and training in the field of civil engineering and particularly with respect to the design of port facilities. He has extensive familiarity with the specific property in question. He opined that, based upon his knowledge of dredging and his specific knowledge of the property involved, that the original excavation dredging constituted a permanent improvement to the submerged lands in question.
Mr. Alexander Brest is a graduate of M.I.T., with a degree in civil engineering. He has taught as a professor of civil engineering at the University of Florida. He also expressed the opinion that, as of 1947 when he acquired his portion of the property in question, that it had been permanently improved by the prior original dredging or excavation of the berthing channels, as well as the maintenance dredging. The current commercial uses of the Brest property have not required any maintenance dredging since Mr. Brest acquired the property In 1947. This testimony coupled with the "corroborative hearsay" affidavits of Paul Kirkland of Wood Hopkins Contracting Company, Noel Pepper of Pepper's Towing Company and Eugene Hagan, a Florida Registered Professional Engineer, established that the sand, clay and rock removed from the dredged berthing channels resulted in a permanent change in the river bottom. The indentation created by the dredging may fill up with silt, but the silt is easily removed compared to the original dredging process involving sand, clay and rock removal. The initial cut in the river bottom should be considered a permanent improvement to the adjacent marine facility. Once the rock, clay and sand materials are removed the channels are considered cut into the river bottom permanently. Thereafter, one would only expect to do maintenance dredging of easily removed silt and minor traces of sand on a periodic basis, which is what the history of the maintenance of the channels, as indicated in this record, reflects. The opinions of the above-named experts are accepted, based upon the above findings concerning their training, experience and familiarity with the physical characteristics of the lands and waters in question.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the parties and subject matter of this proceeding, pursuant to Section 120.57(1), Florida Statutes. This action involves an agency decision, the denial of the disclaimer, which clearly affects the substantial interests of the Petitioners and thus it may be heard in this forum. Although controversies involving title to realty normally lie in the Circuit Courts, the decision concerning whether to issue the disclaimer involves an agency choice which can be formulated through formal proceeding in this forum, with the final, resultant alteration of the state of the land titles themselves being accomplished, in parallel fashion, under the auspices of the appropriate Circuit Court.
The "Butler Act" (Chapter 8537, Laws of Florida 1921), former Section 271.01, Florida Statutes, provided as follows:
"Sec. 1. Whereas, it is for the benefit of the State of Florida that the waterfront property be improved and developed; and
Whereas, the state being the proprietor of all submerged lands and water privileges within its boundaries, which prevents the riparian owners from improving their water lots, therefore
The state of Florida, for the consideration above mentioned, subject to any inalienable trust under which the state holds said lands, divest itself of all right, title and interest to all lands covered by water lying in front of any tract of land owned by the United States or by any person, natural or artificial, or by any municipality, ...
lying upon any navigable stream or bay of the sea or harbor, as far as to the edge of the channel, and hereby vest the fuel title to the same, subject to said trust and to the riparian proprietors, giving them the full right and privilege to build wharves into streams or waters of the bay or harbor as far as may be necessary to effect the purposes described, and to fill up from the shore, bank or beach as far as may be desired, not obstructing the channel, but leaving full space for the requirements of commerce, and upon lands so filled in to erect warehouses, dwellings or other buildings and also the right to prevent encroachments of any other person upon all such submerged land in the direction of their lines continued to the channel by bill in chancery or at law,
Also, confirming to the riparian proprietors all improvements which may have heretofore been made upon submerged lands.
Provided, that the grant herein made shall apply to and affect only those submerged lands which have been, or may be hereafter,
actually bulkheaded or filled in or permanently improved continuously from high water mark in the direction of the channel, or as near in the direction of the channel as practicable to equitably distribute the submerged lands, and shall in no wise affect such submerged lands until actually filled in or permanently improved.
Sec. 2. Nothing in this article contained shall be so construed as to release the title of the state of Florida or any of its grantees to army of the swamp or overflowed lands within the limits of the same, but the grant herein contained shall be limited to those persons and bodies corporate owning lands actually bounded by and extending to high water mark on such navigable streams, bays and harbors.
Sec. 3. This act shall take effect as of the day, to-wit: December 27, 1856, when the act entitled "an act to benefit commerce," was adopted by the legislature of Florida, and shall be continuously effective thence
forward and hereafter; and hereby vests in the riparian proprietors and grantees and successors, in right, the title, right and interest given under the provisions of this act.
Sec. 8. Nothing in this act contained shall be construed to prohibit any person from boating, bathing or fishing in water covering the submerged lands of the state or from exercising any of the privileges heretofore allowed by law as to such submerged land and water covering the same,
until such submerged lands shall be filled in or improved by the riparian owner as herein authorized."
The above-quoted language of the Butler Act, adopted in 1921, clearly shows the legislative purpose of benefiting the state by providing for the ability of riparian owners to improve and develop waterfront property. It was recognized that since the state was the proprietor of all submerged lands within its boundaries, that riparian owners were thereby impeded from "improving their water lots." Thus, in order to remove that impediment to development and conditioned on riparian owners making such improvements, the legislature chose to vest full title to riparian proprietors as to whose lands actually bounded by the high water mark, conditioned on them making improvements or bulkheading or filling-in such property.
The Butler Act was adopted in 1921 to both cure and replace the Riparian Act of 1856 and thus the legislature made it effective as of December 27, 1856, the date when the prior act was adopted. The Supreme Court of Florida, in Duval Engineering and Contracting Company vs. Sales, 77 So.2d 431
(Fla. 1954) held that the purpose of the 1856 and 1921 acts were to encourage commerce and that the development of submerged lands for commercial use was the legal consideration for which the state could grant title thereto to the riparian owner, pursuant to the "Butler Act."
Thus the condition precedent required to be fulfilled before actual vesting of title to the submerged lands in the name of the riparian owner is accomplished is that the lands be "actually bulkheaded or filled in or permanently improved." (Emphasis supplied.) Further such permanent improvement must be continuous from the high water mark "in the direction of the channel." In the instant case, however, despite the use of the disjunctive "or" in the language in the act, the Respondent DNR has taken the position that the lands in question should have been actually "filled in" prior to May 29, 1951 as a condition precedent to vesting of title under the above statute. In Jacksonville Shipyards, Inc., vs. Department of Natural Resources, 466 So.2d 389 (Fla. 1st DCA 1985), however, it was held that one is entitled to issuance of a disclaimer as to the title to the submerged lands, under the Butler Act, for submerged lands that have been permanently improved prior to May 29, 1951, the date the act was repealed, even where said lands have been neither bulkheaded or filled. That decision expressly struck down the Respondent's requirement that filling be accomplished before a disclaimer could be issued, by the following language:
"The plain language of the Butler Act provides for acquisition of title to the submerged lands by bulkheading, filling, or permanently improving. The DNR rule, purporting to require that the upland owner have filled the submerged land in order for the owner to apply for disclaimer confirming title, is in derogation of the statute and therefore invalid." (Emphasis supplied.)
This decision reveals that the sole dispositive issue for determination in this proceeding concerns whether or not the subject submerged property has been "permanently improved" prior to May 29, 1951, the date of the repeal of the Butler Act.
It is concluded that indeed, the subject submerged parcels were permanently improved prior to May 29, 1951, so as to satisfy the requirement of the Butler Act for vesting of title thereto in the riparian owners, the Petitioners. In reaching this conclusion the immense scope of the original excavation dredging performed during the period 1915 to 1917 has been considered in terms of the quantities of material removed as compared with subsequent, periodic maintenance dredging. The degree of difficulty and cost associated with the original excavation dredging, has been considered. It included removal of substantial portions of rock, compared with subsequent maintenance dredging, (approximately 25 percent of the total 1.2 million plus cubic yards of material originally removed). Further persuasive consideration involves the overall essential nature of the berthing channels to the commercial operation of the terminal facility as a whole and to all related upland improvements. It has been established that the improvements to the contiguous upland are clearly the kind of water-front commercial development which the legislature sought to encourage by enacting the Butler Act and the earlier Riparian Act and that the dredging of the channels on the submerged lands in question, immediately waterward of the high water mark and of that improved upland, was necessary to and an integral functioning part of those commercial improvements.
The Respondent seems to take the position that because periodic maintenance dredging of the channels involved has been required, that they did not really constitute a "permanent improvement" to the realty. However, the use of the phrase "permanently improved" in the Butler Act does not mean absolutely, "perpetual or forever." The word "permanent" implies that there is no intention of removing or abandoning it and that it will remain until its purpose has been accomplished. See Texas and Pacific Railroad Company vs. City of Marshall, 136 US 393, 34 L.Ed. 385, 10 S.Ct. 846 (1889) wherein the court stated that a fair meaning of a "permanent establishment of a railroad terminus, including machine shop, was that there was no intention at the time of removing or abandoning it, and that `the word permanent' does not mean `forever' or lasting forever or existing forever." 136 US at 403. Pertinent Florida decisional law also reveals that the word "permanent" does not always denote lasting forever or have a meaning opposite from temporary. Rather, the word "permanent" in the statute is often construed according to its nature in relation to the subject matter of the statute. Indeed the requirement of permanency has been found satisfied where "presence is consistent with continuity and not sporadically or temporarily present." See City of Lakeland vs. Lawson Music Company, 301 So.2d 506 at 508 and cases cited therein. In consideration of the extensive nature of the original excavation dredging incidental to the construction of the terminal facilities above the high water mark, it is determined that the channels were indeed an essential part of the conduct of port terminal cargo-handling, commercial operations. In light of the fact that such operations have been conducted at the Petitioner's facilities continuously, and because of, the installation of the berthing channels, for in excess of 68 years, there is no doubt that the excavation dredging work in question fulfills the concept of "permanency" described in the above decisional law, and as that concept relates to the subject matter of the above-quoted statute.
The Respondent also contends that in the absence of docks, piers or wharf houses actually built out over the submerged lands in question, that dredging alone cannot be a sufficient "improvement" to satisfy the purposes of the Butler Act. That contention is rejected.
The concept of "improving" real estate is not limited to construction of structures on or above the land in question, but also applies to any alteration of the land which makes it more valuable or more useful for its intended purpose. The term "improvements" includes everything that makes a piece of property better, renders it more useful or enhances its value. As stated in Volume 1, Fla. Jur. 2d. Accession, Section 8:
"Generally, the term `improvement' includes everything that permanently enhances the value for premises for general uses. It is used interchangeably with the word
`betterment'. The term encompasses not only buildings and fixtures hut also many other things. Common illustrations are party walls; substantial additions to and repairs in an existing building; a well; an ornamental garden; and the draining, filling, clearing , ditching, grading, paving, landscaping, subdividing, fitting for cultivation and cultivation of land." (See cases cited therein.)
Another definition of improvement occurs at 713.01, Florida Statutes, in that Section, at paragraph (7) "improve" is defined to mean build, erect, place, alter, remove repair or demolish any improvement over, upon, connected with or beneath the surface of real property, or excavate any land, or furnish materials for any of these purposes or perform any labor or services upon improvements, etc. At paragraph (8), under that section "improvement" is defined to mean "any building structure, construction, demolition, excavation, landscaping or any part thereof existing, built, erected, placed, made or done on land or real property for its permanent benefit." (Emphasis supplied.) The evidence of record leaves no question but that the dredging of the channels involved has effected a "permanent benefit" on the submerged lands in question because their use has been enhanced in terms of the inherent value of the use to which those lands could be put after the dredging, that is for commercial port facility purposes. That is the very type of use envisioned by the "title transfer language" in the above-quoted statute. Other jurisdictions too have followed like interpretations of the term "permanent improvement," as in Mazel vs. Bain, 272 Ala. 640, at 133 So.2d 44 (1961) wherein it was held that "the clearing, grading or excavation of land is a permanent improvement" id. at 47. (Emphasis supplied.) Holding in a like vein are the other decisions cited in the Petitioner's post-hearing Proposed Recommended Order, which generally provide that such activities as land clearing, grading, cultivating, construction of ditches and canals and like changes in the natural land itself can be "permanent improvements."
Clearly, the original dredging of the subject submerged lands fits the above-mentioned definition of "permanent improvements" because the dredging beneficially altered the natural state of the land in a manner more extensive than ordinary repairs or maintenance (i.e. maintenance dredging since that time). The alterations enhanced, to a substantial degree, the value and usefulness of the property incidental to its use by the terminal facility. In fact, records, from 1961 forward, revealed that maintenance dredging averaged at most approximately 4,000 cubic yards of material per year on an average, annual basis and the original dredging of the berthing channels at issue involved the removal of in excess of 1.2 million cubic yards of material in an approximate two-year-time span.
The Jacksonville Shipyards case, supra, itself envisions the concept that dredging can be a "permanent improvement" wherein the court stated:
"Prior to May 29, 1951, appellant made certain structural additions to the adjacent submerged lands now in question, including piers, docks, wharves, dry docks, railroad tressels, and dredging." (Emphasis supplied.)
The court went on to state in a footnote describing those improvements as follows:
"The record, consisting of various dated maps, plats, surveys and photographs reflect the improvements existing before May 29, 1951, consisted of, inter alia:... dredging of the open waters between the piers and docks approximately every six months; ..." id. at footnote 3. (Emphasis supplied.)
This decision reveals that the submerged lands in the Jacksonville Shipyards case were considered permanently improved in the meaning of the Butler Act because they had been dredged incidental to the use of the adjacent piers and docks. Some of these lands included "open waters" over which no superstructure or other above-ground or above-water structure had been erected. Thus, the instant case is not really distinguishable in concept from the First District's opinion in the Jacksonville Shipyards case. The berthing channels were constructed incidental to the platforms, docks, wharf houses and railroad trestles constructed on the upland portion of the Petitioner's property and which has already been the subject of a disclaimer by the department. The fact that the dredging in this case took place along-side the bulkhead as opposed to between piers or docks projecting out into the waters and submerged lands has no materiality. In both cases "open waters" were permanently improved, through dredging, to accommodate the needs of commercial marine traffic as part of an integrated, commercial terminal facility and operation.
Sec. 1 of the Butler Act quoted above provides, as to the lands described therein, that as to such lands lying in front of any tract of riparian land extending as far as to the edge of the channel, that the state:
"... hereby vests the full title to the same, subject to said trust in and to the riparian proprietors ..."
The Butler Act was expressly repealed by Chapter 57-362, Laws of Florida, effective June 11, 1957. This Act, which amended Section 253.12, added Sections 253.122, 253.123, 253.124 and 253.125 through 253.128 as the so-called "Bulkhead Act." Section 9 of this Act specifically states as follows:
"Section 271.01, Florida Statutes, is hereby expressly repealed. [The Butler Act].
Provided, however, the title to all lands heretofore filled or developed is herewith confirmed and the upland owners and the trustees shall on request issue a disclaimer to each such owner."
The plain meaning of those above-quoted portions of the Butler Act and the statute repealing them clearly demonstrates that title to the submerged lands became fully vested in a riparian owner at the time the owner either bulkheaded, filled or permanently improved the submerged lands in question. If that has occurred before the effective repeal date of the Butler Act, May 29, 1951, then title has automatically vested to such submerged lands in the riparian owner. It is thus clearly irrelevant to consider herein, as Respondent seems to suggest, any change in the use of the submerged lands by the current owner as somehow affecting the state of his title, or the issue of whether a disclaimer should be issued. This is because title has already vested in the owner by operation of law, given that permanent improvements on the submerged lands have been made, as the hearing officer has concluded is the case. There is no provision in the Butler Act, nor in case law, which would construe that any change in use or other reason, could effect a forfeiture of title to those submerged lands which had previously vested in the riparian owner. This interpretation is confirmed by the Supreme Court's opinion in Duval Engineering and Contracting Company vs. Sales, supra., wherein the court held that "the condition imposed on the grant necessitates the improvement to give the grantee a fee simple title. Expressed otherwise, such lands were subject to reversion any time before the provisions of the grant or exercise." In other words, the
Supreme Court in that case made it clear that fulfillment of the condition established by the Butler Act, namely improvement of the submerged lands, granted the riparian owner a fee simple title. Assuming conditions of the Butler Act were met prior to May 29, 1951, the title to the submerged lands became fully vested and perfected in the riparian owner and was not subject to reversion back to the state by reason of any change of events or circumstances occurring after that date.
The Respondent has also suggested that the submerged lands in question lie waterward of an alleged established bulkhead line and that makes this case distinguishable from the Jacksonville Shipyards case. Mr. Ray, a registered land surveyor, testified, however, that the established bulkhead line was the outside boundary line of the subject submerged lands. On the other hand, Mr. Bruce Linton, testified with less certainty that he thought the bulkhead line might be synonymous with the existing bulkhead structure. In any event the evidence of record does not clearly reflect the existence or location of a "bulkhead line" as envisioned by the above-cited 1957 statute or "Bulkhead Act."
In any event, the Butler Act makes no reference to the "bulkhead line" as being any sort of limit upon the extent to which the state may divest itself of title to the submerged land. The only limitation in the Butler Act is that the grant extends to the "edge of the channel" and must leave "full space for the requirements of commerce." There has been no evidence presented to show that the boundaries of the submerged lands and the berthing channels excavated therein interfere in any manner with any established channel or with the requirements of commerce, in fact, they further the requirements of commerce.
Further, the Jacksonville Shipyards case makes no mention of the whereabouts of any "bulkhead line" nor the relevance of any such line to obtaining a disclaimer pursuant to the Butler Act. Although the Respondent seems to suggest that the Bulkhead Act seems to retroactively impose a limitation upon grants of title as to submerged lands, by establishing the authority of counties within the state to fix bulkhead lines, there is certainly no provision in that statute which would provide that the establishment of such a bulkhead line would have a retroactive, limiting effect upon the vesting of title pursuant to the Butler Act. In fact, in Chapter 57-362, the law repealing the Butler Act, appears the language quoted from Section 9 above which confirms titles to lands "filled or developed" in the upland owners, in the context already referenced.
Thus, the Respondent's argument in this regard is not supported by competent evidence of record, but is also immaterial for purposes of rights accruing under the Butler Act.
Finally, the Respondent contends that the language in the Act which requires that the permanent improvements at issue be made in the direction of the channel, has not been complied with by the Petitioners and their predecessors in title, because at the time the "permanent improvement" was made, that is, the original dredging of the berthing channels, the "federal channel" lay 2,000 yards away in a generally northerly direction and was not directly-off shore of the dredged channels. Thus it is argued that they were not dredged "in the direction of the channel." This interpretation ignores the plain meaning of the language of the Act quoted above and operative herein. The language indicating that the improvements be made from the high water mark "in the direction of the channel" merely means, given the overall context of that statute, that the improvements be made in the direction of the navigable portion of the water body or the deeper portion of the water body usable by commerce.
"In the direction of the channel" cannot be interpreted to mean, in a narrow sense, in the direction of a dredged, federally maintained channel, but rather, should be interpreted to mean "channel" in its commonly accepted sense of being the deeper portion of a water body which is used for the conduct of navigation and commerce. The evidence of record clearly reflects that the berthing channels in question were dredged from the high water mark extending in a direction toward the navigable portion of the St. Johns River or the "channel." In fact, the Butler Act allows lands so permanently improved to be vested in the riparian owner as far as the "edge of the channel" which means that the upland owners in question could probably have extended their dredging and other improvements much further waterward of the mean high water mark and still have been able to obtain title thereto based upon the plain language of the Butler Act.
Thus, it is concluded that the mere fact that a dredged, federally- maintained navigation channel did not lie immediately off-shore of every portion of the berthing channels in question, or even any portion of the berthing channels, does not mean that the installation of the channels was not done in such a way as to comport with the title-vesting provisions of the Butler Act, cited abode.
In summary, the Hearing Officer concludes that, based upon the evidence presented, as reflected in the above Findings of Fact, that the Petitioners have met their burden of demonstrating that these submerged lands were indeed "permanently improved" within the meaning of both the Butler Act and Section 253.129, Florida Statutes, prior to May 29, 1951, and that therefore the Petitioner is entitled to issuance of the disclaimers sought for these lands by the Board of Trustees of the Internal Improvement Trust Fund.
Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, as well as the pleadings and arguments of the parties, it is, therefore,
RECOMMENDED that a Final Order be entered by the Board of Trustees of the Internal Improvement Trust Fund granting the disclaimer sought by the Petitioners, in the manner and for the reasons found and concluded above.
DONE AND ENTERED this 9th of January, 1989, in Tallahassee, Leon County, Florida.
P. MICHAEL RUFF Hearing Officer
Division of Administrative Hearings The Oakland Building
2900 Apalachee Parkway
Tallahassee, FL 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 9th day of January, 1989.
APPENDIX TO RECOMMENDED ORDER CASE NOS. 88-0378 & 88-0522
Petitioner's Proposed Finding of Fact: 1-24. Accepted.
25-31. Rejected as subordinate to the Hearing Officer's Findings of Fact on the subject matter.
32-39. Accepted.
Rejected as subordinate to the Hearing Officer's Findings of Fact on the subject matter.
Rejected as constituting discussion of evidence presented and not a finding of fact.
42-48. Accepted.
49. Rejected as subordinate to the Hearing Officer's Findings of Fact on the subject matter, which are predicated on direct evidence and not on the hearsay affidavit referenced in this proposed finding of fact.
53-54. Rejected as consisting of a discussion of testimony rather than a proposed finding of fact, and as being immaterial.
Respondent's Proposed Findings of Fact: 1-5. Accepted.
6. Rejected as contrary to and subordinate to the Hearing Officer's
Findings of Fact on the subject matter, and as being immaterial.
7-8. Accepted.
9-10. Rejected as subordinate to the Hearing Officer's Findings of Fact on the subject matter. Accepted.
12-13. Accepted, but not for its material import nor as dispositive of pertinent issues in this proceeding.
14-16. Accepted.
Accepted, but not in itself dispositive of any material issue presented.
Rejected as subordinate to the Hearing Officer's Findings of Fact on the subject matter and as not In accordance with the preponderant weight of the evidence, and, to some extent, as immaterial.
Rejected as being contrary to the preponderant weight of the evidence.
Accepted, but not in itself dispositive of any material issues presented.
21-23. Rejected as subordinate to the Hearing Officer's Findings of Fact on the subject matter.
24-30. Rejected as immaterial.
31. Rejected as not in accordance with the preponderant weight of the evidence.
COPIES FURNISHED:
J. Michael Lindell, Esquire Suite 620, Blackstone Building
233 East Bay Street Jacksonville, Florida 32202
Ross S. Burnaman, Esquire Assistant General Counsel Florida Department of Natural
Resources
3900 Commonwealth Boulevard Douglas Building, Suite 1003 Tallahassee, Florida 32399
Tom Gardner, Executive Director Department of Natural Resources 3900 Commonwealth Boulevard
Tallahassee, Florida 32399
| Issue Date | Proceedings |
|---|---|
| Jan. 09, 1989 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Jan. 09, 1989 | Recommended Order | Subject submerged lands were ""improved"" as to vest title in riparian owner before 05/29 repeal of Butler Act by massive dredging ineid to commercial |
