Court denies customary use opponents’ motion for summary judgment

By DOTTY NIST

Walton County Circuit Court Judge David Green has denied a motion by Walton County beachfront property owners, who had contended that, due to previous United States ownership of their property, Walton County could not prove that any recreational customary use of the property was “ancient.”

Judge Green issued the ruling on Dec. 31 in connection with Walton County’s Complaint for Declaration of Recreational Customary Use, in which the county is seeking to affirm a right by the public to use the beach recreationally on all privately-owned beachfront parcels in the county. Judge Green’s ruling was in response to a motion for summary judgment originally filed by 111 parties opposing the county complaint.

In the landmark March 25, 1974, City of Daytona Beach v. Tona-Rama, Inc., (Tona-Rama) decision, the Florida Supreme court had set forth the doctrine of customary use, ruling that recreational use by the public of the sandy area, “adjacent to mean high tide line,” on beachfront property should not be interfered with by an owner, on four conditions. Along with such use being “ancient,” other conditions included that the use had been reasonable, without interruption, and free from dispute.

The property owners’ motion provided some history on their property. According to the filing, the property was acquired by the United States from Spain in 1821. The property owners maintained that any customary use that may have existed on the property at that time was “interrupted by the United States acquisition of the Property.” Then, according to the motion, the United States kept the property until it was conveyed in the early 20th century by various patent deeds to predecessors of the current owners “in fee simple without reservation of any rights to the public.”

The property owners also maintained that any interest of the public from customary use that may have existed under United States ownership of the property before the patents were issued was “effectively abandoned” due to the patents not reserving any rights for the public to use the dry sandy beach on the property.

“The undisputed facts establish as a matter of law that any public use of Defendants’ dry sandy beach has been neither ancient, continuous, uninterrupted nor free from dispute,” the motion concluded.

In his ruling denying the property owners’ motion, Judge Green observed that no mention had been made in the Tona-Rama decision of the ownership of the property involved before its transfer into private hands, nor was the issue of customary use claims against government-owned property discussed. He continued that no evidence had been presented to the court to show whether the Volusia County property at issue in that 1974 decision had been owned by the United States before Florida became a state or if that property had come under private ownership through a Spanish land grant before Florida became a territory of the United States.

Instead, he noted, the Tona-Rama decision appeared to have been focused only on the public right of use during the time the property was privately owned. So for purposes of the motion, Judge Green found it unnecessary to make a determination on the right to claim customary use during the period when the property along the Walton County beachfront was owned by the United States—unless the court were to find that this were necessary in order to determine whether sufficient time had passed for customary use on the property to be “deemed ancient.”

Judge Green indicated that, in reviewing the chain of title for a number of the Walton County properties involved, he found that many had come into private ownership as early as 1920s or before, while the property in the Tona-Rama decision had been owned by the defendants in that lawsuit since 1909. So, for the Volusia County property, a period of 65 years had passed at the time of the 1974 decision from the time the property came under the ownership of the Tona-Rama defendants.

Judge Green reasoned that, based on the latter, the court was being asked to find that rights under the customary use doctrine could not be established on the properties for any less than 65 years of customary use between the conveyance of the property to the owners and 1974, the year of the Tona-Rama decision.

“This court is not prepared to make such a finding,” Judge Green wrote. “The Florida Supreme Court, in its (Tona-Rama) decision, did not create any such bright-line rule for determining how long a use must continue before it can be deemed ancient.”

Judge Green also found that nothing in the Tona-Rama case had established March 25, 1974, the date of the Supreme Court’s decision in the case, as “the final date on which customary rights claims cease to accrue.”

While denying the motion, Judge Green left the door open, as the case continues to proceed, for the property owners to bring up the issues raised in the motion, at the final hearing on the complaint and/or at other hearings during which “factual issues concerning ancient uses of the property are considered.”.jpg

WALTON COUNTY’S court filing seeking to affirm customary recreational use of the beach continues in circuit court with a recent court denial of a motion on behalf of numerous beachfront property owners. (Photo by Dotty Nist)