Customary use of beach interrupted during U.S. ownership, judge rules

A WINTER WALK on the beach in Walton County. Walton County’s court efforts to affirm recreational customary use along its 26-mile beachfront continue in Walton County Circuit Court (Photo by Dotty Nist)


In a Dec. 1 ruling in Walton County’s court filing to affirm customary use of the beach, presiding judge David W. Green has concurred with the argument of defendant property owners who had intervened in opposition, that no claim of customary use of the beach could have applied during the time period that beachfront property in Walton County was under United States ownership.

Proceeding in Walton County Circuit Court since 2018, the filing, a customary use complaint, is an effort by Walton County to affirm a right by the public to customary recreational use of the beaches in Walton County, including those on privately-owned properties.

As discussed in Judge Green’s Dec. 1 order, the beaches in what is now Walton County came under U.S. ownership, together with, with some exceptions, all land in East and West Florida, through the Treaty of Amity with Spain, effective in 1821. The Walton County beachfront then remained under U.S. ownership until the time of parcels coming under private ownership through federal government patents conveying title from the northern boundary of each parcel to the mean high water line.

Discussion in the order reveals a “sporadic” conveyance of parcels from U.S. to private ownership, with the U.S. government selling the first parcel in 1892, the next in 1903, and 15 parcels during the decade of the 1910s; then 39 parcels in the 1920s, one in the 1930s, one in the 1940s, 55 in the 1950s, six in the 1960s, none in the 1970s through the 1990s, one in the 2000s, and, finally, the last nine in 2013.

The ruling that customary use would not have been in effect during the period of U.S. ownership is relevant in large part because “ancient” recreational use of the public of the sandy area of the beach serves as one of the conditions for the doctrine of customary use to apply.

The Florida Supreme Court had set forth the doctrine of customary use in the landmark 1974 City of Daytona Beach v. Tona-Rama, Inc., (Tona-Rama) decision, 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 the four conditions that such use had been ancient, reasonable, without interruption, and free from dispute.

While Walton County has maintained that customary use of the beach would have occurred during the U.S. ownership period, and in fact dating back to occupation by early Native Americans, the property owners argued in their motion that the doctrine of customary use, which was part of English common law, did not carry over when the property in question came under U.S. government or State of Florida ownership. They also argued, citing case law, that customary use claims conflict with the laws and constitutions of the United States and Florida—and that “adverse rights” of this nature cannot apply against sovereign-owned (government-owned) property.

They also maintained that the asserting of any customary use rights under the doctrine during the U.S. ownership period would have represented a dispute of state and federal laws applying to ownership of property/right to exclude persons from one’s property. They concluded that two of the elements for customary use, ancient and “free from dispute” use, did not apply and could not be re-established in Walton County.

On the basis of the 1962 Lovey v. Escambia County First District Court of Appeal decision, which dealt with adverse possession and prescription, Judge Green found that principles associated with the latter applied to the customary use matter. “The sovereign is exempt from claims against its ownership rights,” he wrote, clarifying that customary use rights “do grant rights for the public to be physically present on the owner’s property and use it in various ways,” even though not deemed an interest in land per the Tona-Rama ruling.

Judge Green also brought up “clear statements of law” in more recent U.S. Supreme Court cases indicating federal court policy in opposition to “invasion” of an owner’s property by non-owners. “The customary use rights sought to be imposed by the county clearly conflict with the right of an owner to use its property as it wishes and to bar all others from invading its property, whether or not such rights be deemed interest in the land,” he wrote.

“While such actions are permissible under the doctrine announced in the Tona-Rama case,” Judge Green continued, “the court finds that when the statements of policy of the federal court are considered in the light of the Lovey case, claims of customary use rights against the United States cannot be supported.”

He made the conclusion that any “accrual” of customary use rights in Walton County would have necessarily been “interrupted and disputed” during U.S. ownership of any parcel.

“The court does not find, however, that the customary rights could never be re-established after the property ceased to be owned by the United States,” Judge Green noted.

Would it be possible for Walton County to meet the “ancient” use requirement to re-establish these rights? Judge Green opined within the Dec. 1 order that the Tona-Rama decision had dealt with use of the property involved by the public for “a period of decades”—rather than a longer period as required under the English common law provisions upon which the Tona-Rama doctrine of customary use had been based. He therefore concluded that with that decision the Florida Supreme Court had “intended to adopt a new and different standard for establishment of customary use rights on Florida’s beachfront property.”

However, in an August 2021 ruling, also pertaining to the customary use complaint, Judge Green had stated that it would be “impossible” to prove customary use in Gulf Shore Manor, a Walton County beachfront subdivision affected by a 1978 resolution of the Walton County Board of County Commissioners (BCC) stating that the BCC “renounced and disclaimed” all property in the subdivision south of the southernmost blocks to the Gulf of Mexico.

Judge Green had reasoned that any new claim of customary use in the subdivision would have begun no earlier than the resolution date (March 28, 1978)— and that the time period between then and Walton County’s filing of the customary use complaint in 2018 (40 years) “is not sufficient in length to allow it to be deemed ancient.”

Walton County has appealed this ruling applying to Gulf Shore Manor in the First District Court of Appeal.

Hearings in 2022 and 2023 on motions in the customary use complaint have been scheduled in Walton County Circuit Court for Dec. 9, Jan. 12, Feb. 14, March 14, April 18, May 5 and May 8.