State of Florida vs. David Smith (Backgrounder)
Jury trial to begin January 20, 2005
David Smith is an owner of property in Brevard County that was originally sold in 1906 by the State of Florida to private owners to put into agricultural use.  Since purchasing the lands in 1934, Smith's family has paid the property taxes assessed in accordance with the property description in the deed from the State, and has used the land for cattle ranching.  
In 1990, after selling the marshland bordering a lake on the property to the County for a park, Smith sought and obtained permits from the State to develop the remainder of the property.  The State, however, contested Smith's ownership of 230 acres of the remaining property adjacent to marsh. The State claimed that its prior deeds to Smith's predecessors were not effective to convey title because the property was State-owned sovereignty land underlying navigable waters. As the basis for this claim, the State relied on a change in its theory of what constitutes the legal boundary between private upland property and the State-owned beds of navigable waters. 

Under long-established law, the boundary separating private upland property from State-owned lands underlying navigable water bodies is the ordinary high water mark, which the Florida Supreme Court described as "the visible mark formed on the bank by the continuous presence and action of the water where it stands for most of the year and wrests the bed of vegetation."  The adoption of this mark as the legal boundary served several practical purposes: It was the same boundary applied by federal law to waterfront lands before Florida became a state; it could be easily observed and located by landowners and by members of the public who were using the water body for boating, fishing or swimming; and it protected the public rights in the navigable waterways while permitting the private cultivation of uplands that were, under ordinary conditions, useful for agriculture.

Under its new definition, however, the State now claims that the bed of a navigable water body extends up to "the normal reach of water during the high water season." That definition enlarges the boundary to encompass vast areas of normally exposed land that are covered with floodwaters only during the annual rainy season. In some places, including areas around Lake Poinsett, that difference can expand the State's ownership to include upland property as much as two or three miles from the usual edge of the water.

After allowing generations of his family to use the lands and pay taxes without disrupting his title, the State is now telling Smith his deed to the land was never valid and that these lands must be held by the State for habitat preservation and public recreational use.  However, instead of buying the land back from Smith, which is the State's constitutional obligation in a case where property is taken for public use, the State has filed suit against Smith claiming he has been trespassing on State-owned land all these years.  Adding insult to injury, the State not only refuses to refund the purchase price of the land and any of the taxes it collected from Smith, but is recommending that Smith be ejected from his property.

The jury trial to hear this case will begin on January 20, 2005, in the courtroom of Judge Jacobus at the Moore Justice Center in Viera, Florida.
Source: Brevard Insider, Malabar, Florida. January 19, 2005.
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