An ongoing dispute as to whether or not the bottom lands of the Boca Grande Bayou across from the Pink Elephant are private or public use has come to light again. The waterway is popular with boaters, and many come to drop anchor, spend a night or two in a sheltered place and have close proximity to the island.
There are a few boaters, including Boca Grande resident John Foster and his wife, Terry Sibley, who believe that no one can claim that the bayou is private property. Foster said that he personally knows boaters who have been told to leave under penalty of arrest or citation in the last year.
But is it legal?
The Inn owns both sides of the bayou in that area. While many consider the docks there as “public” property, when they were built it was through an agreement between the Inn and the county, in cooperation with the Boca Grande Guides’ Association. Five of the slips at the docks were donated to the guides for their use by the Gasparilla Inn & Club. The “Pink” docks are also located along that same property.
According to Foster and to Inn representatives, paperwork exists that shows the state of Florida does not own the bottom lands in front of the guide docks. The question that many have is whether or not the Inn actually does own the bottom land.
Many people use the words “navigable waters” as soon as they hear about the bayou. Federal law states that, in most U.S. jurisdictions, the definition tends to include any body of water that may be put to public use. Federal law then defers to each individual state’s law on the matter.
The definition of a “navigable waterway” is clearly established. It states, “... a waterway is navigable if at the time of statehood in 1845, it was used or was capable of being used as a highway for waterborne trade or travel, conducted by the customary modes of that period.”
It also states that “artificial water bodies or waterways rendered navigable through improvement by dredging are not legally navigable.”
Prior to the early 1900s, what we know as the “bayou” was nothing more than a shallow creek. It was dredged by the first owner of the Gasparilla Inn & Club at that time. And therein lies the problem. In its natural state, most of the waterway was not navigable. Some of it was completely landlocked.
When Florida became a state in 1845, it came in under equal footing with other states in the Union. That means that the sovereign state, which comes out of commonlaw from England, owns the land under navigable waters.
To determine exactly where were the creeks and bayous, if any, existed in coincidence with the dredged parts of the bayou that were useful to commerce in 1845 is a difficult process.
If an original creek was used to trace where the waterway would be dredged, and it was useful and available for commerce in 1845, that could change things.
Attorney Michael Haymens out of Punta Gorda has had more than his share of experience in trying to determine the details from 1845. His firm recently worked on the “Damfi” streets, and found that the bottom land in those canals are generally owned by the landowners, not the state. He is familiar with the bayou situation, and said that some of the bayou may have been dug in uplands, and some in existing navigable waters, which would make it sovereign. The detailed specifics from 1845, however, can be extremely hard to come by.
“The question as to whether something was manmade or sovereign takes a hard look historically and at title notes from original government surveys, as well as old charts and maps,” Haymens said. “There have been some areas in the bayou, which the state has recognized that were created from uplands, and some that were not. If the state says they don’t own the land it may not settle the issue, nor does the fact that the Inn owns both sides of the waterway. It may be that the Inn is correct, that they own that and control what happens there. I’m just saying that anyone who makes an assertion about that needs to have figured out many other issues, such as historic use and other factors.”
In certain cases of ownership, when the lands were never considered “sovereign” by the state, property ownership extends to the mid-point of the waterway. If a person or company owns both sides of the waterway, it would stand to reason that they also have control over who passes through and anchors there.
Earlier this year, the Lee County Sheriff’s Office sent out paperwork to all derelict boat owners in that area of the bayou, which claimed that, “The state of Florida wil not assert ownership of the submerged lands in this area of Boca Grande Bayou and will not object to the removal of boats.”
The letter sent to boaters also contained a “land database system worksheet” issued by the Florida Department of Environmental Protection, which states that their records “contain insufficient information to make a determination of ownership for the submerged lands lying below the Mean High Water Line of Boca Grande Bayou at the subject site. We recommend the proprietary requirements that normally apply to state-owned lands not apply to this site.”
Haymens said the state doesn’t want the site. But if the state is out of it, does that mean someone else can claim it? Yes, but somebody else might claim that the state’s wrong in not taking a position.
The letter primarily refers to derelict boats, but also refers to boaters who stayed in the bayou with no anchor lights. The Inn has stated in the past that their primary concerns with boaters staying in that portion of the bayou are:• Anchored boats not keeping their running lights on at night, and not having their anchor lights on;• Boats that anchor to the mangroves, which is illegal;• Boats tying up to the dock and using the electricity, water and trash facilities at the docks (maintained by the Gasparilla Inn & Club);• Boats not disposing of waste properly.
Representatives for the Inn chose not to comment on the issue at this time. Haymens said he understands the Inn’s point of view, but said there isn’t anything much stickier than trying to prove ownership of bottom lands, when the proof can usually only be determined from surveys done in 1845.
“Even if the state doesn’t claim it, that doesn’t foreclose someone else from saying it,” he said. “There are competing values and issues here. Anyone who steps into this determination and opines as to what the outcome should be, really needs to do their homework.”
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