The U.S. Court of Appeals for the Eleventh Circuit's recent opinion in A Flock of Seagirls LLC v. Walton County, No. 20-12584 (Aug. 5, 2021) isn't about judicial takings, or even about eminent domain (even though a straight condemnation turned up in the factual background).
But this blog's frequently flyers might want to take a read anyhow because it involves public and private rights of use in the dry-sand beach along the Florida coast. We know those issues are closely related to our faves like public trust, judicial takings and the like, so read on.
Here are the facts. The county holds an express easement along two beachfront lots for "a way of passage, on or by foot only" that the State of Florida earlier had exacted from the owners in the course of eminent domain proceedings. But if the county tries to use the easement for some other purpose, the easement is deemed abandoned by its express terms.
So what did the County do? Was it satisfied that it has, on behalf of the public, an express easement allowing people to walk over what is admittedly private property in Florida? Everything good, right?
No, not good enough. It adopted an ordinance "purporting to establish the public’s right to use the dry-sand area of all beaches for 'recreational' purposes—including, among others, 'sunbathing,' 'picnicking,' 'fishing,' 'swimming or surfing off the beach,' and 'building sand creations.'" Slip op. at 2.
Two of the owners of the servient estates sued, claiming that the easements had been abandoned. The District Court agreed with the county that this didn't qualify and granted summary judgment. The Eleventh Circuit reversed.
Applying the "ordinary contract-construction principles," the court held that under their ordinary and common meaning, the abandonment clause limited the use, and that the county ordinance allowed the property to be used for some other purposes. The abandonment clause applied if the county "attempted" to make more use, not only if it actually made the use. You can't sunbathe, picnic, fish, swim and surf off the beach if you are limited to using it as "a way of passage." Slip op. at 9. Locomotive purpose isn't the "recreational purpose" set out in the ordinance.
Yes, walkers may incidentally stop while they are making their way of passage and thus some of the uses noted in the ordinance may not offend the uses allowed by the easement, but others "go so far beyond incidental stopping that they can't fairly be deemed 'reasonably necessary for the full enjoyment of the easement itself.'" Slip op. at 10.
The court also rejected the county's argument that the abandonment clause could not limit the public's right to full recreational use of the dry-sand beach. It held that Florida's common law customary-use doctrine right of the public to full use of the beach "is not absolute or boundless," and did not independent of the easement allow the public to use the dry-sand beach. Slip op. at 12.
Nor did the "perpetual" clause in the easement itself mean that it could not be abandoned. That's kind of a silly reading of an instrument that also contains an abandonment clause. In other words, yes, the easement was perpetual ... unless you abandon it, county! Maybe that ordinance wasn't such a good idea after all.
Finally, the court rejected the county's argument that the eminent domain consent judgment by which the easement was created back in the day did not make the abandonment clause inapplicable. The judgment used the term "permanent public pedestrian access," but like the perpetual clause noted above, the easement was only permanent as long as the county didn't do anything to abandon it.
So now, instead of having the right to walk on private beaches, the public gets nothing, good day Sir!. Like this recent case, we're filing this one under the "sure you want to do that?" department. Or maybe the "give 'em an inch and they'll take a mile" department. Maybe both.
[Any finally - yes, we know the appellant is A Flock of Seagirls LLC, and the song is by A Flock of Seagulls, but the minute we read the caption the song just popped in our head and never left. Sorry about the Ohrwurm.]
A Flock of Seagirls LLC v. Walton County, No. 20-12584 (11th Cir. Aug. 5, 2021)
