Bischoff v. Walker
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IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
JANUARY TERM 2013
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
RHONI BARTON BISCHOFF,
Appellant/Cross-Appellee,
v.
Case No. 5D11-2194
ROBERT WALKER, DEBORAH
PARRISH, ET AL.,
Appellee/Cross-Appellant.
________________________________/
Opinion filed February 8, 2013
Appeal from the Circuit Court
for Orange County,
A. Thomas Mihok, Judge.
Stacy J. Ford and Eric Boughman, of Pohl
& Short, P.A., Winter Park, for
Appellant/Cross Appellee.
Margaret A. Wharton, of Wharton Law
Group, P.A., Oviedo, for Appellee/Cross
Appellant.
ON MOTION FOR REHEARING
SAWAYA, J.
Appellee has filed a motion for rehearing stating that he “does not contest the
court’s analysis with respect to the canal.” He does contend, however, that summary
judgment in Bischoff’s favor regarding the land underlying the pertinent part of the lake
bordering her property is inappropriate because material issues of fact and law exist
that are not yet resolved. After further review, we conclude that material issues of fact
and law exist regarding Bischoff’s claim in Count II of her second amended complaint
concerning her ownership of the lands under the pertinent part of the lake.
We
therefore grant Appellee’s motion for rehearing, withdraw our previously issued opinion,
and substitute the following.
This case involves a dispute between two adjoining property owners, Rhoni
Barton Bischoff and Robert Walker, regarding ownership of the land underlying a canal
and part of a lake that both owners agree are natural and non-navigable bodies of
water. Part of the lake borders both properties to the south. The canal that provides
access to the lake divides the two properties. This dispute made its way to the trial
court via a three-count complaint filed by Bischoff against Walker seeking: in Count I, a
declaratory judgment that she had riparian rights to the lake and canal; in Count II, to
quiet title to the boundary between the two properties; and in Count III, a declaration
that the property description in her deed, which used monuments (the lake and canal)
rather than metes and bounds to describe the property she purchased, be reformed to
expressly identify her ownership to the centerline of the canal and to part of the lake.
The trial court granted summary judgment in favor of Bischoff as to Count I.1 Bischoff
appeals the Summary Final Judgment entered against her on Counts II and III of her
1
Walker has cross-appealed, arguing that the court erred in entering summary
judgment in favor of Bischoff on Count I of her complaint. We affirm the summary
judgment in favor of Bischoff regarding Count I and conclude that our holding regarding
Bischoff’s ownership to the land under the canal renders the issues raised in Walker’s
cross-appeal regarding the canal moot.
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complaint, contending that the trial court erred in holding that she has no ownership
interest underlying the canal and lake that borders her land. We reverse the summary
judgment under review as to Counts II and III and remand this case to the trial court to
enter summary judgment in favor of Bischoff on Count II regarding the submerged land
to the centerline of the canal and for further proceedings as to Bischoff’s claim in Count
II regarding the land underlying the part of the lake that borders her property. The
remainder of this opinion will only address the issue relating to Bischoff’s ownership of
the submerged land to the center of the canal.
The dispute stems from the language used in Bischoff’s deed, which she
received when she purchased the property in February 2000. It describes the land she
purchased as follows:
That part of the Northeast 1/4 of the Southeast 1/4 of
Section 8, Township 22 South, Range 32 East, Orange
County, Florida lying East of Canal and North of Lake, LESS
the East 100 feet and LESS the North 30 feet thereof for
road right-of-way.
(Emphasis added).
Bischoff argues that because the deed describes her western
boundary by reference to a monument, i.e., the canal, as opposed to a metes and
bounds description, the case law holding that ownership extends to the centerline of a
monument is applicable and she thus owns the submerged land to the center of the
canal.
Walker, on the other hand, takes the position that Bischoff’s deed gave her the
land east of the canal. She did not receive the land under the waters to the halfway
point of the canal because the deed only gave her to the edge of the canal and nothing
more. He claims that he owns all the land under the canal, at least insofar as the canal
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separates their two properties, and he is opposed to Bischoff’s plan to build a dock,
deck, and boathouse on his property.
Walker purchased his property from the common grantor several months after
Bischoff purchased her land. His property lies to the west of Bischoff’s land and is
separated therefrom by the canal. His deed described his purchase:
The East 1/2 of the Southeast 1/4 of the Southeast 1/4 of
Section 8, Township 22 South, Range 21 East, Orange
County, Florida LESS that part of NE 1/4 of the SE 1/4 of the
SE 1/4 lying East of Canal and North of Lake and Less the
East 100 feet thereof and Less N. 30 feet for road right-ofway and LESS Beginning 358.24 feet West and 30 feet
South of the Northeast corner of the Southeast 1/4 of the
Southeast 1/4; run South 36° East 244.65 feet; West 295.06
feet; North 197.00 feet; East 150 feet to the point of
Beginning, Section 8, Township 22 South, Range 32 East,
Orange County, Florida.
(Emphasis added). In other words, Walker’s deed describes his parcel of land and
excludes from this grant the land already deeded to Bischoff. Thus, if Bischoff’s deed
gave her ownership to the centerline of the canal, then Walker owns the land under the
waters from the centerline back to his own property, but if Bischoff’s deed gave her the
land only up to the edge of the canal, then Walker owns all of the land under the canal
separating their properties.
The facts leading up to the suit Bischoff filed are not in dispute. There was a
dilapidated dock extending into the canal from Bischoff’s side of the canal when she
purchased her land. She was assured by the sellers and real estate agent that this was
her dock. This was important to her because she is a professional water skier and
wanted to use the lake as a practice area.
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In 2002, Bischoff applied for a permit from Orange County to build a dock, deck,
and boathouse into the lake. Walker made known to the authorities his objection to the
proposed dock being built on his land and provided surveys performed by a statecertified surveyor. The Environmental Protection Division (EPD) of the County denied
Bischoff permission unless she could establish her ownership of the submerged land.
The EPD wanted an official, signed and sealed survey with full legal description
provided by a certified survey contractor showing her ownership of the land on which
she wanted to build the dock. The letter advised that if the EPD did not receive this
information within 30 days, the application would be considered expired.
Bischoff abandoned her plans for the lake and turned her attention to obtaining a
permit to replace the existing dock in the canal.
The County originally gave her
permission, but rescinded it pending resolution of Walker’s challenge to her ownership
claim. To settle the dispute as to the ownership of the land under the pertinent portion
of the canal, Bischoff filed suit.
Both parties moved for summary judgment, and the trial court rendered the
Summary Final Judgment that we now review, concluding that as to Count I, “Plaintiff
has riparian rights and those rights include the right to build a dock to wharf out to the
water.
The construction of the dock is subject to approval of local government
authorities as to location, size, and use.” However, as to Counts II and III, the trial court
rejected Bischoff’s contention that she owns to the center of the canal by concluding
that Walker was the owner of the pertinent land underlying the body of water.
Bischoff argues that the trial court erred in holding that the boundary line at issue
was not the centerline of the monument referenced in her deed. Bischoff is correct that
5
by using “east of canal” the grantor was conveying by reference to a natural monument.
A “monument,” when used in describing land, is defined in section 472.005(11), Florida
Statutes (2011), as meaning
an artificial or natural object that is permanent or
semipermanent and used or presumed to occupy any real
property corner, any point on a boundary line, or any
reference point or other point to be used for horizontal or
vertical control.
Here, the canal is a natural monument and, as both parties agree, a non-navigable body
of water.2 The question is whether “east of” includes to the center of the canal. The
presumption is that ownership extends to the centerline of a monument unless a
contrary intent is clearly expressed:
[I]n all rivers, streams, or other watercourses deemed to be
nonnavigable, the presumption is that the boundary line
between owners of lands bordering on the watercourses is in
the middle thread of the watercourse. When such lands are
conveyed with the stream or watercourse described as a
boundary, there is a presumption that the grantor intends
that the boundary of the lands of the grantee should extend
to the middle of such stream or watercourse. An intent that
the soil in the river should be owned by a person who does
not own the abutting upland is so improbable that it will
never be presumed in the absence of an express exception
in the grant.
12 Am. Jur. 2d Boundaries § 17 (2012) (footnotes omitted); see also 1 Joyce Palomar,
Patton and Palomar on Land Titles § 127 (3d ed.) (“The boundary lines may themselves
be imaginary or they may be marked by a fence, wall, highway, stream, or like natural or
artificial line. These latter are also termed monuments. If thus marked, the centerline of
the monument, in the absence of statement to the contrary, is taken as the boundary.”);
2
Title to lands under navigable water is held by the State pursuant to article X,
section 11, of the Florida Constitution.
6
see generally George A. Locke, Annotation, Deeds: Description Of Land Conveyed By
Reference to River or Stream as Carrying to Thread or Center or Only to Bank
Thereof—Modern Status, 78 A.L.R.3d 604 (2012) (hereafter “Locke”); 4 Herbert Tiffany
and Basil Jones, Tiffany Real Property § 995 (2012 ed.) (“The question now arises as to
when, in case of land under water not belonging to the state, a conveyance of land as
abutting on the water will be construed as including such land under the water as
belongs to the grantor.
The general rule of construction of a conveyance of land
bounded by water is that, unless a contrary intention appears, it passes the soil towards
the center of the water as far as the grantor owns.”). Patton and Palomar explains the
widespread nature of this principle and the reason therefor:
All states follow the English rule that lands bounded by
nonnavigable rivers and streams carry the title of the bed of
the water course to the center thereof. A grantee will, of
course, receive all of the title of the grantor unless a contrary
intention is clearly shown. This is consistent with the
ordinary rule that a call to a monument carries to the middle
of the monument and prevents the wasteful creation of strips
of property that would be of little value to the holder thereof
but would greatly impair the value of the upland tract.
Patton and Palomar, at § 134 (footnotes omitted).
Adverting to Florida case law, unless a contrary intent is clearly expressed by the
grantor, a presumption arises that the boundary line “ʽwhen the land is bounded by a
nonnavigable stream or highway, extends to the center of such stream or highway, if the
grantor is the owner of the fee.’” Smith v. Horn, 70 So. 435, 436 (Fla. 1915) (quoting 2
Devlin on Deeds § 1024 (3d ed.)). The supreme court also quoted language from
Devlin stating that if the deed described the land conveyed as extending to a street and
then running at right angles along the street, “ʽthe fee of the land to the center of the
7
street is conveyed . . . .’” Id. This rule, the court observed, “must be applied to carry
out, and not to frustrate the intention of the parties.” Id.; see also Brooks v. City of W.
Miami, 41 So. 2d 556, 557 (Fla. 1949) (holding that “[b]ounded . . . on the East by [the
road]” included to the centerline of the road and that absent any controlling authority to
the contrary, “the same rule obtained which applied to boundaries on nonnavigable
streams and that the center of the highway became the boundary line” (citing In re
Reed's Petition, 13 N.H. 381 (N.H. 1843))); cf. Bd. of Trs. of Internal Improvement Trust
Fund v. Walker Ranch Gen. P’ship, 496 So. 2d 153 (Fla. 5th DCA 1986) (observing that
had legislative intent not controlled, “[a]n argument can be made in support of the trial
court's finding based on the general surveying principle that the centerline of the
monument (here, the shore) is regarded as the boundary line” (citing 1 Fla. Jur. 2d,
Adjoining Landowners § 19)), review denied, 504 So. 2d 766 (Fla. 1987). The principle
has been referred to as a presumption that may be rebutted by proof to the contrary.
Jacksonville, T. & K.W. Ry. v. Lockwood, 15 So. 327, 329 (Fla. 1894) (writing of a
controversy involving the boundary line of land, that “the presumption arising from the
deed from [the grantor], conveying the land, and bounding it on the east by Thompson
street, is, in the absence of proof to the contrary, that [the grantor] owned to the center
of the street” and thus conveyed to plaintiff the lands to the center of the street).
Indeed, the authorities are replete with citations to case law holding that reference to a
monument is presumed to run to the center of the monument. See, e.g., Locke; Jay M.
Zitter, Annotation, Conveyance with Reference to Tree or Similar Monument as Giving
Title to Center Thereof, 61 A.L.R. 5th 739 (2012). Accordingly, the conveyance in
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Bischoff’s deed by reference to the monument of the canal creates the presumption that
the boundary ran to the centerline thereof.
Similar to the Florida courts, the courts in other jurisdictions have adopted the
centerline presumption. In the analogous case of Henry v. Borushko, 281 P.3d 729
(Wyo. 2012),3 the Wyoming Supreme Court recently upheld the conclusion that the
boundary ran to the center of a canal where the deed conveyed land “lying North of
Midvale Irrigation District Pavillion Main Lateral.” As in the instant case, the adjoining
landowners disputed ownership of the land lying under the canal’s waters; one claimed
to the opposing bank, as does Walker, and the other claimed to the centerline of the
canal, as does Bischoff. The supreme court reasoned:
Because the canal shared pertinent attributes with
non-navigable streams and streets, the district court relied
on this legal guidance for use in interpreting deeds:
In the case of non-navigable watercourses and
roads and streets as boundary calls in legal
descriptions, the general rule is there is a
rebuttable presumption that where a nonnavigable stream or a street or road is the
boundary between two parcels, the actual
boundary is along the thread of the stream or
the middle of the street. Wilson v. Lucerne
Canal and Power Co., 150 P.3d 653, 665
(Wyo. 2007). 12 Am. Jur. Boundaries, § 17, §
29. The same rules of construction hold true
with
common
walls.
Coumas
v.
3
Walker asserts that no out-of-state case law is relevant on the issue of
boundary lines and deed language, citing Macnamara v. Kissimmee River Valley
Sportsmans’ Ass’n, 648 So. 2d 155, 159 (Fla. 2d DCA 1994) (involving ownership of
lands created by meandering navigable waterways), review denied, 651 So. 2d 1195
(Fla. 1995). He is wrong. Not only does the instant case involve non-navigable waters,
which excerpts the case from many Florida-unique issues (and from Macnamara), outof-state case law demonstrating how various courts have interpreted identical language
aids this court’s understanding and analysis of the presumption that the centerline of a
monument is the proper boundary line.
9
Transcontinental Garage [68 Wyo. 99], 230
P.2d 748, 753 (Wyo. 1951).
Applying this presumption, the district court concluded that
the deed should be interpreted as establishing the property
boundary at the centerline of the canal. It further determined
that the evidence presented by the Henrys “fails to rebut the
presumption” that the boundary was at the center of the
canal.
The Henrys' first argument is that the deed does not
explicitly state that the boundary is at the “center” of the
canal. That is true, but it is also true that the deed does not
explicitly state that the boundary is on the “north bank” of the
canal or “along the fence north of the canal.” Because no
particular part of the canal is expressly designated as the
boundary, the district court was correct in employing the
presumption that the center of the canal was intended. As
we explained in Glover v. Giraldo, 824 P.2d 552, 554–55
(Wyo. 1992):
Where a deed describes land bounded by a
non-navigable stream and names the stream
as a monument, a presumption exists that the
grant extends to the center and the thread of
the stream is the true boundary. The grant will
give title so far as the grantor owns, unless the
bed of the stream is expressly reserved from
the grant. This rule is based on a presumption
of the grantor's intent.
Id. at 731-32. Consequently, the language “lying north” of the monument was held to
include to the centerline of that monument. Accord Carter Oil Co. v. Delworth, 120 F.2d
589, 590 (7th Cir. 1941) (“By his deed to Gerald Weaber, therefore, Louis Weaber, in
the language, ‘all the land north of the creek and all of the land south of the creek,’
included title in each instance to the center of the creek, unless there is in the record
evidence to establish a different intention.”); Council v. Clark, 441 S.W.2d 472, 473-74
(Ark. 1969) (holding that under deed description “lying South of Hurricane Creek,” title
extended to the middle of Hurricane Creek (citing Gill v. Hedgecock, 187 S.W.2d 262
10
(Ark. 1944) (holding that a grant “north of” a body of water conveyed title to the middle
of the water))); Helmer v. Castle, 109 Ill. 664 (Ill. 1884) (holding that conveyance of land
described as “east half of the southeast quarter, south of road” meant the tract of land
on the south side of the road, extending to the centerline of the road); W. Elec. Co. v.
Jersey Shore Realty Co., 117 A. 398, 400 (N.J. Ch. 1922) (holding that “in the absence
of an expressed contrary intent, it is the rule that a conveyance of land bounded upon a
stream, above tidewater, carries the title of the grantee to the center of the stream if the
title of the grantor extends that far”); Knapp v. Hughes, 2012 WL 4933274 (N.Y. Oct. 18,
2012) (holding that language in deed stating the property line ran “along the southerly
bounds of Perch Pond” also conveyed the rights to the land under the water; observing,
“It has long been established New York law that a conveyance of land on a pond or
stream includes the land under the pond or stream, to the center of the water, unless a
contrary intention is made clear.”). See generally Annotation, Specific Description with
Reference to Water, in Conveyance of Riparian Land, as Marking the Extent of
Grantee’s Ownership of the Submerged Land and the Shore, Part II “Presumption as to
Extent of Grant of Land Bounded Generally by a Body of Non-navigable Water,” 74
A.L.R. 597 (1931).
Thus, Florida law is in accord with the general rule adopted by the courts in other
jurisdictions that there is a rebuttable presumption in favor of finding the boundary is the
centerline of the monument referenced in the deed—here, the canal. To rebut the
presumption, Walker would have had to present evidence of the grantor’s intent not to
convey to the centerline of the canal. He did not. In fact, he does not acknowledge the
presumption.
Instead, Walker’s position on appeal is that summary judgment was
11
proper because there were no facts at issue, and he argues on appeal that no extrinsic
evidence should be considered in deciding what the deed meant. In the absence of
evidence rebutting the presumption, summary judgment in favor of Bischoff was
appropriate.
In summary, we affirm the trial court’s summary judgment in Bischoff’s favor on
Count I that Bischoff has riparian rights to the waters of both the canal and lake. We
reverse the summary judgment in favor of Walker on Counts II and III. In accordance
with the relief Bischoff requests in Count II, we remand this case for entry of summary
judgment in her favor that she owns the submerged land to the centerline of the canal.
We remand for further proceedings insofar as Count II also raises an issue regarding
the ownership of the pertinent submerged lake land, which issue, we acknowledge, the
parties may opt not to pursue given that the resolution of Count I granting Bischoff
riparian rights to the lake may fully resolve the parties’ dispute. We believe it is
unnecessary to grant Bischoff the relief she requests in Count III.
AFFIRMED in part; REVERSED in part; REMANDED.
ORFINGER, C.J., and PALMER, J., concur.
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