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Docket Number

No. 98-2673.

Attorney(S)

Robert A. Eisen and Wendy V. Schreck of the Law Offices of Eisen Willits, Boca Raton, for appellants. Daniel E. Oates of Daniel E. Oates, P.A., Pompano Beach, for Appellees-Robert L. Kester and Stewart R. Kester.

Judges

W. Matthew Stevenson

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Smart Summary

Tewksbury v. City of Deerfield Beach, et al. — District Court of Appeal of Florida, Fourth District (Sept. 17, 1999)

Factual and Procedural Background

The appellants are upland property owners: Baird R. Tewksbury, Jr., Geraldine E. Tewksbury, and The Cove Restaurant Marina, Inc. The appellees are Robert L. Kester and Stewart R. Kester, owners of the submerged land at issue. The dispute concerns the appellants' operation of an outdoor dining area on a dock that extends over and is supported by the Kesters' privately-owned submerged land. The trial court found that the restaurant's use of that portion of the dock exceeded the appellants' riparian (littoral) rights. This appeal challenges that determination.

Many factual details were set out in this court's prior opinion, Kester v. Tewksbury, 701 So.2d 443 (Fla. 4th DCA 1997); following that prior appeal the case was remanded. On remand the parties agreed the single issue for resolution: whether the appellants could, pursuant to their riparian or littoral rights, use the portion of the dock extending over the Kesters' submerged land for an outdoor dining area despite the Kesters' objection. The court emphasized that this case involves privately-owned submerged land rather than sovereign lands.

Legal Issues Presented

Whether the appellants, as upland riparian/littoral property owners, may use a portion of their dock that extends over the appellees' privately-owned submerged land for the operation of an outdoor dining area despite the appellees' objection.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Kester v. Tewksbury, 701 So.2d 443 (Fla. 4th DCA 1997)	Prior appellate opinion in the same dispute; provided factual and procedural background and resulted in remand.	The court referenced the prior opinion for background and noted the case had been remanded; the current appeal presents the narrower question agreed upon by the parties after remand.
Belvedere Dev. Corp. v. Department of Transp., 476 So.2d 649, 651 (Fla. 1985)	Definition and scope of riparian rights in Florida (enumerating typical riparian rights).	The court cited Belvedere for the descriptive list of riparian rights and used that definition to conclude the restaurant's outdoor dining operation falls outside the scope of Florida's riparian/littoral rights.

Court's Reasoning and Analysis

The court proceeded from the parties' agreed framing of the issue on remand. It considered the established, narrowly defined scope of riparian or littoral rights in Florida. The court quoted and relied on the Belvedere decision to summarize riparian rights as including: (1) general use of the adjacent water, (2) the right to wharf out to navigability, (3) access to navigable waters, and (4) the right to accretions. The opinion also referenced the statutory definition found in § 253.141(1), Fla. Stat. (1997), which describes riparian rights as rights incident to land bordering navigable waters (ingress, egress, boating, bathing, fishing, and similar rights). Applying that legal framework to the stipulated issue, the court concluded that operating an outdoor dining area on the portion of the dock over the Kesters' submerged land does not fall within the enumerated riparian/littoral rights. The court additionally noted the case's particularity in that the submerged land is privately owned rather than sovereign land, a factual point the court observed made the case somewhat unique.

Holding and Implications

AFFIRMED.

Holding: The trial court's determination that the appellants' operation of an outdoor dining area on the dock extending over the appellees' privately-owned submerged land exceeded the appellants' riparian or littoral rights was affirmed.

Implications: As a direct effect, the appellants may not, under the narrowly defined riparian/littoral rights recognized by Florida law and cited by the court, use the portion of the dock over the Kesters' submerged land for the restaurant's outdoor dining area. The opinion does not announce or discuss broader legal changes or novel precedents beyond applying existing definitions of riparian rights to the stipulated issue.

Panel: Stevenson, J.; Warner, C.J., and Kreeger, J., concurred.

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BAIRD R. TEWKSBURY, JR. and GERALDINE E. TEWKSBURY, his wife, and THE COVE RESTAURANT MARINA, INC., a Florida corporation, Appellants, v. CITY OF DEERFIELD BEACH, a Florida municipal corporation, and ROBERT L. KESTER and STEWART R. KESTER, Appellees.

STEVENSON, J.

The upland property owners, Geraldine E. and Baird R. Tewksbury, Jr. and The Cove Restaurant Marina, Inc., appeal an order of the trial court finding that their operation of an outdoor dining area on a dock, stretching over and supported by the submerged land owned by the appellees, exceeds the scope of their riparian or littoral rights. We affirm.

The fact that this case concerns privately-owned submerged land as opposed to sovereign lands owned by the State of Florida makes it somewhat unique.

Many of the details concerning the ongoing dispute between the parties to this appeal are set forth in this court's prior opinion, see Kester v. Tewksbury, 701 So.2d 443 (Fla. 4th DCA 1997), and it is not necessary to restate those details here. Suffice it to say that, following the prior appeal, this case was remanded and the parties agreed that the issue to be resolved was whether the appellants could, pursuant to their riparian or littoral rights, use a portion of the dock extending over the Kesters' submerged land for the operation of an outdoor dining area, despite the Kesters' objection. In Florida, riparian rights include "(1) general use of the water adjacent to the property, (2) to wharf out to navigability, (3) to have access to navigable waters and (4) the right to accretions." Belvedere Dev. Corp. v. Department of Transp., 476 So.2d 649, 651 (Fla. 1985); see also § 253.141(1), Fla. Stat. (1997) ("Riparian rights are those incident to land bordering upon navigable waters. They are rights of ingress, egress, boating, bathing, and fishing and such others as may be or have been defined by law."). The restaurant's operation of an outdoor dining area on the dock simply falls outside the scope of Florida's narrowly defined riparian or littoral rights.

AFFIRMED.

WARNER, C.J., and KREEGER, JUDITH L., Associate Judge, concur.

TEWKSBURY v. CITY OF DEERFIELD BEACH