When you take you gotta give . . .

. . . as sung by Lynn Anderson in "I Never Promised You A Rose Garden" (1970) . Brevard County and the Brevard County Mosquito Control District bought themselves a piece of deeded (but apparently not navigable) marshland through inverse condemnation in Brevard_v_Blasky, decided last week by the 5th DCA. The case has very good discussion of common law dedication and acceptance principles as well as a good discussion of licenses to use land and also an introduction on submerged lands issues and the timing and role of navigability on sovereignty lands.

The Blaskys had 40 acres, including 27 acres of marshes, tracing their title back over 100 years to an Internal Trustees deed. In the 50's a set of dikes were built to flood the 27 acres for mosquito control under a 10 year license.

Many years later, various entities try to get permanent rights and when the Blasky's balk, start fighting them. The Blaskys revoke the District's right to flood the land and when the land isn't drained, sue in inverse condemnation. They win in the trial court - who determines: a) that the land wasn't dedicated; b) that no equitable principle demanded that the District be allowed to flood the land in perpetuity, and c) that the land wasn't navigable as of the date of entry of Florida into the Union and therefore the lands weren't sovereignty. The 5th upholds the trial court on all bases.

What we don't find out is how much the Blaskys got in damages. I'd love to know! Was it nominal (value of submerged lands w/no development rights?); equal to what the Trustees get these days for renting the bottom under navigable waters to folks with riparian rights?

Folks who worry about takings taking over environmental issues shouldn't be overly concerned about this one - it's a pretty fact-based situation. Who knows whether the court would have found that the lands weren't navigable waters if the District hadn't diked and flooded them 50 years ago? And the County and Mosquito District weren't out to create or recreate wetlands - they wanted to keep the dikes and use the land for impounding stormwater. So I don't see this as a victory for anti-environmental property rights extremists - more a case that where the government sees value in taking, improving and using land (submerged or not), it needs to buy them if it doesn't own them.

And of course I'm sure that there's more to this story than reached the opinion - if anyone wants to comment or add background, the "comment" button is right below.