               NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                      MOTION AND, IF FILED, DETERMINED


                                           IN THE DISTRICT COURT OF APPEAL

                                           OF FLORIDA

                                           SECOND DISTRICT


5F, LLC,                          )
                                  )
            Appellant,            )
                                  )
v.                                )                  Case No. 2D13-2793
                                  )
ROBERT DRESING, SARAH F. DRESING )
husband and wife; and NORTHERN    )
TRUST COMPANY, as Trustee for the )
Michael W. O'Shaughnessy Trust,   )
                                  )
            Appellees.            )
                                  )

Opinion filed July 16, 2014.

Appeal from the Circuit Court for Lee
County; Keith R. Kyle, Judge.

Jason A. Lessinger and David M. Levin of
Icard, Merrill, Cullis, Timm, Furen &
Ginsburg, P.A., Sarasota, for Appellant.

J. Matthew Belcastro and Harold N. Hume
of Henderson, Franklin, Starnes & Holt,
P.A., Fort Myers, for Appellees.


BLACK, Judge.


             5F, LLC, challenges the order granting final summary judgment in favor of

Robert Dresing, Sarah F. Dresing, and the Northern Trust Company, trustee for the

Michael W. O'Shaughnessy Trust (collectively referred to as the Dresings). The lower
court found that the Dresings, as riparian land owners, have a common law right to

construct a pier on submerged land owned by 5F which abuts the Dresings' property

and that 5F is collaterally estopped from obtaining relief due to the resolution of prior

litigation. Because we conclude that the Dresings' riparian rights include the right to

construct a pier upon privately owned submerged lands, we affirm the final summary

judgment; however, we conclude that collateral estoppel did not bar 5F's lawsuit.

I.     Background

              Mr. and Mrs. Dresing and the Northern Trust Company own adjacent lots

extending to the mean high water line1 in the Boca Grande Isles subdivision in Lee

County. The State of Florida originally owned all of the land which became Boca

Grande Isles, as well as the submerged lands surrounding Boca Grande Isles. By

1958, 5F's predecessor in title, Sunset Realty Corporation (Sunset), had acquired all of

this land from the State.2 On December 16, 2010, the submerged land involved in this

case was conveyed to FFF, LLC, and subsequently, on June 9, 2011, to 5F.



              1"The  boundary between public lands and private uplands is the [mean
high water line], which represents an average over a nineteen-year period." Walton
Cnty. v. Stop the Beach Renourishment, Inc., 998 So. 2d 1102, 1113 (Fla. 2008) (citing
Kruse v. Grokap, Inc., 349 So. 2d 788, 789-90 (Fla. 2d DCA 1977)). As noted by the
Walton County court, the nineteen-year period is codified in section 177.27, Florida
Statutes (1975). 998 So. 2d at 1113. The mean high water line or ordinary high water
mark "is described as 'the point up to which the presence and action of the water is so
continuous as to destroy the value of the land for agricultural purposes by preventing
the growth of vegetation.' " Bd. of Trs. of the Internal Improvement Trust Fund v.
Walker Ranch Gen. P'ship, 496 So. 2d 153, 155 (Fla. 5th DCA 1986) (quoting Tilden v.
Smith, 113 So. 708, 712 (Fla. 1927)).
              2In 1973, Sunset recorded a subdivision plat of Boca Grande Isles in the
public records of Lee County and subsequently began selling homesites within the
subdivision. In 1989, Sunset recorded a subdivision plat, the Sunset Flats subdivision,
of the submerged lands surrounding Boca Grande Isles. However, the land was never
filled and remains submerged.


                                            -2-
              On March 15, 2010, the Dresings obtained the necessary permits from

Lee County to construct a pier extending from their property onto the submerged land

owned by 5F. Permit revisions were made in October 2010, and construction began

thereafter. The completed structure was inspected and approved by Lee County on

December 3, 2010. At that time, the submerged lands were owned by FFF; the

Dresings made no attempt to obtain consent from FFF to construct the pier, and FFF

made no objection to the pier during its construction or thereafter.

              Some seven months after construction had been completed, 5F advised

the Dresings of its objection to the pier by letter dated July 11, 2011. This notice was

followed by a complaint filed on August 6, 2012, wherein 5F sued the Dresings for

declaratory relief, ejectment, trespass, and trespass damages. The Dresings filed an

answer and affirmative defenses claiming a riparian right to construct the pier, as well

as arguing the applicability of the doctrines of collateral estoppel, equitable estoppel,

and balancing of the conveniences. Both sides moved for summary judgment. The

lower court ruled in favor of the Dresings, finding that as riparian owners3 they had a

common law right to build the pier and also finding that 5F was collaterally estopped

from raising its claims due to earlier litigation. This appeal followed.

II.    Discussion



              3Technically,    " '[t]he term riparian owner applies to waterfront owners
along a river or stream, and the term littoral owner applies to waterfront owners abutting
an ocean, sea, or lake.' " Walton Cnty., 998 So. 2d at 1105 n.3 (alteration in original)
(quoting Bd. of Trs. of the Internal Improvement Trust Fund v. Sand Key Assocs., Ltd.,
512 So. 2d 934, 936 (Fla. 1987)). However, to be consistent with the lower court
proceedings and common practice in Florida, we will use the term riparian. See
Brannon v. Boldt, 958 So. 2d 367, 372 n.3 (Fla. 2d DCA 2007) ("Although the use of
'riparian' in this case is technically incorrect, it is consistent with the accepted usage in
Florida cases.").


                                            -3-
   A. Riparian rights

           a. The lower court ruling

              There is no dispute in our case that the Dresings own to the high water

mark and there is no contention by 5F that the pier in question extends beyond the low

water line or interferes with navigation or the public's superior rights to use the water.

              In ruling for the Dresings, the lower court cited three Florida Supreme

Court cases, Hayes v. Bowman, 91 So. 2d 795 (Fla. 1957), Williams v. Guthrie, 137 So.

682 (Fla. 1931), and Freed v. Miami Beach Pier Corp., 112 So. 841 (Fla. 1927), for the

principle that as a matter of law, the Dresings, as riparian owners, had a common law

right to construct the pier at issue.

           b. The common law

              The central issue here is whether the Dresings have a common law right

to "wharf out," in this case, to construct a dock or a pier on land that is privately owned

by 5F. We begin by looking to the origin of Florida's riparian rights, the English common

law.

                     Under the common law of England the crown in its
              sovereign capacity held the title to the beds of navigable or
              tide waters, including the shore or the space between high
              and low water marks, in trust for the people of the realm who
              had rights of navigation, commerce, fishing, bathing, and
              other easements allowed by law in the waters. This rule of
              the common law was applicable in the English colonies of
              America.

                      After the Revolution resulting in the independence of
              the American states, title to the beds of all waters, navigable
              in fact, whether tide or fresh, was held by the states in which
              they were located, in trust for all the people of the states
              respectively.




                                            -4-
Brickell v. Trammell, 82 So. 221, 226 (Fla. 1919). When Florida became a state, it was

admitted "on equal footing with the original states." Id. That is, title to all submerged

land in Florida rested with the State of Florida, and "[t]he shore or space between high

and low water mark is a part of the bed of navigable waters, the title to which is in the

state in trust for the public." Ferry Pass Inspectors' & Shippers' Ass'n v. White's River

Inspectors' & Shippers' Ass'n, 48 So. 643, 644 (Fla. 1909). Riparian holders were

defined, at common law, as "those who own land extending to [the] ordinary high-water

mark of navigable waters."4 Brickell, 82 So. at 227. And "[r]iparian rights are incident to

the ownership of lands contiguous to and bordering on navigable waters." Ferry Pass,

48 So. at 644.

              Among the common-law rights of those who own land
              bordering on navigable waters apart from rights of alluvion
              and dereliction are the right of access to the water from the
              land for navigation and other purposes expressed or implied
              by law, the right to a reasonable use of the water for
              domestic purposes, the right to the flow of the water without
              serious interruption by upper [or] lower riparian owners or
              others, the right to have the water kept free from pollution,
              the right to protect the abutting property from trespass and
              from injury by the improper use of the water for navigation or
              other purposes, the right to prevent obstruction to navigation
              or an unlawful use of the water or of the shore or bed that
              specially injures the riparian owner in the use of his property,
              the right to use the water in common with the public for
              navigation, fishing, and other purposes in which the public
              has an interest.



              4It is of no consequence that the pier wharfs out into shallow water. See
Martin v. Busch, 112 So. 274, 283 (Fla. 1927) ("The navigable waters include lakes,
rivers, bays, or harbors, and all waters capable of practical navigation for useful
purposes, whether affected by tides or not, and whether the water is navigable or not in
all its parts towards the outside lines or elsewhere, or whether the waters are navigable
during the entire year or not."); Broward v. Mabry, 50 So. 826, 831 (Fla. 1909) (noting
that the shallow body of water in question is navigable even though it goes dry at times
and can only be navigated by small boats).


                                            -5-
Id. at 644-45.

                 As to a riparian owner's right to build piers or wharves specifically, the

supreme court stated:

                 Subject to the superior rights of the public as to navigation
                 and commerce, and to the concurrent rights of the public as
                 to fishing and bathing and the like, a riparian owner may
                 erect upon the bed and shores adjacent to his riparian
                 holdings bath houses, wharves, or other structures to
                 facilitate his business or pleasure; but these privileges are
                 subject to the rights of the public to be enforced by proper
                 public authority or by individuals who are specially and
                 unlawfully injured.

Id. at 645.

                 Further, "[t]he exclusive rights of a riparian owner are such as are

necessary for the use and enjoyment of his abutting property and the business lawfully

conducted thereon; and these rights may not be so exercised as to injure others in their

lawful rights." Id.

              c. Florida Supreme Court decisions

                 In the 1909 decision in Ferry Pass, the Florida Supreme Court set forth in

detail the common law rights of riparian owners. It specifically included, as a privilege

or qualified right, inferior to the rights of the public as to navigation and commerce but

concurrent in other aspects, the benefit of building "wharves, or other structures to

facilitate his business or pleasure." 48 So. at 645. The supreme court has consistently

affirmed the language of Ferry Pass, with some clarification and limitation usually

relevant to the applicable law at the time of the case or to a particular set of facts. For

example, subsequent to its decision in Ferry Pass, the court in Thiesen v. Gulf, Florida

& Alabama Railway Co., 78 So. 491, 501 (Fla. 1917), reh'g granted, (1918), considered




                                               -6-
both whether riparian owners whose lots did not extend to the low water mark had the

right to "wharf out"—"to construct wharves, docks, and piers"—beyond the low water

mark "out into the bay to the channel" pursuant to the Riparian Act of 1856,5 as well as

whether those riparian owners had a common law right to "wharf out" beyond the low

water mark, "out into the bay to the channel."

              In Thiesen, a riparian owner whose lot extended only to the high water

mark sued a railroad company claiming that the railroad company had deprived him of

his riparian rights by filling in the submerged land in front of his property and

constructing tracks thereon. Mr. Thiesen asserted that the railroad company's actions

interfered with his rights of access, ingress and egress, and his right to construct

wharves from his property to the low water mark and into the channel of the Pensacola

Bay. The narrow question before the court involved construction of wharves "beyond

the low-water mark to the channel," id. at 502, under both the Riparian Act of 1856 and

common law where the riparian owner's title extended only to the high water mark.




              5Shortly  after Florida became a state, the Florida Legislature enacted the
Riparian Act of 1856. See ch. 791, Laws of Fla. (1856). This act "granted to such
riparian owners whose lots extended to [the] low-water mark the right to build wharves
into streams or waters of the bay or harbor as far as may be necessary for facilitating
the landing of goods." Thiesen, 78 So. at 501. In 1921, the Riparian Act of 1856 was
replaced by the Butler Act, see ch. 8537, Laws of Fla. (1921) (repealed 1957), which,
just like its predecessor, "divested the State of Florida of fee simple title to submerged
lands upon which upland owners constructed certain improvements in the interest of
encouraging commerce by developing waterfront property." City of West Palm Beach v.
Bd. of Trs. of the Internal Improvement Trust Fund, 746 So. 2d 1085, 1086 (Fla. 1999).
"The Butler Act was expressly repealed by the Bulkhead Act of 1957, which vested title
to all submerged lands in the trustees of the Internal Improvement Fund." City of West
Palm Beach v. Bd. of Trs. of the Internal Improvement Trust Fund, 714 So. 2d 1060,
1061 (Fla. 4th DCA 1998) (citing ch. 57-362 § 1, Laws of Fla. (codified at § 253.12, Fla.
Stat. (1997)), aff'd, 746 So. 2d 1085 (Fla. 1999).



                                            -7-
              After determining that the Riparian Act of 1856 was inapplicable to Mr.

Thiesen because his title did not include the land between the high water mark and the

low water mark, the court determined that the common law did not afford Mr. Thiesen

the right to construct wharves "out into the bay to the channel" beyond the low water

mark. Id. In so holding, the supreme court quoted with approval the language of Ferry

Pass that a " 'riparian owner may erect upon the bed and shores adjacent to his riparian

holdings bathhouses, wharves, or other structures to facilitate his business or pleasure,'

" subject to the superior or concurrent rights of the public. Id. at 502-03 (quoting Ferry

Pass, 48 So. at 645). It also quoted with approval the language of a United States

Supreme Court decision discussing the construction of wharves by riparian owners

whose land bordered navigable streams. In Yates v. City of Milwaukee, 77 U.S. 497,

504 (1870), Justice Miller, writing for the Court, stated that a riparian owner has "the

right to make a landing, wharf or pier for his own use or for the use of the public, subject

to such general rules and regulations as the legislature may see proper to impose for

the protection of the rights of the public, whatever those may be."

              Ten years after the Thiesen decision, the supreme court considered a

dispute between adjacent riparian owners in Freed, 112 So. 841. There the appellee

pier corporation constructed a pier that encroached upon the submerged land in front of

Mr. and Mrs. Freed's property. The submerged land was owned by the State. Since

the pier was constructed pursuant to the proper authority and the Freeds were on notice

of the construction but only took legal action after construction had begun and large

sums of money had been expended, the supreme court denied the Freeds' request for




                                            -8-
an injunction.6 Id. at 844-45. In ruling for the corporation, the supreme court, citing both

Ferry Pass and Thiesen, recognized a "qualified right" to "erect wharves or piers or

docks in front of the riparian holdings to facilitate access to and the use of the navigable

waters, subject to lawful state regulation and to the dominant powers of Congress." Id.

(citations omitted).

              In Williams, a 1931 decision, the supreme court yet again confirmed the

riparian right to erect piers and wharves, stating, "in this state riparian owners have the

riparian right to construct wharves from the upland to reach the navigable water, when

not objected to by the sovereign or specially forbidden by statute." 137 So. at 685; see

also Game & Fresh Water Fish Comm'n v. Lake Islands, Ltd., 407 So. 2d 189, 191 (Fla.

1981) (reaffirming the riparian rights set forth in Ferry Pass); Adams v. Elliott, 174 So.

731, 733 (Fla. 1937) ("Riparian or littoral upland owners may construct appropriate piers

or whar[ves] over and across the beach to reach the water for authorized purposes . . .

.), overruled on other grounds by Brown v. State, 237 So. 2d 129 (Fla. 1970). The

riparian privilege or right is qualified not only by the necessity of obtaining a license from

the State but by the predominant rights of the public in navigable waters such that "even

when the title [to submerged lands] is in private parties a recovery of possession is

subject to the rights of the public in the waters." Williams, 137 So. at 684-85 (citing




              6Just    as the supreme court in Freed admonished the adjacent riparian
owners for failing to take legal action until construction had begun and money
expended, 5F and its predecessors in title are deserving of reproach for failing to object
to the pier prior to its completion. "[A]ny substantial encroachment upon the rights of
others may be remedied by timely and appropriate procedure in due course of law at
the instance of proper parties, but the rights of individuals to remedy may be waived by
undue delay or laches in seeking a remedy." Freed, 112 So. at 845.


                                            -9-
Bass v. Ramos, 50 So. 945, 948 (Fla. 1909) (recognizing that submerged lands are held

in trust for the public)).

               Although it did not involve the building of wharves or piers, the 1957

Hayes decision is of particular importance given the facts of our case because Hayes

involved the interplay of riparian rights and the rights of the owners of privately held

submerged lands.

               The Hayeses and the Abbotts (submerged landowners) acquired

submerged land from the State, dredged and filled it, and built a peninsular subdivision

with "fingers" or smaller peninsulas extending from the main peninsula. Thus, a number

of the lots were surrounded by navigable water, Boca Ciega Cay. The submerged

landowners subsequently acquired additional submerged lands surrounding the lots and

proposed to dredge and fill that land. Three riparian owners filed suit to enjoin the

filling, claiming that filling would interfere with their common law riparian right to an

unobstructed view of the bay and the right of ingress and egress to the channel. Hayes,

91 So. 2d at 798. The supreme court ruled in favor of the submerged landowners. Id.

at 801. However, the court recognized that "any person acquiring any such

[submerged] lands from the State must so use the land as not to interfere with the

recognized common law riparian rights of upland owners (an unobstructed view, ingress

and egress over the foreshore from and to the water)." Id. at 799 (citations omitted).

Although it did not expressly include wharfing out or constructing piers, it is clear that

the court considered riparian rights superior to those of the submerged landowner—

"riparian rights . . . must be preserved over an area 'as near as practicable' in the

direction of the Channel . . . ." Id. at 802. Moreover, the court ruminated upon the more




                                            - 10 -
complex problems that the sale of submerged lands to private entities would cause in

the future, concluding that submerged lands "must be administered with due regard to

the limitations of the trust with which they are impressed." Id. at 800 (citations omitted).

              In Belvedere Development Corp. v. Department of Transportation, 476 So.

2d 649 (Fla. 1985) (Belvedere II), although it quashed the Fourth District's opinion in

Belvedere Development Corp. v. Department of Transportation, 413 So. 2d 847 (Fla.

4th DCA 1982) (Belvedere I), the supreme court quoted with approval the special

concurrence of Judge Hersey that riparian owners have the right, among others, " 'to

wharf out to navigability.' " Belvedere II, 476 So. 2d at 651 (quoting Belvedere I, 413

So. 2d at 851 (Hersey, J., concurring)). This language has subsequently been relied

upon by the Fourth District in multiple opinions. See Bd. of Comm'rs of Jupiter Inlet

Dist. v. Thibadeau, 956 So. 2d 529, 534 (Fla. 4th DCA 2007); Shore Vill. Prop. Owners'

Ass'n, Inc. v. Fla. Dep't of Envtl. Prot., 824 So. 2d 208, 211 (Fla. 4th DCA 2002);

Tewksbury v. City of Deerfield Beach, 763 So. 2d 1071, 1071 (Fla. 4th DCA 1999).

              As recently as 2008, the Florida Supreme Court had occasion to list the

common law riparian rights and identified them as "(1) the right to have access to the

water; (2) the right to reasonably use the water; (3) the right to accretion and reliction;

and (4) the right to unobstructed view of the water." Walton Cnty. v. Stop the Beach

Renourishment, Inc., 998 So. 2d 1102, 1111 (Fla. 2008), aff'd, Stop the Beach

Renourishment, Inc. v. Fla. Dep't of Envtl. Prot., 560 U.S. 702 (2010). Importantly, the

supreme court cited those portions of Belvedere II and Ferry Pass identifying the right to

erect wharves or piers for those enumerated rights. In short, there is extensive




                                            - 11 -
supreme court authority establishing the riparian right to "wharf out," at least to the low

water line, subject only to the public trust.

           d. District court opinions

              We find further support for the conclusion that common law riparian rights

include the qualified right to build a pier or wharf in decisions from our district as well as

the Fourth District.

              In Brannon v. Boldt, 958 So. 2d 367 (Fla. 2d DCA 2007) (en banc), this

court addressed a dispute between a servient estate, the riparian owner, and the

dominant estate, upland owners, over implied easement rights. Although not specific to

the construction of a pier, building upon Cartish v. Soper, 157 So. 2d 150 (Fla. 2d DCA

1963),7 this court found that the implied easement would have included the right to build

a dock from the riparian owner's land over which the easement existed "if otherwise

permitted by law." Brannon, 958 So. 2d at 374. Quite clearly, a dominant estate holder

cannot obtain rights that the servient estate holder does not possess. Thus, in order for

the implied easement to have included the right "to apply for a permit to place a dock on

the" easement, the riparian owner must also have possessed that right. See id. at 373.

              This court's statement is in accord with the Freed decision wherein the

supreme court recognized a "qualified right" to "erect wharves or piers or docks in front



              7The   Cartish decision, relied upon in Brannon, involved a dispute between
upland owners concerning the scope of an easement and whether the easement
included a right to rebuild a previously existing dock. This court determined that riparian
rights were implied as part of the easement allowing for ingress and egress from the
bay. 157 So. 2d at 153. See also Shore Village, 824 So. 2d at 210-11 (citing Cartish in
concluding that easement included riparian rights, particularly the right to "wharf out to
navigability"). As such, this court concluded that the right to rebuild the dock to facilitate
access to the bay was implied in the easement. Cartish, 157 So. 2d at 153-54.



                                                - 12 -
of the riparian holdings to facilitate access to and the use of the navigable waters,

subject to lawful state regulation and to the dominant powers of Congress." 112 So. at

844-45. And, as we did in Brannon, we reiterate that the privilege or qualified right to

construct a pier "is apparently illusory" until such time as the riparian owner complies

with the applicable regulations, including zoning and environmental controls put in place

as part of the public trust doctrine. 958 So. 2d at 373. See also Op. Att'y Gen. Fla. 96-

49 (1996) ("Subject to applicable regulations and permitting procedures, the owner of

riparian property may construct and maintain a wharf, dock, or pier from his or her land

to the navigable portion of adjoining waters.").

              In Board of Trustees of the Internal Improvement Trust Fund v. Medeira

Beach Nominee, Inc., 272 So. 2d 209 (Fla. 2d DCA 1973), a case addressing title to

accreted lands as between the Board of Trustees and the riparian owner, this court

expressly recognized a "qualified common law right to wharf out to navigable waters in

the absence of a statute." Id. at 214 (citing Freed, 112 So. 841; Williams, 137 So.

682).8 The Medeira Beach decision also recognizes the public trust doctrine and the

impact of governmental regulation on the rights of the public and riparian owners.

              The Fourth District has three times expressly stated that riparian rights in

Florida include the right "to wharf out to navigability." In Shore Village the court

addressed "whether riparian rights necessarily include the building of a dock." 824 So.




              8See  also Op. Att'y Gen. Fla. 96-49 (1996) (citing Freed and Ferry Pass as
authority for the conclusion that "riparian property owners in Florida have a qualified
right to build docks or 'wharf out' to navigable water and have exclusive rights to use
their private property"); Op. Att'y Gen. Fla. 90-37 (1990) (citing Freed and Medeira
Beach for the conclusion that "riparian property owners in Florida have a qualified right
to build docks or 'wharf out' to navigable water in the absence of a statute").


                                           - 13 -
2d at 211. Citing its previous decision in Tewksbury, 763 So. 2d at 1071, and the

supreme court's Belvedere II decision, 476 So. 2d at 651, the Fourth District concluded

that "riparian rights include the building of a dock to have access to navigable waters."

Shore Village, 824 So. 2d at 211; see also Thibadeau, 956 So. 2d at 534.

           e. Sovereign submerged lands v. Privately held submerged lands

               It is important to reaffirm the issue presented in this appeal, which is

whether the Dresings have an affirmative right to construct the pier and not what rights

5F may have. 5F argues that no right to wharf out at common law exists, or at best, that

it can prevent the Dresings from exercising their right. In this regard it is important to

consider on what basis the State could prevent the Dresings from erecting a pier if the

submerged lands were still held in trust by the State, or perhaps more accurately, by the

Board of Trustees of the Internal Improvement Trust Fund (Trustees).

               The public trust doctrine was codified in article X, section 11, of the Florida

Constitution, which recites that "[t]he title to lands under navigable waters, within the

boundaries of the state, which have not been alienated, including beaches below mean

high water lines, is held by the state, by virtue of its sovereignty, in trust for all the

people." Thus, the State did not hold title to submerged lands "for purposes of sale or

conversion into money." Hayes, 91 So. 2d at 799. Rather, such lands are "trust

property and should be devoted to the fulfillment of the purposes of the trust, towit [sic]:

the service of the people." Id. As noted previously, pursuant to the Bulkhead Act of

1957, title to all sovereign submerged land was vested in the Trustees. The Trustees

were thus "vested with the power and duty to manage and control sovereignty lands."

Mariner Props. Dev., Inc. v. Bd. of Trs. of the Internal Improvement Trust Fund, 743 So.




                                             - 14 -
2d 1121, 1122 (Fla. 1st DCA 1999) (citing § 253.03, Fla. Stat.). However, "[c]onsistent

with article X, section 11, of the Florida Constitution, [submerged lands] are held by the

Board [of Trustees] as a public trust and the Board [of Trustees'] authority is rigidly

circumscribed by this common law doctrine." Id. (emphasis added).

              In Krieter v. Chiles, 595 So. 2d 111 (Fla. 3d DCA 1992), a riparian owner

was denied permission by the Trustees to construct a dock on submerged land in a park

held in trust by the Trustees. The court recognized that the riparian owner's right of

ingress and egress by wharfing out was a qualified right, citing Ferry Pass, and as such,

the Trustees had the authority to prohibit its construction because it was in the public

interest to do so. Id. at 112-13 (citing Graham v. Edwards, 472 So. 2d 803, 807 (Fla. 3d

DCA 1985)); see also Hayes, 91 So. 2d at 799 ("[T]he State may dispose of submerged

lands under tidal waters to the extent that such disposition will not interfere with the

public's right of navigation, swimming and like uses. Moreover, any person acquiring

any such lands from the State must so use the land as not to interfere with the

recognized common law riparian rights of upland owners (an unobstructed view, ingress

and egress over the foreshore from and to the water)."). Certainly any authority

obtained by 5F's predecessors in interest and thereafter 5F would also be so restricted

by the public trust doctrine. And even if the pier in question was constructed in

contravention of the public trust, 5F has not asserted such argument. Further, the

permits obtained by the Dresings suggest otherwise. Cf. Burns v. Wiseheart, 205 So.

2d 708, 710 (Fla. 1st DCA 1968).

              However, it has not escaped this court's attention that only a few of the

foregoing cases concerned riparian rights and privately owned submerged land—




                                            - 15 -
Thiesen, Hayes, and Tewksbury. Along with the fact that Thiesen addressed the

narrow legal issue of wharfing out beyond the low water mark, an issue not before this

court, both Thiesen and Hayes presented a set of facts which are increasingly rare—the

applicability of riparian rights where submerged land under navigable water has been or

will be dredged and filled to create upland. As noted previously, Sunset did in fact

record a subdivision plat of the submerged land in 1989. However, the dredging and

filling of land is no longer a commonly accepted practice. See F. Maloney, S. Plager, R.

Ausness, B. Canter, Florida Water Law 460-62 (1980) (noting that pursuant to the

Bulkhead Act, dredging and filling activities became heavily regulated and the sale of

submerged lands was permitted only in the public interest with ecological considerations

in mind; the public's awareness of environmental issues also increased in the late 1960s

and early 1970s).

              The Tewksbury decision addressed privately owned submerged lands and

the scope of a riparian owner's right to erect a dock, specifically whether that right

included the operation of an outdoor dining area on the dock. 763 So. 2d at 1071. And

although the court noted that "[t]he fact that this case concerns privately-owned

submerged land as opposed to sovereign lands owned by the State of Florida makes it

somewhat unique," 763 So. 2d at 1071 n.1, the court did not consider that a factor in

determining the scope of the riparian owner's right "to wharf out to navigability," id. at

1071-72. Neither do we.

              Moreover, all of the aforementioned cases illustrate a common thread: that

the rights of the public are superior to those of private landowners—whether riparian




                                            - 16 -
owners or submerged land owners. This is one indicium of the uniqueness of riparian

rights. As the supreme court has stated,

              [a]lthough riparian rights are property, they are unique in
              character. The source of those rights is not found within the
              interest itself, but rather they are found in, and are defined in
              terms of the riparian upland. In most cases, therefore, it is
              not difficult to find that riparian rights are an inherent aspect
              of upland ownership and are not severable from it.

Belvedere II, 476 So. 2d at 652. With regard to submerged lands like other property,

"the law recognizes various degrees of legal rights and interests in the same property

and does not demand that one person hold the entire 'bundle of sticks.' " Coastal

Petroleum Co. v. Am. Cyanamid Co., 492 So. 2d 339, 348 (Fla. 1986).

              Finally, though it is apparent the authority to control and manage

submerged lands is restricted by the public trust doctrine, we do not believe that such

authority can be stripped from the State even if the submerged land becomes privately

owned. See State ex rel. Ellis v. Gerbing, 47 So. 353, 355 (Fla. 1908) ("A state may

make limited disposition of portions of such lands, or of the use thereof, in the interest of

the public welfare, where the rights of the whole people of the state as to navigation and

other uses of the waters are not materially impaired. The states cannot abdicate

general control over such lands and the waters thereon, since such abdication would be

inconsistent with the implied legal duty of the states to preserve and control such lands

and the waters thereon and the use of them for the public good.").




                                           - 17 -
          f. Conclusion

              We conclude there is a common law qualified riparian right or privilege to

construct piers or wharves from the riparian owner's land onto submerged land to the

point of navigability but not beyond the low water line, subject to the superior and

concurrent rights of the public and to applicable regulations. This is true regardless of

whether the submerged lands are held in trust by the State or privately held.

   B. Collateral Estoppel

              In addition to finding a common law right to erect a pier or wharf, the lower

court also found that 5F's claims were barred by application of the collateral estoppel

doctrine based upon two circuit court cases involving 5F's predecessor in title, Sunset.

The outcomes of both cases were adverse to Sunset.9 Though it is undisputed that

these prior lawsuits involved the same subdivision and effectively the same owner of the

submerged lands since Sunset was the predecessor in title to the submerged lands, it is

also undisputed that the Dresings were not parties to either of the prior actions and

were not in privity with any party that was.

              As the Florida Supreme Court has made clear, there must "be mutuality of

parties in order for collateral estoppel to apply defensively." E.C. v. Katz, 731 So. 2d

1268, 1270 (Fla. 1999); accord Stogniew v. McQueen, 656 So. 2d 917, 919 (Fla. 1995).

Further, this court recently determined that collateral estoppel was inapplicable in a

case that did not involve the "relitigation of the same issues by the same parties in a



              9See  Summary Judgment, LeClair v. Stewart, No. 91-8953 CA-WCM (Fla.
20th Cir. Ct. Dec. 22, 1992) (order granting plaintiff's motion for summary judgment
against defendants, Robert Stewart and Sunset); Order Granting Defendants' Motion for
Summary Judgment, Sunset Realty Corp. v. Boynton, No. 91-3623 CA (Fla. 20th Cir.
Ct. May 18, 1992).


                                           - 18 -
different cause of action." Zakhary v. Raymond Thompson PSM, Inc., 93 So. 3d 1148,

1151 (Fla. 2d DCA 2012); see also Cook v. State, 921 So. 2d 631, 634-35 (Fla. 2d DCA

2005) (explaining the general principles of collateral estoppel including the mutuality of

parties requirement). Though exceptions to the mutuality of parties requirement have

been recognized in a few limited circumstances, such as "where special fairness or

policy considerations appear to compel it," see West v. Kawasaki Motors Mfg. Corp.,

U.S.A., 595 So. 2d 92, 94-96 (Fla. 3d DCA 1992), this is not such a case. In fact,

              the sole exception "in which [the Florida Supreme Court] has
              not strictly adhered to the requirement of mutuality of parties
              is Zeidwig [v. Ward, 548 So. 2d 209 (Fla. 1989)]." In that
              case, a criminal defendant who had unsuccessfully brought
              an ineffective assistance of counsel claim in a postconviction
              proceeding was held to be collaterally estopped from raising
              the same claim in a legal malpractice action against his
              former lawyer. . . . Zeidwig constitutes a "narrow exception"
              in which collateral estoppel is permitted in a defensive
              context "and then only under the compelling facts of that
              case."

E.C., 731 So. 2d at 1269-70 (alteration in original) (quoting Stogniew, 656 So. 2d at

919).

              The Second District cases that recognize an exception to the general rule

regarding mutuality of parties either involve a significant legal relationship between the

party in the prior action and the party asserting collateral estoppel or a mutual interest in

the same matter. In City of New Port Richey v. State ex rel. O'Malley, 145 So. 2d 903,

905 (Fla. 2d DCA 1962), for example, this court applied the doctrine of collateral

estoppel determining that there was a "mutuality of interest in the same subject matter."

This court noted that in addition to the fact that the parties in both suits were property

owners in an area annexed by the city, the issue in both cases involved the same real




                                           - 19 -
property, namely, the annex. An exception to the mutuality of parties requirement was

also applied in the three-line opinion in Dixie Auto Transport Co., Inc. v. Louttit, 588 So.

2d 68 (Fla. 2d DCA 1991). However, in recognizing the exception, this court cited

Zeidwig and a Third District case, Verhagen v. Arroyo, 552 So. 2d 1162 (Fla. 3d DCA

1989). The Dresings concede that the very narrow exception recognized in Zeidwig is

not applicable here. Further, the court in Verhagen expressly found that the defendants

in that action were in privity, "for collateral estoppel purposes," with the defendants in

the prior action. 552 So. 2d at 1164.

               Because we do not have mutuality of parties in this case and there is

otherwise no relationship between the Dresings and the prior litigants, collateral

estoppel is inapplicable.

III.     Conclusion

               Though collateral estoppel does not bar 5F's claims, we affirm the lower

court's final summary judgment order to the extent that the court determined that the

Dresings, as riparian owners, have a qualified common law right to construct the pier at

issue.

               Affirmed.



ALTENBERND and KHOUZAM, JJ., Concur.




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