When dealing with the location of mean high water marks and ordinary high water marks, the principal subject in the boundary line between public ownership and private ownership. Throughout this century, both statutory and case law in this area have moved toward recognizing public ownership of more land and private ownership of less land. As a result, there has been a landward movement of the boundary between public and private owner ship.
This section focuses largely upon Florida law; because Florida has the advantage of a having both gulf and oceanfront a mean high water marks as well as ordinary high water marks on both rivers and lakes.
Terminology. One must review the development and shift of the causes from private to public ownership to understand much of the terminology in this area. Unfortunately, courts have often confused the terminology. For example, courts have often used the terms riparian rights and littoral rights interchangeably, even thought strictly speaking those terms are not interchangeable. Another example of confusion in terminology involves the distinction between the mean high water mark and ordinary high water mark. However, courts typically use mean thigh water in reference only to tidally- influenced waters, and ordinary high water in relation to non- tidally- influenced fresh waters.
Navigability. American causes quickly departed from the English concept of sovereign
lands, which related almost exclusively to navigable tidally-influenced waters. American courts did continue to rely on the concept of navigability, both in regard to fresh water and salt water. This resulted in two very different categories o tidally- influenced water. The first category related to waters that were navigable and usually bordered by ascertainable banks. The second related to waters that were tidally-influenced yet non- navigable, and frequently without a definite bank. As the law developed, of become clear that the mean high water mark was the division between upland and sovereign land in navigable water, and that the extent of navigability was not material-i.e, one did not have to be able to run the boat to the a bank.
Mean High Water Mark(The American Case)
Originally, American courts adopted English law and thus continually referred to the “mean low water mark”. The original statues in Florida defined the dividing line as the mean low water mark. Further, most early navigation charts in the United States depicted mean low water rather than mean high water, because their principal purpose was to define the navigability of the water and not the ownership of the lands under that water.
Overtime, the cases began to define the dividing line as the “mean high water mark”. At times, however, there seemed to be as many definitions of “mean high water” as there were cases. The confusion derived from the fact that, in addition to measuring length and width, it was also necessary to measure height and time. For example, in Florida, for many years it was assumed that the shares along the entire Atlantic Ocean and Gulf Coast were semi-diurnal. Assuming two high tides and two low tides each day, if it was assumed that the mean tide was halfway in between those two tides. Many surveyed on this basis, and it became readily apparent that there was a great deal of divergence among surveys. In trying to explain these divergences, the United States and the states of Florida determined that the tides were in fact dismal or daily (i.e. one high tide and one low tide each day). Because there was only one high tide, the highest of the high tides was selected as the high tide
Which brought thousands of acres of Florida under public ownership rather than private ownership. In addition, the tides of one day had to be compared to another; however, because the tides changed from day to day and season to season, no one was certain over what period of time the tides had to be measured.
Into this confusion came the case of Borax Consolidated Ltd.V. Los Angles. The Borax court stated:
In view of the definition of the mean high tied, as given by the united states coast and geodetic survey, that” Mean high-water at any place is the average height of all the high waters at that place over a considerable period of time,” and the further observation that “from theoretical considerations of an astronomical character” there should be “ a periodic variation in the rise of water above sea level having a period of 18.6 years,” the court of appeals directed that in order to mean high tied line with requisite certainty in fixing the boundary of valuable tied lands such as those here in question appear to be, “an average of 18.6 years should be determined as near as possible.”
From that day forward, all tidal marks in the united states were done on the basis of measuring the periodic variations over a period of 18.6 years.