Opinion
No. 32655.
January 17, 1964. Rehearing Denied February 13, 1964.
Appeal from the Circuit Court, Manatee County, Robert E. Willis, J.
Robert E. Knowles, of Knowles, Knowles Mann, Bradenton, for appellant.
James W. Kynes, Atty. Gen., Robert C. Parker and James T. Carlisle, Asst. Attys. Gen., for appellees.
This appeal is from an order dismissing an original complaint for declaratory and other relief consequent upon a proceeding by which a bulkhead line was set pursuant to F.S. Section 253.122, F.S.A., across submerged lands purchased by appellant from the appellee trustees of the Internal Improvement Fund under contract of October 6, 1955.
We find that the controverted order must be affirmed upon authority of Gies v. Fischer, Fla. 1962, 146 So.2d 361. That decision disposed of the constitutional issues contrary to appellant's contentions, construing the provision of the statute that such a line "shall represent the line beyond which a further extension * * * shall be deemed an interference with the [public] servitude" as vesting a discretion based on factual determinations, and not arbitrary or capricious in nature.
The power vested in the authorities named in the statutes to fix and determine these lines, must be exercised in the interest of the general welfare and not for the purpose of granting advantages to or imposing penalties upon individual upland owners or others. Nothing in the decision in the Gies case nor this decision is to be construed as depriving the courts, in such cases, of jurisdiction or authority to correct such action where or when it occurs in an appropriate proceeding.
The record in this cause indicates that the propriety of the procedural steps followed by the County and the trustees is not in issue, and appellant's objections to the order below in other respects are without merit.
Affirmed.
DREW, C.J., and THOMAS, THORNAL, O'CONNELL and CALDWELL, JJ., concur.