[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

________________________ No. 20

- 12584

________________________ D.C. Docket No. 3:17

- cv - 00335

- MCR

- HTC

A FLOCK OF SEAGIRLS LLC, 3:17

- cv - 00335

- MCR

- HTC formerly known as SWEAT EQUITY LLC, VALENTINES HEIGHTS LLC, Plaintiffs

- Appellants,

versus WALTON COUNTY FLORIDA, Defendant

- Appellee.

__________________________________________________________________ VALENTINES HEIGHTS LLC, 3:17

- cv - 00371

- MCR

- MJF
P laintiff

- Appellant,

versus WALTON COUNTY FLORIDA, Defendant

- Appellee.

USCA11 Case: 20-12584 Date Filed: 08/05/2021 Page: 1 of 142 _____________________ ___ Appeal from the United States District Court for the Northern District of Florida

________________________ (A u gust 5, 2021) Before NEWSOM, BRANCH, and LAGOA, Circuit Judges. NEWSOM, Circuit Judge: This case requires us to interpret the terms of a recorded easemen t that runs with two beachfront lots in Walton County, Florida. For nearly two decades, Walton County has held an easement across a 75

- f oo t strip of dry

- sand beach that runs parallel to the Gulf of Mexico ’s shoreline

. The easement specifies that it shall be for the purpose of “a way of passage , on or by foot only.” Importantly for our purposes, t he easement also contains an abandonment clause, which provid es in relevant part that the County will be deemed to have abandoned the easement if it “attempt[s] to use” the easement “for a purpose not specified [t] herein.” In 2017, the County enacted an ordinance purporting to establish the public’s right to use the dry

- sand area of all beaches for “recreational” purposes

— including , among others , “sunbathing,” “picnicking,” “fishing,” “swimming or surfing off the beach,” and “building sand creations.” Two b eachfront property owners sued the County, alleging that the ordinance triggered the easement’s abandonment clause.

USCA11 Case: 20-12584 Date Filed: 08/05/2021 Page: 2 of 143 The distri ct court granted summary judgment for the County, and the property owners now appeal. We reverse. In particular, we hold (1) that the ordinance triggered the abandonment clause and (2) that no other source of law

— Florida common law, separate provisions in the easement, a Walton C ounty resolution, or a consent judgment

— forestalls or limits the abandonment clause’s operation.
I In the 1990s, the State of Florida initiated eminent domain proceedings against St. Joe Paper Company to take certain properties in Walton County. The suit resulted in a 1996 c onsent j udgment in which the state agr eed to exclude from the taking certain parcels of land in exchange for St. Joe’s acceptance of land

- use and development restrictions. The c onsent j udgment included a specific requirement that the parties record a “permanent public access easement allowing public pedestrian access laterally along the beach” on 75 feet of the beach sand landward of the Gulf of Mexico’s mean high water line. The c onsent j udgment bound not only the parties to the eminent domain case

— the state of Florida and St.
Joe

— but also t heir successors and assigns. In 1997, the County entered into a separate agreement with St. Joe , providing for a 20

- foot easement between a public parking lot and the beach

.

USCA11 Case: 20-12584 Date Filed: 08/05/2021 Page: 3 of 144 In 2000, St. Joe established the WaterColor Community Association, a homeowner’s association. WaterColor’s governing declarations affirmed that the

c onsent j udgment was binding on the a ssociation and all owners. Shortly thereafter, St. Joe recorded the s pecific plat that this appeal concerns and on which the 75

- foot and 20

- foot easement s lie. In 2002, St. Joe recorded the 75

- foot and
20

- foot easement s in a single agreement, which, for simplicity’s sake, we’ll just call “the easement,” except where emphas is is necessary. Th e easement’s stated purpose is to “provid[e] to the County, its citizens, employees, guests, invitees, and licensees, a way of passage, on or by foot only, over and upon the Easement Parcels.” Critically here, the easement also include s an abandonment clause, which provides as follows : Abandonment. These easements shall continue in effect for so long as the County or its successor or assign shall use the easements for their intended purpose as expressed herein . . . . Should the Count y abandon the use of an easement granted herein for a continuous period of two (2) years or if the County should use or attempt to use an easement granted herein for a purpose not specified herein, all rights hereby grated shall cease and terminate and all of the County’s interest in this Easement shall revert to St. Joe. Upon the happening of said abandonment or change in use, St. Joe shall obtain the County’s consent that such abandonment has occurred or St. Joe may pursue appropriate legal action to add ress the abandonment or unauthorized use of the easement and request in such legal action that the easement be terminated. In the event St. Joe successfully proves in such legal action that the County has abandoned the easement for the period of two (2) y ears or used the easement for a purpose not specified herein, St. Joe shall be entitled to terminate the easement. USCA11 Case: 20-12584 Date Filed: 08/05/2021 Page: 4 of 145 The easement further states that it “fully meets the requirements of Resolution 99

- 79,” a Walton County development order that incorporated t he terms of the 1996

c onsent j udgment. In 2017, the County enacted a n ordinance purporting to “recognize[] and protect[]” the “public’s long

- standing customary use of the dry sand areas of all of the beaches in the County for recreational purposes.” The ordinance goes on, more specifically, to “permit[]” members of the public to make the following “uses” of “the dry sand areas that are owned by private entities”: “traversing the beach; sitting on the sand, in a beach chair, or on a beach towel or blanket ; using a beach umbrella that is seven (7) feet or less in diameter; sunbathing; picnicking; fishing; swimming or surfing off the beach; placement of surfing or fishing equipment; and building sand creations.” A Flock of Seagirls LLC and Valentines Heigh ts LLC own separate beachfront lots in the WaterColor community, each of which contains the 75

- foot easement recorded in the 2002 agreement. The following graphic depicts the lots, the beach and shoreline, and the easement:

USCA11 Case: 20-12584 Date Filed: 08/05/2021 Page: 5 of 146 A Flock of Seagirls filed a two

- count complaint against the County in federal court , alleging that the ordinance (1) constituted an unconstitutional taking of their property rights and (2) triggered the easement’s abandonment clause because it “attempt[ed] to use” the encumbered property for purposes other than a “way of passage, on or b y foot only.” Valentines filed a similar lawsuit, and the district court consolidated the two cases. While the consolidated case was Valentines’ Property A Flock of Seagirls’ Property

The 75

- Foot Easement

USCA11 Case: 20-12584 Date Filed: 08/05/2021 Page: 6 of 147 pending, the Florida legislature passed a bill that mooted the constitutional challenge by voiding the existing customary

- use ordinances and imposing a new procedural scheme for passing such ordinances. See Fla. Stat. § 163.035. Because, despite the statute, by enacting the ordinances the County had arguably “attempt[ed] to use” the easement “for a purpose not specified [t ]herein,” litigation over the abandonment count continued. The plaintiffs and the County both moved for summary judgment on the abandonment count. The district court granted summary judgment for the County. The court acknowledged that by enacting the o rdinance , the County had attempted to use the easement for an “expanded purpose.” It emphasized, though, that Florida law required that Flock of Seagirls and Valentines show evidence of an intent to abandon, and reasoned that uses that expand on, or are more comprehensive than, but are consistent with, the purpose of an easement, do not evince such an intent. Because , the district court reasoned, the ordinance contemplated uses that were co nsistent with (even if broader than) the easement’s purpose, the plaintiffs hadn’t shown an intent to abandon and thus hadn’t demonstrated that the County had abandoned the easement. In support of its holding, the district court also looked to other sourc es referenced in the easement, including the r esolution and its incorporated c onsent j udgment, which the court

USCA11 Case: 20-12584 Date Filed: 08/05/2021 Page: 7 of 148 said narrowed the scope of, and to a degree even invalidated, the abandonment clause. A Flock of Seagirls and Valentines now appeal. 1
II To de termine whether the County has abandoned the easement, we must consider two separate questions. First, we must determine whether the ordinance triggered the terms of the easement’s abandonment clause. Second, we must look to sources outside the abandonme nt clause

— to Florida common law, other provisions of the easement, the r esolution, and the c onsent j udgment

— to determine whether any of them forestalls or limits the abandonment clause’s operation.
A First, did the enactment of the ordinance trigger the terms of the abandonment clause ? In interpreting easements, we apply ordinary contract

construction principles. Am. Quick Sign, Inc. v. Reinhardt , 899 So. 2d 461, 465 (Fla. 5th D CA 2005). Accordingly, we give easement terms their “ common and ordinary” meaning to “arrive at a reasonable interpretation of the text of the entire [easement] to accomplish its stated meaning and purpose.” Murley v. Wiedamann , 25 So. 3d 27, 29 (Fla. 2d DCA 2009) (quotation omitted)

.

1 We review the district court’s order granting summary judgment de novo, applying the same standards as the district court. Chapman v. AI Transp ., 229 F.3d 1012, 1023 (11th Cir. 2000).

USCA11 Case: 20-12584 Date Filed: 08/05/2021 Page: 8 of 149 Here, the easement ’s plain language provides that the County will be deemed to have abandoned the easement if it “should use or attempt to use an easement granted herein for a purpose not specified [t] herein.” The County’s customary

- use ordinance undoubtedly covers land that inclu des the easement . The ordinance also sets forth the ways that the public may use that land. Accordingly,

w e have no trouble concluding that the County’s enactment of the ordinance constituted an “ attempt to use” the easement

— whether or not the County eve r actually used the easement

. The real question , therefore, is whether the County’s attempted use was “for a purpose not specified” in the easement. Webster’s Third defines “specify” to

mean “ to mention or name in a[n]. . . explicit manner.” Specify , Webster’s Third International Dictionary at 2187 (1961) . The easement here names its purpose explicitly

— to “provid[e] to the County, its citizens, employees, guests, invitees, and licensees, a wa y of passage, on or by foot only, over and upon the Easement Parcels.” Certain uses contemplated by the ordinance

— sunbathing, picnicking, fishing, swimming and surfing off the beach, placing surfing or fishing equipment, and building sandcastles

— plainly e ntail purposes other than “a way of passage.” And to the extent that there is any doubt about that, o ther language in the ordinance removes it . The ordinance purports to safeguard “[t]he public’s long

- standing customary use of the dry sand areas of all o f the beaches in the County for

USCA11 Case: 20-12584 Date Filed: 08/05/2021 Page: 9 of 1410 recreational purposes .” “[A] way of passage” refers to a locomotive purpose, not a “recreational” purpose. We conclude, therefore, that t he ordinance constitutes an “attempt to use” the easement for “a purpose not specifie d [t]her e in.” We recognize, of course, that under Florida law “an easement carries with it by implication the right to do what is reasonably necessary for the full enjoyment of the easement.” 20 Fla. Jur. 2d Easements § 41 ( 2021 ); see also Fla. Power Corp. v. Silver Lake Homeowners Ass’n , 727 So. 2d 1149, 1150 (Fla. 5th DCA 1999). As a practical matter, pedestrian use of the County’s easement for the purpose of “passage” may well entail incidental stopping. Some of the uses set forth in the ord inance

— “sitting on the sand,” for instance

— may fall into this category. But others

— e.g. , sunbathing, picnicking, fishing, swimming and surfing off the beach, and building sandcastles

— go so far beyond incidental stopping that they can’t fairly be deemed “r easonably necessary for the full enjoyment of the easement itself.” Accordingly, we hold that the customary

- use ordinance triggered the terms of the easement’s abandonment clause. 2

2 The County argues for the first time on appeal that the abandonment clause applies only to the 20

- foot easement, not the 75

- foot easement. Because the County didn’t fairly present that issue in the district court, we needn’t consider it, see Access Now, Inc. v. Sw. Airlines Co ., 385 F.3d 1324, 1331 (11th Cir. 2004), but we find it meritless, in any event. The agreement defines the 75

- foot and 20

- foot easements separately , but the abandonment clause speaks of the “ easements ” generally, not specifically: “These easements shall c ontinue in effect for so long as the County or its successor or assign shall use the easements for their intended purpose as expressed herein.” The abandonment clause further makes clear that “should the County abandon the use of an

USCA11 Case: 20-12584 Date Filed: 08/05/2021 Page: 10 of 1411 B The County identifies three separate sources of law that it says limits the easement’s abandonment clause: (1) Florida common law, (2) separate provisions in the easement, and (3) the r esolution and the c onsent j udgment. We disagree as to all three.
1 The County argues that Florida common law enshrines the public’s right to use the dry

- sand areas of beaches for recreational purposes

— whether or not the dry

- sand area lies on an easement. In particular, it relies on the following passage of the Florida Su preme Court’s opinion in City of Daytona Beach v. Tona

– Rama,
Inc .: The beaches of Florida are of such a character as to use and potential development as to require separate consideration from other lands with respect to the elements and consequences of ti tle. The sandy portion of the beaches .

. . has served as a thoroughfare and haven for fishermen and bathers, as well as a place of recreation for the public. The interest and rights of the public to the full use of the beaches should be protected.
29 4 So.2d 73 , 77 (Fla. 1974)

.

easement granted herei n... or if the County should use or attempt to use an easement granted herein for a purpose not specified herein, all rights hereby granted shall cease and terminate....” Nothing in the agreement’s language suggests that the abandonment clause pertains only t o the 20

- foot easement.

USCA11 Case: 20-12584 Date Filed: 08/05/2021 Page: 11 of 1412 The public’s right to “full use of the beaches,” however, is not absolute or boundless, as Tona

- Rama itself recognized and later decisions have reiterated

. See, e.g ., id

. at 78 (holding that the right of customary use applies “ [ i ] f the recreational use of the sandy area . . . has been ancient, reasonable, without interruption and free from dispute” and, in any event, “is subject to appropriate governmental regulation and may be abandoned by the public”); Trepanier v. C n ty. of Volusia , 965 So. 2d 276, 290 (Fla. 5th D CA 2007) (“[S]ome or all of the customary uses by the public may be shown to have been abandoned.”). If Florida ’s customary

- use doctrine ensured the public’s unlimited right to use the dry

- sand beach area at issue h ere, neither the easement nor the ordinance

— both of which aim (even if inconsistently) to confer usage rights on members of the public

— would serve any meaningful purpose. We decline to adopt so unnatural a reading of Florida common law.
2 The County separ ately relies on two provisions in the easement that refer to it as “perpetual.” Paragraph 2 refers to the County’s “perpetual easements and rights

- of

- way,” and P aragraph 3(c) to the “perpetual rights herein granted to the County.” But a “perpetual” easem ent is merely one that doesn’t expire of its own force

— not one that can’t be abandoned. Black’s Law Dictionary defines “perpetual easement” and “permanent easement” in the same manner:

USCA11 Case: 20-12584 Date Filed: 08/05/2021 Page: 12 of 1413 An easement of potentially unlimited duration. A permanent easement is often named using the form permanent x easement, where x is a descriptor that identifies the easement’s purpose[.] A document creating an easement described as ‘permanent’ might, in fact, specify a condition under which the easement will end, such as n onuse for a specified period. Perpetual Easement , Black’s Law Dictionary (11th ed. 2019). Accordingly, an easement may be “perpetual” or set forth “perpetual rights” and yet also specify “a condition under which the easement will end.” The easement at issue here contains just such a condition

— as relevant here, an “attempt to use” the easement for a purpose not “specified.” The County ’s reliance on Paragraphs 2 and 3(c) to undermine the abandonment clause’s operation is therefore misplaced

. 3 Finally, the County relies on the r esolution and the c onsent j udgment, which, respectively, employ the phrases “permanent public pedestrian access” and “permanent public access

. ” The County asserts that we should consider the

r esolution and the c onsent j u dgment both (1) as parol evidence to interpret the easement’s terms, which it says are “incomplete or facially ambiguous,” RX Sols., Inc. v. Express Pharmacy Servs ., Inc ., 746 So. 2d 475, 476 (Fla. 2d DCA 1999), and (2) because, it says, the easement incor porates those separate documents in the following provision: The County, by acceptance of this Easement, hereby agrees that this Easement fully meets the requirements of Resolution 99

- 79, issued by the Walton County Board of Commissioners on December 14, 1999, USCA11 Case: 20-12584 Date Filed: 08/05/2021 Page: 13 of 1414 regarding the 75 foot

. . . beach access easement[.] Th e County, in cooperation with St. Joe, shall fully comply with all existing or future governmental orders or authorizations related to the Easement Parcels[.] Even if the easement incorporated the r esolution and the c onsent j udgment or an ambiguity in the easement permitted their use as parol evidence, neither the

r esolution nor the c onsent j udgment forestalls or limits the abandonment clause’s operation. The passing references to “permanent . . . access” in the r esolution and the c onsent j udgment carry the same meaning as “permanent easement.” A nd a s already explained, in the context of eas ements, “perpetual” and “permanent” specify easements of only potentially unlimited duration; they often contain “a condition under which the easement will end.” See Permanent Easement , Black’s , supra . Again, t he abandonment clause sets forth such a cond ition in this easement. Therefore, even if we consider the r esolution and the c onsent j udgment, neither

narrow s the abandonment clause ’s scope

. III In summary, we hold (1) that the County’s ordinance triggered the terms of the easement’s abandonment cl ause and (2) that neither Florida common law, separate provisions in the easement itself, nor the r esolution or c onsent j udgment forestall s or limit s the abandonment clause ’s operation

. REVERSED AND REMANDED

. USCA11 Case: 20-12584 Date Filed: 08/05/2021 Page: 14 of 14