[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

 Plaintiff - Appellant,

 versus

WALTON COUNTY FLORIDA, 

 Defendant - Appellee.

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________________________

Appeal from the United States District Court

for the Northern District of Florida

________________________

(August 5, 2021)

Before NEWSOM, BRANCH, and LAGOA, Circuit Judges.

NEWSOM, Circuit Judge: 

This case requires us to interpret the terms of a recorded easement that runs 

with two beachfront lots in Walton County, Florida. For nearly two decades, 

Walton County has held an easement across a 75-foot 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, the easement also contains an abandonment clause, which provides 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 beachfront property owners sued the 

County, alleging that the ordinance triggered the easement’s abandonment clause. 

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The district 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 County 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 consent judgment in which the state agreed to exclude from 

the taking certain parcels of land in exchange for St. Joe’s acceptance of land-use 

and development restrictions. The consent judgment 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 consent judgment 

bound not only the parties to the eminent domain case—the state of Florida and St. 

Joe—but also their 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. 

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In 2000, St. Joe established the WaterColor Community Association, a 

homeowner’s association. WaterColor’s governing declarations affirmed that the 

consent judgment was binding on the association and all owners. Shortly 

thereafter, St. Joe recorded the specific plat that this appeal concerns and on which 

the 75-foot and 20-foot easements lie. In 2002, St. Joe recorded the 75-foot and 

20-foot easements in a single agreement, which, for simplicity’s sake, we’ll just 

call “the easement,” except where emphasis is necessary. The 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 includes 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 County 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 address 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) years or used the easement for a purpose not specified herein, 

St. Joe shall be entitled to terminate the easement.

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The easement further states that it “fully meets the requirements of Resolution 99-

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

consent judgment. 

In 2017, the County enacted an 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 Heights 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:

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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 by 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

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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 ordinance, 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 consistent 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 sources referenced in the easement, 

including the resolution and its incorporated consent judgment, which the court 

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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 determine 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 abandonment clause—to Florida common law, other 

provisions of the easement, the resolution, and the consent judgment—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 contractconstruction principles. Am. Quick Sign, Inc. v. Reinhardt, 899 So. 2d 461, 465 

(Fla. 5th DCA 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).

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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 includes the easement. The 

ordinance also sets forth the ways that the public may use that land. Accordingly, 

we have no trouble concluding that the County’s enactment of the ordinance

constituted an “attempt to use” the easement—whether or not the County ever 

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 way 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 entail purposes other than “a way of passage.” 

And to the extent that there is any doubt about that, other 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 of the beaches in the County for 

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recreational purposes.” “[A] way of passage” refers to a locomotive purpose, not 

a “recreational” purpose. We conclude, therefore, that the ordinance constitutes an 

“attempt to use” the easement for “a purpose not specified [t]herein.” 

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 ordinance—“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 “reasonably 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 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.” 

The abandonment clause further makes clear that “should the County abandon the use of an 

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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 resolution and the consent judgment. 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 Supreme 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 title. 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. 

294 So.2d 73, 77 (Fla. 1974). 

easement granted herein... 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 to the 

20-foot easement.

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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. Cnty. 

of Volusia, 965 So. 2d 276, 290 (Fla. 5th DCA 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 here, 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 separately 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 Paragraph 3(c) to the “perpetual rights herein granted to the 

County.” But a “perpetual” easement 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: 

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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 nonuse 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 resolution and the consent judgment, which, 

respectively, employ the phrases “permanent public pedestrian access” and 

“permanent public access.” The County asserts that we should consider the 

resolution and the consent judgment 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 incorporates 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, 

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regarding the 75 foot . . . beach access easement[.] The 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 resolution and the consent judgment 

or an ambiguity in the easement permitted their use as parol evidence, neither the 

resolution nor the consent judgment forestalls or limits the abandonment clause’s 

operation. The passing references to “permanent . . . access” in the resolution and 

the consent judgment carry the same meaning as “permanent easement.” And as 

already explained, in the context of easements, “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, the abandonment clause sets forth such a condition in this easement. 

Therefore, even if we consider the resolution and the consent judgment, neither 

narrows the abandonment clause’s scope. 

III

In summary, we hold (1) that the County’s ordinance triggered the terms of 

the easement’s abandonment clause and (2) that neither Florida common law, 

separate provisions in the easement itself, nor the resolution or consent judgment 

forestalls or limits the abandonment clause’s operation. 

REVERSED AND REMANDED.

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