dissenting:
Respectfully, I dissent. The majority totally ignores the district court’s factual findings, which are amply supported by the record. Purporting to make its own findings, which are not supported by the record, the majority reaches the erroneous conclusion that Denson, who totally and completely failed to prove his case at trial, should prevail in this action.
Under the contract, Stack was obligated to remove a “defect” in his title only if that “defect” rendered the title “unmarketable.”1 Thus, the issue for the district court was whether the alleged “defect,” that is, the State of Florida’s failure to admit that it had no interest in Devil’s Hammock, rendered Stack’s title “unmarketable.” The State’s purported claim2 to Devil’s Hammock was based upon its ownership of all lands beneath waters navigable in 1845. Thus, to determine whether this purported claim was of sufficient substance to render Stack’s title unmarketable, the district court had to decide whether the Waccasassa River as it traverses Devil’s Hammock was navigable in 1845. After hearing all of the evidence presented at trial, the district court found:
[Stack] had uncontradicted testimony or opinion of a recognized expert that the Waccasassa River, as it traversed the subject property, had never been navigable; that the nearest point to the subject property where the Waccasassa River was considered navigable in 1845, the year of Florida statehood, was eight to nine miles south of [Stack’s] southern boundary; that none of the original government survey maps showed a meander line where the river crosses property.
Now as opposed to this set of facts, plaintiff never offered any evidence that the river was in fact navigable throughout its course across the subject property or ever claimed that the State in fact owned the riverbed.
The Court finds from the evidence that [Stack’s] property was not encumbered by any claim of sovereignty by the State of Florida.3
The majority does not point to one piece of evidence that even suggests that this factual finding is clearly erroneous. Indeed, the majority appears to totally ignore this factual finding, perhaps because the finding is so overwhelmingly supported by the record.
The Waccasassa River runs roughly from north to south, emptying at its southern end into Waccasassa Bay, a small bay off of the Gulf of Mexico. Two tributaries flow into the Waccasassa approximately five to six miles north of its mouth: Otter Creek enters the Waccasassa from the west about five miles north of the mouth, and the Wekiva River enters the Waccasassa from the east slightly *1364over a mile north of Otter Creek.4 A Survey Report prepared by the U.S. Army Corps of Engineers in 1964 describes the Waccasassa as follows:'
Waccasassa River rises in an area of swamps and ponds at elevations of 80 to 100'feet, mean sea level, with poorly defined connecting channels_ Under normal conditions there is no continuous, defined channel in the Waccasassa River above Blue Springs,- near Bronson_ Except within the tidal area, most reaches of the river and its tributaries have poorly defined channels in the numerous flat areas.... Navigational use is largely limited to small craft for fishing and recreation in the tidal reaches.
Navigational use is now limited to small craft for fishing and recreation in the tidal reaches for 6 or 7 miles from the gulf. Rock ledges and sandbars in parts of these channels limit traffic in these reaches to shallow-draft boats. Extremely shallow water in the gulf immediately outside the river mouth limits access to the estuary from that direction.5
Stack’s property lies inland, far from the “tidal reaches” described in the report quoted above; the southernmost tip of Stack’s property lies at least eight or nine miles north of the point where the Wekiva River flows into the Waccasassa.6 The Waccasassa as it traverses Stack’s property is depicted on the plat map as a series of branching water flows, rather than as a well-defined river bed.7 One of Denson’s witnesses de^ scribed it as follows:
Q: Mr. Cullison, in 1983, when you first had an observation of the property, were you familiar with the location of the river as it bisected the Devil’s Hammock property?
A: I knew that there was a creek there. I knew that there was water on the property, yes.
Q: And what did you know about that particular water on the property?'
A: Well, I knew that they called it the Waccasassa River, but it was just low wetlands. I mean, there wasn’t any place that I saw that for more than a hundred yards you might be able to put a canoe in it or something; but-, to me, it looked like the head water of- a river that — you know, where the river first starts.8
The only surveyor who testified at trial described the waterway as follows:
I would refer to it as a creek rather than a river. It’s a very highly braided river or creek, in that there is no one single main channel through a great portion of it and it’s in several braids and individual channels.9
Another of Denson’s witnesses testified that “between the flows of the river, there is hardwoods of adequate size that you can’t get your hands around them, that are six feet apart.”10 Clearly, the Waccasassa as it traverses Stack’s property is not now navigable; Denson submitted absolutely no evidence to the contrary.
The factual question for the district court, of course, was whether' this waterway was navigable in 1845. The starting point for determining the navigability of a given waterway in the mid-nineteenth century is contemporaneous government surveys. The government surveyors who prepared these official surveys in the early and mid-nineteenth century were instructed to identify all navigable waters by using “meander lines.”11 *1365Accordingly, a meander line on one of these government surveys is evidence that creates a rebuttable presumption that the water body meandered was navigable at the time the survey was prepared.12 Conversely, a water body is deemed non-navigable in the absence of evidence of navigability.13 Thus, a government survey with no meander line for a given water body creates a rebuttable presumption that the water body was not navigable at the time the survey was prepared.14
In this case, the parties stipulated that, “As to Devil’s Hammock, the government surveys of 1826, 1836, 1845, and 1853, reflect that the Waccasassa River was not a meandered watercourse.”15 Thus, the district court began with a rebuttable presumption that the Waccasassa as it traverses Stack’s property was not navigable in 1845. Denson presented absolutely no testimony to rebut this presumption; he did, however, present two documents that have some bearing on the navigability of the Waccasassa in 1845.
The first of these two documents is a work sheet dated November 15, 1989, apparently prepared by a State employee. This work sheet contains the following notation:
Records show that [Waccasassa River and Otter Creek] are non-meandered water-bodies. Waterbodies appear to be navigable streams from Field Notes and Plats; however, records unable to document navigability.16
The second of these two documents is an undated letter to Denson from Tom Gardner, a state employee. The letter reads, in pertinent part:
The records reflect that there was steamboat and other commercial traffic on the Waccasassa River at the time of statehood. Therefore, the Waccasassa River is a navigable state-owned waterbody. The extent of the state’s ownership is to the line of ordinary high water. While the head of navigation is not known, the records support a finding that navigation was possible and did occur on the Waccasassa River for the entire length of Levy County and into Gilchrist County.
A summary of the results of the Division’s research is attached. The source of each document is noted in the event you wish to examine them yourself.
If I or any member of my staff may be of additional assistance, please contact me.17
The attached summary lists 15 historical sources, some of which indicate that there was river traffic on the Waccasassa in the nineteenth century. Stack provided a copy of Gardner’s letter and the attached summary to Dr. Edward Keuchel. Dr. Keuchel is a professor of history at Florida State University who specializes in the history of Florida. He has published articles regarding *1366Florida property issues and has been retained in property litigation to make navigability determinations. Stack had retained Dr. Keuchel to determine whether the Wac-casassa as it traverses Devil’s Hammock was navigable in 1845. Dr. Keuchel conducted his own independent research, reviewed each of the sources in the State’s summary, and conversed with the Joe Knetsch, the State’s historian, whom Dr. Keuchel knew well.18 After completing his research, Dr. Keuchel concluded:
I can find no historical evidence that the Waccassassa [sic] River, as of 1845, was navigable upstream of the general area where the Wekiva River enters it. It seems to me that the best course to follow is to accept what the people of the mid 19th century stated — that the Waccasassa is navigable up to Otter Creek.19
In support of this conclusion, Dr. Keuchel prepared an analysis in which he discussed each of the 15 sources listed in the State’s summary and explained why these sources indicate only that the Waccasassa was navigable up to the point where the Wekiva enters it; not one of the sources indicates navigability north of the Wekiva.20 At trial, Dr. Keuchel explained why the absence of any mention of the navigability in these historical sources indicates that the river was not in fact navigable:
Joe [Knetsch] and I had just talked about that several times and essentially the question is that we both agree that the lower regions of the Waccasassa River is a navigable river. In addition, when you start moving upstream, at what point the [Department of Natural Resources] seems inclined to accept that wherever there’s water, that the river is navigable. I don’t hold to that.
1845, the year in question, was a period in American history when river transportation was right at its height. So the people back in the middle of the 19th Century were very much interested in the question of whether rivers could be navigated or not. Simply put, in terms of hauling goods, if it has to go over land, it cost 20 times as much as if it could go by water. So this is something that is very real. Florida didn’t have much in the way of railroads in 1845. It was one little mule run there that ran from Tallahassee down to St. Marks. Prior to the building of railroads, it really didn’t come on the scene until the mid-1850s. So that Florida was very much dependent on water transportation when you could do it. So that there was a great desire to transport by water. The early description of the land that the [Department of Natural Resources] has that I looked initially at, this was a real question for the people to look at at that time. When they were describing river, were those rivers navigable? There certainly was no indication that the Waccasas-sa River was.21
In his trial testimony, Dr. Keuchel stated his conclusion as follows:
[I]t was my conclusion that the Waccasas-sa River is indeed a navigable river in its lower section.
The people that wrote about it and described it in the period right before the kind of statehood, and for some years thereafter, do indeed talk about the Wac-casassa River being navigable. The area called Otter Creek where the Wekiva comes into the Waccasassa, these were the areas that were specifically mentioned that were navigable. I was unable to find any evidence that the Waccasassa was navigable, navigated, or susceptible of navigation in the Devil’s Hammock area as of the 1840s. It looks, from my perspective, that the people in the 1840s talked in terms that where the Wekiva enters the Wacca-sassa, perhaps a half mile north of that would be regarded as the head of navigation in the Waccasassa. That’s clearly south of the region that’s identified as the Devil’s Hammock.22
*1367Dr. Keuchel concluded that the Waccasassa was navigable, at most, only to a point a half of a mile north of the Wekiva. This point is eight or nine miles south of the southernmost tip of Stack’s property.23
There is no evidence that the State ever had any information that would undermine Dr. Keuchel’s conclusion. At trial, Stack’s attorney, who was called as a witness by Denson, testified as to his conversations with Tom Gardner regarding the navigability of the Waccasassa across Stack’s property:
Q: Now in your examination by counsel when he asked you about [Gardner’s letter], you said that you had subsequent discussions with Gardner with the State about the information that he sent you [in the letter].
A: Yes, sir.
Q: What were those discussions and when did they take place?
A: The discussions dealt with the historical background for the inclusion in his letter of the language that [counsel] read to you. And we delineated, you know, that these items specifically related to the lower portion of the river, only.
Q: Did Mr. Gardner concede that?
A: Well, Mr. Gardner was in the position that he said, you know, he preferred me to discuss that matter with the State historian, hired by the Department of Natural Resources, but he said that his conclusion was based on the backup material contained in here, only.
A: Did he provide you with any additional information related to the area between the eight and a half or nine mile stretch to get to Mr. Stack’s property?
A: No. They did not have any. We inquired and asked and it wasn’t available.
Q: ... you had a meeting with Mr. Gardner?
A: Yes.
Q: Was he able to pinpoint a single fact that the State had to establish navigability on the Stack property?
A: His historian was present, our historian was present, and we asked the historian, it was a State historian, if he had any additional facts.
And the historian indicated that he did not, and that the only thing he could say, Mr. Gardner, was that, well, it might have been possible that it wasn’t navigable on the Stack property in 18^5.
Q: That’s as strong or as weak as they got, that it might have been possible?
A: Yes, sir.24
Although Denson included Gardner in his witness list in the pretrial stipulation,25 he did not call Gardner as a witness at trial. Denson did not call the State historian to testify on his behalf, nor did he have his own historical expert. In his letter, Gardner specifically offered his assistance and that of any member of his staff.26 Most assuredly, Den-son could have offered evidence as to the navigability of the Waccasassa in 1845 (or at any other time) if such evidence'was in the possession of Gardner or any of his staff. There is absolutely nothing in the record before us to undermine Dr. Keuchel’s conclusion that the Waccasassa in 1845 was navigable only as far north as the Wekiva. On this record, I fail to see how the majority can possibly conclude that the district court’s factual finding as to navigability is clearly erroneous. I would uphold the district court’s conclusion that the Waccasassa River as it traverses Stack’s property was not navigable in 1845.
This does not end the inquiry. I can conceive of a situation in which the State’s insistence on pursuing an untenable claim to a piece of property may create such a real hazard of protracted and expensive litigation as to render the property unmarketable. This, however, is not such a situation. While the State’s posturing during the events leading up to this lawsuit may indicate some abuse of state power, I see no evidence in the *1368record that the State has, and nothing in the record to indicate that the State ever will, actually make a “claim” to Devil’s Hammock.
Stack’s attorney first contacted the State regarding the Waccasassa in an effort to satisfy Denson’s concern over the wetlands exception in the title commitment. The State at first refused to take any position whatsoever as to its rights to Devil’s Hammock. In a letter dated September 27, 1989, the State conceded that, because the Wacca-sassa was not a meandered water body, there was no presumption of navigability; the State went on to say: “At the present time, the Division of State Lands has not undertaken a review of the historical records to determine whether evidence of navigability does in fact exist. Therefore, no disclaimer of State ownership is warranted or authorized.” 27
The State eventually, had one of its historians look into the question of the navigability of the Waccasassa in 1845. Thereafter, Gardner wrote his undated letter, quoted above.28 This carefully worded letter is not a “claim” to any specific portion of Stack’s property, as the majority asserts. Rather, it was further posturing by the State in an apparent attempt to avoid admitting that there was no evidence that the Waccasassa as it traverses Stack’s property was ever navigable. As is discussed above, the historical sources to which Gardner’s letter refers indicate only that the Waccasassa was navigable in its lower sections, fair south of Stack’s property. Only one- statement in Gardner’s letter can be construed as referring to the Waccasassa as it traverses Stack’s property: “While the head of navigation is not known, the records support a finding that navigation was possible and did occur on the Waccasassa River for the entire length of Levy County and into Gilchrist County.” According to uncontroverted testimony at trial, this statement is erroneous not only because the records do not support a finding of navigation above the lower sections of the river, but also because, according to the State’s own information, the Waccasassa does not even extend into Gilchrist County.29 Moreover, as is discussed above, State officials conceded in a meeting with Stack’s attorney that the Waccasassa as it traverses Stack’s property may not have been navigable in 1845. Although the State apparently declined to put this concession in writing, I fail to see how the single ambiguous and erroneous statement in Gardner’s letter can be construed as a “claim” by the State to a portion of Stack’s property.30
There is evidence in the record that sheds some light on the State’s unreasonable conduct in this matter. In testifying regarding his efforts to resolve the navigability issue with the State, Stack’s attorney said:
A: Well, quite frankly, the reason that some of the — you see, the State had acquired substantial portions of the lower part.of the Waccasassa River, and in that acquisition, some of the officials in the [Department of Natural Resources] did some improper acts and the Director went to jail for it. So—
Q: This was before your meeting on December 15th [1989]?
A: Oh, yes, sir, several years earlier. They were very careful about their approach to the Waccasassa River.31
The State declined to do what it should have done in the absence of any evidence of navigability of the relevant portion of the Wacca-sassa; it refused to admit that it had no interest in Stack’s property. Although wrongful, I fail to see how the State’s conduct, in the absence of any evidence either to support a purported claim or to indicate that the State would ever actually make a claim, could possibly render Stack’s property unmarketable. The majority has not pointed to, and I have not found, any evidence in the record to justify overturning the district *1369court’s determination that the property was marketable.
The record simply does not support a reversal of the district court’s determination in this case. While the State’s posturing in this matter was unfortunate, it did not render Stack’s title unmarketable. There is no evidence that the State has or ever had any intention of affirmatively asserting the untenable position that it has an interest in Stack’s property. Nevertheless, the majority concludes that the State’s posturing was sufficient to render Stack’s property unmarketable. The majority’s opinion sets a dangerous precedent: it holds that any veiled threat to make a claim, no matter how preposterous, to a piece of property will be sufficient to render the property unmarketable. This is not, and should not be, the law. Accordingly, I dissent.
.Contract for Sale at ÍA, Joint Exh. 1. In the Matter of Garfinkle., 672 F.2d 1340, 1345 (11th Cir.1983), we held in reliance on Florida cases: "Marketable title is- unencumbered title, free from reasonable doubt as to any question of law or fact necessary to sustain its validity.” An issue is free from reasonable doubt when a litigant cannot point to a fact in the record which would cause a reasonable person to have a doubt.
. For ease of reference, I refer to the alleged "defect” as “the State's purported claim.” I use the phrase “purported claim” because, as is discussed later in this dissent, the State has never made a "claim” to ownership of any portion of Devil's Hammock.
. R8-11-12.
. Joint Exh. 132.
. Joint Exh. 84 at 3 and 7.
. See text accompanying notes 22 and 23.
. Plaintiff's Exh. 9, Exh. B.
. R4-38-39.
. R6-32.
. R5-165.
.See State of Florida, Department of Natural Resources v. Bronsons, Inc., 469 So.2d 214, 215 (Fla.App. 5 Dist.1985) (“The government survey- or was under a duty to ascertain all permanent natural navigable waters constituting sovereignty lands and to meander them so as to identify them and distinguish them for all time from lands of other character.”); see also Goodman v. City of Crystal River, 669 F.Supp. 394, 398 (M.D.Fla.1987) ("The surveyors [who prepared an 1846 survey by the General Land Office] were instructed to meander all navigable water bodies.”). A *1365meander line "is a series of continuous straight line segments drawn to depict the sinuosities of the shorelines of navigable water bodies.” Board of Trustees of the Internal Improvement Trust Fund v. Florida Public Utilities Co., 599 So.2d 1356, 1357 n. 2 (Fla.App. 1 Dist.), review denied, 613 So.2d 4 (Fla.1992).
. Odom v. Deltona Corp., 341 So.2d 977, 988-89 (Fla.1976).
. Id. at 989.
. See Florida Public Utilities Co., 599 So.2d at 1357. But see Bronsons, in which the Florida Fifth District Court of Appeals held that a contemporaneous government survey showing that the water body in question was not meandered was conclusive as to the question of navigability. 469 So.2d at 215. Bronsons is inconsistent with the Florida Supreme Court's decision in Odom and with the First District Court of Appeal’s decision in Florida Public Utilities; both of these decisions indicate that a contemporaneous government survey showing that a water body is not meandered creates a rebuttable presumption of non-navigability. Odom, 341 So.2d at 989; Florida Public Utilities, 599 So.2d at 1357.
. R2-49-28, ¶ 96; see also Joint Exh. 60, which indicates that these four surveys were prepared by the federal General Land Office.
. Joint Exh. 66 (emphasis added).
. Joint Exh. 132. This letter is the only basis of the majority’s assertion that title to the property is unmarketable. See Majority Op. at 8. The trial of the case was devoted to a factual inquiry as to whether the Waccasassa was navigable in 1845 or at any time through the land subject to the litigation. Notwithstanding the undisputed proof that the river was not navigable as asserted by this letter, the majority insists that the State has a claim to Stack’s property.
. R6-72-78.
. Joint Exh. 122.
. Id.., Attach.
. R6-82-83.
. R6-76-77.
. R5-98-100.
. R5-100-101; R5-166 (emphasis added).
. R2-49.
. See text accompanying note 17.
. Joint Exh. 47.
. See text accompanying note 17.
. R5-101-102.
. Indeed, the majority even refers to "the State of Florida’s possible claim” and "the threatened claim by the State of Florida,” thereby implicitly recognizing that the State never affirmatively asserted any claim to Stack’s property.
.R5-125.