Downing v. Bird

• Decision Date: 31 January 1958
• Parties: Lottie Sykes DOWNING, Appellant, v. Preston BIRD and City of Homestead, Appellees.
• Court: Florida Supreme Court

Page 57

100 So.2d 57

Lottie Sykes DOWNING, Appellant, v. Preston BIRD and City of Homestead, Appellees.

Supreme Court of Florida.

Jan. 31, 1958.

Rutherford & Housen, Miami, for appellant.

Hudson, McNutt, Campbell, Isom & Rearick, Miami, for Preston Bird, and Thomas S. Hodson of Turner & Hodson, Homestead, for City of Homestead, appellees.

O'CONNELL, Justice.

The appellant, Lottie Sykes Downing, as plaintiff, on March 18, 1954 filed a bill of complaint against the defendant-appellees, Preston Bird and the City of Homestead. She sought a mandatory injunction to require the parties to remove a street surface, i.e. paving, from a parcel of land, approximately fifty feet in width, alleged to be owned by her, and to require the removal of a fence and building, alleged to have been constructed by the defendant Bird so as to encroach on her said parcel of land.

In her amended complaint, plaintiff alleged that she was the owner of a tract of land having a width of fifty feet (50 ); that there had been created on this tract of land and for the use of plaintiff a roadway approximately ten feet (10 ) in width which road led to a dwelling house on another tract of land, formerly but no longer owned by plaintiff, and that the present owner of the dwelling house and other tract of land has other means of access to said dwelling and does not claim any right of easement on plaintiff's property; that defendant Bird had constructed a fence and building which encroached on her property; that between November 1951 and August 1952 defendant Bird or the defendant City without plaintiff's permission had constructed on her tract of land a 'permanent type asphalt road' which she alleged to be a continuing and permanent trespass and in derogation of her title; and that plaintiff's husband in February 1952 had constructed a barrier across said road and had been arrested therefor by one of the policemen of the defendant City. She asked that the defendants be required to remove said encroachments and street and that she be awarded damages and such other relief as may be equitable.

In the answers of the defendants it is admitted that the City constructed the permanent type asphalt road, and that the plaintiff's husband was arrested for erecting the barrier. For affirmative defenses it is alleged that the land of the plaintiff was one of the main thoroughfares of the City and that the public had used it continuously and uninterruptedly for a period of more than twenty years prior to the institution of the suit, and that the street in question had been constructed by it more than four years prior to the institution of the suit and had been maintained, kept in repair and worked continuously and uninterruptedly by the City since its construction, to a width of approximately fifty feet (50 ) and therefore under F.S. § 341.66, F.S.A. the said lands were deemed dedicated to the public for the entire width to which it had been maintained and that title to said lands was vested in the City. It is not contended that the road is a way of necessity.

To the answer of the City, the plaintiff filed a reply alleging that the City was estopped to claim the tract of land for the public because the City had continuously assessed and collected taxes on said lands for many years prior to the institution of this suit.

After final hearing in the cause the chancellor entered a final decree in which he stated simply that he found 'that the equities of this cause are with the Defendants' and dismissed the plaintiff's bill of complaint with prejudice.

On appeal it is apparent that the plaintiff would be content for the City to take her lands, as it has taken a portion thereof, but contends that the City should be required to pay her therefor. There no longer appears to be any contention by plaintiff that the defendant Bird's fence or building encroaches on her lands and no further mention will be made thereof.

We have previously held that a property owner whose land has been appropriated, without his consent, by a governmental or private body vested with the power of eminent domain, may waive the tortious taking and resort to equity in the first instance to establish the amount of and to require payment of compensation for his lands. Florida Southern R. Co. v. Hill, 1898, 40 Fla. 1, 23 So. 566; Rosenbaum v. State Road Dept. of Florida, 1937, 129 Fla. 723, 177 So. 220, and like cases. However, in the case now before us, the plaintiff, in her pleadings, did not pray for relief in the alternative, i.e. either for a mandatory injunction requiring removel of the road or compensation for the taking, nor did she in any way indicate her desire to waive the alleged tortious taking by the City and accept compensation for her land, although she now is apparently willing to do so. In her pleadings she sought only the removal of the road and encroachments, and damage done her land by the placing thereon and removal therefrom. Therefore on this appeal we cannot say that it was error on the part of the chancellor not to award compensation to plaintiff for the appropriation of her land by the City.

However, inasmuch as our decision in this case results in the cause being remanded for further proceedings, the plaintiff should, if she desires, be given the right to amend her complaint so as to pray, either in the alternative or solely, for compensation for any taking by the City.

We will next consider the plaintiff's argument that the City is estopped to claim the plaintiff's lands because it assessed and collected taxes thereon. Plaintiff has cited no law in support of this contention. Defendant Bird cites only the case of Campau v. City of Detroit, 1895, 104 Mich. 560, 62 N.W. 718. However, we think cases decided by this Court sufficiently answer the contention.

It is clear from our decisions in the cases of Levering v. City of Tarpon Springs, Fla.1957, 92 So.2d 638, and Trustees of Internal Improvement Fund v. Claughton, Fla.1956, 86 So.2d 775, in both of which the assessment and collection of taxes were urged as constituting an estoppel of the public bodies involved, that the assessment and collection of taxes is not alone conclusive in forming the basis for estoppel but rather is one item to be considered with other evidence of estoppel.

Too, it must be remembered that the City here is acting and may act for the public and as pointed out in the Campau case, supra, the public may acquire an easement in land separate and apart from the rights of a City, and in spite of actions of a City.

We, therefore, hold that while the assessment and collection of taxes is a fact to be considered, it does not operate here to estop the City from claiming either an easement in or ownership of the subject lands.

The chancellor did not give his reasons for dismissing the plaintiff's complaint, but since it was proved that the plaintiff was the record owner of the lands in question, it is clear that he must have determined either

(1) that the defendant City had acquired title to plaintiff's lands by operation of law under F.S. § 341.66, F.S.A., or

(2) that the public had acquired, by adverse user, an easement for roadway purposes on said lands.

Both of these questions arise out of affirmative defenses asserted by the defendants. The defendants had the burden of proving them.

F.S. § 341.66, F.S.A., as it was in effect during the time involved in this suit, in part provided that any road, street or portion thereof which had been constructed by a municipality and maintained, kept in repair or worked continuously and uninterruptedly for a period of four years, by either or both a county, municipality or the State Road Dept., would be deemed dedicated to the public to the extent in width that it had been actually so maintained, kept in repair and worked, and that such dedication '* * * shall be conclusively presumed to vest in the * * * particular municipality * * * all right, title, easements and appurtenances * * * being the fee simple title * * *.' It further provided that the filing of a map showing the lands and reciting that they have vested in the municipality, duly certified to by the Mayor and Clerk, '* * * shall be taken as prima facie evidence of the ownership of such lands * * * by the * * * municipality.' Laws 1951, c. 26547.

We have carefully read the record in this cause and studied a map of the City of Homestead put in evidence by the defendants.

The map has thereon wording reading: 'approved by City Ordinance No. 281, Dated May 7th, 1945' and bears signatures which purport to be that of the Mayor and City Clerk. There is also wording reading: 'Revised May 1954 G. A. Cranshaw & Associates.' Assuming that the signature of the Mayor and Clerk as set forth on the map is sufficient certification to satisfy the statute, there is nothing whatsoever set forth on the map reciting that the portion of the street which we are now concerned with, or any other street, has or is claimed by the City to have vested in the City of Homestead. Under the subject statute the filing of a map with such statement is prima facie evidence of the City's title.

For the reasons above stated the map does not establish prima facie evidence of title in the City. While the map has been helpful in understanding the case, it has no probative value on the issues in this case.

The defendant City argues that the filing of a map as provided in said statute is not the only way in which it can prove its acquisition of title thereunder and we agree. The City could, without the filing of such a map, prove its construction and maintenance of the road, continuously and uninterruptedly, for the prescribed period.

As to proof of the construction and maintenance of the street in question we find no positive proof that the City had constructed and maintained the road in question, or any part thereof, more than four years prior to the institution of this suit by the plaintiff, which act by the plaintiff...