Barton v. Moline Properties, Inc.

• Decision Date: 06 July 1935
• Citation: 164 So. 551,121 Fla. 683
• Court: Florida Supreme Court
• Parties: BARTON et al. v. MOLINE PROPERTIES, Inc.

164 So. 551

121 Fla. 683

BARTON et al. v. MOLINE PROPERTIES, Inc.

Florida Supreme Court, Division A.

July 6, 1935

On Rehearing December 13, 1935.

Suit by the Moline Properties, Inc., against Carrie Ilko Barton and others. Decree for complainant, and defendants appeal.

Affirmed.

On Rehearing. Appeal from Circuit Court, Dade County; H. F Atkinson, judge.

COUNSEL

S. P Robineau and Garland M. Budd, Jr., both of Miami, for appellants.

Evans Mershon & Sawyer, Robert L. Thompson, and J. M. Flowers, all of Miami, for appellee Moline Properties, Inc.

Loftin, Stokes & Calkins, for appellees J. L. and M. J. Malone, Marmel Holding Co., Collins Avenue & Ocean Inv. Co., and Enolam Co.

OPINION

DAVIS Justice.

This was a bill in equity to remove clouds and quiet title to certain property owned by appellees in Fisher's first subdivision of Alton Beach, a restricted residential tract of land located in the city of Miami Beach, Fla. The appellants, together with numerous others constituting all of the owners of lots in the affected development, were made parties defendant. The decree of the chancellor was rendered on general demurrer to the bill filed under the old practice. The demurrer was overruled and a final decree entered thereon after decree pro confesso. So the questions to be decided are such only as are properly determinable on the face of the bill of complaint upon which the final decree granting the relief prayed was rendered.

Appellants are the owners of certain lots in the above-mentioned subdivision, the deeds to which entitle them to the benefit of certain covenanted restrictions that were imposed upon the use of lots sold in Fisher's first subdivision of Alton Beach by the original owner and developer thereof, as follows: (1) Prohibition against the erection on any lot of a residence building, except at a cost of at least $7,500; (2) requirement that any building erected should be such only as would be in conformity with plans, specifications, and location approved by the original grantor, its successors or assignees; (3) construction of buildings to be limited to a one family dwelling and one private garage; (4) no other kind of dwelling house or business establishment of any kind to be erected or placed on said lots at all with certain exceptions not material to this case; (5) additional incidental restrictions not necessary to enumerate, but designed to make the foregoing restrictions effective.

As a means of enforcing the above-mentioned restrictions, each deed contained the following express condition, the acceptance of which was implied by each grantee and became binding upon him as such, namely:

'Violation in whole or in part of any of the above limitations and restrictions by the grantee, her heirs or assigns, or by the owner or owners of the real estate herein conveyed by virtue of any judicial proceedings, shall cause the said above described and conveyed real estate to immediately revert to the grantor, its successors or assigns, and shall entitle the grantor, its successors or assigns, to immediately enter upon said property without notice, and take possession of the same, with full title in fee simple, together with all improvements thereon.'

The object of appellee's bill was to invoke the aid of the chancery court to have such restrictions, in so far as they applied to complainant's lot involved in this controversy, decreed to have become unenforceable and extinguished, both in equity and at law, and to have the same adjudged as canceled, removed, and forever barred as a cloud upon complainant's title to the land described in the bill and prayed to be freed therefrom. Osius v. Barton, 109 Fla. 556, 147 So. 862.

To the end of the relief prayed, the bill of complaint averred in substance as follows, the allegations being admitted by the demurrer:

That at the time of the original deed from the Alton Beach Realty Company to Marie Vance Bowman (plaintiff's ancestor in title) the locality of plaintiff's land was suitable for private residential purposes, and was so purchased by plaintiff's ancestor in title; that at that time the location of said land was private, quiet, and partook of the general nature and characteristics of the other restricted lots in said subdivision, which were in the immediate vicinity, and were suitable and valuable for residential purposes for the erection of one-family dwellings thereon, and the performance of and compliance with the said restrictions set forth in the bill was possible and practicable, and for the benefit of plaintiff's lots as well as the other lots in the bubdivision.

That at the time of the original conveyance of the subdivider the city of Miami Beach had a population of less than five hundred persons; that since that time swamps and lowlands within the city limits have been filled in, practically all the land within the limits of the city have been platted and subdivided; that at the present time the city of Miami Beach extends from the southern tip of the peninsula north for a distance of several miles; that it now has a permanent population of twelve thousand and an estimated winter population of thirty-five or forty thousand persons; that Collins avenue (running north and south paralleling the western boundary of plaintiff's lots) is one of the main arteries of traffic in the city of Miami Beach, extending from the southern boundary to the northern boundary of the city; that both sides of Collins avenue have been and are given over to commercial and business purposes south of Tenth street, and the east side of Collins avenue has been given over to commercial and business purposes from the south end thereof up to and adjoining the southern boundary of the plaintiff's lots; that is to say, those lots which are not vacant and unoccupied are used indiscriminately for residence, apartment house, hotel, store, marketing, amusement, and other commercial purposes; that the land adjoining the plaintiff's lots 1, 2, 3, and 4, block 77, on the south thereof (not part of Fisher's first subdivision of Alton Beach), has been subdivided into twelve lots numbered 1 to 12, of a subdivision known as Harrison and Hays subdivision of the Whitman tract; that Ocean drive, which is the avenue east of Collins avenue, and the avenue closest to the ocean, has been widened and paved by the city by and through the condemnation proceedings and the appropriation of plaintiff's land as aforesaid; that said paving and sidewalks have been extended through, upon, and across the plaintiff's land into Fifteenth street, which borders the plaintiff's land to the north, so that now a steady stream of traffic flows through and around the plaintiff's property; that the lots of land abutting upon Ocean drive from its southern terminus to the southern boundary of plaintiff's land are given over to, and chiefly used for, commercial purposes.

That there is now in actual operation upon lots 1, 2, 3, and 4 of Harrison and Hays subdivision, between Ocean drive and the Atlantic Ocean, adjoining plaintiff's land to the south, a casino known as 'Villa Venice,' wherein a cabaret, restaurant, and roadhouse is operated, patrons are furnished with food, entertainment, music and dancing, bathrooms and bathing suits, and bathing privileges for patronage of the public generally, which continues until the early hours of each morning; that the public generally, and patrons of the casino especially, habitually park their automobiles on Ocean drive and Fifteenth street, through and around the plaintiff's property; that, by reason of said condemnation of the plaintiff's land and extension of Ocean boulevard and the improvement of Fifteenth street, plaintiff's land is now geographically a part of, and is embodied in, the block of land in which the casino is constructed and operating; and in which a miniature golf course has been operated for profit for the use of the public generally.

That by said condemnation plaintiff's property has been forever impressed with the nature and characteristics of the adjoining property to the south in the same block, and to the commercial uses and purposes of business to which said lots are now devoted; that by the condemnation proceedings the city of Miami Beach has made it impossible and impracticable to use plaintiff's land for residential purposes or to erect a one-family dwelling, or to erect a building 30 feet away from the east line of said parcel of land, and said restrictions, without fault of plaintiff, have been breached, each and every, and has rendered the quiet and privacy of said premises impossible and permanently destroyed the value and use of plaintiff's land for residential purposes.

That neither the former nature, state, and characteristics of plaintiff's land, nor its former value for residential purposes, can be restored, and its sole value and adaptability for use at the present time is determined by the use of the property adjoining it on the south of said property, facing Ocean drive, and of said property along the east side of Collins avenue south of plaintiff's property; that is to say, by its use for commercial purposes relieved of the said residence and building restrictions hereinbefore set forth, plaintiff's property has no value as a residential property, but has a great value and is readily usable and marketable as business and commercial property.

That, by reason of the condemnation and appropriation for street purposes of said strip across plaintiff's land and the nature of the adjoining land to the south, the original design of the parties and the purpose for which the restriction as to the plaintiff's property were imposed have come to an end, and the restrictions are no longer possible or enforceable.

That,...