Bonifay v. Dickson

• Decision Date: 01 November 1984
• Docket Number: No. AZ-138,AZ-138
• Citation: 459 So.2d 1089
• Parties: Barry BONIFAY, City of Pensacola, Daniel Thomas Bowen and Mary Catches Bowen, Appellants, v. Barry E. DICKSON and John R. Williams, Appellees.
• Court: Florida District Court of Appeals

Page 1089

459 So.2d 1089

Barry BONIFAY, City of Pensacola, Daniel Thomas Bowen and Mary Catches Bowen, Appellants, v. Barry E. DICKSON and John R. Williams, Appellees.

No. AZ-138.

District Court of Appeal of Florida First District.

Nov. 1, 1984.

Rehearing Denied Nov. 30, 1984.

John B. Carr of Barnes & Carr, Pensacola, for appellant Bonifay.

John W. Fleming, Asst. City Atty., Pensacola, for appellant City of Pensacola.

John P. Welch of Jones & Welch, Pensacola, for appellants Daniel Thomas Bowen and Mary Catches Bowen.

Artice L. McGraw of Cetti, McGraw, Bearman & Eddins, Pensacola, for appellees.

BARFIELD, Judge.

Appellants challenge a final judgment quieting title in Dickson and Williams who, it is asserted, have failed to show the validity of their title. In addition, appellants contend that the trial court failed to recognize public and private interests in the disputed property. We agree and reverse.

This case is another in a series of disputes over the ownership of sections of a strip of waterfront property in a residential development known as East Pensacola Heights. ¹ The disputed property is located between Bayou Boulevard, a street that runs along the western perimeter of the development, and the waters of Bayou Texar. In 1909, the East Pensacola City Company conveyed the lots in Block 59, which are located across the street from the disputed strip, in deeds which referenced a plat of the subdivision made by J.E. Kauser in 1893. The Kauser map shows the development subdivided into lots and blocks and also shows an unnamed strip of land running along the western boundary of the subdivision between the platted lots and the shoreline of Bayou Texar. At the turn of the century there was apparently a wagon trail along this strip which became more extensively used over time until it was finally paved by the county and officially designated as Bayou Boulevard. ²

Appellants Daniel and Mary Bowen purchased lots in the southwest portion of Block 59 in the early 1940's, at which time the shoreline of Bayou Texar ran alongside the dirt road now known as Bayou Boulevard. According to the Bowens, the land now in dispute was at that time covered with water. By 1946 it had become a boggy area, covered with thick brush and potholes of standing water. At some time in the early 1950's, a road contractor working in the area received permission from the Bowens to dump sand onto the disputed property. The Bowens thereafter planted grass, trees and a garden, and have maintained and used the property up to the present time. In 1957 the Bowens gave the City of Pensacola an easement across the disputed property for installation of a sanitary sewer line.

As early as 1941, the county installed culverts under Bayou Boulevard to carry storm water runoff. These storm sewers, and the areas surrounding them, were maintained by the City after the subdivision was annexed in 1953. According to the Bowens, much of the accretion which has occurred since 1953 has been caused by sand washed onto the disputed area by the storm drains from Stanley Avenue and Lee Street.

In 1976 Charles and Ellen Lea and Julia Tait purchased the lots in the northwest section of Block 59 by warranty deed which contained a legal description of the lots and included the following language:

... together with the Grantors' right, title and interest, including riparian rights, in and to all or any part of the land and water bounded by a westerly extension of the South line of Lot 9, Block 59, running to the waters of Bayou Texar, and a northerly extension of the East line of Lots 9, 10, 11 and 12, Block 59, running to the waters of Bayou Texar.

On May 26, 1977, the Leas and Tait obtained a quit-claim deed from their neighbors to the north for an area of waterfront property which included not only the land directly across the street from the lots owned by the Leas and Tait, but also for part of the property directly across the street from the Bowens' lots. This latter portion of the waterfront property is the land in dispute.

On July 28, 1977, the Bowens filed a petition for injunction to restrain the Leas from erecting a fence along the northern border of the waterfront property claimed by the Leas; this case was dismissed without prejudice. In the spring of 1978, the Bowens obtained a survey of the waterfront property directly across from their lots and a building permit to erect a fence along the northern border of this property. When Mr. Lea tore down the fence erected by the Bowens, Mrs. Bowen had him arrested. ³ Thereafter, the Bowens obtained a quit-claim deed from Agnes Leaman, their neighbor to the south, for the waterfront property directly across from their lots.

On March 30, 1981, appellees Dickson and Williams purchased the waterfront property claimed by the Leas. On July 28, 1981, Dickson and Williams filed suit to quiet title to the disputed parcel, claiming record title based on a chain of title from October 18, 1963, coupled with a claim of title by adverse possession; a second count sought damages for slander of title. The City of Pensacola was allowed to intervene, claiming the sanitary sewer easement from 1957 and claiming also that portions of the subject property are dedicated public street rights-of-way. Barry Bonifay, a subdivision lot owner whose deeds referenced the Kauser map, was also allowed to intervene, claiming an implied private easement of access across the disputed property.

At trial, Williams testified that the property appeared well kept at the time of the 1981 purchase, that he paid property taxes for 1981 and 1982, and that he hired a lawn care agent to maintain the property from March, 1981 to the present, but that he does not know who maintained it prior to his purchase. The Bowens defended the action, testifying to their use and possession of the property for forty years, but did not seek by counterclaim to quiet title in themselves. In his final judgment, the trial judge found, inter alia, that the accreted property in dispute is adjacent to property delineated on the Kauser map; that the intent of the original owners of the undesignated strip of land west of the blocks and lots may not be deduced from the plat as a roadway; that the City has permitted buildings to be constructed on portions of the undesignated part of the property; and that the proof of acceptance of a public dedication was insufficient. ⁴

In order to determine the interests of each of the parties in the disputed property, it is necessary to examine its history, starting with the map drawn by J.E. Kauser in 1893. The first issue to be determined is whether this map, with respect to which the lots in the development were conveyed by the East Pensacola City Company, constitutes an offer of dedication to public use of the platted roadways. Common law dedication, one of several processes by which an owner of an interest in land can transfer to the public either ownership or a privilege of user for a public purpose, requires an intention to dedicate the property to the use of the public, acceptance by the public, and clear and unequivocal proof of these facts. ⁵

An intention to dedicate may be implied from the acts of the landowner, including filing a map or plat of the property designating the roadways thereon, or platting the land and selling lots pursuant to the plat, indicating thereon places for parks, public grounds, and streets. City of Palmetto v. Katsch, 98 So. 352 (Fla.1923). Although it appears that the Kauser map was recorded subsequent to the conveyance of the subject lots in 1909, an offer of dedication may be implied from the fact that these conveyances were made with reference to the Kauser map.

The next question is whether the dedicator intended to dedicate the unnamed strip of land in dispute, as well as the named streets designated on the map. Construing the plat as a whole and resolving any ambiguity regarding the extent of the dedication against the dedicator and in favor of the public, Florida East Coast Ry. Co. v. Worley, 38 So. 618 (Fla.1905), we construe the map as evidencing the owner's intention to dedicate the disputed strip, as well as the named streets.

It must also be determined whether the owner intended to dedicate for public use the entire strip, or only so much of it as was required for a public road, leaving an irregular strip of undedicated land on the water side of the road. In Brickell v. Town of Ft. Lauderdale, 78 So. 681, 683 (Fla.1918), the court observed: ⁶

A single undulating line is usually used for marking a water boundary not affected by tides, while several parallel waved lines are used to mark a water boundary where tides ebb and flow; and where these are found on a plat they should be taken to define a lot or street lying on the water, with nothing between it and the water, in the absence of anything appearing to the contrary on the plat or in the dedication.

We construe the map as indicating an intention to dedicate the entire width of the undesignated strip, from the lot lines to the water's edge, for public purposes. ⁷

Acceptance of an offer of dedication may be expressed or may be implied from acts showing an intention to accept, including, among other things, use by the public or maintenance and improvement by the proper authorities of part of the land dedicated. ⁸ In City of Pensacola v. Walker, 167 So.2d 634 (Fla. 1st DCA 1964), this court noted that a wagon trail existed along the disputed strip in the early 1900's and that as it became more extensively used, it was graded and paved by the county and officially dedicated as Bayou Boulevard. The record reflects that in the early 1940's the county installed culverts under Bayou Boulevard to carry storm water runoff, and that these culverts were maintained by the City after the subdivision was annexed in 1953. These acts of the public authorities in maintaining and improving the road and the storm sewer lines may be construed...