Brannon v. Boldt

• Decision Date: 24 January 2007
• Docket Number: No. 2D03-4477.,2D03-4477.
• Citation: 958 So.2d 367
• Parties: Patrick W. BRANNON and Kathryn C. Brannon, Appellants, v. Steven W. BOLDT, Mary Anne Pittman, Thomas Brizzi, Saira Brizzi, Dane Disano, Sharon Disano, Harry Gieschen, Cindy A. Gieschen, George Hartman, Mary Hartman, Phyllis Wellman Hainsworth, Tom Holdstein, Nancy Holdstein, Theodore Henter, Mary Henter, Larry Lynch, Robin Roberson, Harold H. Mazhimer, Thelma R. Maxhimer, Allen E. Oster, Suzanne Oster, Helen B. Pond, Steven Sanders, Cynthia A. Sanders, Charles Sciandra, Doris Sciandra, Michael J. Sieber, Rea Sieber, Mark P. Togna, Julianne Martin, and Ruth Vincent, Appellees.
• Court: Florida District Court of Appeals

958 So.2d 367

Patrick W. BRANNON and Kathryn C. Brannon, Appellants, v. Steven W. BOLDT, Mary Anne Pittman, Thomas Brizzi, Saira Brizzi, Dane Disano, Sharon Disano, Harry Gieschen, Cindy A. Gieschen, George Hartman, Mary Hartman, Phyllis Wellman Hainsworth, Tom Holdstein, Nancy Holdstein, Theodore Henter, Mary Henter, Larry Lynch, Robin Roberson, Harold H. Mazhimer, Thelma R. Maxhimer, Allen E. Oster, Suzanne Oster, Helen B. Pond, Steven Sanders, Cynthia A. Sanders, Charles Sciandra, Doris Sciandra, Michael J. Sieber, Rea Sieber, Mark P. Togna, Julianne Martin, and Ruth Vincent, Appellees.

No. 2D03-4477.

District Court of Appeal of Florida, Second District.

January 24, 2007.

Rehearing Denied February 21, 2007.

Richard M. Hanchett and Marie Tomassi of Trenam, Kemker, Scharf, Barkin, Frye, O'Neill & Mullis, P.A., Tampa, for Appellants.

Henry G. Gyden, John R. Blue, Sylvia H. Walbolt, and Lee H. Rightmyer of Carlton Fields P.A., St. Petersburg, for Appellees.

EN BANC

ALTENBERND, Judge.

This court has elected to review en banc a very narrow, but significant issue:

What rights do the residents in a neighborhood receive, as dominant estate holders under an implied easement created by a denotation on a plat map of an "easement for ingress and egress" to a body of water, when the servient estate is part of a residential lot on which there exists an occupied family dwelling?

The issue in this case arises directly from a dispute over the interpretation of this court's opinion in Cartish v. Soper, 157 So.2d 150 (Fla. 2d DCA 1963). In Cartish, this court considered whether the dominant estate holders of a similar easement received riparian rights that could allow them to rebuild a dock at the water's edge of the servient estate. We held:

Proceeding from the premise, admitted by appellants, that easement rights may be created by implication, it is clear that such riparian rights necessary and incidental to access and egress from the Bay were implicit in the reservation of the Parkway. Just as accreted land would necessarily be burdened by the easement as a necessary implication of the reservation, so too the right to build a dock to facilitate access to the waters is implied.

Accordingly, insofar as riparian rights are necessary to or consistent with the purposes of the easement, they are impliedly granted to appellees and, as a corollary, reserved from the appellant fee owners. Cf. Feig v. Graves, supra; City of Tarpon Springs v. Smith, 1921, 81 Fla. 479, 88 So. 613; Geigor [Geiger] v. Filor, 1859, 8 Fla. 325.

157 So.2d at 153-54.

Unlike the dominant estate holders in Cartish, the lot owners in the neighborhood involved in this case are not primarily seeking to build a dock. Instead, they are seeking the right to sit and stand on the lands within the easement to fish, watch fireworks, watch the sunset, and generally enjoy the view of Boca Ciega Bay. The servient estate — that is, the land subject to the easement — is otherwise owned and occupied by the Brannons, subject to the "easement for ingress and egress" given to the other lot owners by virtue of a notation on the relevant plat map. The Brannons perceive their neighbors to be trespassers on their property when they remain within the easement for periods longer than reasonably necessary to gain access to the water. The neighbors perceive that they have the right to stay within the easement for as long as they wish in order to enjoy their "riparian" rights.

If "good fences make good neighbors,"¹ it is also true that bad easements can make for bad neighborhoods. The judges of this court have struggled to apply the Cartish tests — "such riparian rights necessary and incidental to access and egress" and "necessary to or consistent with the purposes of the easement" — in this case. It appears from the concurring opinion in Cartish that the judges in that case did not resolve the broader issue that faces us today. See 157 So.2d at 154 (White, J., concurring specially). Realizing that there are many neighborhoods in Florida affected by similar plat maps and that confusion in this area of the law can create great friction and hostility within a neighborhood, we have concluded that this matter is one of "exceptional importance" warranting the collective judgment of all active members of this court. See Fla. R.App. P. 9.331(a). We likewise certify to the Supreme Court of Florida the issue stated at the beginning of this opinion as a question of great public importance.

I. THE BASIC LAYOUT OF BAY PARK GARDENS

This case involves a neighborhood that is west of Park Street on 37th Avenue North in St. Petersburg, Florida. Thirty-seventh Avenue essentially dead ends at Boca Ciega Bay. This neighborhood was platted as "Bay Park Gardens" in 1953. It was designed to include twenty-two lots along 37th Avenue North and four tracts of land near the water's edge. The four tracts were designated A, B, C, and D (Appendix A, Plat Map). The original developer was Chestley E. Davis. In 1958, he sold tracts A and B to William and Virginia Norris, who built a personal residence on the two lots. Thus, for all practical purposes, these two tracts have been a single lot since the late 1950s. As explained later, the Brannons now own the home built by the Norrises.

An examination of the original plat map reveals much about Mr. Davis's vision as a developer. None of the lots along 37th Avenue North had direct access to the water. The two most valuable tracts, C and D, each had approximately 100 feet of waterfront with the tracts extending down to the mean high-water mark. Without an easement, there would have been limited ability to have a driveway into tracts C and D, and no ability to reach tracts A and B. Thus the development was platted with a twenty-two-foot-wide easement running north and south at the eastern edge of tracts C and D, primarily to give automobile access to those lots. At the north end of this easement, Mr. Davis designated an easement running east and west. Mr. Davis placed the entire twenty-two-foot east/west easement on tracts A and B, the land he developed for himself (Appendix B, Detail from Plat Map). The entire grant of easement states: "22' easement for ingress & egress and utilities."

If Mr. Davis had only been concerned about motor vehicle traffic, the east/west easement could have ended at the eastern property line of tract B. However, he extended the twenty-two-foot easement to the mean high-water mark. By reference to the plat map in the deeds of all of the lots, the purchasers of those lots were given an easement by implication providing them with ingress and egress to the water at the mean high-water mark. Thus, the purchasers of the lots knew that although they would not own waterfront property, they were purchasing the right to reach the water in a convenient manner.

The vision of developers and the reality of development have often parted ways in Florida. In this case, Mr. Davis built a dock on the easement in 1957 or 1958. He reserved the north side of the dock for the owner of tract B, and he reserved the south side of the dock for the owners of the other lots. The dock was short-lived. It was destroyed by a hurricane in 1960 and was never rebuilt. The Norrises built their home on tracts A and B, positioned so the easement runs down the driveway, adjacent to the garage and very close to their living room and kitchen before it enters the backyard. Thus, at least psychologically, anyone who owns the home on tracts A and B will always have a sense that neighbors are invading their personal space when the neighbors use the easement.

The owners of tracts C and D, as well as Mr. Davis, also built a seawall on this property in 1957 or 1958. Like so many other seawalls, this wall kept the sea out, but it also tended to erode the beach available to the public below the mean high-water mark. Oysters built up adjacent to the seawall. At this time, there is little, if any, public beach below the mean high-water mark at the edge of the easement where any normal person would choose to fish or enjoy a sunset. Thus, the easement now runs to a location of little or no value to someone who holds only public riparian rights.

II. THE FIRST EASEMENT DISPUTE

This case is not the first dispute arising from this easement. When Mr. Davis and his wife conveyed tracts A and B to William and Virginia Norris in 1958, tract C was owned by the Guillaumes. A dispute arose between the Norrises and the Guillaumes when the Norrises built a wall to separate tract C from tracts A and B. Tract C had been developed using a layout that provided no vehicular access to the Guillaumes' backyard except via the easement. Thus, the wall prevented them from accessing their backyard.

On December 5, 1958, a final decree was entered in a lawsuit styled Bernard G. Guillaume & Ethylle Guillaume, his wife, Plaintiffs v. William Norris & Virginia Norris, his wife, Defendants, Chancery No. 48,803, and recorded in the public records of Pinellas County. The Guillaume court stated:

The Court further finds that the plat of Bay Park Gardens was not ambiguous in any respect and that the designation of the 22-foot east-west easement for ingress, egress and utilities created an easement for the benefit of Tract "C" as well as all of the other lots and tracts in the subdivision.

This final decree granted the owners of tract C access down the easement "as is reasonably necessary" to enter their backyard, and it ordered the Norrises to remove a twenty-foot segment of the wall to allow access to tract C. The Norrises and Guillaumes later entered into a stipulation that permitted the owners of tracts A and B to install a gate of their choosing in the twenty-foot opening; however, no owner of those lots has done so.

This earlier lawsuit did not name the other neighbors as parties and did not address what, if any, riparian rights the neighbors may have by virtue of the language on the plat map. Thus,...