Brevard County v. Blasky

• Decision Date: 30 April 2004
• Docket Number: No. 5D03-2934.,5D03-2934.
• Parties: BREVARD COUNTY, Florida and the Brevard County Mosquito Control District, Appellants, v. Michael BLASKY and Anita Blasky, Appellees.
• Court: Florida District Court of Appeals

875 So.2d 6

BREVARD COUNTY, Florida and the Brevard County Mosquito Control District, Appellants, v. Michael BLASKY and Anita Blasky, Appellees.

No. 5D03-2934.

District Court of Appeal of Florida, Fifth District.

April 30, 2004.

Rehearing Denied June 23, 2004.

Eden Bentley of Brevard County Attorney's Office, Viera, and C. Allen Watts of Cobb & Cole, DeLand, for Appellant.

Edward C. Tietig, Palm Bay, for Appellee.

MONACO, J.

The appellants, Brevard County and the Brevard County Mosquito Control District (the "District"), appeal an Order of Taking concluding that the District has taken the real property of the appellees, Michael and Anita Blasky, by inverse condemnation. Brevard County and the District both defended this suit on a number of theories, including: that the land in question was dedicated by implication by a prior land owner; that the District had an irrevocable license which barred inverse condemnation; that the statute of limitations for a claim of inverse condemnation had run; and that, in any event, some of the land in question is sovereign submerged land and is owned by the State of Florida. After a non-jury trial the lower court disagreed with both the County and the District on these and all other bases. We do, too.

I. FACTS.

In 1978, Mr. and Mrs. Blasky purchased a 40-acre parcel located on the north side of the Port Canaveral Barge Canal on Merritt Island in Brevard County. Their residence is on the higher 13 acres of the property. The remaining 27 acres of marshy land is at the heart of the dispute.

Mr. and Mrs. Blasky trace their title to a 1906 deed from the Trustees of the Internal Improvement Fund to the Florida Coast Line Canal and Transportation Company. The deed from the Trustees contained no conditions or reservations of retained rights, and specifically granted all riparian rights to the grantee. The Blaskys were granted title of the same quality.

In 1954, a predecessor in title to Mr. and Mrs. Blasky granted to the District an unrecorded "easement" of ten years' duration for purposes of mosquito control with respect to about 80 acres of land owned by the predecessor, including the 27 acres in question. Although the document was labeled an easement, it used the terms, "license," "licensor," and "licensee" within its body. The document authorized the District to enter the land, to construct dikes and dams around it, and then to flood the diked lands and to maintain the water level at a depth suitable to the District's purposes. The idea was to control mosquito habitat. As salt marsh mosquitos only lay eggs in mud, their reproduction could be interrupted and controlled by keeping the area flooded.

The record is silent with respect to what happened after the ten years elapsed. The next significant legal event occurs in 1978, when Mr. and Mrs. Blasky bought the property. They, of course, admitted that they knew of the impoundment and of the improvements installed by the District (Mr. Blasky is a real estate broker and, as one can imagine, the new owners fully supported mosquito control in the area), but neither they, nor the District had any discussion on the subject of the District's continued use of the land until 1992. In that year the District wrote to Mr. and Mrs. Blasky and offered either to purchase the 27 acres from them outright, or to obtain a recordable easement. In exchange for the latter, the District offered to grant the Blaskys certain tax relief regarding the land. Mr. and Mrs. Blasky were not inclined to accept either proposal, but did write a letter in 1994, that gave their revocable permission to the District to continue to flood and regulate the depth of waters on the 27 acres, but only for mosquito control purposes. The Blaskys neither asked for, nor received any consideration for the grant of this limited privilege to the District, and continued to pay the full amount of real property taxes levied on the property.

A year later, as noted by the trial judge, "the fur began to fly." Brevard County had a Stormwater Management Plan prepared for North Merritt Island, including the troublesome 27 acres. After a fuss about who was trespassing on whose land, the Florida Department of Environmental Protection, asserted title to the Blasky's property and contested their right to maintain a foot bridge over a feeder canal from their home to the 27 acre impoundment. The feeder canal was part of the "easement" area being used by the District as part of the 1954 agreement. Threats of $10,000 per day fines ensued to the considerable consternation of Mr. and Mrs. Blasky. Brevard County then got into the act and instituted its own code violation proceeding against the Blaskys for failure to obtain a permit for the bridge. Mr. and Mrs. Blasky then learned that the Stormwater Plan reflected that their 27 acres would be used as a stormwater storage area without their consent, and without compensation. Finally, Mr. and Mrs. Blasky discovered in 1997, that the Stormwater Plan actually prepared for and received by Brevard County showed that the 13 acres on which their residence was located, as well as the 27 acres in the impoundment, were both in the stormwater storage area. The trial judge viewed the inclusion of the Blasky home in the stormwater plan as "cavalier and irresponsible," and lamented that "someone writing the plan did not even take the trouble to see if any portion of the plan contained a home."

It should not have come as a surprise to either the District, Brevard County, or the Florida Department of Environmental Protection that in 1998, Mr. and Mrs. Blasky sent the District and County a letter revoking their permission for the District to use their 27 acres. The District, however, ignored the letter and continued to use the area despite the revocation of permission. Eventually, the Blaskys brought suit for inverse condemnation and other relief.

After a two day non-jury trial during which the trial judge received 59 exhibits and considered the lay and expert testimony of ten witnesses, the court rejected the District's defenses and determined that the District had taken the Blasky's land. This appeal followed.

II. DEDICATION BY PRIOR AND CURRENT OWNERS.

The District maintains that the predecessors in title to Mr. and Mrs. Blasky acquiesced in the construction of the mosquito control impoundment on the 27 acres for many years after the original ten year "easement" concluded. Thus, according to the District, the silence of the Blaskys and their predecessors worked a dedication by implication. The trial court rejected this position.

Common law dedication is the setting apart of land for public use. See City of Miami v. Florida East Coast Ry. Co., 79 Fla. 539, 84 So. 726 (1920). To constitute a dedication, whether an express dedication or an implied dedication, there must first be shown a clear intention by the owner, as indicated by his or her words or acts, to offer the land for public use. Thereafter, there must be an acceptance of the dedication by the public. See Hollywood, Inc. v. Zinkil, 403 So.2d 528 (Fla. 4th DCA 1981). The quality of proof required of the intention to dedicate is "clear and unequivocal," and the burden of proof is on the party asserting the existence of the dedication. See Star Island Assocs. v. City of St. Petersburg Beach, 433 So.2d 998, 1003 (Fla. 2d DCA),review denied, 440 So.2d 351 (Fla.1983).

Although the act of dedication is affirmative in character, it does not necessarily have to be accomplished by a formal act or formal dedication. Dedication may also result from the conduct of the owner. See Mainor v. Hobbie, 218 So.2d 203, 205 (Fla. 1st DCA 1969). Thus, dedication can be accomplished by a written grant, or affirmative acts, or even permissive conduct on the part of the dedicator. However the owner sees fit to indicate the intention to dedicate the land to the public use will meet the requirements of the common law. See City of Palmetto v. Katsch, 86 Fla. 506, 98 So. 352, 353 (1923).

In a seminal opinion by Justice Terrell, the Florida Supreme Court identified the most common ways to express one's intention to dedicate lands for public use:

(1) written instrument executed for that purpose; (2) filing a plat or map of one's property designating thereon streets, alleys, parks, etc.; (3) platting one's lands and selling lots and blocks pursuant to said plat indicating thereon places for parks, streets, public grounds, etc.; (4) recitals in a deed by which the rights of the public are recognized; (5) oral declarations followed by acts consistent therewith; (6) affirmative acts of the owner with reference to his property, such as throwing it open in a town, fencing and designating streets thereon; (7) acquiescence of the owner in the use of his property by the public for public purposes.

Katsch, 98 So. at 353. Justice Terrell went on to say, however, that mere use by the public over an extended period can be regarded only as a license that is revocable at the pleasure of the owner, unless public and private interests "have been acquired upon the faith of the supposed dedication, which would be materially impaired if the dedication were revoked." Id.

Similarly, the acceptance of the dedication by the public does not have to be by a formal act, but may be implied by the improving or repairing of the property, or from any act with respect to it that clearly indicates an acceptance. See Smith v. City of Melbourne, 211 So.2d 66, 68 (Fla. 4th DCA 1968). Once again, however, the acceptance of the dedication must be clear, satisfactory and unequivocal. See City of Miami Beach v. Miami Beach Improvement Co., 153 Fla. 107, 14 So.2d 172, 175 (1943). Thus, in Smith, the Fourth District Court of Appeal held that where the defendant's predecessor in title had not protested when a road was constructed over her property many years before, and the deed conveying the property to the defendants stated that the land was subject to a...