Brickell v. Town of Ft. Lauderdale

• Decision Date: 26 April 1918
• Citation: 78 So. 681,75 Fla. 622
• Parties: BRICKELL v. TOWN OF FT. LAUDERDALE.
• Court: Florida Supreme Court

78 So. 681

75 Fla. 622

BRICKELL v. TOWN OF FT. LAUDERDALE.

Florida Supreme Court

April 26, 1918

Appeal from Circuit Court, Broward County; H. Pierre Branning Judge.

Suit by the Town of Ft. Lauderdale against Mary Brickell. Decree for plaintiff, and defendant appeals. Affirmed.

Syllabus by the Court

SYLLABUS

The findings of the chancellor on the evidence will not be disturbed unless such findings are clearly shown to be erroneous.

On the facts in this case, it is held that the dedication of the streets extends to the waters of New river.

Where a dedication to the public use is made of a street or roadway and the same is used by the public, it is the duty of the city, as trustee of the public rights in and to the streets within whose corporate limits they are, to maintain the public uses against encroachments, and this applies to territory taken into the corporate limits after the dedication as well as to territory included in the corporate limits at the time of the dedication.

COUNSEL McCaskill & McCaskill, of Miami, and E. O Locke, of Jacksonville, for appellant.

J. F Bunn, of Ft. Lauderdale, for appellee.

OPINION

BROWNE, C.J.

The suit brought in the circuit court for Broward county by the city of Ft. Lauderdale, the appellee herein, against Mary Brickell, is in effect an action to enjoin the defendant below from obstructing North and South River streets in the city of Ft. Lauderdale by erecting buildings, providing wharves, docks, boatways, and other obstructions on such parts of those streets as are contiguous to and bordered by the waters of New river, a navigable stream which extends through a part of the city.

On the 20th of April, 1896, Mary Brickell and William B. Brickell her husband, owned certain lands on which they laid out a town site, subdivided into blocks or lots with streets and avenues, and caused the subdivision to be platted. The plat was duly recorded in the records of Dade county, and contained this inscription:

'Know all men by these presents that we, William B. Brickell and Mary Brickell, his wife, have caused to be made the following attached map of the subdivision of the south half of the south half of section 3 and the north half of the north half of the south half of section 10, in township 50 south, range 42 east, in Dade county, state of Florida, to be known as Ft. Lauderdale; and that we do hereby dedicate to the perpetual use of the public the streets or highways shown thereon, reserving to ourselves, our heirs, personal representatives, successors, or assigns, owning lands abutting or adjoining the same, the reversion or reversions thereof whenever discontinued by law.'

A demurrer to the bill was overruled and the defendant filed her answer. Testimony was taken on behalf of both parties, and the chancellor in his final decree held that William B. Brickell and Mary Brickell were owners in fee simple of the land platted as the town of Ft. Lauderdale, and that they dedicated to the perpetual use of the public the streets and highways shown thereon, and that they confirmed such dedicating by making deeds of conveyance to land described therein by reference to such plat, and that by virtue of such dedication there was vested in the public an easement into and over the streets and highways, and that North River street as shown on the plat is not of uniform width, and that its south or southerly boundary is the waters of New river, and that South River street as shown on the plat is not of uniform width and its north or northerly boundary is the waters of New river; that the fee in the land over which North and South River streets are laid out and dedicated is vested in Mary Brickell or her heirs, personal representatives, successors, or assigns, subject to the easements aforesaid, and that 'the owners of the fee and the public have a coexistent right, the owner to use the land and the public to use the street, and one does not destroy the other. The owners' right to use the land is limited to such pruposes as do not interrupt or interfere with the free use by the public for all proper and lawful street purposes,' and 'that the town of Ft. Lauderdale has the right through its proper officers and agents to regulate, improve, maintain, and control said streets and highways for the use of the public, for all proper lawful street and highway purposes;' and enjoined the defendant Mary Brickell from doing or attempting to do any act, thing, or deed that would in any wise interrupt or interfere with the town of Ft. Lauderdale in exercising its lawful power and right to regulate, improve, maintain, and control the streets and highways aforesaid, to wit, North River street and South River street as construed to be shown on said plat of the town of Ft. Lauderdale, and that 'all other matters and things in and by complainant's bill of complaint prayed are hereby denied.'

Upon the entry of appeal by the defendant, the complainant filed cross-assignments of error to the effect that the final decree is ambiguous, in that it does not clearly and specifically find and decide whether the riparian rights pertaining to the banks of New river at the points in question were an incident of or appurtenant to the public easement, or whether they were an incident of or appurtenant to the legal title or fee of the respondent.

There are four assignments of error by appellant, the first based on the overruling of the defendant's demurrer, and the second, third, and fourth present the same propositions of law and are discussed together by appellant, and will be so treated by this court.

In the discussion of the first assignment the appellant covers several propositions not raised by the demurrer, and will not be discussed by us. Neither is it necessary for us to discuss those grounds of the demurrer which are contended for by appellant, as the bill contains equity, and is sufficient to support the decree of the chancellor upon the issues presented by the pleadings and testimony, and we find no error in the order of the chancellor overruling the demurrer.

The vital questions presented by the assignments of appellant and cross-assignments of appellee are whether North and South River streets have a river boundary, and, if so, do the riparian rights in such streets accrue to the public, or are they reserved to the owner of the fee in the streets?

It is not questioned that there was an express dedication of the streets and highways shown on the plat, but appellant contends that the plat is ambiguous with reference to the width of North and South River streets. The meandering line of New river through the town of Ft. Lauderdale is something over a mile, and at two points on South River street as dedicated on the plat the figure 40 appears, and appellant contends that because of these figures there is an ambiguity in the plat as to the width of both South River street and North River street, and that she should be permitted to offer extrinsic evidence of the intention of the dedicators. This she was permitted to do, and the chancellor, after hearing all the testimony and considering the same in connection with the plat and the dedication, found that both North River street and South River street were bounded by the waters of New river.

This court is committed to the doctrine that the findings of the chancellor on the evidence will not be disturbed unless such findings of fact are clearly shown to be erroneous. Waterman v. Higgins, 28 Fla. 660, 10 So. 97; City of Jacksonville v. Huff, 39 Fla. 8, 21 So. 774; Sarasota Ice, Fish & Power Co. v. Lyle & Co., 58 Fla. 517, 50 So. 993; McMillan v. Warren, 59 Fla. 578, 52 So. 825; Viser v. Willard, 60 Fla. 395, 53 So. 501; Dixon Lumber Co. v. Jennings, 63 Fla. 405, 57 So. 615; Barnes & Jessup Co. v. Williams, 64 Fla. 190, 60 So. 787; Baggott v. Otis, 65 Fla. 447, 62 So. 362; Guerra v. Guiterrez, 66 Fla. 570, 64 So. 232; Farrell v. Forest Inv. Co., 73 Fla. 191, 74 So. 216; Simpson, Trustee, v. First National Bank of Pensacola, 77 So. 204; and Smith v. O'Brien, 78 So. 13, decided at the June, 1917, term of the court.

There is ample testimony to support the findings of the chancellor that the southerly boundary of North River street and the northerly boundary of South River street were intended to be the waters of New river.

It is contended by the appellant that she intended North River street and South River street each to be only 40 feet wide. That plat is drawn to a scale. There are some streets 40 and some 50 feet wide, and others of less width. Measured by the scale to which the plat is drawn, the width of North and South river streets as shown by the plat is generally about 40 feet, but it apparently varies according to the meanderings of the river. The lines marking the side of the North and South River streets away from the river are all straight lines, while those which mark the side next to the river are undulating and apparently follow the contour of the river. 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...