Burkart v. City of Fort Lauderdale, 2273

• Decision Date: 09 October 1963
• Docket Number: No. 2273,2273
• Citation: 156 So.2d 752
• Parties: Oliver C. BURKART and Mabel C. Burkart, husband and wife, Appellants, v. CITY OF FORT LAUDERDALE, a municipal corporation, Appellee.
• Court: Florida District Court of Appeals

Page 752

156 So.2d 752

Oliver C. BURKART and Mabel C. Burkart, husband and wife, Appellants, v. CITY OF FORT LAUDERDALE, a municipal corporation, Appellee.

No. 2273.

District Court of Appeal of Florida, Second District.

Oct. 9, 1963.

J. B. Patterson, Fort Lauderdale, for appellants.

Francis K. Buckley, Fort Lauderdale, for appellee.

SMITH, Chief Judge.

Appellants, Oliver R. Burkart and wife, appeal from a final decree, entered after hearings on the merits, dismissing their complaint and denying them the relief sought. Their complaint alleges that they are the owners of two parcels of property in Idlewyld Subdivision in the City of Fort Lauderdale. Parcel A consists of ten lots in the subdivision, and the plaintiffs allege that it was made to appear from the subdivision plat that these lots have attached thereto riparian rights across and into New River Sound extending to the channel. These lots face east and abut the west side of a street designated as Ocean View Drive. The plaintiffs further allege that they are the owners of Parcel B, which is described as 'that parcel of land bounded on the west by Ocean View Drive, on the north by Las Olas Boulevard, and on the east and south by the waters of New River Sound.' From the descriptions of the two parcels, it is seen that Ocean View Drive intervenes between the parcels, with Parcel B lying east of Parcel A. The complaint further alleges that New River Sound is a navigable body of water in which the tide ebbs and flows; and that under the provisions of the Riparian Rights Act of 1856, and amendatory and supplementary statutes enacted thereafter, the plaintiffs have the right to fill in said submerged land lying in front of Parcel B to the channel without obstructing the channel. The complaint prays that the plaintiffs be declared the owners of the two parcels, free and clear of any claim, right or title of the defendant; and that the defendant City be enjoined from asserting or claiming any right, title or interest in and to Parcel B and all the submerged merged land situated between Parcel B and the channel of New River Sound that lies in front of Parcel B.

The City's answer denies that the plaintiffs own any land described as Parcel B and denies that the plaintiffs own any riparian rights on account of their ownership of Parcel A, except such as they may share in common with the general public. Further answering, the City alleges that at the time of the dedication of the plat there was no land lying between Ocean View Drive and the waters of New River Sound, but that said street abutted the waters to the east; and that pursuant to its charter, the defendant City has the power to regulate and control all the streets, waterways and public ways within the City limits, and has adopted ordinances regulating and governing the public way. The City's answer did not contain any counterclaim or prayer for affirmative relief.

Upon the issues so joined and after lengthy delays, ¹ the evidence was taken before the court and submitted on final hearing. Thereafter, the court entered its extensive and most comprehensive findings of fact and law, pursuant to which there was subsequently entered a final decree denying the plaintiffs the relief they sought and dismissing the cause.

The parties admit that at the time of the filing of the plat the subdivider owned a parcel of land located on New River Sound, a navigable body of water in which the tide ebbs and flows, and that appurtenant and incident to said land there existed riparian rights. In 1921, the owner recorded a subdivision plat of the land, which plat contained a dedication with pertinent portions as follows:

'* * * The riparian rights in and to the waters of New River and New River Sound opposite each lot or parcel of land fronting or abutting upon Ocean View Drive are hereby reserved to the New River Development Company, its successors, legal representatives or assigns, owners of said abutting lots or parcels of land. The streets, avenues and Ocean View Drive, shown hereon are hereby dedicated to the perpetual use of the public as thoroughfares, reserving to the New River Developing Company, its successors legal representatives or assigns, the reversion or reversions thereof, whenever discontinued by law.'

A photographic reproduction of the recorded plat, depicting the area in controversy, is as follows:

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The plaintiffs' rights accrued to them by virtue of measne conveyances from the subdivider to the plaintiffs. The description used in each conveyance from the subdivider was in the following form:

'Lot numbered _____ of Block numbered _____ of THE NEW RIVER DEVELOPMENT COMPANY'S Subdivision of IDLEWYLD, as same is shown, marked and designated on a plat of said subdivision recorded in Plat Book No. 1, at page 19, in the office of the Clerk of the Circuit Court in and for Broward County, Florida.'

In a subsequent, numbered paragraph under a heading to the effect that 'this conveyance is made subject to the following restrictions and limitations,' there appears the following:

'The strip or parcel of land lying between Ocean View Drive and New River Sound and New River, in front of each lot fronting on Ocean View Drive is hereby conveyed to the owner, of said lot together with such riparian rights and privileges as are owned by the New River Development Company, * * *'

By a series of subsequent conveyances originating from the subdivider, there were separate deeds purporting to convey a 'strip or parcel of land' lying in front of Parcel A and describing such strip or parcel as being situated between Ocean View Drive and New River Sound.

The rights of the City to the area in question accrued to it by virtue of the plat of the subdivision.

The court found that there is intrinsic evidence in the plat itself from which the true intention of the maker can be almost conclusively established--at least more certainly than the statements of witnesses testifying after a lapse of nearly twenty years, since such testimony is subject to mistakes caused by defective memory and the confusion of after-acquired information or later impressions with memory. The Chancellor noted that the maker of the plat showed no land east of the street boundary, and it was found that the wavy lines on the plat did not indicate land east of the street, but to the contrary, indicated that the street abutted upon the waters of New River Sound. The court concluded that the easterly boundary of Ocean View Drive, as shown on the plat, was intended to be and was the waters of New River Sound; that if any deposits have accumulated against Ocean View Drive, such accumulations are a part of the dedicated street; and that there was the possibility (noted as an interesting point not pursued by the parties) that the riparian rights claimed by the plaintiffs are subordinate to or limited by the riparian rights appurtenant to the County public road known as East Las Olas Boulevard, because that road was established by deed prior to the recording of the plat. There is substantial, competent evidence in the record to sustain these findings.

Drawing the several paralledl, wavy lines abutting and adjacent to the east side of Ocean View Drive, as shown on the plakt, is the usual means employed to mark a water boundary where tides ebb and flow. The record contains the uncontradicted testimony of experts to the effect that these wavy lines are standard engineering symbols indicating a water boundary. Where such lines are found on a plat, they should be taken to define a lot or street lying adjacent to the water, with nothing between, in the absence of anything appearing to the contrary on the plat. Brickell v. Town of Fort Lauderdale, 1918, 75 Fla. 622, 78 So. 681. The plat here discloses nothing to the contrary. The solid, heavy line marking the east boundary of Ocean View Drive is clearly for the purpose of showing the distance from the west line of the Drive to the water. The wavy, undulating lines adjacent to the solid line, and touching the solid line from time to time with insignificant variations, make it clear that Ocean View Drive was dedicated and platted as extending to the shore of New River Sound. There is indicated, on the face of the plat, an intention to dedicate all land between the west boundary of the street and the water. ² The testimony of the witnesses to the contrary was properly rejected by the Chancellor for the very cogent reasons stated. The conclusion that Ocean View Drive abuts the shore of New River Sound is further fortified by the admitted fact that the subdivider first filed the plat and then filled the land and constructed the Drive. Although the plat indicates that the width of Ocean View Drive, at the time of its platting, was fifty feet, the fact that its eastern boundary was the shore of New River Sound dictates that the width would vary from time to time as the shore would vary by accrection or erosion, so that any deposits of land on the shore become a part of the dedicated right of way for the Drive. See Backus v. City of Detroit, 1882, 49 Mich. 110, 13 N.W. 380, and cases there cited. The finding that no land existed between Ocean View Drive and New River Sound removes the questions of law here involved from the principles stated in Caples v. Taliaferro, 1940, 144 Fla. 1, 197 So. 861, and Marshall v. Hartman, 1932, 104 Fla. 143, 139 So. 441, because in each of those cases there was land intervening between the dedicated easement and the public waters.

The plaintiffs' remaining contention is that, even if there is no land intervening between the public street and the public waters, they have, by virtue of their ownership of the subdivision lots abutting upon Ocean View Drive, riparian rights appurtenant thereto, and the City and the general public which the City represents have no riparian rights. In considering the question presented, the facts...