Burnham v. Davis Islands, Inc.

• Decision Date: 16 March 1956
• Citation: 87 So.2d 97
• Parties: Fred D. BURNHAM, Jr., and Hal K. Leggitt, Appellants, v. DAVIS ISLANDS, Incorporated, a Corporation, et al., Appellees. . Special Division B
• Court: Florida Supreme Court

Page 97

87 So.2d 97

Fred D. BURNHAM, Jr., and Hal K. Leggitt, Appellants, v. DAVIS ISLANDS, Incorporated, a Corporation, et al., Appellees.

Supreme Court of Florida. Special Division B.

March 16, 1956.

Rehearing Denied May 22, 1956.

Hall, Farnsworth & Rousseau, Tampa, for appellants.

Reeves, Allen & Dell and Gibbons & Gibbons, Tampa, for appellees.

Paul Game, Tampa, for Davis Islands Civic Assocation, amicus curiae.

O'CONNELL, Justice.

The appellants, Fred D. Burnham, Jr., and Hal K. Leggitt, instituted the litigation which gives rise to this appeal, seeking to enjoin the subdivision and sale of a portion of Davis Islands, in Tampa Bay, by the owners, appellees Davis Islands, Inc., Byars-Thompson, Inc., Alfred Dana and Bernice Dana, his wife.

The property in question is that upon which Davis Islands, Inc., one of the original developers of Davis Islands subdivision, operated a golf course for many years, from the time of its construction shortly after the land was pumped from the bay in the 1920's until December 31, 1954. The record relied upon the establish the factual background in this case exceeds 1,000 pages, but in general outline the situation reflected is this:

From the inception of the venture it was widely publicized as offering many attractions to prospective home owners. Various advertisements and brochures pointed to the ready accessibility of recreational facilities for water sports, tennis, as well as golf, in surroundings of great beauty and permanent values. Sales were made prior to completion of the dredging operations, and apparently before any plats were recorded. The subdivision was comprised of several sections, each covered by a separate plat. The plats covering the particular sections and area here involved were placed of record in 1925, and upon each record plat covering this area the particular blocks in question appeared simply as open spaces marked 'Reserved-See Margin.' The marginal notation was as follows:

'The owner contemplates that the blocks, marked 'Reserved-See Margin' may become a part of a golf course, but the owner expressly reserves the absolute right to prescribe the term of any dedication hereafter made or to subdivide or dispose of the same in such manner at it may determine.'

According to testimony of appellants themselves, the section containing the golf course was not developed to any extent until after 1951. The appellant Burnham first purchased lots in the subdivision in 1952, and Leggitt in 1954. Burnham had been familiar for several years, by virtue of his operations as a real estate broker, with the general promotional work of the Island developers, drawing attention of all the assets of the subdivision, including the golf course. But there is no testimony in the record, either from him or any other purchaser appearing as a witness, that lots were purchased in reliance upon the widespread promotional campaign or literature accompanying the initial opening of the subdivision. There is likewise no evidence from any parties purchasing from appellees that they relied upon representations emanating from Davis Islands, Inc., or successors, to the effect that the golf course would be permanent. The appellant Burnham, in fact, stated that the had heard rumors as early as 1950 concerning the possible subdivision of the golf course, prior to the time he purchased any lots, located near the golf course or elsewhere, but nevertheless made no inquiry at the time of his purchases.

On April 29, 1955, appellees placed of record a plat showing the proposed division of the area, and construction of residences thereon has since begun. The appellants brought this suit as a class action on behalf of 'all persons in like situation' who have purchased lots on the Islands, either facing the streets surrounding the blocks in question, or so located in the subdivision as to have been influenced by the existence of the golf course in the area. The scope of relief sought is limited, in the language of appellants, as follows:

'There is no attempt either in argument or pleadings or evidence to require the appellees to operate a golf course. The only relief sought is to prevent the subdividers from destroying the easement and right of the purchasers of property on the island to have the area remain in its present status impressed with an easement for their benefit consisting of all the incidents appurtenant thereto including light, air, view, trees, and a right to have the land available for a golf course.'

The main issues presented by appellant for determination upon this appeal are, first, 'whether there was a public dedication of the golf course'; second, 'whether the actions of the developers estopped them from claiming that the golf course was not dedicated to the owners of the subdivision'; and third, 'whether the offers of the developers as put forth in their public advertising and sales promotion when accepted by purchasers of lots created a contract between such developers and the purchasers that the golf course would be for the use and benefit of the subdivision and the purchasers.'

It was the opinion of the court below upon the first question that the evidence would not sustain a finding of public dedication on any theory:

'There is no conflict in the testimony but that the several owners of the Islands maintained and operated the golf course as a business venture for profit, the use of the course being made available to the public upon the payment of a 'green fee.' * * * This golf course was always in the possession of the owners and under their control and maintenance; neither the City of Tampa nor anyone else on the port of the public, either took or attempted to take possession thereof. At all times the City of Tampa levied taxes against the properties, recognizing the private ownership, and which tax was paid by the respective owners. * * * all purchasers were on notice that the golf course could be used only upon payment of the fee or charge * * *. Here every act on the part of the owners shows a clear intent to retain possession and control and never was there an abandonment or surrender of the lands in question to the public. While it may not have been successful financially, it is quite clear the golf course was being operated as a business or commercial venture, with the idea of making a profit. The golf course was in no different category than any other place of amusement or attraction being held out to the public for a fee or charge.'

Thus, while there is no question that an offer of dedication can be made by a plat filed for record, or by mere...