City of Daytona Beach v. Tona-Rama, Inc.

• Decision Date: 31 August 1972
• Docket Number: No. P--335,INC,TONA-RAM,P--335
• Citation: 271 So.2d 765
• Parties: 2 Envtl. L. Rep. 20,510 The CITY OF DAYTONA BEACH, a municipal corporation organized and existing under the laws of the State of Florida, et al., Appellants, v., a Florida corporation, et al., Appellees, v. The STATE of Florida, Intervenor.
• Court: Florida District Court of Appeals

Page 765

271 So.2d 765

2 Envtl. L. Rep. 20,510

The CITY OF DAYTONA BEACH, a municipal corporation organized and existing under the laws of the State of Florida, et al., Appellants, v. TONA-RAMA, INC., a Florida corporation, et al., Appellees, v. The STATE of Florida, Intervenor.

No. P--335.

District Court of Appeal of Florida, First District.

Aug. 31, 1972.

Rehearing Denied Jan. 23, 1973.

Isham W. Adams, Daytona Beach, for appellants.

Anthony J. Grezik, of Grezik & Johnson, Daytona Beach, for appellees.

Robert L. Shevin, Atty. Gen., and Barry Scott Richard, Asst. Atty. Gen., for intervenor.

WIGGINTON, Judge.

Appellants seek review of a summary final judgment rendered in an action brought by appellees for declaratory and injunctive relief. It is contended on appeal that the pleadings, affidavits, depositions, exhibits, and other evidence in the file create genuine issues of material facts which may be resolved only upon a trial of the cause and not disposed of summarily by the judgment rendered herein.

The primary issue delineated by the pleadings calls for a judicial declaration as to the ownership of a parcel of land forming a part of the Atlantic Ocean beach and consisting of the soft sand area lying easterly of the established bulkhead line paralleling the beach on the west and the mean high water mark of the ocean which forms the border of the soft sand area on the east. The parcel in question is approximately 150 feet deep east and west and is adjacent to and southerly of an existing pier extending into the ocean. The soft sand area of the beach does not support vegetation and, although not normally covered by tidal action of the ocean, is occasionally covered by the sea during hurricanes, northeastern windstorms and extreme high tides.

As the purported record title owner of the parcel of land in question, appellants McMillan and Wright, Inc., applied to the City of Daytona Beach for a building permit authorizing it to construct an observation tower to be operated in connection with and as a part of its pier recreational facilities. The location of the tower is immediately south of and adjacent to the existing pier and within the soft sand area of the beach. After much deliberation and an extensive investigation of the legal aspects of the application, a resolution was adopted by the City approving the application and authorizing the issuance of the requested permit.

Objection to the construction of the observation tower and a challenge to the City's right to grant a building permit for such construction were promptly registered by appellees as citizens and taxpayers of the community. After test borings were made but before construction of the tower was commenced, this action was instituted seeking declaratory relief as to ownership of the land on which appellants planned to construct the tower and an injunction to restrain any further action by appellants in the furtherance of its construction plans. After issue was joined on the pleadings, extensive discovery proceedings were had by which the depositions of many citizens, both interested and disinterested, were taken. Pretrial conferences were held and voluminous exhibits introduced pertinent to the issues raised for adjudication. Both sides filed motions for summary judgment supported by further affidavit proof.

A fair and objective consideration of all the evidence before the trial court establishes the following undisputed facts. For more than twenty years prior to the institution of this action the general public visiting the ocean beach area had actually, continuously, and uninterruptedly used and enjoyed the soft sand area of the beach involved in this proceeding as a thoroughfare, for sunbathing, picnicking, frolicking, running of dune buggies, parking, and generally as a recreation area and playground. The public's use of the area in question for the purposes hereinabove stated was open, notorious, visible, and adverse under an apparent claim of right and without material challenge or interference by anyone purporting to be the owner of the land. The City of Daytona Beach has constantly policed the area for the purpose of keeping it clear of trash and rubbish and for preserving order among the users of the beach; has controlled automobile traffic using the hard sand area of the beach and enforced a prohibition against parking by vehicles on the area in question; and has otherwise exercised the police power of the City over the area for the convenience, comfort, and general welfare of all persons using and enjoying the beach area.

Appellants, purporting to be the record title owners of the parcel of land in dispute, testified that the public's use of the soft sand area owned by them was not inconsistent with nor did it adversely affect their use of the parcel in the operation of their pier so they had no reason to prohibit or interfere with the public's use of the area during the preceding years. They testified also that in washing down the pier or replacing piling from time to time they did exercise the authority of requiring people in the area to move back a safe distance so as not to interfere with this work.

From these facts the trial court found that there had accrued in favor of the public a prescriptive right to an easement for thoroughfares, bathing, recreation, and playground purposes in and over the soft sand area of the beach lying between the bulkhead line on the west and the high water mark on the east. Based upon such findings the trial court concluded that, because of the existence of such prescriptive right, the City of Daytona Beach had no lawful authority to issue a building permit authorizing appellants, McMillan and Wright, Inc., to construct on the soft sand area any permanent structure in conflict with the public right. The court therefore mandatorily enjoined McMillan and Wright, Inc., to remove the skytower built by it on the soft sand area during the pendency of this litigation and to restore the land to its original status as it existed prior to the commencement of such construction.

We have carefully considered the totality of the evidence which was before the trial court in its consideration of the motion for summary judgment filed by the respective parties. Although there appear several instances of disputed facts in the affidavits and depositions filed in the cause, such issues are more colorable than real and are not sufficiently substantial to create an issue which must necessarily be resolved by trial. The undisputed evidence supports the findings made by the trial court, and appellants have failed to demonstrate that such findings are either erroneous or constitute an abuse of discretion. It is our view that the sporadic exercise of authority and dominion by the owners over the parcel in question was not sufficient to preserve their rights as against the prescriptive rights which accrued to the benefit of the public by its use of the beach area.

Appellants further contend that the trial court applied to the facts found by it in this case incorrect principles of law when it concluded that there had accrued to the public a prescriptive right to the soft sand area of the beach involved in this case. With this contention we are unable to agree. In the cases of City of Miami Beach v. Miami Beach Improvement Co. ¹ and City of Miami Beach v. Undercliff Realty & Investment Co., ² the Supreme Court of Florida recognized that under proper factual circumstances the public may acquire a prescriptive right in beach or oceanfront land as against the rights of the record title holder.

In setting forth the elements necessary to be proved in order to establish a prescriptive right in land, the Supreme Court in Downing v. Bird ³ said:

'In either prescription or adverse possession, the right is acquired only by actual, continuous, uninterrupted use by the claimant of the lands of another, for a prescribed period. In addition the use must be adverse under claim of right and must either be with the knowledge of the owner or so open, notorious, and visible that knowledge of the use by and adverse claim of the claimant is imputed to the owner. In both rights the use or possession must be inconsistent with the owner's use and enjoyment of his lands and must not be a permissive use, for the use must be such that the owner has a right to a legal action to stop it, such as an action for trespass or ejectment.

'While there are slight differences in the essentials of the two actions, they are not great. In acquiring title by adverse possession, there must of course be ...