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

• Decision Date: 25 March 1974
• Docket Number: No. 43352,INC,TONA-RAM,43352
• Citation: 294 So.2d 73
• Parties: The CITY OF DAYTONA BEACH, a municipal corporation organized and existing under the laws of the State of Florida, et al., Petitioners, v., a Florida corporation, et al., Respondents.
• Court: Florida Supreme Court

Page 73

294 So.2d 73

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

No. 43352.

Supreme Court of Florida.

March 25, 1974.

Rehearing Denied May 30, 1974.

Isham W. Adams, Daytona Beach, and J. Lewis Hall, Tallahassee, for petitioners.

Robert L. Shevin, Atty. Gen., Barry Scott Richard, Deputy Atty. Gen., and Anthony J. Grezik, of Grezik & Johnson, Daytona Beach, for respondents.

ADKINS, Chief Justice.

This cause is here on petition for writ of certiorari supported by certificate of the District Court of Appeal, First District, that its decision in City of Daytona Beach v. Tona-Rama, Inc., 271 So.2d 765, is one which involves a question of great public interest. We have jurisdiction. Fla.Const., art. V, § 3(b)(3), F.S.A., F.A.R. 4.6, 32 F.S.A.

For clarity, the parties will be referred to as they appeared in the trial court. Respondents, Tona-Rama, Inc., et al., were plaintiffs, and petitioners, McMillan and Wright, Inc., et al., were defendants. Toma-Rama, Inc. will be referred to as plaintiff and McMillan and Wright, Inc. as defendant.

Defendant has owned water front property in Daytona Beach, Florida, for more than 65 years and operated on the property an ocean pier extending 1,050 feet over the Atlantic Ocean as a recreation center and tourist attraction. Defendant provided such attractions as fishing space, helicopter flights, dances and skylift.

The tract of land upon which the pier begins extends 102 feet north and south along the ocean front and approximately 1,050 feet landward of the mean high water mark. This area of approximately 15,300 square feet is an area of dry sand and is covered by water only on rare occasions during extremely high tide and during hurricanes. Defendant secured a permit for and constructed the observation tower which precipitated this litigation. The circular foundation of the tower is 17 feet in diameter and the diameter of the tower is four feet. It occupies an area of approximately 225--230 square feet of the 15,300 square feet of land to which defendant holds record title. The observation tower is an integral part of the pier and can only be entered from the pier.

Oceanward and easterly of the dry sand area is the foreshore, that is, the area between the high and low water marks and is designated herein as the hard or wet sand area.

Building permit was issued by the City for construction of the tower after public hearings. After the permit was issued, the tower was constructed at a cost of over $125,000.

Plaintiff operated an observation tower near the site of the pier of defendant and protested the issuance of the permit. When work in connection with the erection of the tower had progressed to completion of test borings and other arrangements, plaintiff commenced this action against defendant for a declaratory judgment and injunctive relief to prevent the erection of defendant's public observation tower. Among other contentions, plaintiff alleged that by continuous use of the property for more than 20 years, the public had acquired an exclusive prescriptive right to the use of the land of defendant. The application of plaintiff for a temporary injunction was denied and the tower was completed. Thereafter, the parties moved for summary judgment and at the hearing thereon testimony taken on application for temporary injunction, stipulated facts, and affidavits were submitted. The trial court entered a summary judgment in favor of plaintiff and directed the defendant to remove the observation tower within 90 days. Upon appeal, the judgment of the trial court was affirmed and the case certified to us as being one which passes on a question of great public interest.

The facts presented before the trial court were not sufficient to support a summary judgment which, in effect, deprived a land owner of meaningful use of a large portion of the land for which he paid, which he presently occupies in part, and on which he pays taxes.

The land in question is a parcel of white, powdery sand running between the hard-packed driving surface of Daytona Beach and the existing seawalls. By stipulation of the parties, the land is above the normal high water mark and would be subject to being covered by the waters of the Atlantic Ocean only during hurricanes or extremely high tides.

We recognize the propriety of protecting the public interest in, and right to utilization of, the beaches and oceans of the State of Florida. No part of Florida is more exclusively hers, nor more properly utilized by her people than her beaches. And the right of the public of access to, and enjoyment of, Florida's oceans and beaches has long been recognized by this Court.

White v. Hughes, 139 Fla. 54, 190 So. 446 (1939), was a suit brought to recover damages from injuries received by plaintiff White when struck by an automobile driven by defendant on the beach of the Atlantic Ocean between high and low water marks, the hard or wet sand area. The Florida Statute had declared the hard sand area to be a public highway. The trial court instructed the jury that the public in using the beach for the purpose of bathing and recreation had 'rights at least equal' to the rights of motorists on that part of the beach. This instruction was held to be error, the Court saying:

'There is probably no custom more universal, more natural or more ancient, on the sea-coasts, not only of the United States, but of the world, than that of bathing in the salt waters of the ocean and the enjoyment of the wholesome recreation incident thereto. The lure of the ocean is universal; to battle with its refreshing breakers a delight. Many are they who have felt the lifegiving touch of its healing waters and its clear dust-free air. Appearing constantly to change, it remains ever essentially the same.

'The Sovereign state may in the interest of the general welfare authorize the beach or shore to be appropriately used as a public highway. And most of our Florida beaches, when the tide is out, afford marvelously perfect highways, which are obliterated and re-built twice each day by the unseen hand of the Almighty. However, we are of the opinion that such an authorization for highway uses must be subject to reasonable use of the beach or shore for its primary and long established public purposes, for which the State holds it in trust, and subject to lawful governmental regulations.

'For the above reasons we hold that the right of the public to use the beach for bathing and recreational purposes is superior to that of the motorists driving automobiles thereon.' 190 So. 446, pp. 448--450.

It is possible for the public to acquire an easement in the beaches of the State by the finding of a prescriptive right to the beach land. City of Miami Beach v. Undercliff Realty & Investment Co., 155 Fla. 805, 21 So.2d 783 (1945), and City of Miami Beach v. Miami Beach Improvement Co., 153 Fla. 107, 14 So.2d 172 (1943). However, in both of the cases cited above and relied upon by the District Court of Appeal, First District, in the case Sub judice, this Court declined to find such prescriptive right in the public because of the absence of an adverse nature in the public's use of private beach land.

This Court in City of Miami Beach v. Undercliff Realty & Investment Co., Supra, said:

'It is true that in the earlier days preceding the remarkable development of Miami Beach, when it had a small population, many persons used the beach for bathing, sunning and other recreational purposes. The fact that the upland owners did not prevent or object to such use is not sufficient to show that the use was adverse or under a claim of right. It has not been shown that there has been an open, notorious, continuous and uninterrupted use of the beach by the public, in derogation of the upland proprietors' rights, for a period of twenty years, or for any period.' 21 So.2d 783, p. 786.

This Court in Downing v. Bird, 100 So.2d 57 (Fla.1958), set forth the test for right of access by prescription:

'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.

'Further in either prescription or adverse possession, The use or possession is presumed to be in subordination to the title of the true owner, and with his permission and the burden is on the claimant to prove that the use or possession is adverse.' (Emphasis supplied.) (p. 64)

If the use of an alleged easement is not exclusive and not inconsistent with the rights of the owner of the land to its use and enjoyment, it would be presumed that such use is permissive rather than adverse. Hence, such use will never ripen into easement. This principle was recognized in J. C. Vereen & Sons v. Houser, 123 Fla. 641, 167 So. 45 (1936), where this Court quoted with approval from Jesse French Piano & Organ Co. v. Forbes, 129 Ala. 471, 29 So. 683, 685, 87 Am.St.Rep. 71, as follows:

'No easement can be acquired when the use is by express or implied permission. . . . The user or enjoyment of the right claimed, in order to become an easement by prescription, must have been adverse to the owner of the estate over which the easement is claimed, under a claim of right, exclusive, continuous, and uninterrupted, and with the knowledge and acquiescence of the same. . . . One...