City of Miami Beach v. Miami Beach Imp. Co.

• Decision Date: 04 June 1943
• Citation: 14 So.2d 172,153 Fla. 107
• Parties: CITY OF MIAMI BEACH et al. v. MIAMI BEACH IMPROVEMENT CO. et al.
• Court: Florida Supreme Court

14 So.2d 172

153 Fla. 107

CITY OF MIAMI BEACH et al. v. MIAMI BEACH IMPROVEMENT CO. et al.

Florida Supreme Court

June 4, 1943

Rehearing Denied July 3, 1943.

Appeal from Circuit Court, Dade County; Ross Williams Judge.

Loftin Calkins, Anderson & Scott, of Miami, for appellants.

Evans Mershon & Sawyer, W. O. Mehrtens, and M. L. Mershon, all of Miami, and William W. Muir, of Miami Beach, for appellees.

PER CURIAM.

The Miami Beach Improvement Company, a Florida corporation, came into existence during the year 1912, and accepted title to a tract of land, containing ocean front property, situated in Dade County, Florida, on which a considerable portion of the City of Miami Beach, Florida, was later constructed. The lands were wild and unimproved, and were later surveyed and subdivided into lots, blocks, streets and drives, and on October 1, 1912, a map or plat of this subdivision was recorded in Dade County, Florida. An inscription appearing on the recorded plat or map is viz:

'Map

of the

Ocean Front Property

of

The Miami Beach Improvement Co.

Riparian rights with

Boulevard, walks and beach

Reserved for Public.'

On December, 2, 1912, a resolution of the directors of the corporation authorized the filing of a second plat or map of the property and appearing therein is language viz:

'That said company does hereby dedicate to the perpetual use of the public the streets, avenues, drives, and alleys and all riparian rights and submerged land adjacent to and abutting upon any of said streets, avenues, drives or alleys wherever the said streets, avenues, drives or alleys adjoin the Atlantic Ocean, said Indian Creek or said Lake, as shown by said map;

'That said company does hereby also dedicate to the perpetual use of the public the right to erect and maintain an elevated board walk parallel with said low water line of said Ocean, extending across said real estate hereinabove described, from South to North, from a point where the North line of Ocean Avenue, as shown by said map, if extended, would intersect said low water line of said Atlantic Ocean to the South Line of lot numbered one (1) of Block numbered eleven (11), as shown by said map.'

On January 13, 1913, the Miami Beach Improvement Company conveyed to the City of Miami 'three blocks', inclusive of the 'Ocean Front Strip', as a public park and recreation ground. On May 3, 1920, the City of Miami re-conveyed the property to the plaintiff below (Miami Beach Improvement Company), the town of Miami Beach having been organized in the interim (March 26, 1915). On August 9, 1920, plaintiff conveyed the identical property to the City of Miami Beach, and the conveyance contained a 'reverter clause' as previously appeared in the conveyance to the City of Miami.

On February 10, 1916, a third map or plat was filed and the drive from 23rd Street to 29th Street was straightened and named 'Miami Beach Drive'. Pertinent provisions therein are viz:

'That the said Company does hereby dedicate to the Perpetual use of the public, the streets, avenues, drives and alleys, and all riparian rights and submerged lands abutting upon any of said streets, avenues, drives or alleys, wherever the said streets, avenues, drives, or alleys, adjoin the Atlantic Ocean, Indian Creek, or Lake as shown on the attached map. That the said Company does hereby also dedicate to the perpetual use of the public the right to construct and maintain a public walk, running parallel with the Ocean Front, from the South line of Block B to the South line of Lot 1 of Block 11, as shown on the attached map.'

Located on these maps or plats is a parcel of land approximately 3,900 feet in length, north and south, along the ocean front, with a depth of 75 to 150 feet from the eastern boundary of Miami Beach Drive to high water mark of the ocean. The width or depth of the strip varies and is affected by high water tides, storms, etc. The ocean front strip as platted was not designated by lots or blocks but conveyances were made, from time to time, of various parts of the Ocean Front Strip and the deeds described such lands so conveyed by metes and bounds rather than by descriptions appearing on the maps or plats.

On November 3, 1920, the City of Miami Beach, by resolution, adopted the third map or plat. It likewise accepted the dedication offer of the Miami Beach Improvement Company of a fifty foot wide, public way, appearing or identified on the map or plat as Miami Beach Drive, along with the location of a board walk to be constructed on the ocean front. Improvements thereon were made by paving, constructing a wall, and planting trees and shrubbery. The Miami Beach Improvement Company conveyed or sold lots according to these maps or plats. The conveyances contained the language, 'together with all riparian rights and submerged lands adjacent or appurtenant thereto.'

Litigation over the years has arisen out of these real estate developments. See Twenty-Third Street Realty Corp. v. City of Miami Beach, 140 Fla. 257, 191 So. 464; Thomkins Crop. v. City of Miami Beach, 135 Fla. 360, 185 So. 422, as well as other suits. The factual background of this suit would support other recitals but our efforts here have been restricted to the pertinent facts absolutely necessary to develop the issues in controversy between these litigants. We find the record voluminous but well prepared; the briefs are exhaustive and reflect many days of study and research and we have been favored with able oral argument at the bar of this court by industrious counsel representing the respective parties.

On December 8, 1938, the Circuit Court of Dade County, Florida, entered an order restraining the City of Miami Beach, and its city officials, from asserting a claim of any easement or other right, title or interest antagonistic to the Miami Beach Improvement Company, owner in fee simple of that part of the 'Ocean Front Strip' described viz:

'That tract or strip of land bounded on the West by Miami Beach Drive and on the East by the Atlantic Ocean, and lying between the North and South Boundary lines of Block 5 extended Eastward to the Atlantic Ocean, with all riparian rights appurtenant thereto, according to the Amended Plat of the Ocean Front Property of The Miami Beach Improvement Company recorded in Plat Book 5, pages 7 and 8, of the Public Records of Dade County, Florida.'

In a joint and several answer the defendants alleged that the plaintiff had perpetually dedicated the Ocean Front Strip to the public and acceptance thereof made in behalf of the public; that the public had acquired a prescriptive right in the Ocean Front Strip and by counter claim sought a decree perpetually restraining the plaintiff from asserting an alleged exclusive ownership and the exclusive right to use the Ocean Front Strip, supra. The restraining order was entered by the late Honorable H. F. Atkinson, Circuit Judge, and considerable testimony as adduced by the parties was heard by him, but his death occurred prior to the completion of the taking of the evidence and the entry of a final decree, and the case was completed by the Honorable Ross Williams, Circuit Judge. The final decree so entered made findings of fact and made permanent the restraining order so entered, and an appeal therefrom has been perfected here.

The title or ownership of the property is not involved. The title or ownership of the property is admitted to be in the Miami Beach Improvement Company, subject to its outstanding agreement to sell. The answer and counterclaim of the City of Miami, broadly speaking, presented two issues viz: (a) Was there a dedication of the Ocean Front Strip to the public by any one of the three maps or plats, that is, was in the intention of the plaintiff in drafting and recording the plats to dedicate to the public use the Ocean Front Strip, of which a part is here involved, and if so, was such offer of dedication accepted by the public? (b) Has the public acquired a prescriptive right in the Ocean Front Strip, that is, has the public for twenty years prior to the filing of the bill continuously, openly, notoriously and adversely, under claim of right and not in recognition of, or subservient to, any claim of private ownership, used the said Ocean Front Strip? These are affirmative defenses and the burden of establishing each, under our system, was on the defendant below. See Baylarian v. Tunnicliffe, 105 Fla. 484, 141 So. 609, 144 So. 844; City of Tarpon Springs v. Smith, 81 Fla. 479, 88 So. 613; Lonergan v. Peebles, 77 Fla. 188, 81 So. 514.

The courts of Florida have defined a common law dedication as a setting apart of land for public use, and to constitute such a dedication there must be an intention by the owner clearly indicated by his words or act to dedicate the land to the public use. Where an express or implied dedication is relied on, the intention of the owner to set apart the lands for the use of the public is the foundation and essence of every dedication. See Florida East Coast R. Co. v. City of Miami, 79 Fla. 539, 84 So. 726. The act of dedication is affirmative in character, need not be by formal act or dedication, may be by parol, may result from the conduct of the owner of the lands dedicated, and may be manifested by written grant, affirmative acts or the permissive conduct of the dedicator. The mere fact of user by the public for an extended period without the consent or objection of the owner does not show an intent to dedicate. See City of Palmetto v. Katsch, 86 Fla. 506, 98 So. 352.

It is necessary to show, so as to constitute dedication at common law, that there is an intent on the part of the proprietor of the land to dedicate the same to public use; there must be an acceptance by the public, and the...