City of Miami v. J. C. Vereen & Sons, Inc.

• Decision Date: 30 May 1978
• Docket Number: No. 77-866,77-866
• Citation: 359 So.2d 533
• Court: Florida District Court of Appeals
• Parties: CITY OF MIAMI, a Municipal Corporation, Appellant, v. J. C. VEREEN & SONS, INC., a Florida Corporation, Appellee.

Page 533

359 So.2d 533

CITY OF MIAMI, a Municipal Corporation, Appellant, v. J. C. VEREEN & SONS, INC., a Florida Corporation, Appellee.

No. 77-866.

District Court of Appeal of Florida,Third District.

May 30, 1978.

George F. Knox, Jr., City Atty., and G. Miriam Maer, Asst. City Atty., for appellant.

Prunty, Ross, Deloach & Olsen, Miami, for appellee.

Before HENDRY and HUBBART, JJ., and CHARLES CARROLL (Ret.), Associate Judge.

PER CURIAM.

The appellee, which was the plaintiff below, moved for and obtained a judgment on the pleadings, cancelling a dedication deed made by it to the City of Miami. The City appealed.

In 1953 the appellee, owning property located on the east side of North Miami Avenue, between third and fourth streets, sought a variance to permit certain store fronts to encroach three feet onto City property, for 75 feet of the 300 foot frontage of its property. The application for variance was rejected on its merits, but the City agreed to grant the variance upon Vereen agreeing to dedicate to the City a strip of its land bordering on North Miami Avenue, consisting of said 75 feet of frontage, having a depth of 5 feet.

On July 13, 1953 the parties entered into an agreement which recited passage of an ordinance granting the above-mentioned variance, and the dedication to the City of the 75 X 5 foot strip located in the "zoned street area", and which recited that the appellee-owner could retain possession of said deeded strip until the street abutting that block should be widened by the City, at which time the encroachments made pursuant to the variance would be removed by the appellee, with appellee to post a $500.00 bond to guarantee removal of the encroachments.

On the same date appellee made and delivered to the City a special warranty deed to said 75 X 5 frontage strip, which recited receipt by the grantor of "TEN ($10.00) DOLLARS and other good and valuable considerations". As in the contract, the deed provided that possession would not pass to the grantee City "until said City widens North Miami Avenue" abutting said 75 X 5 foot strip, and contained therein was a covenant by the grantor to remove said encroachments as agreed. The deed contained a provision that if the City "should repeal its ordinance creating the setback on said North 75 feet of Lot 10, Block 84 North, of City of Miami" (citing the plat recordation) the property would revert to the grantor.

This action was filed by Vereen against the City on May 3, 1976. Prior to that time the said ordinance prescribing setback to accommodate street widening had not been repealed, and the street had not been widened by the City. Upon disclosing the above facts the complaint sought relief on the asserted ground that failure of the City to widen the street, during the time interval involved, amounted to abandonment by the City.

By an amendment to the complaint, as an added ground for the relief prayed for, the plaintiff-appellee claimed it was entitled to reconveyance of the property by virtue of the provisions of Sections 255.22 and 255.23, Florida Statutes (1975). Those sections provide that in the event an owner of adjoining land conveys real property, without receipt of valuable consideration, to a municipality or county for a specific purpose or use, if the latter shall fail to use the property for such purpose for a period of 60 consecutive months, then upon written demand of the grantor or his successor in interest, provided such person is then the owner of the adjoining land, the property may be reconveyed to such abutting land owner by quit claim deed. It is further provided therein that when the purpose for which the property was conveyed required "physical improvement or construction on such property or the maintenance thereof" failure of the municipality or county to perform such, for the said period, shall be conclusively deemed to be abandonment thereof for the purpose for which it was conveyed.

The answer filed by the City admitted the making the of written agreement and the deed, and admitted that the street had not been widened, but denied abandonment, and denied the allegation that no steps had been taken with reference thereto, averring that for several years the City had been planning to widen North Miami Avenue; that the widening of the street is intended to be made in the future, when it will be made necessary by increased growth of the City and by reason of construction of a planned Convention Center and downtown Government Center. In answer to the amendment to the complaint by which plaintiff invoked the statutory sections cited above as a basis for recovery, the City averred that it gave consideration for the deed, citing the granting of the variance permitting encroachment upon City property as constituting valuable consideration.

The function of a motion for judgment on the pleadings is the same as a former common law demurrer. The well-pleaded allegations of the party opposing the motion are to be taken as true, and all allegations of the moving party which have been denied are taken as false. Wagner v. Wagner, 196 So.2d 453 (Fla. 4th DCA 1967). Such a motion raises questions of law arising on the pleadings. Miller v. Eatmon, 177 So.2d 523 (Fla. 1st DCA 1965). Even when a motion for judgment on the pleadings is treated as a motion for summary judgment, it is to be heard wholly on the pleadings, without aid of facts dehors the pleadings. Reinhard v. Bliss, 85 So.2d 131 (Fla.1956); Butts v. State Farm Mutual Automobile Ins. Co., 207 So.2d 73 (Fla. 3d DCA 1968). The procedure is designed to be primarily for application of the law to the facts. Riviera Printing Co. v. Hessler's, Inc., 109 So.2d 778 (Fla. 3d DCA 1959...