City of Miami v. Eastern Realty Co.

• Decision Date: 22 August 1967
• Docket Number: No. 66--325,66--325
• Citation: 202 So.2d 760
• Parties: CITY OF MIAMI, Appellant, v. EASTERN REALTY COMPANY, Inc., Appellee.
• Court: Florida District Court of Appeals

Page 760

202 So.2d 760

CITY OF MIAMI, Appellant, v. EASTERN REALTY COMPANY, Inc., Appellee.

No. 66--325.

District Court of Appeal of Florida, Third District.

Aug. 22, 1967.

Rehearing Denied Oct. 17, 1967.

Jack R. Rice, Jr., City Atty., Miami, for appellant.

Edward C. Vining, Jr., and Milton R. Adkins, Miami, for appellee.

Before CHARLES CARROLL, C.J., and BARKDULL and SWANN, JJ.

CHARLES CARROLL, Chief Judge.

The City of Miami, one of the defendants in a suit to quiet title, appeals from an adverse final decree.

The circumstances leading up to the litigation are revealed in the record. On May 5, 1914, Walter E. Flanders, joined by his wife, executed a subdivision plat which was recorded in the public records of Dade County in Plat Book 2 at page 92. The land involved was rectangular in shape, approximately 700 feet in north and south dimension by 1,500 feet in east-west dimension, with its easterly boundary on Biscayne Bay. The property was located in the city of Miami, in the area of what are now Northeast 38th and 39th Streets. That first plat contained a dedication as follows: 'It is understood that in filing this plat for record, that the streets or driveways or parks are not dedicated in any wise to the public, for the use and benefit of the lot holders of the lots as shown on said plat, and in case all of the said lots should revert or come into the possession of the grantors, their heirs or assigns, the said streets, alleys and parks may be closed or other disposition made of same.'

On August 23, 1915, an amended plat was executed, and recorded in Plat Book 2 at page 107. It contained a similar provision relating to dedication. A copy of part of the amended plat, showing the easterly portion of the subdivision is inserted.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

Thereafter, On March 22, 1916, Flanders and his wife executed a second amended plat, which was recorded in Plat Book 5 at page 25. The provision in that final plat relating to dedication contained some additional wording, and read as follows:

It is understood that in filing this plat for record, that the streets or driveways, or parks are not dedicated in any wise to the public but for the use and benefit of the holders of the lots shown on said plat, provided however that the walks and driveways as shown on this plat between lots B, C, D, E, 20 and 21 are for the use and benefit of the holders of the lots B, C, D, E, 20 and 21, as shown on said plat and are not in any wise dedicated to the public or other lot owners. In case all the lots on this plat should revert or come into possession of the grantors, their heirs or assigns, the said streets, alleys, driveways and parks may be closed or other disposition made of same.' There is set out hereinbelow a copy of that part of the Second Amended Plat showing the easterly portion of the subdivision as platted.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

With reference to the Second Amended Plat, attention is directed to the narrow strip shown thereon lying between an unnamed street and Biscayne Bay, extending from a point near the south border of South Drive, on the south, to the South border or edge of North Drive, on the north. That area will be referred to in his opinion as the 'park strip.'

On October 7, 1919, Flanders (joined by his wife) and Flanders Realty Company by Flanders as its president executed an instrument amplifying the dedication made in the plats, specifically indicating the above mentioned park strip as having been so dedicated. That instrument was recorded on January 2, 1920, in Deed Book 203 at page 389, and because of its importance in this case, the instrument is set out in the margin in full (omitting the acknowledgments ¹).

All of the lots in the subdivision were duly sold, and they have continued to be owned and possessed by the original purchasers or their successors in interest. The park strip has remained the same in area and location, and throughout the years certain of the lot owners have used it for the purpose for which it was dedicated. The street lying just west of the park strip, and which connects North Drive and South Drive, has remained as platted. It is now known as Northeast Sixth Avenue. The city paved that street area in 1947 and has continued to maintain it as a city street. Likewise the two east-west streets shown on the Second Amended Plat have been maintained by the city as public streets. The one designated as South Drive is a continuation of and now a part of Northeast 38th Street, a public street which has been extended eastward to connect with the Julia Tuttle Causeway. North Drive shown on the plat, is an extension of Northeast 39th Street, having its eastern terminus at Biscayne Bay. The city has installed sewer manholes, storm sewers, and overflow lines in the maintenance of the park and of the bordering streets. The maintenance by the city of the park strip as a park area has extended for a period of more than twenty years, consisting of cutting grass, trimming trees and shrubs, removing debris therefrom and removing debris collected against the seawall by the ebb and flow of the tide. In addition to use of the park strip by lot owners, there has been public use thereof over that period. No ad valorem taxes have been levied on the dedicated streets or park strip.

Walter E. Flanders and his wife Hazel M. Flanders were divorced on April 16, 1921. Flanders died on June 16, 1923, a resident of Cook County, Illinois.

Forty years later, in the fall of 1963, when the United States Corps of Engineers was to perform dredging operations on the Intracoastal Waterway in Biscayne Bay, the city negotiated with that government agency to have spoil from the dredging deposited so as to fill in the submerged lands between the shore and the County Bulkhead Line at certain locations, for the purpose of establishing public parks thereon. One such location was the said area of submerged lands adjacent to the park strip and the end of Northeast 39th Street, extending into the bay a distance of approximately 400 feet, for use as a public park in connection with and in enlargement of the park area represented by the Magnolia Park subdivision dedication, the enlarged park to be known as Magnolia Park.

On October 16, 1963, the city passed a resolution 'accepting' the dedication of the park strip, as a City of Miami Park, on the assumption that the dedication thereof had been to the public.

In furtherance of its plan to create such park areas in the bay, including the area adjacent to the subject park strip, the city caused a noticed hearing to be held on December 4, 1963, before the City Planning and Zoning Board to consider the project. At such hearing no objection was interposed by the plaintiff corporation or by anyone on behalf of the subdivider or his successors in interest. The board reported favorably, by a resolution which included the following:

'NOW, THEREFORE BE IT RESOLVED, that the Planning and Zoning Board of the City of Miami recommends the approval of the proposed plan for the development of the municipal parks in the Biscayne Bay area between McArthur Causeway and 79th Street Causeway, utilizing the fill which will be available from the Federal Waterway Improvement Project.'

Also on December 4, 1963, the city passed a resolution requesting the Trustees of the Internal Improvement Fund to transfer to the city, for public park purposes, title to the submerged lands from the shoreline (seawall), between Northeast 38th and 39th Streets, to the County Bulkhead Line; and to grant to the Federal Government an easement at the designated location to deposit thereon spoil dredged from the Intracoastal Waterway.

On January 8, 1964, the Trustees of the Internal Improvement Fund executed an instrument which did not transfer title to the submerged lands to the city as the latter had requested, but which dedicated to the City of Miami the said area of submerged lands as therein described. The dedication thereof to the city was made expressly for public park purposes, and included certain conditions as follows:

'The above described lands shall be used for public park purposes only, under the supervision and control of the City of Miami, subject to the following provisions, to-wit:

'In the event the said City of Miami shall (1) use said land for other than public purposes, or (2) for a period of three consecutive years shall fail and neglect to maintain and use the same for said purposes, the dedication hereby made shall at the option of said Trustees, be subject to termination upon sixty days notice in writing by the Trustees to said City.'

Thereupon, by a resolution dated February 5, 1964, the city allocated $6,800 from its Capital Improvement Fund to defray the excess cost to the government for transporting and depositing the fill (spoil) on the designated area. That sum was disbursed by the city for the purpose intended, and by August of 1964 the submerged land area involved was filled in as planned, and the city performed certain work thereon, such as leveling the fill.

Meanwhile, during the period that the city was planning to construct such public park and was taking steps to accomplish its purpose, a party or parties whose identity in that connection was not shown, acquired the subdivider's old corporation, Flanders Realty Company (the name of which has been changed to Eastern Realty Company, Inc.) and proceeded to obtain deeds to the corporation from certain of the heirs or devisees of the subdivider Walter E. Flanders. One such deed to the corporation was obtained in September of 1963, one in October of 1963, and others were obtained in December of 1963 and later, the last being a quit-claim to the corporation dated March 6, 1965 from a successor trustee under the will of Flanders.

This suit was filed on February 15, 1965, by the said Eastern Realty Company, Inc. The initial complaint...