City of Miami v. Florida East Coast Ry. Co.

• Decision Date: 21 April 1920
• Citation: 79 Fla. 539,84 So. 726
• Parties: CITY OF MIAMI v. FLORIDA EAST COAST RY. CO. FLORIDA EAST COAST RY. CO. v. CITY OF MIAMI.
• Court: Florida Supreme Court

84 So. 726

79 Fla. 539

CITY OF MIAMI v. FLORIDA EAST COAST RY. CO.

FLORIDA EAST COAST RY. CO. v. CITY OF MIAMI.

Florida Supreme Court

April 21, 1920

Error to Circuit Court, Dade County; H. Pierre Branning, Judge.

Ejectment by the City of Miami, a municipal corporation, against the Florida East Coast Railway Company. Judgment for plaintiff for the recovery of an easement for park purposes and possession of described property, subject to an easement of ingress and egress in defendant and subject to its right of way, and plaintiff and defendant each bring error. Reversed on defendant's writ of error, and cause remanded for further proceedings.

Syllabus by the Court

SYLLABUS

A common-law 'dedication' is the setting apart of land for public use, and to constitute it there must be an intention by the owner, clearly indicated by his words or acts to dedicate the land to public use, and an acceptance by the public of the dedication. An offer to dedicate land to public use may be revoked by the owner at any time before it has been accepted by the public.

The platting of land and the sale of lots pursuant thereto creates as between the grantor and the purchasers of the lots a private right to have the space marked upon the plat as streets, alleys, parks, etc., remain open for ingress and egress and the uses indicated by the designation; but, so far as the public is concerned, such acts amount to a mere offer of dedication which must be accepted before there is a revocation to complete the dedication.

To constitute a dedication at common law there must be an intention 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 proof of these facts must be clear satisfactory, and unequivocal.

The burden of proving acceptance of an offer to the public to dedicate lands for streets, alleys, and parks is upon the county or municipality asserting it.

A common-law plat has no effect as a conveyance, and an offer to dedicate thereby created may be revoked by the owner or his grantee at any time before acceptance by the public.

Where a common-law offer of dedication has been made and has not been accepted by or for the public, a conveyance before acceptance of the property so offered may constitute a revocation as to the public of the offer to dedicate.

Where a plat is recorded showing the dedication of land in a city bordering on a bay for a park, the dedicators reserving all riparian rights adjacent to the land, and, before the acceptance of the dedication by the public, the dedicators convey the land with riparian rights to a railroad company which company constructs some of its operating facilities on portions of the land and actually occupies and uses for railroad purposes such portions for years before acceptance of any nature of the dedicated land for park purposes by or for the public, the municipality cannot recover from the company the portions of the land so occupied and used by the company or the lands covered by the reserved riparian rights below high-water mark at the time of the filing of the dedication plat.

COUNSEL A. J. Rose, of Miami, for City of Miami.

Armstead Brown, of Miami, A. V. S. Smith, of Jacksonville, Shutts Smith & Bowen, of Miami, and Scott M. Loftin, of Jacksonville, for Florida East Coast Ry. Co.

OPINION

WHITFIELD J.

The declaration filed herein is as follows:

'City of Miami, a corporation, by Hudson, Wolfe & Cason and Price & Eyles, its attorneys, sues Florida East Coast Railway Company, a corporation, in an action of ejectment, because the defendant is in possession of a certain tract or parcel of land, situate, lying and being in Dade county, Florida, described as follows, to wit:

'Beginning at a point in the corporate limits of the city of Miami, Florida, where the center line of Third street, if extended easterly across the boulevard in the city of Miami would intersect the east boundary line of said boulevard; thence run east along a continuation of said center line of Third street to the low-water mark of Biscayne Bay; thence meander the low-water mark of Biscayne Bay in a southerly direction to the northern boundary line of what is known as the Terminal Dock; thence meander the low-water mark of Biscayne Bay eastward, along the northern boundary of said Terminal Dock to the northeast corner thereof; thence follow the low-water mark of Biscayne Bay from the northeast corner of said Terminal Dock to the southeast corner thereof; thence meander the low-water mark of Biscayne Bay west along the southern boundary of said Terminal Dock to the low-water mark on the shore; thence in a southerly direction along the low-water mark of Biscayne Bay to a point where the center line of Seventh street, if extended east would intersect same; thence west along said center line of Seventh street as extended as aforesaid, to the east boundary line of the boulevard, in the city of Miami; thence north along the east boundary line of said boulevard to the place of beginning; said land being otherwise described as follows:

'All that lot, tract, or parcel of land lying, being and situate in the city of Miami, Dade county, Florida, bounded on the west by the boulevard in said city; bounded on the north by an extension of the center line of Third street from the east boundary of the boulevard to the low-water mark of Biscayne Bay; bounded on the east by the low-water mark of Biscayne Bay, and bounded on the south by an extension of the center line of Seventh street from the eastern boundary of the boulevard to the low-water mark of said Bay; containing about five (5) acres of land, together with all riparian rights incident and appurtenant thereto; to which plaintiff claims title, and the defendant has received the profits of said land since the 9th day of May, 1905, of the yearly value of three thousand dollars ($3,000.00) and refuses to deliver possession of said land to the plaintiff, or to pay it the profits thereof.'

A plea of not guilty was filed. At the trial the words 'together with all riparian rights incident and appurtenant thereto' were by agreement stricken from the declaration. After all the evidence had been adduced, the following verdict and judgment thereon were directed, rendered, and entered by the court:

'We, the jury, find for the plaintiff and that the plaintiff, the city of Miami, is the owner of an easement for park purposes, and has a right of possession upon and over the following described property, to wit:

'Beginning at the point where the center line of Third street, if projected eastward to the bay, would intersect the eastern boundary line of Biscayne avenue, commonly called the boulevard, in the city of Miami, Florida; thence east along the center of Third street, if projected as aforesaid, to the waters of Biscayne Bay; thence meander the waters of Biscayne Bay southward to the northern boundary line of the present Terminal Dock of the Florida East Coast Railway Company; thence westward along the north line of said Terminal Dock produced westwardly to a point fifty feet east of the eastern boundary line of Biscayne avenue, commonly called boulevard; thence southward along a line parallel with and fifty feet distant from the eastern boundary line of the boulevard, to the southern boundary line of the present Terminal Dock of the Florida East Coast Railway Company, produced westwardly; thence eastward along an extension of the southern boundary line of said Terminal Dock of the defendant company to the waters of Biscayne Bay; thence meander the waters of Biscayne Bay southward to the point where the center line of Seventh street, if projected eastwardly, would intersect the water line of Biscayne Bay; thence west along such extension of the center line of Seventh street, to the eastern boundary line of Biscayne avenue, commonly called boulevard; thence northward along the eastern boundary line of said Biscayne avenue, commonly called boulevard, to the place of beginning.

'We also find that the above easement of the city of Miami in the land above described is subject to an easement for the purposes of ingress and egress one hundred seven and one-half (107 1/2) feet wide, north and south, as at present located, and occupied by the railroad tracks of the defendant company, as they now enter and cross Bay Park, and the boulevard.

'And we further find that the above easement of the city in the lands heretofore described is subject to a right of way of the defendant 16 feet wide north and south, from the east line of the boulevard to the west line of the Terminal Dock, and lying parallel with and immediately south of the north line of the Terminal Dock, produced westwardly, across Bay Park.

'We further find that the boulevard or Biscayne avenue, lying west of the park strip in question, is fifty (50) feet wide.

'We furthermore find that the plaintiff is entitled to no dollars ($.0) damages.

'We also find that the defendant is entitled to the Terminal Dock, and the fill on which same is constructed as now built and established, lying between Bay Park and the waters of Biscayne Bay, the same being 704 feet long north and south.

'We furthermore find that the plaintiff is entitled to recover of and from the defendant, all costs of court herein expended.

'So say we all.

'A. V. Brown, Foreman.

'It is thereupon ordered and adjudged that the plaintiff, the said city of Miami, do have and recover from the defendant, the Florida East Coast Railway Company, an easement for park purposes and possession of the following described property, to wit:

'Beginning at the point where the center line of Third street, if projected eastward to the bay, would intersect the eastern...