City of Palmetto v. Katsch

• Decision Date: 28 November 1923
• Citation: 86 Fla. 506,98 So. 352
• Parties: CITY OF PALMETTO v. KATSCH et al.
• Court: Florida Supreme Court

98 So. 352

86 Fla. 506

CITY OF PALMETTO v. KATSCH et al.

Florida Supreme Court

November 28, 1923

Suit by the City of Palmetto, a municipal corporation, against Lucretia A. Katsch and others to foreclose assessment liens. Judgment for defendants, and plaintiff appeals.

Affirmed.

Syllabus by the Court

SYLLABUS

What brought up by appeal from interlocutory order or final decree, stated. An appeal from an interlocutory order brings up nothing but the specified order, but an appeal from a final decree brings up all interlocutory orders for consideration.

Mode of acquiring lands, stated. A municipality in this state may acquire lands for public purposes by grant, dedication condemnation, or prescription.

Intention of owner essence of dedication. Whether an express or an 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.

Dedication may be manifested by affirmative act or permissive conduct. The act of dedication is affirmative in character and may be manifested by written grant, affirmative acts, permissive conduct, or any other appropriate manner in which the owner sees fit to indicate a present intention to appropriate his lands to public use.

When mere user by public constitutes only a license, stated. Mere user by the public, although long continued, should be regarded as a license only revocable at the pleasure of the owner, where it does not appear that any public or private interests have been acquired upon the faith of the supposed dedication, which would be materially impaired if the dedication were revoked.

Mere user by public does not show intention to dedicate. The mere fact of use by the public for an extended period, without the consent or objection of the owner, does not show an intention to dedicate.

Municipality cannot take property except by due process of law. Property ownership is one of the most sacred rights protected by the Constitution, and no municipality has a right to deprive one of such ownership except by due process of law.

Declaring streets opened does not authorize entry as against private rights. A town council may declare certain streets to exist and order that they be opened, but such declaration cannot give the right of entry for that purpose against private rights asserted on the basis of ownership possession.

Assessment certificates for street improvements prior to establishment of street void. Assessment certificates issued against abutting property for street improvement prior to the acquirement of the right of way for, and the legal establishment of, the street, are void.

Appeal from Circuit Court, Manatee County; M. A McMullen, judge.

COUNSEL

W. T Harrison, of Palmetto, for appellant.

H. S. Glazier, of Tampa, and Dewey A. Dye, of Bradentown, for appellees.

OPINION

TERRELL J.

The city of Palmetto, a municipal corporation, brought suit against Lucretia A. Katsch and Lula M. Hicks to foreclose four assessment liens claimed by reason of the construction, grading, and paving of Main and Elm streets where they traverse lands of the said Katsch and Hicks situated about the point of intersection thereof in the said city of Palmetto.

The suit of the complainant is resisted on the ground that at the time the assessments were laid and the certificates issued the city of Palmetto was without authority to construct, grade, or pave the said streets, because no right of way over and across the lands of the defendants had ever been acquired; that the construction of said streets across their lands had never been authorized by defendants; and that the complainant was not legally empowered to open and improve the said streets.

On the taking of testimony the court below entered a final decree finding the equities in favor of the defendants and adjudging the four certificates illegal and void and canceling same as clouds on the title of the lands of the defendants described therein. From this order appeal was taken.

There was a demurrer to the bill of complaint, and a motion to strike certain parts of defendants' answer, and on argument both were overruled by the court. Appellees contend that this being an appeal from a final decree, and no appeal having been taken from the order of the court overruling the said demurrer and motion, such orders cannot be assigned as error here. This contention is not well founded, as this court has repeatedly held that while an appeal from an interlocutory order brings up nothing but the specified order, yet an appeal from a final decree brings up all interlocutory orders for consideration. Burr v. Powell, 63 Fla. 379, 58 So. 29; McCall v. Lee, 66 Fla. 14, 62 So. 902.

Appellant assigns several grounds of error, but they may all be resolved into two primary questions to be answered by this court, viz.: (1) At or prior to the time the assessments in question were laid, had the city of Palmetto acquired title to the right of way over defendants' lands described in said certificates? (2) Were the assessments for street improvements against the lands of defendants described in said certificates legally made?

In this country a municipality may acquire lands for public purposes by grant or dedication, condemnation, or prescription. The city of Palmetto in the case at bar bases its claim to the right of way over defendants' lands at the intersection of Main and Elm streets as described in the certificates in question upon a grant or dedication by use. No claim is made on the basis of condemnation or prescription, and no testimony is submitted to support such a claim.

In Florida East Coast Ry. Co. v. City of Miami, 79 Fla. 539, 84 So. 726, this court held that 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 the public use, and an acceptance by the public of the dedication. This seems to be the general rule, and whether an express or an 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. Kirkland v. City of Tampa, 75 Fla. 271, 78 So. 17; McGourin v. Town of De Funiak Springs, 51 Fla. 502, 41 So. 541; Gentlemen v. Soule, 32 Ill. 271, 83 Am. Dec. 264; Manderschid v. City of Dubuque, 29 Iowa, 73, 4 Am. Rep. 196; Lee v. Lake, 14 Mich. 12, 90 Am. Dec. 220; note 11 L. R. A. 57; note 27 Am. Dec. 562; California Nav. & Imp. Co. v. Union Transp. Co., 126 Cal. 433, 58 P. 936, 46 L. R. A. 825; Town of Marion v. Skillman, 127 Ind. 130, 26 N.E. 676, 11 L. R. A. 55; Shanline v. Wiltsie, 70 Kan. 177, 78 P. 436, 3 Ann. Cas. 140; State to Use of James v. County Com'rs of Kent County, 83 Md. 377, 35 A. 62, 33 L. R. A. 291; Warren v. Press of Jacksonville, 15 Ill. 236, 58 Am. Dec. 610; Edwards & Walsh Const. Co. v. Jasper County, 117 Iowa, 365, 90 N.W. 1006, 94 Am. St. Rep. 301; 8 R. C. L. 890; 4 McQuillan on Municipal Corporations, 3239; 2 Tiffany on Real Property (2d Ed.) 1862; Harper v. State, 109 Ala. 66, 19 So. 901; City of Denver v. Jacobson, 17 Colo. 497, 30 P. 246; City of Hartford v. New York & N.E. R. Co., 59 Conn. 250, 22 A. 37; Swift v. Mayor, etc., of Lithonia, 101 Ga. 706, 29 S.E. 12; Hayden v. Stone, 112 Mass. 346; Provident Trust Co. v. City of Spokane, 63 Wash. 92, 114 P. 1030; Lynchburg Traction & Light Co. v. Guill, 107 Va. 86, 57 S.E. 644.

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 a written grant, affirmative acts, or permissive conduct of the dedicator. In fact, any manner in which the owner sees fit to indicate a present intention to appropriate his lands to public use meets the requirements of the law.

The means generally exercised to express one's purpose or intention to dedicate his lands to the public use are by a (1) written instrument executed for that purpose (2) filing a plat or map of one's property designating thereon streets, alleys, parks, etc.; (3)...