City of Tarpon Springs v. Smith

• Decision Date: 07 April 1921
• Citation: 88 So. 613,81 Fla. 479
• Parties: CITY OF TARPON SPRINGS et al. v. SMITH et al.
• Court: Florida Supreme Court

88 So. 613

81 Fla. 479

CITY OF TARPON SPRINGS et al. v. SMITH et al.

Florida Supreme Court

April 7, 1921

Rehearing Denied June 10, 1921.

Bill by H. J. Smith and another against the City of Tarpon Springs and others. Decree for complainants, and defendants appeal.

Affirmed.

Syllabus by the Court

SYLLABUS

Lands not covered by navigable waters nor included between ordinary high and low water mark subject to private ownership. Lands not covered by navigable waters and not included in the shore space between ordinary high and low water mark immediately bordering on navigable waters are the subject of private ownership, at least when the public rights of navigation etc., are not thereby unlawfully impaired.

Riparian rights are incident to street easement where street extends to navigable water. Riparian rights generally are incident to a street easement only when and at the opints where the street, by express provision or by intendment, extends to a navigable body of water.

Riparian rights incident to street easements held to exist at junction of water line and street line. Where a dedication plat shows that a street line at some points extends to and along the water line of a navigable body of water, and at other points the street lines depart from the water line and after encompassing considerable space again return to the water line, there may be riparian rights incident to the street easement at the points where the line of the street and the navigable water line coincide or join; but there may be under appropriate circumstances, no riparian rights incident to the street where the street and water lines do not interest, when it appears that the space delineated between the water line and the street line was not dedicated.

Though record insufficient for proper decree as to one party, rights of others may be expressly adjudicated. Where a municipality apparently has rights in an easement in land that is in controversy between private parties, but the record affords no sufficient data for a proper decree as to the city, the rights of the other parties may be expressly adjudicated without prejudice to the municipality. Nor is the state prejudiced by the decree.

Party asserting counterclaim by answer in equity has burden of proof. A party asserting a counterclaim by answer in equity as permitted by statute, has the burden of proof as to such counterclaim seeking affirmative relief upon averments of new matter.

Appeal from Circuit Court, Pinellas County; O. K. Reaves, judge.

COUNSEL

Whitaker, Himes & Whitaker, of Tampa, for appellants.

James F. Glen, of Tampa, and Leroy Brandon, of Clearwater, for appellees.

A bill was filed October 19, 1917, by H. J. Smith against William Powell Wilson and Lucy L. W. Wilson, his wife, and the city of Tarpon Springs, a municipal corporation, in which it is in substance alleged that the Lake Butler Villa Company, a corporation, being the owner of certain real estate, on April 28, 1883, 'made a plat of Tarpon Springs which was duly recorded'; 'that prior to the filing of the said plat the said Lake Butler Villa Company caused the premises platted to be surveyed and marked with stakes on the ground identifying the various blocks and lots as shown by the said plat, and block 54 was subdivided into various lots, as shown upon the said plat, including lot 2 on the north of said block, which is the one particularly involved in this controversy; that the said plat, among other things, shows a street called Anclote boulevard, 40 feet wide, and to the north of said Anclote boulevard it shows a parcel of land intervening between the said boulevard and the Anclote river which land, at the time of making the said plat, was low and swampy land, but land not covered by water at high tide, and intervened between the said Anclote boulevard as staked on the ground and the southern bank of Anclote river, the said strip of land so intervening between the northern boundary of Anclote boulevard and the high-water mark in Anclote river extending about 9 feet in width at the eastern extremity of the said lot 2 and 525 feet in width at the western extremity thereof;' that after the plat was filed for record, the Lake Butler Villa Company conveyed in fee simple to William Powell Wilson and Jessie Wilcox Wilson, his wife, lot 2, block 54, according to the plat, 'together with all the contiguous marsh on the Anclote river front'; that said conveyance constituted the grantees, husband and wife, 'tenants by entireties in the said property'; that the wife, Jessie Wilcox Wilson, died, so that the husband became the absolute owner in fee of the property; that William Powell Wilson afterwards subdivided lot 2, block 54, into lots and blocks, and caused a plat of said subdivision to be duly recorded, 'which plat * * * shows that the said strip of low and swamp land intervening between Anclote boulevard and the said Anclote river'; that after the recordation of the latter plat, William Powell Wilson made conveyances of lots 'by reference to said plat, but did not convey to such purchasers, or to any one, the low marsh land to the north of Anclote boulevard, or any portion thereof'; that in 1913 conplainant 'bargained with the said William Powell Wilson to purchase from him all of the lots in the said plat of which he continued to be the owner, including the low marsh land to the north of the said Anclote boulevard, and the said William Powell Wilson agreed to sell the said lots, together with the said marsh land, to your orator for the sum of $1,500, which was paid to the said William Powell Wilson, and thereupon the said William Powell Wilson, joined by his then wife, Lucy L. W. Wilson, for the purpose of conveying the said property to complainant, executed a warranty deed of conveyance embracing the lots of which he then remained the owner, included in the plat hereto, and in order to convey to complainant the low marsh land aforesaid to the north of Anclote boulevard, repeated in the said deed of conveyance the same words used in the deed of conveyance from the Lake Butler Villa Company to him, namely, 'together with all the contiguous marsh on the Anclote river front,' and by the use of the said words it was the intention and purpose of complainant and the said William Powell Wilson and Lucy L. W. Wilson, his wife, to convey to complainant in fee simple all the marsh land fronting on the Anclote river, which had been conveyed to the said William Powell Wilson and Jessie Wilcox Wilson by the aforesaid deed of conveyance from the Lake Butler Villa Company, and not merely to convey to complainant the low or marsh land on the Anclote river front contiguous to the lots remaining unsold described in the said deed of conveyance from the said William Powell Wilson and wife to complainant, a certified copy of which is hereunto annexed as 'Exhibit C' hereto, and hereby made by reference a part of this bill of complaint; that it was solely by reason of a mistake in the scrivener in drawing up the deed of conveyance last mentioned that the low or marsh land embraced therein was described as contiguous to the property described in the said deed of conveyance, and it was the mutual intention and purpose of your orator and the said William Powell Wilson and Lucy L. W. Wilson, his wife, that complainant by his purchase should acquire title to all of the low or marsh land on the Anclote river front contiguous to lot 2 of block 54 as the same was conveyed by the Lake Butler Villa Company to the said William Powell Wilson and Jessie Wilcox Wilson, his wife, and it was the intention and purpose of all parties that the words used in the deed to complainant should convey the same to complainant; that thereafter, to wit, on the 18th day of October, 1917, the Lake Butler Villa Company executed and delivered to complainant a deed of conveyance whereby it conveyed to complainant all of its right, title, and interest in that portion of Anclote boulevard abutting lot 2 of block 54 according to the original plat of Tarpon Springs, and also all riparian property to the north of Anclote boulevard in front of the said lot 2 of block 54; that complainant is now the owner of all the property and rights conveyed to him by the deed of conveyance last mentioned, and also in equity the owner of all contiguous marsh on the Anclote river front in front of lot 2 of block 54, according to the original map of Tarpon Springs; that in the year 1916 the city of Tarpon Springs caused Anclote boulevard to be curbed and paved and located the same by reference to the original stakes placed on the ground at the time the original map of Tarpon Springs was made, and the said street as so permanently located by the city of Tarpon Springs is shown by the plat, and leaves a strip of low or swamp land north of the north boundary of the said street outside the limits thereof as shown on the said plat, and the said city of Tarpon Springs in assessing the property abutting on the said street for the cost of such paving and curbing recognized that the property to the north of the north boundary of said street was property held in private ownership by assessing one-third of the cost thereof against such abutting property; that afterwards, to wit, on the 12th day of January, 1917, the defendant city of Tarpon Springs procured the defendants William Powell Wilson and Lucy L. W. Wilson, his wife, to execute and deliver to it a quitclaim deed undertaking to convey to it the tract of land lying and situated between the north boundary of the Anclote boulevard and the Anclote river, extending from the intersection of the east boundary of Athens street and the Anclote river in a westerly direction along the bank of the Anclote river to a point north of the intersection...