Earle v. McCarty
| Decision Date | 02 February 1954 |
| Citation | 70 So.2d 314 |
| Parties | EARLE v. McCARTY et al. |
| Court | Florida Supreme Court |
Jack Kehoe, Miami, and Louis Vernell, Miami Beach, for appellant.
Richard W. Ervin, Atty. Gen., and W. R. Culbreath, Special Asst. Atty., Miami, for trustees of the Internal Improvement Fund of Florida.
James H. Walden, Dania, for City of Dania.
T. D. Ellis, Jr., Ellis & Spencer and Stanley M. Beckerman, Hollywood, for Hollywood, Inc., a Florida Corporation.
Judson A. Samuels, Hollywood, for City of Hollywood, appellees.
This is an appeal from the chancellor's order dismissing the second amended bill of complaint filed by the appellant against the Trustees of the Internal Improvement Fund, Hollywood, Inc., a corporation, and the cities of Dania and Hollywood. The appellant sued for himself and others who owned lots in Block 207 in Hollywood Central Beach subdivision, a plat of which was recorded in 1924.
In the tract, subdivided by Home Seekers Realty Company, was Block 207 which extended along the Atlantic Ocean for three thousand and six hundred feet and consisted of seventy-two lots fifty feet wide and varying in depth from one hundred to one hundred fifty feet. The western boundary of the lots was a street designated 'Beach Drive' and beyond the drive was an irregular strip of land, without designation, separating the street from the waters of New River Sound. In short the lots were bounded on the east by the ocean and on the west by the drive; between the drive and the sound was a narrow strip of land unnamed on the plat. We have used the past tense advisedly as will be seen when the facts alleged are digested.
We go now to the bill of complaint for the additional facts relied upon for relief.
Beach Drive which was 'the only route of ingress and egress to and from each of said lots' was dedicated by the subdivider 'to the perpetual use and benefit of the public', but was never opened or defined, and never accepted by formal act of the City of Hollywood; nor was it 'accepted by user, by the public' or anyone else. Also, it was 'wild and unimproved.'
It was alleged that the strip of land between the street and the sound was also offered for dedication to the perpetual use and benefit of the public and that this piece of land was so small as to be of no 'practical use or service' and was the result only of the subdivider's desire to make the boundary of the street a straight line. The bald statement that the narrow strip of land was also dedicated is made despite the lack of any designation on the plat and it is followed by an averment that the subdivider, in 1927, executed a deed conveying to the City of Hollywood the 'streets, drives, boulevards, alleys, ways, walks, avenues and parkways' shown by the plat, to which we have already referred. We have held that an unlabeled space appearing on a plat 'indicates a reservation rather than a dedication', City of Tarpon Springs v. Smith, 81 Fla. 479, 88 So. 613, 620, so the appellant's position is not sustained by the plat. And the deed gives him no support because the land unmarked cannot be brought within the description just quoted from that instrument.
The pleader on the bases of these averments then resorts to a principle of law he claims is pertinent, namely, that where a dedicated street is not accepted by act or user, or is abandoned, the title reverts to the abutting owners, and he asserts that he therefore owns the 'drive' in front of his property 'together with the narrow, meandering strip of land lying in the west thereof * * *.' He links the charge that the street was not accepted with the charge that it was abandoned. This appears inconsistent because we cannot see how abandonment could occur unless it followed acceptance.
At this point in the analysis of the pleading we pause to say why we referred to the property in the past tense. All the lots involved in this suit have disappeared beneath the waters of the Atlantic Ocean, while accretion to the disputed land separating the street from the sound has given it sizeable proportions.
So appellant's reasoning as it is manifested in his bill now makes obvious the goal, or decree, toward which he is traveling. To become entitled to the accretion, he must extend his title to the property along water, making him an upland proprietor. His path in that direction is barred first by the street and next by the intervening strip. The former barrier has two aspects. Accepting for the moment the law he has stated he would be...
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