Helsley v. City of St. Petersburg, 3808

• Decision Date: 28 August 1963
• Docket Number: No. 3808,3808
• Citation: Helsley v. City of St. Petersburg, 156 So.2d 171 (Fla. App. 1963)
• Parties: O. L. HELSLEY and Thera M. Helsley, his wife, Appellants, v. The CITY OF ST. PETERSBURG, a municipal corporation of the State of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 171

156 So.2d 171

O. L. HELSLEY and Thera M. Helsley, his wife, Appellants, v.The CITY OF ST. PETERSBURG, a municipal corporation of the State of Florida, Appellee.

No. 3808.

District Court of Appeal of Florida, Second District.

Aug. 28, 1963.

Rehearing Denied Sept. 27, 1963.

W. K. Zewadski and Radford W. Smith, St. Petersburg, for appellants.

Harry I. Young and Carl R. Linn, St. Petersburg, for appellee.

ALLEN, Judge.

Appellants, defendants in proceeding for a declaratory decree, appeal a final decree for appellee, plaintiff below.Appellee instituted the proceedings to determine its rights in the use of certain waterfront property, property acquired in part by deed in 1917 and in part by filling adjacent submerged land.Appellants, owners of two cooperative apartments situated on land adjacent to the subject property, opposed the use proposed by the city.

In 1917, after some negotiation, the city acquired certain described 'water lots' from Marguerite Cook.The acquisition was by deed for consideration, the deed reciting inter alia,

'Subject however to the following covenants and agreements which shall be and remain forever binding upon the grantee herein and upon its assigns.Namely: No structure of any kind shall ever be constructed, erected or maintained by the grantee or its assigns, on Water Lot Number Ten (10) hereby conveyed, and no structures of any kind, except open pavilions necessary for rest or protection from weather shall ever be constructed, erected or maintained upon any part of the remaining premises hereby conveyed, and no structure of any kind upon any part of said remaining premises shall at any time be used for any commercial purpose whatever.These covenants shall be construed as running with the land and it is intended and agreed that said covenants and each of them shall be for the benefit of Marguerite Cook, her heirs, executors, administrators, devisees or assigns the present and future owners of Lots 13, 14, 15 and 16, in Block 78 and Lots 6 and 7 in Block 79, and Lots 3, 4, 5, 10, 11, 12, 13 and 14, in Block 96 of the town of St. Petersburg, Florida. * * *'

In the same year the city filled adjacent submerged land and in 1918, by Special Act of the Legislature, acquired title to the latter land from the State.The city's tract, both original and filled lands, was used as a park until 1962, when the city determined to use it as a parking lot for a new auditorium built nearby.Declaratory proceedings were instituted and appellants, who in 1958 had succeeded in title to adjacent land mentioend in the restrictive covenant, opposed the city's plan.The final declaratory decree declared the filled land free of the deed's restrictions and further declared that a parking lot was consistent with the restriction imposed on the land acquired by deed from Mrs. Cook.(The city disavows any intent to use this small tract as a parking lot--although under the terms of the decree they can.)

Appellants relied upon several legal theories in the lower court, but limit their argument here to a theory of estoppel, a theory predicated on allegations that the city, over a 35 year period, created and/or encouraged a belief that the subject property was dedicated and thus restricted to park purposes.

The lower court, in its final decree dated November 16, 1962, held:

'(2) That as of the date of the conveyance of the subject properties on September 15, 1917, such lands were submerged at mean high water as indicated in plaintiff's Exhibit 'D' of its Bill of Complaint.

'(3) That when Mrs. O. L. Helsley purchased her apartment in the Waterfront Park Corp., she had been told by the real estate agent who made the sale that the subject properties were dedicated for park purposes.

'(4) That the real estate agent who made these representations was not an agent of the plaintiff City, nor had any act of the plaintiff City induced such representations.'

The court then further stated:

'* * * that Marguerite Cook could by her conveyance to the City on September 15, 1917, restrict only the lands owned by her, which were the lands West of the aforesaid high water mark.Atlantic City vs. New Auditorium Pier Co. , 53 ATL 99.At the time of her conveyance, Marguerite Cook owned the upland only, the title to the submerged lands being vested in the Sovereign State of Florida.Thiesen v. Gulf F. & A. Ry. Co. , 78 So. 791[L.R.A.1918E, 718].It has been further established as a matter of law that the City by legislative grant of the State of Florida to-wit, Chapter 7781, General Acts of 1918, received the balance of the submerged lands identified as those lands including, among others, the submerged portions of Water Lots 10, 11 and 12, and the South one-half of Water Lot 9, free of any restrictions.'

The court further found that the deed restrictions in the conveyance between Marguerite Cook and the City of St. Petersburg on those lands lying west of the high water line as established in this cause for use as a parking area serving the Civic Auditorium structures located off the restricted premises were not a use which would be inconsistent with the deed restrictions as set out in such deed.

It further found that inasmuch as the deed restrictions applied only to the lands constituting the upland of Water Lots 10, 11 and 12, and the South one-half of Water Lot 9 on September 15, 1917, that any lands now filled beyond the line found in Exhibit 'D', or lands to be filled in the future of the City of St. Petersburg or its assigns extending the present existing upland to the East would be free and clear of any such deed restrictions.

The court further held that the city would not be estopped from asserting all legal rights which it might have over the properties acquired directly from the State of Florida.

We affirm the lower court.

In the case of Atlantic City v. New Auditorium Pier Co., 63 N.J.Eq. 644, 53 A. 99, (1902), it was held that where an owner of lands bordering upon high water mark in the tide waters of said State, who had not obtained the State's title to the lands lying in front of his property and below the high water mark, had no power to charge the latter with any easement which would be forceful against a subsequent grant by the State of its title in those lands.The Court, in its opinion at page 107 of 53A., said:

'Secondly, the defendant insists that the restriction against building to the oceanward of the line of the board walk imposed by the deeds of Evans to Atlantic City, dated January 22, 1890, and the deed of Evans to Loper, July 22, 1895, never had any force to restrain the erection of buildings oceanward of the board walk below the line of high-water mark, where the defendant is now erecting the structure sought to be enjoined, because, the defendant contends,...