Hollywood, Inc. v. City of Hollywood

• Citation: 321 So.2d 65
• Decision Date: 23 April 1975
• Docket Number: No. 44662,44662
• Court: United States State Supreme Court of Florida
• Parties: HOLLYWOOD, INC., a Florida Corporation, Petitioner-Cross Respondent, v. CITY OF HOLLYWOOD, a Municipal Corporation, Respondent-Cross Petitioner.

Page 65

321 So.2d 65

HOLLYWOOD, INC., a Florida Corporation, Petitioner-Cross Respondent, v. CITY OF HOLLYWOOD, a Municipal Corporation, Respondent-Cross Petitioner.

No. 44662.

Supreme Court of Florida.

April 23, 1975.

Rehearing Denied Nov. 18, 1975.

Sherwood Spencer, Ellis, Spencer, Butler & Kisslan, Hollywood, and Carl A. Hiaasen, McCune, Hiaasen, Crum, Ferris & Gardner, Fort Lauderdale, for petitioner-cross respondent.

J. Bart Budetti, City Atty., and Ray H. Pearson, Larry S. Stewart and Bertha Claire Lee, Frates, Floyd, Pearson, Stewart, Proenza & Richman, Miami, for respondent-cross petitioner.

PER CURIAM.

This cause is before us on a petition and cross-petition for writ of certiorari to review the decision of the District Court of Appeal, Fourth District, reported at 283 So.2d 581. Our jurisdiction is based on conflict ¹ between the decision sought to be reviewed and City of Sanford v. Ashton; ² Cape Sable Corporation v. McClurg; ³ Canell v. Arcola Housing Corp.; ⁴ Burnham v. Davis Islands, Incorporated; ⁵ Wise v. Quina; ⁶ Owen v. Yount; ⁷ Katcher v. San Souci Company; ⁸ Grable v. Nunez; ⁹ Foremost Properties, Inc. v. Gladman; ¹⁰ Downing v. Bird, ¹¹ and City of Palmetto v. Katsch. ¹² The petition for writ of certiorari reflected apparent jurisdiction of this Court. We issued the writ and have heard argument of the parties. Upon further consideration of the matter, we have determined that the cited decisions present no direct conflict as required by the constitution, except as to the denial of a jury trial.

The facts of this case are as follows.

In the early 1920's, one Joseph Young began the development of what later became the City of Hollywood (he called it Hollywood-By-The-Sea). Young planned a seaside resort to rival Atlantic City, then at its zenith, one which would appeal to all classes desiring the advantages of climate and oceanfront. The plan for the beachfront was that a thirty foot boardwalk would run the length of the city, paralleling the ocean and upland from it. Between the boardwalk and the water's edge, the beach would be graded and maintained as a permanent bathing beach.

On January 11, 1924, the plat of Hollywood Beach Second Addition was recorded by Young's Home Seekers Realty Company; on September 9, 1924, the plat of Hollywood Central Beach was recorded by the same company. On November 25, 1925, the Respondent, City of Hollywood, was created. In August, 1927, Young deeded to Respondent all of 'the streets, drives, boulevards, alleys, ways, walks, avenues, parkways, and highways, by whatever name they may be termed, platted and described in that certain plat, also named in an amended plat, of Hollywood Central Beach'. Although Block 205 was not labeled on the plat, the then current price list made it clear that 205 was a 'parkway'. Almost two years later, on April 25, 1929, two large money judgments were entered against Home Seekers Realty Company, leading to later execution sales and Sheriff's deeds. The Respondent's minutes of July 2, 1930, show that it had actual express notice of the proposed execution sale. On September 1, 1930, Highway Construction Company of Ohio, Inc., acquired title to Block C, Hollywood Beach Second Addition; later, on December 1, 1930, that same company acquired title to Block 205, Hollywood Central Beach. Thereafter, on February 18, 1931, Highway Construction Company conveyed title to Petitioner by fee simple deed, which Petitioner recorded February 21, 1931. In June, 1964, Respondent recorded its notice of claim of ownership. In August, 1964, the tax assessor for Broward County sued both Petitioner and Respondent for a declaratory decree and equitable relief, alleging that both parties claimed ownership of two miles of ocean-front beach and that the tax status of the land was unclear. In September, 1964, Respondent filed its cross-claim against Petitioner.

Petitioner claims that its title to the land in question was derived from a Sheriff's Deed issued to Highway Construction Company, which company subsequently conveyed its interest to Petitioner in 1931. Respondent predicates its claim of ownership upon various acts and occurrences, including documentary and testimonial evidence reflecting ownership by virtue of a deed from the original owner, as well as ownership arising by dedication and prescription. The trial court held, Inter alia, that Respondent possessed neither title nor other interest or rights in the property, and that title is in the Petitioner.

The District Court of Appeal, Fourth District, reversed and remanded for a new trial, finding that the trial court erred in rejecting certain documentary and testimonial evidence bearing on the Respondent's claims of ownership by dedication. In reversing, the District Court adopted the seven methods for indicating an intent to dedicate land to public purpose as set forth in City of Palmetto v. Katsch. ¹³ The District Court found that the rejected evidence related to each of the categories established as a test in Katsch, supra, and that it had a direct bearing on the issue of acceptance of dedication. The District Court advised the trial court, on remand, to consider the applicability of City of Daytona Beach v. Tona-Rama, Inc. ¹⁴ to the issue of prescription, however, subsequently that decision was quashed by this Court. ¹⁵ The District Court held also that prior decisions by it on an earlier interlocutory appeal and by this Court on petition for certiorari were neither conclusive nor dispositive of the Respondent's claim of ownership of the land. ¹⁶ Additionally, the District Court rejected Respondent's claim for a jury trial.

The Respondent defended its ownership of the beach in question under several legally independent theories, including deed, dedication, prescription and adverse possession. To support its theory of common law dedication, Respondent proffered, Inter alia: many of Young's publications (including pamphlets, magazines, brochures and advertisements) clearly stating that it was his intent that the beach be dedicated to the City; oral testimony of young's officials and salesmen which corroborates the documentary evidence; oral testimony of Young's purchasers which corroborates the documentary evidence; the plats themselves; deeds to lots west of the boardwalk indicating conveyance as waterfront property; Young's price list describing Block 205 as a 'parkway'; the Respondent's newspaper advertisements prior to 1930 proclaiming ownership of the beach; the fact that the present beach has always been open to public use and no permission was needed to use the beach; Respondent's tax rolls beginning in 1926, showing that it has always treated the beach property as public land belonging to it; Respondent's publications which have proclaimed its municipal ownership of the beach continuously since 1926; evidence of the fact that in 1938 Respondent granted an easement to the United States for deposit of spoil on the beach; and evidence of Respondent's continuous maintenance, upkeep and improvement of the beach since 1925. This voluminous mass of data was not admitted by the trial court, an act which was held to be error by the District Court; we agree. Relying on Katsch, supra, the District Court held:

'. . . 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 . . ..

'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 requirement 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) platting one's lands and selling lots and blocks pursuant to said plat indicating thereon places for parks, streets, public grounds, etc.; (4) recitals in a deed by which the rights of the public are recognized; (5) oral declarations followed by acts consistent therewith; (6) affirmative acts of the owner with reference to his property, such as throwing it open in a town, fencing and designating streets thereon; (7) acquescence of the owner in the use of his property by the public for public purposes.

'The evidence which was rejected related to each of the categories enumerated in City of Palmetto v. Katsch, supra. The evidence, additionally, had a direct bearing on the question of Acceptance of dedication. The acceptance of a dedication may be by formal action of the proper authorities or it may be by public user. Robinson v. Town of Riviera, 1946, 157 Fla. 194, 25 So.2d 277 . . ..

'To reiterate, the excluded evidence directly related to the issue of the dedicator's intention to dedicate and the mode and manner of the acceptance of such dedication as to both Block 205 and Block C. The City, therefore, should be afforded the opportunity of presenting evidence on the issue of common law dedication and the trial court should give due consideration thereto. Cf. Boothby v. Gulf Properties of Alabama, Fla.1948, 40 So.2d 117.

'In considering the evidence bearing upon the issue of common law dedication consideration must also be given to the legal effect of the 1927 deed executed by appellee's predecessor in...