Indian Rocks Beach South Shore v. Ewell

• Decision Date: 13 June 1952
• Citation: 32 A.L.R.2d 940,59 So.2d 647
• Parties: INDIAN ROCKS BEACH SOUTH SHORE, Inc. v. EWELL et ux.
• Court: Florida Supreme Court

Page 647

59 So.2d 647

32 A.L.R.2d 940

INDIAN ROCKS BEACH SOUTH SHORE, Inc. v. EWELL et ux.

Supreme Court of Florida, Special Division A.

June 13, 1952.

Rehearing Denied July 7, 1952.

Ralph Richards, Charles M. Phillips, Jr., and William E. Nodine, Clearwater, for appellant.

Thompson & Cooper, Clearwater, for appellee.

MATHEWS, Justice.

This suit arose out of a dispute concerning the dedication and acceptance of a public street.

A plat of a piece of property outside of the corporate limits of any municipality in Pinellas County was filed for record on September 4, 1915, and recorded in Plat Book 4, page 20. The plat contained the following dedication:

'The fee in the streets and alleys is herein and hereby reserved in the Indian Rocks Realty Company, a corporation, and an easement is given to the County of Pinellas for public highways only; expressly reserving and retaining in the said corporation all rights to use any of said streets for street cars, electric lights, railroad, telegraph, water, gas, dock and bath house purposes forever. The riparian rights at the foot of all streets are expressly reserved in said corporation.'

The property in question was an island in Pinellas County that was bounded on the West by the Gulf of Mexico and on the East by a bay. The plat showed a main street running North and South for the entire length of the subdivision. It showed a number of cross-streets designed to give access to the Gulf on one side of the island and the Bay on the other side. The street involved here was named 'Bay Place' and runs East from Pass Avenue to the Bay. Pass Avenue is the main street shown on the plat and is now known as Gulf Boulevard. Soon after the plat was filed in 1915, Pinellas County opened Pass Avenue and paved it. It is now a part of the main highway along the Gulf beaches of Pinellas County.

At the time Pass Avenue was opened and paved, the cross-streets, or side streets, were not opened and paved. There were no dwellings at that time in this subdivision. There were no fences or enclosures and anyone traveling along Pass Avenue could go to the Bay or Gulf as he desired.

In the course of time the beaches in Pinellas County, including this property, were gradually developed and homes or cottages were built. As this development and improvement of property progressed some of the side streets or cross-streets shown on the plat came into use.

As soon as appellant was incorporated in 1949, it passed an ordinance formally accepting the dedication of all streets and alleys within the corporate limits. Immediately thereafter the town began to improve the streets shown upon the plat above mentioned. It employed a surveyor to locate corners and install markers. When this surveying began, the suit was filed by the appellees. It was a suit in the nature of a bill to quiet title and for an injunction against the appellant. The appellees claimed that they owned the lots immediately adjoining 'Bay Place' and also owned 'Bay Place', including the easement, and they sought an injunction against the town from opening and improving 'Bay Place' as a public street. After motions to dismiss and other pleadings were filed and disposed of, the cause went to trial on the complaint and an amended answer. A final decree was entered granting the relief prayed for and enjoining appellant from opening and improving 'Bay Place' as a highway or street.

It was stipulated by the parties at the time of the trial that 'Bay Place' had never been carried on the tax rolls of Pinellas County.

The appellees claimed that they owned 'Bay Place' by reason of various conveyances originating with the original subdivider. The chain of title under which the appellees claimed is shown by the stipulation between the parties as follows:

'For the purpose of simplifying the issues of fact to be tried in this cause, it is stipulated by and between the undersigned counsel for the plaintiffs and defendant as follows:

'1. That W. C. Wells and his wife, Maude O. Wells were grantees named in a certain deed in which D. L. Evans and wife, Mary M. Evans, were the grantors, said deed dated the 21st day of May 1937, recorded in Deed Book 775, at page 319, public records of Pinellas County, Florida, whereby the grantors conveyed to the grantees the following described real estate:

"Lots one (1) and Two (2) Block Six (6) Indian Rocks South Shore Subdivision Sections 24 and 19 Township 30 South Ranges 14 and 15 East, according to map or plat thereof as recorded in plat book 4 page 20 public records of Pinellas County, Florida, together with the land and riparian rights appertaining thereto, lying between the Easterly lines of the said lots hereby conveyed, the Westerly lines of the United States Government Channel in fractional Sections 19 and 24 Township 30 South Ranges 14 and 15 East.'

'2. That W. C. Wells and his wife were the grantees named in a certain deed in which Dew Smith, Inc. was the grantor, said deed dated the 11th day of January 1938, recorded in Deed Book 791, at page 137, public records aforesaid, whereby the grantors conveyed to the grantees the following described real property located in Pinellas County, Florida:

"Lots 39 and 42 Block 4 Indian Rock South Shore Subdivision according to the map or plat on record in the Clerk's office of Pinellas County, State of Florida, Plat Book 4, page 20.'

'3. That W. C. Wells and wife were the grantees in a certain deed in which the Pinellas County Tile Company was the grantor, said deed dated the 19th day of January, 1938, recorded in Deed Book 791, page 139, public records of Pinellas County, Florida, whereby the grantors conveyed to the grantees the following described real property:

"Beginning at the Northwest corner of Block Six (6) according to the plat of Indian Rock South Shore, as recorded in Plat Book 4 on page 20, of the public records of Pinellas County, Florida; and running thence East along the North line of said Block 6, and the Easterly projection of said North line, to the channel in 'The Narrows'; thence Northwesterly along said channel to intersection with an Easterly projection of the South line of Lot forty-two (42) in Block Four (4) of said subdivision; thence West along this Easterly projection, and the South line of said Lot 42 in Block 4, to the East line of Pass Avenue; thence Southeasterly in a straight line to the point of beginning. The said plot including the area shown on the above mentioned plat as 'Bay Place".

'4. That the plaintiffs, J. L. Ewell and Myrtle Ewell are the grantees named in a certain deed in which W. C. Wells, a widower, was the grantor, said been dated the 27th day of July, 1944, recorded in Deed Book 981 at page 117, public records aforesaid, purporting to convey to the said grantees the following described real estate located in Pinellas County, Florida:

"Lot Thirty-nine (39) and Lots Forty-two (42) to Forty-eight (48) inclusive, in Block Four (4); and Lots One (1) and Two (2) in Block Six (6) of Indian Rock South Shore, according to the plat of said subdivision recorded in plat book four (4) on page twenty (20) of the public records of Pinellas County, Florida. Together with all submerged lands and riparian rights appurtenant thereto. Also the area including 'Bay Place' as shown on said plat, more particularly described as follows: Beginning at the Northwest corner of said Block Six (6) and running thence East along its North boundary, and an Easterly projection thereof, to the Channel in 'The Narrows' thence Northwesterly along said channel to intersection with the Easterly projection of the South Boundary of Lot Forty-Two (42) in said Block Four (4) thence West along this Easterly projection, and the said South Boundary of Lot 42 to the East line of Pass Avenue thence Southeasterly in a straight line to the point of beginning.'

'5. That Pinellas County Title Company was a grantee in a certain deed from Indian Rocks Realty Company, a corporation, said deed dated December 4th, 1937 recorded in Deed Book 786, page 313, public records aforesaid, purporting to convey to the Pinellas County Title Company the following described real estate located in Pinellas County, Florida:

"All land, riparian rights, franchises, easements or any other interest, right or privilege of whatsoever nature unconveyed of record at the date of this instrument by the party of the first part in Government Lots One (1) and Two (2) of Section 24 Township 30 South Range 14 East; and in Government Lot One (1) of Section Nineteen (19) of Township Thirty (30) South Range Fifteen (15) East.

"Particularly conveying riparian rights and submerged lands abutting all streets or other thoroughfares as shown on the plat of Indian Rock South Shore as this plat appears of record in Plat Book 4 on page 20 of the public records of Pinellas County, Florida.'

'That Bay Place had not theretofore been conveyed or encumbered except as may have been effected by the purported dedication appearing on the Plat.

'6. That the defendant consents to the amendment of the first two lines of paragraph VI of plaintiff's complaint, commencing with the beginning of paragraph VI and continuing to the word 'commenced' in line 3, to read as follows:

"As stated in paragraph V, supra, the said W. C. Wells and wife entered into possession of the real estate described in paragraph V, and on or shortly after January 22, 1938.'

'7. The defendant admits that the plaintiffs are the owners of Lots 39 and 42 of Block 4, and Lots 1 and 2, of Block 6 according to Plat Book 4, page 20, Pinellas County Records.

'8. That Indian Rocks Realty Company on September 4th, 1915, was the owner of said Lots 39 and 42 of Block 4, Lots 1 and 2 of Block 6, and 'Bay Place' located between Lot 42 of Block 4 and Lot 1 of Block 6; that it had, at that time, the right to convey the same by deed, to mortgage the same by deed or mortgage and to offer to dedicate to the public such portions thereof as it saw...