Kirkland v. City of Tampa

• Decision Date: 14 February 1918
• Citation: 78 So. 17,75 Fla. 271
• Parties: KIRKLAND v. CITY OF TAMPA.
• Court: Florida Supreme Court

78 So. 17

75 Fla. 271

KIRKLAND v. CITY OF TAMPA.

Florida Supreme Court

February 14, 1918

Appeal from Circuit Court, Hillsborough County; F. M. Robles, Judge.

Bill by S. T. Kirkland against the City of Tampa. From a final decree dismissing the bill and dissolving a temporary injunction complainant appeals. Affirmed.

Syllabus by the Court

SYLLABUS

The platting of land, leaving spaces for streets, alleys, and parks, and the sale of lots according to such plat or plan creates as between the grantor and such purchasers a private right in the latter to have the spaces marked upon the plat as streets, alleys, and parks remain open for ingress and egress, and the uses indicated by the designations, a private right of ingress and egress and light and air; and as to the public it is an offer of dedication of the strips and parcels of land designated on the plat as streets, alleys, and parks for that purpose, and must be accepted by the public before revocation before the dedication becomes complete.

Acceptance of such an offer of dedication may be by formal resolution of the proper authorities or by public user.

One who makes a plat of his land, showing strips of land for streets and alleys and places for public parks, and who causes the plat to be recorded in the public records of the county where the land lies, and who offers the lots for sale according to such map or plat, thereby makes a tender to the public of such strips and parcels of land indicated on the plat as streets, alleys, and parks for such purpose, and before the public accepts such offer he may revoke the same.

Whether the grantees of one who has made such a tender to the public of land for streets, alleys, and parks, to whom the owner has conveyed all the lots embraced in the plat, may, before the public accepts the tender, revoke the same as the original owner may have done--not decided. But in such case the revocation must appear clearly and conclusively to have been made, and the burden of proof in either case is upon the person asserting such revocation.

The burden of proving acceptance of an offer to the public to dedicate lands for streets, alleys, and parks is upon the county or municipality asserting it.

A decree of the chancellor is presumed to be correct, and, when based upon evidence taken before an examiner and reported to the chancellor, will not be disturbed, unless an examination of the evidence as disclosed by the record clearly shows the conclusion to have been erroneous.

COUNSEL Dickenson & Dickenson, of Tampa, for appellant.

Lunsford & De Vane, of Tampa, for appellee.

OPINION

ELLIS J.

This is an appeal from a final decree dismissing the complainant's bill of complaint and dissolving a temporary injunction against the city of Tampa upon complainant's application restraining the city, its agents, servants, and employés from opening a street, alley or roadway across certain lands of the complainant described in the bill as 'blocks two and three of Garytown subdivision according to map recorded in Plat Book 2 at page 22 of the records of Hillsborough County.'

The bill of complaint alleged that the land was in one tract or contiguous body; had been cultivated by complainant for years; was inclosed by a substantial fence, and that the complainant had never donated, either directly by deed or gift or indirectly by abandonment to the city, any street or roadway through the land; that the city of Tampa was attempting to open a street through the lands without proper procedure and without authority of law.

The answer denied that the city was attempting to open a street through the lands, and averred that it intended to open a street north of block 2 of the Garytown subdivision; that Tenth avenue is a public thoroughfare of the city of Tampa, and extends from Twenty-Sixth street to Thirtieth street along the northern limits of block 2, and does not cross or encroach upon the complainant's land.

It appears from the evidence which was taken by a master and reported to the chancellor that in 1903 Mr. Giddens was the owner of a small tract of land situated beyond the corporate limits of the city of Tampa near a suburb called Garytown. The land is in the form of a parallelogram, and lies east of and adjacent to Garytown between Eleventh avenue on the north and Seventh avenue or the six-mile creek road on the south. The tract of land is 590 feet wide and about 1,000 feet long. A plat of this tract was made, dividing the land into four blocks numbered from 1 on the north end to 4 on the south end. The plat was made in 1903, and recorded in the records of Hillsborough county in the clerk's office in May of that year. The northern boundary line is shown to be Eleventh avenue and the southern boundary Seventh avenue. These avenues appear to be open to the eastern side of the subdivision. Tenth avenue likewise appears to be open to the east side, but the avenues numbered 9 and 8 appear from the map to terminate at the west boundary of the tract.

In February, 1904, the appellant entered into a contract with the owner of the land for the purchase of blocks numbered 1, 2, and 3. At that time these blocks were inclosed by a fence which extended from the north line to the south line across Tenth avenue, both on the west and east sides of the land, completely closing the avenue if the same had indeed ever been opened. This inclosure had been erected several years before the plat was made and filed. The complainant below entered into possession of the land, erected a dwelling house thereon, made other improvements, and began the cultivation of the lands and moved into his dwelling house with his family in June, 1904. In 1907 the appellant, having agreed with the owner to surrender his right to block 1, obtained a deed to blocks 2 and 3. The description of the land as contained in the deed is as follows:

'Blocks Nos. two and three (2 & 3) of Garytown subdivision according to plat of the said subdivision recorded on page twenty-two (22) in Plat Book No. Two (2) of the Public Records of Hillsborough County, Florida.'

About a month afterwards the corporate limits of the city of Tampa were extended to include the territory covered by this subdivision. The Tampa Northern Railroad runs along the eastern boundary line of blocks 1, 2, and 3. The complainant conveyed to the company a strip of land from the east side of his blocks about 12 feet wide. The railroad track is about 4 feet higher than complainant's land. Tenth avenue is open beyond the railroad to the east about one mile.

In 1907, about the time complainant obtained his deed, the owner of block 1 sold it to Phillip di Bona, and executed a deed therefor. Complainant and Bona agreed upon a dividing line between blocks 1 and 2, and a fence was erected upon this line, which is about 12 feet north of Tenth avenue if the same extended across the blocks. The street has never been opened across this land, nor has it ever been used by the public, nor has there ever been, so far as the evidence shows, any formal acceptance by the county commissioners or the municipal authorities of Tampa of the strip of land as a highway or street. Complainant's possession and use of the property since he entered into possession of it in 1904 has been inconsistent with any easement in the public over any part of it as a roadway or street. It does not appear that Bona, the owner of block 1, is insisting upon the opening of Tenth avenue, nor that the owner of block 4 desires it.

This record presents several questions which it becomes necessary for us to settle. First, does the mere platting of land by the owner, dividing it into blocks and streets and the sale of blocks according to such plat, constitute a complete dedication of the streets indicated to the public use, or does it merely create private rights in the grantees of the original owner which as between them are irrevocable, and as to the public a tender of such lands for streets which must be accepted by the public to be complete as a dedication to public use? If such platting and sale of land is a mere tender to the public of the indicated streets, how and when may the acceptance by the public be shown? May there be a revocation of the tender by the original owner or by his grantees before acceptances by the public?

In the case of Winter v. Payne, 33 Fla. 470, 15 So. 211, this court held that where the owner of a tract of land makes a town plat of it with spaces for streets laid out thereon, and conveys lots with reference to and bounded by such streets, he thereby dedicates the streets to public use as such, and the grantees in the conveyance acquire the right to have said streets kept open for the benefit of light and air, as well as passageways. That case was followed in Porter v. Carpenter, 39 Fla. 14, 21 So. 788, in which the court said that such acts constitute a complete dedication. See, also, Price v. Stratton, 45 Fla. 535, 33 So. 644; Florida E. C. R. Co. v. Worley, 49 Fla. 297, 38 So. 618.

In Winter v. Payne, supra, the controversy arose between the grantees and their assigns of the original owner, Miles Price. It appeared that the street which one of the parties attempted to close or obstruct had been opened to the public and used for many years. The court said the complainant's case rested upon a dedication of the street by Miles Price the owner, and not upon a prescriptive right by user. The facts in the case showed a tender by the owner and acceptance by the public by user. The real question in the case was not whether a street had been dedicated, but where the line of the street was. In the case of Porter v. Carpenter, supra, the question presented was one of fact as to the existence of a street between blocks 8 and 17. The...