Kramer v. City of Lakeland

• Decision Date: 07 December 1948
• Citation: 38 So.2d 126
• Parties: KRAMER et al. v. CITY OF LAKELAND et al.
• Court: Florida Supreme Court

38 So.2d 126

KRAMER et al. v. CITY OF LAKELAND et al.

Florida Supreme Court

December 7, 1948

Rehearing Denied Jan. 19, 1949.

Appeal from Circuit Court, Polk County; Don Register, Judge.

Raymond C Smith and John S. Edwards, both of Lakeland, for appellants.

J. C Rogers, Oxford & Oxford and Carver, Langston &amp Carver, all of Lakeland, for appellees.

E. E Callaway, of Blounstown, as amicus curiae.

CHAPMAN, Justice.

On February 26 1884, Abraham G. Munn was the fee simple owner of the W 1/2 of SW1/4 of Section 18, Tp. 28 South, Range 24 East situated in Polk County, Florida. He surveyed the property and caused it to be subdivided into blocks and lots and designated streets and avenues, and assigned to each an appropriate name. He prepared a map thereof and caused the same to be recorded among the public records of Polk County, Florida. The City of Lakeland, in part, is now located on the above described land.

The map placed of record indentifies Block 14 as a public square and continuously since has been known as Munn's Park. It is bounded on the north by Cedar Street; on the south by Main Street; on the east by Kentucky Avenue, and on the west by Tennessee Avenue. Block 14, supra, at the present time is being used by the public as a park and has been continuously so used since 1884. It is admitted that Block 14 was by the owner in 1884 dedicated to the public to be used by it for park purposes.

The record reflects the following:

'DeLand, Florida, March 7th, 1898. At a call meeting of the Lakeland Improvement Company of Polk County, Florida, held this day at DeLand, Florida. Present, A. G. Munn in the chair appointed Morris G. Munn, secretary pro tem.

'The president stated that while in Lakeland on Sunday, March 5th, he was informed that some doubt was expressed by several citizens of Lakeland about the title to the Public Square, or Block 14 in that City, whereupon the president stated that in filing the map of the town survey of his son, Samuel M. Munn, surveyor of same, in the office of the clerk of the Circuit Court of Polk County at Bartow, the land bounded on the south by Main Street, on the east by Kentucky Avenue, on the north by Cedar Street and on the west by Tennessee Avenue, was on that plat designated as Public or Town Square in the town of Lakeland, Polk County, Florida, and came under the supervision and care of the mayor and town council in the same manner as the streets and alleys of said town filed as such on the same map at the same time the Lakeland Improvement Company, after clearing, plowing, fencing and setting in Bermuda grass, and planting water oaks around said public or town square, has never made and does not now make or reserve any claim of ownership to any part or portion of said square; but states officially that its interest in said plat of land is the same as every other lot in the town, now City of Lakeland.

'It admits, however, that two small squares or lots were drawn by the surveyor to intimate that should at any future time the citizens or their lawfully constituted mayor and council should deem it for the interest of the city to use any portion of said square for the erection of public buildings for the use of either state, county municipality as well as for a public park; it would be as agreeable to the Lakeland Improvement Company as to the citizens generally in said city.

'Thereupon on motion of W. B. Munn, a stockholder in said corporation, seconded by Morris G. Munn, also a stockholder in said corporation, who, with A. G. Munn, hold a large majority of its stock, it was resolved that the Lakeland Improvement Company endorse in every word and particular the statement now made by President A. G. Munn and that the plat of the public or town square in the town of Lakeland as filed in the office of the clerk of the Circuit Court of Polk County, Florida, belongs to all the lot owners individually and collectively for the purpose set forth in his statement and for no other. This statement and resolution to be entered of record in the office of the Clerk of the Circuit Court of Polk County, Florida.'

On September 11, 1924, the City Commission or Council, through its authorized officials, enacted or attempted the enactment of an ordinance by the terms and provisions of which it was sought to sell, abandon or otherwise dispose of Munn's Park so that the same should pass into the ownership and control of private parties. Pursuant thereto a deed was executed and delivered by the Lakeland Improvement Company to the Central Bank & Trust Company which purported to sell or dispose of Munn's Park, to the alleged injury and damage of the citizens and residents of the City of Lakeland and to the general public.

Certain named citizens of Lakeland in 1924 filed suit in the Circuit Court of Polk County, Florida, against the City of Lakeland, Lakeland Improvement Company and the Central Bank & Trust Company praying for an order decreeing as void ab initio the ordinance authorizing an abandonment of Munn's Park and the sale thereof to the Central Bank & Trust Company, and that the defendants be permanently enjoined from diverting the use and enjoyment of Munn Park by the public for any purposes other than for which it was originally dedicated by Abraham G. Munn and his company, the Lakeland Improvement Company, in 1884 and rededicated in 1898. These defendants were enjoined from so doing and an appeal was not taken from the order or decree.

The Court's opinion, in part, is viz.:

'It was admitted at said hearing that said park or public square has been used by the public, also improved, beautified with a monument, fountains, walks and shrubbery, continuously since 1884--also since 1898 when the dedication was reaffirmed by resolution stated above and recorded.

'The bill for injunction avers, and attached exhibits to same show, that the city commissioners of Lakeland have passed an ordinance having for its purpose to effect a surrender or abandonment of said parcel of land as a public park or square, and that the grantor of said public park or square has executed a deed of trust to the Central Bank and Trust Company of Lakeland authorizing the sale of same to private owners.

'Upon consideration of the issues raised by the demurrer to said bill it appearing to the Court that the petitioners for injunction are proper parties complainant in this cause and under the facts stated in the bill that the original owner, Abraham G. Munn, and his successors, the Lakeland Improvement Company, are precluded from revoking this dedication, it being shown that the said public square or park was set apart as such for public use and enjoyed as such and that rights have been acquired with reference to it, such as lots conveyed according to the plat which shows a square dedicated to public use and accepted by the public for a period of about forty years by user; it further appears from the bill that such dedication was originally made and recorded by an individual not only to the public, but also to individual lot owners for a specific use as a public square park and duly accepted; it further appears that a statute such as Section 1851, Revised General Statutes of Florida, F.S.A.§ 167.09, authority relied upon by defendants in argument before the court, has no power to divert the property in question to any purpose inconsistent to the particular use to which it was dedicated and such dedication is irrevocable; that specific contractual rights accrued immediately upon the lots being sold according to said plat; that the City of Lakeland having no fee title would hold this property thus dedicated, not in a proprietary but in its sovereign capacity in trust only for the use to which it was dedicated.'

On April 26, 1943, Morris G. Munn and W. Orme Robb, as surviving directors and statutory Trustees of Lakeland Improvement Company, a Florida corporation which had been dissolved, executed a conveyance of Munn's Park to the City of Lakeland. Pertinent recitals in the deed are viz.:

'Whereas the fee simple title of all the remainder of said Block 14 has remained vested in the Lakeland Improvement Company subject only to the dedication aforesaid; and

'Whereas, the charter granted by the State of Florida to the Lakeland Improvement Company was, by its terms, limited to a period of fifty years, and has now expired; and

'Whereas, it is deemed and considered by the Lakeland Improvement Company that the said Block 14 would be a desirable location for a Federal Building to house the post office and other Federal agencies, and that the dedication aforesaid does not in express terms provide for a building for Federal purposes, but only for State, County or municipal purposes; and

'Whereas, it was the intention, desire and purpose of the Lakeland Improvement Company, in making such dedication, that the said realty should be available for the broadest and most complete public use; and

'Whereas, the parties of the first part constitute the only surviving members of the Board of Directors of the Lakeland Improvement Company, and by virtue of their office aforesaid, are statutory trustees of the said dissolved corporation,

'And whereas the parties of the first part desire to set at rest all questions as to the ownership of said realty and desire so to vest the title thereof that it may be made available as the site and location of a Federal building for the housing of a post office and other Federal agencies; * * *'

Members of the Junior Chamber of Commerce applied to the City Commission for a permit to erect or construct a building to be used as an information bureau for the benefit of the general public as well as tourists making inquiry concerning matters of interest to the City of...