Lovey v. Escambia County

• Decision Date: 05 June 1962
• Docket Number: No. D-150,D-150
• Citation: 141 So.2d 761
• Parties: Rosalie B. LOVEY and James Russell Thompson, Appellants, v. ESCAMBIA COUNTY, Florida, a body politic and corporate, and Southern Bell Telephone and Telegraph Company, a corporation, Appellees.
• Court: Florida District Court of Appeals

Page 761

141 So.2d 761

Rosalie B. LOVEY and James Russell Thompson, Appellants, v. ESCAMBIA COUNTY, Florida, a body politic and corporate, and Southern Bell Telephone and Telegraph Company, a corporation, Appellees.

No. D-150.

District Court of Appeal of Florida, First District.

June 5, 1962.

Coe & Coe, Pensacola, for appellants.

Watson & Watson, and Jack H. Greenhut, Pensacola, for appellees.

WIGGINTON, Judge.

Plaintiffs have appealed from an adverse final decree denying their prayer for both a prohibitory and mandatory injunction against defendants. It is contended that the chancellor applied incorrect principles of law to the undisputed facts in arriving at the conclusion that the equities of the cause were with the defendants and plaintiffs were not entitled to the relief prayed.

This action involves the legality of an easement for a public road across a certain described parcel of land in Escambia County. The disputed road had existed in its present location for many years prior to the filing of this action. It appears on an official map of the county made in 1941, and is clearly revealed by aerial photographs made in 1951 and 1958. It provides access from a state highway to a community known as Weekly Bayou, and has been used by the public generally and by residents of the community which it serves.

The parcel of land across which the road is located was acquired by the federal government for military purposes in 1942, and was a part of a military reservation used by the federal government until the latter returned it to private ownership by conveyance to plaintiffs' predecessor in title on February 13, 1956. The federal government permitted the road to be used by the general public during its period of ownership in the same manner as it was used prior to government acquisition. In its quitclaim deed to plaintiffs' predecessor in title in 1956, the government specified that the conveyance was made subject to all existing easements and rights of way for roads, highways and public utilities. In acquiring title to the land in question plaintiffs' predecessor knew or was charged with constructive knowledge as to the existence of the road and its use by the general public. Plaintiffs occupy no better position than their predecessor.

In 1953 while the parcel of land was in government ownership defendant County reconstructed the road and thereafter continuously maintained it uninterruptedly to the date on which this action was commenced in November, 1960. It is here noted that the first three years during which the County was engaged in the reconstruction and maintenance of the road occurred while title to the land on which it is located was owned by the federal government. The last three and a fraction years of county maintenance occurred after title to the land had been returned to private ownership. It is clear from the record, however, that the total period of time during which the County engaged in a program of reconstruction and maintenance of the road extended over a period of more than four years.

The chancellor found from the evidence although the road was in existence and used by the general public for many years prior to any action by the County, that the County nevertheless constructed and maintained the road for a period of more than four years within the meaning of F.S. Section 337.31, F.S.A. Appellants do not question this finding, and it is our view that it accords with a proper interpretation of the statutes as construed by the Supreme Court in the Pasco County case. ¹

The section of the statute on which the chancellor relied in rendering the decree appealed provides that 'whenever any road constructed by any of the several counties * * * shall have been maintained, kept in repair or worked continuously and uninterruptedly for a period of four years by any county, * * * such road shall be deemed to be dedicated to the public to the extent in width which has been actually worked for the period aforesaid, whether the same has ever been formally established as a public highway or not. Such dedication shall be conclusively presumed to vest in the particular county in which the road is located * * * all right, title, easement and appurtenances therein and thereto, whether there be any record of conveyance, dedication or appropriation to the public use or not.' ²

Because of the County's continuous and uninterrupted construction and mainteance of the road in question for a period of more than four years, the chancellor concluded that under the provisions of the foregoing statute there exists a conclusive presumption that an easement for road purposes had been dedicated by the former owners to the public. Having arrived at this conclusion, the chancellor denied plaintiffs' prayer for an injunction restraining the County and the general public from allegedly trespassing on plaintiffs' land and mandatorily requiring the County to close the road and return the right of way to its former condition.

It is appellants' principal position that the court erred in concluding that the statute which creates a conclusive presumption of dedication was applicable to the period of time when title to the land on which the road is located was vested in the federal government. They rely upon the long established and well recognized principle of law that one acquires no right by adverse possession or prescription in lands owned by the government. ³ This principle is grounded on the premise that government's title to land may not be divested by hostile or adverse user. Since no rights in government owned land may be acquired by adverse user, the statutory time for perfecting title by such means never comes into being so long as title is in public ownership. ⁴ Appellants reason that if the period of time during which the County's activities occurred while the land was owned by the federal government is excluded, the proof establishes that four years of construction and maintenance by the County did not occur between the dates on which the land was reconveyed to private ownership and this action was filed.

If the premise of which the appellants' position is based is sound, the conclusion for which they contend would logically follow. There is a basic reason why this contention must br rejected. Both prescription and adverse possession are founded upon open, notorious, continuous, hostile and adverse use and occupancy of land owned by another. ⁵ If the chancellor had found that the County's title to a road easement was predicated either upon adverse possession or prescription, appellants contention would have to be sustained. In the decree appealed, however, the chancellor specifically found that the County's easement in the disputed road was not based upon adverse user under the law of prescription, but accrued by virtue of a presumed dedication under the terms and provisions of the statute hereinabove mentioned. If the chancellor's conclusion is correct, it would follow that the principle of law on which appellants rely, and the authorities cited in support thereof, would be wholly inapplicable and have no bearing upon the decision. This is so for the reason that the acquisition of a road easement by dedication is not dependent upon adverse and hostile user as defined in the law of prescription and adverse possession. On the contrary, title by dedication presupposes a use consistent with the dedicator's interest not one adverse or hostile to it.

Reverting to the statute under consideration it seems clear to us that the continuous and uninterrupted construction and maintenance of a public road by a county for a period of four years gives rise to a conclusive presumption that the owner of the land on which the road is located has dedicated the same to the public for road purposes. The estate or title presumed to have been dedicated is that of an easement in the road right of way. The validity of the easement so dedicated is not dependent upon any record of conveyance, dedication or appropriation to public use. The statute under consideration is not one of prescription or adverse possession. Its purpose is to operate as a statute of repose with respect to the rights of way of roads or portions thereof that have been constructed by roadbuilding authorities of the several counties of the state under circumstances of irregularity in the acquirement of title to the rights of way wherever existing roads have been constructed and are being used. ⁶ Although a statute of repose may be technically distinguished from a statute of limitation, the ultimate effect of each is the same. Their purpose is to place in repose the assertion of rights to which one is entitled unless such rights are enforced within the time limited by the statute. ⁷ The general rule that both the United States and a state are immune from the operation of a statute of limitations is applicable where the state or government is the real party in interest. The right to assert sovereign immunity from the operation of the statute of limitations does not extend, however, to its assignee or transferee where the suit is brought for the private benefit, and to enforce the rights of a private person. ⁸ As said by the Supreme Court of Arkansas in the Brookfield case: 'Some of the explanations which have been given for the doctrine that the statute of limitations does not run against the sovereign are stated in 37 C.J. p. 711. It is said that the sovereign ought not to be injured by the neglect of its officers; or, that the sovereign's time and attention are occupied by the cares of government and it must not be held to be negligent in its delay. It is also said that the sovereign will not be presumed to advance any unjust or oppressive claim. Even if the plaintiff could be regarded as a transferee or assignee of the sovereign's rights (which it is not), still none of the reasons for the sovereign's immunity from limitations would apply. Plaintiff seeks...