McCorquodale v. Keyton

• Decision Date: 31 March 1953
• Citation: 63 So.2d 906
• Court: Florida Supreme Court
• Parties: McCORQUODALE et al. v. KEYTON et al.

Page 906

63 So.2d 906

McCORQUODALE et al. v. KEYTON et al.

Supreme Court of Florida, Division B.

March 31, 1953.

F. S. Browne, Panama City, for M. E. McCorquodale and Mary Emma Mccorquodale.

Liddon, Isler & Welch, Panama City, for J. M. Webb.

J. M. & H. P. Sapp, Panama City, for appellees.

DREW, Justice.

The title to fractional NE 1/4 of Section 9, Township 3 South Range 17 West, was acquired by M. E. McCorquodale in 1927, The sought boundary of this property is the Gulf of Mexico.

In 1935 McCorquodale and wife platted the land. On the plat there appeared the following dedication, duly acknowledged:

'State of Florida

County of Bay.

Know All Men By These Presents That M. E. McCorquodale the owner of fractional Northeast Quarter of Section Nine, Township Three South, Range Seventeen West, Bay County, Florida, hereby make and adopt this plat as a true and correct plat of said lands and hereby dedicate for public use and public ways, to be used as such, all parcels and parts of land indicated on said plat as streets, and also dedicate that parcel and part of said land lying between the Gulf Coast Highway and the Gulf of Mexico as 'Sunnyside Park' for use of property owners of said plat.

In Witness Whereof the said M. E. McCorquodale has caused these presents to be executed and has affirmed his signature hereto, on this 3rd day of May, A.D. 1935.

Witnesses:

S/ J. O. Devone

S/ S. Humphries

Owners

S/ M. E. McCorquodale (Seal)

S/ Mary Emma McCorquodale (Seal)'

The plat was presented to, approved and accepted by the Board of County Commissioners of Bay County June 3, 1935.

Some time after the same was platted and subdivided and lots sold to various purchasers according to the plat, a small (12' X 16') building was constructed by the McCorquodales on the land lying between the Gulf Coast Highway (known as U. S. Highway 98 and sometimes referred to in the record as such) and the Gulf of Mexico (the rights of the public in and to the beach between high and low water is not involved in this case), where principally sandwiches and cold drinks were sold. They operated the business for a number of years without objection from the lot owners in the subdivision and then sold the building to J. M. Webb, who was operating said business when this suit was instituted July 27th, 1951, by Grover Keyton and C. P. Hayes, owners of lots in the subdivision. The complaint charges that the use of the building by Webb for his private business purposes deprives the lot owners in said subdivision of the common use and enjoyment as a park of all that tract and area dedicated as Sunnyside Park and boldly marked on the plat as such.

The complaint concluded with a prayer to enjoin McCorquodale and wife from granting or conveying to J. M. Webb or any other person any portion of the land between the highway and the Gulf or from contracting to sell and deliver possession to any part of said area to any person, excluding the plaintiffs and other owners of land within the subdivision and the public, from the common use and enjoyment of said land. As to the defendant Webb, plaintiffs asked that he be enjoined from the further exclusive possession of the part held by him and that he--Webb--be required to permit the common use and enjoyment of said property by plaintiff and other owners in said subdivision.

Webb, in his answer, denied that the Board of County Commissioners had accepted the lands as a public park and averred said lands were for the use of the property owners of said plat and that none of the owners of lands in said subdivision were being deprived of any portion of the park area as dedicated except a space of about 12 x 16 feet in the area of 3000 x 200 feet, south of the highway, and that his use of said small tract was not inconsistent with the rights of the lot owners.

In their answer the McCorquodales allege that the effect of the dedication was to create a private easement in the owners of the lots in the subdivision and that they hold full legal title to the dedicated lands subject to the easement and have a right to deal with the land in any manner not unreasonably interfering with the enjoyment of said easement.

Testimony was taken and on final hearing the Chancellor below entered the following final decree.

'This cause coming on to be heard by the Court on final hearing and after receiving and hearing the evidence and testimony for the respective parties and the argument of the attorneys for the respective parties, and after due consideration of the cause, the Court being advised of its opinion finds as follows:

'That the equities in the case are in favor of the plaintiffs, Grover Kayton and C. P. Hayes and they are the owners in fee simple of property in Sunnyside Subdivision in Fractional Section 9, Township 3, South, Range 17 West; that Grover Keyton is the owner in fee simple of lots 1 and 2 in Block 1, according to the sub-division and plat as amended by Sunnyside on the Gulf of Mexico in the NE 1/4 of Section 8, Township 3 South, Range 17 West, and that C. P. Hayes is the owner in fee simple of Lot 4, Block 4, according to the subdivision and plat of Sunnyside on the Gulf.

'That the defendant, M. E. McCorquodale, originally owned in fee simple all of said fractional Section 9, Township 3 South, Range 17 West, and as such owner subdivided and platted fractional NE 1/4 of said Section 9 and dedicated as a park for the use of the lot owners in the subdivision of Sunnyside on the Gulf of Mexico, that part and portion of Fractional NE 1/4 of said Section 9, Township 3 South, Range 17 West lying between the Gulf of Mexico and U. S. Highway No. 98, and that the plaintiffs as owners of lots in said subdivision were and are vested with the right to use said described area jointly and in common with all other lot owners in said subdivision.

'That the dedication of Sunnyside Park by M. E. McCorquodale and Mary Emma McCorquodale in the following language: 'And also dedicate that parcel and part of said land lying between Gulf Coast Highway and the Gulf of Mexico as Sunnyside Park for the use of property owners of said plat' constituted the granting of an easement only, and vested all property owners of said plat with an easement for the common use of said parcel and part of land as a private park.

'That the defendant, M. E. McCorquodale, and the defendant J. M. Webb, prior to the institution of this suit, had withdrawn and had been withholding from the plaintiffs and other lot owners in the said subdivision, the joint and common use as a park of a small undescribed portion of said park area, which said defendants have no right to do, and that the defendant, M. E. McCorquodale has no right or authority to sell and convey the fee simple title to any part or portion of said area.

'It is therefore, Ordered, Adjudged and Decreed, and it is the judgment of the Court, that the defendant, M. E. McCorquodale be, and he is hereby, enjoined from conveying and...