Miller v. Bay-to-gulf, Inc.

• Decision Date: 26 January 1940
• Citation: 193 So. 425,141 Fla. 452
• Parties: MILLER et al. v. BAY-TO-GULF, Inc., et al.
• Court: Florida Supreme Court

193 So. 425

141 Fla. 452

MILLER et al. v. BAY-TO-GULF, Inc., et al.

Florida Supreme Court, Division B.

January 26, 1940

Suit by Harry Miller and Katie Miller, joined by her husband and next friend, Harry Miller, against the Bay-To-Gulf, Inc., and others, for an injunction restraining defendants from demolishing bulkhead erected by plaintiff and to quiet plaintiffs' title to land on which bulkhead was erected against any claim of defendants. From decree permanently enjoining plaintiffs from interfering with or attempting to interfere with rights of defendants to use and enjoyment of strip of land in question, the plaintiffs appeal.

Affirmed. Appeal from Circuit Court, Pinellas County John I. Viney, judge.

COUNSEL

W. G Ramseur, of St. Petersburg, for appellants.

Edwin R. Dickenson, of Tampa, and Robert W. Patton of St. Petersburg, for appellees.

OPINION

PER CURIAM.

This cause of action involves a small strip of land located on Maderia Island near St. Petersburg, Florida, and bordering on the Gulf of Mexico. In 1927 The Maderia Holding Company Inc., was the owner of a large tract of land on the aforementioned Maderia Island. The company caused a partial plat to be made of the property, showing blocks and lots thereon, and known as Maderia Beach Subdivision. This plat shows the westerly boundary of blocks 5, 7, 9 and 13 abutting the waters of the Gulf of Mexico, while the westerly boundary of blocks 1 and 3 are shown abutting on a strip of land approximately 100 feet in width, lying between blocks 1 and 3 and the waters of the Gulf.

The herein disputed property is a part of that unplatted strip of land lying between the westerly boundary lines of blocks 1 and 3 of the subdivision and the waters of the Gulf of Mexico.

In 1931, A. B. Archibald, then president of Maderia Holding Company, Inc., entered into an agreement with the appellants for the sale of lot 6 of block 3 of Maderia Beach Subdivision. Appellants immediately entered into possession of the premises and moved five cottages onto the property.

Appellants received a warranty deed to the property from Maderia Holding Company, Inc., on April 19, 1932, the descriptions in both the contract of sale and in the deed being according to the plat of Maderia Beach Subdivision. Although there was no mention of the fact made in the purchase agreement it is shown upon the face of the deed that the plat was unrecorded.

The appellants were subsequently informed by the tax collector that in order to pay taxes on their property it would be necessary to have a description of the premises by metes and bounds because the plat of Maderia Beach Subdivision had never been recorded. Appellants then demanded and received on May 7, 1935, a deed from Maderia Holding Company, Inc., conveying lot 6 of block 3 by metes and bounds.

Due to erosion along the shore of the Gulf, Miller in 1932 or 1933 erected a bulkhead about two feet west of his westerly boundary line. Again in 1935 Miller caused a second bulkhead or sea wall to be erected on the land now controverted. This second wall is slightly more than five feet west of appellants' westerly boundary.

In 1936, appellee Maderia Holding Company, Inc., sold the strip of land between appellants' westerly boundary line and the Gulf to Mae V. Brush, and received from the vendee a purchase money mortgage covering the property described in the deed. Mae V. Brush, joined by her husband, C. H. Brush, and Bay-To-Gulf, Inc., entered into an agreement whereby Mae V. Brush was to convey the property involved to Bay-To-Gulf, Inc., upon the performance of certain conditions by the corporation.

In 1937 appellants were notified by appellee Maderia Construction Company, Inc., acting as agent for appellee Bay-To-Gulf, Inc., to remove the sea wall within five days or legal steps would be taken to remove the same.

Appellants filed their bill of complaint against appellees praying for an injunction restraining appellees from demolishing the bulkhead and that appellants' title be quieted against any claim of appellees. Appellees filed answers in which they sought to restrain appellants from further maintaining the bulkhead upon the lands of appellees.

At the close of the testimony the chancellor entered his decree permanently enjoining appellants from interfering with or attempting to interfere with the rights of appellees to the use and enjoyment of the strip of land in question.

Appellants insist that the final decree attempted to quiet title to the lands in favor of appellees upon an unsworn answer when the lands were in actual possession of appellants and when no proper predicate was laid by necessary averments in such answer to justify such relief. In answer to this we state that the final decree adjudicated that the appellants had no right, title or interest in the lands and that appellants should thereafter be permanently enjoined from interfering with the rights of appellees.

The lower court was clearly within its province when it allowed the relief that was granted in this case. If, after hearing all the testimony, the chancellor had only dismissed the suit, it would have then been necessary for appellees to relitigate the same issues in order to gain possession of the rights which the lower court decided the appellees were entitled to. The answer in the instant case contained all the necessary averments along with a prayer for general relief. It is well settled principle of law, and oft stated by this court, that a court of equity once having properly taken jurisdiction of the parties and the subject matter of a cause, will determine all matters properly presented in relation thereto and will grant full relief. Switow v. Sher, 136 Fla. 284, 296, 186 So. 519, 524.

Any relief may be granted under a general prayer which is warranted by the case made by the pleadings and proof and not inconsistent with the relief specifically prayed for. Sec. 35(2), 1931 Chanc.Act, Acts 1931, c. 14658. Pinellas Packing Co. v. Clearwater Citrus Growers' Ass'n, 75 Fla. 247, 78 So. 16. The relief in the instant case would not have been full and complete without the granting of the injunction to appellees.

Appellants present several theories seeking to establish title to the controverted property in themselves.

The first theory is that this strip of land had been impliedly dedicated as a street or passage way, the public having been actually using it as such. The unrecorded plat of Maderia Beach Subdivision does not show any markings on the space representing the strip of land which would indicate an intention to dedicate the strip for any purpose.

In order to constitute a dedication there must be (1) an intention, on the part of the proprietor of the land, to dedicate the property to public use and (2) an acceptance by the public. The proof of both of these facts must be clear, satisfactory and unequivocal. City of Miami v. Florida East Coast Ry. Co., 79 Fla. 539, 84 So. 726; City of Palmetto v. Katsch, 86 Fla. 506, 98 So. 352. The mere user by the public, without the consent or objection of the owner, does not show an intention to dedicate. City of Palmetto v. Katsch, supra. In the instant case the record fails to show, by clear and satisfactory proof, any intent on the part of appellees to dedicate the land to public use. Therefore, it follows that this contention of appellants is without merit.

Appellants' second contention is that all of the appellees are estopped from seeking any affirmative relief due to the fraudulent misrepresentations of the appelice Archibald that the property was water front land. The chancellor, in his findings of fact, held that appellants had failed to prove the existence of any fraud. It is true that the testimony on this point is conflicting, but the Judge of the lower court had the opportunity to observe as well as hear the witnesses and his decree will not be reversed on findings of fact supported by the evidence unless it is made clearly to appear that such finding is erroneous. Schonfeld v. Engler, 119 Fla. 138, 160 So. 879; Boyte v. Stoer, 114 Fla. 395, 153 So. 845; Fickling Properties, Inc. v. Smith, 123 Fla. 556, 167 So. 42; Walter J. Dolan Properties, Inc. v. Vonnegut, 117 Fla. 830, 158 So. 457; Sabins v. City of Daytona Beach, 130 Fla. 62, 177 So. 229; Nolen v. Nolen, 121 Fla. 130, 163 So. 401; Johns v. Gillian, 134 Fla. 575, 184 So. 140. There is ample evidence in the record to support the finding of the chancellor that there was no fraud in connection with the sale of the land to appellants.

The third contention of appellants is that they became vested with the title to the land in question by reason of a gradual erosion of the beach to such an extent that the ordinary or high water mark of the Gulf had reached a point east of appellants' westerly boundary...