Pelican Creek Homeowners, LLC v. Pulverenti

• Decision Date: 02 February 2018
• Docket Number: Case No. 5D16–4046
• Citation: 243 So.3d 467
• Parties: PELICAN CREEK HOMEOWNERS, LLC, H.A. Bussey, Katherine Bussey, Bonnie Wilhelm, Personal Representative of the Estate of Andrew Murray, and Herbert L. Pugh and Mabel J. Pugh, Appellants, v. John T. PULVERENTI and Dorothy E. Pulverenti, Appellees.
• Court: Florida District Court of Appeals

243 So.3d 467

PELICAN CREEK HOMEOWNERS, LLC, H.A. Bussey, Katherine Bussey, Bonnie Wilhelm, Personal Representative of the Estate of Andrew Murray, and Herbert L. Pugh and Mabel J. Pugh, Appellants,

v.John T. PULVERENTI and Dorothy E. Pulverenti, Appellees.

Case No. 5D16–4046

District Court of Appeal of Florida, Fifth District.

Opinion filed February 2, 2018

James R. Dressler, Merritt Island, for Appellants.

James H. Wyman, of Hinshaw & Culbertson LLP, Coral Gables, and Glenn S. Banner, of Hinshaw & Culbertson LLP, Jacksonville, for Appellees.

EGAN, ROBERT, Associate Judge,

H.A. and Katherine A. Bussey, Andrew Murray, Herbert L. and Mabel J. Pugh, (collectively "Appellants"), and Pelican Creek Homeowners, LLC ("PCH")¹ appeal the final summary judgment granted in favor of John T. and Dorothy E. Pulverenti ("Appellees"), which denied Appellants' injunction seeking the removal of Appellees' boathouse and dock from Appellants' property. Because Appellants established their ownership of the disputed property, we reverse the trial court's previous denial of their motion for summary judgment seeking injunctive relief, as well as the order granting summary judgment in favor of Appellees. We affirm, without further discussion, both summary judgment orders related to the PCH claims.

The origins of this dispute reach back to 1960 when Arthur J. and Florence W. Gould ("Pelican Developers") platted land they owned within Morningside Heights as Pelican Creek Estates. The plat was divided into thirty lots, with a road down the center of the plat and two canals connecting to the Banana River, one on the north ("canal one") and one on the south ("canal two") margins of the plat. Pelican Developers wrote the following on the dedication plat:

KNOW ALL MEN BY THESE PRESENTS, That the undersigned, being the owners in fee simple of the lands described in the foregoing caption to this plat, do hereby dedicate said lands and plat for the uses and purposes therein expressed and dedicate the Streets, alleys, thoroughfares, parks, canals, and drainage easements shown hereon to the perpetual use of the public.

Pelican Developers also platted a ten-foot drainage easement ("drainage area") along the north side of canal one, on the margin of the plat, and dedicated the easement to Brevard County for maintenance purposes, which the county subsequently relinquished by resolution in 1980. Appellants own adjoining lots numbered six, seven, and eight, which are located on the south side of canal one.

Appellees' property is located in Morningside Heights, on the north side of canal one and the drainage area. Neither Appellees, nor their predecessors in title, have a valid claim to the drainage area or canal one. Appellees' dock and boathouse, which are the subject of this appeal, built in 2006, encroach into the drainage area and canal one.

In 2013, Appellants sued Appellees, alleging ownership of the drainage area and canal one, and seeking an injunction requiring Appellees to remove the dock and boathouse from the property. Appellants also sought to have Appellees enjoined from future trespass on the property. In April 2014, Appellants moved for summary judgment, arguing that Appellants owned the canal and drainage area. Appellees responded that an issue of material fact existed relating to their boundary lines. The trial court denied the motion for summary judgment, which forms one basis for Appellants' appeal.

Two years later, Appellees moved for final summary judgment, arguing they were entitled to judgment as a matter of law because Appellants did not have a property interest in the drainage area and lacked standing. Appellants argued they had title to the drainage area because a public dedication does not convey title to lands, citing Smith v. Horn, 70 Fla. 484, 70 So. 435 (1915), which holds that title to the portion of land subject to a public dedication remains with the dedicator and, when referenced in a plat map, accompanies the conveyance of the abutting lots. Appellants argued the court should deny the motion or alternatively grant summary judgment in their favor in relation to the drainage area. The trial court granted final summary judgment in favor of Appellees on September 20, 2016. This appeal followed.

The parties on appeal treat the September 20, 2016 order granting final summary judgment in favor of Appellees as a final order, subject to immediate appeal. We disagree because that order did not dispose of Appellees' compulsory counterclaims and the case required further judicial labor. See Sieber v. Gil, 193 So.3d 27, 30 (Fla. 3d DCA 2016) (holding a summary judgment order granting partition is not a final appealable order because compulsory counterclaims remained); City of Haines City v. Allen, 509 So.2d 982, 983 (Fla. 2d DCA 1987) ("If the counterclaim is compulsory, the disposition of it or the main claim cannot be appealed until both have been disposed of."). We nevertheless find jurisdiction pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(A), which allows review of non-final orders that "grant, continue, modify, deny, or dissolve injunctions, or refuse to modify or dissolve injunctions."

The trial court's final summary judgment order did not conclusively determine ownership of the disputed property consisting of the drainage area and canal, which we believe is necessary to resolve the issues in this case. The standard of review of a summary judgment order is de novo and requires viewing the evidence in the light most favorable to the non-moving party. See Skelton v. Real Estate Sols. Home Sellers, LLC, 202 So.3d 960, 961 (Fla. 5th DCA 2016) (quoting Sierra v. Shevin, 767 So.2d 524, 525 (Fla. 3d DCA 2000) ).

In order to determine ownership of the disputed property, this court must first determine whether Pelican Developers' public dedication in 1960 was a "common law dedication" or a "statutory dedication." A common law dedication,

[i]n the absence of clear contrary intent, does not divest the owner of the title to the land, but only subjects the land and the title to the public easement for street purposes; and, if the easement be lawfully surrendered and relinquished, the title to the land remains in the dedicator or his successors in title, discharged of the easement.

Robbins v. White, 52 Fla. 613, 42 So. 841, 843–44 (1907) (emphasis added).

By contrast, a statutory dedication divests the owner of title to the land. § 95.361, Fla. Stat. (2016). A statutory dedication can occur either when the government constructs and maintains a road continuously for four years or when the government maintains a road, though created by a private entity, for seven years. Id. With a statutory dedication, title to the land is vested with the government as follows:

The dedication shall vest all right, title, easement, and appurtenances in and to the road in:

(a) The county, if it is a county road;

(b) The municipality, if it is a municipal street or road; or

(c) The state, if it is a road in the State Highway System or State Park Road System,

Whether or not there is a record of a conveyance, dedication, or appropriation to the public use.

Id. Additionally, filing a map of the dedication and referring to section 95.361 serves as prima facie evidence that the government owns the land. Id.

Here, the dedication on the plat map does not refer to section 95.361, and no other record evidence suggests an intent by Pelican Developers to create a statutory dedication.² Therefore, the dedication to the public was a common law dedication, and, as such, title to the property remained with Pelican Developers subject only to the public easement. See Robbins, 42 So. at 843–44.

We next determine whether Pelican Developers, as the dedicator, reserved the land to itself when conveying the abutting lots. When the owner of a tract of land makes a subdivision and includes on the plat a dedication of roads, canals, or walkways for public use, the conveyance of the lots abutting the roads, canals, or walkways includes title to the property subject to the easement, unless expressly reserved by the dedicator. See Smith, 70 So. at 436 ; see also Burns v. McDaniel, 104 Fla. 526, 140 So. 314, 316 (1932) ("[I]n the absence of evidence to the contrary, an abutting lot owner is presumed to own the same to the center of the street."); Travis Co. v. City of Coral Gables, 153 So.2d 750, 751 (Fla. 3d DCA 1963) (applying the same rule to canals).

Additionally, section 177.085, Florida Statutes (2016), which codified the common law rule in 1972, provides:

When any owner of land subdivides the land and dedicates streets, other roadways, alleys or similar strips on the map or plat, and the dedication contains a provision that the reversionary interest in the street, roadway, alley or other similar strip is reserved unto the dedicator or his or her heirs, successors, assigns, or legal representative, or similar language, and thereafter conveys abutting lots or tracts, the conveyance shall carry the reversionary interest in the abutting street to the centerline or other appropriate boundary, unless the owner clearly provides otherwise in the conveyance.

(emphasis added). Further, dedicators had one year after the implementation of section 177.085 to expressly reserve title to the dedicated land or be forever barred. Id.

Here, the conveyances to Appellants and their predecessors did not contain a reservation of the land subject to the public dedication. There is also no record evidence that Pelican Developers asserted a claim after enactment of section 177.085. Therefore, the conveyances to Appellants of the abutting properties included title to the land subject to the public dedication. See Burns, 140 So. at 316.

Finally, we must determine how much of the land subject to public dedication Pelican Developers conveyed to the abutting property owners. Generally, abutting property owners receive title to half of the land subject to public dedication. See id. This rule follows the...