Peninsular Point, Inc. v. South Georgia Dairy Co-op.

• Decision Date: 24 August 1971
• Docket Number: I,No. 0--137,CO-O,0--137
• Citation: 251 So.2d 690
• Court: Florida District Court of Appeals
• Parties: PENINSULAR POINT, INC., a Florida corporation, Appellant, v. SOUTH GEORGIA DAIRYnc., a Georgia corporation, Appellee.

Page 690

251 So.2d 690

PENINSULAR POINT, INC., a Florida corporation, Appellant, v. SOUTH GEORGIA DAIRY CO-OP, Inc., a Georgia corporation, Appellee.

No. 0--137.

District Court of Appeal of Florida, First District.

Aug. 24, 1971.

Rehearing Denied Sept. 14, 1971.

W. J. Oven, Jr., Tallashassee, for appellant.

Jesse F. Warren, Jr., Tallahassee, for appellee.

SPECTOR, Chief Judge.

Appellant seeks reversal of a final judgment rendered against it in a suit to enjoin appellee from obstructing a platted street which had been abandoned. The suit also had as its purpose the quieting of title to the abandoned street in the appellant.

Appellant was the original subdivider of waterfront property in Franklin County known as Alligator Point. Appellant platted a subdivision consisting of a narrow strip of land fronting on the Gulf of Mexico. The subdivision embraces a street or highway designated as Gulf Shore Boulevard which is parallel to the Gulf beach. A series of lots extend from Gulf Shore Boulevard to the beach, and there are several streets approximately one thousand feet apart which extend from the boulevard to the beach providing access thereto. Said beach access streets are equal in length to the abutting lots. Gulf Shore Boulevard was paved by the State on the express condition that an adequate number of streets from the boulevard to the beach be provided so that the public would have ample access to the public beach.

The street specifically involved in this action lies between Lot 8, Block 'J', and Lot 1, Block 'O' of Peninsular Point, Unit No. 4, as recorded in Plat Book 1, Page 22 of the Public Records of Franklin County, Florida. The record reflects that on August 17, 1963, the Board of County Commissioners of Franklin County, Florida, by resolution formally abandoned the public rights to the platted street here in question. Apparently, appellee's predecessors in title thereafter constructed a fence blocking off the entire access street lying between appellee's two lots.

The recorded plat of the subdivision dedicating the street in question bore on its face a dedication which stated the following material language:

'* * * and does hereby dedicate to the perpetual use of the public, as public highways, the streets as shown hereon, reserving unto itself, its heirs, successors, assigns, or legal representatives, the reversion or reversions of the same, whenever abandoned by the public or discontinued by law.'

The plat containing the above dedication was executed and recorded before any lots were sold. Thereafter, appellant sold the two lots bordering on the street in question by reference to the plat, and by mesne conveyances title to said lots has become vested in the appellee.

The issue considered below and in this court was which of the parties has better title to the fee of the abandoned street. The trial court, relying on Smith v. Horn, 70 Fla. 484, 70 So. 435 (1915), resolved the issue in favor of appellee. The crucial language in Smith v. Horn upon which appellee relies is as follows:

'Where the owner of land has it surveyed, mapped, and platted, showing subdivisions thereof, with spaces for intervening streets or other highways between the subdivisions clearly indicated upon the map or plat, and conveyances in fee of the subdivisions are made with reference to such map or plat, the owner thereby evinces an intention to dedicate an easement in the streets or other highways to the public use as such, the title to the land under the street remaining in the owner or his grantees; and, where such conveyances are made with reference to the map or plat, the dedication of the easement for street purposes cannot be subsequently revoked as against the grantees, and the title of the grantees of subdivisions abutting on such streets, in the absence of a contrary showing, extends to the center of such highway, subject to the public easement. And, where the highway is lawfully surrendered, the then holder of the title to abutting property and to the center of the street has the property relieved of of the public easement. See Moody v. Palmer, 50 Cal. 31; Trustees M. E. Church, Hoboken, v. Mayor and Council of Hoboken, 33 N.J.Law, 13, 97 Am.Dec. 696; Winter v. Payne, 33 Fla. 470, 15 South. 211; Porter v. Carpenter, 39 Fla. 14, 21 South. 788; Price v. Stratton, 45 Fla. 535, 33 South. 644; Florida E.C.R. Co. v. Worley, 49 Fla. 297, 38 South. 618; Paine v. Consumers' Forwarding & Storage Co., (6 Cir.) 71 Fed. 626, 19 C.C.A. 99; Garnett v. Jacksonville, St. A. & H.R.R. Co., 20 Fla. 889; Florida Southern R. Co. v. Brown, 23 Fla. 104, 1 South. 512; Lovett v. State, 30 Fla. 142, 11 South. 550, 17 L.R.A. 705; Rawls v. Tallahassee Hotel Co., 43 Fla. 288, 31 South. 337; Robbins v. White, 52 Fla. 613, 42 South. 841; Seaboard Air Line Ry. v. Southern Inv. Co., 53 Fla. 832, 44 South. 351, 13 Ann.Cas. 18; 5 Cyc. 911; 8 R.C.L. § 18.'

Appellant, while recognizing the soundness of the rule of law stated above, contends that the same is inapplicable to the facts in the case at bar. We agree and reverse.

In Smith, the court recognized that the rule invoked therein was not appropriate where there is a contrary showing that the owner intended the grant or conveyance to extend to the center of the street. The recognition that the grantor's intention to convey to the center of the street is subject to a contrary showing or is susceptible of being negated is consistent with the general rule recited in Volume 1, Patton on Titles, § 143, Page 374, as follows:

'* * * And when the description is by a lot of a plat, which shows the lot to be bounded by a highway, street, or alley, the grant extends to the center of the public way, if the grantor owns that far, in the absence of a clear intention to the contrary. * * *'

Footnotes to the text show that some twenty jurisdictions, including Florida, subscribe to the principle that the rule articulated in Smith v. Horn obtains only 'in the absence of a clear intention to the contrary'. Appellant argues that such clear intention to the contrary is manifest in the language of reservation found in the dedication and we agree. Of course, in Smith v. Horn, no such reservation appeared on the recorded plat of the subdivision there involved as is the case in the recorded plat here. Nor did the court's opinion in Smith, supra, make any mention of such a reservation appearing either in the recorded plat of the 'Memento' subdivision or in any of the deeds by which the conveyances of lots in that subdivision were made. In our view, that factor renders the facts in the case at bar vitally distinctive from those in the Smith case so as to make that ruling inapplicable here.

Even in Servando Building Company v. Zimmerman, 91 So.2d 289 (Fla.1956), relied on heavily by appellees, the court reiterated the rule in Smith v. Horn, ...