Title & Trust Co. of Florida v. Barrows

• Decision Date: 07 August 1979
• Docket Number: No. MM-106,MM-106
• Court: Florida District Court of Appeals
• Parties: TITLE & TRUST COMPANY OF FLORIDA, a corporation, Appellant, v. Belden N. BARROWS and Edith B. Barrows, his wife, Appellees.

Page 1088

381 So.2d 1088

TITLE & TRUST COMPANY OF FLORIDA, a corporation, Appellant, v. Belden N. BARROWS and Edith B. Barrows, his wife, Appellees.

No. MM-106.

District Court of Appeal of Florida, First District.

Aug. 7, 1979.

Earl M. Barker and Delbridge L. Gibbs of Marks, Gray, Conroy & Gibbs, Jacksonville, for appellant.

S. Gordon Blalock of Blalock, Holbrook, Akel & Poitevent, Jacksonville, for appellees.

Peter Guarisco, Tallahassee, for amicus curiae.

McCORD, Acting Chief Judge.

This appeal is from a final judgment awarding money damages to appellees for breach of title insurance policy. We reverse.

Through a realtor, appellees purchased, for $12,500, a lot surrounded on three sides by land owned by others, all of which is a part of a beach subdivision. The fourth side of appellee's lot borders on a platted street called Viejo Street, the right-of-way for which has been dedicated to and accepted by St. Johns County. The right-of-way line opposite appellees' lot abuts a Corps of Engineers' right-of-way in which there is a stone breakwater. The intracoastal waterway flows on the other side of the breakwater.

The realtor who sold the lot to appellees represented to them that the county would build a road in the right-of-way along Viejo Street when appellees began plans for building on their lot. There have been no street improvements in the dedicated right-of-way, and St. Johns County has no present plans for making any improvements. The "road" is merely a continuation of a sandy beach.

A year after purchasing the land appellees procured a survey which disclosed that the elevation of their lot is approximately one to three feet above the mean high water mark. They later discovered that their lot, along with the Viejo Street right-of-way abutting it, is covered by high tide water during the spring and fall of each year.

At the time appellees purchased their lot, they obtained title insurance coverage from appellant. The title policy covered:

"Any defect in or lien or encumbrance on the title to the estate or title covered hereby . . . or a lack of a right of access to and from the land; . . . ."

Appellees' complaint of lack of right of access was founded on the impassable condition of the platted street. After trial without a jury, the trial court entered final judgment finding that appellees did not have access to their property and, therefore were entitled to recover $12,500 from appellant the face amount of the policy.

Appellant and Florida Land Title Association, appearing as amicus curiae, argue that appellant cannot be held liable on grounds of "lack of right of access to and from the land" since there is no defect shown by the public record as to their right of access; that the public record shows a dedicated and accepted public right-of-way abutting the lot. They contend that title insurance does not insure against defects in the physical condition of the land or against infirmities in legal right of access not shown by the public record. See Pierson v. Bill, 138 Fla. 104, 189 So. 679 (1939). They argue that defects in the physical condition of the land such as are involved here are not covered by title insurance. We agree....