Twenty-third Street Realty Corp. v. City of Miami Beach

• Decision Date: 13 October 1939
• Citation: 140 Fla. 257,191 So. 464
• Court: Florida Supreme Court
• Parties: TWENTY-THIRD STREET REALTY CORPORATION v. CITY OF MIAMI BEACH. RONEY INV. CO. v. SAME. RONEY INV. CO. et al. v. SAME.

191 So. 464

140 Fla. 257

TWENTY-THIRD STREET REALTY CORPORATION v. CITY OF MIAMI BEACH.

RONEY INV. CO. v. SAME.

RONEY INV. CO. et al. v. SAME.

Florida Supreme Court, Division A.

October 13, 1939

Consolidated suits in equity by the City of Miami Beach against the Roney Investment Company and against such company and the Twenty-Third Street Realty Corporation to enjoin obstructions on certain lands. From a decree for defendants in the first suit, plaintiff appeals, and from a decree for plaintiff in the second suit, defendants appeal.

Affirmed in part, and reversed in part, with direction.

COUNSEL

E. L Lockhart, of Miami Beach, for appellants.

Ben Shepard, Charles M. Moon, Stuart Mackenzie, and A. N. Spence all of Miami, for appellees.

Stapp Gourley, Ward & Ward and K. D. Harris, all of Miami, amici curiae.

OPINION

BUFORD Justice.

On the 4th day of January, 1916, a dedication declaration was made and executed by the land owners on a plat of a subdivision identified as Amended Map of 'The Ocean Front Property of the Miami Beach Improvement Company.'

The record shows conclusively that there was never any formal or record acceptance of the dedication on behalf of the municipality or of the county in which the sub-division was located. Therefore, unless the dedication became consummated by user, there was no dedication of the streets described on the plat and involved in this suit.

On May 29th, 1917, Ordinance No. 99 was adopted, as follows:

'Ordinance No. 99

'An Ordinance Vacating a Portion of Certain Streets and Alleys in the Town of Miami Beach, Dade County, Florida, as the Same are Designated upon the Amended Map of the Ocean Front Property of the Miami Beach Improvement Company, Recorded in Plat Book 5, at Pages 7 and 8 in the Office of the Clerk of the Circuit Court in and for Dade County.

'Be it ordained by the Town Council of the Town of Miami Beach, Florida, that:

'Section 1. The following described portions of streets, alleys and highways lying and being within the corporate limits of said Town, according to the Amended Map of the Ocean Front Property of the Miami Beach Improvement Company, recorded in Plat Book 5 at pages 7 and 8 in the office of the Clerk of the Circuit Court in and for Dade County, Florida, be and the same are hereby vacated, discontinued and abolished.

'(a) That portion of Miami Beach Drive lying between the south boundary line of that street or thoroughfare designated on said plat as 'Hotel Place' produced eastwardly across said Miami Beach Drive, as a northern boundary of the tract herein vacated, and the South boundary line of the block designated on said plat as 'Hotel Site' produced eastwardly across said Drive as a southern boundary of the tract herein vacated.

'(b) That certain alley extending from the south line of Seventh Street southwardly through Block Thirteen (13) to the north boundary line of Sixth Street, according to the place aforesaid.

'(c) That certain alley extending from the south line of Sixth Street southwardly through Block Eleven (11) to its point of intersection with the circular street lying to the south of said block.

'Section 2. This ordinance shall take effect immediately after its passage, after posting at the Town Hall of said Town for a period of four weeks.

'Section 3. All Ordinances or parts of ordinances in conflict herewith are hereby repealed.

'Read the first and second time May 1st, 1917

'Third and final reading May 15th, 1917.

'(Signed) Thomas. J. Pancoast

'President of Council

'Attest:

'(Signed) J. F. Canova

'Town Clerk.

'Approved this 29th day of May, A. D. 1917.

'(Signed) J. N. Lummus

'Mayor.'

The area described in paragraph (A) of Section 1 of the Ordinance is one of the parcels of property involved in this suit.

On the 20th day of March, 1917, the following ordinance was passed:

'Ordinance No. 96.

'An Ordinance Vacating a Portion of Atlantic Avenue and a Portion of Ocean Front Walk of the Town of Miami Beach, Dade County, Florida.

'Be it ordained by the Town Council of the Town of Miami Beach, Florida, that:

'Section 1. The following described portions of streets and sidewalks lying and being within the corporate limits of said Town, according to the plat of said streets and sidewalks recorded in Plat Book 5 at pages 7 and 8 in the office of the Clerk of the Circuit Court in and for Dade County, Florida, be and the same are hereby vacated, discontinued and abolished.

'(a) That portion of Atlantic Avenue lying and being between the east line of Collins Avenue produced across said Atlantic Avenue, and the eastern terminus of said Atlantic Avenue as shown by said plat.

'(b) That portion of Ocean Front Walk extending from the south line of Atlantic Avenue and the south line of said Avenue produced in an easterly direction as a northern boundary, to the north line of Ocean Avenue as a southern boundary, all as shown by the plat aforesaid.

'Section 2. This ordinance shall take effect immediately upon its passage, after posting at the door of the Town Hall of said Town for a period of four (4) weeks.

'Section 3. All Ordinances or parts of ordinances in conflict herewith are hereby repealed.

'Placed upon its final reading and passed this 20th day of March, A. D. 1917.

'(Signed) Thos. J. Pancoast

'President of Council.

'Attest:

'(Signed) J. F. Canova

'Town Clerk

'Approved this 21st day of March, A. D. 1917.

'(Signed) J. N. Lummus

'Mayer.'

The area described in paragraph (a) of Section 1 is the other parcel of land involved in this suit.

A suit was filed by the City of Miami Beach against Roney Investment Company on September 7th, 1935, to enjoin obstruction on lands described in paragraph (a) of Ordinance No. 99, supra, and on the same day the City of Miami Beach filed suit against Roney Investment Company and Twenty-third Street Realty Company to enjoin obstruction of the property described in paragraph (a) of Section 1 of Ordinance No. 96, supra.

Afterwards the two suits were consolidated.

This is the second appearance of these cases here. See Roney Inv. Co. and Twenty-Third St. Realty Corp. v. City of Miami Beach, 127 Fla. 773, 174 So. 26. After the mandate went down answers were filed and testimony was taken on which decree was entered in favor of City of Miami Beach in the suit against Roney Investment Company and Twenty-third Street Realty Company and in favor of Roney Investment Company in the other suit. In each suit the losing party appealed.

We find no error in the decree in the case of City of Miami Beach v. Roney Investment Company.

Decrees should have been in favor of the defendants in both cases.

The Master assumed and held as follows:

'The defendants by their answers set up three defences to the bill: (1) that the original dedication of said street, as shown on the plats filed in evidence as Plaintiff's Exhibits A-1 and A-2, was never accepted by the Town of Miami Beach or by its successor, the City of Miami Beach; (2) that the alleged street was legally vacated by a valid ordinance of the Town of Miami Beach; (3) that the City of Miami Beach, by its conduct in reference to the use of said street by the defendants, is equitably estopped to maintain this bill.

'As to the first contention, it is undisputed in the evidence that the original dedicator of the plat in question, on or before the 20th day of March, 1917, applied to the Board of Aldermen of the Town of Miami Beach to vacate said street and that the Board of Aldermen did pass Ordinance No. 96, providing that said street be vacated, discontinued and abolished. It is the opinion of your Special Master, and he so finds, that such application and subsequent action by the Board of Aldermen of the Town of Miami Beach in adopting said ordinance, is conclusive evidence that such dedication had theretofore been accepted by the municipality.'

We cannot agree to such conclusion. The conduct referred to in the above quotation may have evidenced the existence of an opinion that the dedication had been accepted, but it could not be construed as evidence of a previous acceptance, nor could it be construed to be an acceptance because as such it came too late. The dedication must be accepted before it is withdrawn and certainly the application of the landowner, who tendered the dedication to the municipal authorities to 'vacate, discontinue and abolish' the dedication insofar as it applied to the described property, was a withdrawal of the offer of dedication.

The requisites for effective dedication are stated by this Court in Kirkland v. City of Tampa, 75 Fla. 271, 78 So. 17. See also City of Miami v. F. E. C. Ry. Co., 79 Fla. 539, 84 So. 726; City of Palmetto v. Katsch et al., 86 Fla. 506, 98 So. 352; Burns v. McDaniel, 104 Fla. 526, 140 So. 314; City of Pensacola v. Kersey, 115 Fla. 496, 155 So. 730.

In City of Miami v. Florida East Coast Ry. Co., 79 Fla. 539, 84 So. 726, it was held:

'To constitute a dedication at common law there must be an intention on the part of the proprietor of the land to dedicate the same to public use; there must be an acceptance by the public; and the proof of these facts must be clear, satisfactory, and unequivocal.

'The burden of proving acceptance of an offer to the public to dedicate lands for streets, alleys, and parks is upon the county or municipality asserting it.

'A common-law plat has no effect as a conveyance, and an offer to dedicate thereby created may be revoked by the owner or his grantee at any time before acceptance by the public.

'Where a common-law offer of dedication has been made and has not been accepted by or for the public, a conveyance before acceptance of the property so offered may...