Wilson v. Dunlap

• Decision Date: 02 April 1958
• Citation: 101 So.2d 801
• Parties: Percy S. WILSON and Alda C. Wilson, his wife, Appellants, v. Anne Snyder DUNLAP, joined by her husband, Dale Dunlap, for the use and benefitof Ollie Mae Nevels, Trustee, Appellees.
• Court: Florida Supreme Court

Page 801

101 So.2d 801

Percy S. WILSON and Alda C. Wilson, his wife, Appellants, v. Anne Snyder DUNLAP, joined by her husband, Dale Dunlap, for the use and benefitof Ollie Mae Nevels, Trustee, Appellees.

Supreme Court of Florida.

April 2, 1958.

Sam. Y. Allgood, Jr., and Otis B. Russell, Jr., New Port Richey, for appellants.

Herbert L. Peterson and Erle B. Askew, St. Petersburg, for appellees.

DREW, Justice.

The appellee, Anne Snyder Dunlap, plaintiff in the court below, was at the inception of this litigation the owner of Lots 21 and 22 in a subdivision known as Pinellas Groves, located in Pinellas County and shown upon a plat in the public records of that county, as follows:

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The plat in question, by reference to which sale was made to predecessors in title of the plaintiff Dunlap, was a composite one covering not only the subdivision here involved but also adjacent areas platted by the subdivider.

As shown by the diagram, plaintiff's lots abut upon a strip of land approximately 100 feet in width running between the subdivision and Boca Ciega Bay, this strip being designated at various points on the plat as 'Beach' and 'Beach Parkway.' Subsequent to the sale of all lots in the subdivision, the surviving representatives of the original corporate grantor conveyed to the defendants, Percy and Alda Wilson, defendants below, as follows:

'All land, submerged land and accretions lying between the Southerly property lines of (the lots described) extended to navigable water in Boca Ciega Bay * * * including whatever right, title and interest grantors have in that certain strip designated as 'Beach' * * *'

By a bill to cancel this deed, plaintiff set forth the above facts and claimed that by making sales with reference to such a plat the original grantor had divested itself of every right, title or interest in the contested strip and vested the fee in the owners of contiguous lots, 'who had purchased the same on the faith of the representation contained on said plat that said strip of land constituted a Beach, subject only to the easement for public purposes.' It was further claimed that riparian rights were vested in plaintiff by reason of her ownership of the fee of said Beach. By an amendment to the bill plaintiff alleged for the first time that the contested strip was intended to be a roadway for the use and benefit of the owners of lots abutting thereon. Defendants' answer denied that the plat showed the marginal land as a roadway or that sale of the lots by the plat amounted to a representation that they were waterfront lots, and claimed also to be the owners of riparian rights incident to the beach area.

In support of motion for summary decree, the plaintiff submitted two affidavits, her own to the effect that she purchased the lots 'by reason of the proximity thereof to the waters of Boca Ciega Bay, inasmuch as the plat * * * designated the open strip of land South of said lots and contiguous thereto, as a beach and beach parkway,' and an affidavit of a county engineer stating his opinion that the strip in question was laid out and intended to be a street or roadway, based on reference to attached copies of the plat above shown and the physical facts as to ingress and egress indicated thereon. No counter affidavits were submitted by defendants, and upon hearing on plaintiff's motion a final summary decree was entered against defendants.

The court found as a fact 'that said strip of land was and is intended as a roadway or street,' and duly decreed that the conveyance of contiguous lots to plaintiff's predecessor 'conveyed the fee simple title in and to the roadway * * * subject only to the easement for roadway or street,' vesting in the grantee, and, through mesne conveyances, in the plaintiff, riparian rights as an incident to such fee. The deed purporting to convey to defendants the corporate grantor's residual interest in the strip was accordingly cancelled and defendants enjoined from asserting any right or interest in the beach area.

Neither party has at any time, in the proceeding below or upon this appeal, contested the existence of an 'easement for public purposes' in the marginal strip, and there is no assertion that public rights of user have been infringed. The only question is whether the marginal strip on the shore was intended to be set aside for roadway purposes, so as to imply a grant of the fee to at least a portion of the street area as an incident to the conveyance of abutting lots to plaintiff's predecessor. See Smith v. Horn, 70 Fla. 484, 70 So. 435.

If the area had been designated simply 'beach,' there can be no doubt that plaintiff could not prevail, for in that situation the law does not imply a grant of the fee or any exclusive rights to abutting owners, but creates instead an easement in favor of all purchasers in the subdivision, abutting or otherwise. McCorquodale v. Kayton, Fla., 63 So.2d 906. The subdivider is left with a subservient fee, estopped of course to exercise any rights in the area which will interfere in any way with the enjoyment of the easement by those entitled thereto. Nothing in that doctrine, however, will prevent a conveyance of this residual fee by the original grantor to another party, for the presumption would be that the grantee took title in full recognition of the easement with which it is encumbered. No cause of action could arise out of such a conveyance unless and until the easement was in some way impaired by action or conduct of the grantee.

This the plaintiff would apparently concede, but she proceeds on the theory that the labeling of the marginal strip as 'beach parkway' as well as 'beach,' along...