Winter Park Pines Development Co. v. Kohloss, 2107

• Decision Date: 15 January 1971
• Docket Number: No. 2107,2107
• Citation: 244 So.2d 493
• Parties: WINTER PARK PINES DEVELOPMENT CO., a Florida corporation, Appellant, v. Agnes M. KOHLOSS and Development Company of Orlando, Inc., a Florida corporation, Appellees.
• Court: Florida District Court of Appeals

Page 493

244 So.2d 493

WINTER PARK PINES DEVELOPMENT CO., a Florida corporation, Appellant, v. Agnes M. KOHLOSS and Development Company of Orlando, Inc., a Florida corporation, Appellees.

No. 2107.

District Court of Appeal of Florida, Fourth District.

Jan. 15, 1971.

As Amended on Denial of Rehearing.

Appeal from Circuit Court, Orange County; Roger A. Barker, Judge.

Donald B. Smith, of Smith, Lovett & Kreuter, Orlando, for appellant.

Donald R. Corbett and Charles H. Williams, Orlando, for appellee Agnes M. Kohloss.

PER CURIAM.

Affirmed.

REED, J., and McCAIN, DAVID L., Associate Judge, concur.

CROSS, C.J., dissents with opinion.

CROSS, Chief Judge (dissenting).

I must of necessity respectfully dissent.

The genesis of this cause was the institution of a suit by the plaintiff, Agnes M Kohloss, for declaratory relief wherein she seeks a judgment declaring her to be the fee owner of certain property, to-wit, the East ten feet of Lot One, of Block B, of Eden Acres, which property is located in Orange County, Florida.

The plaintiff owns property that abuts this strip of subdivision land but which is outside the subdivision.

The property in question was originally owned by the defendant, Development Company of Orlando, Inc., which (pursuant to Chapter 59-1646, as amended by Chapter 1658 Special Acts of 1959 ¹) platted Lot 1 as Ranger Boulevard. Subsequently the defendant, Development Company of Orlando, Inc., filed a petition with the Board of County Commissioners to close, vacate and abandon a portion of Ranger Boulevard, and the Commission so adopted a resolution vacating and abandoning the East ten feet and the West ten feet of Ranger Boulevard. The clerk recorded the abandonment, and thereafter the Development Company of Orlando, Inc., deeded the East and West ten feet of Ranger Boulevard to the defendant, Winter Park Pines Development Co. The plaintiff purported to have acquired title to the East ten feet as an abutting property owner by virtue of the abandonment. ² The trial court agreed, and summary final judgment was entered for the plaintiff, and the majority herein by affirming that summary final judgment has compounded the error of the trial court.

Initially, Chapter 59-1658, § 7(2)(g), is at best vague as to the interest acquired by the public when an owner dedicates land for a road, street, alley, or other right-of-way. This section states that the effect of such a dedication "shall be to vest in the public body having control and jurisdiction of the roads, streets, alleys and other rights-of-way, and its successors, full, complete and exclusive possession and control of the same ***."

It is fundamental that possession and control is not synonymous with ownership or title. A person may have possession and control of something without being the owner thereof or having title thereto. Title implies possession and control, but possession and control does not necessarily imply title.

I am not inclined to assume under the wording of this statute that the public acquires fee simple title or any other title to the dedicated land. By the wording of the statute the public acquires only possession and control. It therefore cannot be reasonably argued that upon abandonment of the public's possession and control of the dedicated land, title would be in anyone but the dedicator.

It is a general rule of the common law that the fee of the land over which a highway passes is owned equally by the owners of the adjoining ground. 39 Am.Jur.2d, Highways, Streets and Bridges § 160. This rule, however, is not artificial and of positive institution, but is founded on the presumption in the absence of proof that the highway was originally granted by the adjoining proprietors over their land in equal proportion. This is not a presumptio juris et de jure, but a reasonable presumption based on probability. Where it appears, however, that the highway was laid wholly over the land of one person, the presumption is annulled, and to hold by inference against fact that the fee of one person should be extended beyond his land and of the other, restrained to narrower limits because he had dedicated his land for a road would be a most inequitable fiction.

The majority most erroneously believes that by virtue of Section 336.12, Florida Statutes, F.S.A., a street when vacated must be equally divided between the property owners of the respective opposite sides of the street, irrespective of the fact that the whole street came from the property of one party, the statute talks in the terms of "abutting fee owners." Is this to be...