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Daytona Beach v. Tona-Rama, Inc.

Citation: 2 ELR 20510
No. No. P-335, 271 So. 2d 765/(Fla. Dist. Ct. App., 08/31/1972)

Where for more than twenty years members of the public had freely and openly used an area of beach for recreation, and where the city had exercised police powers over the area (including trash removal and enforcing parking prohibitions), the holder of the title to the property may not use the land to build an observation tower since the public has acquired a prescriptive right adverse to the owner's interests. Sporadic exercise of authority by the owners was not of a character to overcome the prescription acquired through the public's open use of the area, without permission and in a fashion inconsistent with the owner's use. Therefore, the city may not issue a building permit to the owner for the construction of the tower. The trial court's decision on a motion for summary judgment in favor of the public's rights is upheld on appeal.

Counsel for Appellants
Isham W. Adams
121 Broadway
Daytona Beach, Florida 32018

Counsel for Appellees
Anthony J. Grezik
Grezik and Johnson
326 South Grandview Avenue
Daytona Beach, Florida 32018

Counsel for Intervenor
Robert L. Shevin Attorney General
Barry Scott Richard Assistant Attorney General
Capitol
Tallahassee, Florida 32304

SPECTOR, Chief Judge, and JOHNSON, J., CONCUR.