Daytona Beach v. Tona-Rama, Inc.

No. P-335 (Fla. Dist. Ct. App. August 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.

[2 ELR 20511]

Wigginton, J.

Appellants seek review of a summary final judgment rendered in an action brought by appellees for declaratory and injunctive relief. It is contended on appeal that the pleadings, affidavits, depositions, exhibits, and other evidence in the file create genuine issues of material facts which may be resolved only upon a trial of the cause and not disposed of summarily by the judgment rendered herein.

The primary issue delineated by the pleadings calls for a judicial declaration as to the ownership of a parcel of land forming a part of the Atlantic Ocean beach and consisting of the soft sand area lying easterly of the established bulkhead line paralleling the beach on the west and the mean high water mark of the ocean which forms the border of the soft sand area on the east. The parcel in question is approximately 150 feet deep east and west and is adjacent to and southerly of an existing pier extending into the ocean. The soft sand area of the beach does not support vegetation and, although not normally covered by tidal action of the ocean, is occasionally covered by the sea during hurricanes, northeastern windstorms and extreme high tides.

As the purported record title owner of the parcel of land in question, appellants McMillan and Wright, Inc., applied to the City of Daytona Beach for a building permit authorizing it to construct an observation tower to be operated in connection with and as a part of its pier recreational facilities. The location of the tower is immediately south and adjacent to the existing pier and within the soft sand area of the beach. After much deliberation and an extensive investigation of the legal aspects of the application, a resolution was adopted by the City approving the application and authorizing the issuance of the requested permit.

Objection to the construction of the observation tower and a challenge to the City's right to grant a building permit for such construction were promptly registered by appellees as citizens and taxpayers of the community. After test borings were made but before construction of the tower was commenced, this action was instituted seeking declaratory relief as to ownership of the land on which appellants planned to construct the tower and an injunction to restrain any further action by appellants in the furtherance of its construction plans. After issue was joined on the pleadings, extensive discovery proceedings were had by which the depositions of many citizens, both interested and disinterested, were taken. Pretrial conferences were held and voluminous exhibits introduced pertinent to the issues raised for adjudication. Both sides filed motions for summary judgment supported by further affidavit proof.

A fair and objective consideration of all the evidence before the trial court establishes the following undisputed facts. For more than twenty years prior to the institution of this action the general public visiting the ocean beach area had actually, continuously, and uninterruptedly used and enjoyed the soft sand area of the beach involved in this proceeding as a thoroughfare, for sunbathing, picnicking, frolicking, running of dune buggies, parking, and generally aa a recreation area and playground. The public's use of the area in question for the purposes hereinabove stated was open, notorious, visible, and adverse under an apparent claim of right and without material challenge or interference by anyone purporting to be the owner of the land. The City of Daytona Beach has constantly policed the area for the purpose of keeping it clear of trash and rubbish and for preserving order among the users of the beach; has controlled automobile traffic using the hard sand area of the beach and enforced a prohibition against parking by vehicles on the area in question; and has otherwise exercised the police power of the City over the area for the convenience, comfort, and general welfare of all persons using and enjoying the beach area.

Appellants, purporting to be the record title owners of the parcel of land in dispute, testified that the public's use of the soft sand are owned by them was not inconsistent with nor did it adversely affect their use of the parcel in the operation of their pier so they had no reason to prohibit or interfere with the public's use of the area during the preceding years. They testified also that in washing down the pier or replacing piling from time to time they did exercise the authority of requiring people in the area to move back a safe distance so as not to interfere with this work.

From these facts the trial court found that there had accrued in favor of the public a prescriptive right to an easement for thoroughfares, bathing, recreation, and playground purposes in and over the soft sand area of the beach lying between the bulkhead line on the west and the high water mark on the east. Based upon such findings the trial court concluded that, because of the existence of such prescriptive right, the City of Daytona Beach had no lawful authority to issue a building permit authorizing appellants, McMillan and Wright, Inc., to construct on the soft sand area any permanent structure in conflict with the public right. The court therefore mandatory enjoined McMillan any Wright, Inc., to remove the skytower built by it on the soft sand area during the pendency of this litigation and to restore the land to its original status as it existed prior to the commencement of such construction.

We have carefully considered the totality of the evidence which was before the trial court in its consideration of the motion for summary judgment filed by the respective parties. Although there appear several instances of disputed facts in the affidavits and depositions filed in the cause, such issues are more colorable than real and are not sufficiently substantial to create an issue which must necessarily be resolved by trial. The undisputed evidence supports the findings made by the trial court, and appellants have failed to demonstrate that such findings are either erroneous or constitute an abuse of discretion. It is our view that the sporadic exercise of authority and dominion by the owners over the parcel in question was not sufficient to preserve their rights as against the prescriptive rights which accrued to the benefit of the public by its use of the beach area.

Appellants further contend that the trial court applied to the facts found by it in this case incorrect principles of law when it concluded that there had accrued to the public a prescriptive right to the soft sand area of the beach involved in this case. With this contention we are unable to agree. In the cases of City of Miami Beach v. Miami Beach Improvement Co.¹ and City of Miami Beach v. Undercliff Realty & Investment Co.,² the Supreme Court of Florida recognized that under proper factual circumstances the public may acquire a prescriptive right in beach or oceanfront land as against the rights of the record title holder.

In setting forth the elements necessary to be proved in order to establish a prescriptive right in land, the Supreme Court in Downing v. Bird.³ said:

"In either prescription or adverse possession, the right is acquired only by actual, continuous, uninterrupted use by the claimant of the lands of another, for a prescribed period. In addition the use must be adverse under claim of right and must either be with the knowledge of the owner or so open, notorious, and visible that knowledge of the use by and adverse claim of the claimant is imputed to the owner. In both rights the use or possession must be inconsistent with the owner's use and enjoyment of his lands and must not be a permissive use, for the use must be such that the owner has a right to a legal action to stop it, such as an action for trespass or ejectment.

[2 ELR 20512]

"While there are slight differences in the essentials of the two actions, they are not great. In acquiring title by adverse possession, there must of course be 'possession'.In acquiring a prescriptive right this element is use of the privilege, without actual possession. Further, to acquire title the possession must be exclusive, while with a prescriptive right the use may be in common with the owner, or the public."

Based upon the foregoing authorities, we conclude that the trial court applied correct principles of law to the facts found by it in holding that the public has acquired a prescriptive right to the continued use and enjoyment of the soft sand area constituting the parcel of land involved in this case and that appellant City of Daytona Beah was without lawful authority to grant to appellant, McMillan and Wright, Inc., as owners of the land, a building permit to construct the observation tower which forms the basis of this dispute.

During the course of our consideration this court became concerned with whether the following adjudicatory provision of the judgment appealed was impermissibly broad, to wit:

"(3) That the Defendant City of Daytona Beach, Florida, is hereby enjoined from authorizing or purporting to authorize any person, firm, or corporation to build or construct any permanent structure on any of the lands described in paragraph three of Plaintiff State of Florida's cross complaint."

Upon further study we have concluded that the quoted provision of the judgment is not so sweeping in its terms as to prevent appellant City of Daytona Beach from exercising supervisory jurisdiction over the soft sand area of the beach within its corporate limits in the proper exercise of its police power. Within the narrow limits of its authority, the City is empowered to build or construct on the area in question structures such as lifeguard towers, public sanitation facilities and the like as in its discretion will be in the public interest and not inconsistent with the prescriptive easement vested in the public generally.

The judgment appealed is affirmed.

1. City of Miami Beach v. Miami Beach Improvement Co., (Fla. 1943) 14 So. 2d 172.

2. City of Miami Beach v. Undercliff Realty & Investment Co., (Fla. 1945) 21 So. 2d 783.

3. Downing v. Bird, (Fla. 1958) 100 So. 2d 57, 64, 65.