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Tax Deed to Public Lands Does Not Create An Interest In the Land

PLAINTIFFS’ MEMORANDUM OF LAW IN SUPPORT OF THEIR (DATE)MOTION FOR PARTIAL SUMMARY JUDGMENT

Plaintiffs, (    NAME) et al. hereby file this memorandum of law in support of their argument that the “Stub Road” was dedicated to the public and the Defendants have a duty to remove the barricade and reopen the Stub Road to the public for their use and enjoyment.

STATEMENT OF FACTS AND CLAIMS

Plaintiffs own lots that adjoin the Stub Road. EXHIBIT Ais a property search conducted by the City of Blackacre that contains the chain of title for the Stub Road including the 1974 Plat Plan of Whiteacre East of Blackacre which was filed in the clerk’s office of Palm Beach County. Shown on the Plat Plan are roads, one of which is the Stub Road which is 50 by 155 feet joining Main Dr., a paved road, to a proposed bridge over the canal which borders the south boundary of the platted property. EXHIBIT B is a partial drawing of “Development Plan Whiteacre East, Palm Beach County, Florida” dated January 26, 1977 showing the paved roads and the proposed Stub Road leading from Main Drive to the Acme Drainage District Canal C-XX

The purpose for the Stub Road was stated in the official transcript of the application to be for access to a future bridge across the canal; See EXHIBIT C Paragraph 13.

There is no official record of the Stub Road being tax prior to 1989. The first recorded tax bill did not appear on the record until September 11, 1998. 

Land Florida, Inc. was the developer and owner of the undeveloped land prior to the sale of lots and dedication of the roads and easements shown on the Plat Plan. 

Plaintiffs argue that the Office of the Clerk and Comptroller of Palm Beach County pursuant to due process of law and in the ordinary course of business would have sent a statutory notice to Land Florida, Inc. Instead notices were sent to other potential property owners of interest.  EXHIBIT D

Plaintiffs argue that the significance of multiple party notices is that the “owner” of the Stub Road was not known and that the Plaintiffs are parties with a potential interest in the Stub Road since they were included in the due process notice. 

The tax sale procedure was so flawed it is difficult to know where to start; however, Plaintiffs do not assert at this time that the Tax Deed procedure was defective, except to argue that as a result the tax deed is void ab initio. The following facts are included in this matter to show that the taxing authority had never assessed the stub road prior to 1989 and apparently was not certain as to whom the rightful owner was of the Stub Road at the time that the Tax Deed was issued.

The flawed procedure begins with notices that were never actually served on the above-named entities. See EXHIBIT D

Service was attempted on FIRST BLACKACRE INC. on or about January 10, 2008; however, FIRST BLACKACRE INC. was dissolved effective as of September 30, 2000.  See EXHIBIT E. Paragraph II E of the terms of dissolution reads “Dedications & EasementsAll rights of FWI under any and all plats or other recorded instruments to use or administer any dedicated rights-of-way, easements area, or other property shall be assigned to the City of Blackacre.”

Service was attempted on LAND FLORIDA INC. on or about January 10, 2000; however, on March 21, 1997 a “Withdrawal of Foreign Corporation” application was filed with the Florida Division of Corporations. EXHIBIT F

However beginning on or about February 15, 2006 a Tax Deed to the Stub Road was issued to 1 Asset Trust and recorded in Book 22719 of Deeds for Palm Beach County at page 1308, and later the then owner Smith as Trustee of Trust transferred the Strip Road by quit claim deed to Smith, Trustee of the Whiteacre  on or about June 23, 2008, and recorded in Book 3939 of Deeds for Palm Beach County at page 4949. EXHIBIT A

Defendant admits that the stub road was never vacated. EXHIBIT G Plaintiffs argue that a public road must be vacated and due process cannot be circumvented by arbitrarily taxing the road and delivering a tax deed; ergo, Plaintiffs argue that the tax sale of the sub road violated due process of law and that the tax deed is void ab initio. Plaintiffs argue that the public has a right to the use and enjoyment of the stub road and the current owner has no right to erect a blockade; furthermore, the City has a ministerial duty to reopen the stub road to the public. 

Plaintiffs have standing because if the Stub Road were properly vacated as the adjoining landowners the property in question would have by operation of law merged into the Plaintiffs’ titles.

Pursuant to a public records request PRR the Office of the Clerk and Comptroller of Palm Beach County was unable to provide proof of taxation prior to the year 2010.  EXHIBIT HThis is so despite the fact that a tax sale certificate was issued for taxes as of 1989.

 Finally, the official transcript of the application for subdivision approval stated that the Stub Road was to be for access by the public to a future bridge crossing the canal. EXHIBIT C This fact is not consistent with Defendant’s claim that the original developer intended to retain title to the land for a private park. This fact supports Plaintiffs’ claim that the Stub Road was intended as a public thoroughfare for access to a bridge that would cross the Acme Drainage District Canal C-XX in order to connect the subject development with the heart of the City proper.

According to the tax assessor’s records the Stub Road is newly identified as “WHITEACRE EAST OF BLACKACRE OPEN SPACE & REC AREA AS SHOWN ON PLAT” and assigned a use code of “9700 - OUTDR REC/PARK LAND”. EXHIBITs C & D; however, the Stub Road has not been assigned a lot and block designation. Thus far the Palm Beach County Tax Assessor has been unable to produce a tax bill for the Stub Road which was in allegedly in arrears and for which a tax sale certificate (number) was issued. 

The plat does have an arrow pointing to the Stub Road with the notation “open space & recreation area” EXHIBITB Plaintiff argues that an ambiguity exists and that the facts show that the intent was to create a Stub Road. 

Like the entire road system, the Stub Road is depicted on the map. The Stub Road is essentially a continuation of Main Drive and is delineated by the draftsman in the same manner as the interior roads shown on the map which have now all been paved; therefore, Plaintiffs argue that the Stub Road was not intended to be a private park for open space and recreation. The only rational use of a strip of land 50 by 155 feet is for a road and not for “open space and recreation”.

Easements are described on the Plat Plan, but roads are delineated by metes and bounds descriptions as shown on the Plat Plan. The Stub Road is not described as an easement; rather, it is delineated in the same manner as all the interior roads sown on the map. 

The current owner of the Stub Road under a deed of Tax Sale has closed off the Stub Road to public access and has been in exclusive possession of the land for more than seven years; nevertheless, one cannot obtain an exclusive right to use public lands by adverse possession.

The Acme Drainage District (ADD) was established in 1953. In 1971 the ADD began constructing roads and other infrastructure improvements. In 1974 the Plat Plan for Whiteacre was approved by the Palm Beach County Commissioners. The dedication of the Stub Road was to the ADD a governmental agency with the authority to levy taxes.  In 1975 the ADD became the Acme Improvement District (AID). These entities are Defendant’s special taxing districts and exist in part to maintain the Stub Road. 

EXHIBIT K is a Memorandum No. ( ) by the City attorney’s office and  addressed to the City Council, and Defendant (name)  the Stub Road is referred to as OSR (open space). The Memorandum is a negative pregnant with the admission that the Stub Road is not described as are all the other public easements shown on the Plat Plan. “the OSR is not depicted as right of way, easement, or road.” The fact is that none of the roads shown on the map are depicted as rights-of-way, easements, or roads. Further the Memorandum reads “The dedication language on the Plat is clear. The roads are dedicated to Acme.” (emphasis added) In effect the City admits that the roads were dedicated to the public, Acme being a instrumentality of Defendant’s government. The raison d'êtreof “Acme” (Acme Drainage District) was to maintain the roads shown on the Plat Plan for the benefit of the public.

Neither the Palm Beach County Commission pursuant to Fla. Stat. §336.09 (2013) Closing and abandonment of roads; authority, nor the City of Blackacre has ever officially vacated, abandoned, discontinued or closed the Stub Road in question.

Residents of Whiteacre are being deprived of access to the bridle path along the canal through the Stub Road in question. Plaintiffs seek a remedy because the current title holder pursuant to a Tax Deed has erected a barrier on the Stub Road to prevent public access for ingress and egress to bridle paths along the canal. 

STANDARD OF REVIEW

The purpose of a summary judgment is to avoid the expense and delay of trial where no issue exists concerning the material facts. National Airlines, Inc. v. Florida Equipment Company of Miami, 71 So.2d 741 (Fla. 1954).

When there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law and granting a motion for summary judgment is appropriate. Rule 1.510, Fla.R.Civ. P. Kuhnel v. Sledge, 306 So.2d 194 (1st DCA, 1975) cert. dismd., 336 So.2d 105 (Fla. 1975). 

The Court on a motion for summary judgment is to determine whether there is a genuine issue as to any material fact. Johnson v. Studstill, 71 So.2d 251 (Fla. 1954). 

The moving party does not have the burden to exclude every possible inference that the opposing party might have other evidence available to prove his case. Harvey Bldg., Inc. v. Haley, 175 So.2d 780 (Fla. 1965). 

The moving party’s burden is met when sufficient evidence is offered in its favor upon every element of the claim for relief except those elements admitted by his adversary in his pleadings, or by stipulation, or otherwise during the course of pre-trial.

(insert here STANDING TO SUE)

ARGUMENT

Plaintiffs argue that with respect to the Stub Road, whatever the quality of the current owner’s title, it is nevertheless encumbered by the right of the public to dedicated lands.

Plaintiffs first argue that the sale of the Stub Road at tax sale was a nullity and the tax deed is void ab initio. Second, if the current owner has acquired legal title to Stub Road, his title is subject to the right of the public to use the Stub Road. Third, that the current owner’s blockade is a public nuisance and the Defendant has a duty to abate the public nuisance; finally, that the ministerial duty of the City of Blackacre is to reopen the Stub Road to the public. 

Plaintiffs argue that the dedication of the Stub Road was never formally abandoned nor vacated; therefore, should not have been assessed. 

Assuming for the sake of argument that the land in question is not a “Stub Road”; but rather, “open space and recreation”. The difference is one without a legal distinction. In either case the public’s right to access has never been terminated by any appropriate authority pursuant to due process of law. 

Finally, the current title holder’s proprietary interest in the Stub Road is subject to the dedication to the residents of Whiteacre East, and the City of Blackacre has a duty to uphold the public’s right of access to the dedicated Stub Road for use either for ingress and egress or as “open space and recreation”. 

POINT I: DEDICATION OF OPEN SPACE AND RECREATION AND PUBLIC ROADS CAN NEITHER BE DIVESTED BY ADVERSE POSSESSION NOR ABANDONED BY LACK OF DILIGENCE IN PURSUING LEGAL ACTION

POINT II: BY ERECTING A BARACADE ON THE STUB ROAD THE CURRENT OWNER HAS CREATED A PUBLIC NUISANCE.

POINT III: NO ACTION BY THE CITY COUNCIL IS NECESSARY TO OPEN THE STUB ROAD TO THE PUBLIC SINCE IT IS THE MINISTERIAL DUTY OF THE CITY MANAGER TO ENFORCE THE CITY CODE AND LAWS.

OPINION

Point I

Dedication of Open Space and Recreation and Public Roads Can Neither Be Divested by Adverse Possession nor Abandoned by Lack of Diligence in Pursuing Legal Action

The current owner acquired title according to a tax deed. 

Although Plaintiffs in this action are not making a direct challenge to the title of the current owner the efficacy of the deed is relevant to the assertion that the current owner may not establish a right of exclusive possession by adverse possession. 

 A tax deed that is void ab initiois no deed at all and the current owner may not establish all of the elements of adverse possession since one requirement is that the claimant must hold title under color of title.

A deed which is void ab initiocan always be challenged since there is no statute of limitations on such a cause of action.Boys Work Inc. v. Gale, 321 So.2d 435 (Fla. App. 1 Dist., 1975). Nor is the current title holder a necessary or indispensable party since a complete remedy is available. Public access to the Stub Road can be fully restored since the City of Blackacre has the duty and authority to require the current title holder to remove the barrier that is preventing public access to a pubic road which has never been officially vacated.

One of the oldest and well-established legal principles is that one cannot acquire title to government owned land by adverse possession. This principle was acknowledged in the matter of Lovey v. Escambia County, 141 So.2d 761 (Fla. App. 1 Dist., 1962). The court wrote “the long established and well recognized principle of law that one acquires no right by adverse possession or prescription in lands owned by the government.” Citing as authority 55 ALR 2d 554. 

This principle is grounded on the premise that government's title to land may not be divested by hostile or adverse user. Since no rights in government owned land may be acquired by adverse user, the statutory time for perfecting title by such means never comes into being so long as title is in public ownership. Id.at 763

Laube v. City of Stuart 107 So.2d 757, (Fla.App. 2 Dist., 1958is one of the leading cases on the issue of the dedication of land.  The facts are similar to this case in that one of the parcels of land in Laubeshown on the map did not have a lot and block number, just as the Stub Road does not have a lot and block number. The parcel in Laubewas merely marked as “A” and was an eighty-foot strip of land. In fact, the city even collected taxes on parcel A. Plaintiffs the putative owner of parcel A held title by a Warranty Deed in the chain of title from the developer.

Plaintiffs Laube filed suit essentially to quiet title to her property to prohibit the city from opening the eighty-foot strip of land to the public.One of the landowners intervened in the suit against the city seeking to compel it to open the right-of-way of parcel A to the public. 

One of the questions in the Laubecase was whether the city was estopped by its conduct from claiming any interest in parcel A.  In affirming the lower court’s ruling in favor of the city opening the right-of-way the court wrote:

 “By the great weight of authority it is held in nearly all the states that the right of the public in a street or alley cannot be divested by adverse possession of another for the statutory period, unless the public use has been abandoned by competent authority and the land is held as proprietary property.” Laube v. City of Stuart, 107 So.2d 757, 761, (Fla.App. 2 Dist., 1958).

Identical to the matter before this Honorable Court the decision in Laubecontinued by asserting that the fact of dedication was clearly established from the public records and acceptance by the public was clearly established due to use of the right-of-way. 

“(1) When the owner of a tract of land makes a town plat thereof, laying the same out into blocks and lots, with intervening streets, clearly indicated upon the plat, separating the blocks, and conveys lots with reference to such plat, he thereby evinces an intention to dedicate the streets to public use as such; and his grantees, as against him and those claiming under him, acquire the right to have such streets kept open. This constitutes a complete dedication, and the streets cannot be closed up or obstructed, unless in pursuance of legal authority.” Id. at 760 (citing: Price v. Stratton, 45 Fla. 535, 33 So. 644).

An earlier case Indian Rocks Beach South Shore, Inc. v Ewell, 59 So.2d 647, 651 (Fla.1952)involved the same set of facts, the developer granted an easement to the governing body for public highways. The city began to pave the roads shown on the development. Plaintiffs sought an injunction to prevent the city from paving the street adjacent to Plaintiffs’ lot, claiming that Plaintiffs had acquired rights to the land by reason of a deed of conveyance. Plaintiffs had occupied the land for many more than seven years. The road in question had never been carried on the tax rolls of the city.  The question presented in that case was as follows:

“Where a recorded plat shows a number of public streets with a dedication to the county of these streets for use as public highways, and the evidence shows that the county has accepted by user the majority of streets as shown on the plat, including the main street, and has evinced no intention of refusing to accept any of them, will the county be deemed to have accepted the proffered dedication of all of the streets as shown on the plat?” Id at 651.

The court answered this question in the affirmative.

“The weight of authority seems to be that acceptance of some of the streets of a platted subdivision shall be considered as acceptance of all of the streets. In American Jurisprudence, Sec. 38, page 387, on the question of Dedication, the author states:

'An acceptance by a city or City of some of the streets and alleys appearing on a plat, however, is an acceptance of the entire system of streets and alleys so appearing unless the intention to limit the acceptance is shown.'” Id. at 652.

The facts of the instant case are totally consistent with the facts of the Ewell.

In deciding the meaning of word in Indian Rocks Beach South Shore, Inc. v Ewell the court noted the definition of “street” would include “open space”. 

'While the word 'street' would not include a mere private way, it does include all the public roads or ways within the municipality over which it has jurisdiction and as to which it owes the public the duty of exercising reasonable care to keep and maintain them in a reasonably safe condition for public use. Id.at 652

Arguably “open space” is land over which the municipality has jurisdiction and a duty to the public to maintain for public use. 

The case law was echoed in Bonifay v. Dickson, “that public acceptance by use of the main thoroughfare of a platted subdivision constituted an acceptance of the offer to dedicate the entire system of streets appearing on the plat.” Bonifay v. Dickson,459 So.2d 1089, 1095 (Fla. App. 1 Dist., 1984) (citing:  Indian Rocks Beach South Shore, Inc., supra).

In Bonifaythe dispute involved a landowner who had paid taxes on his property which was traversed by an easement by implication and not by dedication. In other words, the Plat Plan did not describe the easement by metes and bounds or by any depiction on the plat. The City of Pensacola, and Bonifay a subdivision lot owner, intervened. They both claimed rights to use the implied easement. In deciding the case the court held that in construing the plat “any ambiguity regarding the extent of the dedication” will be resolved “against the dedicator and in favor of the public.”Id.at 1094 (citing: Florida East Coast Ry. Co. v. Worley, 38 So. 618 (Fla.1905)). It is significant that the easement in Bonifay amounted to a “private” easement, since the easement did not appear on the filed map.  If the easement had appeared on a filed map and the dedication was accepted either by the municipality or by use by the public, the easement would be in the nature of a “public” easement.  

Public easements cannot be extinguished by adverse possession, and in order to terminate a public easement official action by the governing authority would be necessary.

In this case the Stub Road was clearly delineated by a metes and bounds description and the offer of dedication is clearly evident. Intent to dedicate land to public use may be implied from the acts of the landowner, such as filing a map or Plat Plan of the property designating the roadways thereon and selling lots pursuant to the plat which depicts on the Plat Plan places for open space and streets. City of Palmetto v. Katsch, 98 So. 352 (Fla.1923); cited as authority in Bonifay v. Dickson, 459 So.2d 1089 (Fla. App. 1 Dist., 1984).

At the time that the Whiteacre Plat Plan was recorded and approved, the land in question lied in an unincorporated area of Palm Beach County. Currently the governing authority is the City of Blackacre. The fact is clear that the owners of lots shown on the Plat Plan for many years used the Stub Road for ingress and egress from Main Circle Rd. to the easement along the canal which was traditionally used as bridle paths. In fact, the City of Blackacre has recently proposed a map on which the land along the canal is shown as bridle paths. EXHIBIT I

Google Maps, one of the most relied upon sources for road systems of the world shows the Stub Road with the designation “Director Dr.”  EXHIBIT J

There has neither been an abandonment or vacation of the Stub Road by the County Commission nor by the City of Blackacre; therefore, the right-of-way shown on the plat was in existence and being used by the public when the tax deed was issued. Pursuant to section Fla. Stat. §197.573, a tax deed purchaser acquires property free and clear of liens for assessments, but not free and clear of public easements. 

Fla. Stat. §197.573 (2013) Survival of restrictions and covenants after tax sale.—

(1) When a deed in the chain of title contains restrictions and covenants running with the land, as hereinafter defined and limited, the restrictions and covenants shall survive and be enforceable after the issuance of a tax deed or master’s deed, or a clerk’s certificate of title upon foreclosure of a tax deed, tax certificate, or tax lien, to the same extent that it would be enforceable against a voluntary grantee of the owner of the title immediately before the delivery of the tax deed, master’s deed, or clerk’s certificate of title.

(2) This section shall apply to the usual restrictions and covenants limiting the use of property; the type, character and location of building; covenants against nuisances and what the former parties deemed to be undesirable conditions, in, upon, and about the property; and other similar restrictions and covenants; but this section shall not protect covenants creating any debt or lien against or upon the property, except one providing for satisfaction or survival of a lien of record held by a municipal or county governmental unit, or requiring the grantee to expend money for any purpose, except one that may require that the premises be kept in a sanitary or slightly condition or one to abate nuisances or undesirable conditions.

(3) Any right that the former owner had to enforce like restrictions and covenants against the immediate, mediate, or remote grantor and other parties owning other property held or sold under the same plat or plan, or in the same or adjacent subdivisions of land, or otherwise, except forfeitures, right of reentry, or reverter, shall likewise survive to the grantee in the tax deed or master’s deed or clerk’s certificate of title and to his, her, or its heirs, successors, and assigns. All forfeitures, rights of reentry, and reverter rights shall be destroyed and shall not survive to the grantee in the tax deed or master’s deed or clerk’s certificate of title or to his, her, or its heirs, successors, and assigns.

The simplicity of the statement expressed by the legislature in the above quoted language is so clear that there are no cases challenging the effect of the law.  Clearly the current owner pursuant to a tax deed has no authority or right to prevent ingress and egress along the Stub Road to property owners of the development.

Furthermore, the current owner pursuant to the Tax Deed has no equitable defenses because he knew or should have known that a public easement existed on the property before he accepted a tax deed. The current owner had clear evidence of the use of the Stub Road by the public; furthermore, the file plat gives constructive notice of the existence of the Stub Road. Therefore, the current owner is not a bonafide purchaser for value without notice; accordingly, he takes title subject to all recorded easements and right-of-ways. In this regard a tax deed can convey no better estate than a quit claim deed or even a warranty deed.

For the reasons previously express, the abutting landowners may have had a right to seek an order in a court of law to declare the deed void ab initioBurkhart v. City of Fort Lauderdale, 156 So.2d 752 (2 D.C.A. Fla., 1963), decision quashed 168 So.2d 65 (Fla. 1964); Florida State Turnpike Authority v. Anhoco Corporation, 107 So.2d 51 (3 D.C.A. Fla., 1959); Robbins v. White, 42 So. 841 (Fla. 1907); additionally, deeds of conveyance in a subdivision are to be described according to their lot and block. A close examination of EXHIBITS A&B will disclose that the description of the Stub Road does not contain a lot and block designation. Additionally, the tax assessor had never assigned a tax lot and block to the Stub Road. In fact, the current description of the Stub Road does not contain a lot and block designation.

The public’s lack of diligence in taking legal action to attempt to quash the tax deed would not bar them from seeking an order of the court to compel the city to open the Stub Road to the public. Public lands cannot be abandoned due to the lack of diligence in pursuing a legal remedy. The only way that a public easement can be abandoned is by the official action of the county or local municipality. Laube v. City of Stuart, 107 So.2d 757, 761, (Fla.App. 2 Dist., 1958). In neither case was such action undertaken. 

Point II

By Erecting a Barricade on the Stub Road the Current Owner Has Created a Public Nuisance.

The law in Florida cannot be clearer. 

“the obstruction of a street is a public nuisance. Not only is this the nature of an undertaking to acquire a street for private use, but even the failure of the city cannot operate to 'invest an intruder with title' to a street.” Laube v. City of Stuart, 107 So.2d 757, 761, (Fla.App. 2 Dist., 1958) (citing: . House-Wives League, Inc., v. City of Indianapolis, 204 Ind. 685, 185 N.E. 511. Cf. City of Gainesville v. Thomas, 61 Fla. 538, 54 So. 780.

The remedy sought in this case is the removal of the barrier to permit ingress and egress along the Stub Road. It has been noted that the Stub Road has been closed off to the public for more than seven years and that the current titleholder would in all probability claim that as a consequence it has acquired exclusive rights to the enjoyment of the land with the right to bar public access. Nothing could be further from the letter of the law. In fact, in the matter of Waterman v. Smith, 94 So.2d 186 (Fla., 1957) a strip of land 15 feet in width and a length of 127.84 feet was the subject of an action to reopen a right-of-way that had been closed to the public for 50 years by one of the abutting property owners. The unpaved land in Watermanwas connected to another very short stretch of road which together formed the shape of an inverted “L”. The north-south portion was a road paved by the city. Prior to being closed off to the public the unpaved land in Waterman was used by the public for pedestrian traffic. The court’s opinion reads:

So far as we are advised there was never a withdrawal of such offer of dedication as was made, and although any definite action of the city evidencing an express acceptance was tardy, it does appear that the north-south alley or part of it was paved about twenty years before this suit was started. It was this act which the chancellor considered an acceptance but only of the north-south alley. In our opinion it affected both. Id. at 189.

Applying the facts of the Watermancase to the instant case we find that there are similarities. The Stub Road which is shown on the Plat Plan as a continuation of Director Dr was never paved, but the roads to which it connects were always maintained and eventually paved. Following the law in Watermanthere does not seem to be any question but that the land in question was dedicated and accepted. In Watermanthe court held that the paving of a portion of the roads in question evidenced an acceptance by the city of all the roads, including the disputed land which had never been improved in any way by the city.  The Watermancourt further held: 

that adverse possession of property held by a city for the use of the public cannot ripen into a prescriptive title.Norrell v. Augusta Ry. & Electric Co., 116 Ga. 313, 42 S.E. 466, 59 L.R.A. 101. According to this authority the obstruction of a street is a public nuisance.Not only is this the nature of an undertaking to acquire a street for private use, but even the failure of the city cannot operate to "invest an intruder with title" to a street. House-Wives League, Inc., v. City of Indianapolis, 204 Ind. 685, 185 N.E. 511. Cf. City of Gainesville v. Thomas, 61 Fla. 538, 54 So. 780 (emphasis added) Id.at 189

It follows that the City had no authority to vest title in the current owner by creating a tax assessment in 1998 and selling the Stub Road at tax sale. Due process requires that the City vacate the Stub Road. In which case the vacated land would become annexed to the Plaintiffs’ lands, each of them would own to the center of the Stub Road.

The Watermanjudgment shows that even after 50 years of adverse possession the “intruder” as the Watermancourt described him cannot obtain title to lands dedicated to the public; additionally, the intruder by closing off the land created a “public nuisance”. The City of Blackacre has failed to act to abate the nuisance in this case for less than 15 years, which is a relatively short delay as measured against the 50-year delay by the city in Waterman

Point III

No Action by the City Council to Open the Easement to the Public Is Necessary Since It Is the Ministerial Duty of the City Manager to Enforce the City Code and Laws.

 

A ministerial duty is "some duty imposed expressly by law, not by contract or arising necessarily as an incident to the office, involving no discretion in its exercise, but mandatory and imperative.” State ex re. Allen v. Rose, 123 Fla. 544, 167 So. 21, 22-23 (1936) The court may coerce the performance of official duties where officials charged by law with the performance of a duty refuse or fail to perform the same. Overstreet v. State ex rel. Carpenter, 115 Fla. 151,  155 So. 926

In the matter of City of Tallahassee v. Kovachwhile the appellate court decided the case on a separate issue the trial judge wrote authoritatively "mandamus is the proper remedy to enforce a ministerial duty required by the comprehensive plan where it is clear, as here, that the City is not complying with its own plan.” 733 So.2d 576, 578 (Fla. App., 1999).

The City has a ministerial duty to enforce the law. It is clear that an individual may not block access by the public to a public easement. The law is also clear that such action by the individual who does so is a legal nuisance. It is further clear that the current occupant of the Stub Road has blocked access so as to prevent the public from using the easement for ingress and egress, and the City has a ministerial duty to prevent or eliminate the nuisance by prohibiting the current occupant from blocking public access to the Stub Road.

 Legal authority can be found in the matter of Wright v. Frankelwhere the court wrote that it has the power "to enforce the performance of a ministerial duty imposed by law where such duty has not been performed as the law requires.” No. 4D06-3386 (Fla. App. 12/27/2006), pg.6 (Fla. App., 4 Dist., 2006) The court went on to say that an action for mandamus is not bound by the statutes of limitations. Rather the timeliness is a matter of equity. Id. (citing as authority: State ex rel. Haft v. Adams, 238 So. 2d 843, 844 (Fla. 1970), infra.

The court in the matter of State ex rel Haft v. Adamsset forth the equitable considerations that required the issuance of a writ of mandamus to enforce a ministerial act. 

In Florida Jurisprudence, Volume 21, Page 319, Mandamus, paragraph 9, we read: -- 'It is an accepted doctrine that courts in the exercise of their discretionary power to issue extraordinary writs will look to the public interests that may be concerned. This is true where injunctive relief is sought, and is, with equal reason, a matter which will be taken into consideration in determining whether a writ of mandamus shall issue in a particular case. 238 So.2d 843, 845 (Fla., 1970)

Plaintiffs respectfully submit that it is fair to conclude that the balance of equities favor the public in that the current occupant has no practical use for the 60 foot by 155-foot strip of land, whereas the residents who purchased lots shown on the Plat Plan had the reasonable expectation of the use and enjoyment of all public easements dedicated by the developer, including the Stub Road. The current occupant of the Stub Road has decided that the public is not permitted to use the Stub Road and has posted a sign warning not to trespass. 

The Stub Road has no other reasonable use other than as a road as originally platted. 

Obstructing a public easement is a nuisance that is continuing; and each day constitutes a new infraction of the law.

66 C.J.S. Nuisances § 140 it is stated :

Where a nuisance is of such a permanent and unbitable character that a single recovery can be had, including the whole damage past and future resulting therefrom, there can be but one recovery; but where the nuisance is abatable and is not a permanent source of injury, as where it is temporary, recurring, or continuing in nature, or is what is called a continuing nuisance, each occurrence, recurrence, or continuance gives rise to a new cause of action and successive actions may be maintained for the damages accruing from time to time. (cited as authority in: Maloney v. Heftler Realty Co., 316 So.2d 594, 595 (Fla.App. 2 Dist., 1975).

The right to complain renews each day that the nuisance exists. This is also the same rational used for zoning violations.  It can hardly be said that a complaint fails because the complainants have sat on their rights and failed to act. As the violation continues their rights continue to accrue.  

In the matter of City of Miami v. City of Coral Gablesthe city operated an incinerator which constituted a continuing nuisance. In affirming the trial court’s grant of an injunction, the appellate court wrote:

“We commend the chancellor when he stated in his final judgment: 'This court will not stand idly by while citizens are required to endure the existence of a nuisance until such time as those responsible for remedying it discharge their responsibilities.’” 233 So.2d 7, 10 (Fla. App. 3 Dist., 1970).

SUMMATION

The residents of Whiteacre have waited for more than seven years for the City to discharge its duty. The public has been deprived of the use and enjoyment of the amenity that they believed to be included in their property rights to wit: access from Director Dr. to the bridle paths along the canal to the South. 

The occupant of the Stub Road paid a sum of $3900. The City through its agent has informed the property owners that they may obtain the right to ingress and egress by purchasing the Stub Road from the current occupant for $100,000.

 If this is so, the occupant and the City obviously understand that the use and enjoyment of the right of ingress and egress over the Stub Road is worth much more to the residents of Whiteacre than the land is worth to any other private person. Indeed, it is not likely that there is any market for a 60 by 155-foot strip of land on which no building can be constructed without a variance. By this standard alone it is submitted that the equities favor the public and not the current occupier of the Stub Road. 

Other than excluding the public from the use and enjoyment of the easement, no benefit has accrued to any party by reason of the Tax Sale. As a practical matter no dwelling can be built on the Stub Road. This property in question was obviously intended to be a road and not to be held in private ownership by the original developer, who not so incidentally has ceased doing business in Florida.

Certainly, the dedicator could not possibly have envisioned the present circumstances.  The equitable course would be to allow public access as was clearly intended by the dedication and give effect to the intent of the developer and restore the reasonable expectations of the residents who purchased lots in the development. 

 

                                                                        Respectfully submitted,

 

                                                                        ___________________________

                                                                        Frank J. Morelli

TABLE OF CASES

City of Tallahassee v. Kovach, 733 So.2d 576 (Fla. App., 1999).

Bentz v. McDaniel, 872 So.2d 978, 2004 WL 1058324 (Fla. App., 2004).

Black v. Orange County, 888 So.2d 156 (Fla. App., 2004).

Bonifay v. Dickson, 459 So.2d 1089 (Fla. App. 1 Dist., 1984).

Boys Work Inc. v. Gale, 321 So.2d 435 (Fla. App. 1 Dist., 1975).

Burkart v. City of Fort Lauderdale, 156 So.2d 752 (Fla.App. 2 Dist., 1963).

City of Miami v. City of Coral Gables, 233 So.2d 7 (Fla. App. 3 Dist., 1970).

City of Sarasota v. Mikos, 374 So.2d 458 (Fla., 1979).

City of Tallahassee v. Kovach, 733 So.2d 576 (Fla. App., 1999).

Dade County v. Transportes Aereos Nacionales, S. A. (Tan Airlines), 298 So.2d 570 (Fla. App. 3 Dist., 1974).

Indian Rocks Beach South Shore, Inc. v. Ewell, 59 So.2d 647 (Fla.1952).

Laube v. City of Stuart, 107 So.2d 757 (Fla.App. 2 Dist., 1958).

Leibowitz v. City of Miami Beach, 592 So.2d 1213 (Fla. App. 3 Dist., 1992).

Lovey v. Escambia County, 141 So.2d 761 (Fla. App. 1 Dist., 1962).

Maloney v. Heftler Realty Co., 316 So.2d 594 (Fla.App. 2 Dist., 1975).

McCorquodale v. Keyton, 63 So.2d 906 (Fla., 1953).

Meyer v. Law, 287 So.2d 37 (Fla., 1973).

Mumaw v. Roberson, 60 So.2d 741 (Fla., 1952).

North Lauderdale Corp. v. Lyons, 156 So.2d 690 (Fla.App. 2 Dist., 1963).

Reynolds v. County of Volusia, 659 So.2d 1186 (Fla. App. 5 Dist., 1995).

Smith v. Horn, 70 Fla. 484, 70 So. 435 (1915).

State ex rel. Haft v. Adams, 238 So.2d 843 (Fla., 1970).

City of Doral Place v. RU4 Real, Inc., 22 So.3d 627 (Fla. App., 2009).

Waterman v. Smith, 94 So.2d 186 (Fla., 1957).

Weber v. City of Hollywood, 120 So.2d 826 (Fla.App. 2 Dist., 1960).

Wiggins v. Lykes Bros., Inc., 97 So.2d 273 (Fla., 1957).

Wilson v. Dunlap, 101 So.2d 801 (Fla., 1958).

Winthrop v. Wadsworth, 42 So.2d 541 (Fla., 1949).

Wright v. Frankel, No. 4D06-3386 (Fla. App. 12/27/2006) (Fla. App., 2006).

Not Intended As Legal Advice 

Copyright Attorney Frank J. Morelli 2018 (All Rights Reserved)