SHAWN M. DAUGHERTY, ET AL.

v.

ROBERT NEIL MCDAVID, ET AL.

FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

_____________________________

No. 1D2022-2559 _____________________________

SHAWN M. DAUGHERTY, DON G.

RICHTER, JOHN S. BRIGHT,

DEBORAH A. BRIGHT, RONALD E.

CARNEY, DANIEL WRIGHT, DIXIE

WRIGHT, MICHAEL J. GORDON, JULIE D. GORDON, and BENJAMIN LUKE BOYD,

Appellants,

v.

ROBERT NEIL MCDAVID, GEORGIA ARAMINTA MCDAVID,

CHARLES H. MAYNARD, MICHAEL

BENJAMIN ELTZ, RENEE M. ELTZ, AUGUST ELTZ, JR., and MARY H. ELTZ,

Appellees. _____________________________

On appeal from the Circuit Court for Santa Rosa County. Clifton A. Drake, Judge.

June 12, 2024

WINOKUR, J.

Although the trial court correctly concluded that final judgment was warranted in Appellees’ favor, we disagree that section 95.12 barred Appellants’ action. Still, we affirm because the result was correct.

In their first motion for summary judgment, Appellees argued that Appellants had an easement to use the “community beach”— and by extension, the dock—and therefore Appellants should have brought their action to enforce the easement within the five years provided by section 95.11(2)(b), Florida Statutes. The trial court rejected that argument, but it in fact demonstrates why summary judgment was appropriate. A

We begin with the Gatwood dedication, which provided that the “community beach” was made available for public use by easement. At common law, a dedication was one way in “which an owner of an interest in land [could] transfer to the public either ownership or a privilege of user for a public purpose . . . .” Bonifay v. Dickson, 459 So. 2d 1089, 1093 (Fla. 1st DCA 1984). It

First, we address whether the “community beach” was an intended part of the dedication. Gatwood “dedicate[d] to the public in fee simple all streets, roads, and thoroughfares” in its dedication plat. However, because Gatwood did not expressly name the “community beach” in its dedication, we must determine if the “community beach” was considered a street, road, or thoroughfare.

When construing a dedication we review the “plat as a whole and resolv[e] any ambiguity regarding the extent of the dedication against the dedicator and in favor of the public . . . .” Dickson, 459 So. 2d at 1094 (citing Fla. East Coast Ry. Co. v. Worley, 38 So. 618 (Fla. 1905)).

When looking at the plat, we see a 304-foot stretch that is identified as the “community beach.” That strip runs between the northernmost properties in the Subdivision and the Santa Rosa Sound. Previously, we have said that when a plat depicts the ebb

Therefore, given the depiction of the Santa Rosa Sound abutting the “community beach” with ebbs and flows and the historical understanding of Florida beaches as “thoroughfares,” we can conclude that Gatwood “intent[ed] to dedicate the entire width of the [community beach], from the lot lines to the water’s edge, for public purposes.” Dickson, 459 So. 2d at 1094 (quoting Brickell, 78 So. at 683).

Next, as to the public’s acceptance of the dedication, it is undisputed in the record that the Santa Rosa public accepted the dedication through their county public officials, who accepted the dedication and recorded the plat. Thus, the dedication was valid and in effect, at the time the underlying dispute arose. Id. at 1093–

94.

Accordingly, the trial court was correct in concluding that the Subdivision lot owners had a right to the “community beach,” but only a public right. See Robbins v. White, 42 So. 841, 843 (Fla. 1907) (“A dedication of lands to the public for street purposes, in the absence of clear contrary intent, does not divest the owner of the title to the land, but only subjects the land and the title to the public easement for street purposes . . . .” (emphasis supplied)).

Given that the “community beach” is subject to a public-use easement, we now address why section 95.12, Florida Statutes, is inapplicable to an easement.

Section 95.12 provides that “No action to recover real property or its possession shall be maintained unless the person seeking recovery . . . was seized or possessed of the property within⁷ years before the commencement of the action.” § 95.12, Fla. Stat. (emphasis supplied). Here, it is undisputed that neither Appellants nor Appellees hold title to the “community beach.” Rather, Bahia Badar Inc. does. Since Appellants did not hold title to the “community beach” their action was not one for the recovery of real property, but to enforce the public-use easement granted under the Gatwood dedication. Thus, the application of section 95.12 to bar the action was improper. See Kitzinger v. Gulf Power Co., 432 So. 2d 188, 190–91 (Fla. 1st DCA 1983) (finding that section 95.12 was improperly applied in a case involving an easement).

Further, section 95.12 is inapplicable in this case because at issue here is a public use easement, which cannot be extinguished by adverse possession. See Waterman v. Smith, 94 So. 2d 186, 189 (Fla. 1957) (“[A]dverse possession of property held by a city for the use of the public cannot ripen into a prescriptive title.”); see also Bonifay v. Garner, 503 So. 2d 389, 395–96 (Fla. 1st DCA 1987) (same). Accordingly, the trial court erred in finding that section 95.12, Florida Statutes, applied in this case.

But because Appellants failed to bring their action before the statute of limitations expired, see Estate of Johnston v. TPE Hotels, Inc., 719 So. 2d 22, 26 n.9 (Fla. 5th DCA 1998) (holding that an action to enforce an easement is subject to the statute of limitations under sections 95.11(2)(b), 95.11(3)(p), Florida Statutes); Conrad v. Young, 10 So. 3d 1154, 1157 (Fla. 4th DCA 2009) (applying section 95.11(2)(b), Florida Statutes), we agree with the trial court that final judgment in Appellees’ favor was appropriate.

Accordingly, the trial court’s order granting Appellees’ motion for summary judgment is AFFIRMED.

Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________

John H. Adams of Beggs & Land, RLLP, Pensacola, for Appellants.

Phillip A. Pugh of Litvak, Beasley, Wilson & Ball, LLP, Pensacola, for Appellees.