HARVEY D. BISHOP, JR., AND ELIZABETH J. BISHOP, HIS WIFE; AND THOMAS BEAULIEU, JR., AND HILDA BEAULIEU, HIS WIFE, APPELLANTS,
v.
FRED W. NUSSBAUM AND GLADYS NUSSBAUM, HIS WIFE, APPELLEES
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Property owners sought a declaratory judgment that an alley running behind their residences had been dedicated to public use. The trial court found a common-law dedication had occurred, but the appellate court reversed, holding the evidence did not meet the clear and unequivocal standard required for common-law dedication.
The court held that a common-law dedication had not been established because the evidence did not meet the clear and unequivocal standard required by Florida law. The testimony of the developers conflicted, there was no dedication on the plats or in the deeds, the property was taxed as if the alley did not exist, and the alley was never maintained by public authorities.
“A common-law dedication is a setting apart of land for public use. It is the appropriation of land by the owner thereof to the use of the public and the adoption thereof by the public. In order to constitute a dedication there must be (1) an intention, on the part of the proprietor of the land, to dedicate the property to public use, and (2) an acceptance by the public, and proof of these facts must be clear, satisfactory, and unequivocal.”
This quote establishes the legal definition and requirements for common-law dedication under Florida law.
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The question presented by this appeal is whether there has been a common-law dedication of an alley which runs along the rear of the residences of the parties, the chancellor having found that there was.
The following definition of a common-law dedication is found in 10 Fla.Jur., Dedication, § 1:
“A common-law dedication is a set- ' ting apart of land for public use. It is the appropriation of land by the owner thereof to the use of the public and the adoption thereof by the public. In order to constitute a dedication there must be (1) an intention, on the part of the proprietor of the land, to dedicate the property to public use, and (2) *232an acceptance by the public, and proof of these facts must be clear, satisfactory, and unequivocal.” (Footnotes omitted).
The plaintiffs purchased a lot from the owners-developers, at which time there was an alley ten feet wide running along the rear which extended five feet onto the lots on each side. They allege that the developers represented to them that the alley was for the use of the public. The Bishops lat- ; er purchased a lot next to the plaintiffs’ lot, on which the alley also ran. The evidence showed that the parties all used this alley for several years and then the Bishops blocked off the alley on their lot on the ground that it was their private property. The plaintiffs subsequently brought an action for a declaratory decree to the effect that this alley had been dedicated to public use, and they prevailed in the lower court.
Proof of an intent to dedicate by the owners, and acceptance by the public must be clear and unequivocal, in order for there to be a common-law dedication. Roe v. Kendrick, 1941, 146 Fla. 119, 200 So. 394; Miller v. Bay-to-Gulf, Inc., 1940, 141 Fla. 452, 193 So. 425; and Weills v. City of Vero Beach, 1928, 96 Fla. 818, 119 So. 330. The burden of proof is on the party asserting the dedication. Roe v. Kendrick, supra. We find that the proof of a dedication in the present case does not approach these standards and therefore we reverse.
The two developers once attempted to dedicate this alley to the public, but the board of county commissioners rej ected this. There was no dedication on the plats, nor any indication of the existence of the alley in the deeds. The alley has never been maintained by the city or county, and the land on which the alley lies has been taxed as if the alley did not exist. The alley has been used by garbage collectors and other suppliers of miscellaneous utility services, and also by the residents of the adjoining lots, for several years. Both developers testified, one stating that there was a dedication, and the other stating that there was not.
The weight of the evidence is to the effect that there was no dedication. The only concrete indication that there was a dedication was the testimony of one of the developers, and the other developer refuted this. This falls far short of the clear and unequivocal proof required by previous Florida cases cited above.
The facts of this case reveal that there may have been an easement created by prescription; however, this question was not presented to the lower court nor was it argued on appeal, and so we have not considered it.
Reversed.
ALLEN, Acting C. J., and SEBRING, HAROLD L, Associate Judge, concur.
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Hancock v. Tipton, 732 So. 2d 369 (Fla. 2d DCA 1999)…ublic. Proof of both elements must be clear and unequivocal, and the burden of proof is on the party claim-' ing the dedication. See Star Island Associates v. City of St. Petersburg Beach, 433 So. 2d 998, 1003 (Fla. 2d DCA 1983); Bishop v. Nussbaum, 175 So. 2d 231, 232 (Fla. 2d DCA 1965). The facts recited in the final judgment do not support a conclusion that the Han-cocks intended to dedicate their road to public use. Although the Hancocks have permitted the postal service and others to use the road, the u…
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Star Island Assocs. v. City OF ST. Petersburg Beach, 433 So. 2d 998 (Fla. 2d DCA 1983)…lic use under a theory of either common law dedicátion or statutory dedication. Common law dedication requires proof of (1) an intention by the landowner to dedicate the property to public use and (2) an acceptance by the public. Bishop v. Nussbaum, 175 So. 2d 231 (Fla. 2d DCA 1965). Proof of the intention to dedicate and of the acceptance must be clear and unequivocal, and the burden of proof is on the party claiming the dedication. Roe v. Kendrick, 146 Fla. 119, 200 So. 394 (1941). We do not find that there…
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1000 Brickell, Ltd. v. City of Miami (Fla. 3d DCA 2022)…So. 352 (Fla. 1923); City of Miami v. Florida E. Coast Ry. Co., 84 So. 726, 729 (Fla. 1920); Lehmann v. Cocoanut Bayou Assoc., Inc., 269 So. 3d 599 (Fla. 2d DCA 2019); Brevard Cty. v. Blasky, 875 So. 2d 6 (Fla. 5th DCA 2004); Bishop v. Nussbaum, 175 So. 2d 231 (Fla. 2d DCA 1965); §95.361, Fla. Stat. (1974); John S. Burton and Herbert J. Jones, Dedication: Rights Under Misuser and Alienation of Lands Dedicated for Specific Municipal Purposes, 7 Univ. of Fla. L. Rev. 82, 83 (1954) (“Acceptance of a comm…
Authorities Cited
- Miller v. Bay-to-Gulf, Inc., 141 Fla. 452 (Fla. 1940)
- Roe v. Kendrick, 146 Fla. 119 (Fla. 1941)
- Weills v. City of Vero Beach, 96 Fla. 818 (Fla. 1928)