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Litigation-Porter v. City and Butlerll crE , 3(D 1 otxt4;coit 6Y\ 33t, 03 0-0 d .► (rns u o1 _ 4-- 012>C1 t t 10a 1),-Q`-mac- Ot \ 6.o-<.a. Wit( f,QL._ nsw aATs Aa -h-k 4. c 2-cQ 33/ f , ; 7o J lei 311-" ()aLei-) E3-ik. U. ,Mc C¢ ti 2- Pe0. e.(9-,`1/654 9-Kliv-yrn A-AA .6 ¢ o ` a't -z\ APp-- Aibaiktpr, kyl azDt2A 1VIZ- A84\dt-Q1 ctf Ch.dU 4AA. Crn a'Y1 t9Yrelk 4'3* 0-v\ o-U-1vte-"C e_ - 1•1 ioa fr v, (Tv vn 4.k 011 CfL i24,1eQc_ De crr,_ cs-,1-are" ‘4,0, r„t-- /2"c �� ✓ C�'� sAu•0-7- - loll 13 7 (2txi' ) L ks) AiL1)12.4 - 0-1L ;5 • IN-111,7-WITIMMITIT •■••••• •■•••• WI Mr W.,/ ■■•^4,1•,-.1• ...... .......... ■•••• ••• ■11, agm, ••• 11. Mr Mr To. IN, NO, 1."-a, p Mg- (Qh(pM Client Time CODES A - Appearance P - Preparation -Trial B - Review -Study R - Research C - Conference S - Dictation D - Drafting T - Telephone. E - Discovery V - Travel Non - Client Time G - General Office Administration X - Bar Association Z - Personal K - Public DECIMAL CONVERSION 6 minutes — .1 hour 36 minutes — .6 hour 12 minutes — .2 hour 42 minutes — .7 hour 18 minutes — .3 hour 48 minutes — .8 hour 24 minutes — .4 hour 54 minutes — .9 hour 30 minutes — .5 hour 60 minutes — 1.0 hour Date TIME RECORD Client & Case File # Description of Service Lawyer Time <'I A B C D lE P R S T V / G X Z K C6-1 / Ott) A B C E P R S ot973-rf)-ea_ T V / G X Z K / iu A B C D E P R S T V / G X Z K A B C D E P R S T V / G X Z K A B C D E P R S T V / G X Z K A B C D E P R S r V / G X Z K A B C D E P R S T V / G X Z K A B C D E P R S T V / G X Z K A B C D E P R S T V / G X Z K A B C D E P R S T V / G X Z K A B C D E P R S T V / G X Z K A B C D E P R S T V / G X Z K A B C D E P R S T V / G X Z K A B C D E P R S T V / G X Z K Client Time CODES A - Appearance P - Preparation -Trial B - Review -Study R - Research C - Conference S - Dictation D - Drafting T - Telephone E - Discovery V - Travel Non - Client Time G - General Office Administration X- Bar Association Z - Personal K - Public DECIMAL CONVERSION 6 minutes — .1 hour 36 minutes — .6 hour 12 minutes — .2 hour 42 minutes — .7 hour 18 minutes — .3 hour 48 minutes — .8 hour 24 minutes — .4 hour 54 minutes — .9 hour 30 minutes — .5 hour 60 minutes — 1.0 hour Pdrielr f TIME RECORD Date ?le Fbo ?bp eriiD 411 qi 1)2,L ivis Client & Case File # Description of Service Lawyer Time Il 11 lk tl f A B C D E P O S T V / G X ZK A B C D E f�S T V/ G X Z jm- f m i K A B C D E P R S T V / G X Z K A B C D E P R S T V / G X Z K A B P R S T V / G X Z K m ot. (x) h4", A B C D E PfS T V / G X Z K B C D E P R S T V / G X Z K ktertmAo_ 1.� A B C') E PC S T V / G X Z K rr•-■ tiv) ) )oL'w4L A B C ) E P R S T V / G X Z K A B C D E PC13..S T V / G X Z K A B C D E P R S Ty V/ G X ZK r A B C D E P R S / G X Z K A B C D E P C R ) S T V /G X Z K D B C D E P R S T V / G X Z K Client Time CODES A - Appearance P`- Preparation -Trial B - Review -Stt4dy k, R - Research C - Conference S Dictation D - Drafting T - Telephone E - Discovery V - Travel Non - Client Time G - General Office Administration X - Bar Association Z - Personal K - Public DECIMAL CONVERSION 6 minutes — .1 hour 36 minutes — .6 'hour - 12 minutes — .2 hour 42 minutes — .7 hour 18 minutes — .3 hour 48 minutes — .8 hour 24 minutes — .4 hour 54 minutes — .9 hour 30 minutes — .5 hour 60 minutes — 1.0 hour TIME RECORD Date Client & Case File # Description of Service Lawyer Time A B C D E P R S T V / G X Z K A B C D E P R S T V / G X Z K A B C D E P R S T V / G X Z K A B C D E P R S T V / G X Z K A B C D E P R S T V / G X Z K A B C D E P R S T V / G X Z K A B C D E P R S T V / G X Z K A B C D E P R S T V / G X Z K A B C D E P R S T V / G X Z K A B C D E P R S T V / G X Z K A B C D E P R S T V / G X Z K A B C D E P R S T V / G X Z K A B C D E P R S T V / G X Z K A B C D E P R S T V / G X Z K JOHN D. CASSELS, JR LAURA ANN MCCALL LAW OFFICE OF CASSELS & McCALL 400 NW SECOND STREET • POST OFFICE BOX 968 • OKEECHOBEE FLORIDA 34972 • TELEPHONE 813.763.3131 • FAX 763.1031 November 22, 1991 Honorable John E. Fennelly Circuit Judge Post Office Box 596 Re: Steven G. Porter & Mary A. Porter vs. City of Okeechobee Dear Judge Fennelly, Enclosed please find a proposed Order Appointing Court Mediator for your review and execution. All parties concerned are in agreement as to the mediator, time, date and place for this mediation. If this order meets with your approval, kindly execute the original and have your judicial assistant conform the enclosed copies and forward them to the parties concerned in the pre- addressed, postage paid envelopes provided. By copy of this letter and the proposed Order to attorneys, John Cook, Michael Sullivan and Peter Gianino, I am confirming scheduling of this mediation. With kindest regards, I am Sincerely, D. CASSELS, JR: JDC /de Enclosures: As Stated. CC: Michael Sullivan, Esq. John Cook, Esq. Peter Gianino, Esq. Mr. and Mrs. Steven Porter IN THE CIRCUIT COURT OF THE NINETEENTH JUDICIAL CIRCUIT IN AND FOR OKEECHOBEE COUNTY, FLORIDA. CASE NO: 87 -99 -CA JUDGE: JOHN E. FENNELLY STEPHEN G. PORTER and MARY A. PORTER, his wife Plaintiffs, vs. CITY OF OKEECHOBEE and JACK BUTLER and ANNA M. BUTLER, his wife Defendants. ORDER APPOINTING COURT MEDIATOR THIS CAUSE came before the Court for the appointment of a mediator to coordinate and discuss settlement of this action and the Court having reviewed the file and being otherwise advised in the premises appoints PETER GIANINO, ESQUIRE as Mediator to attempt to achieve a settlement of the issues in this case. A settlement conference shall be held on Tuesday, December 3rd, 1991 at 1:00 O'Clock P.M., at 400 N.W. 2nd Street, Okeechobee County, Okeechobee, Florida. All parties are required to attend the settlement conference. The general rules governing the settlement conference are: A. Appearance of counsel and clients is mandatory. If insurance is involved, an adjuster with full and complete authority to settle shall be present. This latter provision may be waived by the mediator on agreement of counsel or by order of the court. B. The Court shall have the power and will impose sanctions for all parties who do not attend the conference. C. Plaintiffs and defendants shall present a brief written summary of the case to the mediator at least one week before the conference containing a list of issues as to each party. D. All discussions, representations and statements made at the settlement conference shall be off the record and privileged. Nothing relating to the conference shall be admitted at trial. E. The mediator shall be compensated at the rate of $125.00 per hour with a minimum charge of $125.00. Mediator fees shall be born by the parties. Where there are multiple parties, the fees shall be the responsibility of the principal parties. Notice to the mediator of settlement prior to the scheduled mediation conference must be made at least 24 hours in advance. Failure to do so will result in the minimum fee for one hour. F. You may correspond with the mediator at 217 E. Ocean Blvd., P.O. Box 2846, Stuart, Florida 34995. The telephone number is (407) 286 -0200. G. The parties understand the mediator has no power to either compel or enforce settlement agreements. If a settlement is reached in this case, it shall be the responsibility of the attorneys to reduce the agreement to writing and enter it on the record. H. , Esquire is appointed by the court as lead counsel to work with the mediator and coordinate the settlement conference. I. The mediator and lead counsel shall prepare the schedule for the settlement conference. The schedule shall be forwarded to the court for inclusion in a court order, if necessary. DONE AND ORDERED at Okeechobee, Okeechobee County, Florida, this day of November 1991. JOHN E. FENNELLY CIRCUIT JUDGE Copies Furnished: JOHN D. CASSELS, JR., ESQ. MICHAEL SULLIVAN, ESQ. JOHN COOK, ESQ. PETER GIANINO, ESQ. LESTER JENNINGS ATTORNEY AT LAW 110 N.E. THIRD AVENUE • POST OFFICE BOX 237 OKEECHOBEE, FLORIDA 34973 PHONE (813) 467-2570 February 7, 1991 Honorable John E. Fennelly Post Office Box 596 Stuart, Florida 34995 RE: Porter vs. Okeechobee, et al; Case No: 89 -66 -CA Dear Judge Fennelly: I am enclosing a copy of a Re- Notice For Trial in the above referenced matter for my clients, Stephen G. Porter and Mary A. Porter, his wife. You will notice that this should be placed on the jury docket. Most of the issues on this case would be decided by you without a jury however, the Defendant, Jack Butler and Anna M. Butler, his wife, have a pending counter claim for damages in which the have requested a jury trial. I am sure this case could be heard in Okeechobee and we could arrange for a jury to be summoned especially for this case or we could set it down for a trial when a jury has been summoned in other cases and have a jury picked for this case or in the alternative we could try it in Martin County at your convenience. Anyway we can help in setting this case for trial please let us know. Res •- full est LWJ:da Jennings IN THE CIRCUIT COURT OF THE NINETEENTH JUDICIAL CIRCUIT IN AND FOR OKEECHOBEE COUNTY, FLORIDA. CASE NO: 89 -66 -CA STEPHEN G. PORTER and MARY A. PORTER, his wife, Plaintiffs, vs. CITY OF OKEECHOBEE and JACK BUTLER and ANNA M. BUTLER, his wife, Defendants. RE- NOTICE FOR TRIAL COMES NOW the Plaintiffs, STEPHEN G. PORTER and MARY PORTER, his wife, by and through their undersigned attorney, and files this their Re- Notice for Trial, pursuant to Rule 1.440, Florida Rules of Civil Procedure, and says: 1. That the above - styled cause is at issue and the Court has jurisdiction of the parties and the subject matter of this action. 2. That said cause is to be placed on the jury docket. 3. That it is estimated that this trial should take no longer than two days. I HEREBY CERTIFY that a true and correct copy of the foregoing Notice for Trial has been furnished to John Cook, Attorney For City of Okeechobee, 202 N.W. 5th Avenue, Okeechobee, Florida 34972 and Michael Sullivan, Attorney for Jack and Anna Butler, 309 N.W. 4th Street, Okeechobee, Florida 34972, by U.S. Mail this "7/1 day of February, 1991. NOTRIAL.DIV %/ %i -/f 9'n`"ngs Attorn = for Porters Post Office Box 237 Okeechobee, Florida 34973 (813)467 -2570 FL BAR # 039488 IN THE CIRCUIT COURT OF THE NINETEENTH JUDICIAL CIRCUIT IN AND FOR OKEECHOBEE COUNTY, FLORIDA. CASE NO:89 -66 -CA JUDGE JOHN E. FENNELLY STEPHEN G. PORTER and MARY A. PORTER, his wife, Plaintiffs, vs. CITY OF OKEECHOBEE and JACK BUTLER and ANNA M. BUTLER, his wife, Defendants. ORDER THIS CAUSE having came on to be heard upon Motions to Dismiss by each of the parties; and upon appearance of counsel and argument thereon, the court being fully advised, it is ORDERED AND ADJUDGED as follows: 1. The motion by the City of Okeechobee to dismiss for failure to comply with statute of limitations is dismissed with leave to assert same as an affirmative defense to the action. 2. The motion by Butler to dismiss for failure to join indispensable parties is granted. Plaintiffs shall have ---- sixty (60) days from date in which to notify, by certify mail, each landowner in Block 34, First Addition to South Okeechobee of their right to intervene in this action if they so choose. This action shall abate for such sixty day period. 3. The motion to strike by the City and Butler of the request for temporary injunction is denied. 4. The motion of the City and Butler to dismiss Count III is granted and Plaintiffs are granted 20 days from date in which to amend, and Defendants shall reply within 20 days of said amendment 5. In all other respects the motions to dismiss by the Defendants are denied. DONE AND ORDERED in chambers in Stuart, Martin County, Florida this day of , 1989. Judge, Circuit Court cc: John C. Cook, Esquire Lester W. Jennings, Esquire Michael Sullivan, Esquire BRYANT & COOK ATTORNEYS AT LAW 202 N.W. 5-rii AVE. OKEECHOBEE. FL 34972 (813) 467-0297 TO Lester W. Jennings, Esquire 110 N. E. Third Avenue Okeechobee, FL 34972 L_ _J DATE 10-30-89 SUBJEC _porter -vs- City Order We still do not have a response from you regarding the referenced order. If I do not hear from you by Friday, November 3, I will forward the order to the judge. SIGNED IN THE CIRCUIT COURT OF THE NINETEENTH JUDICIAL CIRCUIT IN AND FOR OKEECHOBEE COUNTY, FLORIDA. CASE NC. 8 °9 -66 -CA JUDGE JOHN E. FENNELLY STEPHEN G. PORTER and MARY A. PORTER, his wife, Plaintiffs, -vs- CITY OF OKEECHOBEE and JACK BUTLER and ANNA M. BUTLER, his wife, Defendants. ORDER THIS CAUSE came on to be heard upon Motions to Dismiss by each of the parties; and upon appearance of counsel and argument thereon, the ccurt being fully advised, it is ORDERED and ADJUDGED as follows: 1. The mction by the City of Okeechobee to dismiss for failure to comply with statute of limitations is dismissed with leave to assert same as an affirmative defense to the action 2. The motions by the City of Okeechobee and Butler to dismiss the claim for punitive damages and attorneys fees in Ccunt III against the City and Butler is granted. 3. The mction by Butler to dismiss for failure to join indispensable parties is granted. Plaintiffs shall have sixty (6C) days from date in which to notify, by certified mail, each landowner in Block 34, First Addition to South Okeechobee of their right to intervene in this action if they so choose. This action shall abate for such sixty day period. 4. The motion to strike by the City and Butler of the request for temporary injunction is denied. 5. The motion of the City and Butler to dismiss Count III is granted and plaintiffs are granted 20 days from date in which to emend, and defendants shall reply within 20 days of said amendment. 6. In all other respects the motions to dismiss by the defendants are denied. DONE and ORDERED in chambers in Stuart, Martin County, Florida, this day of Copies furnished: John R. Cock Lester W. Jennings Michael L. Sullivan , 1989. 77 IT JUD T STEPHEN G. PORTER and MARY A. PORTER, his wife Plaintiffs, vs -. "CITY •F OKEECHOBEE and JACK R and ANNA M. BUTLER, his wife Defendants. IN THE CIRCUIT COURT OF THE NINETEENTH JUDICIAL CIRCUIT IN AND FOR OKEECHOBEE COUNTY, FLORIDA. CASE NO: 87 -99 -CA JUDGE: JOHN E. FENNELLY STIPULATED DISMISSAL _,.COMES NOW the parties hereto by and through their undersigned attorneys who stipulate and agree as follows: 1. That the real property described in the Complaint filed _ herein was at the time of filing said Complaint a 15 foot alleyway and the use of same is therefore regulated by the City of Okeechobee. 2. That the Plaintiffs hereby agree to remove any and all improvements which have been made by them on the said alleyway, should the City of Okeechobee direct them to do so. 3. That this action and all Counterclaims thereto are hereby dismissed with prejudice with each party to pay their attorney fees and costs. DATED this �' day of December, 1991. Law Office of CASSELS & McCALL BY: _ Atty for Def /Counterclaimant /C,ity "x..202 N.W. 5th Avenue Okeechobee, Florida 34972 (8; 467 -0297 JOH■ D. CASSELS, JR orr.ey for Plai 1'ffs Post Office Bo 68 Okeechobee, Florida 34972 (813) 763 -3131 CHAEL L. SULLIVAN Atty for Def /Counterclaimant /Butler 309 N.W. 4th Street Okeechobee, Florida 34972 (813) 763 -9460 LAW OFFICES JOHN R. COOK 202 NW 5TH AVENUE OKEECHOBEE, FLORIDA 34972 TELEPHONE (813) 467 -0297 FAX (813) 467-4798 John Drago 55 SE 3rd Avenue Okeedhobee, FL 34974 Re: Porter v. City Dear Mr. Drago: Enclosed please find a copy of a stipulated dismissal. Also, my hours since the last billing are as follows: 3.7 hrs. @ $75.00 = $277.50 Kindest regards, /s/ JOHN R. COOK JRC:vs Enclosure STEPHEN G. PORTER and MARY A. PORTER, his wife Plaintiffs, vs. CITY OF OKEECHOBEE and JACK R and ANNA M. BUTLER, his wife Defendants. IN THE CIRCUIT COURT OF THE NINETEENTH JUDICIAL CIRCUIT IN AND FOR OKEECHOBEE COUNTY, FLORIDA. CASE NO: 87 -99 -CA JUDGE: JOHN E. FENNELLY STIPULATED DISMISSAL COMES NOW the parties hereto by and through their undersigned attorneys who stipulate and agree as follows: 1. That the real property described in the Complaint filed herein was at the time of filing said Complaint a 15 foot alleyway and the use of same is therefore regulated by the City of Okeechobee. 2. That the Plaintiffs hereby agree to remove an and all improvements which have been made by them on the said alleyway, should the City of Okeechobee direct them to do so. 3. That this action and all Counterclaims thereto are hereby dismissed with prejudice with each party to pay their attorney fees and costs. day of December, 1991. DATED this N R. COOK Atty for Def /Counterclaimant /C'ty 202 N.W. 5th Avenue Okeechobee, Florida 34972 (813) 467 -0297 Law Office of CASSELS & McCALL BY: JOHN D. ASSELS, JR.# orney for Plai fS Post Office Bo 68 Okeechobee, Florida 34972 (813) 763 -3131 MICHAEL L. SULLIVAN Atty for Def /Counterclaimant /Butler 309 N.W. 4th Street Okeechobee, Florida 34972 (813) 763 -9460 STEPHEN G. PORTER and MARY A. PORTER, his wife PLAINTIFFS, VS. .XITY OF OKEECHOBEE and JACK BUTLER adn ANNA M. BUTLER, hiw wife IN THE CIRCUIT COURT OF THE NINETEENTH JUDICIAL CIRCUIT IN AND FOR Main COUNTY, FLORIDA OKEECHOBEE CASE NO. 89 -66 CA JUDGE: FENNELLY DEFENDANTS. ORDER SETTING CASE MANAGEMENT CONFERENCE IT IS ORDERED: A Case Management Conference is hereby scheduled as follows: DATE: DECEMBER 16,1991 TIME: 4:00 P.M. PLACE: Martin County Courthouse, courtroom "G ",100 E. Ocean Blvd.,Stuart,FL At the Case Management Conference all counsel will submit a list of all pending motions, with memoranda of law and attached authorities. Counsel will submit at the time of the Case Management Conference the following items: 1. Pretrial Catalogues 2. Proposed Jury Instructions 3. Motion in Limine Counsel will be prepared to discuss exhibits and all phases of trial as outlined in the Uniform Pretrial Procedure in Civil Cases Sheet (see attached sheet). IT IS FURTHER ORDERED AND ADJUDGED that for this conference the trial attorney or associate with authority to act on matters involving the case will attend. Failure to attend the Case Management Conference or comply with this Order will result in the case being stricken from the trial calendar and the imposition of appropriate sanctions. DONE and ORDERED, in Stuart, Martin County, Florida this it1`_ day of October ,1991. JOHN E.1FENNELLY Circui Judge Copies to: LESTER W.JENNINGS,ESQ. JOHN COOK,ESQ. MICHAEL SULLIVAN,ESQ. tretaaJetili PRE ,t MA's. PROCEDURE IN ti 11. NCIiUi�i COUNSEL MUST MEET — No later Ikon Iltitly (30) days prior to the dale set (or Blot, counsel or porticos, 11 not reptesonlcd by cour-ol, sholl meal al o mutually convection, lime and place and r.. .d Discuss selllamonl. 2. Simplify Iho Issues and stipulate to os many (acts and Issues as posslblo. 3. Proporo o Prolrlol Stipulation in accordance with Paragraph 8. 4. Examine, oxchonge lists oI, and in writing, list oil ob)eclions lo 1rloI exhibits. 5. Exchongo list of Iho ncimos and dddressos o(oil Idol witnesses', Including Impeachment witnesses. PRETRIAL STIPUI ATIOI1S MUST BE FILED -11 shall be Iho duty of counsel for Ilia plaintiff to sea that the Prolrlol Stipula- tion Is drown, executed by counsel for all potties and Mod with the Clock no loser than twenty (20) doys pilot to the dole set for Idol. Counsol for all parties are charged with good folili cooperation In this regard. ilia Pretrial Stipulation shall contain Iho following In sop:nolo numborod porographi: r • 1. A concise stolontent descrlbtng the facts of the case In on Impartial, easily undorsionduble monitor. ' 2. A list of oil pending motions requiring action by Iho Court and Iho doles on which Ihoso motions were Board or ore set for hoaxing. 3. A siolemen, of solos of low on which there is,ogreemenl and slipuloted lock which require no proof of trial and which may be road to the Icier of foci. • ' 4. A stolemenl of oil Issues of law and Iacl for delorminollon al trial. 5. Each pony's numborod list of Biel exhibits with specific ob)ecilens, 11 ony, to oath exhibit. Including the basis of ob)ecllon. Tito lists of exhiblls shall bo on separate schedules olloched lo Iho Slipulalion. Each potty !Atoll prepno In odvonce of iriol and furnish to the courtroom clink o1 the limo ol cornmoncernont of Ilia trial, o written list of oil his oshlblls containing o brio( doscrlpilon of oath. NOTE: Any hem which Is to bo shown to o wtlnoss shot) be marked as on exhibit In conformance with Ilia requiremonts of this porogroph. 6. Each poly's numbered list of iriol wllnessos with addroises. Expert wllnossos sholl be so deslgnoled. lite lists of witnesses sholl be on separole•schodulos attached to the Stipulation. 7. A statement of estimated alai limo. • 8. The number of peremptory bhollongos for each patty or each side. 9. limitollon on witnesses, if agreed upon, or of requested. 10. Nomps of attorneys to Ity rose. 11. Other agreements, If any. • UIULATERAL FILING OF PRETRIAL STIPULATION — 1f, (or any reason, o Proulal Stipulation Is nol oxoculod by all counsel, each counsel shall filo and servo soporat° proposed Pretrial Stipulations not law than Illloon (15) days prior to die dole sol for Irlol,.wltlt o slalomon, of why no Stipulation was executed. ADDITIONAL EXIIIBITS, WITNESSES or OBJECTIONS —.Al Trial, the parties shell bo strl211y Ilnshod to exhibits and wllnessos disclosod and objections rosorvod pursuant to Pnragroph A, absent agreement spocllicolly doled In the Flouted Stipulation or Order of Iho Court upon good couse shown. foliose to rosarvo ob)ocllons constitutes o waiver. A potty desiring to use on exhibit or wtlnoss discovored alloy counsel have met pursuant to Paragraph A shall Irnnediolely furnish the Court oriel other counsol with o doscripllon of Iho oxhibll or whit 'Ito wllnosi noose and address and Iho expected sub)ecl motto( of bit testimony, Ingather wills Ilia mason for Ilia Iola dlscovory of Iho oxldbil or wilnoss. lJso ol the •xhIbll or Minos, may bo ollowod by the Court for good couso shown or to provont manifest In)uslice. DISCOVERY = All discovory must bo completed no Idler than five (5) doys before Iho dole sal for Idol, absent ogreernonl for dolor dltcovory specifically staled in Iho Prolrlol Stipulation or Odor of Court for good cause shown. PRETRIAL CONFERENCE — No prettied conforonco pursuonl to florldo Rule of Civil Proceduro 1.200 Is set by Iho Court on Its own motion. 11 o protrlu1 conference Is sot upon motion of a potty, counsol 111011 moot and proporo o Stipulation pursuon to Paragraphs A and 0 and filo the Stipulation no lolls( Ihon livo (5) doys before Iho conloronca. Fuitui° to toques' a pretrial conference In o timely losliton constitulos q waiver of the notice requitement of Rulo 1.200. Motions for summory )udgrnonl will not bo beard at any protrioi conference. JURY INSTRUCTION — Each )try Insitucllon spell bo on a seporolo shoal, shall bo numborod, and oulhodty cited. UNIQUE QUESTIONS OF LAW — On the dot° for ilia corstmencomenl of 1r1a1, counsol for Ilia parties ore directed 10 submit 10 the Court opproprioto mernorondo with citations to legal oulhorlty. In support of any uniquo legal questions which may be reasonably onlicipotod to arise duriisg the trial. VERDICT — Counsol shalt present all requosiod vmdicl forms of Iho limo Iho Idol commences. NON•JURY TRIALS —= Disregard B(1), 6 end 1 STE rN G. PORTER and MARY A. PORTER, his wife, Plaintiffs, vs. CITY OF OKEECHOBEE and JACK BUTLER and ANNA M. BUTLER, his wife IN THE CIRCUIT COURT OF THE NINETEENTH JUDICIAL CIRCUIT IN AND FOR OKEECHOBEE COUNTY, FLORIDA. CASE NO.: 89 -66 CA JUDGE JOHN E. FENNELLY ORDER COMPELLING MEDIATION - Mediation is hereby ordered in the above - styled. case. Counsel shall confer within fifteen (15) days of the date of this Order and - select a mediator and the date, time, and place of mediation. 'Mediation shall be conducted no later than one week prior to any scheduled docket call for this case. Counsel for Plaintiff. shall submit an order setting mediation to the Court, by delivery or mail to P. 0. Bo,. 596, Stuart, Florida 34995 -- 0596, along with the necessary cc, pies '. and stamped envelopes, including an envelope for the mediator. The general rules for mediation previously adopted and attached hereto shall apply. Failure to comply with this Order may result in this case being stricken from the docket at docket call. DONE AND ORDERED in Chambers at Stuart, Martin County, Florida this 11 day of October xmcg, 19 91 JOHN E FENNELL ' JUDGE 0'. THE CIRCUIT COURT COPIES TO: Counsel of Record Lester W.Jennings,Esq. John Cook,Esq. Michael Sullivan,Esq. GENERAL RULES GOVERNING MEDIATION A. THE APPEARANCE OF COUNSEL WHO SHALL TRY THE CASE AND THEIR CLIENTS (A MANAGEMENT REPRESENTATIVE IF A CORPORATE PARTY) .WITH FULL AUTHORITY TO ENTER INTO A FULL AND COMPLETE COMPROMISE AND SETTLEMENT IS MANDATORY. AN .INSURED PARTY MUST HAVE A FULLY AUTHORIZED REPRESENTATIVE, NOT THE ATTORNEY OF THE INSURANCE COMPANY, ATTEND THE MEDIATION CONFERENCE. B The Court has the power and will impose sanctions for all parties that do not attend the Conference. The participants 'shall be prepared to spend as much time as is necessary to settle the case or until an impasse,, is declared by the Mediator. C. The parties . -shall prOsent' a brief written- summary of the facts and issues to the. Mediator ten .(10) days before the conference. Counsel for corporate parties will state the name and general job description of the.: employee or agent who will. attend--and represent the corporate party. D. All discussions, representations and statements made at-the Mediation Conference shall be privileged as settlement negotiations and nothing related to the conference shall be admitted at trial or subject to discovery. E. The Plaintiff's attorney shall work with the Mediator to coordinate the Mediation Conference. In the event it becomes impossible for an attorney to attend the scheduled conference, coordination for rescheduling may be done through the lead attorney to the Mediator. F. The Mediator shall be compensated at the rate of $125.00 per hour which shall be borne the parties equally. IN THE CIRCUIT COURT OF THE NINETEENTH JUDICIAL CIRCUIT IN AND FOR OKEECHOBEE COUNTY, FLORIDA. CASE NO: 87 -99 -CA JUDGE: JOHN E. FENNELLY STEPHEN G. PORTER and MARY A. PORTER, his wife Plaintiffs, vs. CITY OF OKEECHOBEE and JACK BUTLER and ANNA M. BUTLER, his wife Defendants. ORDER APPOINTING COURT MEDIATOR THIS CAUSE came before the Court for the appointment of a mediator to coordinate and discuss settlement of this action and the Court having reviewed the file and being otherwise advised in the premises appoints PETER GIANINO, ESQUIRE as Mediator to attempt to achieve a settlement of the issues in this case. A settlement conference shall be held on Tuesday, December 3rd, 1991 at 1:00 O'Clock P.M., at 400 N.W. 2nd Street, Okeechobee County, Okeechobee, Florida. All parties are required to attend the settlement conference. The general rules governing the settlement conference are: A. Appearance of counsel and clients is mandatory. If insurance is involved, an adjuster with full and complete authority to settle shall be present. This latter provision may be waived by the mediator on agreement of counsel or by order of the court. B. The Court shall have the power and will impose sanctions for all parties who do not attend the conference. C. Plaintiffs and defendants shall present a brief written summary of the case to the mediator at least one week before the conference containing a list of issues as to each party. STEPHEN G. PORTER and MARY A. PORTER, his wife, Plaintiffs, vs. IN THE CIRCUIT COURT OF THE NINETEENTH JUDICIAL CIRCUIT, IN AND FOR OKEECHOBEE COUNTY, FLORIDA. CASE NO: 89 -66 -CA ) CITY OF OKEECHOBEE and JACK BUTLER and ANNA M. BUTLER,) his wife, Defendants. ) O R D E R THIS CAUSE having come before the court on September 24, 1990, on the motion of the defendants, JACK and ANNA BUTLER, the court having reviewed same, heard argument of the parties, and being otherwise fully advised in the premises, it is ORDERED AND AJUDGED as follows: 1. That the defendants, JACK and ANNA BUTLER's motion to dismiss and motion to dismiss count III, are DENIED. DONE AND ORDERED in Chambers, Okeechobee, Okeechobee County, Florida, this cpisf day of September, 1990. / ` 0 n . Fenne.Iit/ JOHN E. FENNELLY Circuit Court Judge Copies to: Michael L. Sullivan, Esq. Lester Jennings, Esq. j,6ohn R. Cook, Esq. IN THE CIRCUIT COURT OF THE NINETEENTH JUDICIAL CIRCUIT IN AND FOR OKEECHOBEE COUNTY, FLORIDA. CASE NO: 89 -66 -CA STEPHEN G. PORTER and MARY PORTER, his wife, Plaintiffs, vs. CITY OF OKEECHOBEE and JACK BUTLER and ANNA BUTLER, his wife, Defendants. NOTICE OF HEARING TO: John R. Cook, Esquire Attorney for Defendant CITY OF OKEECHOBEE 202 N.W. 5th Avenue Okeechobee, Florida 34972 Michael Sullivan, Esquire Attorney for Defendant JACK and ANNA BUTLER 309 N.W. 4th Street Okeechobee, Florida 34972 PLEASE TAKE NOTICE that on the 24th day of September 1990, at 12:00 P.M., or as soon thereafter as counsel can be heard, the undersigned will bring on to be heard, all pending Motions, before the Honorable JOHN E. FENNELLY one of the judges of the above court, at his chambers in the courthouse in Okeechobee, Okeechobee County, Florida. PLEASE GOVERN YOURSELF ACCORDINGLY. Dated this 'pt% day of August, 1990. I HEREBY CERTIFY that a copy of the foregoing Notice of Hearing was furnished by U.S. Mail to the above -named addressees, on the aforementioned date. fr/er- n ings Attorney i or Plaintiff's Post Office Box 237 Okeechobee, Florida 34973 (813)467 -2570 FL BAR # 039488 IN THE CIRCUIT COURT OF THE NINETEENTH JUDICIAL CIRCUIT IN AND FOR OKEECHOBEE COUNTY, FLORIDA. CASE NO:89 -66 -CA STEPHEN G. PORTER and MARY A. PORTER, his wife, Plaintiffs vs. } CITY OF OKEECHOBEE and -JACK BUTLER and ANNA M. BUTLER, his wife, Defendants. REPLY TO AFFIRMATIVE DEFENSES Comes now the Plaintiffs, STEPHEN G. PORTER and MARY A. PORTER, his wife, by and through their undersigned attorney and in answer to affirmative defenses of the answer of the Defendants, JACK BUTLER and ANNA M. BUTLER, his wife, and states as follows: 1. The Plaintiffs deny the first affirmative defense and state affirmatively that any agreement giving the Defendants, JACK BUTLER and ANNA M. BUTLER, the right to use the 15 foot strip has been canceled and that the Defendants have been instructed not to use said 15 foot strip by Plaintiffs. 2. The Plaintiffs deny affirmative defense number 2. ANSWER TO COUNTERCLAIM Comes now the Counter - defendants, STEPHEN G. PORTER and MARY A. PORTER, his wife, and in answer to the counterclaim of the Counter- Plaintiffs, JACK BUTLER and ANNA M. BUTLER, his wife, state as follows: 1. That they admit paragraph 1. 2. That they deny paragraph 2. 3. That they deny paragraph 3 and affirmatively state that any consent or agreement made by them to allow Counter - plaintiffs to use said 15 foot strip has been revoked and Counter - plaintiffs have been instructed not to use the portion of said 15 foot strip that is owned by Counter - defendants. 4. As to the allegations of paragraph 4, these counter - defendants admit erecting a concrete parking lot and making permanent improvements on the 15 foot strip but affirmatively allege that the 15 foot strip of property belongs to them and that they had a right to construct said improvements and that in addition they had the permission from the City of Okeechobee to construct and make said improvements. 5. That they deny paragraph 5 but affirmatively state that if they did place any obstructions within the 15 foot strip that they had a right to do so. 6. That they deny paragraph 6 and affirmatively state that Lots 3 and 4, Block 34, First Addition to South Okeechobee, owned and occupied by the Counter- plaintiffs front on State Road 15 and 441 South, and named Parrott Avenue, and that Counter - plaintiffs have ingress and egress to Parrott Avenue and do not need ingress and egress through the 15 foot strip involved in this matter and only commenced to use said 15 foot strip for ingress and egress after the Counter - defendants commenced making plans to construct a shopping center on their lots being lot 1, 2, 7, 8, 9, and 10, Block 34, First Addition to South Okeechobee. 7. That they deny paragraph 7. 8. That they deny paragraph 8. 9. That they deny paragraph 9. WHEREFORE the Counter - Defendants pray that the Counterclaim be dismissed and for costs. I HEREBY CERTIFY that a copy of the foregoing has been furnished to John Cook, Attorney for City of OKeechobee and Michael Sullivan, Attorney for Jack and Anna Butler, by U.S. Mail this 9 day of March, 1990. PORTER i ' LESTER W. J r NINGS Attorney fir Plaintiff's Post Off I Box 237 Okeechob : = Florida 34973 (813)467 -2570 F1 Bar #039488 r- TO Honorable John E. Fennelly P. 0. Box 596 Stuart, FL 34995 L_ llamemems. SUBJECT DATE 3-9-90 Porter vs. City Enclosed please find a notice for trial in the referenced action. SIGNED IN THE CIRCUIT COURT OF THE NINETEENTH JUDICIAL CIRCUIT IN AND FOR OKEECHOBEE COUNTY, FLORIDA. CASE NO. 89 -6E -CA STEPHEN G. PORTER and MARY A. PORTER, his wife, Plaintiff, -vs- CITY OF OKEECHOBEE and JACK BUTLER and ANNA M. BUTLER, his wife, Defendants. NCTICE FOR TRIAL COMES NOW the Defendant, CITY OF CKEECHOBEE, by and through undersigned counsel and files this Notice for Trial, pursuant to Rule 1.440 Fla. R. Civ. Pro., and says: 1. That this is an action for a declaratory judgment. 2. That this cause is at issue. 3. That said cause is to be placed on the jury trial. docket. 4. That petitioner estimates that this trial should take nc longer than twc days. BRYANT and COOK Attorneys at Law By: TTOiff T NCK Attorney for Defendant City of Okeechobee 202 N. W. 5th Avenue Okeechobee, FL 34972 (813) 467 -0297 Fla. Bar Nc. 262951 I HEREEY CERTIFY That a true ccpy of the foregoing has been furnished by U. S. Mail to Lester W. Jennings, Esquire, P. 0. Box 237, Okeechobee, FL 34973 and Michael Sullivan, Esquire, 309 N. W. Fcurth Street, Okeechobee, FL 34972 this 8th day of March, 1990. TO EN CCOK w IN THE CIRCUIT COURT OF THE NINETEENTH JUDICIAL CIRCUIT IN AND FOR OKEECHOBEE COUNTY, FLORIDA. CASE NO:89 -66 -CA STEPHEN G. PORTER and MARY A. PORTER, his wife, Plaintiffs vs. CITY OF OKEECHOBEE and JACK BUTLER and ANNA M. BUTLER, his wife, Defendants. REPLY TO AFFIRMATIVE DEFENSES Comes now the Plaintiff's, STEPHEN G. PORTER and MARY A. PORTER, his wife, and deny paragraph 9 affirmative defense of the answer of the Defendant, CITY OF OKEECHOBEE. ANSWER TO COUNTERCLAIM Comes now the Counter - defendant's, STEPHEN G. PORTER and MARY A. PORTER, his wife, and in answer to the counterclaim of the Counter - Plaintiffs The City of Okeechobee, says: 1. That they deny paragraph 10. 2. As to the allegations of paragraph 11, these counter - defendants admit erecting concrete and permanent improvements on the 15 foot strip but affirmatively allege that the 15 foot strip of property belongs to them and that they had the permission of the Counter- Plaintiff to make said improvements. 3. That they deny paragraph 12. WHEREFORE the Counter - Defendants pray that the Counterclaim be dismissed and for costs. I HEREBY CERTIFY that a copy of the foregoing has been furnished to John Cook, Attorney for City of OKeechobee and Michael Sullivan, Attorney for Jack and Anna Butler, by U.S. 16 Mail this 40th day of February, 1990. r) /rS Ao/' NINGS Attorney •r Plaintiff's Post Off,ce Box 237 Okeechobee, Florida 34973 (813)467 -2570 F1 Bar #039488 PORTER IN THE CIRCUIT COURT OF THE NINETEENTH JUDICIAL CIRCUIT, 1N AND FOR OKEECHOBEE COUNTY, FLORIDA. ('ASE NO. 89 -66 -CA STEPHEN C. PORTER and MARY A. PORTER, his wife, Plaintiff, vs. CIITY OF OKEECHOBEE and JACK �3t}TivER and ANNA M. BUTLER, his wife. Defendants. A N S W E R CONE NOW the defendants .JACK BUTLER and ANNA M. BUTLER, by and through his undersigned attorney, and in answer to the complaint filed herein states: 1. They admit the alle,gat: ions in paragraphs 1, 2, 3A, 3B, 3C, 3E, 3F, 3G, 3H, 31. 3L, and 5. 2. They deny the allegations in paragraphs 3D, 3I, 3E. 6, 7, 8, 9, 10, 11, 14, 15, and 16 and demand strict proof thereof. AFFIRMATIVE DEFENSES Defendants JACK BUTLER and ANNA M. BUTLER, as their affirmative defenses, state as follows: 1. Plaintiffs recognized and consented to defendants' Butlers' use of the 15 feet strip as an alley and plaintiffs are thereby estopped t.o bring this action. 2. Defendants Butlers have possession of the 15 feet strip pursuant to Section 95.16 (1) (c), Fla. Stat. COUNTERCLAIM COMES NOW counterplaintiffs, JACK BUTLER and ANNA M. BUTLER, by and through their undersigned attorney, and sue STEPHEN G. PORTER and MARY A. PORTER, his wife, counterdefendants, and allege: 1. Counterplaintiffs were in possession of and had title to Lots 3 and 4 of Block 34 located within the First Addition to South Okeechobee prior to counterdefendants' ownership of Lots 1, 2, 7, S, 9 and 10. Block 34, First Addition to South Okeechobee. C) That counterplaintiffs have since ownership continually used the 15 feet strip between the aforementioned lots as ingress and egress. 3. That the counterdefendants have known of and agreed to from time to time counterplaintiffs' use of the 15 feet strip as ingress and egress. 4. That the counterdefendants have erected within the 15 feet strip between Lots 1 and 2 and 7 and 8 and the West. 1/2 of said strip adjoining Lots 9 and 10. Block 34, First Addition to South Okeechobee, permanent improvement consisting of a concrete parking lot including curb. 5. That in addition counterdefendants have from time to time placed other obstructions within this 15 feet strip with the intent to harass, impair, deter and prevent counterplaintiffs from using said strip for ingress and egress. 6. That counterplaintiffs need the 15 feet strip as ingress and egress for his property. 7. That counterdefendants' actions in obstructing counterplaintiffs' ingress and egress to their property have been willful and intentional with a willful disregard of counterplaintiffs' rights. 5. That the actions of counterdefendants have caused counterplaintiffs damages and unnecessary expenses, loss of income, mental pain and suffering. 9. That counterplaintiffs are entitled to compensatory damages against counterdefendants. WHEREFORE, counterplaintiffs pray for compensatory damages in an amount in excess of $5,000.00 and costs. and further demands trial by jury. I HEREBY CERTIFY that a copy of the foregoing has been furnished by mail to Lester Jennings. Esq., P. O. Box 237, Okeechobee, FL 34973, and John R. Cook, 202 N. W. Fifth Avenue, Okeechobee, FL 34972, this 26th day of January, 1990. IICHAEL L. SULLIVAN Florida Bar No. 214345 Attorney for Butlers 309 N.W. Fourth Street Okeechobee, FL 34972 (513) 763 -9460 IN THE CIRCUIT COURT OF THE NINETEENTH JUDICIAL CIRCUIT. IN AND FOR OKEECHOBEE COUNT\ . FLORIDA. CASE NO. 859 -66 -CA STEPHEN G. PORTER and MARY A. PORTER, his wife, Plaintiffs, vs. CITY OF OKEECHOBEE and JACK BUTLER and ANNA M. BUTLER, his wife, Defendants. MOTION TO DISMISS COUNT 11I COME NOW the defendants JACK BUTLER and ANNA M. BUTLER, his wife, by and through their undersigned attorney. and move the court for an order dismissing Count III of the First Amended Complaint herein, and for reasons state as follows: 1. Count III fails to state a cause of action upon which relief can be granted. 2. That plaintiffs, in Count III, allege trespass by the defendants Butlers. 3. That trespass must be willful, intentional, and without legitimate claim of right or colorable title. 4. That plaintiffs' pleading in complaint recognizes, at a minimum, colorable title by the defendants Butlers. 5. That plaintiffs fail to allege any dates. WHEREFORE. defendants BUTLERS move this court for an order dismissing Count 1I1 of the First Amended Complaint. I HEREBY CERTIFY that a copy of the foregoing has been furnished by mail to Lester .Jennings, Esq., P. O. Box 237, Okeechobee, FL 34973, and John R. Cook, Esq. 202 N.W. Fifth Avenue, Okeechobee, FL 34972, this 25th day of January, 1990. C.. ICHAEL L. SULLIVAN Florida Bar No. 214345 Attorney for Defendants Jack and Anna Butler 309 N.W. Fourth Street. Okeechobee, FL 34972 OM) l ';) 763 -9460 STEPHEN G. PORTER and NARY A. PORTER, his wife, Plaintiff, vs. CITY OF OKEECHOBEE and JACK BUTLER and ANNA M. BUTLER, his wife, Defendants. IN THE CIRCUIT COURT OF THE NINETEENTH JUDICIAL CIRCUIT, IN AND FOR OKEECHOBEE COUNTY, FLORIDA. CASE NO. 59 -66 -CA MOTION TO DISMISS COME NOW the defendants JACK BUTLER and ANNA M. BUTLER, his wife, by and through their undersigned attorney, and move the court for an order dismissing Counts I, II, and III of the first amended complaint herein, and for reasons state as follows: 1. Plaintiffs have filed first amended complaint for declaratory relief pertaining to ownership of 15 feat strips located within the plat of First .addition to South Okeechobee, according to plat book 1, page 17, Okeechobee County public records. 2. Plaintiffs seek relief declaring that the 15 feet strips are owned by the adjoining property owners whereas defendants Butlers allege that the 15 feet strips are designated as, inter alia, belonging to the public as an alleyway. 3. That plaintiffs are seeking relief, the outcome of which will affect all property owners as to ownership and use of the 15 feet strips within First Addition to South Okeechobee. Toombs v. Gil, 353 So. 2d 934 (3 DCA 1975). 4. That this matter was previously heard by the Honorable Court who ruled that notice need only be given to property owners within Block 34 upon which plaintiffs and defendants own property. After consideration of plaintiffs' first amended complaint and reference to paragraphs 3A and 3C there is no question that plaintiffs seek relief which will affect all owners of property within the First Addition of South Okeechobee. 5. That all owners of property within the First Addition of South Okeechobee are indispensable parties and plaintiffs must either join or at a minimum notify said owners of complaint and opportunity to join. WHEREFORE, defendants BUTLERS move this court for an order dismissing Counts 1, I1, and 111 for failure to join indispensable parties. I HEREBY CERTIFY that a copy of the foregoing has been furnished by mail to Lester Jennings, Esq., P. 0. Box 237, Okeechobee, FL 34973, and John R. Cook, Esq. 202 N.W. Fifth Avenue, Okeechobee, FL 34972. this 25th day of January, 1990. ICHAEL L. SULLIVAN Florida Bar No. 214345 Attorney for Defendants Jack and Anna Butler 309 N.W. Fourth Street Okeechobee, FL 34972 (813) 763-9460 IN THE CIRCUIT COURT OF THE NINETEENTH JUDICIAL CIRCUIT, IN AND FOR OKEECHOBEE COUNTY, FLORIDA. CASE NO. 89 -66 -CA STEPHEN G. PORTER and MARY A. PORTER, his wife, Plaintiffs, vs. CITY OF OKEECHOBEE and JACK BUTLER and ANNA M. BUTLER, his wife, Defendants. MOTION TO DISMISS COUNT II COME NOW the defendants JACK BUTLER and ANNA M. BUTLER, his wife, by and through their undersigned attorney, and move the court for an order dismissing Count. II of the First Amended Complaint herein, and for reasons state as follows: 1. Plaintiffs in this Count are requesting relief for injunction preventing defendants Butlers from using the 15 feet strip located between Lots 1, 2 and 7, 8 and the West 1/2 of said strip adjoining lots 9 and 10. Injunctive relief does not lie in this matter as plaintiffs have adequate remedy at law. 3. That Count II is deficient for a lack specificity in establishing irreparable damage. WHEREFORE, defendants BUTLERS move this court for an order dismissing Count II of the First Amended Complaint. I HEREBY CERTIFY that a copy of the foregoing has been furnished by mail to Lester Jennings, Esq., P. 0. Box 237, Okeechobee, FL 34973, and John R. Cook, Esq. 202 N.W. Fifth Avenue, Okeechobee, FL 34972, this 25th day of. January, 1990. MICHAEL L. SULLIVAN Florida Bar No. 214345 Attorney for Defendants Jack and Anna Butler 309 N.W. Fourth Street Okeechobee, FL 34972 (513) 763 -9460 IN THE CIRCUIT COURT OF THE NINETEENTH JUDICIAL CIRCUIT IN AND FOR OKEECHOBEE COUNTY, FLORIDA. CASE NC. 89 -66 -CA STEPHEN G. PORTER and MARY A.PORTER, his wife, Plaintiff, -vs- CITY OF OKEECHOBEE and JACK BUTLER and ANNA M. BUTLER, his wife, Defendants. ANSWER CCMES NOW the Defendant, CITY OF OKEECHOBEE, by and through undersigned counsel and files this answer to the First Amended Complaint filed herein and state: COUNT I 1. Paragraphs 1, 2, 3(a), 3(b), 3(c), 3(e), 3(f), 3(g), 3(h), 3(j), 3(1) are admitted. 2. Paragraphs 3(d), 3(i), 3(k) are denied. COUNT II 3. Paragraph 4 is denied to the extent denied in Count I. 4. Paragraph 5 is admitted. 5. Paragraph 6, 9, 11 are denied. 6. Defendant City is without knowledge as to paragraphs 7, 8, and 10 and deny same. COUNT III 7. Paragraph 12 is denied to the extent denied in Counts I and II. 8. Defendant City is without knowledge as to paragraphs 13, 14, 15 and 16 and deny same. AFFIRMATIVE DEFENSE 9. The plaintiffs are estopped to bring this action as they recognized and agreed in 1985 before the City Council that said alley was in fact validly owned by the City and requested permission to use it only. COUNTER -CLAIM 10. This is an action for trespass by Defendant City as ccunter - plaintiff against Plaintiffs, STEPHEN G. PORTER and MARY A. PORTER, his wife, as ccunter- defendants, and state 11. The counter - defendants STEPHEN G. PORTER and MARY A. PORTER, have caused to be erected cn a city alley certain ccncrete and permanent improvements to -wit: On a 15 foot strip between lots 1 and 2 and 7 and 8 and the West one -half of lots 9 and 10 cf Block 34, FIRST ADDITION TO SOUTH OKEECHOBEE in the City of Okeechcbee, Florida. Said ccunter - defendants refuse to remcve said improvements which block the alley despite demand by the city. 12. That the actions of counter- defendants constitutes a continuing trespass which has caused and will cause the city damages and expenses. WHEREFORE, the City demands judgment against the Counter - Defendants, STEPHEN G. PORTER and MARY A. PORTER, his wife, in a sum in excess of $5,OCO.0C, plus all ccsts. SUBMITTED this 5th day of January, 1990. By: BRYANT and COCK Attorneys at Law JOHN -R. CCCK Attorney for Defendant City of Okeechobee 202 N. W. 5th Avenue Okeechobee, FL 34972 (813) 467 -0297 Fla. Bar No. 262951 I HEREBY CERTIFY That a true ccpy of the foregoing has been furnished by U. S. Mail to Lester W. Jennings, Esquire, P. 0. ` Box 237, Okeechobee, FL 34973 and Michael L. Sullivan, Esquire, 309 N. W. 4th Street, Okeechobee, FL 34972 this 5th day of January, 1990. JOHN R. COCK (;)- ) , 3C;) ,t4 s' ;2- L4 i J- ,vk.. u fie{; y 66-Y-) . 01. j N g ( C. c /0 sLit. 4 6 -e K: 4, L V n t'D c't 6 31- 6_1 CL r ■• • ^ 111. • WrIV,II M11•77 IP If IrIPT911-11,10.1W111-11/111,11-1r. -`-49,11rWrrirlrirli iirirliririr0 Wile AVIV* AV* • ON tr. WV' Irlirk 1LnfLf'1,,,,_ i, Nr-K .1,:., c , 0 r..." 1 - \:"t, s-\*.t / 2 k 4 4 thk /- IN THE CIRCUIT COURT OF THE NINETEENTH JUDICIAL CIRCUIT IN AND FOR OKEECHOBEE COUNTY, FLORIDA. CASE NO:89 -66 -CA STEPHEN G. PORTER and MARY A. PORTER, his wife, Plaintiff, vs. CITY OF OKEECHOBEE and JACK BUTLER and ANNA M. BUTLER, his wife, Defendants. FIRST AMENDED COMPLAINT COUNT I COMES NOW the Plaintiffs and sue the Defendants and allege: 1. That Plaintiff's STEPHEN G. PORTER and MARY A. PORTER, husband and wife, are residents of Okeechobee County, Florida. That the Defendant, CITY OF OKEECHOBEE, hereinafter referred to as CITY, is a municipality of the State of Florida located in Okeechobee County, Florida. That the Defendants, JACK BUTLER and ANNA M. BUTLER, are husband and wife and are residents of the City of Okeechobee, County of Okeechobee, Florida, and are hereinafter referred to as BUTLERS. 2. That this is an action pursuant to Section 86.011 et seq. Florida Statutes 1987 for a declaratory judgment as to the ownership of a narrow strip of real property located in the City of Okeechobee and rights of the parties to this suit to the use and control of said narrow strip of real property. 3. The Plaintiffs are entitled to relief against the Defendants CITY and BUTLERS upon the following facts: A. First Addition to South Okeechobee according to plat book 1, page 17, Okeechobee County public records was platted as a subdivision of the City of Okeechobee in October, 1924, by the owners of said real property, PETE and LOUISIANA RAULERSON. That said subdivision contains Block 26 through 46 with each block being divided into lots. B. That most of the blocks of said subdivision contain 15 foot wide strips of land going South to North separating a row of lots on the East from those on the West. That said 15 foot strips are not designated on the plat of the subdivision for any purpose. That Block 34 of said subdivision contains one of such 15 foot undesignated strips. C. That the plat of First Addition of South Okeechobee contains no dedication of streets or alleys. That several years after the plat of said subdivision was recorded the developers filed an instrument apparently attempting to dedicate the streets and alleys to the perpetual use of the public reserving to themselves, their heirs and assigns the reversion of the same if abandoned or discontinued by law. That said instrument was recorded in Deed Book 17, pages 383 and 384, Okeechobee County, Florida. Like the plat the instrument did not designate the 15 foot strips for any purpose. A copy of such instrument is attached hereto and marked Plaintiff's Exhibit "A ". D. That there was no effective acceptance of the dedication of the 15 foot strips as mentioned above by the CITY and the 15 foot strips have not been used by the public as an alleyway and have not been constructed or improved as an alleyway. E. That the Plaintiffs since 1982 have owned Lots 1 and 2 and 7, 8, 9, and 10, Block 34 of said subdivision. That the Defendants BUTLERS own Lots 3 and 4 of said Block 34. That the 15 foot strip mentioned above separates Lots 1, 2, 3 and 4 on the East from Lots 7, 8, 9 and 10 on the West. F. That the Defendants the CITY and BUTLERS claim that the 15 foot strip running between lots 1 through 4 on the East and lots 7 through 10 on the West is a public alleyway while Plaintiffs hold that said 15 foot strip between said lots is not an alleyway but that Plaintiffs own all of said strip between lots 1 and 2 on the East and 7 and 8 on the West and the West 1/2 of said strip between lots 9 and 10 on the West and lots 3 and 4 on the East. G. That the CITY has directed from time to time in the past several years that the Plaintiffs can not impede the use of the 15 foot strip as an alley for egress and ingress of the Defendants BUTLERS to their property being lots 3 and 4. H. That the Defendants BUTLERS for the past several years have used said 15 foot strip running through Plaintiffs lots 1 and 2, and 7 and 8 as an alley. I. That the action of the CITY and BUTLERS have and are impeding the use of Plaintiffs property. J. That the rights of the Plaintiffs with the use of their lots and the 15 foot strip are dependent upon a judicial determination as to who owns the 15 foot strip and whether it is an alley and whether the CITY has a right to regulate it as an alley and if the BUTLERS have a right to use said strip. K. Plaintiffs allege that the 15 foot strip running through lots 1 and 2 and 7 and 8 belong to them and that the West 1/2 of said strip adjoining lots 9 and 10 belong to them and is not an alley and that the CITY does not have a right to regulate it as such and that the Defendant BUTLERS have no right to use it as ingress and egress to their property or for any other reason. L. A determination of whether Plaintiffs own the 15 foot strip between lots 1 and 2 and 7 and 8 and the West 1/2 of said strip adjoining lots 9 and 10 or whether said property is an alley is necessary to determine whether the Defendants, BUTLER and others have the right to use said property as an alley or whether the Plaintiffs can refuse to allow the Defendants BUTLERS and others from using the property as an alley and to use it for other purposes and whether the Defendant CITY can regulate the property as an alley. WHEREFORE the Plaintiff's pray this Honorable Court for a declaratory judgment adjudging that the 15 foot strip between lots 1 and 2 and 7 and 8 and the West 1/2 of said strip adjoining lots 9 and 10, Block 34 belong to the Plaintiffs and is not an alley and can not be regulated by the CITY as an alley and that Defendants BUTLERS have no right to use said property for ingress and egress to their property and for costs. COUNT II COMES NOW the Plaintiffs and sue the Defendants and alleges 4. That Plaintiffs incorporate by reference paragraphs 1 through 3 of County I in this Count II. 5. That this is an action for an injunction. 6. That the 15 foot strip of land between lots 1, 2 and 7, 8 and the West 1/2 of said strip adjoining lots 9 and 10 Block 34 belongs to Plaintiff in fee simple and the Defendants have no right to trespass on or use this part of said 15 and 7.5 foot strip for egress and ingress. 7. That the Defendants BUTLER have been warned by Plaintiffs not to trespass on or to use said part of said strip belonging to Plaintiffs. 8. That in violation of Plaintiffs rights and the warning given the Defendants BUTLERS have continued to trespass on the portion of the 15 foot strip belonging to Plaintiffs and to use it for ingress and egress. 9. That the CITY through its officials, employees and City Council has encouraged, aided and abetted the Defendant BUTLERS in their illegal trespasses by its actions. 10. That the Defendants, BUTLERS, continued trespass upon the property of Plaintiffs is creating a cloud upon Plaintiffs title to said property, impairing the marketability thereof, and irreparably damaging the property rights of the Plaintiffs. 11. Plaintiffs have no adequate remedy at law in connection with the matters alleged herein being done by the Defendants and will suffer irreparable damage if the improper actions are not stopped. WHEREFORE the Plaintiffs pray this Honorable Court for a temporary and permanent injunction prohibiting and enjoining the Defendants, BUTLERS, from trespassing upon the property of the Plaintiffs and enjoining the CITY from action aiding and abetting and encouraging the Defendant, BUTLERS, in such trespassing and such other relief as may appear proper and costs. COUNT III COMES NOW the Plaintiffs and sue the Defendants, BUTLERS, in this Count III and allege: 12. That Plaintiffs incorporate by reference paragraphs 1 through 10 of County I and II in this Count III. 13. That this is an action for damages that involves the misconduct of the Defendants, BUTLERS mentioned in counts I and II above. 14. That Defendant, BUTLERS trespasses upon Plaintiffs property have been willful and intentional and have been a willful disregard of Plaintiffs' rights. 15. That such trespasses have caused Plaintiffs damages in unnecessary expenses, loss of income and mental pain and suffering. 16. That Plaintiffs have a right to compensatory damages against the Defendants BUTLERS. WHEREFORE in this Count III PLaintiffs pray for compensatory damages in an amount in excess of $5,000.00 and costs. I HEREBY CERTIFY that a copy of the foregoing has been furnished by U.S. Mail to: John R. Cook, Attorney for Defendant CITY, 202 N.W. 5th Avenue, Okeechobee, Florida 34972, and Michael L. Sullivan, Attorney for Defendant BUTLERS, 309 N.W. 4th Street, Okeechobee, Florida, 34972, this 1$15 day of December, 1989. PORTER1 S R,/ Attorn- ,for Plaintiffs Post yfice Box 237 Okee obee, Florida 34973 (813)467 -2570 FL Bar # 039488 IN THE CIRCUIT COURT OF THE NINETEENTH JUDICIAL CIRCUIT IN AND FOR OKEECHOBEE COUNTY, FLORIDA. CASE NO:89 -66 -CA STEPHEN G. PORTER and MARY A. PORTER, his wife, Plaintiffs VS. OF OKEECHOBEE and K BUTLER and ANNA M. BUTLER, his wife, Defendants. CERTIFICATE I, LESTER W. JENNINGS, attorney for the Plaintiff's STEPHEN G. PORTER and MARY A. PORTER, his wife, in the above styled cause do hereby certify as follows: 1. That this certificate supplements that certificate dated November 29, 1989, and filed and served in this cause. 2. That attached hereto as Exhibit "A" is the front and back of a U.S. Mail return receipt showing that Lucy Goglia the recorded owner of Lots 5, 6, 11 and 12 of Block 34 of First Addition to South Okeechobee according to the plat thereof recorded in Plat Book 1, page 17, Okeechobee County Public Records received the letter dated November 29, 1989, to her by me. Lester W. Jennings, a copy of which was attached to the Certificate dated November 29, 1989. 3. That the letter dated November 29, 1989, was received by Lucy Goglia on December 4, 1989, and the undersigned received the return receipt attached hereto on December 12, 1989. Dated this FC `` day of December, 1989. GS Attorney fo laintiff's Post • fi Box 237 Okeecho•ee, Florida 34973 (813)467 -2570 I HEREBY CERTIFY that a copy of the foregoing has been furnished to John Cook, Attorney for City of OKeechobee and Michael Sullivan, Attorney for Jack and Anna Butler, by U.S. Mail this 1VA day of December, 1989. /1/. INGS PORTER I i 1 01J AI PuP PMrsunk?'Il . 7NO) +KSJPpy v•••nsippy li 1 Ai f)10 io1 i.0 'L a X — •Jnwvu6lS 'g eeuuppv — 0J U61$ '9 '031i3A1130 3LV0 pug lusegliNgessaippg 10 umgu6l% uleigo $AgMly £ S Z S 5 6 Z L 8 d JegwnN 0013.1V I'W4 ueJdx3 pD a0 ud pa ; pe ie ail :•o!Me$ to.dA1 •q £TS90 ID 'ueA H MaN anuany oediuuin0 9LL eTTboo ionV :03 pe%suPp ' •Ia!n,y t •AJ•Ailop lO •s•Jppv putt (N) Koq ow Pug ael Jot On NolnJes Ou!MOI10l 043 •AJ•nlNO psnaIJ1Ny 0 .e 0100'w04M 0% M049 U" '1, •pe3"enbei (e)**IAJ•" JOt Je3101441Od 31nsuo3 '01g011000 "eel I•UOI31PPs JO j • . nljep 40 03sp s43 pus o3 p0JOA4Isp uOUed 043 40 swvu 043 hook epinoJo IIIM sot io!eosJ uinn•J e41 'nook of peu4n30J bu!•q woi pie* $144 3u•n•Jd 11!M 0!41 op 01 une!v4 lip!" •SJ•neJ •4n uo •D•df ,.01 Nk!(1131:1.. eq3 u! u Jppv JnoA and •q pue E •E'I. %wen 03eldwo3 :k130N3S • 1 on P 1 0 2 0 o ti cn O z r•n M E N• n (D C.4 0 i Z N t Gi (J) t31 IN THE CIRCUIT COURT OF THE NINETEENTH JUDICIAL CIRCUIT IN AND FOR OKEECHOBEE COUNTY, FLORIDA. CASE NO:89 -66 -CA STEPHEN G. PORTER and MARY A. PORTER, his wife, Plaintiffs CITY OF OKEECHOBEE and ACK BUTLER and ANNA M. BUTLER, his wife, Defendants. CERTIFICATE I, LESTER W. JENNINGS, attorney for the Plaintiff's STEPHEN G. PORTER and MARY A. PORTER, his wife, in the above styled cause do hereby certify as follows: 1. That in accord with paragraph 2 of the order entered in this cause dated November 27, 1989, I searched the public records of Okeechobee County, Florida, to ascertain the record owners of all lots located in Block 34, First Addition to South Okeechobee according to the plat thereof recorded in Plat Book 1, page 17, OKeechobee County Public Records. From my search I found the record owners of lots in said Block 34 to be: Stephen G. Porter and Lots 1,2,7,8,9 and 10 Mary A. Porter, his wife Block 34 Jack Butler and Anna M. Butler, his wife Lots 3 and 4, Block 34 Lucy Goglia Lots 5,6,11 and 12 Block 34 2. That the only owner who is not a party to this action is LUCY GOGLIA whose mailing address is listed on the public tax rolls of Okeechobee County, Florida as: Lucy Goglia 776 Quinnipac Avenue New Haven, Connecticut 06513 3. I further certify that in accord with paragraph numbered 2 of the order entered in this cause dated November 27, 1989. I mailed a letter to LUCY GOGLIA at her above listed address advising her of her right to intervene in this action. A copy of this letter is attached hereto and marked Exhibit "A ". That the original of the letter was mailed to LUCY GOGLIA by certified mail no: P 872 955 253 on November 29, 1989, return receipt requested. That a copy of the receipt for the mailing is attached hereto as Exhibit ,0 B 11 Dated this 29th day of November, 1989. L TE ; J NN GS Attorney for Plaintiff's Post Office Box 237 Okeechobee, Florida 34973 (813)467 -2570 I HEREBY CERTIFY that a copy of the foregoing has been furnished to John Cook, Attorney for City of OKeechobee and Michael Sullivan, Attorney for Jack and Anna Butler, by U.S. Mail this 29th day of November, 1989. LESTER JENNINGS ATTORNEY AT LAW 110 N.E. THIRD AVENUE • POST OFFICE BOX 237 OKEECHOBEE, FLORIDA 34972 PHONE (913) 467-2570 November 29, 1989 Ms. Lucy Goglia 776 Quinnipac Avenue New Haven, CT 06513 CERTFIED MAIL NO: P 872 955 253 Re: Porter v City of Okeechobee et al, case no 89 -66 -CA Dear Ms. Goglia: I represent Stephen G. Porter and Mary A. Porter, his wife, in a pending civil action in the Circuit Court of the Nineteenth Judicial Circuit In and For Okeechobee County, Florida, Case No: 89 -66 -CA styled as follows: STEPHEN G. PORTER and MARY A. PORTER, his wife Plaintiffs vs CITY OF OKEECHOBEE and JACK BUTLER and ANNA M. BUTLER, his wife Defendants. In the case among other things, my clients are requesting the Court to enter a declaratory judgment adjudging that the 15 foot strip between Lots 1 and 2 on the East and Lots 7 and 8 on the West and the West one half of said 15 foot strip adjoining Lots 9 and 10 of Block 34 of First Addition to South Okeechobee according to the plat thereof recorded in Plat Book 1, page 17 Okeechobee County Public Records is not an alley and belongs to the Plaintiff's Stephen G. Porter and Mary A. Porter, his wife. The City of Okeechobee, a municipality of the State of Florida is a defendant in the case. The other two defendants are Jack Butler and Anna M. Butler, his wife, who own lots 3 and 4 in Block 34 of First Addition to South Okeechobee according to Plat Book 1, page 17 Okeechobee County Public Records. That the Honorable John E. Fennelly, Circuit Judge whose address is Post Office Box 596, Room 105, Stuart, Florida 34995, is the presiding judge over said civil action. Judge Fennelly entered an order in the case dated November 27, Page 2 November 29, 1989 Letter to Ms. Goglia 1989. Paragraph numbered 2 of said order provides: The motion by Butler to dismiss for failure to join indispensable parties is granted. Plaintiffs shall have sixty (60) days from the date in which to notify, by certify mail, each landowner in Block 34, First Addition to South Okeechobee of their right to intervene in this action if they so choose. This action shall abate for such sixty day period. I have examined the Public Records of Okeechobee County, Florida and find that you are the record owner of Lots 5 and 6 and 11 and 12 of Block 34, First Addition to South Okeechobee according to the plat thereof recorded in Plat Book 1, page 17 Okeechobee County Public Records and in accord with paragraph 2 of the order of Judge John E. Fennelly mentioned above I am advising you of your right to intervene in the action if you so choose. I am enclosing a copy of the order dated November 27, 1989. Copies of all pleadings in the case may be obtained from the Clerk of the Circuit Court of Okeechobee County, Florida whose mailing address and telephone number are as follows: Gloria Ford Clerk of The Circuit Court 304 N.W. 2nd Street, Room 101 Okeechobee, Florida 34972 (813)763 -2131 The attorneys for the parties in the this action and their addresses and telephone numbers are listed as follows: Lester W. Jennings Attorney for Plaintiffs Stephen G. Porter and Mary A. Porter, his wife Post Office Box 237 Okeechobee, Florida 34973 (813)467 -2570 John Cook Attorney for City of Okeechobee 202 N.W. 5th Avenue Okeechobee, Florida 34972 (813)467 -0297 Page 3 November 29, 1989 Letter to Ms. Goglia Michael L. Sullivan Attorney for Jack Butler and Anna M. Butler, his wife 309 N.W. 4th Street Okeechobee, Florida 34972 (813)763 -9460 This letter constitutes the official notice of your right to intervene in case no: 89 -66 -CA referred to in this letter. erely, LE'TER'W: JENNfNGS LWJ:dat cc: Michael Sullivan, Esquire John Cook, Esquire Court File P 8 7 2 955 2 5 3 RECEIPT FOR CERTIFIED MAIL V, LA,Vi ■■A ' Vlatl IN'iRNATIONA1 MAli OC 14eVet Sent to str,et 776 Quinnipac Ave. P 0 3— CertWed Fee ReStri( (0.1 Return Pr.c-elpt shuopr,q tO whom d',C1 Dale Do e0 cn Relurn show,nv, 10 ■...vnom co F1 I le 0 nt3 z AelVII" 0 oo c) E 0 IN THE CIRCUIT COURT OF THE NINETEENTH JUDICIAL CIRCUIT IN AND FOR OKEECHOBEE COUNTY, FLORIDA. CASE NO :89 -66 -CA JUDGE JOHN E. FENNELLY STEPHEN G. PORTER and MARY A. PORTER, his wife, Plaintiffs, vs. CITY OF OKEECHOB and JACK BUTLER a M. BUTLER, his wife, Defendants. ORDER THIS CAUSE having came on to be heard upon Motions to Dismiss by each of the parties; and upon appearance of counsel and argument thereon, the court being fully advised, it is ORDERED AND ADJUDGED as follows: 1. The motion by the City of Okeechobee to dismiss for failure to comply with statute of limitations is dismissed with leave to assert same as an affirmative defense to the action. 2. The motion by Butler to dismiss for failure to join indispensable parties is granted. Plaintiffs shall have sixty (60) days from date in which to notify, by certify mail, each landowner in Block 34, First Addition to South Okeechobee of their right to intervene in this action if they so choose. This action shall abate for such sixty day period. 3. The motion to strike by the City and Butler of the request for temporary injunction is denied. 4. The motion of the City and Butter to dismiss Count III is granted and Plaintiffs are granted 20 days from date in which to amend, and Defendants shall reply within 20 days of said amendment 5. In all other respects the motions to dismiss by the Defendants are denied. DONE AND ORDERED in chambers in Stuart, Florida this day of 89. cc: John C. Cook, Esquire Lester W. Jennings, Esquire Michael Sullivan, Esquire Martin County, Judge, Circuit Court IN THE CIRCUIT CCURT OF THE NINETEENTH JUDICIAL CIRCUIT IN ANE FOR OKEECHOEEE COUNTY, FLORIDA. CASE NC. 89 -66 -CA JUEGE JOHN E. FENNELLY STEPHEN G. PORTER and MARY A. PORTER, his wife, Plaintiffs, CITY CF OKEECHOBEE and JACK BUTLER and ANNA M. BUTLER, his wife, Defendants. AFFIRMATIVE DEFENSE COMES NCW the Defendant, CITY CF CKEECHOBEE, by and through undersigned counsel and files this affirmative defense and states: As an affirmative defense to the action for damages for trespass, and the request for declaratory relief, the City alleges the plaintiffs have failed to comply with the statute of limitations for such actions set forth in Florida Statutes 768.28(b) (a) . SUBMITTED this 10th day of October, 1989. By BRYANT and COCK Att moneys at La 202 N. W. 5th Avenue Okeechobee, FL 34972 (813) 467 -0297 Fla. Bar Nc. 262951 Attorney for City of Okeechobee I HEREBY CERTIFY that a true ccpy of the foregoing has been furnished by U. S. Mail to Lester W. Jennings, Esquire, P. 0. Bcx 237, Okeechobee, FL 34973 and Michael L. Sullivan, Esquire, 309 N. W. Fourth Street, Okeechobee, FL 34972 this 10th day of October, 1989. ( 7) 7.-Th JmNy��i� TELEPHONE (81 3) 467 -0297 BRYANT & COOK ATTORNEYS AT LAW 202 N.W. 5TH AVENUE OKEECHOBEE. FLORIDA 33472 r City of Okeechobee 55 SE 3rd Avenue Okeechobee, FL 34974 L FOR PROFESSIONAL SERVICES 10/10/89 8.5 hrs. @ $60.00 = $510.00 Expenses - Mileage = $ 24.00 Telephone = $ 4.65 $538.65 pcfutq ct-t-- paL ert _s 2. jel oy. 3(AA li412 C2 /27 !O LS t 4-7 41...R -55S I 3(1 )2o'- 11 )5D A-t )(e3 32 FL fd2 s' c txp 0-2 f? d 114 tytAbins.k.A., L,--6 tr-y7- p-19-0A--2.04.4 \ kNL,C1 0± 70`k 171 l\a/2/02,,,<1 rutrt JJQ AA'11,A1- JQ 49-el cd) fA.9-q2-6,24-/ Cit} QA 17 So, 56Y Ta4A-69- D j.) J -04 F 52- (A-) 77 02' tC1 133 " 10C. 11 " 4fr 9-6t- t•-kA k:".t)■ /t•■ October 10, 1989 Mr. John Drago 55 S. E. Third Avenue Okeechobee, FL 34974 -2932 Re: Porter vs. City Dear Mr. Drago: We had a hearing in Stuart on October 5 on this case, and the trespass action, and the Porters' claim for attorneys fees and punitive damages have been dismissed. They may re -file the trespass action if they wish. They may seek an injunction to prevent Jack from using the alley as well. The judge abated the action for 60 days so Lester could notify the other landowners in that black of the suit. 1 enclose my billing to date as well. Kindest regards, JOHN R. COOK JRC : cb Enclosure IN THE CIRCUIT CCURT OF THE NINETEENTH JUDICIAL CIRCUIT IN AND FOR OKEECHOEEE COUNTY, FLORIDA. CASE NC. 89 -66 -CA JUEGE JOHN E. FENNELLY STEPHEN G. PORTER and MARY A. PORTER, his wife, Plaintiffs, CITY CF OKEECHOEEE and JACK SUTLER and ANNA M. BUTLER, his wife, Defendants. AFFIRMATIVE DEFENSE COMES NCW the Defendant, CITY OF CKEECHOBEE, by and through undersigned counsel and files this affirmative defense and states: As an affirmative defense to the action for damages for trespass, and the request for declaratory relief, the City alleges the plaintiffs have failed to comply with the statute of limitations for such actions set forth in Florida Statutes 768.28(b) (a) . SUEMITTED this 10th day of October, 1989. By: BRYANT and COCK Attorneys at Law JOHN R. CCC< 202 N. W. 5th Avenue Okeechobee, FL 34972 (813) 467 -0297 Fla. Bar No. 262951 Attorney for City of Okeechobee I HEREBY CERTIFY that a true copy of the foregoing has been furnished by U. S. Mail to Lester W. Jennings, Esquire, P. 0. Bcx 237, Okeechobee, FL 34973 and Michael L. Sullivan, Esquire, 309 N. W. Fourth Street, Okeechobee, FL 34972 this 10th day of October, 1989. 3OHN P. CO R C Nt( .4)k) /13 -■"41',^.^11111110-4111rirWW-1,411WerlrirrilMIPirlrIrWIMMIlrlirlre"rn D 44./2 • F' , . I ; , j7:.:-.- . ,,Ls,--,--A. s 6,-, vki,,..., , ,-,7 --n.,._v /9 ,,, ,_,..--, .2 ; u? 0 ?„--, ,,,,,,ct 4-1,,,, (-_,..i.i)11,,lj-iil 0-/‘ I 1, ...,i, 1 . `,,..1 li 1 l'6-A, -A - (4,30-kr•,, 1 fre1A-4-1 C),--d 1k, CI t'' i ! Dfe 0 ! ' II I 1' 1 t , 7I ifn L-/LtIciY) 14-:-.1 1-)4. , II i, /-: . , t 7` I I I t r-t L,' , '''` ''Li't i_ ,..,i i i t it , t / ,...1 , fik. 1-;:'-‘0,'At-, 17) C& tirt pi,' .1._ 1 f --. 4 - Nt , . I , ., 7 / \ ,,,, ,,k -1,, (,)\ O'n i I I t ( Lj ' t 1 t U "1111W++,41mapos-- DI cr-\\ A •••,•TII •MIVW VTIN•714., og-t',617Z. --rivk (pr., TY 0,,-(4). t)-,Z , 0,Nr) • V\5 k CY\ rj ti" ktlfk k-,--rirA 1, A e„.,t6 ,_ ..?k, ' A\ 7 L.,-Ik.:4 1 1-4 -v,,,,A--:: cr" td,1 ii Lk.,,L4„.i•?.-1, ,A-_-;„ 6A-A ./)'-`3/4,,.4 ,/,)--) . 1 IL,.. , ) 1 ) ..., is.,, t,,, ,,„1_„,,,,,,,,;}„, ,i-'4„.0,t,'" 1 -J -l),,;D ("1.- , ,),. , ,,_, -f--: 11 i,x...,2_,‘. ,}-,. 1 ,,,/fi, 02( 1,,,,, A 4-0'7- -LI ( 1:. I t , i • ' i , t t ; t dy) t t tt-A.1 1-3 -j<titl 11) SAX 1 C A i-I ' !ti.t re' b e r"--YTA v ,2,2(\ CJ f„) ••• Mr-• r 111,ir lirV•W It\ ci-tJ ,1--2,-(\ ik-;-/L)P yy, st; ordc.)- A.,\A ALA 41)2-)A.R STEPHEN G. PORTER and MARY A. PORTER, his wife, Plaintiffs, CITY OF OKEECHOBEE and JACK BUTLER and ANNA M. BUTLER, his wife, Defendants. IN THE CIRCUIT COURT OF THE NINETEENTHI JUDICIAL CIRCUIT IN AND FOR OKEECHOBEE, COUNTY, FLORIDA. CASE NC. 89 -66 -CA JUDGE JOFN E. FENNELLY ORDER THIS CAUSE came on to be heard upon Motions to Dismiss by each of the parties; and upon appearance of counsel and argument thereon, the court being fully advised, it is ORDERED and ADJUDGED as follows: 1. The mction by the City of Okeechobee to dismiss for failure to comply with statute of limitations is dismissed with leave to assert same as an affirmative defense to the action. 2. The motions by the City of Okeechobee and Butler to dismiss the claim for punitive damages and attorneys fees in Count III against the City and Butler is granted. 3. The mction by Butler to dismiss for failure to join indispensable parties is granted. Plaintiffs shall have sixty (6C) days from date in which to notify, by certified mail, each landowner in Block 34, First Addition to South Okeechobee of their right to intervene in this action if they so choose. This action shall abate for such sixty day period. 4. The mction to strike by the City and Butler of the request for temporary injunction is denied. 5. The mction of the City and Butler to dismiss Count III is granted and plaintiffs are granted 20 days from date in which to amend, and defendants shall reply within 20 days of said amendment. 6. In all other respects the motions to dismiss by the defendants are denied. DONE and ORDERED in chamber's in Stuart, Martin County, Florida, this day of , 1989. Copies furnished: John R. Cock Lester W. Jennings Michael L. Sullivan 71 rIT JUn BRYANT & COOK ATTORNEYS; AT LAW 202 N.W. 5TH AVE. OKEECHOBEE, FL 34972 (813) 467-0297 r- Lester W. Jennings, Esquire P. O. Box 237 Okeechobee, FL 34973 SUBJECT DATE 10-10-89 Porter -vs- City Enclosed please find a copy of a proposed order in the referenced action. If you have any objections to this please let me hear from you within ten days. SIGNED BRYANT & COOK ATTORNEYS AT LAW 202 N.W. 5TH AVE. OKEECHOBEE, FL 34972 (813) 467 -0297 4 TO Michael L. Sullivan, Esquire 309 N. W. Fourth Street ,_ Okeechobee, FL 34972 DATE Porter -vs -City SUBJECT 10 -10 -89 Enclosed please fines a copy of a proposed order in the referenced action. If you have any objections to this please let me hear from you within ten days. SIGNED STEPHEN G. PORTER and MARY A. PORTER, his wife, Plaintiff, vs. CITY OF OKEECHOBEE and JACK BUTLER and ANNA M. BUTLER, his wife, Defendants. IN THE CIRCUIT COURT OF THE NINETEENTH JUDICIAL CIRCUIT, IN AND FOR OKEECHOBEE COUNTY, FLORIDA. CASE NO: 89 -66 -CA AMENDED NOTICE OF HEARING TO: LESTER W. JENNINGS, ESQ. P. 0. Box 237 Okeechobee, FL 34973 Attorney for Porter JOHN R. COOK, ESQ. 202 N.W. 5th Avenue Okeechobee, FL 34973 Attorney for City YOU ARE HEREBY NOTIFIED that the undersigned will call up for a hearing the following: DATE: 'October 5. 1989 TIME: `9.30 A JUDGE: John E. Fennelly PLACE: Chambers, Martin County Courthouse SPECIFIC MATTERS TO BE HEARD: Butler's Motion to Dismiss PLEASE GOVERN YOURSELF ACCORDINGLY. I HEREBY CERTIFY that a true copy of the foregoing was furnished to the above named addressee(s) herein this llth day of August, 1989. ICHAEL L. SULLIVAN Florida Bar No. 214345 Attorney for Plaintiff 309 N.W. Fourth Street Okeechobee, FL 34972 (813) 763 -9460 cc: Mr. Jack Butler STEPHEN G. PORTER and MARY A. PORTER, his wife, Plaintiffs, -vs- IN THE CIRCUIT COURT OF THE NINETEENTH JUDICIAL CIRCUIT IN AND FOR OKEECHOBEE COUNTY, FLORIDA. CASE NO. 89 -66 -CA JUDGE JOHN E. FENNELLY CITY OF OKEECHOBEE and JACK BUTLER and ANNA M. BUTLER, his wife, Defendants. NOTICE OF HEARING TO: LESTER W. JENNINGS, ESQUIRE P. 0. Box 237 Okeechobee, FL 34973 MICHAEL L. SULLIVAN, ESQUIRE 309 N. W. Fourth Street Okeechobee, FL 34972 PLEASE TAKE NOTICE that on the 3rd day of October, 1989, at 9:30 A. M., or as soon thereafter as counsel can be heard the undersigned will bring on to be heard the Defendant's Mction to Dismiss before the Honorable John E. Fennelly, one of the judge: of the above court, at his chambers in the Courthouse in Stuart Martin County, Florida. Please govern yourself accordingly. DATED this 10th day of August, 1989. BRYANT And COCK Attorneys at Law By: Attorney for City of Okeechobee 202 N. W. 5th Avenue Okeechobee, FL 34972 (813) 467 -0297 Fla. Bar No. 262951 I HEREBY CERTIFY That a copy of the foregoing Notice of Hearing was mailed to the above named addressees on the afore- mentioned date. JOHN1 -TOOK 11 ‘toe /06110) To OiSmiS,3- C>•ES 1p-cte) (.6u-Nr1.14/ fui-vA FR_CP / o)i■ cirN 2A01—(4- "0-4 ocufk- jp.d/), 11,1/40ft-el J4,A. c;t,' or TkR- c 6 -n,Q cu,sz P-cnO. 6,u3 rk/tia- A"-)c taQ'ft3I&IN 0—n41 co4it ID:0g ) cg< ai\.54 Nor or)4_ 1).0Q,„0/ 11,24i\ p2Axy‘.-A>a))_Avt .t4 10.6_ 1"\-k CA AAL2/_„,;,,,LJ, c't -11/%2-0. tAiL to ott 0t4r1;,,tc)Ek-orLs ai'teLc", 9-fh,Lt,t- 4 3 Eta* ')(0Y. , ((Q)60-) 6-r, 0-06, or vr wort (vat' ;t7—R aYIS c- 5 Cke,-.VV‘ Li\fn AA' tVkL,V0, L) Te16•'-11 6-1-*C-•-"v`, t( V1NP ULLA; ‘NA yl-t± i)-4-t4-A-A Lo Luz-a 1/1/0-t Or\ OA . kA'A, 4),14-6K2, 1)\r4 b LJLA jto Li? 6.6./)/0\J'ki),/),4-\---( j),"\.ijorn DcA 16.a " oAq v 'BOcitc:( ;Lq4t-L, CI-LA )9,3)3) 1)521)2-0V o L2-€ b12-k C. t P. d co- „1.- ktiot Ifo P 6,0/2"a ,J-s0 FS 5.-/./i), bib1/4-e cs,L) ctsk,c) IN THE CIRCUIT COURT OF THE NINETEENTH JUDICIAL CIRCUIT IN AND FOR OKEECHOBEE COUNTY, FLORIDA. CASE NO. 89 -66 -CA JUDGE JOHN E. FENNELLY STEPHEN G. PORTER and MARY A. PORTER, his wife, Plaintiffs, -vs- CITY OF OKEECHOBEE and JACK BUTLER and ANNA M. BUTLER, his wife, Defendants. MOTION TO DISMISS COMES NOW the City of Okeechobee, by and through undersigned counsel, pursuant to Florida Rules of Civil Procedure 1.140(6), and files this motion to dismiss plaintiffs complaint for lact f subject matter jurisdiction, and states: 1. The thrust of plaintiffs complaint is that they are fee simple owners of an alley running between adjoining lots owned by plaintiffs, and the defendants are committing trespass by using said alley. 2. That the plaintiffs were officially placed on notice by 'the city on August 12, 1985 that their permissive use of the alley granted by the city was rescinded, and that they were to remove all obstructions from the alley. (attached, Exhibit A). 3. That Florida Statute 768.28(6)(a) states that an action may not be instituted on a claim against the state or it's sub- divisions unless the claimant presents his claim in writing within three (3) years from the time the claim accrues to the state or subdivision. 4. That plaintiffs have not presented such a written claim to the city within three years from August 12, 1985, and suit was not filed in this cause until on or about January 26, 1989. 5. That this notice within three years has been held to be jurisdictional and requires dismissal of the claim with pre- judice Askew v. Volusia Ccunty 450 So.2d 233 (Fla. 5 DCA 1984); Levine v. Dade Ccunty School Board 442 So.2d 210 (Fla. 1983). 6. Defendant City is entitled to fees and costs under Florida Statute 57.105. WHEREFORE, the Defendant CITY OF OKEECHOBEE moves that the Plaintiffs complaint be dismissed with prejudice, with fees and costs awarded to defendant. SUBMITTED this 10th day of August, 1989. BRYANT and CCOK Att neys at By: J•'` C 0 Attorney for City of Okeechobee 202 N. W. 5th Avenue Okeechobee, fL 34972 (813) 467 -0297 Fla. Bar No. 262951 I HEREBY CERTIFY that a true copy of the foregoing has been furnished by U. S. Mail to Michael L. Sullivan, Esquire, 309 N. W. Fourth Street, Okeechobee, FL 34972 and Lester W. Jennings, Esquir P. 0. Box 237, Okeechobee, FL 34973 this 10ttr\ day of August, 1989. (2)L4_ R. COOK General Prarliee Trial Practice Criminal Law Jcraid I). Bryant Attorney Al l.nw August 12th, 1985 CfRRTIFIED MAIL - RETURN RECEIPT REQUESTED Mr. Steve Porter 1700 South Parrott Avenue Okeechobee, Florida 33472 RE: Alley - Block 34, First Addition.to South Okeechobee Dear Mr. Porter: 208 N.E. 3rd Avenue Poet Oilier Box 816 Okeechobee, Florida 33472 Telephone 813- 467.1776 This is to advise you that the City Council of the City of Okeechobee has voted to rescind its September 17, 1984 agreement to allow you to use that portion of the alley in Block 34 between lots 1 and 7. You are requested to remove all obstructions from the alley, including parking curbing and dumpsters, within seven (7) days of the date of this letter. The alley is to remain open and unobstructed for the use of the public and should no longer be used for parking by the patrons or employees of businesses in your budding. Your cooperation will be appreciated. Failure to comply with this request may result in a citation by the Code Enforcement Officer or police and tnay result in the removal of obstructions, including vehicles, at the owner's expense. Kindly give this matter your immediate attention. Very truly yours, ,/;,t,d)'(( , 7_ , / ,, dERALD D. (J< City Attorney JDB /jcb cc: L. C. Fortner, Jr., Administrative Asst. Bonnie Thomas, Clerk Councilmen (5) Larry Mobley, Police Chief Lt. Farrenkopf, Code Enforcement Officer Mr. Jack Butler_ EXHIBIT "A" General Practice Trial Practice Criminal Law (/ pERALD t'' D. Y 1� ANT City Attorney ierahi D. Bryant Attorney At Law August 12th, 1985 IFIED MAIL - RETURN RECEIPT REQUESTED Mr. Steve Porter 1700 South Parrott Avenue Okeechobee, Florida 33472 RE: Alley - Block 34, First Addition to South Okeechobee Dear Mr. Porter: 208 N.E. 3rd Avenue P wit Of ice !lox 816 Okeechobee, Florida 33472 Trlc-phone 813. 467.1776 This is to advise you that the City Council of the City of Okeechobee has voted to rescind its September 17, 1984 agreement to allow you to use that portion of the alley in Block 34 between lots 1 and 7. You are requested to remove all obstructions from the alley, including parking curbing and dumpsters, within seven (7) days of the date of this letter. The alley is to remain open and unobstructed for the use of the public and should no longer be used for parking by the patrons or employees of businesses in your building. Your cooperation will be appreciated. Failure to comply with this request may result in a citation by the Code Enforcement Officer or police and may result in the removal of obstructions, including vehicles, at the owner's expense. Kindly give this matter your immediate attention. Very; truly yours, JDB /jcb cc: L. C. Fortner, Jr., Administrative Asst. Bonnie Thomas, Clerk Councilmen (5) Larry Mobley, Police Chief Lt. Farrenkopf, , Code Enf orcerr n t Officer Mr. Jack Butler IN THE CIRCUIT COURT OF THE NINETEENTH JUDICIAL CIRCUIT, IN AND FOR OKEECHOBEE COUNTY, FLORIDA. CASE NO: 89 -66 -CA STEPHEN G. PORTER and MARY A. PORTER, his wife, Plaintiffs, vs. ;`CITY'OF OKEECHOBEE and JACK BUTLER and ANNA M. BUTLER, his wife, Defendants. AFFIDAVIT IN SUPPORT OF MOTION TO DISMISS COME NOW the Defendants, JACK BUTLER and ANNA M. BUTLER, his wife, and hereby files the attached affidavit in support of their motion to dismiss. I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by mail to Lester W. Jennings, Esq., Post Office Box 237, Okeechobee, Florida, 34973, and John R. Cook, Esq., 202 N.W. 5th Avenue, Okeechobee, Florida, 34972, this day of July, 1989. CHAEL L. SULLIVAN Florida Bar No. 214345 Attorney for Butlers 309 N.W. Fourth Avenue Okeechobee, Florida 34972 (813) 763 -9460 INSTRUCTIONS FOR STREET /ALLEY CLOSING 1. Application is given to applicant. 2. Applicant returns completed application and pays application fee of $25.00. 3. Clerk's office submits application to department heads. Application is then given to the City Clerk for approval. 4. Clerk's office submits application to Administration Department to be presented to Council for discussion at the next regular Council meeting. 5. If Council instructs City Attorney to draft an ordinance, applicant is then required to pay $170.00. 6. The ordinance is prepared for first reading. Council then decides if they wish to advertise second and final public hearing. If so, Clerk's office advertises ordinance. 7. Clerk's office looks in the fiche file for the names and addresses of all property owners within 600 feet surrounding said street /alley closing. 8. Clerk's office mails out certified letters notifying property owners within 600 feet of said street /alley closing request and public hearing dates as specified in Resolution #87 -3. 9. Clerk's office keeps a record of when certified letters are mailed and when they are received by surrounding property owners. 10. Final public hearing is held. Report is presented to Council. Ordinance, if passed, is then filed at the County Clerk's office. A copy of ordinance is mailed to applicant. FLORIDA POWER AND LIGHT COMPANY PAT FOSTER, SUPERVISOR 219 S.W. PARK STREET OKEECHOBEE, FLORIDA 34974 763 -5514 UNITED TELEPHONE W. GEORGE MILLER, DISTRICT MANAGER ENGINEERING DEPARTMENT 899 N.W. 6TH STREET OKEECHOBEE, FLORIDA 34972 TOLL FREE 1 -452 -3250 HARTE HANKS CABLE DANNY LACROIX, GENERAL MANGER 107 N.W. 7TH AVENUE OKEECHOBEE, FLORIDA 34972 763 -5566 CLERICS ClUITIIICAtZ s 1 A2 a OF FLORIDA ) COUNTY OF OKEECHOBEB ) es: CITY OF OICEECHOBRE ! BONNIE & THOMAS. HEREBY CERTIFY THAT I.ae the ib► , aati!ad Perk (the CityolOMe.ehob...Florida: Mat Meatier* and a Ma and cornet alp of.Document the original of M.hich is MIYNeiZ 01!in q/ the City Clerk of the City of Okeechobee, Florida. IN matzo WHSREOF 1 haw hereunto t band and 1Af official meal 'said city. this .�C�.day q/- L --,1 A It BONN1s S. THOMAS CITY CLERK Appl.# APPLICATION FORM FOR STREET /ALLEY NAME(S), ADDRESS, PHONE NUMBER OF PERSON(S) REQUESTING SAID STREET /ALLEY CLOSING:. PURPOSE OF SAID REQUEST: STREET ADDRESS AND /OR DESCRIPTIVE LOCATION OF PROPERTY: THE FOLLOWING INFORMATION MUST ACCOMPANY THIS APPLICATION BEFORE PROCESSING: 1. A COPY OF THE RECORDED PLAT SHOWING THE PROPERTY AND RIGHTS -OF -WAY INVOLVED 2. WRITTEN CONSENT OF ALL OWNERS OF PROPERTY ADJOINING THE STREET /ALLEY INVOLVED, UNLESS ALL SUCH OWNERS JOIN IN THIS PETITION. 3. COPY OF DEED(S) INVOLVED. 4. COMMENTS FROM FLORIDA POWER AND LIGHT COMPANY, UNITED TELEPHONE SYSTEM AND HARTE HANKS CABLE COMPANY (IT IS THE RESPONSIBILITY OF THE APPLICANT TO DELIVER THIS APPLICATION TO THE THREE UTILITY DEPARTMENTS FOR THEIR COMMENTS. THIS APPLICATION WILL NOT BE CONSIDERED COMPLETE UNTIL THESE COMMENTS ARE ACQUIRED.) COMMENTS FROM FLORIDA POWE$ AND LIGHT COMPANY Date: AUTHORIZED SIGNATURE COMMENTS FROM UNITED TELEPHONE SYSTEM Date: AUTHORIZED SIGNATURE COMMENTS FROM HARTE HANKS CABLE COMPANY Date: AUTHORIZED SIGNATURE Signed Signed (Property Owner /Applicant) (Property Owner /Applicant) Signed (Property Owner /Applicant) Signed (Property Owner /Applicant) Sworn to and subscribed before me this day of 19 Notary Public (Affix Seal) My Commission Expires: (Use additional sheet if more space is needed for notorized signatures) FOR OFFICE USE ONLY COMMENTS FROM PUBLIC UTILITIES DEPARTMENT Date: COMMENTS FROM PUBLIC WORKS DEPARTMENT Date: COMMENTS FROM POLICE DEPARTMENT Date: COMMENTS FROM FIRE DEPARTMENT Date: APPLICATION FORM APPROVED BY: CITY CLERK DIRECTOR OF PUBLIC UTILITIES DIRECTOR OF PUBLIC WORKS POLICE CHIEF FIRE CHIEF CLERKS CERTIFICATE s 1 it 1 k OF FLORIDA 1 COUNTY OF OKEECHOBEE Jew CITY OF OKEECHOBEE 1. BONNIE S. THOMA& I1 D RY CERTIFY THAT I ant the duly ,..alified Clerk of the Cit ye/ Okaeheb*e.Florida: that the above and foregoing a true and correct copy of a Boatmen: the original of which is on file lathe Of fice of the atty Clerh of the City of Okeechobee. Florida. d and IN WITNESS WHEREOF I h�a ej��u,, eaneo end a� nhe Jfficial oral of *aid city. this aLfl+�t.day of Q J nEAL BONNIE & THOMAS CITY CLERK RESOLUTION NO. 87 -3 A RESOLUTION AMENDING RESOLUTION NO. 86 -3, PERTAINING TO APPLICATION AND PROCEDURES FOR STREET AND ALLEY CLOSINGS; PROVIDING FOR REQUIREMENT OF NOTICE TO AFFECTED PROPERTY OWNERS. WHEREAS, the City Council adopted Resolution No. 86 -3 which provides procedures for street and alley closing applications, and WHEREAS, the City Council deems it appropriate to amend said Resolution No. 86 -3 to provide a requirement for notice to property owners affected by the proposed street or alley closing. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF OKEECHOBEE, FLORIDA AS FOLLOWS: 1. Resolution No. 86 -3 is amended to add the following provisions: a. In addition to the publication of Notice of Proposed Ordinance, and public hearing thereon, as required by the laws of the State of Florida, the City Clerk shall cause a notice of the proposed street or alley closing to be mailed by certified mail to the owners of all real property within 600 feet of the street or alley proposed to be closed, which notice shall include a description of the street or alley proposed for closing, the date, time and place of the public hearing thereon, and a statement that the property owner may be heard in person at the hearing or may submit comments in writing or by telephone to the appropriate City Official prior to the scheduled public hearing. Said notice shall be mailed to the owners of record of real property within the area prescribed above at the address'shown on the latest tax rolls available. b. At the public hearing, the City Clerk shall submit a report listing names and addresses of all property owners within the prescribed area, the date notice was mailed and the date the certified mail receipt was signed by the recipient. Said report shall be maintained with the application for street or alley closing, together with the certified mail receipts. ADOPTED this 3rd day of ATTEST: C.:0411Lle-le BONNIE THOMAS City Clerk March OAKLAND C PMA Mayor , 1987. CLI1I'S Cta I14CATs J1Al11 utFLORIDA ) COUNTY OF OKEECHOBEE ) at: CITY OF OKEECHOUS . ;JONNIE S. THOMAS. HEREBY CERTIFY THAT last tha duly .at. fad Ckrl of the City*,Ohobu. Florida: that the abot+sandh othts tr..r and comet copy of a Document the original of which is as fill laths 0ffi..a of the Qty awe of the City of Okeechobee. Florida. IN WITNI8s WHL'R&O, l hew hemwpo w hand and the a/iciat aad a said city. M. . isy a - �� IJ •aNNlia THOMAS MT CLERK RESOLUTION NO. 86 -3 WHEREAS, the City of Okeechobee contains many platted and dedicated alleys or alleyways, as well as some streets and roads, which serve no necessary or useful purpose of the City or its general population; and WHEREAS, the vacating and closing of such alleys, streets or roads would result in the adjoining property owners gaining additional useful property and would result in an increase in taxable real property on the tax rolls of the City; and WHEREAS, the vacating and closing of such alleys, streets or roads would eliminate maintenance costs and liability of the City as to such property involved; and WHEREAS, the City Council has determined that it is in the best interest of the City to establish procedures for affected property owners to make application for the vacating and closing of such alleys, streets and roads; NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Okeechobee, Florida as follows: 1. THAT any owner of property adjoining a platted or dedicated alley, y, street, or road, or any person affected by such alley, street, or road, may apply to the City Council for an ordinance vacating and closing such alley, street, or road. The application shall be submitted to the office of the City Clerk and shall include: a. a properly completed application on a form provided by the Clerk; b. a copy of the recorded plat showing the property and rights -of -way involved; c. the written consent of all owners of property adjoining the alley, street, or road involved, unless all such owners join in the application; d. a non - refundable application fee of $25.00. 2. THAT the City Clerk shall review each application for completeness and shall place the application on the next regular agenda for consideration by the Council. The applicant shall be advised of the time and date of the meeting at which the application will be considered and that said applicant may make a presentation in support of the application at that time. 3. THAT after consideration of the application and any other information the Council deems appropriate, the Council shall determine whether it is in the best interest of the City to deny the application or to proceed with the preparation and consideration of an ordinance vacating and closing the subject alley, street or road. If the Council determines it to be in the best interest of the City to proceed with consideration of such an ordinance, upon payment of the costs as set forth in Paragraph 4 below, the City Attorney shall be directed to prepare the proper ordinance for first reading at the next regular meeting of the Council, or at such other meeting as the Council deems appropriate. 4. THAT the applicant shall be responsible for payment of the costs of preparation and advertising the proposed ordinance vacating and closing the subject alley, street or road. Prior to the preparation of the ordinance, the applicant shall delosit with the City Clerk the sum of $170.00, which shall include legal and advertising costs. This sum is in addition to the initial application fee and is non - refundable. 5. THAT any ordinance prepared pursuant to this Resolution shall be subject to the same procedures for adoption as any other ordinance of the City, including a public hearing on proper notice. Nothing herein shall be construed to obligate the City Council, or any individual Council member, to vote to adopt a proposed ordinance. Each such ordinance shall be adopted only after opportunity for public comment and consideration by the Council of all relevant factors raised. 6. THAT nothing herein shall be construed to prohibit the City Council from initiating procedures to vacate and close any alley, street, or road on its on motion for valid City purposes. PASSED AND ADOPTED this 7th day of January 1986 . th,ST: CITY OF OKEECHOBEE, FLORIDA Ar4teediee__, BONNIE S. THOMA,S ,(SIC CITY CLERK APPROVED AS TO FORM: JERALD D. BRYANT CITY ATTORNEY Clara inittralltikli STATE OP PLORIDA 1 COUNTY OP OKEECHOBiiE I ex CITY OP OKRECHOBRE L BONNIE B. THOIIAB NUBBY CERTIFY THAT teen WE* *Wilted Parka, the Ci4►a/Oheahobee.Florida: that w.i. ii. true sad matte cap, al �wwwt the aeyind b r erttr w Office al the City Clark al the City a/ Obechoboe, Merida. IN *muss WM 1RQP Iham hereunto head sail al t fal ee i al amid city this •-r7 0-41 day al� L 1• AIRAL Cd-71-1e)..47441-77-(Ge—,..—) BONNIE & THOYAB CITY CLERK IN THE CIRCUIT COURT OF THE NINETEENTH JUDICIAL CIRCUIT IN AND FOR OKEECHOBEE COUNTY, FLORIDA. CASE NO: 89 -66 -CA STEPHEN G. PORTER and MARY A. PORTER, his wife, Plaintiffs, vs. (CITY, OF OKEECHOBEE and JACK ER and ANNA M. BUTLER, his wife, Defendants. NOTICE OF HEARING TO: John Cook, Esquire 202 N.W. 5th Avenue Okeechobee, Florida 34972 PLEASE TAKE NOTICE that on th day of August, 1989, at 9:30 A.M., or as soon thereafter as counsel can be heard, the undersigned will bring on to be heard, the Defendants, CITY OF OKEECHOBEE'S Motion To Dismiss, before the Honorable John E. Finnelly one of the judges of the above court, at his chambers in the courthouse in Stuart, Martin County, Florida. PLEASE GOVERN YOURSELF ACCORDINGLY. Dated this 1371 day of June, 1989. I HEREBY CERTIFY that a copy of the foregoing Notice of Hearing was furnished by U.S. Mail to the above -named addressees and to Michael L. Sullivan, Attorney for Jack Butler and Anna M. Butler, 309 N.W. 4th Street, Okeechobee, Florida, on the 1.)74' day of June, 1989 �1 1 L -ster ./ ennings Attorney for Plaintiff Post Office Box 237 Okeechobee, Florida 34973 (813)467 -2570 IN THE CIRCUIT COURT OF THE NINETEENTH JUDICIAL CIRCUIT IN AND FOR OKEECHOBEE COUNTY, FLORIDA. CASE NO: 89 -66 -CA STEPHEN G. PORTER and MARY A. PORTER, his wife, /1 Plaintiffs, V8. (CITY% OF OKEECHOBEE and JACK LER and ANNA M. BUTLER, his wife, Defendants. NOTICE OF HEARING TO: Michael L. Sullivan 316 N.W. 5th Street Okeechobee, Florida 34972 PLEASE TAKE NOTICE that on the 28th day of February, 1989, at 2:30 P.M., or as soon thereafter as counsel can be heard the Defendants JACK BUTLER and ANNA M. BUTLER'S Motion to Dismiss, before the Honorable William L. Hendry one of the judges of the above court, at his chambers in the courthouse in Okeechobee, Okeechobee County, Florida. Please govern yourself accordingly. I HEREBY CERTIFY that a true and correct copy of the foregoing Notice of Hearing was Hand Delivered to the above -named addressee and to John Cook, Attorney for City of Okeechobee, 202 N.W. 5th Avenue, Okeechobee, Florida, on the 23rd day of February, 1989. Lester Jennings Attorn f for Plaintiff Post 0 fice Box 237 Okeechobee, Florida 34973 (813)467 -2570 STEPHEN G. PORTER and MARY A. PORTER, his wife, vs. Plaintiffs, OF OKEECHOBEE and BUTLER and ANNA M. BUTLER, his wife, Defendants. IN THE CIRCUIT COURT OF THE NINETEENTH JUDICIAL CIRCUIT, IN AND FOR OKEECHOBEE COUNTY, FLORIDA. CASE NO. 89 -66 -CA MOTION TO DISMISS COME NOW the defendants JACK BUTLER and ANNA M. BUTLER, his wife, by and through their undersigned attorney, and move the court for an order dismissing the complaint, counts 1 to 3, herein, and for reasons state as follows: 1. That plaintiffs have failed to join indispensable parties, to -wit: all owners of First Addition to South Okeechobee, according to Plat Book 1, page 17, Okeechobee Public Records. Plaintiffs seek relief, the outcome of which will affect all property owners within the aforementioned subdivision. Toombs v. Gil, 353 So. 2d 934 (3DCA 1978). 2. That plaintiffs have failed to plead a bona fide need for declaratory judgment in this matter pursuant to 86.011. 3. That' plaintiffs have failed to state facts sufficient for injunctive relief by inter alia omitting any irreparable harm or damage. 4. That plaintiffs have failed to state a cause of action in trespass for failure to state inter alia ownership or exclusive right to use. 5. That plaintiffs have failed to state a cause of action upon which punitive damages may be recovered and defendants seek this allegation stricken. 6. That plaintiffs have failed to attach documents pursuant to FRCP 1.130, i.e. platted subdivisions of the City of. Okeechobee according to Plat Book 1, page 17, and the instrument referred to in Count I, paragraph 3C, of the complaint herein. WHEREFORE, defendants JACK BUTLER and ANNA M. BUTLER, move the court for an order dismissing the complaint herein. I HEREBY CERTIFY that a copy of the foregoing has been furnished by mail to Lester W. Jennings, Esq., P. 0. Box 237, Okeechobee, FL 34973, and John R. Cook, Esq., 202 N.W. 5th Avenue, Okeechobee, FL 34972, this 20th day of February, 1989. MICHAEL L. SULLIVAN Florida Bar No. 214345 Attorney for Butlers 300 N.W. 5th St., Suite 316 Okeechobee, FL 34972 (813) 763 -9460 § 42 CT10NS w, 4 � 1NJVN of Title at tres- s s Establishing, Right enjoindarnittedw must 1� Fla �u of Est`' ., r {Sdicit to not a en- eeessity entertain 1a, title, if refused to N enter 1�1°ant s have the plead A2- equity to the C °m be Anity °urtsears from property, For roperty, hed s T to there It appears to the e adjust on p tills will n pass ins t a eh on a contro el about t determine court of be oin a trespass ere is afor .a cout°,a Therefouise of s° doing, •' en- join that a matter real pr °penunder. the city into an action �x and a try it titles to reap ro nt bill in equity at law' edy af. disputed zner °aver le iS established the rem restrain and, fhus e ere the inadequacy injunction against teclear land, Z3ut wa e as t damages,. a a temp °racy lgai nc- e ttment ism w �+ p i d ejec °,plug on atla p lie. against sh ac t� unction o Where an fp trespasses on the pr °per la pass s $O e tthataher `''as he fleSpaSS s (18951 alleg ropertY or any lot P• neither , the s v willia 0 0{ the p . einterest in w�g1g,18 So g5olarH 896 Eta fac e dy is pT properly denied. 1Baker Brown v• Solar/ 39 Fla remedy (1907) v. B 02, j9 S Wilson U9 ;truc- 44 So 944. (1893) 32 Fla NI Davis 190 S° 716 oininvement Carney v' Had 22 1 RA 233, 31 698 to the enlnce tc:xss S 10 344, 14 So 101. Co. . do Ns to �ntE � Ts A Am St Rep point Mill C 50 EAS v. East But see Bay 58 Fla 38 o. v., see 28 Fla Saunders (19 equitable %31' 1��vet S. 1St Rep So 984, peimthe question o4 title 9,Indian �Sansp• `f and leavingnii:: courts, though neither Coast 10 S° 4813) 32 Fla to thesla ed good title or eit to 887, A 233, 37 arty '25%. 13" party ra. Catne14 So 1895) 35 Carney v. Hadley sup 1913) 66 p n, St o a ie1 ( tit Co 112.. Williams 6 R'Soardso, Ann Cas 446, woodl �rner L Fla 234, Fla 333, 44 So 173 1916D 245. 1907) 52 Fla V;14(s)v& 14. R. Co. 69 v, Skinner ( Cas 452. 1 10 Fla 200, 1348bw42 5° 730, 11 Ann plain- 'Ono 80 Fla grantee of a successful osses- L o an (1920) 14 t The ¢jectment, m Y is tres s a R Co v. Fea- lion thereunder, 401 B34F a 62, 105 5o 141. 4 P �l_-26 1( 1.: (17 Fla Jur) 568 SOUTFIERN REPORTER, Vol. 17. in* alleged promise, for a valuable consideration to the old firm of Tysen, Smith & Co., to pay all of the old firm's debts, is of itself tanta mount to an assent by him to the novation provided for, and' of itself is equivalent to a release and : cancellation of his claim against the old flan of Tysen, Smith & Co.; and, were the hereafter to attempt to enforce the same claim against the old firm of Tysen, Smith & Co., the fact of his institution of this suit against the new firm - upon their promise to , pay . the debts of the old firm would operate as an estoppel in bar of re- covery. The declaration alleges, further, in connection .with' the asserted promise of the new firm to pay the old firm's debts, that the plaintiff had requested of the new firm a compliance with their said promise, but they had failed and refused to do so. This alleged demand by the plaintiff is tanta- mount to an acceptance by him of the new firm as his debtors, instead of the old, and, consequently, taken in connection with his suit upon the promise of the new firm, amounted to a release of his claim against the old firm. When the dissolution of an old t'" firm occurs, and a new firm agrees to assume the liabilities of the old, but slight circurn- zv/�O stances are required to justify finding an intention on the part of a creditor of the old firm, who has notice of the dissolution and agreement, to accept the liability of the new instead of the old firm. Itegister v. Dodge, 19 Blatchf. 79, 6 Fed. 6; Id., 61 How. Prac. 107. We think the demand alleged here on the new firm, and the institution of suit against It on its promise, are sufficient to show an intention on the plaintiff's part to accept the new firm as his debtors, and to discharge the old. For these reasons, we think the plaintiff's declaration exhibited in him the right to sue upon the alleged promise of the ' new firm to pay his debt among they other debts of the old firm, and the court's ruling upon the demurrer to such declaration was proper. There was no error in the admission in evidence of the drawings, plans, and specifi- cations for a steamboat. The making of such drawings, plans, etc., for the defendants at their request, comprised one of the items of the plaintiff's account sued on. The exhibit of such drawings, plans, etc., to the jury, was proper for the determination by them of the quantum meruit of that Item of ' work done by the plaintiff for the defendant& Without quoting the instructions excepted to, ft is sufficient for us to say that we have considered them all, and find no error there- in. While the testimony in the cause is such that we might possibly have arrived at a different verdict from the one found bad we been members of the jury, yet there is evi- denee to sustain the verdict found, and we consequently cannot ; disturb it. We find no error in the record, and the judgment of the court below Is therefore af- firmed.. • (35 Flt) YELLOW RIVER It. CO.' v. HARRIS.; (Supreme Court of Florida. April 16, 1895.) .. TRESPASS —TITLE TO SUPPORT AarION— EVIDSNCL 1. The purpose of the United States got• eminent in having the receivers of its public land I offices to. issue receipts to purchasers and matt men of the public lands is that such receipt should serve as evidence, at least of the faet that the party to whom it is issued has made en- try upon or purchased the land described therein, by the consent of the government, through it proper agents, and that he is entitled, by virtue of such purchase or entry, to the possession and control thereof. As evidence of the fact of put- chase or entry of the land embraced therein and of the party's right to possess and control the same, such receipts, as a general rule, are admis- sible in any suit in which the entryman's right to the possession of the land becomes involved as a material issue. Section 9, p. 514, of McClel- lan's Digest, that was in force at the trial of this cause, however, expressly made such receipts evi- dence in trespass and all other causes in which the title to the land was involved but provided that, as a prerequisite to their admission, the pat- ty, offering them must first make oath in writing that he has been unable to procure a patent for the land in time for the, trial, and should further furnish the evidence, or a certificate under seal from the general land office, showing the reason why the patent had not issued, and that there ex- isted no reason why it should not issue at the proper time. 2. There is nothing in the character of re celpts for land issued by the receivers of the United States land offices that makes them self verifying or self - identifying, and, where a party offers' such a receipt in evidence for any purpose, the burden is upon him to show by competent proof that the paper he offers in evidence as be- ing a receiver's receipt was in fact issued and signed by the onicer purporting to have issued and signed the same. 3. Where lands are trespassed upon. a party, to be entitled to sue and recover for such tree - pass, must have been the owner or in possession of the land at the time of the trespass. If be does not acquire any ownership over or posses- sion of the land until after the acts of trespass, then, it is well -settled, he cannot recover dam- ages for such trespass. And it behooves the plaintiff, in such cases, to show that at the time of the alleged trespass he was either the owner of the land trespassed upon, or else in the actual possession thereof. (Syllabus by the Court.) Appeal from circuit court, Walton county; W. D. Barnes, Judge. Action of trespass by H. P. Harris against the Yellow River Railroad Company. Plain- tiff had judgment, and defendant appeals. Reversed. Blount & Blount and Daniel Campbell, for appellant. D. L. McKinnon, for appellee. TAYLOR, J. The appellee sued the ap- pellant in the circuit court of Walton county, in an action of trespass upon land, for locat- ing its railroad over his land, and recovered judgment for $200, from Which judgment this appeal is taken. " The defendant pleaded the general issue,` and a special denial of the ownership of the premises by the plaintiff. At the trial the plaintiff, to prove his own -' ership of the land, trespassed upon, offered' in evidence what purported to be a final re- Fla colt) laa( rec. edg gun legs deft den, ado .' of den, then sign i eve. den( and Ti this acts tion, oral malt quir prov rece Whe are sett; desc des! emi> cil>i( in a righ land any purl suer pubi mis: fled, to ti 8os3 ulcer of a pos Rail 632, Land try, can his step wa y lean 1s is writ ernn entit seas' fact dent Dose mat: ruby was Fla.) YELLOW .RIPER R. CO. O. HARRIS. 569 eeipt of the receiver of the United State land office at Gainesville, Fla., wherein th receipt of the sum of four dollars is acknowl edged as being the balance of payment re quired by law for the entry of the ian(7 al leged to have been trespassed upon. Th defendant objected to its introduction in evi dente upon the grounds (1) that it was not admissible, under our statute, except in cases of ejectment; (2) beckuse 'it was not evi- denced by any seal of office; and , (3) that there was no evidence that it was in the handwriting of the officer purporting to have signed the same. These objections were all overruled, and the receipt admitted in evi- dence, to which due exception was taken, ' and this ruling is assigned as error. The first objection to the introduction of this paper is without merit. The various acts of congress, and the rules and regula- tions of the interior department of the fed- eral government, under authority of law, making provision for the settlement and ac- , quirement of homes from the public domain, provide „for the issuance to the settler of a receipt by the receivers of the land offices where such entries are made, which receipts are required to designate the particular tract t settled upon, by its accurate governmental description; and such receipts, though not designed to be an actual title to the land embraced therein, are intended, from the in- cipiency of the entry to its final culmination In a patent, to be evidence of the entryman's right to possess and control the particular land covered thereby; and, ipdependently of any statute on the subject, from the prime purpose of the law in providing for the is- suance of such receipts to settlers upon the public domain, we think that they are ad- missible in evidence, when properly identi- fied, in any cause in which the settler's right to the land embraced therein, or to the pos- session thereof, is called in question; partic- ularly so in any suit brought for the redress of any interference with his occupancy and possession of the land, such as 'the one here, —for a trespass on any part thereof. In Railway Co. v. Gates, 41 Ilan. 574, 21 Pac. fin, it was held that a settler upon public land, who has made a valid homestead en- try, and is in possession, perfecting his title, can recover full value for all injury done to pis possession, where a part of his home- stead has been taken for a railway right of way. Such receiver's receipt is evidence, at least, of the fact that the party to whom it is leaned has made entry upon the land de- scribed therein, by the . consent of the gov- ernment, through its proper. agents, and is entitled, by virtue of such entry, to the,pos- Session of such land, and, as evidence of the fact of his, entry, becomes admissible in: evi- dence in auy suit in which his right to the possession of the land becomes involved as a s material issue. But aside from this general t ssile; upon the subject, at the time this cause t was .tried Section 9, p..,514, of • McClellan's s Digest was in full force. That expressly e provides that such. receiver's receipt should be prima facie evidence of the party's title to the land embraced therein, in all actions - of ejectment, trespass quare clausum fregit, e or other cases involving title to lands pur- chased from the United States: provided, however, that the. party offering such receipt in evidence should first make oath, in writ- ing, that he has been unable to obtain a pat- ent for said land in time for the trial of said cause, and should further exhibit the evidence or a certificate, under seal, from the general land office, showing the reason why the patent had not issued, and that there was no reason why the patent should not issue at the proper time. The omission of the plaintiff to lay the groundwork for the admission of his receiver's receipt, by mak- ing the oath and furnishing the evidence from the general land office as to the non - issuance of the patent prescribed in the above proviso to this statute, was not urged as an objection to its introduction; but, so long as this statute was in force, the receipt was not admissible until the foundation. for its admission was first laid as prescribed in the above proviso. This statutory founda- tion not having been laid, the court erred in admitting the receipt in proof without 'it. unless it can be said that ,the defendant waived this objection by not urging it. The second ground of objection to the ad- mission of such receipt is likewise without merit. We know of no law or departmental rule or regulation that requires such receipts to be under seal of any kind in order to give them validity. The third ground of objection to the intro- duction of such receipt was well taken. While such receipts, when properly identified and shown to be genuine, and the proper groundwork laid for their admission, were admissible in such cases, as evidence of the holder's right to the possession and control of the land covered thereby, yet. there is nothing in the law providing for their issu- ance that makes them self - verifying or self - identifying; and where a party relies upon such a receipt, in any cause, as evidence of the fact of his entry of the land embraced therein, or as evidence for any purpose, the burden is upon him to show, by- cout$etent proof, that the paper he offers in evidence as being a receiver's receipt was in fact is- sued and signed by the officer purporting to have signed the same. Were the, rule other- wise, a forged receipt' in proper form `might be fraudulently made to answ`er the same purpose as the genuine articre. "'Although such proof of identification and of proper execution was demanded by the defendant n this cause, the receipt here was admitted without it. This was error. the - receipt hould have been excluded from evidence un- i1 the, plaintiff identified it by proper proof hat it was in fact issued and signed by the receiver of the,United ;States land' office: 570 i SOUTHERN REPORTER, Vol. 17. . The overruling of the defendant's motion for a new trial is assigned also as error. The ground of the motion insisted upon is that there was no proper evidence to support the verdict. The only evidence offered by the plaintiff to establish his ownership over or possession of the major part of the land alleged to have been trespassed upon was the receiver's receipt mentioned above; and, as we have seen, that receipt was improper- ly admitted. Without it, there is no proof to sustain khe verdict found. Besides this, ` there is no proof to, show whether the plain- -- / tiff had any interest in or possession of the land trespassed upon, at the time of the tres- pass, or whether he acquired his interest - therein and possession thereof subsequently to the trespass. If he did not acquire any ownership over or possession of the land trespassed upon until after the acts of tres- pass, then, it is well settled, he cannot re- cover in this form of action. Winkler v. Meister, 40 Ill. 349; Society v. Baker, 15 Vt. 119; Railroad Co. v. Loeb, 118 Ili. 203, 8 N. E. 460; McGraw v. Bookman, 3 Hill (S. C.) 265; Wheeler v. Montefiore, 1 Gale & D. 493. It behooved the plaintiff to show that at the time of the alleged trespass be was either the owner of the land trespassed upon, or else in the actual possession thereof. For the errors found, the judgment of the court below is reversed, and a new trial or- dered. (35 Fla. 229) WEINERT v. STATE. (Supreme Court of Florida. March 26, 1895.) INTOXICATING LIQUORS —PROOF OF TIME OF OF- FENSE. In the trial under an information or 'in- dictment charging the illegal sale of intoxicating liquors, while it is not generally necessary to prove the exact date or dates alleged, yet it is nec- essary and material, in all such cases, for the state to prove that the offense charged was com- mitted at some time within the limited statutory period of two years next prior to the finding of the indictment or filing of the information, as the case may be; and, if such proof is not made, a conviction cannot be sustained. (Syllabus by the Court.) Error -to circuit court, Walton county; Wil- liam D. Barnes, Judge. Chgrles Weinert, having been convicted of selling intoxicating liquor unlawfully, brings error. Reversed. J. J. Sullivan, for plaintiff in error. Wil- liam B. Lamar, Atty Gen., for the State. • chapter 4152, Laws, approved June 2, 18939 the burden of proof was upon the defendant in such cases where it was shown that be had taken out a United States revenue li- cense to engage in the business of selling spirituous, vinous, or malt liquors. The stat- ute referred to seems to provide that the holding, owning, or purchase of a United States revenue license( to sell spirituous, vinous, or malt liquors by any one shall be prima facie evidence that such person is en- gaged in such business; and that the produe, tion of such federal license, or an authenti- cated copy thereof, to a grand jury, should authorize them to indict for the conduct of such business in counties where its conduct was prohibited by law; and that proof of the holding, owning, or purchase of Such federal license, by the introduction of the original or a duly- authenticated copy thereof. should be sufficient evidence, without expla- nation, upon which to convict. ' The record shows that at the trial the state's attorney requested an adjournment of the case for one day, to (viable hipp to pro- cure an authenticated copy of a United States revenue license for the sale of malt liquors that had been obtained by the defend- ant, whereupon the defendant admitted that he had such a license, indorsing such admis- sion and his plea of not guilty, together, ou the information filed. Thereupon the state's attorney read the said statute (Laws 1893, c. 4152), and asked a judgment of conviction against the defendant unless he explained or removed the statutory presumption aris- ing from the holding of such federal license. The court thereupon ruled "that the burden of proof be upon the defendant, but that it would, be fair for the state to be required to ,prove, and the state was required to prove, that it was intoxicating liquor that the de- fendant was charged with selling." This rul- ing the defendant excepted to, and assigns as error. After this ruling the state intro- duced various witnesses, who proved not only the intoxicating character of the liquor sold by the defendant, but also his repeated sale of the same in Walton county. Under these circumstances no harm is shown to have resulted to the defendant, even were we able to say that the provisions of said statute, casting the burden of proof upon a defendant who held a federal license, was unconstitutional or void. • Upon the validity of this statute we do not feel called upon now to pass, since its provisions were not enforced or relied upon in the case. At the trial the defendant attempted to prove by one R. O. Allen, who was the editor of a newspaper published in said county, that he had received a communication for publication in his paper relative to the sale by the defendant of the article called "Holy fen Weiss" that it was alleged he had sold in violation of law, counsel for the defend- ant stating at the same time that he expect- ed to show a combination against defendant; TAYLOR, J. The plaintiff in error, upon information filed, was tried and convicted of the misdemeanor of selling intoxicating liquors at the fall term, 1894, of the circuit court of Walton county, and sentenced to pay a fine of $100 and costs, and seeks a re- versal of such judgment by writ of error. The first error assigned is that the court erred in ruling that . under the provisions of 406 Fla. 101 SOUTHERN REPORTER, 2d SERIES OKALOOSA COUNTY GAS DISTRICT and Alexander Potash & Sons, Inc., Appellants, v. Bon B. ENZOR, Appellee. No. A —I I. District Court of Appeal of Florida, First District. Feb. 4, 1958. Action by owner of tract of land with frontage of 350 feet along highway against county gas district and corporation for al- leged trespass to owner's property in dig- ging along highway a trench in which was laid a gas line. The Circuit Court, Oka - loosa County, D. Stuart Gillis, J., entered judgment upon jury's verdict for owner and defendants appealed. The District Court of Appeal, O'Connell, Associate Jus- tice, held that where it appeared that trench was dug 67 feet north from center line of highway towards owner's land, but there was no evidence of width of right of way owned by state in front of property, submission of case to jury to determine whether there was a trespass upon owner's property was improper. Reversed for new trial. I. Trespass X44 In order for party to sue and recover for trespass to his land he must prove that he was the owner or in possession of such land at time of trespass, and to prove that his land has been invaded, he must of ne- cessity prove location of boundary or boundaries of land in relation to location of acts of trespass complained of. 2. Trespass C=44 In action for trespass to owner's land allegedly committed by county and corpo- ration in digging on owner's land a trench in which was laid gas line, owner had bur- den of proving that defendants trespassed upon land owned by or held in his sion. 3. Trespass C=67 In action by owner of tract of with frontage along highway for trespass by county gas district and ration in digging along highway a in which they laid a gas line, whe was shown that trench was dug 67 north from center line of highway to owner's land, but there was no evid width of right of way owned by sta front of property, jury was not to determine from testimony befo whether there had been a trespass owner's property. Yonge, Beggs & Lane, Pensacola,: appellants. Adams &' Wade, Crestview, for op O'CONNELL, STEPHEN C., As Judgo. Bon B. Enzor was plaintiff below in action for trespass to his land. Defen were the Okaloosa County Gas District Alexander Potash & Sons, Inc. Def ants appeal the judgment entered agaug; them consequent upon the jury's verdict' for plaintiff. Plaintiff owned a tract of land frontage of 350 feet along U. S. High 90 in Okaloosa County. There was on property" a large gully between plaintiff's: house and the highway. Plaintiff, years prior to the alleged trespass, improve/' his property by filling in the gully and structing an artificial lake. The lake supplied with water by an artesian and by natural drainage. It was ret.'�.` on its south side, along the highway fr '- age, by a darn consisting simply of a wall or bank, created by the filling in the gully. Plaintiff complains that in 1955 the fendants dug alongside the highway OKALOOSA COUNTY GAS DISTRICT v. ENZOR Fla. 407 Cite as, Fla., 101 So.2d 406 prcperty a trench in which they laid line. Also, he claims that in the tion of said trench the defendants , backed, parked and ran on his heavy machinery and equipment. trespasses, plaintiff argues, caused subsoil of his lake to shift in such a that the lake was virtually drained, his ion being that the jarring by the nery and equipment caused the soil me porous or loose so that the water drained through the sides of lake and through the dam into the and thus away from the lake bed. the trial it was shown that the trench dug 67 feet north from the center line the highway, towards plaintiff's land. 'ff's deed to his land described his rn boundary as being "along North said highway 350 feet ". endants' answer denied entering upon iff's land, digging a trench thereon or g or parking machinery thereon. intiff attempted to testify as to the of the right -of -way owned by the in front of his property. He was about markers which indicated the .,right -of -way was 200'. By his tes- y he attempted to assert it was only The court, however, ruled that the ff was incompetent to testify as to location of the boundary of his prop - No evidence was produced from the jury could ascertain the bound- the jury retired from the court - at the conclusion of the plaintiff's the defendants moved the court to in- a verdict for the defendants. Argu- was had on the motion whereupon the announced: • * * I think the pivotal ques- involved here, the one that causes Court some concern, is the question the boundaries of the property. testimony, while not overwhelm - strongly tends to prove that the plaintiff's property. There is no evi- dence to the contrary, so far as the Court recollects. There is no evi- dence as to the actual amount of the right -of -way, whether vested in the State Road Department for a highway or highway purposes in fee simple or as an easement. In the absence bf any evidence of the width of the right - of -way, I think the jury would be en- titled under the testimony here to de- termine that the gas line was laid and the ditch dug on the property of the plaintiff * * *." Defendant's motion for instructed ver- dict was denied. Whereupon they elected to not offer any evidence and the case was submitted to the jury on plaintiff's proof alone. The jury returned a verdict for the plaintiff and the defendants then moved for judgment notwithstanding the verdict, or in the alternative for new trial. In this motion it was alleged the right -of -way was 200', and an affidavit to that effect by the District Engineer of the State Road De- partment was attached. This motion al- so was denied. On their appeal defendants argue that in an action for trespass an essential element of plaintiff's case is proof that his boundary was violated. Their position is that there was not adequate evidence before the jury upon which it could have decided there was a trespass. [1] It is fundamental that in order for a party to sue and recover for trespass to his land he must prove that he was the own- er or in possession of such land at the time of the trespass. Knight v. Empire Land Co., 1908, 55 Fla. 301, 45 So. 1025; Vincent v. Hines, 1920, 79 Fla. 564, 84 So. 614. To prove that his land has been invaded, he must of necessity prove the location of the boundary or boundaries of the land in re- lation to the location of the acts of tres- pass complained of. Plaintiff failed to do this. [2, 3] We cannot agree with the trial 408 Fla. 101 SOUTHERN REPORTER, 2d SERIES evidence of the width of the right -of -way the jury would be entitled from the testi- mony before it to determine that there was a trespass upon plaintiff's property, for plaintiff had the burden of proving that the defendants trespassed upon land owned by or held in his possession and he failed to do so. Accordingly the judgment of the lower court is reversed for a new trial. STURGIS, C. J., and WIGGINTON, J., concur. Hazel Lee BOUCHER, a widow, Petitioner, v. The PURE OIL COMPANY, etc., et al., Respondents. No. A -154. District Court of Appeal of Florida. First District. Dec. 31, 1957. Rehearing Denied Jan. 20, 1958. Action for damages resulting from a fire allegedly caused through the negli- gence of the defendant. From an inter- locutory order of the Circuit Court for the Volusia County, Robert H. Wingfield, J., the plaintiff's petition for certiorari. The District Court of Appeal, Wigginton, J., held that the order was reviewable on cer- tiorari and that defendant was not entitled on discovery to inquire whether plaintiff or her attorney knew of any statute ordinance or regulation controlling the installation from gasoline storage tanks or the delivery of petroleum products thereto. Writ granted and order quashed and held for naught. 1.. Certiorari C=317 Review by certiorari of an interl tory order in action at law requiring p tiff to answer defendant's interrogato was authorized where if plaintiff w wrongfully required to answer she was yond relief. 30 F.S.A. Rules of Civil P cedure, rules 1.21(b), 1.27. 2. Certiorari C■5(I), 16 The Supreme Court will review an terlocutory order in law on certiorari o under exceptional circumstances, such where it clearly appears there is no adequate and complete remedy by op after final judgment available to the tioner, and the court will consider grant' the writ where the lower court acts in cess of its jurisdiction, or the order d not conform to essential requirements law and may cause material inj throughout subsequent proceedings f which the remedy by appeal will be in quote. 3. Discovery C=42 Under rule limiting the scope of pre • trial examination to "any matter not pri leged which is relevant to the subject mat ter involving in the pending action ", term "matter" does not contemplate warranted inquiries into the mental prof esses of counsel regarding his opinion ac conclusions as to the law and theory plicable to his case. 30 F.S.A. Rules Civil Procedure, rules 1.21(b), 1.27. See publication Words and Phrases, for other judicial constructions and defi- nitions of "Matter ". 4. Discovery C==39 The rule permitting discovery of identity and location of persons haw knowledge of the relevant facts manif an intent to permit discovery only of fa as opposed to law or opinion. 30 F.S Rules of Civil Procedure, rule 1.21(b). 5. Discovery 5=42 The discovery rules were not inten as a means by which one party could m 1 brier Cik Z- 9,P 0 (iooQo& ogoEk (In OV CIA M A Q- 'A,u t, 0 q 6v) ; itrtv.atuk, 66 po - ■ ai './.:-..s32-211-2--- p. -a.. ,t eaoaaa0000 poO..Op oecao0•G'0.:- a90ous4ar O1p.I*p.De Ellee, s11 b:,' tiieal psen*nte that re ter A4OferSon .rd Louisanna :lthilerson, his w►IVO . 1 ?s of that certain subrtivtnion in who• c4Sty of Gkeech0000, rlori a, known as virst i4dttMOS tO /both .ateecnoboo, sacordinv to plat•t2..ereof recorded in Pant book 1,, page 17, wl411`•f (Moses obee a:o;r , rlo•q'a, ,said a ak,3lvtaion lfin4 in and uprising a part of the t ea $ quarter (N) of the t4orthusa• a,anrter (tt:..,) of :Action Iw my -eight (28) township rtp rwn'(7) south of ;tame r!iirtyrire (.".'',) :;ant, •hich fhoy *cave caused to oe heretorar• rrs4y auhtdtvirtsd en'. platted, -to ::er•+by d elicute the e ; nsotn, alloys And parka, whieh ps s:- only, es the **me ere shown on raid plat abo•fo vient1 ;nod, to the prepetua1 tta!s Ott #eN us1 Of, ties public, reaerri-g ho.aov ^r, urto t n: ^eo1»s, their heirs, end I; ensiin's"thO reversion or revsrsiof of same is erla:vione1.b; the punlie or dieentinued. SN 11i'1' 88 1H A:. :0? the said. owners slave here*rnto Set their hands snd seals !hi for er J A. D. 1Q`rb. PO dLu►ttub: 'Personally ap ;,oar ',d bnr!tra are, .,r: ofrlaer doll/ wathortzei to a4tdnaite, !litho 'sod t11sR- tekriow'l.Clcri,.n"nta unit,, the laws of t "e hate of r10 ^1.1e, rotor R4ul +rrson andLoeIt$almns t.*/MOO, to tel knc;•+n end known to me to 0. the indt .t'lt.ua to ctesertbed in *n4 tho . . eZeeuted the fCr.ea;oin • !cali^ntion, Tar: ; r, "nay a :icro >r1H.f I 'sass rreel.y a•ld' yr >1lmta;'11y for Y'.,^ ,v1#.11 nr, t r.rrjr rri t5 oorore ma that they exeduted the Zeeuted the to" r,toin;• !sit .can, an't' t ;eiy a (7-111 •vt onrrhra me t,,,,p. they exocutod the w rreely and voluntar117 for t1,1 uwes ant r;:rpo.soe thor •i' expressed. &I) ,I Mt:t !". , ti c r : :c I 'hat tau, su t 1 Lout Canna Kaulorson known .t0 me to be tbis tt at the mid rotor fl 1i tch, .Tn a sepir.,te ant private examination taken and aide by separately an i spirt from ? • r said husbani it ac noNladge that ohs made hereof' a to said •dedl,adtion rm.. the turrnse ar renr:.rncie;•, relinquishing and eonteyina all right, titis and interest, in so far as is necessary for the uses and parposes set' arth in said dedication, whether of tower, homestead or of separate property, statutory or aitabl•, in'snn to.ths lands described therein atd`tht t she executed the said ,dsdioation freely and voluntarily and without any compulaions, constraint, apprehension fear of br frogs L,,r skid d bent, il2fhp.S3 say hand d official son1 at v'r.) ,chobee, county traceeahobee and State or nerirda, this 14 day of Jetne A. D. 1926. lotary Sea l j 1e4 for **cord June 14 A. 1 . ;1926: w! 'Defy Mocordsd. . oury at large. _1y commission etcpir Sept 9 1929. • • • • • • 0 • r • • r e r • o • 0 0 0 a o 0 0 0 o e o • • • ♦ •• • • • "• • • • • • ii M ., r a. f .o ar r _ .— ow — s Am goo. am .o my — Am g — — .. .. — .. w + r .. A - Memo .. r r. 4111110, pt ion • •i rs 1/4/4•,),,. aarie t {he %r$' ?. ,tn7 rr rc ;.. ,,. 10"t;, oy rranlf tr. Collins and Matti' 111ns, his .Ito or Vile Leung .,f vice.cr.onae .+tote of riori)a hereinafter called tba► •, to John *t.',,Gadter of tte sett ref rank t 3 r. )tx�b �' 3tlin,ie herArierses M1XM1,' and toe". lTri,;u :,r'rs� a 'hat r.Lo set-1 ,,o± glyr•sinnr,ft tic,n of a0nAOollars and paittable considerations, the revel; t i'.f is >_ +,,;•ns+r►ledgerl, do ,rive, ,gent, ea»se, ilien� revise,. rn1',i ' , e►w! r of ", +y nr, t r*1' tr•i an- t'n the said �ss'tee.•and bis !l asst ro •in re' etdple,, tiro lnr'' Oblate in Venom: :,oe Lo2ntyv $Cate of rlciridss sapped; •s rollows s Lots on (10), zie wen Ill ) an ; twelve (1: ) of :s1o' One eu dre4 bwintp five 1120 to tree £o •n nC eccnr•1Y-. :r to the plat made Of snid town seat plat rt•or• of reenriod 17 ti,e ofrte.n of the •;lerk of the utreiit court In sni for et. Loofa our,t; , rloMi +n. aavi:i -, e• <.^.ept ►.n` m r "':aqrv.1;'.' unto ft., near^ of a'hteation ot•th• State of flc "lain Awl Cr.' is soul ^et).? re :rn ate: 1 ,n'ivtsed' '. xree fourths, interest in and title in en•h t• nn nn ti•vi iel tree rc+,)rths interest in all t2ie phosphate cstn••rels ata t at ere or •- ray oe in on or undsr the said arW've lefter:r+ „t 1,x9 w'.t- . ,, n t, tr t -e snr1 develop § 768.28 Note 71 This section relating to state paying judg- ment rendered against state employee for acts performed in course of employee's duties did not preclude state officer, em- ployee, or agent from being made a party defendant in an action. District School Board of Lake County v. Talmadge, 381 So.2d 698 (1980) on remand 406 So.2d 1127. For actions falling within purview of this section relating to waiver of state immuni- ty, plaintiff can sue state and its employee jointly, with state obligated to pay any judgment to extent of monetary limitations set forth in statute and employee remaining personally liable for excess, or state may be sued alone with liability limited to amount in statute, or employee may be sued alone using traditional legal principles regarding tort actions against public employees. Id. This section pertaining to officer, employ- ee or state agent's personal liability for any injuries or damage suffered as result of any act, event or omission in scope of his em- ployment or function, acts only to indemni- fy employee who has monetary judgment entered against him as result of negligent acts occurring within scope of his employ- ment and does not bar suit against employ- ee as party defendant for such injuries. Paul v. Heritage Ins. Co. of America, App., 363 So.2d 563 (1978). This section acted solely to indemnify em- ployee of state for monetary judgment en- tered against him as result of negligent acts occurring within scope of his employ- ment, but did not operate as bar against suing such employee as party defendant. Talmadge v. District School Bd. of Lake County, App., 355 So.2d 502 (1978) affirmed 381 So.2d 698, on remand 406 So.2d 1127. While school teacher would be entitled to indemnity for any monetary judgment en- tered against him for negligent acts occur- ring within scope of his employment, he could be sued for such negligence as party defendant. Id. 72. Notice of claim —In general Since there was no indication either in card injured bus passenger filled out right after collision of county -owned bus and automobile or in interview she had with insurance adjuster that she was making a demand on county for something due her from county for any injury she might have incurred in collision but, to the contrary, both card and interview indicated to county that passenger felt that driver of other ve- hicle was responsible for collision and there- TORTS Title 45 fore would be answerable to any demand for compensation of any injury to her, pas- senger's responses did not constitute a claim against the county for purposes of this section governing notice to state and its subdivisions of tort claims. Mrowczynski v. Vizenthal, App. 4 Dist., 445 So.2d 1099 (1984). To maintain tort action against state or one of its subdivisions, other than a munici- pality, notice requirements of this section must be complied with regardless of Wheth- er subdivision has procured liability insur- ance in compliance with statute. Mrow- czynski v. Vizenthal, App. 4 Dist., 445 So.2d 1099 (1984). This section requiring presentation of claim in writing to "appropriate agency" was not applicable to medical negligence action which did not involve claim against state or one of its agencies or subdivisions. Stillwell v. Thigpen, App., 426 So.2d 1267 (1983). Failure of person allegedly assaulted on school premises to serve notice of claim upon department of insurance should not preclude maintenance of action against school board and others to recover damages for injuries sustained where such party served timely notice upon school board and county, the real parties in interest. Levine v. Dade County School Bd., App., 419 So.2d 808 (1982) approved 442 So.2d 210. Although respondent could not proceed in one action against county on two improper- ly joined claims, county would not be enti- tled to new written notice of claim prior to institution of suit on the second claim. Sar- asota County v. Wall, App., 403 So.2d 500 (1981). Compliance with notice requirement as condition precedent to suit against city, was matter for determination by trial court, and, therefore, refusal to dismiss complaint on that basis, was not grounds for writ of prohibition. City of Jacksonville Beach v. Duncan, App., 392 So.2d 25 (1980) review denied 399 So.2d 1141. Condition precedent of prisoner's com- plaint seeking monetary damages from Sec- retary of Department of Corrections for negligent and malicious injury to prisoner through program of deliberate abuse was to present claim in writing to the Department of Insurance and appropriate agency. West v. Wainwright, App., 380 So.2d 1338 (1980). Fact that persons who brought wrongful death action against county officials filed their claims with county officials had no 434 NEGLIGENCE Ch. 768 effect on their right to argue that this sec- tion providing for notice of claim to be given to the county was not applicable. Hambrick v. Beard, App., 366 So.2d 58 (1978) remanded 396 So.2d 708. 73. - Ordinances, notice of claim County ordinance's requirement that claim against county be filed within 60 days after injury or damage had been sustained was invalid, in that it conflicted with three - year notice period provided by this section. Dukanauskas v. Metropolitan Dade County, App., 378 So.2d 74 (1979); Cooper v. Dade County, App., 384 So.2d 221 (1980); Scavel- la v. Fernandez, App., 371 So.2d 535 (1979). Based upon conflict between this section providing three -year notice period for insti- tuting claim against state or one of its agencies or subdivisions and county code provision requiring 60 days' notice to main- tain suit against county for damages to persons arising out of any tort, county code provision was invalid; thus, plaintiffs were not required to comply with notice require- ments of county code provision in order to maintain suit for injuries sustained when plaintiff wife stepped on concrete water me- ter cover which allegedly gave way. Perez v. Miami Dade Water & Sewer Authority, App., 372 So.2d 185 (1979). Where action against town was based on claim that town raised level of street and failed to provide for drainage thereby caus- ing waters to be impounded on plaintiffs' property, suit against town was not com- pletely barred by plaintiffs' failure to give notice to the town required by the town charter within 60 days, after the first dam- age to their property. Town of Miami Springs v. Lawrence, 102 So.2d 143 (1958). 74. - Written notice of claim A plaintiff may not maintain an action to recover damages from a state agency or subdivision, pursuant to waiver of sover- dgn immunity under this section for the state, its agencies, and its subdivisions, if he notified appropriate agency but failed to present a written notice of claim to the Department of Insurance, notwithstanding that the department has no interest or role in the proceedings other than to report claims to the legislature, and no prejudice resulted. Levine v. Dade County School Bd., 442 So.2d 210 (1983). Any manner of submitting a written no- tice of the claim to the agency that suffi- ciently describes or identifies the occur- rence so that the agency may investigate it, § 768.28 Note 78 satisfies notice requirement of this section. Whitney v. Marion County Hosp. Dist., App., 416 So.2d 500 (1982). As regards medical malpractice claim against public hospital, notice requirement of waiver of this section was satisfied by written denial of claim in medical mediation panel proceeding and record reflected that department of insurance was notified and disclaimed any interest. Id. 75. - Time for denial following notice of claim Where notice of claim was filed with county and Department of Insurance on April 6 and November 17, 1981, respective- ly, within three -year statute period, condi- tions precedent to filing of suit were met when an additional six months had passed; plaintiff could thereafter file suit, even though the notices had been given after an initial suit had been filed against the coun- ty. Askew v. Volusia County, App. 5 Dist., 450 So.2d 233 (1984). 76. - Institution of action prior to notice of claim Where notice of medical malpractice claim was in fact given to hospital taxing district, a state agency, within requisite three -year statutory period under section 768.28(6), though not prior to actual institu- tion of the suit but shortly thereafter, dis- missal with prejudice of amended complaint, which first alleged, after limitations had run, that notice requirement had been met, was error. Lee v. South Broward Hosp. Dist., App. 4 Dist., 473 So.2d 1322 (1985). Fact that notice of claim was given to county after original complaint was filed did not make it forever ineffective with respect to subsequent complaint; receding from Saleh v. Watkins, 415 So.2d 858. As- kew v. Volusia County, App. 5 Dist., 450 So.2d 233 (1984). 77. - Institution of action prior to de- nial of claim, notice of claim Claim against clerk of circuit court for negligence in failing to record mortgage should have been dismissed with leave to amend where it was commenced prior to any denial of written claim by the clerk. Thigpin v. Sun Bank of Ocala, App. 5 Dist., 458 So.2d 315 (1984). 78. - Failure of timely notice of claim Party wishing to institute suit against county has three years from time of the § 768.28 Note 78 incident giving rise to the suit to file the notice with the appropriate agency; if time for notice has passed, trial court has no alternative but to dismiss complaint with prejudice. Askew v. Volusia County, App. 5 Dist., 450 So.2d 233 (1984). Failure to notify department of insurance of negligence claim against county within three years of date of accident precluded suit, despite argument that county had waived its sovereign immunity by securing liability insurance. Burkett v. Calhoun County, App. 1 Dist., 441 So.2d 1108 (1983). Police officers, who were sued individual- ly for false imprisonment and malicious prosecution, were not entitled to dismissal of the complaint because of plaintiff's fail- ure to comply with provision of this section requiring written notice of a claim to be given to a municipality. Hucker v. City of Oakland Park, App., 427 So.2d 244 (1983). In action brought by motorist against county for injuries sustained upon colliding with another vehicle because of alleged im- proper maintenance of embankment and shoulder adjacent to roadway, motorist, who conceded that, prior to filing of amend- ed complaint, no attempt was made to com- ply with written notice provisions of this section, requested that if District Court of Appeal affirmed adverse summary judg- ment appealed from, it do so with instruc- tions that cause stand abated so that writ- ten notice may properly be given to county and cause of action revived, but, since time for performance of mandatory conditions precedent had elapsed, such court was with- out authority to so order. Dukanauskas v. Metropolitan Dade County, App., 378 So.2d 74 (1979). 79. — Waiver, notice of claim Under certain conditions, state or its agencies might be deemed to have waived the claim notice requirements of statute giving courts subject matter jurisdiction of tort suits against the state and its agencies. Hutchins v. Mills, App., 363 So.2d 818 (1978). 80. Exhaustion of administrative reme- dies Plaintiff could not recover on her state tort law claims against Highway Patrol and highway patrol officer arising out of her arrest for driving while intoxicated, in view of plaintiff's failure to exhaust her state administrative remedies as required by this section. Meeker v. Addison, D.C., 586 F.Supp. 216 (1983). TORTS Title 45 Pendent state tort claims could not be asserted against Florida officials where plaintiff failed to establish procedures for bringing claims of tortious conduct against state officials before state agencies for ad- ministrative consideration as a prerequisite to state's consent to be sued. Shinholster v. Graham, D.C., 527 F.Supp. 1318 (1981). Neither the Florida Administrative Proce- dure Act (§ 120.57) nor § 394.459 and this section establishing prerequisites for bring- ing damage suits against the state or its agencies provided adequate' administrative schemes so as to invoke the requirement that plaintiff exhaust administrative reme- dies before bringing civil rights suit in fed- eral court. Shinholster v. Graham, D.C., 527 F.Supp. 1318 (1981). 81. Joinder of actions Under this section if a tortious act is committed by public employee acting within scope of employment or function, joint suit may be brought against both governmental authority and public employee as tort - feasor with state obligated to pay the judgment to extent of monetary limits under this section with public employee remaining personally liable for amount exceeding government's monetary limits. Travelers Indem. Co. v. Jacobs, App., 402 So.2d 1261 (1981) review denied 412 So.2d 471. This section providing that no govern- mental employee shall be named as party defendant in any action unless employee has acted in wanton or willful manner or with malicious purpose or in had faith, had practical effect of permitting suit only against governmental entity based on ordi- nary negligence of its agents or against only employee who had acted wantonly, and thus affected issue of joinder during pend- ency of preexisting prosecution of action against school board and its agents for neg- ligence and against agents individually for simple negligence; legislature had there- fore intruded into matter of practice and procedure reserved exclusively to judiciary and severance would not be directed. Bryant v. School Bd. of Duval County, Fla., App., 399 So.2d 417 (1981) affirmed in part, reversed in part 417 So.2d 658. 82. Contribution among tortfeasors Actions for contribution or indemnity grounded on tortious conduct of state or its agencies and subdivisions are no less tort claims for purposes of sovereign immunity statute than are direct actions. Commercial Carrier Corp. v. Indian River County, 371 436 TELEPHONE (813) 467 -0297 BRYANT & COOK ATTORNEYS AT LAW 202 N.W. 5TH AVENUE OKEECHOBEE, FLORIDA 33472 February 24, 1989 r City of Okeechobee 55 S. E. Third Avenue Okeechobee, FL 34974 -2932 L FOR PROFESSIONAL SERVICES Re: Porter vs. City 2.8 hours at $60.00 $ 168.00 February 24, 1989 Mr. John Drago 55 S. E. Third Avenue Okeechobee, FL 34974-2932 Re: Porter vs. City Dear Mr. Drago: As I mentioned at the last meeting, the status of this case at present is that we are having a motion to dismiss hearing on March 1. Attorney sullivan has appeared for Butler, and also has a pending motion to dismiss. The only relevant count is one for declaratory judgment, wherein Porter seeks a judicial interpretation of the legal status of the aliey. No damages are involved. The counts I will get dismissed, I believe, allege the City is liable in damages for encouraging Jack to trespass on Porter's alley. I know of no such cause of action. In any event, I've enclosed my billing to date, and will do so each month to keep current. Kindest regards, JOHN R. COOK JRC:cb Enclosure iaty-Attl Cri 3 .(1,94,±korY b1 II\ id) Tri .41•2. e („0. ot t ,/tzqz-r ., -1-1..;3 .4/..iik loi- fot--- LD k ..... — i- krAA c vn a-.A Grn ,./k t/Y-t/Y1 LC- . ,, i_ r■ , (J1) al OtAc)A 1 . a) :It j-ti-Uft ko-tN i es< L p, -;,_ 0. c- --i--/\Q ,,,,,,ta ,,,,,,,),,,± ce„,..,At ,::„.... ,If\-Q. fr. ‘16-4"teLle" rtA vv.\ cLk 1 u3k.Q.zulA:44 P 0-tit-Li; flatto.: 0, i., ,, (AI c---( otz/kty* b ' ! L6 4 ot . PO &L-1,y) 0-9.44.. 17/q 66-t2 ) ,w'til 0(i:b.+) -A.:04-tdd j et Ckti L /1,t' ;016,w,Anc,,r, a )a-J2.. t caof a41 cry) Pc91J1,J ditti 21/t-&-w tko Du-(,J\ ccuu-A 4.)Yi a) 4.0 )LLA-Lt '1/4v-A 6.4-043A. February 8, 1989 Lester W. Jennings, Esquire P. 0. Box 237 Okeechobee, FL 34973 Re: Oet/er vs. City of Okeechobee Dear Lester: Enclosed please find a copy of a motion to dismiss and a notice of hearing in the referenced action. Kindest regards, JOHN R. COOK JRC:cb Enclosure IN THE CIRCUIT COURT OF THE NINETEENTH JUDICIAL CIRCUIT IN AND FOR OKEECHOBEE COUNTY, FLORIDA. CASE NO. 89 -66 -CA STEPHEN G. PORTER and MARY A. PORTER, his wife, Plaintiffs, -vs- CITY OF OKEECHOBEE and JACK BUTLER and ANNA M. BUTLER, his wife, Defendants. MOTION TO DISMISS COMES NOW the Defendant, CITY OF OKEECHOBEE, by and through undersigned counsel, and moves this court for the entry of an order dismissing the complaint filed herein by the plaintiff, upon the following: 1. That the complaint fails to state a cause of action in law or equity. 2. That the complaint, in Count II, seeks an injunction, both temporary and permanent. The count fails to allege irrepar- able harm or an inadequate remedy at law, requiring its dismissal. 3. That the complaint, in Count III, states as a cause of action for damages against the City that the City has aided, abetted or encouraged a tresspass by a third party. There is no such cause of action, and should be dismissed. 4. That the requests in Count III of the complaint for punitive damages and attorney's fees are not supported in law by statute, by contract, or allege a malicious motive, and according- ly should be dismissed. SUBMITTED this 8th day of February, 1989. BY: BRYANT And COOK Attorneys at Law JOHN R. COOK Attorney for Defendant City of Okeechobee 202 N. W. 5th Avenue Okeechobee, FL 34972 (813) 467 -0297 I HEREBY CERTIFY That a true copy of the foregoing has been furnished by U. S. Mail to Lester W. Jennings, P. 0. Box 237, Okee- chobee, FL 34973 this 8th day of February, 1989. JOHN R. COOK IN THE CIRCUIT COURT OF THE NINETEENTH JUDICIAL CIRCUIT IN AND FOR OKEECHOBEE COUNTY, FLORIDA. CASE NO. 89 -66 -CA STEPHEN G. PORTER and MARY A. PORTER, his wife, Plaintiffs, CITY OF OKEECHOBEE and JACK BUTLER And ANNA M. BUTLER, his wife, Defendants. / NOTICE OF HEARING TO: LESTER W. JENNINGS, ESQUIRE P. 0. Box 237 Okeechobee, FL 34973 PLEASE TAKE NOTICE that on the 28th day of February, 1989, at 2:30 P. M., or as soon thereafter as counsel can be heard, the undersigned will bring on to be heard the Defendant City of Okeechobee's Motion to Dismiss, before the Honorable William L. Hendry one of the judges of the above court, at his chambers in the courthouse in Okeechobee, Okeechobee County, Florida. Please govern yourself accordingly. DATED this 8th day of February, 1989. BRYANT and COOK Attorneys at Law By: JOHN R. COOK Attorney for City of Okeechobee 202 N. W. 5th Avenue Okeechobee, FL 34972 (813) 467 -0297 I HEREBY CERTIFY that a copy of the foregoing Notice of Hearing was mailed to the above -named addressee on the afore- mentioned date. JOHN R. COOK Tr"-IF,T1, "I1T1P fr■■••AW'N,IPTW ,^7r7r7-. w WI. n nrr.. -11,11TVIFIFIR,V-1/-4,11".11r1VM.11,,. to TO O 1J*1 I S C oNA€ 3 iLi ;,&3 iti- 1);,-,,,,e,s7v.-- (L ciF-- 1/vAcr'-^c/ IA • \i-AA: 'Rc ,,-.,-7-tai ri 6-0 ul cA.-kit cq-,•2 r)--i-i.0-i 0 ci 1 70--k' ' 1 ' 1 / - , 4 C. ..,k,*' if. (0----. -h 2'. / VAA Le. '' /Ito' 1, 11 \ f.,--'t— -,-t)--ic' t — i ,t / I . t s 1' 4, ) H L ,,Z. 1 1 1/..C.:.& A_,) ..'. 'Cr„,t! , y) f/tr-A• V - &`If : 6--!'(''''s " ' 4 ) ! C.9 -0 4,/ v.` ),X- - ■'' \ ( A'''''' C:( \ .,-,•.,,- :', -1)' \ , 1' -- (V f:A. • ''■ t,' -"r, /it • - 1 /El; CC( C/N / , ! , ( ;_,.:,• • .....:,- 4, \ - ,,-.61 .e k..,--v- 1 ,e ct.- -Ir-L,..{,k a,-,.,-,r, Lt,---.1 ;,- A. (7-..4._ V(\ (.. tytk c(t c--'.‘z' ./-Q,.., o . 1 e ,:.- •,--- / - - xti,- i i.-L4'--- /1-.)--1-(1 't-----' .) - n . - - i `'14 ' '-• e_,',,e;-pli.',„ , 6 /3- os, (' 0,,k,-/.1-k.. ,,•: : 6,--is.,--A. ,...niN f-if 4-31,-(1 ----,0 (.,-,,,,-..(% it _, T 1L I 1.1 (:- .Y CAT -I c,;( \\ ,S1----,/, CA:,,,}-A,..til 9-0)?, cr.,\, -t ii244/-)CA-4/7 (..--,.... 1- ..-- , f _.),„ , // ,,,_ il..4,J /),c),,, , I ,..1<fr • 41 4. L,Iti1l-f/(A2-^ i 1- .), lk TriC.i."),,---k T,A. A _i_ [l/4- V nA--7‘1, (it JiC.;•‘-‘, luist-c_c t • IN THE CIRCUIT COURT OF TIIE NINETEENTH JUDICIAL CIRCUIT OF FLORIDA, IN AND FOR OKEECHOBEE COUNTY. FLORIDA CIVIL ACTION STEPHEN s' , O 2F and MARY A. PORTER . his wife Plaintiff s —vs— CITY OF 1)K }..Ci10BEE at d .JACK )'I'LEF; d &id ANNA n. BUT ER , iv . f e Defendant SUMMONS THE STATE OF FLORIDA: TO ALL AND SINGULAR THE SHERIFFS OF SAID STATE: GREETINGS: CASE No YOU ARE HEREBY COMMANDED to serve this summons and a copy of the complaint or petition in the above styled cause upon the defendant(s) C '1'Y i1F OKEECHOBEE City flail 55 S.E. 3rd Avenue Okee l obee, Florida 34972 Each defendant is hereby required to se rve written defenses to said complaint or petition on plaintiff's attorney, whose name and addres s is Les or . 0e ninas 110 0 N . E . 3rd Avenue Post Office Box 237 _; -ee `lobe * , 1 i or 34 i 7 813;,.{,_ 257r .1' `1_ within 20 days after service of this summons upon that defendant, exclusive of the day of ser- vice, and to file the original of said written defenses with the clerk of said court either before service on plaintiff's attorney or immediately th ereafter. If a defendant fails to do so, a default will be entered against that defendant for the relief demanded in the complaint or petition. WITNESS my hand and the seal of said Court on a 'Jar/ Z fi , 19 (Court Seal) GLORIA J. FORD Clerk Circuit Court By • As Deputy Clerk (See Attached or Use Reverse Side For Return Information) IN THE CIRCUIT COURT OF THE NINETEENTH JUDCIAL CIRCUIT IN AND FOR OKEECHOBEE COUNTY, FLORIDA. CASE NO: 89- Z.6 -CA STEPHEN G. PORTER and MARY A. PORTER, his wife, Plaintiffs, vs. CITY OF OKEECHOBEE and JACK BUTLER and ANNA M. BUTLER, his wife, Defendants. COMPLAINT COUNT I COMES NOW the Plaintiffs and sue the Defendants and allege: 1. That Plaintiff's, STEPHEN G. PORTER and MARY A. PORTER, husband and wife, are residents of Okeechobee County, Florida. That the Defendant, The CITY OF OKEECHOBEE, hereinafter referred to as CITY, is a municipality of the State of Florida located in Okeechobee County, Florida. That the Defendants, JACK BUTLER and ANNA M. BUTLER are husband and wife and are residents of the City of Okeechobee, County of Okeechobee, Florida, and are hereinafter referred to as BUTLERS. 2. That this is an action pursuant to Section 86.011 et seq. Florida Statutes 1987 for a declaratory judgment as to the ownership of a narrow strip of real property located in the City of Okeechobee and rights of the parties to this suit to the use and control of said narrow strip of real property. 3. The Plaintiffs are entitled to relief against the Defendants the CITY and BUTLERS upon the following facts: A. First Addition to South Okeechobee according to Plat Book 1, page 17, Okeechobee County Public Records was platted as a subdivision of the City of Okeechobee in October, 1924, by the owners of said real property, PETE and LOUISIANA RAULERSON. That said subdivision contains Block 26 through 46 which each Block being divided into lots. B. That most of the Blocks of said subdivision contain 15 foot wide strips of land going South to North separating a row of lots on the East from those on the West. That 15 foot strips are not designated on the plat of the subdivision for any purpose. That Block 34 of said subdivision contains one of such 15 foot undesignated strips. C. That the plat of First Addition of South Okeechobee contains no dedication of streets or alleys. That several years after the plat of said subdivision was recorded the developers filed an instrument apparently attempting to dedicate the streets and alleys to the perpetual use of the public reserving to themselves, their heirs and assigns the reversion of the same if abandoned or discontinued by law. That said instrument was recorded in Deed Book 17, pages 383 and 384, Okeechobee County, Florida. Like the plat the instrument did not designate the 15 foot strips for any purpose. D. That there was no acceptance of the dedication of the 15 foot strips as mentioned above by the CITY and the 15 foot strips have not been used by the public as an alleyway and have not been constructed or improved as an alleyway. E. That the Plaintiffs since 1982 have owned Lots 1 and 2 and 7, 8, 9 and 10, Block 34 of said subdivision. That the Defendants BUTLERS own Lots 3 and 4 of said Block 34. That the 15 foot strip mentioned above separates Lots 1, 2, 3 and 4 on the East from Lots 7, 8, 9 and 10 on the West. F. That the Defendants the CITY and BUTLERS claim that the 15 foot strip running between Lots 1 through 4 on the East and lots 7 through 10 on the West is a public alleyway while Plaintiffs hold that said 15 foot strip between said lots is not an alleyway but that Plaintiffs own all of said strip between lots 1 and 2 on the East and 7 and 8 on the West and the West of said strip between lots 9 and 10 on the West and lots 3 and 4 on the East. G. That the CITY has directed from time to time in the past several years that the Plaintiffs can not impede the use of the 15 foot strip as an alley for egress and ingress of the Defendant BUTLERS to their property being lots 3 and 4. H. That the Defendants BUTLERS for the past seceral years have used said 15 foot strip running through Plaintiffs lots 1 and 2, and 7 and 8 as an alley. I. That the action of the CITY and BUTLERS have and are impeding the use of Plaintiffs property. J. That the rights of the Plaintiffs with the use of their lots and the 15 foot strip are dependent upon a judicial determination as to who owns the 15 foot strip and whether it is an alley and whether the CITY has a right to regulate it as an alley and if the BUTLERS have a right to use said strip. K. Plaintiffs allege that the 15 foot strip running through lots 1 and 2 and 7 and 8 belong to them and that the West � of said alley adjoining lots 9 and 10 belong to them and is not an alley and that the CITY does not have a right to regulate it as such and that the BUTLERS have no right to use it as ingress and egress to their property or for any other reason. WHEREFORE the Plaintiff's pray this Honorable Court for a declaratory judgment adjudging that the 15 foot strip between lots 1 and 2 and 7 and 8 and the West of said strip adjoining lots 9 and 10, Block 34 belong to the Plaintiffs and is not an alley and can not be regulated by the CITY as an alley and that Defendants BUTLERS have no right to use said property for ingress and egress to their property and for costs. COUNT II COMES NOW the Plaintiffs and sue the Defendants and allege: 4. That Plaintiffs incorporate by reference paragraphs 1 through 3 of Count I in this Count II. 5. That this is an aciaop for an injunction. 6. That the 15 foot strip of land between lots 1, 2, and 7, 8 and the West of said strip adjoining lots 9 and 10 all of Block 34 belongs to Plaintiffs in fee simple and the Defendants have no right to trespass on or to use this part of said 15 foot strip for egress and ingress. 7. That the Defendant BUTLERS have been warned by Plaintiffs not to trespass on or to use said part of said strip belonging to Plaintiffs. 8. That in violation of Plaintiffs rights and the warning given the Defendant BUTLERS have continued to trespass on the portion of the 15 foot strip belonging to Plaintiffs and to use it for ingress and egress. 9. That the CITY through its officials, employees and City Council has, encouraged, aided and abetted the Defendant BUTLERS in their illegal trespasses by its actions. 10. That the Defendants, BUTLERS, continued trespass upon the property of Plaintiffs is creating a cloud upon Plaintiffs title to said property, impairing the marketability thereof, and irreparably damaging the property rights of the Plaintiffs. WHEREFORE the Plaintiffs pray this Honorable Court for a temporary and permanent injunction prohibiting and enjoining the Defendants, BUTLERS, from trespassing upon the property of the Plaintiffs and enjoining the Defendant CITY from action aiding and abetting and encouraging the Defendants, BUTLERS, in such trespassing and such other relief as may appear proper and costs. COUNT III COMES NOW the Plaintiffs and sue the Defendants and allege: 11. That Plaintiffs incorporate by reference paragraphs 1 thorugh 10. of Counts I and II in this Count III. 12. That this is an action for damages that exceeds $5,000.00 exclusive of costs and attorneys' fees. 13. That =Defendants trespasses upon Plaintiffs property have been willful and intentional and have been done by Defendants BUTLER in a willful disregard of Plaintiffs' rights. 14. That the Defendant, CITY'S action in encouraging, aiding and abetting the Defendant, BUTLERS in their trespasses have been willful and intentional and done with a willful desregard of Plaintiffs' rights. 15. That such trespasses have caused PLaintiiffs damages in unnecessary expenses, loss of income and mental pain and suffering. 16. That Plaintiffs have a right to compensatory and punitive damages against the Defendants BUTLERS and the CITY. 17. That the Plaintiffs have retained their undersigned attorney to represent them in this cause and has agreed to pay him an reasonable fee. WHEREFORE in this Count III Plaintiffs prays for compensatory damages in an amount in excess of $5,000.00, punitive damages in excess of $5,000.00, attorneys' fees and costs. LESTER W. JENN GS Attorney f•r aintiffs Post Offi•e :ox 237 Okeechobee, Florida 34973 (813)467 -2570 QUICKI - NOTr® DATE SUBJECT 19 • N A NATIONAL SNAP -A -PART 47 -232 DESK DISPENSER (125 SETSI 47 -231 POLY DISPLAY PACK (50 SETSI MADE IN U.S.A. FROM b; 196 9 County Commissioners MINUTE mow$ Page ..1 Dr. Platt advised the Board the intentions of the School Board to expand the curriculum for Vocation and Industrial Arts and of the need to extend and fence the shop area since a new unit will be added in the Agriculture Department. If the proposed Exhibition Building is constructed at the Agriculture Center, the School Board requests the Board of County Commissioners consider permitting the school to use this building for vocational classes thus utilizing tax money with a dual purpose building. Dr. Platt informed the Board there had been no bids on the Douglas Brown School Property and was available if the County wanted it. Attorney Hendry advised the Board the proposed legislation covering the new Agricultural Center property would also cover other land Board would appreciate any donations are extending the curriculum of $15,000 to $20,000 and need the with the local fair committee transfers. Dr. Platt mentioned the School to the school in return for this land since they Industrial Arts by next September at a cost of money. The Board assured Dr. Platt they would meet as soon regards to this proposed building and Dr. Platt brought to the Board. office as possible and arrive at a decision in notify the School Board of their intentions. Board's attention the need for more space by the School The Board assured Dr. Platt if renoviation plans for the County Judge's were carried out, the Board of Public Instruction could have the complete upstairs West Wing. Upon motion by Commissioner Raulerson, seconded by Commissioner Lawrence and carried, the Board accepted the Douglas Brown School Property from the School Board. The time of 10:05 having arrived, Mr. and Mrs. H. L. Hitchcock appeared before the Board in regards to 18th Street right -of -way in Okeechobee Gardens Subdivision. Attorney Hendry informed the Board the County did not own this right -of -way as it had not been officially accepted, or accepted by act of maintenance by the County since the date the plat had been recorded in 1925. Attorney T. W. Conely, III, representing Mr. Bazil Harvey, informed the Board that his client had secured a ,deed from the Trustees of the Pittsburg•Okeechbbee Land Company to certain road right -of -way and in accordance with the reversion clause was at this time with- drawing the dedicated sixty -foot road right -of -way to Seventeenth and Eighteenth Streets from Lowe Road to Avenue E through Blocks 22, 27, and 38. After discussion with Mr. and Mrs. J. Hazel, Mr. and Mrs. H. L. Hitchcock, and Mr. J. R. Graves, a motion was made by Commissioner Williamson, seconded by Commissioner Thomas and carried that Okeechobee County at this time accept the remaining dedicated road MINUTI 1K Page ..i.10,4*.., right -of -ways in Okeechobee Gardens Subdivision. After discussion and assurance by the County Attorney that under the present county policy, accepted and dedicated road right -of -ways do not have to be maintained until justified and deemed necessary by the Board of County Commissioners, an amendment to the motion was made Commissioner Williamson, seconded by Commissioner Thomas and carried, that Okeechobee County accept all dedicated subdivision roads. The time of 11 A. M. Road Department were Inc. of $1021.00 for One and installation was Commissioner Lawrence from Motorola. having arrived, bids for a Motorola two -way radio for the opened. One bid from Motorola Communications and Electronics, (1) Motorola Model No. T71LHT3100K with mobile accessories received. Upon motion by Commissioner Raulerson, seconded by and carried, the Board voted to accept the bid of $1021.00 Bids on a twenty -year lease on approximately five acres at the local airport were called for by Chairman Pearce. One bid from Clyde Christopher Dusting Service was presented and the terms were: A monthly rental payment of $25.00 per month for each month during the term of the lease. Payment of one cent ($.01) per gallon on all sales of 80 and 100 octane aviation fuel in excess of 10,000 gallons per month, for each month during the term of the lease. Upon motion by Commissioner Lawrence, seconded by Commissioner Raulerson and carried, the Board voted to accept the bid of Clyde Christopher Dusting Service. Mr. Christopher informed the Board he was planning additional building space of 6,000 feet within the next two years. The Board agreed with Mr. Christopher the maintenance during the twenty -year lease would be the same as described in the present yearly lease. Mr. Christopher informed the Board he would be available for mosquito control spraying and would like to meet with them at the next meeting to discuss the cost. Mr. Clyde Kauffman, Supervisor of the Swimming Pool, reported 150 children are signed up for swimming lessons. The Board approved Mr. Kauffman purchasing a mirrow and •curtains for the girls dressing room. Upon recommendation of Road Superintendent Smith, the Board approved Mr. Kauffman showing a Civil Defense film to the Road Department on Monday,. April 14th at 4 P.M. as pertaining to county safety features. Attorney Hendry advised the Board he had received a letter from Mr. McCubbin, Director of the Commodity Distribution Division of the Department of Public Welfare, along with an application for commodities to be used by the Douglas Brown Day Care Center. Mr. Kauffman was requested to have this application executed and returned d n t • %•rr • ••■ NO 1Crfi0 co rr Co C) r• • 00 G 0 C) C) C) C) C) () e) 3 r -r•r• 00000 O rr rr rr (t rt C C O G r• O 'c'<c'c rt 0 0 0 0 0 ~CL (•)>: N. N. NN. • r• l-+ CL rr 1✓ c) 0 C (D5rt. 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A rtrt a N rt wr•c mI-. in nrtmI- ,GI✓rh ►C5 P-0'a (D V (ptQN V 00' Nro ON r• (D Nmrt N to • < 0 0'03 to ,-,0 art rr �•Q, 0, It rtm rt CIM 0mHvEn 0 -(D 0 I�-,o, 00 m ., (D (D to Q, P1 v 8 `9 iagmaldac > 0 CHH3Cnz H 74 0 txi O iO3 t1 r z31- 4HC1 -+ Cr) > >zHrn H Z WCdr JrnZ r] H X) C H • X X C") H H H x WI WW>Wt1)7c/ b�H� HHW z �r�-+rzkroH 3 tV"�trlWnCrorJg K H R H Dtt' O CnHHz H to Di 1-1 zz to En 1-3 M. H txitvn CH 0 01 OcntI3PI • Hx1Cn H nc 0 n Hz 0 0 ' -1 C �C% ►C JZV H :a1 tz1 6tzizt0 its t=i z H0°tH"H d ti) r tTit%1 H zvzm nHC+]H tzl z tt) W nei Co : S&aw minorav U, �P :uewdeu 1oiew :uigng uemTTouno3 Mayor Chapman adjourned the meeting at 4:55 P.M. v a is u) (0 17 CO r-r•3 b rrnxw 3 0 to art0 1-t,a 11 0•o o 17 g rt 0000, IC 01-6000,4 pr f) w 0 b w xA--0 0 rt x< ti 11 0 G rt 11 I-1- 10 r•tzi w11E►b 01-- r•0,;vn f)(r•N rt. n rt N G 0• Q. w 1--1 • 0• tr C) • r• to 0' gO ID N (D to PIZi 0 >�aiNw 0Q,Q'd0)a Ps 0 CI, rt. r•L70 0 D)0) 11110 r•5 r•0 CD LO OMCDCI 1-1 r- 11 (D DJ (0 O, rt () cn ,Q 0 0 rr 0 co m rt 0'G 0mcnO- Ar • 11 cn0 IA- (0 r•rt • (Dn(0 CDOMbr) rt 11 0 Q, rr5 rt 0•Ia)aEn0 G(0K]nr- rtO O rt> rt 0 t) 0 O'al Q,GA,Q, 00Pcn0 r•0 rtC)5 11rrrD(D En 11 E 0' rt r• rt Q, O 01 Q, G' (D (D 0 O r• (D rn C C) to C), r• 11 rn 0 r•r,rrm VI 0 r 0IA- 0 11) rt wrr 00x11 11 0,W -- Cr PI G 0 0 (D r•0 CO CU O CU 0 0 0,CI0 0 11 G rt 0 r - (-I. Lla E 0-0 rt0 IA. A >rt O CO IA- (0SD 11 NG'rt 'C 11 • r• rt sv rt ~�0'md PA• nao (D° (0D (D(DQ, w rt rt root) 0 "C 11 0 0 0 11 rt IA- (0 11 (D (1) 0.0 11 rt (0 `9 aagwaldag RESOLUTION NO. 87 -3 A RESOLUTION AMENDING RESOLUTION NO. 86 -3, PERTAINING TO APPLICATION AND PROCEDURES FOR STREET AND ALLEY CLOSINGS; PROVIDING FOR REQUIREMENT OF NOTICE TO AFFECTED PROPERTY OWNERS. WHEREAS, the City Council adopted Resolution No. 86 -3 which provides procedures for street and alley closing applications, and WHEREAS, the City Coundil deems it appropriate to amend said Resolution No. 86 -3 to provide a requirement for notice to property owners affected by the proposed street or alley closing. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF OKEECHOBEE, FLORIDA AS FOLLOWS: 1. Resolution No. 86 -3 is amended to add the following provisions: a. In addition to the publication of Notice of Proposed Ordinance, and public hearing thereon, as required by the laws of the State of Florida, the City Clerk shall cause a notice of the proposed street or alley closing to be mailed by certified mail to the owners of all real property within 600 feet of the street or alley proposed to be closed, which notice shall include a description of the street or alley proposed for closing, the date, time and place of the public hearing thereon, and a statement that the property owner may be heard in person at the hearing or may submit comments in writing or by telephone to the appropriate City Official prior to the scheduled public hearing. Said notice shall be mailed to the owners of record of real property within the area prescribed above at the address'"shown on the latest tax rolls available. b. At the public hearing, the City Clerk shall submit a report listing names and addresses of all property owners within the prescribed area, the date notice was mailed and the date the certified mail receipt was signed by the recipient. Said report shall be maintained with the application for street or alley closing, together with the certified mail receipts. ADOPTED this 3rd day of March , 1987. ATTEST: BONNIE THOMAS City Clerk OAKLAND CH71 PMA Mayor ` Steve Porter - Request for Alley Closing in Block 34 Lot Property Owner 1 and 2 3 and 4 5 and 6 7,8,9 and 10 11 and 12 --*P041 . 't Steve and Mary Porter Jack Butler Lucy Goglia, (Conn.) Steve and Mary Porter, Jerry and Willa Townsend Lucy Goglia, (Conn.) 0 col )age AGENDA ITEM #XIII - 'ACTION, BY COUNCIL. ON THE FOLLOWING ALLEY CLOSING APPLICATIONS: APPLICATION NO. 4 - MR. STEVE_ PORTER BLOCK 34. FIRST ADDITION TO SOUTH OKEECHOBEE Councilmembers stated that Jack Butler's signature was not on the application. Attorney Bryant explained the procedures as set forth in the resolution as follows: the application shall have the written consent of all owners of property adjoining the alley, street, or road involved, unless all such owners join in the application. Council discussed whether it was the intent of the resolution to include all property owners signatures within the entire block or just the property owners of the portion of the alley to be closed. Attorney Bryant stated that the resolution was intended to have all property owners signatures within the entire block. After futher discussion, Councilman Collins made a motion to table the agenda item until the next meeting so all signatures could be obtained. Councilman Thomas seconded the motion. Mayor Chapman asked for a vote on the motion. Yeas Thomas Collins Chapman Nays Rubin liASUVOUVIO 10116 .w S Anti. " Ktl►��i �"% ItAWAIRT i +S 1�1 ilk Am tl Maws M 1awsano sM tMwIr7M_ M 1OW= MI sot L . And% ,vedelessa0 1.6 00 OM *AV 111111111111,0 Imo boot +V" ns etrawnsrl sraA t IPA 1.A... 10 Motion carried loot ULLAH, BLOCK 3. NORTHEAST SECTION Councilmembers discussed the request stating all property owners within the block had not signed the application. Councilman Thomas made a motion to table the request until the next meeting. Councilman Collins seconded the motion. Mayor Chapman asked for a vote on the motion. yeas Thomas Collins Chapman Nays Rubin Motion carried AGENDA ITEM #XIV - PUBLIC HEARING AND FINAL READING OF AN ORDINANCE TO CLOSE THE ALLEY IN BLOCKS 112 AND 113: PROVIDING A UTILITY EASEMENT Councilman Collins made a motion to read the ordinance by title only. Councilman Thomas seconded the motion. Mayor Chapman asked for a vote on the motion. Yeas Thomas Collins Chapman Nays Rubin Motion carried Attorney Bryant read the title as follows: AN ORDINANCE CLOSING, VACATING AND ABANDONING THE ALLEY OR ALLEYWAY LOCATED IN BLOCKS 112 AND 113, CITY OF OKEECHOBEE; PROVIDING FOR CONDITIONS FOR THE CLOSING, VACTING AND ABANDONMENT OF THE ALLEY OR ALLEYWAY LOCATED IN BLOCK 113, CITY OF OKEECHOBEE PROVIDING AN EFFECTIVE DATE. 5 Application # Appl. Date: 'Y- Up-Qfo Appl.fee pd $fir Receipt # APPLICATION FORM FOR STREET, ALLEY OR ROAD CLOSINGS NAME(S), ADDRESS, PHONE NUMBER OF PERSON(S) REQUESTING SAID STREET, ALLEY OR ROAD CLOSING: C) i,cc; c. Nubf-► A. 3321-74 �? 7 4L, 7.1 799 PURPOSE OF SAID REQUEST: (j, [J 1 1E9 � , Li r �� Lock STREET ADDRESS AND /OR DESCRIPTIVE LOCATION OF PROPERTY: 1 1D6 aAcro-ki" AO� , L s ),02,r) - l.vCk 34 1S•` Doi iDoti "A L�u�h (�kec ke_r THE FOLLOWING INFORMATION MUST ACCOMPANY THIS APPLICATION BEFORE PROCESSING: A COPY OF THE RECORDED PLAT SHOWING THE PROPERTY AND RIGHTS -OF -WAY INVOLVED ALONG WITH WRITTEN CONSENT OF ALL OWNERS OF PROPERTY ADJOINING THE STREET, ALLEY, OR ROAD INVOLVED, UNLESS ALL SUCH OWNERS JOIN IN THIS PETITION. PLI APP 7-?/ T'S SIGN4/6-RE CANT'S SIGNATURE FOR OFFICE USE ONLY COMMENTS FROM UTILITIES DEPARTMENT CONCERNING UTILITY EASEMENTS, ETC. /✓. L(,afi /�fii�E .Loea*.0 $loa J wir)Yino iiirs Ailey Afi ?%Wz 747n — 4'v i 44/,-1/ e1,/y .4 o f gA4Vi -0 / d 174 Awrtuei. 7-f oArel i a CEOSao APPLICATION FORM APPROVED BY: CITY CLERK DIRECTOR OF PUBLIC 14TILITIES <11-0- �?'s y Q■s 10 M • N N 17 11 20 11 2! 21 • 2s • f .4 1 i N • 11 27 v Mar 11 K • EMI IT t • !low &Mar • N • If MARY $TR(( 7 311111NNte EN iTha n® $OUTN 1 v le 3 .r1 cuma czar • • 10 1 • 3 • • . 104)11* pis 2 • •M 1 m 2 Y 1 • 1 1111Mr 2 NAN • 1 : 2 }: :7x01 •`+ TN 1 VICA. AL• 41, 4tsisIVIR 17 !a . • SOU TN 2011TH 1210 Frajlitt MIME • 1 4 bar -WAN! Nrocc • STILLY V 1 EMU H 400 STR((t 1%4 alow PEE aus AEl t fir ' aims' 4.410;60 IMMO 204)11* vr: Ars 4 i MAX ION $QUTN qql j 2 • $ 1111 6 • TM TNIRT TN • 2 • 2 • 10 • 11 War 2 • 1 • 1 • • WIC Oitil 1_•t • 2 • NI i • 11 M .01`1 i 2 • 3 • 4 • • 1 • AI 4772 TN =We imam aret ieft. Ltrj PRE• �NI$I11T((NT 1 7•. • 1 2 • MN IMAM Irit • • n sr. in" WOK MGM NUM ame RIM ZIP MIR esiiri Kid MAT 1.ii 'R1 • 11 • 2 • 10 • II • it • 2 • 11 O SCV NT MT1 1 10UTN Ind 374 11011116211 1 2 120• (11 {•T((NTN 1.1 • 104)114 T 2 • 204)71* CrIr RG 3. I__ 3 • 104)714 2 ((l • 1 NIN(T((N7N $ F'01} • 1 1 • _ 2 1 _ 1 • 10 •; 11 1 1 12•••4. •... TW(NTI(7N y 7.0 r '471 i • 2._ ►..2.. • 2 1 • a • . 11 1 • •1 TW(NTr • FIRST 2 7..r ...r1 • w - i mo , Tat 2 1 • .s .••.. a TN (MT,•7(AND 2T (T P—T• • s t • c-r WARRANTY DEED INDIVID. TO INDIVID RAMCO FORM 01 This Warranty Deed (Made the 20th day of June A. D. 19 84 by STEPHEN DUSKIE, JR., and MARY J. DUSKIE, his wife, and JOHN P. CLAXTON and DIANA M. CLAXTON, his wife, as tenants by the entirety hereinafter called the grantor, to STEPHEN G. PORTER and MARY A. PORTER, his wife whose postoffice address is 278 Hwy 441 South, Okeechobee, Florida 33472 hereinafter called the grantee: (Wherever used herein thy terms "grantor" and "granted' include all the parties to this instrument and the heirs, legal representatises and assigns of indisiduals, and the successors and assigns of corporations) itnesseth. That the grantor, for and in consideration of the sum of $ 10.00 and other valuable considerations, receipt whereof is hereby acknowledged, hereby grants, bargains, sells, aliens, re- mises. releases, conveys and confirms unto the grantee, all that certain land situate in Okeechobee County, Florida, viz: Lots 1 and 2, Block 34, FIRST ADDITION TO SOUTH OKEECHOBEE, according to the plat thereof recorded in Plat Book 1, age 17, Public Records of Okeechobee County, Florida. Subject to restrictions, reservations, covenants and easements of record. ,■• (A [. 1 t r Together with all the tenements, hereditaments and appurtenances thereto belonging or in any- wise appertaining. To Have and to Hold, the same in fee simple forever. find the grantor hereby covenants with said grantee that the grantor is lawfully seized of said land in fee simple; that the grantor has good right and lawful authority to sell and convey said land; that the grantor hereby fully warrants the title to said land and will defend the same against the lawful claims of all persons whomsoever; and that said land is free of all encumbrances, except taxes accruing subsequent to December 31, 19 83. n fitness thereof, the said grantor has signe first above written. Sig 7 d, sealed . nd //e��liyred in our presence: ST 1T£'OF COUNTY OF FT Of 1 OKEECt BEE/ it aled thes prese tse the day and year c L.S. #iisiginme $ iana M I HEREBY CERTIFY that on this day, before me, an officer duly authorized in the State aforesaid and in the County aforesaid to take acknowledgments, personally appeared STEPHEN DUSKIE, JR., and MARY J. DUSKIE, his wife and JOHN P. CLAXTON t.: me known to be the person S described in and who executed the foregoing instrument and they acknowledged before me that they xocuted ti;e�'same. W TNESS my hand and official seal in the County and State last aforesaid this 20th day of June , A. D. 1984, Ingrutitrnt prepared by: Notary Public, State Of Florida At Large My Commission Expires May 28, 1985 hltfdrrhr, Manager, Okeechobee Abstract Company r.. ►r'. 3rd St., Okeechotee, fi 33.172, as a neces- +) ,,,<,oent to the Issuance of title insuring, L.S. 712 i ale • SPACE BELOW FOR RECORDERS USE STATE OF FLORIDA COUNTY OF BROWARD 267 I HEREBY CERTIFY that on this day, before me, an officer duly authorized in the State aforesaid and in the County aforesaid to take acknowledgments, personally appeared DIANA M. CLAXTON to me known to be the person described inand who executed the foregoing instrument and she acknowledged before me that she executed the same. WITNESS my hand and official seal in the County d State last aforesaid this ; O day of June, 1984, (N. P. Seal) Notary Publ c, State of Florida at Large My commission expires: I Z /,d/ Q l� n 0 • 0 i 0 r) =TURN Pea: WARRANTY DEED INDIVIO. TO INDIVID 269;1. E 19 29 R•MCO FORM Ot This Ifiarranty Deed blade the 14th day of June A. D. 19 85 by THEODORE L. KELCHNER and DENISE S. KELCHNER, his wife, as tenants by the entirety hereinafter called the grantor, to STEPHEN G. PORTER and MARY A. PORTER, his wife, and JERRY D. TOWNSEND and WILLA D. TOWNSEND, his wife, as tenants in common, each owning an undivided 1/2 interest whose postof Tice address is hereinafter called the grantee: (Wh used herein the terms grannie and ' .trice' include all the parties to this instrument and the heirslegal representatises and assigns of indisiduals. and the successors and assigns of corporations) 10e � itnesseth: I hat the grantor, for raid in consideration of the sum of $ 10.00 an d other militia hlr t onsideratiunc, receipt whereof is 1 - Thy aeleram lodged. hereby grants, bargains, sells, aliens, re- mist' •. Lwses. coin (Ind confirms unto 110 grantee. all that certain land situate in Okeechobee County. Florida, vi: Lofe;.7, 8, 9, and 10, Block 34, FIRST ADDITION TO SOUTH OKEECHOBEE, according to the plat thereof recorded in Plat Book 1, Page 17, Public Records of Okeechobee County, Florida. Subject to restrictions, reservations, covenants and easements of record. Together wise appertni ■ng. 171190 i!_ with all the tenements, hereditaments and appurtenances thereto belonging or in any- To time and to }toed, the same in fee simple forever. find the grantor hereby covenants with said grantee that the grantor is lawfully seized of said land in fee simple; that the grantor has good right and lawful authority to sell and convey said land; that the grantor hereby fully warrants the title to said land and will defend the same against the lawful claims of all persons whomsoever; and that said land is free of all encumbrances._a . ca.,t taxes accruing subsequent to f)ecember 31, 19 84. STATE OF FLORIDA`I DOCUMENTARY��, .yp STAMP TAX I 270.0011 . 1 DE, T. OF I:EVENUE P© JUNI7'BS .'. 11001 r In �tness thereof, the saes grantor has signea ana seatea these presents the day and year first above written. Signed, sealed and delivered in our presence: . \--kZ, *cCi . kL._ STATE OF COUNTY OF FLORIDA OKEECHOBEE ore L. e lrhnpr I HEREBY CERTIFY that on this day, before me, an officer duly authorized in the State aforesaid and in the County aforesaid to take acknowledgments, personally appeared THEODORE L. KELCHNER and DENISE S. KELCHNER, his wife, as tenants by the entirety to me known to be the person s described in and who executed the forevjt,g instrument and they acknowledged before me that they „e!irpc;ed there'. same. ,,,u•w,_ WITNESS my hand and official seal in the County and • Stole last aforesaid this 14th day of f . '' June, , A. D. 1 ' 85. • (Na P. Notary 1ublic,�Stat Florida at Large Q 7 his lnslruiirrrrl prepared l y: My commission expires: R. rntrbsr, Manager, Okeechobee Abstract Company Notary Public, State Of Florida At Large 9 P y My Commission Expires May 28, 1989 302 N. W. 3r4 St., Okeechobee, fl 33472, as a hoots- Bonded By western Surety Company nary incident to the Issuance of title Insurance. SPACE BELOW FOR RECORDERS USE RESOLUTION NO. 86-3 WHEREAS, the City of Okeechobee contains many platted and dedicated alleys or alleyways, as well as some streets and roads, which serve no necessary or useful purpose of the City or its general population; and WHEREAS, the vacating and closing of such alleys, streets or roads would result in the adjoining property owners gaining additional useful property and would result in an increase in taxable real property on the tax rolls of the City; and WHEREAS, the vacating and closing of such alleys, streets or roads would eliminate maintenance costs and liability of the City as to such property involved; and WHEREAS, the City Council has determined that it is in the best interest of the City to establish procedures for affected property owners to make application for the vacating and closing of such alleys, streets and roads; NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Okeechobee, Florida as follows: 1. THAT any owner of property adjoining a platted or dedicated alley, y, street, or road, or any person affected by such alley, street, or road, may apply to the City Council for an ordinance vacating and closing such alley, street, or road. The application shall be submitted to the office of the City Clerk and shall include: a. a properly completed application on a form provided by the Clerk; b. a copy of the recorded plat showing the property and rights -of -way involved; c the written consent of all owners of property adjoining the alley, street, or road involved, unless all such owners join in the application; d. a non - refundable application fee of $25.00. 2. THAT the City Clerk shall review each application for completeness and shall place the application on the next regular agenda for consideration by the Council. The applicant shall be advised of the time and date of the meeting at which the application will be considered and that said applicant may make a presentation in support of the application at that time. 3. THAT after consideration of the application and any other information the Council deems appropriate, the Council shall determine whether it is in the best interest of the City to deny the application or to proceed with the preparation and consideration of an ordinance vacating and closing the subject alley, street or road. If the Council determines it to be in the best interest of the City to proceed with consideration of such an ordinance, upon payment of the costs as set forth in Paragraph 4 below, the City Attorney shall be directed to prepare the proper ordinance for first reading at the next regular meeting of the Council, or at such other meeting as the Council deems appropriate. 4. THAT the applicant shall be responsible for payment of the costs of preparation and advertising the proposed ordinance vacating and closing the subject alley, street or road. Prior to the preparation of the ordinance, the applicant shall de0osit with the City Clerk the sum of $170.00, which shall include legal and advertising costs. This sum is in addition to the initial application fee and is non - refundable. 5. THAT any ordinance prepared pursuant to this Resolution shall be subject to the same procedures for adoption as any other ordinance of the City, including a public hearing on proper notice. Nothing herein shall be construed to obligate the City Council, or any individual Council member, to vote to adopt a proposed ordinance. Each such ordinance shall be adopted only after opportunity for public comment and consideration by the Council of all relevant factors raised. 6. THAT nothing herein shall be construed to prohibit the City Council from initiating procedures to vacate and close any alley, street, or road on its on motion for valid City purposes. PASSED AND ADOPTED this 7th day of January 1986 . ATTEST: BONNIE S. THOMAS ,'CMC CITY CLERK APPROVED AS TO FORM: JERALD D. BRYANT CITY ATTORNEY CITY OF OKEECHOBEE, FLORIDA OAKLAND R • , MAYO' General Practice Trial Practice Criminal Law Jerald D. Bryant Attorney At Law August 12th, 1985 L.C. Fortner, Jr. Administrative Assistant 55 Southeast 3rd Avenue Okeechobee, Florida 33472 RE: Porter /Butler Alley - Block 34, First Addition to South Okeechobee Dear L. C.: 208 N.E. 3rd Avenue Post Office Box 816 Okeechobee, Florida 33472 Telephone 813 -467 -1776 Enclosed is a copy of the letter sent to Mr. Porter regarding the alley between his lots 1 and 7 in Block 34. I have searched the public records and, based upon the dedication found at Deed Book 17, Page 383, (a copy is enclosed for your records), have determined that the fifteen (15) feet strip between these lots is alleyway dedicated to the public. Mr. Porter is advised to remove all obstructions in the alley within seven (7) days. It may be advisable to ask the City Police or Code Enforcement officer to verify compliance by Mr. Porter, rather than await the inevitable complaint by Mr. Jack Butler. It may also be necessary to remove the parking striping from the concrete in the alley in order to discourage parking vehicles thereon. If you have questions, please call. Very,truly yours, (/,/, JDB /jcb D /YANr Enclosure: As Stated. cc: Bonnie Thomas, Clerk Councilmen (5) Police Chief Code Enforcement cement Officer September 13, 1984 LETTER OF UNDERSTANDING To: City of Okeechobee From: Stephen G. and Mary A. Porter Subject: AGREEMENT FOR USE OF ALLEY RIGHT -OF -WAY In consideration of the agreement of Council, at its meeting of September 17, 1984, for the use of a fifteen foot (15 -ft.) alleyway bisecting block 34, southwest addition, adjacent to our business; we hereby agree as follows: 1) We will request our insurance company to attach a rider to our business insurance insuring the City against any liability arising out of injuries by any person or persons utilizing the fifteen foot (15 -ft.) alley right -of -way. 2) The alleyway will not be used for any permanent structure but will be concreted over. 3) If at any time the City requires the use of said alleyway for the installation of utilities or for any other purpose including drainage, etc. we agree to remove, from the fifteen foot (15 -ft.) alley right -of -way, all materials, concrete, asphalt or other matter which may have been placed thereon; at our expense, within thirty (30) days notice in writing. Witnesses: ATTEST: EMPLOYMENT SERVICE CONTRACT AGREEMENT dated October 6, 1987, by and between JOHN J. DRAGO, herein- after referred to as: Employee, and the City of Okeechobee, a municipal cor- poration, hereinafter referred to as: Employer. 1. EMPLOYMENT. The Employer hereby employs the Employee and the Em- ployee hereby accepts employment upon the terms and conditions hereinafter set forth: 2. TERMS: The terms of this agreement shall begin on October 1, 1987, and shall terminate on September 30, 1988. The agreement shall thereafter be renewable upon the mutual consent of both parties. However, in the event the agreement is not renewed or Employee is terminated, Employee shall be entitled to severance pay for the ninety day period as set forth herein. 3. COMPENSATION: For all services rendered by the Employee under this agreement, the Employer shall pay the Employee a salary of $30,000 a year, pay- able in equal weekly installments at the end of each week. 4. DUTIES: The Employee is engaged in the capacity of City Administrator, whose duties shall be in accordance with the guidelines set forth in the Code of Ordinances of the City of Okeechobee, as may from time to time be amended. S. WORKING FACILITIES: The Employee shall be furnished with a private office, administrative help, and such other facilities and services, suitable to his position and adequate for the performances of his duties. 6. EXPENSES: The Employee is authorized to incur reasonable expenses for promoting the business of Employer, including expenses for entertainment, travel and similar other items, as long as such expenses have been approved by the Em- ployer prior to being incurred. 7. VACATIONS: The Employee shall be entitled each year to twelve business days of vacation or annual leave for which Employee shall receive his full com- pensation as set forth in this agreement. Additional) Em .lo ee shall be en- titled to ' twelve business days as oaid �;,.0 , ___ r receive full payment of his salary as set forth in this agreement. It is an express intention of the parties that sick days shall be in addition to and not in lieu of vacation days. Vacation or annual leave days and sick days shall accrue and be otherwise governed by the terms of the handbook of City Employees. 8. TERMINATION: At such time as Employee shall be terminated or request- ed to tender his resignation by Employer without reasonable cause, then he shall be entitled to ninety days severence pay payable on demand. The severance pay hereinabove mentioned is to be in addition and supplemental to any other benefits such as earned annual leave and retirement benefits. 9. SEVERENCE PAY: Employer agrees to pay to the Employee, Employee's full weekly salary for a period of ninety days in the event Employer without reason- able cause does not renew or terminates this employment contract. All rights to severance pay shall vest in Employee at the time of this Employment Agreement. 10. TRANSPORTATION: In addition to Employee's annual salary and add- itional benefits, Employee shall receive the use of an automobile selected and paid for by Employer. Employer agrees to be responsible for the obtaining of the vehicle, all insurance, as well as all maintenance including fuel charge, incur- red by the Employee. Said automobile may be utilized by the Employee to travel to work in the morning and traveling to Employee's Okeechobee residence in the evening. 11. INSURANCE; Employer shall be responsible for payment of Employee's health and life insurance benefits including payment of premiums for Employee's life insurance in the amount of $20,000. Further, Employer shall pay for medi- cal insurance which shall include Employee under the policy presently in effect for the benefit of City Employees. Employer shall also include payment of long term disability insurance for the benefit of Employee as said disability remains in effect for the benefit of other City Employees as of the date of this Agreement. Health, life and disability insurance shall be provided in accordance with the terms of the handbook for City Employees. 12. PENSION PLAN: Employer agrees to contribute to Employee's pension plan the sum of $2,000; which sum shall be contributed each year during Employee's employment for Employer. 13. ENTIRE AGREEMENT: The instrument contains the entire agreement of the parties. It may not be changed orally but only by agreement in writing, signed by the parties against whom enforcement of the waiver, change, modification, ex- tension, or discharge is sought. 14. RENEWAL: It is agreed between the parties that any renewal of this agreement shall be done in writing signed by both parties. In witness whereof the parties have executed this agreement on the 6th day of October, 1987. CITY OF OKEECHOBEE: WITNESS CLAUDE L Muws LAW OFFICES OF CLAUDE L MULLIS PROFESSIONAL ASSOCIATION 4250 LAKESIDE DRIVE / SUITE 114 JACKSONVILLE, FLORIDA 32210 (904) 388 -1289 OF COUNSEL TO UVERMOR.E, KLEIN 8 Lori 1750 GULF LIFE TOWER JACKSONVILLE, FLORIDA 32207 FEDERAL EXPRESS April 4, 1988 Mayor Oakland R. Chapman and Members of the City Council City of Okeechobee 55 Southeast Third Avenue Okeechobee, Florida 34974 -2932 Attention: Ms. Sylvia Firestine Gentlemen: This is a response to your request for my opinion on whether the City has just cause for dismissal of John Drago, City Administrator, based on the evidence presented through the joint investigation by the StateAttorney'syou office and the Okeechobee Police Department. This investigation was undertaken at your request after questions were raised by certain city officials. We have reviewed each of the statements taken by the State Attorney's office and Police Department which were transmitted to me by letter of Sylvia Firestine dated March 23, 1988, and received by this office on March 28. We have reviewed the employment service contract dated October 6, 1987 between John Drago, as "Employee" and City of Okeechobee as "Employer ". We also studied the Ordinance Code and in particular sections on the powers and duties of the City Administrator. The contract provides for terms of employment and the termination thereof. It specifies Mr. Drago to be an employee of the City. The powers and duties of the City Administrator setforth in section 2 -51 et seq. would appear to establish the office of City Administrator as the Chief Administrative Officer of the City. He is responsible for the day -to -day operation of the City and its departments. Section 2 -52 provides for the appointment, removal and compensation of the City Administrator. The contract is in conflict with the Code of Ordinances and is ambiguous and Mayor Oakland R. Chapman and Members of the City Council April 4, 1988 Page 2 unclear in many respects. Termination and employment rights are not the same for officers of the City as are those of employees. It would appear the City Council should consider their decisions under the purposes and guidelines setforth in the Ordinance Code mentioned above. It was aptly stated by William Shakespeare when he wrote "As two men ride on a horse, one must ride behind ". There is insufficient evidence in the 14 attachments and the report submitted to your honorable body by Mr. Richard E. Mcllwain, office of the State Attorney and Det. Gene O'Neill, City of Okeechobee Police Department, to establish just cause for dismissal of Mr. Drago under the Ordinance Code of the City or to terminate his employment contract under the contract executed by him and the City. The council should consider putting certain restrictions on persons obtaining access to public offices and public buildings in the interest of public safety and efficient services to the public. Past practices of issuing purchase orders for each item within the Department should be addressed so as to avoid appearance of splitting invoices to avoid competitive bidding requirements. No matter how budgeted all funds are City funds and should be expended as such whether they be from utilities or other sources. To be more specific in factual details and legal reasons, it would not in our opinion serve the best interest of either party at this time. CLM /aj Respectfully submitted, —1;;/ C Zde L. Mullis Special Counsel CLAUDE L MULLIS, P A. Discussion from the Regular Meeting of 9 -17 -84 Concerning use of'alley way - Steve Porter Chairman Douglas, "We have a request here from Porter's Dry Cleaning for the use of the alleyway directly west of their new building on South Parrott Avenue. I believe that want to use this for - as a drive for of their business. They want to cement the alleyway. I think you have in your packet the contract that was drawn up. They are willing to remove that at their expense if at any time the City needs the alleyway for utilities or anything. So we will open it for Council's discussion." Councilman Chapman, "I noticed in the status report that L.C. didn't have no problem with it or any of the heads. And it is a normal procedure, right ?" ; Chairman Douglas, "Mr. Porter is here if you want to ask him any questions." Councilman Chapman, "It pretty well spells everything out in the agreement here." Councilman Thomas, "I don't see a problem if L.C. doesn't." Director Fortner, "I am not using the alley at this time. It may be some time before we will need it." Councilman Chapman, "Are you pouring the concrete so you will be able to move it in sections if by any chance it has to be moved." Mr. Porter, "Right. We have a section going on my property line and then probably about five sections to the fence going through in case one or two has to be taken out rather than the entire section." Councilman Thomas, "I move that we approve it." Chairman Douglas, "It has been moved by Councilman Thomas that we grant our permission on this agreement, second ?" Councilman Knight, "Second." Chairman Douglas, "Second by Councilman Knight. Any discussion? If not, all in favor of the motion say Aye." Councilman Knight - Aye Councilman Thomas Councilman Chapman " Chairman Douglas, "Opposed? Motion carried. We will take care of the signing of the agreement probably tomorrow alright? Thank you." a,.gits cLefle's eERTIIoICATR CLt?K: Ci 1111Q4Ys ut, FLORIDA ) dut COUNTY OF OKEECHOBEE / Mr ' CITY OF OKEECHOB E • . i;ONNIE S THOMAS. HUtBY CUM INATIam IMe i* lied Clerk of the City,ofO droll t.Ao+iis:1MiMeaMw'!xdlunsoing _nd correct cony of a Doeame>,tthe Magna e f sohithli on file in t/qr Of of the City Ckvlrb¢ tlie.CitYM Okeechobee IN WITNESS WHEREOF I have hereunto set my ham and kited the Whist aietOf said city. this /444"4ay of SEAL OMINIM CLcIL., CITY MIRK COUNCIL MEMBERS Nick Collins Andy Rubin Oscar Thomas Dowling Watford, Jr. City of Okeechobee August 31, 1988 Lester Jennings, Esquire 110 N. E. Third Avenue Okeechobee, FL 34972 Re: City of Okeechobee, Steve Porter and Jack Butler Dear Lester: MAYOR Oakland R. Chapman CITY CLERK Bonnie S. Thomas, C.M.C. Enclosed please find a copy of an agreement I have pre- pared in the referenced matter. This may not suit every- one completely, but at least it's a start. Kindest regards, JOHN R. COOK JRC:cb cc John Drago Enclosure 55 S.E. Third Avenue • Okeechobee, Florida 34974 -2932 • 813/763 -3372 COUNCIL MEMBERS Nick Collins Andy Rubin Oscar Thomas Dowling Watford, Jr. 011I If OKEE Os • frLOR%O X111 City of Okeechobee August 31, 1988 MAYOR Oakland R. Chapman CITY CLERK Bonnie S. Thomas, C.M.C. Mr. Jack Butler 1702 South Parrott Avenue Okeechobee, FL 34974 Re: City of Okeechobee, Steve Porter and Jack Butler Dear Mr. Butler: Enclosed please find a copy of an agreement I have prepared in the referenced matter. This may not suit everyone, but at least it's a start. Kindest regards, JOHN R. COOK JRC:cb cc John Drago Enclosure 65 S.E. Third Avenue • Okeechobee, Florida 34974 -2932 • 813/763 -3372 AGREEMENT THIS AGREEMENT, entered into by and between the City of Okeechobee, Florida, a municipal corporation existing under the laws of the State of Florida, Steve Porter, and Jack Butler, citizens within the municipality, in and for the mutual covenants and concessions herein, do agree to the following: RECITALS WHEREAS Porter and Butler own lands which abut a city alley between lots 1 and 2, 7 and 8, of Block 34, First Addition to South Okeechobee; WHEREAS the city previously granted permission for Porter to pave or concrete over the north end of said alley in order to construct rental units and to improve the appearance of said units; WHEREAS Butler has sought to use said north end of the alley for ingress and egress to his own property, and Porter has sought to obstruct said alley and allege that it is not in fact an alley dedicated to the public, creating a controversy between the parties as to its proper use and designation; and WHEREAS the parties seek to amicably resolve these issues by agreement; THEREFORE, in consideration of these recitals, the parties do agree as follows: 1. That all parties agree that the described alley, as part of an original dedication dated June 14, 1926 found at Deed Book 17, page 383, public records of Okeechobee County, Florida, is in fact an alley properly—dedicated or accepted by public user and shall remain so. 2. That the city recognizes its agreement with Porter to allow him to construct concrete driveways over the north end of said alley and to landscape same, as an allowed use incident to his rental units at that location. That said use may continue and includes parking of vehicles from time to time. 3. That the city does not waive its rights or grant permission such as would permit a taking by abandonment, adverse possession or otherwise, and indeed retains now and forever all such legal rights as it possesses currently over ownership of said alley. 4. That the alley may be used by any person as any alley may, and the city shall clear the entire alley as to make it usable from both the North and South ends. Should the alley be blocked or obstructed and access be necessary in an emergency, Porter and Butler agree that such obstruction, whether placed there by themselves, their tenants, or others, with or without permission, may be immediately removed by the city without any liability or responsibility therefore. 5. That any agreement or permissions herein, or referred to herein, remain with the parties herein, and shall not be conveyed, assigned or run with the land. Entered into this day of September, 1988. CITY OF OKEECHOBEE Oakland Chapman, Mayor ,; O N r i, t. STEVE PORTER JACK BUTLER er a • • II e • ti 12,41.1 1 66 _� 121 -I,.r s 1 SOUTH SIXTEENTH STREET MOIR ERN 28 L G' 9, '7' 1 CYAN SS 10 GUAR 1R5 OILIMITID ARIA 1.t. P.. ,100 SOUTH SEVENTEENTH rocs • • 9 • IQ • II 17 2 • 3 • 4 • 5 UTH EIGHTEENTH Ow. • TAYLOR CR1[R U1iIM111 U ARIA l N /....100 N STREET m 1 8 2 [uK 9 3 • 9 1*1 -014 111111 LnanaG 'SIASrip7.' '. 124.1W :;X. 412:1.T1ai N.I.IM ba . •'i1M )11 0-d • -DO 'LA .dW1 ,.Z( .L'�j�lrvz. 10(10115 a aC11m .aO'L x aaz0 '")No1v„-9t a:3..LV'riOved3d -d e „Lt oo•oZ- NovAsAz'13 aanrst „Q. Iad).l '4iVM S TJ•'1,01'1d °1 S to drNS .9 -�Z •ao -11141/V0412.15 "2504.4 N O 1 lY 7 1'14 r( ••1.1 v4\ 5 d 10Q 1 PROPOSED CURB REMOVABLE FOR ENGRESS AND EGRESS TO PORTER'S PLAZA CORNER OF SOUTHWEST INTERSECTION OF U. S. 441 SOUTH AND SEVENTIETH STREET OKEECHOBEE, FLORIDA OWNER: MR. STEPHEN PORTER (813) 763 1799 COLLINS AND COMPANY consulting engineers ..:.+. J• 017 P.O 'ONA,► emu. AND AL VIGINMUNG 3541 84 -2 84 -9 84 -11 84 -11 REGULAR MEETING MONDAY, SEPTEMBER 17, 1984 The City Council of the City of Okeechobee met in regular session in Council Chambers 55 Southeast Third Avenue, Okeechobee, Florida, at 7:00 P.M. Chairman Douglas called the meeting to order with the following Councilmen present: Edward W. Douglas, Chairman James Knight, Vice Chairman Oscar Thomas, Councilman Oakland Chapman, Councilman Councilman Dowling Watford was absent. Others present were: Richard C. Fellows, City Administrator David M. Conlon, City Attorney Lydia Jean Wilkerson, Deputy Clerk Clerk Bonnie Thomas was absent. AGENDA ITEM #'s 11 & 111 - INVOCATION AND PLEDGE OF ALLEGIANCE The Invocation was offered by Councilman Knight, followed by the pledge of allegiance. AGENDA ITEM #IV - THE MINUTES OF THE REGULAR MEETING OF 9 -10 -84 WILL BE PRESENTED AT THE NEXT REGULAR MEETING 10 -1 -84 AGENDA ITEM #V - MAYOR EDWARD DOUGLAS ON BEHALF OF THE CITY COUNCIL WITH A PRESENTATION TO FLOYD SELPH FOR TEN YEARS SERVICE WITH THE DEPARTMENT OF PUBLIC WORKS Mr. Selph was not present, therefore the agenda item was omitted at this time. AGENDA ITEM #VI - ACTION BY THE COUNCIL ON A REQUEST FROM PORTER'S DRY CLEANING FOR THE USE OF ALLEY RIGHT OF WAY IMMEDIATELY WEST OF THEIR NEW BUILDING ON SOUTH PARROTT AVENUE Chairman Douglas introduced the agenda item. Mr. Porter addressed Council and requested the use of the al leyright of way west of his new building on South Parrott Avenue. Councilmembers discussed the request briefly. Councilman Thomas made a motion to grant permission for Porters Dry Cleaning to use the alley right of way. Councilman Knight seconded the motion. Motion carried. AGENDA ITEM #VII - ACTION, BY THE COUNCIL, TO ACCEPT THE LOW BID OF WIDELL AND ASSOCIATES, FOR CONSTRUCTION OF THE 201 AREA WIDE WASTE WATER TREATMENT PLANT AND AUTHORIZING THE MAYOR AND CLERK TO EXECUTE THE NECESSARY CONTRACT DOC- UMENTS IN THE AMOUNT OF $3,755,962.97 Chairman Douglas introduced the agenda item and opened the floor for discussion. Administrator Fellows stated, "The last problem that we encountered was the.public hearing with the R -Bar Estates residents called with the DER, whether or not it would be possible for them to get any type of an injunction. " Attorney Conlon stated, "1 wouldn't think that there would be an injunction, since they did not sustain their position in the Administrative Hearings. If one is filed, we will have to handle it at that time." After discussion by Council members, Councilman Chapmaimade a motion to accept the low bid of $3,755,962.97 of Widell and Associates for the construction of the 201 area wide wastewater treatment plant. Councilman Knight seconded the motion. Motion carried. AGENDA ITEM / /VIII - ACTION, BY THE COUNCIL, TO ACCEPT THE LOW BID OF TADDIE UNDERGROUND UTILITY CO., INC. AND M & M CONTRACTING, INC., A JOINT VENTURE, AND AUTHORIZATION OF THE MAYOR AND CLERK TO SIGN A CONTRACT IN THE AMOUNT OF $2,088,480.30 FOR CONSTRUCTION OF A SEWAGE COLLECTION SYSTEM Chairman Douglas introduced the agenda item and opened the floor for discussion. Councilmembers discussed the joint venture document not being received at this time. After discussion, Councilman Thomas moved to accept tht low bid of Taddie Underground Utility Co., Inc. and M do M Contracting, Inc., of $2,088,480.30 contingent upon the proper legal documents are in order and approved by staff. Councilman Chapman seconded the motion. Motion carried. AGENDA ITEM #IX - MAYOR TO CALL ON ANYONE IN THE AUDIENCE WISHING TO ADDRESS THE COUNCIL Citizen Andy Rubin addressed Council concerning the handicapped meeting that he is a-member of, handicapped employees, elevators, and wheelchair bathrooms for the elderly and handicapped. 3542 84 -8 2 Administrator Fellows stated the Federal Revenue Sharing requires that we come up with a plan to handle this by October 17, 1984. Clerk Thomas will be the Chairperson of this committee and she will be in charge of electing members. Chairman Douglas stated that the 1984/85 Budget Hearing was postponed to the next Tuesday evening, September 25th, at 7:00 P.M., due to an advertising error, by the OkeechobeeNews. Administrator Fellows requested the authority of the Council to address a letter to the School Superintendent and authorize Mr. Fortner and himself to negotiate with the superintendent relative to how the schools are going to prepare to hook to the sewage system and we would also like to have the same authority to notify the Eckerd Foundation as to how they are going to finance their connection. Also authority to contact the County for their participation in the provision of the new access road (3 mile) at the treatment plant. Council agreed. Adminstrator Fellows stated that if the City wished to bid out the insurance for the City, workmans compensation, general liability , a motion was needed for authorization. Councilman Chapman made the motion. Councilman Thomas seconded the motion. Motion carried. Councilman Chapman asked if Director Fortner could check on the Riverbend Mobile Home Park's shrubbery and signs that are blocking the view of the highway. Also the lift station seems to be blocking the view. Administrator Fellows stated that Mrs. Martha Knight had put together a dictorial repre- sentation of what the City does, how it is organized, who the people are that provide the services, and at this time would like to present it to the Council and those in the audience. Mrs. Knight proceeded with the presentation of the City of Okeechobee slide show presentation. After the presentation, Council members thanked Mrs. Knight for the very fine job that she had done in preparing the presentation. AGENDA ITEM / /XI - ADJOURNMENT There being no further business to discuss the meeting was adjourned at 7:55 P.M. Edward W. Chairman ATTEST: Bonnie S. Thomas, CMC City Clerk g D.C. Jur Ice EDICA- t 10 Fla Jur B. DEDICATION § USE AND CONTROL § 29. Generally § 30. Streets, Alleys, etc. § 31. Parks, Squares, etc. IV. TERMINATION; REVERTER § 32. Generally § 33. Effect of Termination 2 I. INTRODUCTORY § 1. Scope of Article. Dedication is the appropriation or donation of land, or of an easement or interest therein, by its owner for some proper public use.' This article discusses the appropriation of real property by the owner thereof to public use in the above sense. The taking of land for public use by eminent domain proceedings, while it may be regarded as a dedication in a certain sense, is not within the meaning of the term "dedica- tion" as used in this article.' Nor are gifts and endowments to public, quasi - public, or charitable bodies within its scope.' Also, the acquisition of land or an easement therein by prescription or adverse possession' is discussed under other articles, as is the acquisition of land by the state,' counties,' or municipalities,' by other means than dedication. § 2. Definitions and Distinctions. A common -law dedication is a setting apart of land for 1. § 2, infra. 2. See 12 Fla Jur, EMINENT DOMAIN. 3. See 5 Fla Jur, CHARITIES; 15 Fla Jur, GIFTS; 16 Fla Jur, HOSPITALS; 23 Fla Jur, MUNICIPAL CORPORA- TIONS; 28 Fla Jur, RELIGIOUS SOCI- ETIES; 33 Fla Jur, TRUSTS; 33 Fla Jur, UNIVERSITIES AND COLLEGES; 7.23 Fla Jur, MUNICIPAL CORPORA - 34 Fla Jur, WILLS. TIONS § 180. 4. See 1 Fla Jur, ADVERSE POSSES- SION. 5.30 Fla Jur, STATE OF FLORIDA § 29. 6.8 Fla Jur, COUNTIES §§ 72-74. 3 § 2 DEDICATION 10 Fla Jur 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,10 and proof of these facts must be clear, satisfac- tory, and unequivocal." Though the very nature of a dedication dispenses with the necessity of a grantee," a dedication is nevertheless said to have many of the characteristics of a grant or of a gift, and to be governed by the fundamental principles that control such transactions. A dedication is also said to have the characteristics of a contract, in that it requires both an offer and an acceptance, and is not binding until there has been an acceptance." Though property purchased by the public for some public purpose, such as for jails, courthouses, county buildings, public hospitals, and the like, is sometimes referred to as dedicated to the public or to a public use, the question of dedication, as that term is ordinarily used, does not arise." 8. Miami v Florida E. C. R. Co. (1920) 79 Fla 539, 84 So 726. Miami Beach v Miami Beach Im- prov. Co. (1943) 153 Fla 107, 14 So 2d 172. Bishop v Nussbaum (1965, Fla App) 175 So 2d 231. Third survey of Florida law: Ded- ication. 12 Miami L Rev 524. Survey of real property law — Dedication. 18 Miami L Rev 834. 9. Bishop v Nussbaum (1965, Fla App) 175 So 2d 231. See 23 Am Jur 2d, DEDICATION §1. 10. Weills v Vero Beach (1928) 96 Fla 818, 119 So 330. 4 Miller v Bay -to -Gulf, Inc. (1940) 141 Fla 452, 193 So 425. Bishop v Nussbaum (1965, Fla App) 175 So 2d 231. As to an offer of dedication, 'See §§ 9 -13, infra. As to the acceptance of an offer, see §§ 14-20, infra. 11. § 23, infra. 12. § 8, infra. 13. See 23 Am Jur 2d, DEDICATION § 2. 14. See 23 Am Jur 2d, DEDICATION § 2. Practice Aids.— Introductory comments. 7 AM JUR LEGAL FORMS 2d, DEDICATION § 86:1. Jur 10 Fla Jur DEDICATION ner by t be to by ,fac- the d to and itrol the offer been ublic ings, to as )n of e.14 (1940) a App) on, 'See n offer, [CATION ICATION ductory LEGAL ;6:1. 3 § 3. Purposes of Dedication. The essence of dedication is that it shall be for the use of the public at large. There may be a dedication to special uses, but it must be for the benefit of the public.16 There can be no dedication to private uses, or to uses public in their nature but the enjoyment of which is restricted to a limited part of the public." Dedication is a common method of creating highways," streets,18 and alleys," and an easement may be granted by dedication and acceptance." It is well established that the public may acquire a highway by dedication by the owner of the land with the sanction of public authorities.S1 Also, dedication may be made for a number of other purposes such as for public squares and parks,' and for pious and charitable uses.' 15. 23 Am Jur 2d, DEDICATION § 5. Practice Aids.— Dedication of land for nature and game preserve. 7 AM JUR LEGAL FORMS 2d, DEDI- CATION § 86:34. — Dedication of property for use as public school site. 7 AM JUR LEGAL FORMS 2d, DEDICATION § 86:35. 16. Burnham v Davis Islands, Inc. (1956, Fla) 87 So 2d 97. 17.23 Am Jur 2d, DEDICATION § 6. Ops Atty Gen: Dedication of county roads. [1959 -1960] Atty Gen Rep 199. 18.23 Am Jur 2d, DEDICATION § 6. Practice Aids.— Dedication of land for street. 7 AM JUR LEGAL FORMS 2d, DEDICATION § 86:31. 19. 23 Am Jur 2d, DEDICATION § 6. 20. Reiger v Anchor Post Products, Inc. (1968, Fla App) 210 So 2d 283. Practice Aids.— Dedication of land as right of way for public ac- cess to shoreline. 7 AM JUR LEGAL FORMS 2d, DEDICATION § 86:32. 21. Couture v Dade County (1927) 93 Fla 342, 112 So 75. Daugherty v Latham (1939) 139 Fla 477, 190 So 742. 22. 23 Am Jur 2d, DEDICATION § 4. Practice Aids.— Dedication of land for public park. 7 AM JUR LEGAL FORMS 2d, DEDICATION § 86:33. 23. 23 Am Jur 2d, DEDICATION § 7. 5 1 § 4 DEDICATION 10 Fla Jur II. ELEMENTS OF DEDICATION A. THE DEDICATOR § 4. In General. It is essential to a valid dedication of land to a public use that it be made by the legal or equitable owner of the fee, or at least, with his consent.` Only the owner of an absolute fee can make an absolute and final dedication of lands to a public use.' Of course, there may be a dedication by a duly authorized agent." § 5. Persons Having Particular Interests or Estates. In the absence of contrary or limiting provisions in a trust instrument or subsequent order or decree of a court, the trustee of an express trust is authorized to dedicate land to a public use,' and easements may be dedicated to public use without consideration if deemed by the trustee to be for the best interests of the trust." However, an administrator is said to have no power to dedicate any of his decedent's land to public uses." And a dedication by the owner of a particular estate will not bind 24. 23 Am Jur 2d, DEDICATION § 8. 25. Bruce v Seaboard A. L. Ry. (1906) 52 Fla 461, 41 So 883, holding that a party claiming title to land that is in the actual adverse possession and occupancy of another cannot, as against the adverse occupant, make an absolute and final dedication of such land to the public use by the filing and recording of a plat subdi- viding the land into streets, lots, and blocks. Annotation: Attempted dedication as affecting right to assert after -ac- quired title. 62 ALR 480. — Railroad company's right to 6 dedicate highway across its right of way. 94 ALR 522, 532, 149 ALR 378. —Right of owner of servient tene- ment subject to right of way to dedicate his land. 69 ALR2d 1236. 26. Hamilton v Laesch (1938) 134 Fla 591, 184 So 110. See 23 Am Jur 2d, DEDICATION § 9. 27. FS § 691.03(1). 28. FS § 691.03(1). 29. 23 Am Jur 2d, DEDICATION § 13. 0 a d of R -71a ON 3. 10 Fla Jur DEDICATION § 6 those in remainder or reversion, nor will a dedication by a tenant bind a landlord." § 6. Effect of Mortgages, Equities, or Liens. While a mortgagor may dedicate land to a public use so as to divest himself of any rights therein," he cannot thereby affect the rights of the mortgagee." In such a case, foreclo- sure of the mortgage would revoke the purported dedica- tion. A mortgagor can, of course, make a dedication of the mortgaged premises with the joinder and consent of the mortgagee.' A provision in a mortgage granting the mortgagor the right and privilege to subdivide the mortgaged premises into lots and blocks does not constitute an agreement upon the part of the mortgagee to a dedication of streets shown on a subdivision plat executed after the mortgage so . as to release or discharge the property allegedly dedicated from the 30. 23 Am Jur 2d, DEDICATION § 13. Practice Aids.— Dedication by co- - tenants. 7 AM JUR LEGAL FORMS 2d, DEDICATION § 86 :41. 31. Weills v Vero Beach (1928) 96 Fla 818, 119 So 330. 32. Weills v Vero Beach (1928) 96 Fla 818, 119 So 330. Hamilton v Laesch (1938) 134 Fla 591, 184 So 110. 33. Weills v Vero Beach (1928) 96 Fla 818, 119 So 330. Where a mortgagee has not joined in or consented to an offer of dedi- cation of the mortgagor owner of a platted subdivision, and the town had not accepted the dedication when the foreclosure of the mort- gage was complete and the property sold, the purchaser acquired title and ownership to the entire prop- erty, including all streets and with- out any restrictions on account of the plat whatsoever. Highland Beach Realty Co. v Turner (1962, Fla App) 139 So 2d 467, app dismd (Fla) 146 So 2d 749, and cert dismd (Fla) 148 So 2d 281. Although a mortgagor may be technically the owner, if he attempts to dedicate the mortgaged property or any part thereof without the as- sent of the mortgagee, such dedica- tion creates no more than an equity in the public to have the land open, subject to the mortgage. 23 Am Jur 2d, DEDICATION § 11. Annotation: Power of mortgagor to dedicate land or interest therein. 63 ALR2d 1160. 34. 23 Am Jur 2d, DEDICATION § 12. Practice Aids.— Dedication by mortgagor and mortgagee. 7 AM JUR LEGAL FORMS 2d, DEDICA- TION § 86:42. 7 § 6 DEDICATION 10 Fla Jur mortgage lien." However, if a mortgagee should stand by and see lots sold according to a plat dedicating streets and other areas indicated on the plat, he may be estopped from questioning the dedication." And if a mortgagee should make no objection to a dedication of the land by the mortgagor, third persons may not assert that the dedication is invalid because of the mortgage.87 One who has contracted to sell land may not afterward dedicate part of it, and where land is subject to the lien of a judgment, the owner may not dedicate it so as to affect the lien. § 7. Public Authorities. The right of a state or a political subdivision thereof to dedicate lands owned by it to a particular public use has been recognized by the courts in a number of instances! Public authorities have been granted the express authority to dedicate lands for park purposes,' or for the purpose of aiding in the construction or operating of housing projects," or for recreational purposes." The trustees of the Internal Improvement Fund are authorized to dedicate certain land acquired by the state by virtue of outstanding tax certifi- cates," and under certain circumstances, a conveyance of Murphy Act lands to local governments by said board of 35. Hamilton v Laesch (1938) 134 Fla 591, 184 So 110. 36. Weills v Vero Beach (1928) 96 Fla 818, 119 So 330. Annotation: Estoppel or consent of mortgagee to deny dedication. 63 ALR2d 1160, 1163. 37. Weills v Vero Beach (1928) 96 Fla 818, 119 So 330. 38. 23 Am Jur 2d, DEDICATION § 10. 39. 23 Am Jur 2d, DEDICATION § 15. 4.0. The Division of Forestry and the trustees of the Internal Improve- 8 ment Fund may dedicate lands ac- quired by them for state park pur- poses. FS §§ 589.19, 589.20, 589.26. The Division of Recreation and Parks is authorized and empowered to dedicate and reserve for the use of the public all or any part of the lands acquired by said division for park purposes. FS § 592.073. 41. FS § 422.04(1)(a). 42. FS § 418.02. 43. FS § 197.350(d). 10 Fla Jur DEDICATION § 8 trustees is deemed and considered to be a dedication thereof to public use." Boards of county commissioners are empow- ered by statute to dedicate to public use and purposes any lands to which the county acquires title due to delinquency in payment of county taxes.'s And for the purpose of aiding in the planning, undertaking, or carrying out of a commu- nity redevelopment project and related activities, any public body may, upon such terms, with or without consideration, as it may determine, dedicate any of its interest in any property to a county or municipality," and it may dedicate streets, roads, sidewalks, ways, or other places." § 8. The Grantee. Although as a general rule of conveyances there must be a grantee to effect a transfer of an interest in real property," the existence of an individual or corporate grantee is not essential to the validity of a dedication. The interests of those beneficially entitled to easements or dedications of a public, charitable, or religious character will not be allowed to lapse or fail for want of what is technically called "a person" to take the legal title, the public being an ever - existing grantee capable of taking the dedication." Since the essence of dedication is that it shall be for the use of the public at large,60 the public must be a party to any dedication. There is no such thing as a dedication between the owner and individuals.61 44. FS § 197.395. 45. FS § 197.700(7). 46. FS § 163.400(1)(a). 47. FS § 163.400(1)(f). 48. See 10 Fla Jur, DEEDS. 49. 23 Am Jur 2d, DEDICATION § 16. 50. § 3, supra. 51.23 Am Jur 2d, DEDICATION § 17. See Smith v Miami (1920) 79 Fla 509, 84 So 379, holding that where streets dedicated to the "free use of all purchasers" of lots contained in the dedication plat are used by the public generally, and the city makes expenditures for lights, grading, etc., on the streets, with the consent and acquiescence of abutting lot owners, the lot owners are estopped from denying the right of the city to make sidewalks and other improve- ments in the streets. 9 § 8 DEDICATION 10 Fla Jur A municipality in this state may acquire lands for public purposes by dedication." B. OFFER OF DEDICATION; INTENT To DEDICATE § 9. Generally. To effect a dedication of land to public use, it is essential that there be an offer of dedication by the owner.' The offer to dedicate may be made in a number of ways, such as by the express declaration of the party or by his acts, by a deed,` or by plat." It is well established in this state that no particular words are necessary to constitute an offer of dedication to public use. It is only necessary that such words be employed as will show the grantor's intent." In general, the offer of dedication continues effective until withdrawn by the donor or rejected by the donee.' The intention of the owner to set apart lands or property for the use of the public is the foundation and life of every dedication." There must be an intention by the owner clearly indicated by his words or acts to dedicate the land to the public use.69 52. Palmetto v Katsch (1923) 86 Fla 506, 98 So 352. 53. 23 Am Jur 2d, DEDICATION § 18. 54. § 10, infra. 55. § 11, infra. 56. Seaboard A. L. R. Co. v Dorsey (1932) 111 Fla 22, 149 So 759. Murrell v United States (1959, CA5 Fla) 269 F2d 458, cert den 361 US 962, 4 L Ed 2d 543, 80 S Ct 590. Practice Aids.— General forms of dedication. 7 AM JUR LEGAL FORMS 2d, DEDICATION § 86:21 -27. 57. 23 Am Jur 2d, DEDICATION § 18. As to revocation of offers of dedi- cation, see § 21, infra. 10 58. Palmetto v Katsch (1923) 86 Fla 506, 98 So 352. The only requirement for a com- mon -law dedication is a clearly indi- cated intention on the part of the owner. Mainor v Hobbie (1969, Fla App) 218 So 2d 203, later app 238 So 2d 499. 59. Miami Beach v Miami Beach Im- prov. Co. (1943) 153 Fla 107, 14 So 2d 172. The intention to dedicate should be considered in determining the existence and character of a dedica- tion of land to public use. McG- ourin v De Funiak Springs (1906) 51 Fla 502, 41 So 541. The mere fact that a developer built water and sewer systems under street rights of way which had al- F y r O la n- li- he '1a 38 m- So ild the ca- :G- 06) per der al- 10 Fla Jur DEDICATION §9 The intention , to dedicate land for public use may be expressly manifested or may be implied by some act or course of conduct on the part of the owner.' But whether an express or an implied dedication is relied on, the intention of the owner to set apart the lands for the use of the public is the foundation and essence of every dedication.81 The act of dedication is usually affirmative in character, need not be by formal act or dedication, may be by parol, may result from the conduct of the owner of the lands dedicated, and may be manifested by written grant, affirma- tive acts, or permissive conduct of the dedicator," or in any other appropriate manner in which the owner sees fit to indicate a present intention to appropriate his lands to ready been dedicated does not sup- port a conclusion that the developer intended to dedicate such systems. Zimring- McKenzie Constr. Co. v Pinellas Park (1970, Fla App) 237 So 2d 576. 60.23 Am Jur 2d, DEDICATION § 21. Annotation: Construction or maintenance of sewers, water pipes, or the like, by public authorities in a roadway, street, or alley as indicat- ing dedication or acceptance thereof. 52 ALR2d 263. Practice Aids. —Proof of dedica- tion. 4 AM JUR PROOF OF FACTS 257, 260, DEDICATION, Proof. 61. Miami Beach v Miami Beach Im- prov. Co. (1943) 153 Fla 107, 14 So 2d 172. Pocock v Medley (1956, Fla) 89 So 2d 162. In Burnham v. Davis Islands, Inc. (1956, Fla) 87 So 2d 97, wherein it appeared that developers of a subdi- vision had informed prospective pur- chasers that a certain area on the plat might become part of a golf course, but reserved the right to prescribe the term of any dedication thereafter made or to subdivide the property, and that the golf course operated by the developers was un- der their ownership and control and was only available to the public upon payment of a "greens fee," the court held that even in the absence of the reservation there was not the requisite surrender of the area in question to the public use to consti- tute a dedication, the courts saying that the statement of the developers that the area "might become part of a golf course" amounted to no more than an expression of a future possi- bility, not a present "dedication" to such use. 62. Miami Beach v Miami Beach Im- prov. Co. (1943) 153 Fla 107, 14 So 2d 172. Miami v Jansik (1956, Fla) 89 So 2d 644. Lovey v Escambia County (1962, Fla App) 141 So 2d 761. Mainor v Hobbie (1969, Fla App) 218 So 2d 203, later app 238 So 2d 499. 11 §9 public use. Oral declarations intention one's lands to a public use followed by acts consistent therewith may be sufl'icient.84 § 10. Deeds and Other Written Instruments. A common means of expressing one's purpose or intention to dedicate his lands to the public use is by a written instrument executed for that purpose,' or by a recital in a deed by which the rights of the public are and recognized. hn deed may be made to a designated grantee trust for the public either the fee or an easement, or may be for a designated purpose, without any grantee.' The form of deed, as a quitclaim deed" or a warranty DEDICATION 10 Fla Jur 63. Palmetto v Katsch (1923) 86 Fla 506, 98 So 352, stating that affirma- tive acts of the owner of land, such as throwing it open in a town and fencing and designating streets thereon, may express an intent to dedicate the land. 64. Palmetto v Katsch (1923) 86 Fla 506, 98 So 352. 65. Palmetto v Katsch (1923) 86 Fla 506, 98 So 352. Practice Aids. — Declaration of dedication with plat attached. 7 AM JUR LEGAL FORMS 2d, DEDICA- TION § 86:22. — Declaration of dedication by corporation. 7 AM JUR LEGAL FORMS 2d, DEDICATION § 86:23. — Declaration of dedication by trustee under will. 7 AM JUR LE- GAL FORMS 2d, DEDICATION § 86:24. — Declaration of dedication by two or more landowners. 7 AM JUR LEGAL FORMS 2d, DEDICATION § 86:25. — Resolution of dedication by municipality. 7 AM JUR LEGAL FORMS 2d, DEDICATION § 86:26. 12 — Agreement by dedicator to open street. 7 AM JUR LEGAL FORMS 2d, DEDICATION § 86:81. 66. Palmetto v Katsch (1923) 86 Fla 506, 98 So 352. See 23 Am Jur 2d, DEDICATION § 22. Practice Aids.—Guide for draft- ing instruments of dedication. 7 AM JUR LEGAL FORMS 2d, DEDICA- TION § 86:12. — Checklist of matters to be con- sidered in drafting instruments of dedication. 7 AM JUR LEGAL FORMS 2d, DEDICATION § 86:13. — Covenant to dedicate land. 7 AM JUR LEGAL FORMS 2d, DEDI- CATION § 86:27. — Allegation of offer of dedication of land as public thoroughfare by deed. 8 AM JUR PL & PR FORMS (Rev ed), DEDICATION, Form 5. —Proof of dedication. 4 AM JUR PROOF OF FACTS 257, 260, DEDICA- TION, Proof 1. 67. 23 Am Jur 2d, DEDICATION § 22. 68. Practice Aids. — Quitclaim deed 10 Fla Jur DEDICATION § 11 deed, is not controlling, and use of the word "dedicate" in the deed is not decisive of the character of the conveyance." A written agreement between the owner of land and public officials that a certain strip of land may be used temporarily as a way cannot be construed to be a dedication of the way to public use permanently as a highway in contradiction of the terms of the agreement.70 § 11. Plat or Map. Analogous to dedication by deed, and sometimes merely a variant phase thereof, is the doctrine of dedication by plat or map. Dedication by the filing of a plat or map or showing lots pursuant to a plat or map is a common method of dedicating streets, parks, and other public grounds indicated on the plat or map." It is stated as a general rule that the platting of land and the sale of lots pursuant thereto is an offer of dedication of the streets, alleys, parks, and other places indicated upon the plat for the use of the public." However, where a plat recites dedicating land to city for public use. 7 AM JUR LEGAL FORMS 2d, DEDICATION § 86:21. 69. 23 Am Jur 2d, DEDICATION § 22. 70. Couture v Dade County (1927) 93 Fla 342, 112 So 75. 71. Palmetto v Katsch (1923) 86 Fla 506, 98 So 352. See 23 Am Jur 2d, DEDICATION § 23. Special provision is made for the recording of maps and plats (FS Chap 177), and the form of dedica- tion appearing thereon (FS § 177.06). Practice Aids.— Dedication with plat attached. 7 AM JUR LEGAL FORMS 2d, DEDICATION § 86:22. — Allegation of offer of dedication by designation of street in plat. 8 AM JUR PL & PR FORMS (Rev ed), DEDICATION, Form 6. —Proof of dedication. 4 AM JUR PROOF OF FACTS 257, 260, DEDICA- TION Proof 1. 72. Florida E. C. R. Co. v Worley (1905) 49 Fla 297, 38 So 618. Robinson v Riviera (1946) 157 Fla 194, 25 So 2d 277. Weber v Hollywood (1960, Fla App) 120 So 2d 826. Murrell v United States (1959, CA5 Fla) 269 F2d 458, cert den 361 US 962, 4 L Ed 2d 543, 80 S Ct 590. Where the owners of a tract of land make a plat thereof, laying it out into lots and blocks with inter- vening streets clearly indicated upon the plat, and sell and convey the lots with reference to the plat, they evince an intention to dedicate the streets to public use as such. Mc- 13 § 11 DEDICATION 10 Fla Jur the intention of the subdivider to dedicate the streets and park area to the lot owners, but not to dedicate them to the public, the rule is inapplicable and the intention of the subdivider as thus expressed is controlling." Although early Florida cases declare that the platting of land and sale of lots with reference thereto is a completed dedication of portions of the platted land indicated for Gourin v De Funiak Springs (1906) 51 Fla 502, 41 So 541. Marking a street and park area clearly and unequivocally on a plat, and the sale of lots with reference to such plat, constitutes an offer of dedication. Mumaw v Roberson (1952, Fla) 60 So 2d 741. Where plats purporting to subdi- vide lands into lots, streets, etc., have been filed and recorded, and it is shown that the purpose of the plats was to establish a dedication of a part of the land of a particular person as streets, the record of the plats constitutes a cloud on the title of such individual. North Bay Shore Land Co. v Pollard (1930) 99 Fla 1287, 128 So 809. The filing of a plat by the original owners of the fee showing streets laid out thereon is an offer to dedi- cate, which offer may be accepted by the affected parties at any time prior to its lawful withdrawal by the owners of the fee. Anderson Sv Groveland (1959, Fla App) 2d 569. The recording of a plat is an offer to dedicate the street, and in the absence of public user, the offer of dedication may be revoked at any time before acceptance. West Hia- leah Mfg. Co. v Hialeah (1961, Fla App) 134 So 2d 505. From the filing of a plat marking out streets and park areas, and the sale of the lots thereunder, in addi- 14 tion to the creation as between the subdivider and the lot purchasers, of private rights in the latter for their use of the streets and parks, there may be inferred an offer of public dedication which can be accepted by the municipality by instrument or by maintenance and public user within a reasonable time and prior to revocation. Miami v Eastern Realty Co. (1967, Fla App) 202 So 2d 760. Boyer: Real Property Law. 16 Miami L Rev 139, 163. 73. Miami v Eastern Realty Co. (1967, Fla App) 202 So 2d 760, recogniz- ing that subsequent action of the subdivider may be such as to over- ride such an expression not to dedi- cate to the public, such as throwing such streets and park areas open to the public, acquiescence in the im- provement and maintenance of the facilities by the municipality and the use thereof by the public without objection by the subdivider or his successors or by the lot owners, acceptance of forbearance of the public body to tax the streets and park area, and in general by such action or inaction as to indicate an abandonment of the initial intention not to dedicate to the public, under circumstances from which an offer to so dedicate may reasonably be inferred, and by such actions of the municipality, accepted. sr w 10 Fla Jur DEDICATION § 12 id he he of ed 'or the , of heir sere blic 1 by or user )rior tern So 16 1967, gniz- the over - dedi - mwing en to eim- >f the id the ithout )r his wners, )f the s and r such ate an tention under n offer bly be of the public use," or raises a presumption of dedication,76 it is clear from the later cases that so far as the general public is concerned such action constitutes a mere offer to dedicate which must be accepted to complete the dedication." How- ever, as to the purchasers of lots, the situation is different. They may acquire certain private rights with respect to streets, alleys, parks, and other similar places indicated on a plat," which are not dependent upon acceptance of the dedication by public authorities." A municipal corporation may not, as a condition for approval of a subdivision plat, require the subdivider to dedicate a certain percentage of the area of the proposed subdivision as a park, or in the alternative, pay a sum of money equal in value to a specified monetary percentage of the gross area of the subdivision where the area is too small to serve as a park area.79 § 12. Acquiescence and User. Apart from the specific question of acceptance as predi- cated upon user,80 an intention to dedicate one's lands to public use may be shown by acquiescence of the owner in the use of his property by the public for public purposes.81 A . '1(e (Z-) 74. Winter v Payne (1894) 33 Fla 470, 15 So 211. Price v Stratton (1903) 45 Fla 535, 33 So 644. 75. Porter v Carpenter (1897) 39 Fla 14, 21 So 788. 76. § 15, infra. 77. § 27, infra. 78. § 15, infra. 79. Carlann Shores, Inc. v Gulf Breeze (1966) 26 Fla Supp 94, holding that such an ordinance violated provi- sions of § 1 of the Declaration of Rights, and § 29, Article XVI, of the Florida Constitution. 80. § 18, infra. e 81. Palmetto v Katsch (1923) 86 Fla 506, 98 So 352. In Ocean Nay. Co. v Palm Beach (1934) 114 Fla 48, 152 So 853, which involved a plat dedicating streets shown on the plat and an area marked "Reservation" with fixed boundaries, but had no inscrip- tion with respect to a strip of land between the reserved area and the ocean, an allegation that the com- plainant town had maintained and controlled the strip of land as a public beach for a number of years with the acquiescence of the owner, who paid no taxes thereon, was held not to show dedication of such strip, in view of the definite boundaries of 15 § 12 DEDICATION 10 Fla Jur user which results in a dedication and a user which results in the acquisition of rights by prescription are very similar." only where A dedication by use for public pis urposes occurs wledge and it clearly appears that the use of the owner, or without his objection, and under such circumstances as fairly to Safe rise uchtusep� The mere that the owner intended to dedic user by the public, without the consent n to dedicate," of the land, does not show an intention the reserved area dedicated and of the nature and location of the strip of land in question. However, other allegations that there was a manifest intention of the owners of such strip to dedicate the strip to the public, and that the owners and their suc- cessors had acquiesced and con- sented in use of the lands by the public for public bathing and park purposes and had consented to the control and regulation of the land by the town, were held sufficient to permit evidence of an implied dedi- cation. Practice Aids.— Allegation of offer of dedication and acceptance — public user. 8 AM JUR PL & PR FORMS (Rev ed), DEDICATION, Form 3. — Answer —offer of dedication and acceptance — public user for pre- scriptive period. 8 AM JUR PL & PR FORMS (Rev ed), DEDICATION, Form 10. 82. 23 Am Jur 2d, DEDICATION § 28. 83. Palmetto v Katsch (1923) 86 Fla 506, 98 So 352. The acquisition of a road ease- ment by dedication is not dependent upon an adverse and hostile user as defined in the law of prescription and adverse possession; on the con- trary, tit1E by dedication presupposes a use consistent with the dedicator's interest, not one adverse or hostile to it. Lovey v Escambia County (1962, Fla App) 141 So 2d 761. Annotation: Dedication of foot- way by permissive use. 7 ALR 125. —Use by public of land between street line and building, as showing dedication. 7 ALR 727. —Right of public to use alley. 58 ALR 239. Practice Aids. — Allegation of offer of dedication by developing road and opening for public use. 8 AM JUR PL & PR FORMS (Rev ed), DEDICATION, Form 4. —Proof of dedication. 4 AM JUR PROOF OF FACTS 257, 260, DEDICA- TION, Proof 1. 84. Miller v Bay -to -Gulf, Inc. (1940) 141 Fla 452, 193 So 425. Evidence that lands allegedly ded- icated as a street were part of a low, marshy basin, were always damp or covered with water during the rainy season, had never been platted, were vacant and unoccupied, could only be used by the public as a road during dry weather, and were only used by the public intermittently, without the permission of the land- owners, has been held not to indi- cate an intention on the part of the defendants to dedicate the land for the public use. Palmetto v Katsch (1923) 86 Fla 506, 98 So 352. 1 r n ie 84 ity ot- 5. yen ing 58 of ping e. 8 ed), JUR )ICA- 1940) ded- I low, np or rainy , were 1 only road e only ;tently, Land- o indi- of the tnd for Katsch 10 Fla Jur DEDICATION § 13 even though the user may be for an extended period86 or long continued.88 The character of the user necessary to establish a dedication must be adverse to, and exclusive of, the use and enjoyment of the property by the proprietors.87 § 13. Terms, Reservations, and Limitations. A dedicator may prescribe the terms, restrictions, and limitations on which the land is given.88 However, they must not be inconsistent with, or repugnant to, the gift, and should be reasonable. Conditions repugnant to the grant have been declared void so that the grant would be a full and unrestricted operation.88 Where a city built a street on property owned by a school district and maintained the street for use by the public for a number of years, the street was held not acquired as a public street by dedication so as to prevent the school district from closing the street and constructing a school building thereon. Madison v Board of Public Instruction (1954, Fla) 72 So 2d 913. 85. Miami Beach v Miami Beach Im- prov. Co. (1943) 153 Fla 107, 14 So 2d 172. As to length of user, see 23 Am Jur 2d, DEDICATION § 30. 86. Mere user by the public, although long continued, should be regarded as a license only, revocable at the pleasure of the owner, where it does not appear that any public or pri- vate interests have been acquired upon the faith of the supposed dedi- cation, which would be materially impaired if the dedication were re- voked. Palmetto v Katsch (1923) 86 Fla 506, 98 So 352. 87.23 Am Jur 2d, DEDICATION § 29. 88. A reservation of land does not necessarily preclude a dedicatory in- tention. Broward County v Lerer (1967, Fla App) 203 So 2d 672. Practice Aids. —Forms of condi- tions and reservations upon a dedi- cation. 7 AM JUR LEGAL FORMS 2d, DEDICATION §§ 86:51 - 86:60. — Complaint for forfeiture of rights under and cancellation of deed of dedication where property was not devoted to use made a condition of dedication. 8 AM JUR PL & PR FORMS (Rev ed), DEDICA- TION, Form 2. 89. 23 Am Jur 2d, DEDICATION § 37. As to the validity of a condition that remaining property of the dedi- cator shall not be subject to assess- ments, see 23 Am Jur 2d, DEDICA- TION § 40. As to conditions and limitations concerning use of land dedicated for streets, generally, see 23 Am Jur 2d, DEDICATION § 38. As to whether property on a plat has been dedicated or reserved from dedication, see § 26, infra. Annotation: Continued use of property for cemetery, as condition subsequent of dedication of land for that purpose. 47 ALR 1174, 1183. 17 § 13 DEDICATION 10 Fla Jur It is well settled that dedication of property favor the of bhe use may be made subject to reservatio rie dedicator, and that in such cases the nsisbent with the ded'ca� provided the reservation is not in tion s° A reservation in a dedication of a street the 1 fee and the exclusive right or easement in the dedicator Y railroad tracks, street railway tracks, and all other public utilities in h the street is not void as against public policy. Howe snot a reservation, without any words of perpetual in nature, but exists only for the duration h of the joint lives of the grantors, does not merely except or take out creates a new thing an something from the grantors' rantors former reserve all private riparian A dedicator of lands may rights that are appurtenant to the land," including riparian rights appurtenant to land encumbered by a dedicated easement." Where the dedicator expressly reserves riparian 90. A reservation to a dedicator of a strip of land between a lake and the dedicated highway is not inconsist- ent with or repugnant to the dedica- tion of the highway, and a reserva- tion of an oval - shaped area in the center of a street is not inconsistent with the dedication of the street to the public. Powers v Scobie (1952, Fla) 60 So 2d 738. Practice Aids.— Answer that con- dition in document of dedication is void as inconsistent with dedication. 8 AM JUR PL & PR FORMS (Rev ed), DEDICATION, Form 14. 91. Jacksonville v Shaffer (1932) 107 Fla 367, 144 So 888. Annotation: Reservation of right of way for railroad or street railway in dedicating property for highway. 43 ALR 766, 131 ALR 1472. — Validity and effect of restric- tions or reservations in dedication of 18 property, in respect of right to oper- ate public utilities. 58 ALR 854. 92. Burkart v Ft. Lauderdale (1964, Fla) 168 So 2d 65. Where in a dedication plat show- ing the word "Park" upon a strip of land the dedicators expressly re- served all "riparian rig adjacent to such strip," the easement for public park purposes does not in- clude accretions or other riparian rights expressly reserved and ex- tends only to a line just above the high -water mark at the date of the filing of the dedication plat. Miami v Florida E. C. R. Co. (1920) 79 Fla 539, 84 So 726. As to riparian rights and accre- tion generally, see § 28, infra. Practice Aids. — Reservation of ri- parian rights. 7 AM JUR LEGAL FORMS 2d, DEDICATION § 86:60. 93. Feig v Graves (1958, Fla App) 100 So 2d 192. ur ►lic the ca- the Dad in uch not the tion out Irian trian sated Irian oper- 4. (1964, show - ;trip of ;ly re- djacent :nt for not in- iparian nd ex- ove the : of the Miami ) 79 Fla 1 accre- on of ri- LEGAL 6:60. kpp) 100 10 Fla Jur DEDICATION § 14 rights, accretions belong to the dedicator.' C. ACCEPTANCE § 14. Generally; Necessity. The acceptance of a dedication, or what may be more accurately called an offer of dedication, has many of the incidents of the acceptance of a contract and of a deed. It is the act of acceptance which makes the dedication complete." In fact, in order to effect a complete dedication, there must be acceptance of the dedication in some form or other by or on behalf of the public," before the offer of dedication is revoked or withdrawn.' The acceptance, like the offer to dedicate, may be either express or implied." It may be express or formal as in the case of a resolution of acceptance by the appropriate public authorities," or implied from the actual use of the premises 94. Burkart v Ft. Lauderdale (1964, Fla) 168 So 2d 65. 95. 23 Am Jur 2d, DEDICATION § 41. 96. Kirkland v Tampa (1918) 75 Fla 271, 78 So 17. Miami v Florida E. C. R. Co. (1920) 79 Fla 539, 84 So 726. Brooks - Garrison Hotel Corp. v Sara Invest. Co. (1952, Fla) 61 So 2d 913. There must be a showing of a formal acceptance of an offer to dedicate land for public use or an acceptance by public user before it can be said that land so offered for dedication has actually been ac- cepted. Board of County Comrs. v F. A. Sebring Realty Co. (1953, Fla) 63 So 2d 256. A dedication is inherently incapa- ble of being finally accomplished by the grantor alone without accept- ance on the part of the public or its authorized officers. Frumkes v Boyer (1958, Fla) 101 So 2d 387. 97. Indian Rocks Beach South Shore, Inc. v Ewell (1952, Fla) 59 So 2d 647, 32 ALR2d 940. Anderson v Groveland (1959, Fla App) 113 So 2d 569. 98. Miami v Florida E. C. R. Co. (1920) 79 Fla 539, 84 So 726. Practice Aids. —Proof of accept- ance of an offer of dedication. 4 AM JUR PROOF OF FACTS 257, 275, DEDICATION. —Form drafting guide and check- list of matters to be considered in drafting an acceptance of dedication of land. 7 AM JUR LEGAL FORMS 2d, DEDICATION §§ 86 :92, 86:93. —Forms for acceptance of an offer of dedication. 7 AM JUR LE- GAL FORMS 2d, DEDICATION §§ 86:94 - 86:99. 99. § 17, infra. 19 § 14 DEDICATION 10 Fla Jur by the public.' Formal or written acceptance is not neces- sary.' An acceptance is not presumed, but must be clearly proved.' § 15. — Dedications by Plat. so It is well settled in this jurisdiction that nd t r as setting public is concerned, the platting of lands apart of a portion thereof for public use do of not in ldnof themselves constitute a complete dedication for public purposes. Such action constitutes, at most, a mere offer to dedicate the lands invol ved before revocation of the offer in order to complete the offer the n dedication.' It has been held, however, that until is wilfully dedication created by the filing of the plat withdrawn by the owners, the streets designated on the plats remain public streets.' 1. § 18, infra. 2. Anderson v Groveland (1959, Fla App) 113 So 2d 569. 3. § 23, infra. 4. Kirkland v Tampa (1918) 75 Fla 271, 78 So 17. Robinson v Riviera (1946) 157 Fla 194, 25 So 2d 277. Indian Rocks Beach South So 2d Inc. v Ewell (1952, Fla) 647, 32 ALR2d 940. Laube v Stuart (1958, Fla App) 107 So 2d 757. Walton v Clermont (1959, Fla App) 109 So 2d 403. Anderson v Groveland (1959, Fla App) 113 So 2d 569. (1965, Sebolt v State 2d 590. Dept. Fla App) 17 Where a municipality has not ac- cepted an offer to dedicate a street on a plat, the municipality cannot enforce private rights vesting in pur- 20 chasers of the lots of the plat. Crys- tal River v Williams (1952, Fla) 61 So 2d 382. Annotation: Construction of regu- lations as to subdivision maps or plats with respect to question of acceptance of dedication. 11 ALR2d 524, 567. Practice Aids. —Proof of accept- ance. 4 AM JUR PROOF OF FACTS 257, 275, DEDICATION, Proof 2. 5. Anderson v Groveland (1959, Fla App) 113 So 2d 569. But when neither the public nor any governmental unit has accepted an offer of dedication of a street, land to be used for a public in fact both the city and county disclaimed any interest in the land, no public rights attach to such land. Brooks - Garrison Hotel Corp. v Sara Invest. Co. (1952, Fla) 61 So 2d 913. 10 Fla Jur DEDICATION § 16 A public body ordinarily is not required to pave the streets to their full or partial width shown on the plats until the necessity for paving arises, in order to show acceptance.° As between a grantor who has conveyed lots according to a plat, and the purchasers or grantees, there is a so- called dedication of the public places delineated upon the plat' in the sense that the purchasers or grantees have the right to keep such places open for the uses indicated on the plat designation, even though there has been no public accept- ance.° But until the public in some proper way accepts a dedication thus indicated, the rights of parties who purchase with reference to a plat are strictly private rights, which, as against particular purchasers as distinct from the general public, might be lost or extinguished by adverse possession, estoppel, ejectment, or otherwise.° § 16. Who May Accept. It is said that the acceptance must be by the proper public 6. Anderson v Groveland (1959, Fla App) 113 So 2d 569. 7. Miami v Florida E. C. R. Co. (1920) 79 Fla 539, 84 So 726. Murrell v United States (1959, CA5 Fla) 269 F2d 458, cert den 361 US 962, 4 L Ed 2d 543, 80 S Ct 590. The word "dedication" is used very loosely, since the essence of dedication is that it shall be for the use of the public at large, so that, properly speaking, there can be no dedication to private uses. § 2, su- pra. 8. Spencer v Wiegert (1959, Fla App) 117 So 2d 221. Murrell v United States (1959, CA5 Fla) 269 F2d 458, cert den 361 US 962, 4 L Ed 2d 543, 80 S Ct 590. Even though the public authori- ties have never formally evinced an intention to accept a dedication, the right of purchasers of lots according to a plat to insist that streets and parks indicated on the plat be kept open has been recognized. Florida E. C. R. Co. v Worley (1905) 49 Fla 297, 38 So 618. An acceptance of a dedication of a park by or for the public is not essential to give private rights to purchasers of lots who buy with reference to the dedicating plat which shows a dedicated park. Mi- ami v Florida E. C. R. Co. (1920) 79 Fla 539, 84 So 726. The rights of an adjoining lot owner to have a dedicated place kept open for his convenience is not dependent on acceptance of the ded- ication by the public. Roe v Ken- drick (1941) 146 Fla 119, 200 So 394. As to rights acquired under plats, generally, see § 27, infra. 9. Price v Stratton (1903) 45 Fla 535, 33 So 644. 21 § 16 DEDICATION 10 Fla Jur authorities —that is, by persons competent to act for the public.'° County commissioners, as chief administrative offi- cers for the county, may properly accept an offer to dedicate lands for public parks," or public reference to $a The mere recorded purchase by individuals of lots with plat showing a dedication for a park is not an acceptance of the dedication for the city or for the public.19 § 17. Acts or Declarations Constituting an Acceptance. Acceptance of a dedication may be evidenced by a resolu- tion14 or order of any proper official body,16 the ordinance of a municipality,18 the vote of a town council, or any other formal action by the proper authorities." is not owever, y absence of statute, formal acceptance p nce essential to fix the public right property s on the part of public Ac- ceptance may be implied from any acts authorities showing an intention to accept.I" 10. 23 Am Jur 2d, DEDICATION § 45. Practice Aids.—Certificate of ac- ceptance pursuant to resolution by city governing body. 7 AM JUR LEGAL FORMS 2d, DEDICATION § 86:97. —Order of acceptance by county superintendent of highways. 7 AM JUR LEGAL FORMS 2d, DEDICA- TION § 86:98. 11. Duval County v Bancroft (1928) 96 Fla 128, 117 So 799. 12. Pasco County v Johnson (1953, Fla) 67 So 2d 639. 13. Miami v Florida E. C. R. Co. (1920) 79 Fla 539, 84 So 726. 14. Acceptance may be made by for- mal resolution, by public user, or by acts clearly indicating acceptance. Sebolt v State Road Dept. (1965, Fla App) 176 So 2d 590. Practice Aids. — Resolution of ac- ceptance by city. 7 AM JUR LEGAL 22 FORMS 2d, DEDICATION §§ 86:94- 86:96. — Certificate of acceptance pursu- ant to resolution by city governing body. 7 AM JUR LEGAL FORMS 2d, DEDICATION § 86:97. 15. Practice Aids. —Order of accept- ance of dedication by county super- intendent of highways. 7 AM JUR LEGAL FORMS 2d, DEDICATION § 86:98. 16. Practice Aids.— Allegation of ac- ceptance of offer of dedication by ordinance. 8 AM JUR PL & PR FORMS (Rev ed), DEDICATION, Form 7. 17. 23 Am Jur 2d, DEDICATION § 50. 18. Sebolt v State Road Dept. (1965, Fla App) 176 So 2d 590, holding that the State Road Department's act of surveying and installing right - of -way markers on a highway dedi- cated to public use was clearly an acceptance of the dedication. Waterman v Smith (1957, Fla) 94 he fi- tte :re ed of lu- of her the ttly �C- 3liC ):94– irsu- ning s 2d, cept- uper - JUR TION 4" ac- e by t. PR TION, 50. (1965, aiding nent's right - dedi - rly an la) 94 10 Fla Jur DEDICATION § 17 The dedication of a street by a deed to a municipality may be accepted by acceptance of the instrument.1e Also, the announcement of a municipality of its intention to open a street constitutes an acceptance of a dedication of the street.° Acceptance of an offer to dedicate streets, alleys, parks, or other places designated on a plat for public use may be by formal resolution of the proper authorities.' However, a certificate of approval obtained from the county, town, or municipality as required by statute as a prerequisite to the recording of a map or plat does not constitute a formal acceptance of an offer to dedicate.' And approval of subdivi- So 2d 186, holding that an alley was accepted by the paving thereof by the city and by public user. An expressed purpose or intention to dedicate land to a public use is in reality only an offer to dedicate and requires an acceptance by the pub - lic, though such acceptance need not be by formal act of the public au- thority but may be implied from the latter's improving or repairing the same, or from any other act with respect to the subject matter that clearly indicates an acceptance. Smith v Melbourne (1968, Fla App) 211 So 2d 66, where it was further stated that there can be an accept- ance of the full width of the prop- erty offered for dedication without improving or repairing the entire amount offered. See 23 Am Jur 2d, DEDICATION § 50. Annotation: Construction or maintenance of sewers, water pipes, or the like, by public authorities in a roadway, street, or alley, as indicat- ing dedication or acceptance thereof. 52 ALR2d 263. Practice Aids. —Proof of accept- ance. 4 AM JUR PROOF OF FACTS 257, 275, DEDICATION, Proof 2. 19. Earle v McCarty (1954, Fla) 70 So 2d 314. 20. Kirkland v Tampa (1918) 75 Fla 271, 78 So 17. 21. Kirkland v Tampa (1918) 75 Fla 271, 78 So 17. Miami v Florida E. C. R. Co. (1920) 79 Fla 539, 84 So 726. Robinson v Riviera (1946) 157 Fla 194, 25 So 2d 277. But the application of a tract owner to a board of aldermen to vacate a street running through the subdivision and the passing of the ordinance by the board declaring that the street be vacated is not evidence of an acceptance of the offer of dedication of the street, inasmuch as the application of the landowner to vacate the street con- stitutes a withdrawal of his unac- cepted offer of dedication. Twenty - Third Street Realty Corp. v Miami Beach (1939) 140 Fla 257, 191 So 464. 22. Board of County Comrs. v F.A. Sebring Realty Co. (1953, Fla) 63 So 2d 256. Miami v Blair (1962, Fla App) 147 So 2d 331. 23 § 17 DEDICATION 10 Fla 1 r._ sion plans and plats by planning commissions does not consti- tute or effect an acceptance of the dedication of any street or any other ground shown upon the plat, the authority to accept dedications of land being exercisable exclusively by the governing body to which the dedication is deemed to be made, and such authority cannot be delegated.' § 18. Public User. An acceptance of an offer to dedicate land for a public use may be implied from actual use of the land by the public.` This rule would apply to an offer of dedication of streets, alleys, and parks appearing on a plat.' There is no established standard by which the use neces- sary to determine an acceptance by the public may be measured and declared to be sufficient; sufficiency of the user depends on the circumstances of each case." Where the Ops Atty Gen: Acceptance of county roads. [1959 -1960] Atty Gen Rep 199. 23. FS § 163.265(3). 24. United States v 936.71 Acres of Land (1969, CAS Fla) 418 F2d 551. Where a landowner offered to dedicate a strip of his land to a railroad for the purpose of a rail- road station and the railroad took charge of the land and commenced the construction of its passenger station in the presence of the land- owner and without his objection, the fact that the landowner never re- ceived any formal notice of accept- ance of his tender is immaterial, since the above acts of the railroad served every purpose of a notice of acceptance. Seaboard A. L. R. Co. v Dorsey (1932) 111 Fla 22, 149 So 759. See 23 Am Jur 2d, DEDICATION § 52. Practice Aids.— Allegation of ac- 24 ceptance by public user of land as public way for less than prescriptive period. 8 AM JUR PL & PR FORMS (Rev ed), DEDICATION, Form 8. — Answer —offer of dedication and acceptance by public of land platted as public way — public user for prescriptive period. 8 AM JUR PL & PR FORMS (Rev ed), DEDICA- TION, Form 10. —Proof of acceptance. 4 AM JUR PROOF OF FACTS 257, 275, DEDICA- TION, Proof 2. 25. Kirkland v Tampa (1918) 75 Fla 271, 78 So 17. Robinson v Riviera (1946) 157 Fla 194, 25 So 2d 277. Waterman v Smith (1957, Fla) 94 So 2d 186. 26. 23 Am Jur 2d, DEDICATION § 53. As to the length of time user must continue, see 23 Am Jur 2d, DEDICATION § 54. 4 e e e re iS )n id er JR A- JR :A- 1a Fla 94 3. iser 2d, 10 Fla Jur DEDICATION § 18 evidence as to whether there had been an acceptance of a dedication by public user prior to attempted revocation of the offer of dedication is conflicting, the question is one for the jury under appropriate instructions.' Of course, the fact that land which was subject to an offer of dedication was not used by the public may be considered as evidence that there never had been an acceptance.' Roads constructed by the state, counties, or municipalities and maintained by such authorities for a certain period of time are deemed to be dedicated to the public." When an 27. Miami Beach v Undercliff Realty & Invest. Co. (1945) 155 Fla 805, 21 So 2d 783. 28. Where there was some evidence of an old road and trail some time prior to the subdivision of a tract, but no road or trail existed after the tract was subdivided and the lots sold, and trees and shrubs covered the property, including a street and park area marked on the plat, it was held that there was no clear and unequivocal showing of an accept- ance of the offer of dedication. Mu- maw v Roberson (1952, Fla) 60 So 2d 741. The possession and improvement over a period of years by private parties of land which was the sub- ject of an offer to dedicate for use as a public street, such possession be- ing without protest or interference by the town, has been considered as showing that there had never been a formal dedication or a public user. Crystal River v Williams (1952, Fla) 61 So 2d 382. An assertion of a municipality that certain streets in a subdivision had been dedicated to the public by a plat has been held without merit where there was no formal or record acceptance of the streets and the alleged streets had been abandoned and had grown up in weeds, bushes, and undergrowth. State Road Dept. v Bender (1941) 147 Fla 15, 2 So 2d 298. 29. FS § 337.31. State Dept. of Transp. v Florida East Coast R. Co. (1972, Fla App) 262 So 2d 480, stating that title acquired by the state or a county or city by FS § 337.31 is not acquired by adverse possession, but by a dedi- cation, conclusively presumed by law. FS § 337.31 operates as a statute of repose with respect to the rights of way of roads or portions thereof theretofore constructed by the coun- ties and State Road Department and which are being used. State Road Dept. v Lewis (1964, Fla) 170 So 2d 817. FS § 337.31 is not a statute of prescription for adverse possession, but its purpose is to operate as a statute of repose with respect to the rights of way of roads or portions thereof that have been constructed by road - building authorities of the several counties of the state under circumstances of irregularity in ac- quirement of a title to the rights of way wherever existing roads have been constructed and are being used. Lovey v Escambia County (1962, Fla App) 141 So 2d 761. 25 § 18 DEDICATION 10 Fla Jur offer to dedicate a road is made, a series of acts, over a period of time, which will develop or construct a road adequate to serve the needs of the community may be sufficient to constitute a construction in this sense.90 Ancient dedications of land to municipalities for park purposes for a period of 30 years or more may not be disturbed or challenged by the original dedicator, his heirs or assigns, or any other person, in cases where the lands have been put to some municipal use during the period of dedication and /or have been conveyed by the municipality for a period of at least 7 years by a deed recorded in the public records for that period of time." Dedications of lands to municipalities, town councils, or commissions for park purposes and such lands having been put to some municipal use, the dedication accepted by written instrument, or by acts constituting acceptance, and such municipality, town council, or commission, heretofore or hereafter, vacates such park, and the ordinance or resolu- tion vacating such park recites that the municipality is surrendering all of its right, title, and interest in and to the dedicated land, the fee simple title thereto shall not, except in cases of fraud, be disturbed or challenged in any legal proceedings by any persona The statute is not invalid as alter- ing materially the law of adverse possession. Bridgehead Land Co. v Hale (1940) 145 Fla 389, 199 So 361. It was said of a former act of this nature that it was not intended to divest public bodies, such as drain- age districts, of any existing right they might have in rights of way and drainage works which were ac- quired and held for drainage pur- poses in accordance with law. Palm Beach County v South Florida Con- servancy Dist. (1936) 126 Fla 170, 170 So 630. For a general discussion of this statute and of the acquisition of 26 roads and highways by dedication, see 16 Fla Jur, HIGHWAYS, STREETS, AND BRIDGES § 50. 30. Pasco County v Johnson (1953, Fla) 67 So 2d 639, holding that when a county accepts a road as laid out by the owner or which is offered to be dedicated by the owner in the raw, and then goes in and cleans up the brush, stumps, and trees, and fills up the holes and ruts of such road so that the same can be usable, such activities on the part of the county constitute a construction. 31. FS § 95.36(1). 32. FS § 95.36(2). 10 Fla Jur DEDICATION § 20 § 19. Partial or Qualified Acceptance. A highway or street may be accepted in part and the remainder rejected if it is proved that such was the intention of the public authorities." Also, the acceptance of a part of a highway or street may constitute an acceptance of the whole.' The acceptance of some of the streets of a platted subdivi- sion constitutes an acceptance of the offer to dedicate the entire system of streets appearing on the plat, in the absence of a showing of an intention to limit the acceptance." A qualification of acceptance with respect to streets ap- pearing on a plat has been held not to affect the acceptance of parks contained in the same dedication." § 20. Time of Acceptance. While an acceptance may dedicate,' acceptance need no 33. 23 Am Jur 2d, DEDICATION § 46. Practice Aids.— Resolution of partial acceptance of streets dedi- cated in subdivision, and acceptance of certain streets conditioned upon improvements by the dedicator. 7 AM JUR LEGAL FORMS 2d, DEDI- CATION § 86:96. 34.23 Am Jur 2d, DEDICATION § 46. 35. Laube v Stuart (1958, Fla App) 107 So 2d 757. Walton v Clermont (1959, Fla App) 109 So 2d 403. Roberts v Jupiter (1961, Fla App) 136 So 2d 233. United States v 936.71 Acres of Land (1969, CA5 Fla) 418 F2d 551. A county which accepted the ded- ication of a system of streets appear- ing on a recorded plat of a subdivi- sion, by opening up and paving a principal avenue appearing on the follow at once the offer to t immediately follow the offer plat, is not estopped to claim accept- ance of the dedication of one of the subordinate streets because of the long delay in improving such street, where all the circumstances were known or should have been known by the parties involved and the par- ties were not wilfully, culpably, or negligently caused to believe in the existence of a state of things by which they were induced to act so as to change their position to their injury. Indian Rocks Beach South Shore, Inc. v Ewell (1952, Fla) 59 So 2d 647, 32 ALR2d 940. Annotation: Acceptance of some of streets, alleys, and the like ap- pearing on plat as acceptance of dedication of all. 32 ALR2d 953. 36. Duval County v Bancroft (1928) 96 Fla 128, 117 So 799. 37. 23 Am Jur 2d, DEDICATION § 49. 27 § Z0 DEDICATION 10 Fla Jur within a reasonable to dedicate. Acceptance may be made as the convenience time, but before withdrawal of the of the public or those who live upon adjacent lots requires.9° What is a reasonable length of time for he circumstances of offer of dedication would depen d on the particular case.'° D. REVOCATION OF OFFER; ESTOPPEL To ASSERT DEDICATION § 21. Revocation of Offer. An offer to dedicate land to public may accepted by the the dedicator at any time before it has been public." And the grantee of a dedicator may revoke the proffered dedication prior to its acceptance.42 However, it 38. Miami v Florida E. C. R. Co. (1920) 79 Fla 539, 84 So 726. 39. Kirkland v Tampa (1918) 75 Fla 271, 78 So 17. Miami Beach v Miami Beach Im- prov. Co. (1943) 153 Fla 107, 14 So 2d 172. Annotation: Time for acceptance of dedication. 66 ALR 321. 40. Miami v Florida E C. R. Co. (1920) 79 Fla 539, 84 So 726. When a municipality acts promptly upon the first visible en- croachment upon a "street" as indi- cated upon a recorded plat, and there has been no withdrawal of the dedication, no laches appears, even though the streets had not been formally accepted and the plat had been recorded about 25 years. Gainesville v Thomas (1911) 61 Fla 538, 54 So 780. Waterman v Smith (1957, Fla) 94 So 2d 186, where the offer was made in 1886, and a portion of the alleys so offered was paved in 1929. 28 41. Kirkland v Tampa (1918) 75 Fla 271, 78 So 17. Miami v Florida E. C. R. Co. (1920) 79 Fla 539, 84 So 726. Anderson v Groveland (1959, Fla App) 113 So 2d 569. West Hialeah Mfg. Co. v Hialeah (1961, Fla App) 134 So 2d 505. See 23 Am Jur 2d, DEDICATION §§ 35, 36. Survey of real property law —A marriage of convenience: Easement and dedication. 16 Miami L Rev 156. Practice Aids. --Form drafting guide for revocation of offer of dedi- cation. 7 AM JUR LEGAL FORMS 2d, DEDICATION § 86:112. — Notice of revocation of offer of dedication. 7 AM JUR LEGAL FORMS 2d, DEDICATION § 86:113. 42. Miami v Florida E. C. R. Co. (1920) 79 Fla 539, 84 So 726. Brooks- Garrison Hotel Corp. v Sara Invest. Co. (1952, Fla) 61 So 2d 913. 10 Fla Jur DEDICATION § 21 appears that in certain instances the dedicator or his succes- sor cannot revoke an offer of dedication of streets in a subdivision prior to acceptance by the public without the consent of private owners having an interest in the subdivi- sion." After a common -law dedication is once accepted by the public it is irrevocable except with the consent of the public and of those persons who have vested rights in such dedica- tion." An attempted revocation after the dedication has been accepted is ineffective.' A common -law plat has no effect as a conveyance, and an offer to dedicate certain lands designated on the plat for public use may be revoked by the owner or his grantee at any time before acceptance by the public." In such event the unencumbered fee to a street so offered to be dedicated will t a a N A nt ev rig li- ,�s of AL West Hialeah Mfg. Co. v Hialeah (1961, Fla App) 134 So 2d 505. See 13 Fla Jur, EVIDENCE. Annotation: Revocation or with- drawal of dedication by grantees or successors in interest of dedicator. 86 ALR2d 860. 43. Some authorities appear to make a distinction between the rights of a dedicator or his successor to revoke an offer of dedication insofar as the general public is concerned, prior to acceptance by proper authorities, and such right to revoke as against purchasers of lots in the platted subdivision. Except in such cases where there may be some element of estoppel, adverse possession, or other similar ground raised, it would appear that there is such a blending of public right resulting from an offer of dedication with private rights growing out of an implied covenant, implied grant, or estoppel of the dedicator, and that in either instance the dedicator or his succes- sor cannot legally revoke an offer of :o. Ira 2d dedication as against the public or owners in such subdivision as to any of the platted public streets without the consent of any such owner af- fected. The grantee of any such right has the right to insist that such offer of dedication be held open for acceptance by the proper public authority and that such offer cannot be revoked without such par- ty's consent. Weber v Hollywood (1960, Fla App) 120 So 2d 826. 44. Miami v Florida E. C. R. Co. (1920) 79 Fla 539, 84 So 726. Mainor v Hobbie (1969, Fla App) 218 So 2d 203, later app 238 So 2d 499. 45. Indian Rocks Beach South Shore, Inc. v Ewell (1952, Fla) 59 So 2d 647, 32 ALR2d 940. 46. Miami v Florida E. C. R. Co. (1920) 79 Fla 539, 84 So 726. Anderson v Groveland (1959, Fla App) 113 So 2d 569. Weber v Hollywood (1960, Fla App) 120 So 2d 826. 29 § 21 DEDICATION 10 Fla Jur be vested in the owner with full power to sell or dispose ers of the land in any lawful manned plat acquire certain private lots sold with reference to P appearing rights in streets, alleys, parks, revoked" and places affected on the plat,' which cannot be revoked by a revocation of an offer to dedicate t d land to more than In the case of a conveyance of platted one purchaser before the public has accepted an offer of all the grantees may be necessary, dedication, revocation by one not being sufficient." an attempted revocation by What constitutes a revocation of an offer d is usually to depends largely upon the circumstances nets inconsistent question of fact, and it may be shown by with the public use to which the land is or tosibe dedicated, as by conveyance of the property, by erecting the land so as to exclude the public edicat d asya street.g buildings on the land offered to b accepted, an application to a board of aldermen to vacate the street allegedly dedicated has been con- strued as a withdrawal of the offer of dedication. Twenty-Third Street Realty Corp. v Miami Beach (1939) 140 Fla 257, 191 So 464. Where the sellers of l re- serving in each deed language serving a strip of ground of a certain width along section and quarter -sec- tion lines to be used as one -half of a right of way for a public road, and there had never been any use made of the reservation by the public, such reservations were but offers to dedicate said strips for road pur- poses and the seller's petition to close the road effectively withdrew County the offer of dedication. Lak a County Sales, (1964) 23 Fla Supp 28. Where a mortgagor, without the consent of the mortgage makes an 47. Anderson v Groveland (1959, Fla App) 113 So 2d 569. 48. § 27, infra. 49. Smith v Horn (1915) 70 Fla 484, 70 So 435. New Ft. Pierce Hotel Co. Phoenix Fla Tax Title Corp. 171 So 525. 50. A revocation of a proffered dedica- tion of a park does not destroy the private rights of owners of lots who have already bought with reference to a plat showing the dedicated park. Miami v Florida E. C. R. Co. (1920) 79 Fla 539, 84 So 726. 51. Kirkland v Tampa (1918) 75 Fla 271, 78 So 17. Annotation: Revocation or with- drawal of dedication by grantees or successors in interest of dedicator. 86 ALR2d 860. 52. Miami v Florida E. C. R. Co. (1920) 79 Fla 539, 84 So 726. Where a dedication had not been. 30 1 Fla Jur spose of asers of private Dearing .ffected e than 1'er of .ssary, licate lly a stent o be )sing sting :et." )oard ; treet con - offer treet 939) had re- 'ain ;ec- )f a and ;de ic, to ir- to w ty e 10 Fla Jur DEDICATION � 22 However, it has been held that a transfer in the subdivision, including the streets, does the a property itself amount to revocation unless the intent to a so is of clearly expressed therein so that the public officials do so s put on notice of the withdrawal of the offer of ded catid 5s Actual occupancy of the premises involved by the a or his grantee before public acceptance revocation.' ceptance ma y operate as a The burden of proving a revocation of an offer of dedica- tion is upon the person asserting it and revocation must appear clearly and conclusively." on must § 22. Estoppel To Assert Dedication. An estoppel to assert that certain ro p ert may arise from the circumstances fa p was dedicated Where an offer of dedication and acceptance s s show case. fact that taxing authorities continue to levy and collect own, the on the property, together with other circumstances, taxes estop the public from claiming the land under dedication." may However, there is authority to the effect that ere levying and collecting of taxes on land will not estop mere public from claiming it for a public ❑ estop the tion.67 purpose under a dedica- In case of a doubtful dedication of a public street by plats, easement will not be declared in favor of one who has offer of dedication, foreclosure of the mortgage would revoke the deli- cumstances, such as destruction of cation. § 6, supra. the road by a tropical hurricane, 53. Weber v failure to restore the road, and a Hollywood (1960, Fla App) 120 So 2d 826. sale of part of the has property by the y� been held to estop the city S4, Miami v Florida E. C. R. Co from claiming that it had accepted (1920) 79 Fla 539, 84 So 726. the dedication. Miami Beach v Un- 55. § 23, infra. dercliff Realty & Invest. Co (1945) 155 Fla 805, 21 So 2d 783. 56. Assuming that a municipality had accepted an offer of dedication of a 57. Laube v Stuart (1958, Fla App) street, the fact that the city had 107 So 2d 757. levied and collected taxes on the property, together with other cir- § 20. See 23 Ain Jur 2d, DEDICATION § 22 DEDICATION 10 Fla Jur , which himself fenced off the public from the locus in q dedicator has had buildings placed thereon by the supposed and others for more than 25 years.68 E. PROOF OF DEDICATION § 23. Evidence; Burden of Proof. and The general rules as to the admissibility and d nei another sufficiency of evidence, which are disc article,68 would ordinarily apply in actions arising out of dedications. In all cases, the burden of proving dedication is on the party asserting it.B1 An averment of d dedication ati in an answer constitutes new matter sts upon becomes defendant to affirma- tive defense, and the b proving such dedication.° And also, the burden of p g a oughfares hfares by virtue of a dedication 58. Florida Chautauqua Asso. v by deed, wherein the defendant de- 717. (1912) 63 Fla 421, 58 So riled the public nature of the high - 717• ways, the burden of establishing that 59. See 13 Fla Jur, EVIDENCE. the roads were public thoroughfares 60. 23 Ain Jur 2d, DEDICATION was on the county. Cannon v Put- §§ 69 -79. nam County (1954, Fla) 75 So 2d Practice Aids. —Proof of dedica- 577. tion of real property. 4 AM JUR In an ejectment action by a mu- PROOF OF FACTS 257, 260, DEDICA- nicipality involving land which the TION, Proof 1. city claimed through dedication, the —Proof of acceptance of an of- burden was on the municipality to fered dedication. 4 AM JUR PROOF clearly yce show a the edi catiOfl and ac- OF FACTS 257, 275, DEDICATION, cola v Kersey (1934) 115 Fla 496, Proof 2. — Pleading forms for dedication 155 So 730. action. 8 AM JUR PL & PR FORMS 62. Miami Beach v Miami Fla Beach O 14 So Rev ed), DEDICATION, Forms 1– prov. Co. ( ) 153 12. 2d 172. 61. Roe v Kendrick (1941) 146 Fla Where a bill alleged that the re- 119, 200 So 394. spondents were endeavoring to un- Bishop v Nussbaum (1965, Fla App) lawfully susubject lan use th a stcoin- 175 So 2d 231. and the answer admitted the at- In an action by a county to enjoin tempt to subject the property to the the interference with the repair and use of a public street but averred a county claimed of roads which thor- dedication of the lands to public county claimed were public 10 Fla Jur luo, which 1 dedicator Height and z another rig out of dedication lication in n affirma- endant to proving a a dedication efendant de- of the high - blishing that horoughfares nnon v Put - i) 75 So 2d n by a mu- I which the lication, the licipality to on and ac- ility. Pensa- 15 Fla 496, Beach Im- 107, 14 So hat the re- ing to un- the corn- s a street, the at- erty to the averred a to public 10 Fla Jur DEDICATION § 23 revocation of an offer of dedication is upon the person asserting such revocation." Proof of the necessary facts constituting a dedication must be clear, satisfactory, and unequivocal.' This applies to proof of an intention on the part of the proprietor of the land involved to dedicate it," and to proof of acceptance by the public.' And a revocation of an offer of dedication must appear clearly and conclusively to have been made.e7 Acceptance of an offer to dedicate land to the public for use, the averment of dedication, be- ing new matter, put upon the re- spondent the burden of proving such dedication. McGourin v DeFuniak Springs (1906) 51 Fla 502, 41 So 541. In an action to enjoin a city from opening or extending a street, in which the city filed an answer claiming a right under a dedication of the land sought to be appropri- ated for the public use, the averment of dedication in the answer was new matter offered in justification and the burden rested on the city to prove such dedication. Marianna v Daniel (1917) 74 Fla 103, 76 So 692. In an action against a municipal - ity to establish ownership of certain land, where the municipality pleaded dedication of the land to the public by implication or otherwise, the burden of proof of dedication was on the city. Miami v Travis Co. (1943) 153 Fla 80, 13 So 2d 700. Ili& Kirkland v Tampa (1918) 75 Fla „ 271, 78 So 17. i:► Miami v Florida E. C. R. Co. (1920) 79 Fla 539, 84 So 726. Weills v Vero Beach (1928) 96 Fla 118, 119 So 330. Hamilton v Laesch (1938) 134 Fla 6 7. 591, 184 So 110. Roe v Kendrick (1941) 146 Fla 119, 200 So 394. Bishop v Nussbaum (1965, Fla App) 175 So 2d 231. As to the degree of proof, see 23 Am Jur 2d, DEDICATION § 79. 65. Miller v Bay -to -Gulf, Inc. (1940) 141 Fla 452, 193 So 425. Pocock v Medley (1956, Fla) 89 So 2d 162. Bishop v Nussbaum (1965, Fla App) 175 So 2d 231. Practice Aids. —Proof of dedica- tion. 4 AM JUR PROOF OF FACTS 257, 260, DEDICATION, Proof 1. 66. Robinson v Riviera (1946) 157 Fla 194, 25 So 2d 277. Board of County Comrs. v F. A. Sebring Realty Co. (1953, Fla) 63 So 2d 256. Pensacola v Walker (1964, Fla App) 167 So 2d 634. Bishop v Nussbaum (1965, Fla App) 175 So 2d 231. Welch v Iserman (1953) 4 Fla Supp 131. Practice Aids. Proof of accept- ance. 4 AM JUR PROOF OF FACTS 257, 275, DEDICATION, Proof 2. Kirkland v Tampa (1918) 75 Fla 271, 78 So 17. 33 § 23 DEDICATION 10 Fla Jur streets, alleys, or parks is not presumed, but must be clearly proved " § 24. __Taxation. axes or special assessments were levied id The fact that t private property has been considered on land as p to show that connection with other circumstances as tending n Conversely, there has not been acommon -law as the fact that no taxes or special assessments were evi or collected after an alleged dedication has been considered tending to show a dedication. III OPERATION AND EFFECT A. IN GENERAL § 25. Generally. operate said that a common -law dedication does eotc pen is It is a o f estoppel in pa as a grant but by way but as operating to a right, private regarded not as transferring his right of p preclude the owner any from resuming public use" or from use inconsistent hehfe a does not pass property dedication, t ht pass Under acommon -law public acquires only a right from the grantor, as the p easement in trust, so long as the dedicated land is used for stated that the (1932) 104 Fla 853, in which it was of land he mere fact that a strip been 68, Burns v McDaniel ( dedicated had not 526, 140 So 314. legedly deprive its owners of See 23 Am Jur 2d, DEDICATION taxed did not dep legal rights therein. § 74. Fla) 89 So Jur 2d, DEDICATION (1956, See 23 Am 69. Miami v Jansik ( § 78 collection 2d 644• As to the levying and States v 936418 F2d 551. as estoppel, see § 22, supra. 70. United CA5 Fla) of taxes Land (1969, v palm DEDICATION § 56. See Nay. Co 152 So 71.23 Am Jur 2d, Beach (1934) 114 Fla 48, 34 10 Fla Jur DEDICATION § 26 the purposes of the dedication." The grantor holds the legal title subject to the right of the public to the beneficial use of the land until such time as the dedication is rejected, surrendered, or abandoned." Thus, in the absence of a clear contrary intent, the dedication of land for street purposes does not divest the owner of title to the land, but only subjects the land to the public easement for street purposes." Where there is a sale of lots in reference to a plat which indicates an intention on the part of the owner of the plat to dedicate streets designated thereon for public use, the title of the grantees of the lots abutting on such streets, in the absence of a contrary showing, extends to the center of the streets subject to the public easement." Purchasers of lots sold according to a plat showing streets between the lots do not acquire title to the streets as against the public ease - ment.76 § 26. Interpretation of Plats. A plat must be construed as a whole, and every part must 72. Florida State Turnpike Authority v Anhoco Corp. (1958, Fla App) 107 So 2d 51, quashed in part (Fla) 116 So 2d 8, conformed to (Fla App) 117 So 2d 15, and conformed to (Fla App) 117 So 2d 16. 73. Florida State Turnpike Authority v Anhoco Corp. (1958, Fla App) 107 So 2d 51, quashed in part (Fla) 116 So 2d 8, conformed to (Fla App) 117 So 2d 15, and conformed to (Fla App) 117 So 2d 16. 74. Robbins v White (1906) 52 Fla 613, 42 So 841. Burns v McDaniel (1932) 104 Fla 526, 140 So 314. Annotation: Effect of dedication of fee to land for use as a street or highway on right to subterranean deposits of minerals. 5 ALR 1498, 39 ALR 1340. 75. Smith v Horn (1915) 70 Fla 484, 70 So 435. New Ft. Pierce Hotel Co. v Phoenix Tax Title Corp. (1936) 126 Fla 552, 171 So 525. In Walker v Pollack (1954, Fla) 74 So 2d 886, the title of purchasers of lots sold according to a plat which contained a dedication of the streets abutting the lots of such purchasers was said to go to the middle of the street until discontinu- ance of the offer to dedicate. As to boundaries of land abutting on public ways, generally, see 4A Fla 7ur, BOUNDARIES § 10. 76. Gainesville v Thomas (1911) 61 Fla 538, 54 So 780. As to rights of purchasers upon termination of dedication, see § 33, infra. 35 § 26 DEDICATION 10 Fla Jur be given effect." Also, the plat should be construed fairly and reasonably,78 with no part rejected as superfluous,79 and if it is ambiguous, the construction must is comp It the dedicator and in favor of the pub a pf it is itself and free from ambiguity, it will control, but ambiguous, extrinsic evidence dedicate may be unequivocally Sometimes the intention to indicated by the use of words and markings commonly indicative of a public use." Thus, the word "park" written on a parcel of land designated upon a plat implies that such parcel is intended to be dedicated to the public for park purposes,' and the fact that a written dedicatory instrument or attached to the plat only purports to dedicate absence toe other highways" shown thereon, does not, in the language clearly showing an intention osuch parcel from dedicae park, operate as a reservation of su Fla) 269 F2d 458, cert den 361 US 962, 4 L Ed 2d 543, 80 S Ct 590. See 23 Am Jur 2d, DEDICATION §§ 26, 27. Annotation: Implied or construc- tive dedication of land between street line and building. 7 ALR 727. _- Construction of regulations as to subdivision maps or plats with respect to sufficiency of designation of subject of dedication. 11 ALR2d 524, 562. 81. Porter v Carpenter (1897) 39 Fla 14, 21 So 788. Where a plat did not make it that a 30 -foot strip was intended to be dedicated as a passage- way for public use, parol evidence was held properly admitted to prove the intention of the parties. Bridge- head Land Co. v Hale (1940) 145 Fla 389, 199 So 361. 82.23 Am Jur 2d, DEDICATION § 27. 83. Florida E. C. R. Co. v Worley (1905) 49 Fla 297, 38 So 618. 77. Florida E. C. R. Co. v Worley (1905) 49 Fla 297, 38 So 618. North Lauderdale 5Corpa v90. Lyons (1963, Fla App) 156 Broward County v Lerer (1967, Fla App) 203 So 2d 672. Practice Aids.—Notation on plat of express denial of dedication. 7 AM JUR LEGAL FORMS 2d, DEDI- CATION § 86 :115. 78. North Lauderdale Corp. v Lyons (1963, Fla App) 156 So 2d 690. Broward County v Lerer (1967, Fla App) 203 So 2d 672. 79. North Lauderdale Corp. v Lyons (1963, Fla App) 156 So 2d 690. Broward County v Lerer (1967, Fla App) 203 So 2d 672. 80. Florida E. C. R. Co. v Worley (1905) 49 Fla 297, 38 So 618. North Lauderdale Corp. v Lyons (1963, Fla App) 156 So 2d 690. Murrell v United States (1959, CA5 J However on on a pla a cert as 2 are synol word "1 may or a de< marke4 streets, g tha c unlabeh g a re lion" beap plat is dedicat • E. C. 49 Fla 297 Beach Co.(1 2d 783. v McDai 140 So 314. Mans and strip of la .on lots a indicates al strip to t Indian 1 Inc. v Es 647, 32 AI Am Jur 2d, 1 ly td in is ,ly ily en ch rk ;nt or ier :he ta- us 'ION ruc- veep 727. s as with ttion .R2d Fla ce it s in- sage - lence prove -idge- 145 27. lorley • 10 Fla Jur DEDICATION § 26 tion." However, , a beach has been held not included in a dedication on a plat of "streets, avenues, drives, and al- leys."" Where a plat evidences an intention of the subdivider to dedicate a certain space on the plat, whether the space is designated as a "street" or "place" is immaterial, since the terms are synonymous." The word "reserved" appearing on a space on a map or plat may or may not, depending on the circumstances, indicate a dedicatory intention.' The words "beach re- served" marked on an area on a plat dedicating for public use all streets, alleys, drives, and places have been construed as meaning that the area was reserved as a beach for the use of purchasers of lots in the subdivision." An unlabeled space on a plat may be construed as indicating a reservation to the use of the owner rather than a dedication." Where land does not appear upon a map or plat to be a part of one of the streets designated thereon, and the plat is unexplained, although evidence of an inten- tion to dedicate streets is designated thereon, the plat is not 84. Florida E. C. R. Co. v Worley (1905) 49 Fla 297, 38 So 618. 85. Miami Beach v Undercliff Realty & Invest. Co. (1945) 155 Fla 805, 21 So 2d 783. 86. Burns v McDaniel (1932) 104 Fla 526, 140 So 314. The tiling and recording of a plat with a strip of land marked off with the designation "Bay Place," with numbered lots on each side of the strip, indicates an intention to dedi- cate the strip to the public for use as a street. Indian Rocks Beach South Shore, Inc. v Ewell (1952, Fla) 59 So 2d 647, 32 ALR2d 940. 87.23 Am Jur 2d, DEDICATION § 27. 88. Boothby v Gulf Properties of Ala- bama, Inc. (1948, Fla) 40 So 2d 117. 89. Tarpon Springs v Smith (1921) 81 Fla 479, 88 So 613. Where a plat dedicating the streets shown thereon contained one strip of land marked "Reservation" and a second strip of land running between the reserved area and the ocean bore no inscription, and there was a sale of lots with easements or rights of way to the ocean beach and with covenants that no build- ings should be erected on the area marked "Reservation" on the plat, the strip of land appearing on the plat without any inscription was held not to have been dedicated. Ocean Nay. Co. v Palm Beach (1934) 114 Fla 48, 152 So 853. 37 § 26 DEDICATION 10 Fla Jur f evidence of an intention to dedicate land not included in the designated streets.°° A dedication under a plat of a street does not give any easement or other rights beyond the expressly designated limits of the street and the incidents that are appropriate thereto.°' Two plat instruments will be deemed to constitute a single plat unit where a comparison of the copies of the instru- ments shows that the plats were developed by the same engineering company and are dated alike, and the plan is the same on both.°' § 27. Rights of Purchasers Under Plats. The purchasers of lots sold with reference to a plat acquire the right to have streets and ways appearing on the plat kept open" for the benefit of light and air as well as passageways °` The streets or ways cannot be closed up or obstructed unless in pursuance of legal authority," even though no formal instrument of dedication has been exe- cuted" and there has been no acceptance of an offer of dedication," or the offer of dedication has been revoked." 90. McGourin v De Funiak Springs (1906) 51 Fla 502, 41 So 541. Where a plat purported to dedi- cate a street for public use, but an irregular strip of land adjoining the street was without designation on the plat, the unmarked strip of land cannot be considered as within 95 e dedication. Earle v McCarty Fla) 70 So 2d 314. 91. Tarpon Springs v Smith (1921) 81 Fla 479, 88 So 613. 92. Roberts v Jupiter (1961, Fla App) 136 So 2d 233. 93. Price v Stratton (1903) 45 Fla 535, 33 So 644. The platting of land and the sale of lots pursuant thereto creates as between the grantor and the pur- chaser of the lots a private right to have the space marked upon the 38 plat as streets, alleys, parks, etc., remain open for ingress and egress and the uses indicated by the desig- nation, but so far as the public is concerned, such acts amount to a mere offer of dedication which must be accepted before there is a revoca- tion. Feig v Graves (1958, Fla App) 100 So 2d 192. 94. Winter v Payne (1894) 33 Fla 470, 15 So 211. As to easements acquired by pur- chasers of lots according to a plat, see 11 Fla Jur, EASEMENTS AND LICENSES §§ 19 -21. 95. Porter v Carpenter (1897) 39 Fla 14, 21 So 788. 96. Florida E. C. R. Co. v Worley (1905) 49 Fla 297, 38 So 618. 97. § 15, supra. 98. § 21, supra. • 10 Fla Jur DEDICATION § 27 Except in cases where there may be some element of estoppel, adverse possession, or other similar ground raised, there is such a blending of public right resulting from an offer of dedication with private rights growing out of implied covenant, implied grant, or estoppel of the dedicator, that the dedicator or his successor cannot legally revoke an offer of dedication as against the public or owners in a subdivision as to any of the platted public streets without the consent of any such owner affected." The extent of the grantee's right of user in streets and ways appearing on a map or plat is limited to such streets or alleys as are reasonably and materially necessary to the grantee, and the deprivation of which would reduce the value of his lot.' The above rules would apply not only to streets and avenues but to parks and other public places designated upon a plat, at least with respect to persons owning lots adjoining such places or separated from them merely by a street.' 99. Weber v Hollywood (1960, Fla App) 120 So 2d 826, the court rejecting a distinction recognized in some jurisdictions between the rights of the dedicator or his succes- sor to revoke an offer of dedication insofar as the general public is con- cerned, prior to acceptance by proper authority, and such right to revoke as against purchasers of lots in said subdivision. The dedication, by a subdivider, of a park strip for the use of the lot owners became effective upon sale of the lots, and continued in effect, and is not subject to be avoided or re- voked by the subdivider. Miami v Eastern Realty Co. (1967, Fla App) 202 So 2d 760. As to the revocation of an offer of dedication generally, see § 21, supra. 1. Weber v Hollywood (1960, Fla App) 120 So 2d 826. For a complete discussion as to the nature and extent of implied easements arising from a sale of lots according to a plat, see 11 Fla Jur, EASEMENTS AND LICENSES §§ 16_ 24. Annotation: Sale of lots with ref- erence to plat as conferring, in ab- sence of effective dedication to the public, rights upon others than lot owners in respect to streets shown by plat. 172 ALR 167. — Conveyance of lot with refer- ence to map or plat as giving pur- chaser rights in indicated streets, alleys, or areas not abutting his lot. 7 ALR2d 607. 2. ( ( Florida E. C. R. Co. v Worley 1905) 49 Fla 297, 38 So 618. Miami v Florida E. C. R. Co. 1920) 79 Fla 539, 84 So 726. 39 § 27 DEDICATION 10 Fla Jur The rights acquired by purchasers of lots under a plat are described as "private" rights in the nature of implied ease- ments,' existing independently of any public rights arising out of a dedication' 0 Fla Jur ed t( the ri as addit a•stre § 28. Riparian Rights; Accretion. A dedicator may reserve all riparian rights appurtenant to the land,' and where this is accretions the express belong dedicator .° However, in the absence reserva- tion, the question whether such rights are included within for e the scope of the dedicationupon the location of the which the easement was g ranted and property burdened with the easement.' It has been ht d that t where a subdivider did not reserve the riparian rig y 3. Mumaw v Roberson (1952, Fla) 60 So 2d 741. Feig v Graves (1958, Fla App) 100 So 2d 192. The rights of a purchaser of lots in a subdivision arising a r mowins with reference to a plat parks, or other areas subject to their use or enjoyment ate deter- mined on the principles of awr interests ap- plicable to private prope dedinterests as opposed to public Burnham v Davis Islands, Inc. (1956, Fla) 87 So 2d 97. 4. Miami v Florida E. C. R. Co. (1920) 79 Fla 539, 84 So 726. McCorquodale v Keyton (1953, Fla) 63 So 2d 906. Feig v Graves (1958, Fla App) 100 So 2d 192. Ops Atty Gen: [1961 -1962] Atty Gen Rep 304. The rights of subsequent purchas- ers of lots sold according to a plat which contained an offer to dedicate streets designated thereon were said riate res dedi Parr in ?the ttb to spring from the offer to dedicate and not necessarily from any in s rue ment thereafter appearing chain of title affecting the public's rights to such property. Walker v Pollack (1954, Fla) 74 So 2d 886. Where a plat representing a man- made lake provided that the lake was dedicated to the joint and sev- eral use of the owners a t lots S front- ing on the lake, the grant affirmative easement abutting fa- vor of owners of property the lake, as against the contention that there was a common -law dedi- cation which must be to the use and benefit of the public. Reiger v An- chor Post Products, Inc. (1968, Fla App) 210 So 2d 283. 5. § 13, supra. 6. Burkart v Ft. Lauderdale (1964, Fla) 168 So 2d 65. 7. Feig v Graves (1958, Fla App) 100 So 2d 192. Burkart v Ft. Lauderdale (1964, Fla) 168 So 2d 65. er U cati 5r Ems )202 dim iat ty ate ru- the ic's v an- ike ev- at- an fa- ing ion di- ind 1n- Fla 164, 100 )64, 10 Fla Jur DEDICATION § 29 attached to a dedicated park strip, and any benefit resulting from the riparian rights, such as by accretion, would operate as an addition or extension of the park.' If a street, as delineated by a line on a plat, touches or approximately touches a river, the riparian rights that are appropriate to a street easement will also be impliedly dedicated as an incident, in the absence of any express or implied reservation by the dedicator of such riparian rights.' However, riparian rights may not be deemed to have been dedicated where other lots or lands are shown on the dedicatory plat between a dedicated street and the water.'° The dedication of a public park on the waterfront of a bay has been held to extend to the bay and no further, inasmuch as the parties who made the dedication had no property right in the waterfront which authorized them to create an easement therein." B. USE AND CONTROL § 29. Generally. Land may be dedicated for a special and limited use, and use for any other purpose is unauthorized. Whether a particular use amounts to a diversion from that for which the dedication was made depends on the circumstances of 8. Miami v Eastern Realty Co. (1967, Fla App) 202 So 2d 760. 9. Tarpon Springs v Smith (1921) 81 Fla 479, 88 So 613. In Brickell v Ft. Lauderdale (1918) 75 Fla 622, 78 So 681, the dedication of a street under a plat was held to extend to an adjoining river in the absence of any express intention of the dedicator to the contrary, and especially in view of the fact that the dedicator had granted riparian rights to owners of lots lying on the side of the street farthest from the river, which was interpreted as repugnant to any con- tention that the dedicator had re- tained a strip of land between the street and the river. 10. Tarpon Springs v Smith (1921) 81 Fla 479, 88 So 613. Beck v Littlefield (1953, Fla) 68 So 2d 889. 11. Ruge v Apalachicola Oyster Can- ning & Fish Co. (1889) 25 Fla 656, 6 So 489. § 29 DEDICATION 10 Fla Jur the dedication and the intention of fact parties making it, and is, therefore, largely a question Any person whose property is especially injured by the wrongful use of dedicated property by a municipality may have the aid of a court of equity to restrain the improper appropriation." The private rights of individuals are subject to the exercise of legal authority over the public easement." Property be- comes clothed with a public interest when used in a manner to make it of public consequence and to affect the commu- nity at large, and when one devotes his property to a use in which the public has an interest, he in effect grants to the it to be public an interest in that common good to the extent controlled by the public for the mmon of the interest he has created." § 30. Streets, Alleys, etc. Upon the voluntary dedication of land to the purposes bf a street, it becomes, to the extent that it is necessary to used for a street, the property of the people of the state; and the dedication carries with it the continuing power to change its grade or otherwise improve it insofar as such improve- ments are for street purposes. This power may be delegated by the legislature to a fee of the municipality one of its abut gngelo mel tai agencies, and the 12. 23 Am Jur 2d, DEDICATION § 67. Practice Aids. - -Complaint to en- join dedicator's acts inconsistent with use of dedicated area. 8 AM JUR PL & PR FORMS (Rev ed), DEDICATION, Form 1. 13. Lutterloh v Cedar Keys (1875) 15 Fla 306. For a discussion of practice and procedure in actions involving dedi- cations, see 23 Am Jur 2d, DEDICA- TION §§ 69 -79. 42 Rights under misuser and aliena- tion of lands dedicated Fla L Reecifi municipal purposes. 14. Miami v Florida E. C. R. Co. (1920) 79 Fla 539, 84 So 726. As to state regulation, generally, see 23 Am Jur 2d, DEDICATION § 65. 15. State ex rel. Burr v Atlantic C. L. R. Co. (1910) 59 Fla 612, 52 So 4. As to the rights of a dedicator, generally, see 23 Am Jur 2d, DEDI- CATION § 64. the may roper ercise rty be- manner iommu- t use in to the to be extent )ses of to be e; and :hange prove- !gated nmen- )ts, in aliena- specific Rev 82. R. Co. nerally, CATION c C. L. So 4. iicator, DEDI- 10 Fla Jur DEDICATION § 31 the street to its center, is at all times subject of these powers." to to the exercise A dedication of a street includes not only the thereof but so much beneath the surface as is necessary or reasonably required to construct and maintain facilities the use of the public generally in that locality, for much of the space above the street as is necessary s well allow w so those vehicles and things which ordinarily use the street that locality to pass over it." n A municipal corporation has no right to a ro public streets to any other use than that of travel o ri htat f way to which they were dedicated, and it cannot lawfully obstruct the streets with public or private buildings." But it y has been held that a use of way as a parkway is not incompatible with a dedication and user of the whole for highway purposes." It is the duty d the municipality as trustee of the public rights in and y of streets to maintain the public uses against encroachments, the and this applies to territory taken into the corporate mmts, after the dedication, as well as to territory included inrthe corporate limits at the time of the dedication." § 31. Parks, Squares, etc. The terms of dedications of lands for park purposes wh ere the lands are conveyed by private individuals are to construed more strictly than is the case where the lands are acquired by the public body by purchase or condemnations' Municipal authorities have the power to devote park 16. Selden v Jacksonville (1891) 28 Fla thorize construction of sewage sys- ` 558, 10 So 457. • tem beneath public streets). As to use and control of streets 18. Lutterloh v Cedar Keys (1875) 15 and highways, generally, see 16 Fla Fla 306. Jur, HIGHWAYS, STREETS, AND 19. Dade County v Harris (1956, Fla BRIDGES §§ 121 -130. 90 So 2d 316. ) 17. Newport Manor, Inc. v 20. Brickell v Ft. Lauderdale (1918) 75 Newport Co. (1955, Fla Carmen Fla 622, 78 So 681. 82 So 2d 127 21. Hanna v Sunrise Recreation, Inc. (holding that municipality could au- (1957, Fla) 94 So 2d 597. § 31 property to uses which are proper park purposes or consist- ent with the purposes of its dedication." Absent clear directions to the contrary from the dedicator, it is clear that while the entire area of a dedicated cusesk it is proper converted to playground or a reasonable portion of it be set aside for such ou However, a municipality is without authority to appropriate such lands for the use and benefit of private persons r in any way to divert the use of the land to any purpose inconsistent with the purpose of its original dedication.' It has been held that a city may instal playground even though facilities on land dedicated for park pure one portion thereof bears a plat notation restricting it to a church site and villa sites. " And where the g rantor dedicates lands for "state park purposes," oses," but limits such purposes to � the improvement and development of the land as a state park along the lines adopted and followed by grantor, the state must show that the proposed use of the property DEDICATION 10 Fla Jur 22. Construction of a building for rec- reational purposes on land dedicated for a "public park and pleasure ground" for the "purposes of amusement and recreation," under a deed providing that "the view oceanward shall be free, open, and unobstructed," has been regarded as -Ce of evi- authorized in the dence as to the exact nature and use of the proposed building and of evidence that the landowners seek- ing to enjoin a municipality would constructing such a building suffer any injury different from the kind suffered by the public gener- ally. Flagler Beach v Green (1955, Fla) 83 So 2d 598. The dedication in a deed of prop- erty for "state park "park purpos s" means the same thing as pur- 44 poses." Hanna v Sunrise Recreation, Inc. (1957, Fla) 94 So 2d 597. Annotation: Uses to which land dedicated for parks may 18 ALR 1246, 63 ALR 484, 144 ALR 486. 23. Hanna v Sunrise Recreation, Inc. (1957, Fla) 94 So 2d 597, where the court noted the change in the con - cept of a park from the time when it or plaza, to connta° open trees plaza, present when trees and seats, to the p a park is considered not only as ornamental but also as a place for recreation and amusement. 24. Kramer v Lakeland (1948, Fla) 38 So 2d 126. 25. Kosanke v St2Petersburg d 395. Beach (1972, Fla App) to in and ough to a caves to a state ;grantor, property Recreation, 597. which land be devoted. R 484, 144 10 Fla Jur DEDICATION § 32 will comply with this condition unless it is shown that the grantor had not in fact ever adopted and followed a definite plan to develop the land." Functions incident to utilizing dedications of parks for local public purposes may be exercised by the county com- missioners under their general express and implied statutory powers and authority as the chief administrative and fiscal officers for the county.'' IV. TERMINATION; REVERTER § 32. Generally. An easement created by a dedication may be abandoned by unequivocal acts showing a clear intent to abandon, but to constitute an abandonment, the use for which the prop- erty is dedicated must become impossible of execution, or the object of the use must wholly fail. Generally, a mere misuser or nonuser does not constitute abandonment of land dedicated to a public use, although mere nonuser for a long time may show an abandonment.' Where necessary for a reasonable interpretation of the 26. Hanna v Sunrise Recreation, Inc. (1957, Fla) 94 So 2d 597, where it was stated that the mere fact that charges may be made for the use and facilities of land dedicated for state park purposes, or that a pri- vate corporation will profit there- from, does not control in determin- ing the validity of a proposed use of dedicated property. 27. Duval County v Bancroft (1928) 96 Fla 128, 117 So 799. 28. 23 Ain Jur 2d, DEDICATION § 66. Where the state acquired land under a deed containing a provision that should the land "ever be dis- continued or abandoned as a public highway," title shall revert to the eation, Inc. 1, where the in the con - ime when it open square Ming shade sent, when rot only as a place for It. 148, Fla) 38 burg Beach d 395. grantor or his heirs, and the state maintained a highway on such prop- erty, but after constructing a new highway, purported to abandon and turn the old highway over to a county for maintenance by the county as a public highway, and the old road was used for such pur- poses, there was no abandonment as a public highway so as to cause a reversion. Dickson v St. Lucie County (1953, Fla) 67 So 2d 662. Practice Aids.— Answer —public right to use land dedicated for use as highway extinguished by aban- donment. 8 AM JUR Pt & PR FORMS (Rev ed), DEDICATION, Form 12. 45 § 32 DEDICATION 10 Fla Jur dedication, the reversion may go to persons other than the dedicator or his successors 9° As a rule, the land reverts to the t dedicator settled n the intended use becomes impossible. But settled hat a mere misuser or nonuser of land dedicated to a public the sole does not work a reverter ther�Oa been only dedicated becomes use to which the property place.3° impossible of execution that a reverter takes Counties have the statutory authority to vacate and aban- don roads, alleyways, or other p don any county streets, vacate the dedication used for travel.'1 Cities and towns ae, and may discontinue any of a public park or public square, apart from statute, a street, avenue, or highway. But, ap municipality has no authority to sell or transfer title to a park or square dedicated for p ublic use," or to divert the property to another use M § 33. Effect of Termination. dedication is Generally, if a public easement created by Annotation; Right of dedicator to Co. v Zimmerman reversion of parkway in center o 29. Servando Bldg. So 2d 289, where, 81 ALR2d of (1956, baa) street or boulevard. upon abandonment of a street, the 1436, 1447• 31. 1436, § 336.09. 7. fact that if the reversion went to the dedicator corner lots would become practice Aids.—Resolution of rev inside lots, which they were never intended to be, was considered in ration and termination of dedica- determining who should take the tion —Land no longer J needed G� reversion. public use. 7 AM 86LEG 30. 23 Am Jur 2d, DEDICATION § 68. FORMS 2d, DEDICATION § A landowner who dedicated land 32. FS § 167.09• of a railroad ro be used on, the purposes on for As to discontinuance see streets Fla reveoao in the event a p and highways generally, AND a was not in the continuously that the r such Jur, HIGHWAYS, was not used continuously BRINES §§ 78 -82. pu�Ses..has a right of action for (1948, Fla) 38 damages in a court of law or any 33. Kramer v Lakeland ( other appropriate relief when the So 2d 126. abrogate y railroad ceased to use the land for Right of legislature to abrog the purposes mentioned. Seaboard park dedications. 2 Fla L Rev 285. A L. R. Co. v Dorsey (1932) 111, § 31, supra. Fla 22, 149 So 759. 46 Jur th the to use sole mes aban- places cation pue any !mute, a ae to a rent the ation is dicator to center of ALR2d ion of rev - of dedica- ceded for LEGAL 86:114. of streets ee16Fla ;rs, AND t8, Fla) 38 i abrogate Rev 285. 10 Fla Jur DEDICATION § 33 lawfully surrendered and relinquished, title to the land remains in the dedicator or his successors, discharged of the easement.'° Upon the lawful surrender or relinquishment of a public easement as a street, the owner of the land on which the street was located then has ownership of the land discharged from the easement and is entitled as against the public to the possession and lawful use of the land. If owners of land abutting on the street have title to the center of the street, and the public easement for street purposes is surrendered and relinquished, such owners are entitled to the lawful use of the land discharged of the easement.'° 35. Robbins v White (1906) 52 Fla 613, 42 So 841. Practice Aids.— Automatic rever- sion to dedicator upon abandonment or misuser of dedicated land. 7 AM JUR LEGAL FORMS 2d, DEDICA- TION § 86:71. —Right of re -entry in dedicator upon breach of condition by dedica- tee. 7 AM JUR LEGAL FORMS 2d, DEDICATION § 86 :72. — Disclaimer of reversionary in- terest by dedicator. 7 AM JUR LE- GAL FORMS 2d, DEDICATION § 86:73. 36. Robbins v White (1906) 52 Fla 613, 42 So 841. Smith v Horn (1915) 70 Fla 484, 70 So 435. Hurt v Lenchuk (1969, Fla App) 223 So 2d 350. Where a plat shows an alley lying between lot 1 and lots 2, 3, and 4, upon abandonment of the dedication of the alley, a conveyance of all the lots would convey the alley. New Ft. Pierce Hotel Co. v Phoenix Tax Title Corp. (1936) 126 Fla 552, 171 So 525. The act of any board of county commissioners in closing or aban- doning any road or disclaiming any rights in any land delineated on any recorded map as a road abrogates the easement claimed or used by or on behalf of the public, and the title of the fee owners is released there- from, and if the fee has been vested in the county, the same vests in abutting fee owners. FS § 336.12. Annotation: Reversion of title upon abandonment or vacation of highway or street. 18 ALR 1008, 70 ALR 564. AGREEMENT THIS AGREEMENT, entered into by and between the City of Okeechobee, Florida, a municipal corporation existing under the laws of the State of Florida, Steve Porter, and Jack Butler, citizens within the municipality, in and for the mutual covenants and concessions herein, do agree to the following: RECITALS WHEREAS Porter and Butler own lands which abut a city alley between lots 1 and 2, 7 and 8, of Block 34, First Addition to South Okeechobee; WHEREAS the city previously granted permission for Porter to pave or concrete over the north end of said alley in order to construct rental units and to improve the appearance of said units; WHEREAS Butler has sought to use said north end of the alley for ingress and egress to his own property, and Porter has sought to obstruct said alley and allege that it is not in fact an alley dedicated to the public, creating a controversy between the parties as to its proper use and designation; and WHEREAS the parties seek to amicably resolve these issues by agreement; THEREFORE, in consideration of these recitals, the parties do agree as follows: 1. That all parties agree that the described alley, as part of an original dedication dated June 14, 1926 found at Deed Book 17, page 383, public records of Okeechobee County, Florida, is in fact an alley properly dedicated or accepted by public user and shall remain so. 2. That the city recognizes its agreement with Porter to allow him to construct concrete driveways over the north end of said alley and to landscape same, as an allowed use incident to his rental units at that location. That said use may continue and includes parking of vehicles from time to time. 3. That the city does not waive its rights or grant permission such as would permit a taking by abandonment, adverse possession or otherwise, and indeed retains now and forever all such legal rights as it possesses currently over ownership of said alley. 4. That the alley may be used by any person as any alley may, and the city shall clear the entire alley as to make it usable from both the North and South ends. Should the alley be blocked or obstructed and access be necessary in an emergency, Porter and Butler agree that such obstruction, whether placed there by themselves, their tenants, or others, with or without permission, may be immediately removed by the city without any liability or responsibility therefore. 5. That any agreement or permissions herein, or referred to herein, remain with the parties herein, and shall not be conveyed, assigned or run with the land. Entered into this day of September, 1988. • •' E '•; Oakland Chapman, Mayor BONNIE THOMAS, Clerk STEVE PORTER JACK BUTLER August 31, 1.988 Lester Jennings, Esquire 110 N. E. Third Avenue Okeechobee, FL 34972 Re: City of Okeechobee, Steve Porter and Jack Butler Dear Lester: Enclosed please find a copy of an agreement 1 have pre- pared in the referenced matter. This may not suit every- one completely, but at least it's a start. Kindest regards, JOHN R. COOK JRC:cb cc John Drago Enclosure August 31, 1988 Mr. Jack Butler 1702 South Parrott Avenue Okeechobee, FL 34974 Re: City of Okeechobee, Steve Porter and Jack Butler Dear Mr. Butler: Enclosed please find a copp of an agreement I have prepared in the referenced matter. This may not suit everyone, but at least its a start. Kindest regards. JOHN R. COOK JRC:cb cc John Drago Enclosure LESTER JENNINGS ATTORNEY AT LAW 110 N.E. THIRD AVENUE • POST OFFICE BOX 237 OKEECHOBEE, FLORIDA 34972 PHONE (813) 467 -2570 June 7, 1988 John Cook, Esquire 202 N.W. 5th Avenue Okeechobee, Florida 34972 Re: Porter vs. City of Okeechobee Dear John: This letter is for the purpose of explaining the position of Mr. and Mrs. Porter in connection with the controversy between them and the City and with Mr. Jack Butler in connection with a short alleged alley between lots 1,2 and 7,8 of Block 34 of First Addition to South Okeechobee. First Addition to South Okeechobee was platted in October, 1924 and its plat appears in Plat Book 1, page 17 Okeechobee County Public Records. There are narrow strips between blocks in this subdivision between lots without designation of what they pertain to be. No dedication appears on the plat. Several years later the developer Peter and Lousianna Raulerson filed a dedication in the public records of Okeechobee County, Florida in Deed Book 17, pages 383 and 384 whereby they dedicated the streets and alleys in the subdivision to the perpetual use of the public reserving to themselves, their heirs and assigns the reversion of the same if abandoned or discontinued by law. I have found nothing indicating that there was any acceptance of this dedication by either the City or County of Okeechobee. If the City has any such record of an acceptance I would appreciate a copy of the minutes. The alleyway was never constructed or used as an alleyway for 60 years. When my clients purchased the property several years ago there was a garage located on the alleyway of ancient origin that would have prevented anyone including Mr. and Mrs. Butler from using the alleyway. My clients removed the garage inconnection with developing their lots including the alleyway into a shopping plaza. During construction of the plaza Mr. and Mrs. Porter in 1984 apparently thought they had to obtain the approval of the city to improve the alleyway lying between lots 1 and 2 and 7 and 8, Block 34 and the city council approved the same. The problem developed later when my clients requested the council to allow them to landscape a portion of the alleyway lying south of the alleyway previously acted upon. Mr. Butler apparently objected and the council denied the request and rescinded its previous action allowing Mr. and Mrs. Porter to improve the original portion. Since then there has been a great deal of controversy and disputes over what the city and my clients agreed to. Mr. and Mrs. Jack Butler's house fronts on U.S. 441 and they have access to this street as egress and ingress to their property and apparently only after the second city council meeting mentioned above did they consider using the alleyway for egress and ingress to their residence. It is my clients' position which I believe is soundly supported by judicial decisions in this state that because there was no official acceptance of Mr. and Mrs. Raulerson's dedication of the alleyway and no physical acceptance by either the use of or construction of the alleyway-17-anyone including the city and /or county for approximately sixty years they acquired title to the alley between their lots when they purchased the lots free of any easements or right of user of anybody else including Mr. and Mrs. Butler and the public and the City of Okeechobee and that all actions by the city council since this matter arose are a nullity. If there was some type of ancient acceptance of the alleyway by government authority the alleyway would have long since been considered abandoned and its title would have vested in Mr. and Mrs. Porter when they purchased their lots. Mr. and Mrs. Porter certainly want the good will of the city fathers along with that of Mr. and Mrs. Butler. I am sure if Mr. and Mrs. Butler were landlocked my clients would give them the right to exit and enter their property through their shopping plaza, but this is not the case. However if the city and Mr. and Mrs. Butler continue to assert their rights to the use of the alleyway then I have instructed them to place a barrier in the alleyway so that Mr. and Mrs. Butler can not use it and then if necessary to bring legal action for damages and injunctive relief against Mr. and Mrs. Butler if they try to remove the obstruction or use the alleyway. If necessary they can join the city in any such action. You will find legal authority for our position in the following: Powers v Scobie 60 So 2d 738 Harlorview v Wilson 120 So 2d 453 Robinson v Town of Riviera 25 So 2d 277 Brooks Garrison Hotel Corp. v Sara Inv. Co. 61 So 2d 913 Other problems I see in the city claiming the property to be an alley are as follows: 1. That the supposed alleys in First Addition were not so designated on the plat. 2. That the property included in the dedication was improperly described. 3. The conflicts between my clients and members of the city council as to what agreement was reached and the lack of proper records of this by the city. 4. That Mr. and Mrs. Peter Raulerson never executed the plat to the original subdivision and then when they attempted a dedication the property was incorrectly described. In my opinion the city council should acknowledge by resolution that the city no longer claims the property to be an alleyway and /or that the matter involves a dispute between private interests and that the city should refrain from becoming involved. Should litigation become necessary the city will incur legal expenses and costs to determine a dispute involving private interests. We will appreciate the city council taking some action by resolution so that Mr. and Mrs. Porter can decide how to proceed. I am enclosing a copy of this letter to my good friends Mr. and Mrs. Jack Butler so that they will be advised of Mr. and Mrs. Porter's position. Should the council so advise my clients and I will again appear before the council to see if the matter may be resolved in an amicable fashion. Si = « - ly %.° LWJ:dat cc:Mr an s. Porter Mr. a . Mrs. Jack Butler 314 Fla. 70 SOUTHERN REPORTER, 2d SERIES EARLE v. McCARTY et al. Supreme Court of Florida. Division B. Feb. 2, 1954. Suit by owner of lot in subdivision, for himself and for other lot owners similarly situated, involving issue as to title to cer- tain land. The Circuit Court, Broward County, Lamar Warren, J., entered order dismissing complaint, and plaintiff appealed. The Supreme Court, Thomas, J., held that where lots of subdivision were bounded on east by ocean and on west by a street, which was shown on plat and dedicated by deed to city, which street, in turn, was separated from waters of sound to the west by an irregular strip of land which was without designation on plat, and the lots disappeared beneath surface of ocean while accretion to the irregular strip gave it sizeable proportions, lot owner could not assert title to land bordering the sound, even if the street were deemed to have been abandoned or if dedication of street had never been accepted, in absence of any dedication of irregular strip separating street from sound. Affirmed. I. Dedication < i9(3) An unlabeled space appearing on a plat indicates a reservation rather than a dedication. 2. Dedlcatlon C=I9(3) Where plat of subdivision showed a street as western boundary of lots, and an irregular strip of land, without designa- tion, separating street from waters of sound to the west, neither such plat, nor deed conveying street to municipality, the de- scription in which did not include the ir- regular strip of land, sustained claim that the irregular strip was also dedicated. 3. Dedication € 35(I) Dedication of street by deed to munici- pality was accepted, when the instrument itself was accepted. 4. Municipal Corporations 0657(3) A city may not be considered to have abandoned a street because of failure to improve it, where need for improvement has not arisen. 5. Navigable Waters 044(3) Where lots of subdivision were bound- ed on cast by ocean and on west by street which was shown on plat and dedicated to city by deed, which street, in turn was sep- arated from waters of sound to the west by an irregular strip of land which was without designation on plat, and the lots disappeared beneath surface of ocean while accretion to the irregular strip gave it size- able proportions, lot owner could not as- sert title to land bordering on the sound, even if the street were deemed to have been abandoned or if dedication of street had never been accepted, in absence of any dedication of the irregular strip separating street from sound. Jack Kehoe, Miami, and Louis Verncll, Miami Beach, for appellant. Richard W. Ervin, Atty. Gen., and W. R. Cuibreath, Special Asst. Atty., Miami, for trustees of the Internal Improvement Fund of Florida. James H. Walden, Dania, for City of Dania. T. D. Ellis, Jr., Ellis & Spencer and Stanley M. Beckerman, Hollywood, for Hollywood, Inc., a Florida Corporation. Judson A. Samuels, Hollywood, for City of Hollywood, appellees. THOMAS, Justice. This is an appeal from the chancellor's order dismissing the second amended bill of complaint filed by the appellant against the Trustees of the Internal Improvement Fund, Hollywood, Inc., a corporation, and the cities of Dania and Hollywood. The appellant sued for himself and others who owned lots in Block 207 in Hollywood Cen- EARLE v. McCARTY Cite as, Fla., 70 So.2d 314 tral Beach subdivision, a plat of which was recorded in 1924. In the tract, subdivided by Home Seek- ers Realty Company, was Block 207 which extended along the Atlantic Ocean for three thousand and six hundred feet and consisted of seventy -two lots fifty feet wide and varying in depth from one hundred to one hundred fifty feet. The western boundary of the lots was a street designated "Beach Drive" and beyond the drive was an irregular strip of land, without designa- tion, separating the street from the waters of New River Sound. In short the lots were bounded on the east by the ocean and on the west by the drive; between the drive and the sound was a narrow strip of land unnamed on the plat. We have used the past tense advisedly as will be seen when the facts alleged are digested. We go now to the bill of complaint for the additional facts relied upon for relief. Beach Drive which was "the only route of ingress and egress to and from each of said lots" was dedicated by the subdivider "to the perpetual use and benefit of the public ", but was never opened or defined, and never accepted by formal act of the City of Hollywood; nor was it "accepted by user, by the public" or anyone else. Al- so, it was "wild and unimproved." [1, 2] It was alleged that the strip of land between the street and the sound was also offered for dedication to the perpetual use and benefit of the public and that this piece of land was so small as to be of no "practical use or service" and was the re- sult only of the subdivider's desire to make the boundary of the street a straight line. The bald statement that the narrow strip of land was also dedicated is made despite the lack of any designation on the plat and it is followed by an averment that the sub- divider, in 1927 ex e -d a dee. onve - ing to the City of Hopwood the "streets, drives, boulevards, alleys, ways, walks, ave- nues and parkways" shown by the plat, to which we have already referred. We have held that an unlabeled space appearing on Fla. 315 a plat "indicates a reservation rather than a dedication ", City of Tarpon Springs v. Smith, 81 Fla. 479, 88 So. 613, 620, so the appellant's position is not sustained by the plat. And the deed gives him no support because the land unmarked cannot be brought within the description just quoted from that instrument. The pleader on the bases of these aver- ments then resorts to a principle of law he claims is pertinent, namely, that where a dedicated street is not accepted by act or user, or is abandoned, the title reverts to the abutting owners, and he asserts that he therefore owns the "drive" in front of his property "together with the narrow, meandering strip of land lying in the west thereof * * *." He links the charge that the street was not accepted with the charge that it was abandoned. This ap- pears inconsistent because we cannot see how abandonment could occur unless it fol- lowed acceptance. At this point in the analysis of the plead- ing we pause to say why we referred to the property in the past tense. All the lots involved in this suit have disappeared be- neath the waters of the Atlantic Ocean, while accretion to the disputed land sepa- rating the street from the sound has given it sizeable proportions. So appellant's reasoning as it is mani- fested in his bill now makes obvious the goal, or decree, toward which he is travel- ing. To become entitled to the accretion, he must extend his title to the property along water, making him an upland proprie- tor. His path in that direction is barred first by the street and next by the inter- vening strip. The former barrier has two aspects. Accepting for the moment the law he has stated he would be entitled to the land to the center of the drive. Once there he contends that the rest of the way is opened because the land on the other side of the street is not of sufficient size to be of "some practical use or service" which brings into play a rule that where a street is the border of property, its abandonment places the title of the whole street in the s 316 Fla. 70 SOUTHERN REPORTER, 2d SERIES abutting owner. On these premises and the one that the narrow strip was dedicated anyway he asserts that he brings his title to the water's edge. Of course, this reasoning, with reference to the west half of the street and the in- tervening parcel, even taking no account of the later accretion, depends on the prop- ositions that the land was dedicated or that it was not usable, or both. The words we have quoted last from the bill are indenti- cal with the words found in Chapter 10275, Laws of Florida, Acts of 1925, Section 177.08 Florida Statutes 1953, and F.S.A., providing specifications for maps or plats, but even assuming this law has the efficacy claimed for it, this act was passed the year after the plat in this case was record - td. And we are unable to construe the plat or the deed, as it is described in the bill, or both together as constituting a dedi- cation of the narrow strip. Before we leave this phase of the case we are impelled to remark that the signifi- cance we place on the west boundary of the street is quite different from appellant's interpretation. As we have written, he considered the intervening land as result- ing only from the wish of the dedicator to define that side of the street with a straight line. We think a straight line indicated a boundary not only of the street but also of the land west of it and that the sub- divider would have used an undulating line had there been any intention to dedicate all land between the east boundary of the street and the water. Brickell v. Town of Ft. Lauderdale, 75 Fla. 622, 78 So. 681. The plaintiff pinned his prayer for relief on the abandonment or non - acceptance of the street yet he represented that it was the only means of reaching his lots and the others in the block, a situation that is per- fectly plain from an examination of the plat. In anticipation of this condition, the plaintiff prayed "that a straight strip of land 40 ft. wide, as near as practicable to the waters of New River Sound, [along the new location of the shore] be set aside and dedicated for the perpetual public use of the owners of said lots * * * as a means of ingress and egress * * * and that such meandering strip of land [similar to the one so frequently mentioned] lying to the west of said 40 ft. road right -of -way and to the east of the waters of New Riv- er Sound be dedicated to the perpetual use of the public and of said land owners * * *,r In summary, the plaintiff was attempt- ing by judicial decree to move the block as well as the street and the intervening strip from its original position on the surface of the earth to a new one bounded on the cast by the new shore caused by erosion and on the west by the new boundary of the sound caused by accretion. [3] We think the plaintiff was not en- titled to the relief. The dedication of the `drive' by deed was accepted when the in- strument itself was accepted. There was no charge either that anyone in authority revoked the dedication prior to acceptance, or that the deed was not received and re- corded by someone fully authorized to act for the grantee -city. Even supposing that there was no physical 'manifestation of ac- ceptance of whatever dedication mjbe im- plied from the lat b im u rovi th still it was plain from the...re inrd. thaLthe city had assumed dominion over it. [4] The allegation of abandonment should be construed with the allegation that the street was "wild and unimproved," for if that was the character of the street it follows that it was the character of the property inasmuch as the street was the only way to reach it. A city may not be considered to have abandoned a street. shez cause of failure to improve it wheresteed__ or the improvement has not arisen _ See Indian Rocks Beach South Shore, Inc. v. Ewell, Fla., 59 So.2d 647. [5] This brings us back to the thought expressed before that even were the plain- tiff to succeed in proving there was no ac- ceptance or that there was an abandon- ment, he could take only to the center of the street because we find no dedication of DOBBS v. GRIFFITH Fla. 317 Cite -as, , 70 So.2d 317 the land separating the street from the wa- ter; and we discover no such unusual cir- cumstances as would make the ruling in Brickell v. Town of Ft. Lauderdale, supra, and like cases govern this litigation to the end that a decision would be entered in ap- pellant's favor with respect to the dedica- tion of the unmarked strip of land. Having concluded that the plaintiff could not extend his title to land bordering the sound, we see no need to discuss the va- lidity of the deed from the Trustees of the Internal Improvement Fund. There is no reason to decide who owned the accretion if the appellant had no claim to it. Aflirmed. ROBERTS, C. J., and HOBSON and DREW, JJ., concur. w KEY NUMM I SYSTEM T DOBBS v. GRIFFITH. Supreme Court of Florida. Division A. Feb. 2, 1954. Suit in two counts by widow individu- ally and as administratrix for wrongful death of husband resulting from automobile injury. From adverse judgment of Circuit Court, Dade County, Grady L. Crawford, J., defendant appealed. The Supreme Court, Mathews, J., held that where one count was based on claim as widow, and other based upon claim as administratrix, instructions which did not make it clear that if jury allowed loss of prospective estate of deceased on one count, they could not allow it on other count, were erroneous. Reversed with directions. 1. Death 0104(!) In action by widow individually and as administratrix on two counts for wrongful death of husband, instructions, which did not make it clear that if jury allowed loss of prospective estate of deceased on admin- istratrix' claim they could not allow it on widow's claim, were erroneous. F.S.A. §§ 768.01, 768.02. 2. Death C=I04(4) In action by widow for wrongful death, wherein there was conflict in testimony con- cerning possibility or probability of pain and suffering of deceased after injury, in- struction that widow had burden of show- ing that deceased did suffer pain as a re- sult of the injury should have been given. Dixon, DeJarnette & Bradford and A. Lee Bradford, Miami, for appellant. Milton Kelner and John K. Lewis, Miami Beach, for appellee. MATI-IEWS, Justice. This is a suit in two counts for wrongfui death of the husband. One count is based upon the claim of the widow for damages under F.S. Section 768.01 and Section 768.02, F.S.A. The other count is based upon the claim of the widow, as adminis- tratrix of the estate of her husband. The question of negligence or liability on the part of the appellant is not involved. The jury returned a verdict of $19,000 for the surviving widow, and $21,000 to the admin- istratrix of the estate. The question of errors with respect to damages and charges to the jury are pre- sented. The deceased was 67 years of age and earned approximately $50 per week as a gardener. The widow was 47% years of age and prior to her husband's death had been earning about $35 per week. The deceased was killed by being struck by an automobile. The only evidence of deceased's consciousness after he was hit was the testimony of the driver of the automobile concerning movements of the deceased for a period of about ten seconds CODES - Preparation -Trial "Study R - Research onference 5 - Dictation D - Drafting T - Telephone E - Discovery co very V - Travel PDTEK v Ct i Date 2 -I -ec( 2- 6-( 2 2- L Non - Client Time G - General Office Administration X - Bar Association Z - Personal K - Public TIME RECORD 1, rl 11 Client & Case ii it File # DECIMAL CONVERSION 6 minutes — .1 hour 12 minutes — .2 hour 18 minutes — .3 hour 24 minutes — .4 hour 30 minutes — .5 hour Description of Service 36 minutes — .6 hour 42 minutes — .7 hour 48 minutes — .8 hour 54 minutes — .9 hour 60 minutes — 1.0 hour A B C D E P R S T V / G X ZK A B C D E P R S T V / G X ZK city/A' meMU'y A B C D E P R S T V / G X ZK r A B C O E P R S T V / G X Z K A B D E P R S T V / G X ZK ) A B O D E P ®S T V/ G X ZK A 8 C® E P R S T V / G X Z K Attl 4P,44-9D A B C D E P R S T V / G X ZK A9, QL C,, / 4" A B C D E P R S T V / G X ZK Il A B O D E P R S T V/ G X Z K UZll\ A B C D E PR S 5v G X Z K Ci-1-4& B C D E P R S T V/ G X Z K A B C D E P R S T V / G X ZK A B C D E P R S T V / G X ZK Lawyer ,0‹ 9t_ Time 1-