OPEN ROAD OPEN ROAD WHO OPENED THE ROAD?
So You Say this plat ROW is not Open therefore it can be fenced and taken and cannot be used? Let us research the FACTS.
1894: WINTER V PAYNE SUPREME COURT OF FLORIDA
The facts of the case are stated in the opinion of the court.
HEADNOTES: 1. Where the owner of a tract of land makes a town plat of it with spaces for roads or streets laid out thereon and conveys lots with reference to, and bounded by such roads or streets, he thereby dedicates the said roads or streets to public use as such, and the grantees in the conveyances acquire the right to have said roads or streets kept open for the benefit of light and air, as well as passage ways.
2.Where a street, although laid off on a town plat in a certain course, is opened up by the owner on the ground in a course varying from the exact lines as indicated on the plat, and the street as opened up on the ground is thrown open to public use as a street before lots abutting on the same are conveyed by the owner, the descriptions in deeds subsequently made and referring to the street as a boundary will relate to the street as opened up on the ground and used at the time such deeds are executed.
1915: Supreme Court decision in Smith v. Horn [**11] , 70 Fla. 484, 70 So. 435, 436 (1915): Where the owner of land has it surveyed, mapped, and platted, showing subdivisions thereof, with spaces for intervening streets or other highways between the subdivisions clearly indicated upon the map or plat, and conveyances in fee of the subdivisions are made with reference to such map or plat, the owner thereby evinces an intention to dedicate an easement in the streets or other highways to the public use as such, the title to the land under the street remaining in the owner or his grantees; and, where such conveyances are made with reference to the map or plat, the dedication of the easement for street purposes cannot be subsequently revoked as against the grantees, and the title of the grantees of subdivisions abutting on such streets, in the absence of a contrary showing, extends to the center of such highway, subject to the public easement. And, where the highway is lawfully surrendered, the then holder of the title to abutting property and to the center of the street has the property relieved of the public easement.
1916: CC Chillingsworth’s Company had platted and mapped Palm City Farms and recorded the plat and began tours in wagons to sell parcels. By Jan 1 1925 all parcels and lots in town were sold. It was all “open”. The plat should be read into the deeds as though it were written there. The removal of the company from ownership of the saved and reserved roadways by the sale of all the parcels plus the user acceptance of the plat roadways or at least a portion of them made the plat irrevocable and created servient tenements and dominant tenements of the spaces labeled as roadways. This was per the Smith v Horn decision above and re-emphasized by later court decisions and further emphasized by the sole surviving trustee of the dissolved company filing a series of quit claim deeds in 1969 for any and all saved and reserved rights to the underlying parcel owners. The concept that acceptance of a portion of a roadway shown as a continuous unnamed and unlabeled space called a roadway on a plat perfected acceptance of all those shown was finally firmed up by Indian Rocks Beach South Shore v Ewell in 1952 by the Fl supreme court. CONFUSION IS CREATED TODAY PERHAPS INTENTIONALLY BY THE MIXING OF THE WORD ACCEPTED WITH "PLAT ACCEPTANCE" AND "ROADWAY MAINTENANCE ACCEPTED".
Original Deeds were form deeds that sold the parcels with a lot in town according to the plat with the following fee statement. “TOGETHER with all the tenements, hereditaments and appurtenances, and with every privilege, right, title, interest, estate, reversion, remainder and easement thereto belonging or in anywise appertaining: TO HAVE AND TO HOLD the same in fee simple.”
1925 May 25: Martin County is formed out of primarily Palm Beach County proof that either county formally accepted the plat has not been found therefore the acceptance by user delivered an easement to the public for highways and to the parcel owners for any other use not inconsistent with the public right to highways. Public and private rights are the same until the public rights are removed by legal means then the private rights which were co-existent and co-terminus but inferior to the public rights survive. The private rights are property rights that can be extinguished unless protected carefully.
1925: June 11: All plats had to be approved before being recorded.
1972: Nov.7 approved by County Commission Approved by State Nov 19th 1972:
Open Road Ordinance specifying that to get a building permit the road would have to be opened by the County Commission or be already open as recorded on the Hanson Roadway Inventory required of all counties by the State Law.
Number: AGO 78-88
Date: June 15, 1978
Subject: County roads, limitations on expenditures
Quoting in part:
AS TO QUESTION 2:
I assume for purposes of this question that you refer to a plat recorded prior to 1925 upon which a road or roads are designated as being dedicated to the public. Chapter 10275, 1925, Laws of Florida, was the first legislative effort to regulate the filing for record of maps and plats in Florida. Attorney General Opinion 071-307. Section 10, Ch. 10275, 1925, Laws of Florida, provided as follows:
Before said map or plat shall be presented to the County Clerk for record, the owner or owners shall cause to be placed thereon a certificate of approval by the County Commissioners, Town Board, or Council, or the Board of Commissioners (in municipalities having a commission form of government) or their accredited representatives, having jurisdiction over the land described in the said map or plat. However, such approval shall not bind the County Commissioners, Town Board, City Council or Board of Commissioners to open up and keep in repair any parcels dedicated to the public in any map or plat so offered, but they may exercise such right at any time. (Emphasis supplied.)
One effect of the above-quoted statute was to require all plats recorded after the effective date of the act, June 11, 1925, see s. 15, Ch. 10275, supra, to be approved by the appropriate governmental body:
If the plat or map is wholly within a municipality and is approved by the proper city officials then it does not have to be approved by the Board of County Commissioners. If the map or plat is of property not within a municipality then the approval of the County Commissioners should be had. [Attorney General Opinion of May, 5, 1926, Biennial Report of the Attorney General, 1925-1926, p. 385.]
Accord: Attorney General Opinion 071-307. Thus, the approval required by the foregoing statute did not operate as an acceptance of an attempted public dedication by plat. Following approval of any such map or plat, the exercise of the right to affirmatively accept the specified dedication could be effectuated by formal or informal act of the county or by use by the public, in conformity with the principles of common law dedication by plat. See AGO's 078-63, 075-309, 059-133, and the authorities cited and discussed therein. The Supreme Court of Florida has held that
. . . [a] common-law plat has no effect as a conveyance, and an offer to dedicate thereby created may be revoked by the owner or his grantee at any time before acceptance by the public. 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 dedication. The acceptance of a common-law dedication need not immediately follow the offer to dedicate, but must be within a reasonable time and before withdrawal by the offerer. What constitutes a revocation of an offer to dedicate depends very largely upon the circumstances and is usually a question of fact . . .. [City of Miami v. Florida E. Coast R., 84 So. 726, 730 (Fla. 1920).]
Accord: Marion County v. Gary, 88 So.2d 749, 750-751 (Fla. 1956); Winter v. Payne, 15 So. 211, 213 (Fla. 1894). The burden of proving acceptance within a reasonable time lies with the governmental body asserting same:
Acceptance of such an offer of dedication may be by formal resolution of the proper authorities or by public user. The burden of proving acceptance of an offer to the public to dedicate lands for streets, alleys, and parks is upon the county or municipality asserting it. . . . No dedication is complete until acceptance by the public. [City of Miami v. Florida E. Coast R., supra, at 729.]
Accord: Marion County v. Gary, supra; Kirkland v. City of Tampa, 78 So. 17, 20-21 (Fla. 1918). As a matter of the law governing private property interests, as opposed to the law governing public dedications, purchasers of platted subdivision lots who take in a sale made with reference to the subdivision plat may acquire a right or rights in the nature of an easement with regard to roads or other 'public' areas designated on said plat. E.g., Burnham v. Davis Islands, Inc., 87 So.2d 97, 100 (Fla. 1956); McCorquodale v. Keyton, 63 So.2d 906, 909-911 (Fla. 1953); AGO 078-63. Such an easement may be used by the holder thereof in a manner consistent with an established public user of such roads or areas, e.g., Wilson v. Dunlap, 101 So.2d 801, 804-805 (Fla. 1958); see Price v. Stratton, 33 So. 644, 646-647 (Fla. 1903); Porter v. Carpenter, 21 So. 788, 790 (Fla. 1897), or such a private right may arise and be exercised in the absence of public acceptance of the dedication, such as the right to make use of the road or area and the right to keep the road or area open for public use. E.g., Powers v. Scobie, 60 So.2d 738, 739-740 (Fla. 1952); Florida E. Coast R. v. Worley, 38 So. 618, 623 (Fla. 1905); cf. Smith v. Horn, 70 So. 435, 435-437 (Fla. 1915). However, as I have stated herein, it is not the province of this office but that of the courts to determine such questions of fact and adjudicate such rights. See City of Miami v. Florida E. Coast R., supra, at 730; cf. Escambia County Bd. County Comm'rs v. Bd. Pilot Comm'rs, supra, at 702.
To summarize the foregoing general principles of law with specific reference to your precise question, a county may not expend public funds for maintenance of roads designated as having been dedicated to the public on a plat recorded prior to 1925, unless: The county has formally or informally or by public user accepted any such offer of public dedication; the county has so accepted such offer prior to revocation thereof by the dedicator or his successors in interest; the roads in question are in fact used or to be used as county public roads; and the expenditure of such funds would serve a county public purpose.
So: 1. When did Martin County open its first road?
2. How many roads were already open in Martin County by then?
3. When will we done with the myth that Martin County must reopen already open platted un-opened by the county roads?
ORDINANCE 791 DISCUSSES MARTIN COUNTY'S ROAD OPENING PERMIT WHICH HAS NOTHING TO DO WITH THE LEGAL USE OF A PLAT RIGHT OF WAY RATHER IT SPECIFIES ROAD REQUIREMENTS TO GET A BUILDING PERMIT. THIS REQUIREMENT STARTED IN 1972.
ANOTHER PERMIT REQUIREMENT IS THE "RIGHT OF WAY USE PERMIT" REQUIRED TO CONSTRUCT ANYTHING ON A RIGHT OF WAY SUCH AS UTILITY LINES OR DO SIGNIFICANT MECHANICAL CLEARING OF PLATTED UN-OPENED RIGHT OF WAYS OR PAVING A PLATTED UN-OPENED ROADWAY.