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Follow the links to Interactive Maps, County Commissioners Maps,Parcels, turn on 2006 aerials enjoy. Useful for determining ownership and dimensions of County land.
To retrieve the plat of Palm City Farms enter Formerly Palm Beach County then book 6, then page 42
To retrieve the plat of Palm City the Town enter 41 just above 42.
To retrieve the Palm City Drainage District plat enter Martin County plat Book 4 Page 60.
Blue Boxes are Live Links click to go there. The full Lexis Summary of the Laube Case is shown below.
A handy site for gaining some knowledge of Florida laws; to focus on trails use the SEARCH BOX to retrieve opinions. A good search for the Palm City Farms plat situation is "PLAT" about 30 results. Of particular interest may be those opinions relating to County Roads and Plat Recordation or maybe a search using "private Rights" about 250 returns. Enjoy

To whom it may concern:
Edna lost her claim to the property that is today a park at the east end of Osceola St. in Stuart. She lost even though she presented color of title, proof of having paid taxes on the property, possessing by fencing and keeping people out for many years, also improving the land by plantings and landscaping. She lost because the taxes paid were ruled a mistake, adverse possession or prescriptive extinguishment are not possible against a plat dedicated right of way or parkway that is accepted by the governmental body. Would the same be true if it were Martin County making the claim instead of the City of Stuart? Owners in  the Farms who have taken ROWs do not show color of title on their deed nor have they ever paid taxes on the land taken. The plat is attached below for reference. This document is the Lexis Nexus summary.

Edna L. LAUBE, Appellant, v. CITY OF STUART et al., Appellees.
No. 534.
District Court of Appeal of Florida, Second District.
107 So. 2d 757; 1958 Fla. App. LEXIS 2378
Dec. 23, 1958.

COUNSEL: [**1] 

Evans Crary, Jr., of Crary & Crary, Stuart, for appellant.

Errol S. Willes, of Willes & Bittan, Fort Pierce, and T. T. Oughterson, of Oughterson, Scott & Oughterson, Stuart, for appellees.

OPINIONBY: SHANNON

OPINION: [*757] SHANNON, Judge.

This is an appeal from an order of the chancellor below dismissing the plaintiff's [*758] amended bill of complaint after all evidence was taken. The suit involved the title to two certain parcels of land lying in St. Lucie Estates Subdivision.

The plaintiff-appellant, in her brief and in argument before this Court, has set out four points, but for the purpose of this appeal they may be condensed as posing the following questions:

1. Were the two parcels of land ever dedicated to the public and if so, was there an acceptance of the dedication by the public?

2. If there was a dedication and acceptance of the parcels in controversy, was the City of Stuart estopped by its conduct, through its officials, from claiming any interest therein?

We are attaching a portion of a diagram of the original plat of St. Lucie Estates Subdivision filed in 1924, showing the particular parcels of land herein involved.

[See illustration in original.] [**2] 

From the plat and from the amended complaint and the evidence, the plaintiff holds title to lots 7, 8 and 9 of Block 9, and one of the defendants, Bittan, owns lot 6 of Block 9. The two parcels of land involved are marked on the plat as A and C. In the final decree the chancellor found that Parcel A was a part of a street called Osceola Avenue and that Parcel C was a parkway, as will more fully appear from a portion of the decree which reads:

"1. That the plat of St. Lucie Estates was duly recorded on December 5, 1924, dedicating various streets and parkways, including Osceola Avenue - which embraced Parcel 'A', and the parkway - being Parcel 'C', and that said plat with the dedications thereon was duly accepted.

"2. That the Plaintiff failed to establish that the dedication of Parcels 'A' [*759] 'A'and 'C' as set out in Plaintiff's Exhibit 1, had never been accepted or that the said parcels had been legally abandoned.

"3. That Parcel 'A', the eighty-foot strip, is a public street or thoroughfare.

"4. That Parcel 'C', the fifteen-foot parcel, is a public parkway.

"5. That the Defendant, City of Stuart, shall refund to the Plaintiff all taxes paid by the [**3] said Plaintiff on the two parcels of land hereinabove described.

"6. That the Plaintiff has failed to establish the material allegations of her Amended Bill of Complaint for the relief sought and that the Amended Bill of Complaint should, therefore, be dismissed."

Plaintiff claims the land in question primarily upon a trustee's deed from the developer and subdivider of the subdivision. The defendants claim that the said strips of land are public rights-of-way.

From the evidence it is shown that the streets in the subdivision were maintained by the defendant city, although the exact time of this is not shown. The particular parcels of land involved have never been improved or maintained by the defendants. It is shown that the parcels of land are covered with trees, shrubbery and lawn, which improvements were placed thereon by the plaintiff or her predecessors in title. The evidence also discloses that Parcel A has been assessed taxes by the defendant city since 1949 and that Parcel C has been assessed taxes by the defendant city since 1942 and that payment of the taxes has been made by the plaintiff or her predecessor in title. In addition, there is in the record a special [**4] warranty deed conveying the two parcels of land to the plaintiff's predecessor in title, the deed being from the trustee of the dissolved corporation of the subdivider. It also appears that the plaintiff's predecessor in title on April 8, 1942, appeared before the City Commissioners of the defendant city in regard to his improving a portion of the land. We quote from the minutes of the defendant as follows:

"The Commissioner explained to Mr. Irwin that while they personally had no objection to him planting a hedge on the street right-of-way between his property and Krueger Creek and extending from Osceola Avenue to East Fourth Street, which would take in a part of the right-of-way and still leave a 25 feet right-of-way with the understanding that the hedge would be moved if and when requested, it was impossible to officially grant such permission as the right-of-way is not City property."

The predecessors in title of plaintiff also appeared on several occasions before the City Commission relative to their abandoning and vacating the said parcels of land. In general, the defendant city did grant permission to the plaintiff or her predecessor in title to use and beautify the said [**5] parcels of land. The defendant, Bittan, who owned lot 6, lying just South of the plaintiff's land, had owned, or his predecessor in title had owned the same since 1924. This lot, which faced on St. Lucie Boulevard, had a 50 foot frontage, and by reason of a raise in elevation for a bridge would, if the plaintiff were successful, have some 25 feet usable frontage and no egress or ingress over the parcels of land involved herein. The defendant Bittan had filed a suit which was before the chancellor seeking a mandatory injunction to compel the defendant city to open the street, which was Parcel A, but upon stipulation the suit was held in abeyance pending the outcome of the instant suit.

On the first point that the plaintiff makes which concerns the dedication to, and acceptance by the public of the two parcels of land, the record is replete with testimony on both sides of the question, but the chancellor, from the amended complaint, [*760] the answer and the testimony, decided the question and we cannot say that in so doing his decision is erroneous.

The plat would indicate the subdivider clearly showed the intention to dedicate by marking in the words "not included" just [**6] North of the involved property. If it was not the intention to dedicate the involved property, there is no reason to believe that the words "not included" could not have been just as easily written on the property involved. Insofar as Parcel A is concerned, it very clearly appears from the plat that it is a continuation of St. Lucie Boulevard, and as for Parcel C, it is clearly marked with lines in the plat so as to constitute it a parkway.

In the case of Price v. Stratton, 45 Fla. 535, 33 So. 644, it was held:

"(1) When the owner of a tract of land makes a town plat thereof, laying the same out into blocks and lots, with intervening streets, clearly indicated upon the plat, separating the blocks, and conveys lots with reference to such plat, he thereby evidences an intention to dedicate the streets to public use as such; and his grantees, as against him and those claiming under him, acquire the right to have such streets kept open. This constitutes a complete dedication, and the streets cannot be closed up or obstructed, unless in pursuance of legal authority."

And again in Indian Rocks Beach South Shore, Inc., v. Ewell, Fla.1952, 59 So.2d 647, 32 A.L.R.2d 940, our Supreme [**7] Court definitely held, as stated in the headnotes, that:

"(1) Filing and recording of subdivision plat showing streets amounts to offer of dedication, which must be accepted by public before revocation or withdrawal of offer in order to complete dedication of such streets as public highways."

"(4) A recorded island subdivision plat, giving easement to county in streets shown thereon for public highways and definitely showing distinct lines bordering a name 'place', running from main street to meander line along 'narrows' shown on plat, and bounded by certain numbered lots on each side, constituted offer to dedicate such place as public street.

"(5) A municipality's acceptance of offer to dedicate some streets shown on platted subdivision constitutes acceptance of offer to dedicate entire system of streets shown thereon, in absence of proof of intention to limit acceptance."

That the offer of dedication was accepted by the public is, we think, plainly manifested by the use to which Parcel A was subjected by the public, although when the bridge in St. Lucie Boulevard was established the grade of the road made it practically impossible to use Parcel A.

The next point, assuming [**8] the dedication and acceptance of the parcels in controversy, is the defendant city estopped by its conduct from claiming any interest therein? Under this point we have the question of adverse possession and estoppel by conduct.

McQuillin on Municipal Corporations, 3rd Edition, Volume 11, Page 93, Section 30.179, sets out, with reference to adverse possession, the majority rule which obtains in our state, as follows:

"There is much conflict in the decisions as to whether the right to a street or alley may be lost by adverse possession. In a few states such property is looked upon the same as any property held by an individual and the maximum 'nullum tempus occurrit regi' is considered not applicable to municipal corporations so far as streets and alleys are concerned, and hence title can be acquired to all or a part of a street by adverse possession, provided the possession is hostile and not merely permissive. Caution is advisable, however, in considering the cases following [*761] this view, for in a number of states in which the courts formerly followed this view statutes have changed the rule to accord with the weight of authority. By the great weight of authority [**9] it is held in nearly all the states that the right of the public in a street or alley cannot be divested by adverse possession of another for the statutory period, unless the public use has been abandoned by competent authority and the land is held as proprietary property. Nor is it material that the adverse possession is all of the street in question, instead of merely a part thereof.

"Accordingly, by the weight of authority, title to public streets and alleys cannot be acquired by prescription. Even in those states where the minority rule has prevailed, most of them have enacted more or less recent statutes changing the law so as to conform with the prevailing and modern view; and the enactment of such statutes is within the power of the legislature. However, in some jurisdictions, there are provisions conferring title by adverse possession where a building encroaches on a street for twenty years, in certain cases."

In Waterman v. Smith, Fla.1957, 94 So.2d 186, 189, in a well-reasoned opinion, Mr. Justice Thomas said:

"(3-5) The basis for the holding that the appellees had the fee simple title to the property not only to the center of the alley but beyond was the adverse [**10] possession they are supposed to have exercised, else upon failure of acceptance of the offer of dedication or upon abandonment they would have owned only to the center. Concluding that the alleys were dedicated and accepted as a unit, we approach a solution of the final problem, that is, whether or not the appellees could have obtained fee simple title to a part of the east-west alley by adverse possession. We reach the decision that under the circumstances we have related the appellees could not have become vested with title in fee simple to the property involved; that adverse possession of property held by a city for the use of the public cannot ripen into a prescriptive title. Norrell v. Augusta Ry. & Electric Co., 116 Ga. 313, 42 S.E. 466, 59 L.R.A. 101. According to this authority the obstruction of a street is a public nuisance. Not only is this the nature of an undertaking to acquire a street for private use, but even the failure of the city cannot operate to 'invest an intruder with title' to a street. House-Wives League, Inc., v. City of Indianapolis, 204 Ind. 685, 185 N.E. 511. Cf. City of Gainesville v. Thomas, 61 Fla. 538, 54 So. 780.

"Our understanding of the authorities [**11] is that title by adverse possession cannot grow out of the use of a street which amounts to an obstruction, and that this cannot be accomplished so far as the land to the center is concerned much less to the land beyond the center. The citations of cases on the general subject are listed in 2 C.J.S. Adverse Possession § 14."

On the question of estoppel through conduct, one of the strongest points presented by the plaintiff is the fact that the defendant city collected taxes on the property in question from the plaintiff. That this was erroneously done is quite plain from the evidence, but the chancellor found against the plaintiff up the testimony, and, as was held by our Supreme Court in City of Miami v. Jansik, Fla.1956, 89 So.2d 644:

"(3) Fact that city imposed and collected ad valorem taxes on lot, as to which the city claimed a common law dedication, both before and after the alleged dedication, was not necessarily conclusive against the city's claim of a dedication, but would certainly not aid the city's case."

That the collection of taxes was erroneous is plainly shown in the evidence and it [*762] was only in recent years that such taxes were assessed against [**12] the lots. For approximately twenty years the defendant city did not assess or collect taxes.

It is true that the plaintiff's predecessor in title did appear before the City Commissioners at a regular meeting to make inquiry concerning the status of the parcels in controversy. At that time he simply requested permission to improve and beautify the parcels with the understanding that should the city at any future time desire a right-of-way through the property, the improvements would be removed. It is true also at that time that he was advised by the City Commissioners that they could not grant the permission requested "as the right-of-way is not City property." Assuming that the plaintiff's predecessor in title did not claim the property and simply wanted permission to improve the same by planting trees and lawn thereon, it could not be said that by using the phrase, "the right-of-way is not City property" the Commissioners would set up an estoppel in his favor. Subsequently, during February 1949, the City Commissioners were advised by the City Manager that the plaintiff's predecessor in title had obtained a deed to the parcels of land "which were formerly a street" and at a [**13] continuation of the Commissioner's meeting held one week later they decided to "take no steps in this matter." During this time there was apparently a great deal of controversy regarding these two parcels of land, including arguments between the parties as to whether or not the payment of $500 to the trustee of St. Lucie Estates Subdivision was for the purchase of these lands or in reality whether it was an attorney's fee paid to him to represent the plaintiff's predecessor in title. The chancellor has ruled, in essence, that on the testimony the plaintiff had not made out equitable estoppel. With his ruling, this Court is in complete agreement.

In Trustees of Internal Improvement Fund v. Claughton, Fla.1956, 86 So.2d 775, 790, where the doctrine of equitable estoppel was applied, the Supreme Court did approve the following language:

"'* * * It thus appears that what has been called an equitable estoppel, and sometimes with less propriety an estoppel in pais, is properly and peculiarly a doctrine of equity, originally introduced there to prevent a party from taking a dishonest and unconscientious advantage of his strict legal rights, - though now with us, like many other [**14] doctrines of equity, habitually administered at law. * * *

"'* * * the doctrine has not in equity been limited to cases where there was an actual intention to deceive. The cases are numerous where the party who was estopped by his declaration or his conduct to set up his legal title, was ignorant of it at the time, and of course could have had no actual intention to deceive by concealing his title. Yet, if the circumstances were such that he ought to have informed himself, it has been held to be contrary to equity and good conscience to set up his title, though he was in fact ignorant of it when he made the representation. * * * Nor is it necessary in equity that the intention should be to deceive any particular individual or individuals. If the representations are such, and made in such circumstances, that all persons interested in the subject have the right to rely on them as true, their truth cannot be denied by the party that has made them against any one who has trusted to them and acted on them.'"

However, there was in this case no misrepresentation of the facts. The plaintiff and plaintiff's predecessor in title could have seen, and presumably did see, the plat. [**15] That they saw the plat and recognized the fact that the city owned rights to the property herein involved and, recognizing this, they sought to rely on a deed which they then obtained from the trustee of the dissolved St. Lucie Estates Subdivision, [*763] gives credence to the fact that they well understood and were trying to obtain the property herein.

Affirmed.

To view the plat directly from the County web site go to Martin County Plat Books above and look up Palm Beach County Book 10 Page 70
A few photos to show the park that Edna wanted in 1958 click to view large size.
Be sure to scroll down to read the Local Case of Edna Laube v. City of Stuart and see pictures of the Park that you can easily visit.
Fencing of Palm City Farms Plat Right of Ways (ROW):
Introduction: It is well known that many of the plat ROWs have been fenced for many years. There are many theories offered to explain this situation. None of the theories offered represent a clear and certain proof that the fencing is anything other than tolerated by the County and many of the other landowners in the subdivision. Some of the fences clearly were erected to contain animals for the agricultural use of the property enclosed. Some of the fences were erected just to exclude others from using or crossing the land. There must be an answer to the question of the legality of fencing a dedicated plat ROW in this particular plat. We will examine the records of the County to determine the truth. We also will examine the State Laws and the Case Law Records of the higher courts of the State for applicable records. There seems to now be a distinction by County Code Enforcement and the Building Department around “How long has the fence been obstructing the ROW?" Current new fences are not allowed without a permit which restricts construction to what is shown on the survey, within 20 ft. of a waterway, on an easement, or other restrictions as attached to the permit.

County Records: A search of the County records returned some relevant information.
The web address below is for a memo from Asssistant County Attorney Rodrigues to Commissioner Dennis Armstrong in 1998. The text is in quotes.
//www.martin.fl.us/GOVT/depts/leg/corresp/1998/leg98m.343.html                          
“The issue of whether a property owner may plant shrubs or put up a fence on a      county easement turns on what type of easement is on the property.
If the property is encumbered by an underground utility easement, then the planting of shrubs or the placing of a fence should not present a major problem. However, in the event that the county must access the underground utilities (i.e., phone lines, sewer lines, etc.) as the dominant estate, the county may uproot the trees or remove the fence in order to access its utilities.
If the property is encumbered by a right-of-way easement, then the planting of shrubs or the placing of a fence would not be allowed across the easement. The courts in Florida have held that such a impedement of access across an easement is not allowed. The county may direct the person who placed the shrubs or fence to remove them and have a court order the removal.”

Fence Permits: Martin County has a permit system that controls fences by Ordinance. The computerized records in the KIVA NET system show that 11047 permits have been applied for as of 1/1/2010 since 1990 when the electronic system started keeping records. A search of this system shows nine (9) permits applied for between 1/1/2008 and 1/1/2010 for properties in Palm City Farms of  a total of 1300 for the County. By observation there have been many more new fences erected than have been permitted. The Fence Affidavit of Compliance and the Fence Checklist indicate fencing across an easement is not allowed! So are these plat ROWs easements or not? Reviews of numerous certified surveys of random parcels in the Farms indicate they are either labeled ROWs or easement by the surveyor. The following Florida Appeals Court case presents an interesting case and a more interesting reference to a supporting case. Very good case for it defines permissive use and how to remove obstructions even if they are already constructed and by permit. 

*** TOWN OF LAUDERDALE-BY-THE-SEA, FLORIDA v. MERETSKY CASE NO. 4D99-4194 COURT OF APPEAL OF FLORIDA, FOURTH DISTRICT 773 So. 2d 1245; 2000 Fla. App. LEXIS 16233; 25 Fla. L. Weekly D 2846 December 13, 2000, Opinion Filed 

Discussion:
In the case of Lauderdale-by-the -sea v. Meretsky the issue was a wall taking a portion of the right of way. The Meretsky's had a building permit for the wall but the permit was a mistake by the building permit authorities. The wall was ultimately ordered removed and is no longer there. 
A recent case in the Farms of a fence built by permit with all the apparent checklisted and survey requirements met helps to define the nature of our problem. A landowner applied for a permit showing the fence to contain sheep properly located by showing on the survey that it would cross no easements. When the fence was built it crossed and enclosed half the easement of SW Boatramp Ave. just north of SW Woodham St.; roadways with in the plat of Palm City Farms. At first both Code Enforcement and the Building Department responded with the fence is built and approved as is. Following discussion the County Surveyors did a survey and showed the fence was not built according to the plan and application. The fence is now relocated to its proper location and the trail can proceed to be used.


Aerial View of St. Lucie Estates
Plat of St. Lucie Estates same as on County Site
The slides below show the area in question as an aerial photo and as the plat document. Click to view full size.
TO WHOM IT MAY BE A CONCERN:
The issue of liability for property owners who have land abutting a right of way has been researched and it is my opinion backed up by a review by the Trail Association's attorneys that though anyone can sue anyone for anything there is very little chance that the suit will be won or even make it to a court for anyone being hurt on a right of way by anything other than an intention trap or unsafe condition created by the abutting owner. It is therefore prudent to not interfere with the lawful use of the easement in any way and rely on the fact that you have not created a basis for a lawsuit to protect you as the abutting owner rather than attempt to control and deny the lawful use of the easement. The referenced case was ruled on at the appeals court level and therefore only had recourse to the Florida Supreme Court which was denied. Though it did not make it to the Supreme Court the references to Tort rulings are so clear (in my opinion) that I believe they would have lost again. Zipkin lost every time and failed to collect any payment for the death of the truck driver AND ALSO HAD TO PAY ALL THE ATTORNEY AND COURT COSTS. A quick summary of the case is provided from the Lexis Nexus Summary which anyone can reference for free at the Martin County Law Library as they also can reference all the cases cited in this case. The cost of copies from the law library is (I believe) 10 cents per page: 
 
The factual background of this case begins in 1967 when James Wilkinson purchased a strip of land which bordered the northern edge of his property in western Palm Beach County. The warranty deed contained the following provision:

The grantor reserves unto herself, her heirs, administrators, successors and assigns forever a right of ingress and egress for vehicular and pedestrian traffic over the north 20 feet of the above described lands, but with no duty of the grantee to maintain such road as may exist thereon.

The above easement consisted of a "dike road" which ran from east to west [**2] across the newly-acquired property. As suggested by its name, it served a dual function. As a dike it separated water and drainage systems in one farm from another. As a roadway it served as a connecting link to the public highway. The dike was composed of mud scooped out of the canal, piled into a mound and packed to form a levee. Deep canals bounded it to the north and south. The banks of the dike were steep, but not vertical. The top had been flattened to serve as a roadway and measured approximately eighteen to nineteen feet in width. It was about twelve feet from the road surface to the canal waters below.

In 1976, Harold Gilbert owned the easement and the land east of Wilkinson's. Gilbert's land contained a rock pit from which [*1042] shell rock was extracted by the Rubin Construction Company. Apparently, a major road construction project was in the offing and Rubin hoped to supply all of the shell rock. In the same vein, a trucker by the name of Ramon Capote hoped to obtain the contract to haul shell rock from Gilbert's rock pit to the road construction site. Since this plan would necessitate heavy volume truck traffic over the dike road, Rubin and Capote [**3] agreed to resurface the dike road with a layer of shell rock.

On March 11, 1976, David Mariaca was working as a truck driver for Ramon Capote. Mariaca's job was to haul shell rock from Gilbert's rock pit to a point on the road where a bulldozer waited to spread the shell rock. The dumping procedure called for the trucks to drive around the bulldozer, dump the shell rock on the roadway and then proceed west on the dike road. Since the roadway was about eighteen feet wide and the bulldozer blade was ten feet wide and the trucks were eight feet wide, passing was a precarious maneuver which demanded extreme caution. To facilitate the procedure, the bulldozer would pull to the south side of the road and allow the left end of the blade to hang over the bank. This gave the trucks about two feet of clearance.

On Mariaca's third approach of the day, approximately forty-four feet from the rear of the bulldozer, his fully loaded truck went over the edge of the dike road and landed upside down in the canal. Mariaca drowned. State troopers investigating the accident determined that about two feet of the roadway at the edge had given way under the weight of the loaded truck.

Zipkin, [**4] as the representative of Mariaca's estate and on behalf of his wife and children, filed suit against a number of individuals including Wilkinson and his farming corporation. Zipkin alleged that Wilkinson and his corporation were negligent (a) in failing to maintain the dike road, and (b) in failing to warn plaintiff's decedent of latent defects in the road. Wilkinson and his corporation moved for summary judgment. The trial court granted the motion and this appeal ensued.


 
PROPERTY OWNERS IN THE FARMS PERSONAL LIABILITY TO EASEMENT USERS
The bold sentences are added by this author to guide the reader to the references from the case cited. The yellow highlight paragraphs are to guide the reader to this author’s opinion of the duty owed by a landowner of the land underlying a right of way in Palm City Farms to any user of the right of way who has no contract or agreement with the actual underlying landowner. This author’s view is that any user of an original plat (Book 6 Page 42 of Palm Beach County now Martin County) right of way in Palm City Farms is an uninvited licensee and that servient owners are all property owners in the same Palm City Farms for the 15 ft on their side of the right of way while dominant owners are those who own other parcels shown on the plat of the Farms AND THEREFORE HAVE A PRIVATE RIGHT TO THE USE OF ALL THE ROADWAYS SHOWN. Because of the plat and the laws in effect at the time of its filing the plat right of ways are easements with public and private rights to use defined by the plat. The abutting owners hold an underlying title to the 15 ft on their side of the centerline of the roadways shown on the plat but this title is subject to the public and private easement and all the laws pertaining to the use of easements. The title right does not rise to 100% ownership until the public and private rights are removed by legal processes like roadway abandonment and a re-plat that completely removes the easement AND TAX PAYMENTS ON THIS STRIP ARE PUT BACK ON THE PROPERTY. Feel free to copy and give this to anyone you think can benefit from it and encourage them to seek their own advise from a licensed attorney. Perhaps we will have a 100% on point case at some point in the future that will finalize this issue for Palm City Farms. There are likely many other cases that can be referenced but this one was found and appears to apply. 

Reference Source Case:

Norman H. ZIPKIN, Appellant, v. RUBIN CONSTRUCTION COMPANY, et al., Appellees.
Nos. 80-965, 80-1009.
District Court of Appeal of Florida, Fourth District.
418 So. 2d 1040; 1982 Fla. App. LEXIS 21478
July 7, 1982; Rehearing Denied Sept. 20, 1982.


Reference Identified, excerpted, and copied from the Case and displayed below.

Section 349 of the Restatement (Second) of Torts (1964) which provides:

A possessor of land over which there is a public highway or private right of way is not subject to liability for physical harm caused to travelers upon the highway or persons lawfully using the way by his failure to exercise reasonable care

(a) to maintain the highway or way in safe condition for their use, or

(b) to warn them of dangerous conditions in the way which, although not created by him, are known to him and which they neither know nor are likely to discover.

The only duty the owner of the servient tenement has is to not interfere with the use of the easement for purposes of access by the owner of the dominant tenement, that is, the owner of the easement.

Since an easement is essentially "a privilege which the owner of one tenement has a right to enjoy over the tenement of another," 25 Am. Jur.2d, Easements & Licenses, § 1, we find support for today's holding in Section 345 of the Restatement (Second) of Torts (1964) which provides in pertinent part: [T]he liability of a possessor of land to one who enters the land only in the exercise of a privilege, for either a public or a private purpose, and irrespective of the possessor's consent, is the same as the liability to a licensee. [**8] 

[*1044] The duty owed by a landowner to an uninvited licensee has been stated as follows:

The duty owed to a licensee is to refrain from wanton negligence or wilful misconduct which would injure him, to refrain from intentionally exposing him to danger and to warn him of a defect or condition known to the landowner to be dangerous when such danger is not open to ordinary observation by the licensee.
Hall v. Holton, 330 So.2d 81 (Fla. 2d DCA 1976), cert. denied, 348 So.2d 948 (Fla.1977).

Focusing on the duty to warn, it is now generally held that a landowner must exercise reasonable care to warn uninvited licensees of all hidden perils which are unknown to the licensee but are known to the landowner. A hidden danger or peril is nothing more than an unreasonably dangerous condition that an uninvited licensee could not reasonably be expected to discover or appreciate. The landowner, however, has no duty to warn of conditions which a reasonable person would observe and avoid through the ordinary use of their senses. In short, superior knowledge of the danger is essential before there is a duty to warn. Vermont Mutual Insurance Co. v. Conway, 358 So.2d 123 [**9] (Fla. 1st DCA 1978); Rice v. Florida Power and Light Co., 363 So.2d 834 (Fla. 3d DCA 1978), cert. denied., 373 So.2d 460 (Fla.1979).





Definitions of Trespasser, Uninvited Licensee, Invitee from this case.

Florida [**6] classifies entrants onto the land of another into the following three [*1043] categories: (1) trespassers, n2 (2) uninvited licensees, n3 and (3) invited licensees and invitees. n4 Wood v. Camp, 284 So.2d 691 (Fla. 1973). The status of the entrant and the corresponding duty owed by the landowner must be gleaned from the relationship between the two. "[I]t is the relationship established between persons which must be the criterion for the duty owed." Id. at 694. Moreover, where the facts are not in dispute, it is appropriate for the court to fix the status of the entrant as a matter of law. Id. at 696. 



n2 A trespasser is one who enters or remains upon land in the possession of another without a privilege to do so created by the possessor's consent or otherwise. Page, The Law of Premises Liability, Section 2.2 (1976).

n3 An uninvited licensee is one who enters upon the property of another for his own convenience, pleasure, or benefit. Post v. Lunney, 261 So.2d 146 (Fla.1972). The most practical definition of a licensee is any person who is neither a trespasser nor an invitee. Page, The Law of Premises Liability, Section 3.2 (1976).

n4 Florida has adopted the definition of an invitee found in the Restatement (Second) of Torts, Section 332 (1964):

(1) An invitee is either a public invitee or a business visitor.

(2) A public invitee is a person who is invited to enter or remain on land as a member of the public for a purpose for which the land is held open to the public.

(3) A business visitor is a person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land.
Florida has expanded the invitee category to include "those who are 'licensees by invitation' of the property owner, either by express or reasonably implied invitation." Wood v. Camp, 284 So.2d 691, 695 (Fla.1973). [**7] 

Definition of “Dominant Tenement” and Servient Tenament” from this case.

n5 This is consistent with the general rule that, absent an agreement to the contrary, the burden of maintenance and repair falls on the dominant tenement (easement owner) rather than the servient tenement (underlying land owner). 25 Am.Jur.2d Easements and Licenses § 85 (1966); Renden v. Geneva Development Corp., 61 Cal.Rptr. 463, 253 Cal.App.2d 578 (C.A.Cal.1967); Triplett v. Beuckman, 40 Ill. App.3d 379, 352 N.E.2d 458 (Ill.App.1976); Archambault v. Williams, 359 Mass. 742, 268 N.E.2d 926 (1971); Janes v. Politis, 361 N.Y.S.2d 613, 79 Misc.2d 941 (S. Ct.N.Y.1974). This principle has been fully accepted in Florida. 20 Fla.Jur.2d Easements § 35 (1980); Sebastian River Drainage District v. Ansin, 29 Fla.Supp. 77 (1967), affirmed, 223 So.2d 57 (Fla.4th DCA 1969).







ANOTHER HUGE CONCERN EXPRESSED:
IF THESE PLAT RIGHT OF WAYS ARE MADE AVAILABLE FOR USE THERE WILL BE CAMPERS AND INTENERATE PEOPLE SETTING FIRES AND THREATENING THE ABUTTING PROPERTY WITH THEIR MISCHIEF.
The Trail Association does clear a path through the overgrown and neglected strip so we can have a trail on the public domain. We do not understand that the fear of fires gives the abutting owners of parcels a right to take the right of ways as personal property behind fences. We have as many miles of trails returned to service as there are open roads in the Farms and believe that the fire protection for the area is superb. Most of the fires started in the area are from resident burning on their own property or probably from discarded smoking materials from vehicles using the roads, turnpike, and interstate 95. Another source has been controlled burns by the authorities which became uncontrolled. Let the proper authorities take care of it.
Bees were brought up as a reason to take the right of ways and keep the public safe from stings and attacks. Answer Please
HORSE MANURE MAY HAVE BEEN THE HUGEST ISSUE OF ALL. WE LEAVE THAT TO YOUR OWN RESEARCH. GOOGLE WILL RETURN OVER 2,000,000 DOCUMENTS FOR YOUR PERUSAL.
PERHAPS THE MOST INTERESTING IS THE "CRISIS OF 1894"

Question 2: I would like to ask why the Boat Ramp road easement was not chosen to go south to I-95 across Woodham, since this is the most direct route to connect to the bridge that you have planned over I-95. why would you want to cross 5-6 extra paved roads(Moore St., Savage Ave., Quail Hollow,and Ranchito) with vehicle traffic, rather than  just one for the safety of horseriders and auto's?
 
Obviously you have now looked at the Trail Association web site! SW Boatramp Ave is a designated Martin County Greenways and Trails Committee recommended connectivity main artery through Palm City Farms as is SW 54th Ave. It actually begins at highway 609 some 8.5 or so miles west of the actual Boatramp located on SW Boatramp Ave at the C-23 canal also named the Robert B Jenkins Greenway approved by the Martin County LPA and  BCC as well as SFWMD. This trail provides connectivity for the canal, Canopy Creek, and all trails and roads to the Interstate at this time. This trail and road is actually in use all the way to the rest area of I-95 after it was completed on the easement past Naked Lady Ranch and negotiations are underway with the Fl.  FDOT to agree to a return of some of the rest area to facilitate using the platted unopened roadway of SW 63rd St to traverse to Citrus Blvd. At Citrus Blvd it will be necessary to provide a safety cage for crossing I-95: the design, size, space available is modeled at the turnpike crossing of Highway 714. Funding and construction needs work. Initial contacts with the State have been encouraging in that there are surplus picnic pavilions and access from the rest area that can be separated from the interstate. The survey of the rest area is in hand and is a major tool for planning how best to do this project. Options are available to traverse to Citrus Blvd. and are being worked as we speak with the landowners. Options to return to SW Boatramp Ave south of the interstate are available and one section of this trail is now recovered. Connectivity may be assured to the equestrian park named Hawks Hammock along Markel Street. The issue of crossing all those streets shows that you are thinking linearly instead of with connectivity in mind. There are many horse riders, hikers, and a few bicyclists that live on those streets that are trapped into shuttling back and forth between Citrus Blvd and the ditch at Boatramp or taken right of ways that should connect. They of course can load up and go somewhere else to have recreational opportunities but their rights to the use of the easements are the same as all owners in the Farms and also the public. Read the dedication on Book 6 Page 42. It is actually written rather than implied and may be judged to be a grant of easement over the unnamed and unlabeled roadways shown. The words "right to use" is I believe the derivation of the classier word "easement". Safety concerns abound but are not sufficient reason to dictate to the folks who can go where or how as long as their efforts are legal. 


 As I said I am happy to meet and discuss all the questions you may have. Some we will be able to reach closure on, some will generate more questions, and some may be unanswerable. I think we should take an ordered approach to this and get the questions understood, correctly stated, numbered, and then answered and recorded just in case there is an error in statement or understanding the basis will then be clear. I am not an attorney just a poor retired engineer who will do the best I can for the betterment of the community. Some of your questions are a matter of records, some are a matter of Case Law, some are frankly none of my business, some are speculative and futuristic. I hope you can see that not all the questions you can devise are easy or even have answers. I will work with you to try but we are going to begin use of that right of way. We can sharpen the questions and answers as we proceed because your questions will all come up again with other people.
    For example your questions #1 about John's Composite plat and the plat of Palm City Farms can take a lot of questioning to understand so I recommend that you get a copy of both from county records. Farms is Book 6 Page 42 Palm Beach County now Martin County John's is Book 5 Page 95 you can purchase large printed copies at the records archives office or get them downloaded from the county site. While you are collecting information get a copy of your deed unless you have one and a copy of your survey if you do not have one we can probably find out who did the survey from the caps on monuments and stakes that identify registered surveyors. Once you have read and studied these you should learn that John's is a minor re-plat of a part of the Farms executed for Beulah V Johns a widow to record lot splits. As with all deeds yours must be read together with the plat as though the plat were physically written into the deed. Yours is the Farms recorded February 17th 1916. Some of your neighbors is the John's plat. Close examination of John's plat will reveal that it does not encompass your parcel and if it had it was after the plat laws of June 11, 1925 and after county Ordinances that relate: specifically July 20, 1973 shortly after county ordinances about road openings, plats, roadway abandonments, etc were passed in Martin County and became ratified by the State November 19th 1972. Even though a re-plat is thought by some to completely erase all things on the land being re-platted: this one did not and so far I have only found two that did Tuscawilla and Country Place.. The right of ways and references to the Farms plat and the drawing as well as the words show that they are still there. Further a check of the property appraisers records will show all land in Martin County and will show whether it has been re-platted and show what still exists.This is readily available on the county web site. There are a few errors that have been discovered but very few. You are right John's does not abut the Farms plat it lies over it with certain things like the roadways showing through. If there is misalignment that is a question about surveys and accuracy because the survey rules basically take up many books but can be boiled down to "The oldest survey is accurate until proven by competent registered surveyors in consultation within the rules for requesting a correction are worked with the State of Florida department which controls and will rule on corrections when required". There are very few certified section corners out here and unless surveys start from State Certified corners they are at best history of surveys that may not match the facts. So the starting point for any questions about surveys is the surveys themselves and the surveyors involved not the lay public. There are survey stakes and monuments that can guide us in finding the 30 ft right of way and if we agree and your survey agrees that is really all we need to know at this time. Molestation of monuments is know for some locations but yours appeared to be accurate enough for us especially if we reference your survey and Mr. xxxxxxx most recent survey. So you see Steve getting the questions right makes getting the answers easier. We have to study: not speculate. We definitely will stay in the easement; we do not trespass. 

QUESTIONS / RESPONSES:  E-MAIL SUBMISSIONS
QUESTION 1 AND INTRODUCTION:
SW 78th Ave at SW 30th St  Gator Trail looking North
SW 30th St Gator Trail looking East of SW 78th Ave
SW 30th St looking West of SW 78th Ave
SW 33rd St West of SW 78th Ave
SW 33rd St East of SW 78th Ave
Photo Record of ROW's Taken to be Recovered click on photo to enlarge and read caption
Question 3: Also Why is the Savage St. easement next to XXXXXXXXXXXXXX been closed? didn't want the trail on his fence line? 
 
That roughly 660 ft of the right of way within the private property of SW Savage (aka SW 51st St) was officially abandoned by Martin county several years ago before the XXXXXXXX purchased the vacant parcel which they now live on in a house which got a building permit based on an "open" road permit. The abandonment was of the county and public rights and is fully recorded in the county records. With an abandonment the easement is erased from the records and the underlying abutting landowners (if there are plat owners on each side) have their underlying title right relieved of the easement. SO basically their title rises to the top and the land becomes 100% private even if impressed with other private rights other than just theirs. There are many reasons people want to acquire right of ways by roadway abandonment but the process is rigorously controlled by state statutes and county ordinances. The Florida case law archives are filled with many boring cases over the surprise often created by this legal action. The Trail Association got a start as a result of the now infamous SW 66th Ave abandonment. The history of this is interesting but not too relevant. However suffice it to say that the process was legal, a suit was filed, the case was mediated, the easement is a private easement now held by agreement by me and my wife against the abandoner and freely used by the Trail Association as a trail from SW 33rd St to SW Gator Trail all a matter of record in the archives. The abandoners are likely not happy but we are all learning to cope. We have several beneficial abandonments in the works now that we better understand the process and the law and that they can work beneficially for all people not just be a means of closing off use of the easement that an owner does not like. The package directing efforts to comply with the requirements for roadway abandonment are available from the county but remember private rights may survive, you likely should have an attorney, and you may not get what you think you are buying. We did have an attorney for the action above. 
SW 54th Ave trail from Cherokee to Ludlum:

At the SW 54th Ave. crossing of Ludlum St. is found a survey stake with the surveyor's ID on the yellow plastic cap. When we returned to stake out the ROW (right of way) it was already done and appears accurate by reference to the official survey marker on the south side of Ludlum. Many thanks to the owners of the abutting property for this work. The marker found on the south side does indeed rest in the center of the ROW of SW 54th Ave.  The stakes placed and flagged on the north side were 30 ft apart and were centered on the survey marker on the south side. We know exactly (subject to surveyor accuracy) where the property rights would extend to from both sides of the ROW. There are two legal processes to remove the public and private rights to use this ROW. The County Roadway Abandonment Process or the approval of a re-plat would remove the public rights but not our private rights. These two public processes must be followed by the removal of our private rights by properly adversely possessing the ROW. Adverse possession has rigorous requirements and seldom is properly executed. This Florida Case Law paragraph is shared to more clearly define this subtle point. The yellow text is copied from the following Supreme Court Case: 
 
NEW FORT PIERCE HOTEL COMPANY, for the use of LUCY J. CARLTON, joined by her husband and next friend, L. L. CARLTON, v. PHOENIX TAX TITLE CORPORATION, and GEORGE STEWART
[NO DOCKET NUMBER]
SUPREME COURT OF FLORIDA, Division B
126 Fla. 552; 171 So. 525; 1936 Fla. LEXIS 1652
December 22, 1936
 
 
This point was definitely settled in the case of Smith v. Horne, 70 Fla. 484, 70 Sou. 435, where we held:

"Where the owner of land has it surveyed, mapped and platted showing subdivisions thereof, with spaces for intervening streets or other highways between the sub-divisions 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 [*554] 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 [***3] the grantees, and the titles 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."

2011 Florida Statutes 
Title XXIII 
MOTOR VEHICLESChapter 316 
STATE UNIFORM TRAFFIC CONTROLView Entire Chapter 

316.2123Operation of an ATV on certain roadways.— 
(1)The operation of an ATV, as defined in s. 317.0003, upon the public roads or streets of this state is prohibited, except that an ATV may be operated during the daytime on an unpaved roadway where the posted speed limit is less than 35 miles per hour.
(2)A county is exempt from this section if the governing body of the county, by majority vote, following a noticed public hearing, votes to exempt the county from this section. Alternatively, a county may, by majority vote after such a hearing, designate certain unpaved roadways where an ATV may be operated during the daytime as long as each such designated roadway has a posted speed limit of less than 35 miles per hour and is appropriately marked to indicate permissible ATV use.
(3)Any ATV operation that is permitted under subsection (1) or subsection (2) may be undertaken only by a licensed driver or a minor who is under the direct supervision of a licensed driver. The operator must provide proof of ownership under chapter 317 upon the request of a law enforcement officer.
History.—s. 14, ch. 2006-290; s. 17, ch. 2007-196.


ATV or 4-Wheeler use on the roadways is a problem for some. The County has options that need to be worked by the people to provide a remedy. Perhaps certain roadways in the Farms should be designated as OK for responsible 4-wheeler or ATV use.
SEVERAL FOLKS HAVE CLAIMED THEY ARE PAYING TAXES ON THE RIGHT OF WAYS AND THEREFORE THEY OWN THEM
Though tax payments are generally thought to be proof of ownership as was claimed in the Laube Case above: this is a myth. The property appraiser's office answers this question in whatever detail people need to be convinced that they are not paying taxes on the right of ways in Palm City Farms. The office admits there may be mistakes that will be corrected. The person questioning is provided: first a careful check of the data in the office and second:  a detailed comparison of the official survey of the property stamped by a surveyor when presented to the office for a detailed check. The contact who has answered questions posed is :  Judy Bentel
GIS/Mapping Manager Martin County Property Appraiser
judy.bentel@pa.martin.fl.us  (772)288-5616 (772)221-7411 fax

INDIAN ROCKS BEACH SOUTH SHORE, Inc. v. EWELL et ux.
[NO DOCKET NUMBER]
SUPREME COURT OF FLORIDA, Division A
59 So. 2d 647; 1952 Fla. LEXIS 1690; 32 A.L.R.2d 940
June 13, 1952; Rehearing Denied July 7, 1952

EXCERPTED SECTION: 
 They knew of should have known that the County had protected the rights of the public in and to Dock Way. They knew or should have known that without the opening and paving of Pass Avenue, the lots on each side of "Bay Place" would have been inaccessible and would never have been of their present value. They knew that the plat had been filed for record and it contained an offer to dedicate all of the roads, streets and public places shown on the plat to Pinellas County for highway purposes. They knew or should have known that the cross-streets shown upon said plat were for the purpose of enabling the public to get either to the Gulf or to the Bay. They knew that "Bay Place" was shown upon this map and that it was bounded on one said by Pass Avenue and on the other side by a meander line on the Bay. Neither Pinellas County nor its successor, appellant here, was estopped to open and improve "Bay Place" as a highway for the use of the public, including the appellees. Any title held by the appellees to "Bay Place" is subject to the easement shown by the dedication on the recorded plat. [**30] 


Hugh A. WATERMAN and Frank J. Sharp, Appellants, v. Walter E. SMITH and Margaret M. Smith, Husband and Wife, as an Estate by the Entireties with Right of Survivorship, Appellees.

No. 28222.

Supreme Court of Florida, Special Division B.

94 So. 2d 186; 1957 Fla. LEXIS 3386

 
March 13, 1957; Rehearing Denied April 24, 1957.

COUNSEL:  [**1] 

Donald Walker, Orlando, for appellants.

Walter E. Smith, Orlando, for appellees.

OPINIONBY: THOMAS

OPINION:  [*187]  THOMAS, Justice.

This litigation involves an alley 15 feet in width extending west from the east line of a subdivision, Rogers and McCall's addition to Orlando, a distance of 127.84 feet. The east and west termini of the alley are dead ends, but an alley ten feet in width, forming a right angle with the 15-foot alley extends sough to Pine Street. The alleys as they appear on the plat of the subdivision, filed in 1886, are, therefore, in the shape of an inverted "L". The western part of the 15-foot alley has been obstructed since 1920. The appellants instituted a suit seeking a removal of the obstructions, and lost.

The chancellor concluded that there was no evidence of acceptance of the offer to dedicate the alleys prior to the year 1929 when the city paved the ten-foot alley and any presumption that this constituted an acceptance of the 15-foot alley also was "negatived by repeated disclaimers" such as the action of the city council in 1932 declining to take any steps to open the alley "since the alley [was] a dead-end alley," and in declaring the same year [**2]  that "it did not care to go into any lawsuit to have the alley opened up." On the latter occasion an attorney representing an interested party had appeared before the council in an effort to have the city cause the alley to be freed of the obstructions and had represented to the council that all property owners "thereabout," to quote from the minutes of the council, but one, had petitioned to have the alley opened. This attorney was advised "there would be no objection to [his] bringing proceedings to this effect in the name of the City, but that the City would not be a party to any litigation involved thereby." How the suit could be brought in the name of the city without the city's becoming a party is rather obscure but we need not make any excursion on this tangent because we are now analyzing the minutes of the city council, shown in Defendant's Exhibit No. 2, which, according to the decree, influenced the chancellor in deciding that by accepting the dedication of one alley, no presumption arose that the city accepted the dedication of the connecting alley.

Thirteen years seem to have passed before another request was made that the alley be opened and the request was referred [**3]  to the engineering and legal departments for investigation. Two weeks later the engineer reported that the alley had been closed for more than 50 years and that the city had no authority to open it. Following  [*188]  this report by the engineer, which appears to have been a mixed one of fact and legal opinion, it was unanimously decided to advise the then petitioner that it appeared from the city records that the alley had never been accepted and that same had been closed since 1886. It will be remembered that this is the year the dedication was made. During the same month the city attorney, evidently in response to the reference that had been made to him as well as the engineer, submitted an opinion regarding the matter but we are not advised of its contents. In the minutes, immediately following the recital of the receipt of this opinion, there appears the notation that the opinion was ordered filed inasmuch as the last petitioner had been "notified that the City [had] no authority to open [the alley]."

We have difficulty attributing much significance to the minutes we have analyzed so far as abandonment and lack of acceptance are concerned. It is plain that the [**4]  city refused to take any steps toward opening the alley but it is not at all clear, because of the ambiguities in the minutes, that there had never been an alley over which the city had control.

To summarize, the first reason for failure to act was the nature of the east-west alley, that is, that it had a dead end. Next the city council expressed an unwillingness to get into a law suit but a willingness to permit a law suit in the city's name. We have already commented on this position. Then came the report of the engineer that the alley had been closed for 50 years and that the city had no authority to open it, and a direction from the council that the clerk notify the person who had last requested the city to open the alley, both that it had never been accepted and that it had been closed since 1886, the year it came into existence.

From what we have learned from these minutes, we get neither the conviction that the alley in dispute was never accepted nor the conviction that once accepted it was legally abandoned.

The chancellor thought that the dedication of neither alley had been accepted prior to the year 1929 when the city paved the ten-foot alley from its juncture [**5]  with the 15-foot alley to Pine Street, and, as we have observed, he thought this action had no effect on the 15-foot alley which he expressly stated had never been accepted. And he concluded that the "private right of easement" implied from the conveyance to the appellants of lots according to the plat could be barred by adverse possession. We interpolate here that there was testimony that the alleys were used for pedestrian traffic as early as 1912 and for many years afterward.

According to the chancellor's findings of fact, the appellees' predecessors from 1919 to 1925 occupied continuously the lots adjoining the 15-foot alley on the north and the alley was not open at the time they acquired the title, but on the contrary a fence separated the two alleys and soon afterward these owners erected a fence about 30 feet east of the one then in existence which extended north six feet, east about 20 feet, thence north nine feet to the north boundary of the alley. So since the year 1920 the western portion of the alley has been enclosed by the fences and the wall of a building. One owner of the lots on the north used the enclosed part of the alley for many years as a flower garden [**6]  claiming, decided the chancellor, "adversely and exclusively of all other persons whomsoever" before he conveyed to appellees.

In the decree the chancellor declared that an irregular parcel of a maximum width of 15 feet located in the west half of the 15-foot alley was owned by the appellants in "fee simple title absolute by reason of adverse possession * * *." (Italics supplied.)

We think we must review the history of these alleys from the time of their origin  [*189]  until the present to determine whether or not (1) they were dedicated, (2) the offer of dedication was accepted, and (3) after acceptance they were abandoned.

The plat on which the alleys were designated was filed and recorded 7 October 1886, and we find nothing on the plat to warrant any discrimination between them. So far as we are advised there was never a withdrawal of such offer of dedication as was made, and although any definite action of the city evidencing an express acceptance was tardy, it does appear that the north-south alley or part of it was paved about twenty years before this suit was started. It was this act which the chancellor considered an acceptance but only of the north-south [**7]  alley. In our opinion it affected both. Moreover, there was evidence of actual user, at least of the east-west alley. The offer and acceptance related to both alleys; nothing has been shown us that in these aspects there was occasion to place them in different categories. Indian Rocks Beach South Shore, Inc., v. Ewell, Fla., 59 So.2d 647, 32 A.L.R. 940. The present case is a good illustration of the practicality of such a ruling. If the two alleys were to be considered independent, an abandonment of the north-south alley would leave the east-west alley without an outlet to the street, and, as the decision now stands, the adjudication that fee simple title of an irregularly shaped tract, 15 feet wide at the widest place, leaves the larger, eastern, part of the east-west alley without entrance from any street.

The appellees concede that the owners of abutting property own the underlying title to the center of the street. Under the present decree the property in the alley they are declared to own has east and west boundaries coinciding with the east and west boundaries of their lots as extended, but for a distance of 29.46 feet it reaches clear across the alley, for a considerable [**8]  distance it has a width of nine feet, or a foot and a half beyond the center line, and at another place for a distance of ten feet, a width of 12.6 feet or 5.1 feet beyond the center line.

The basis for the holding that the appellees had the fee simple title to the property not only to the center of the alley but beyond was the adverse possession they are supposed to have exercised, else upon failure of acceptance of the offer of dedication or upon abandonment they would have owned only to the center. Concluding that the alleys were dedicated and accepted as a unit, we approach a solution of the final problem, that is, whether or not the appellees could have obtained fee simple title to a part of the east-west alley by adverse possession. We reach the decision that under the circumstances we have related the appellees could not have become vested with title in fee simple to the property involved; that adverse possession of property held by a city for the use of the public cannot ripen into a prescriptive title. Norrell v. Augusta Ry. & Electric Co., 116 Ga. 313, 42 S.E. 466, 59 L.R.A. 101. According to this authority the obstruction of a street is a public nuisance. Not only [**9]  is this the nature of an undertaking to acquire a street for private use, but even the failure of the city cannot operate to "'invest an intruder with title'" to a street. House-Wives League, Inc., v. City of Indianapolis, 204 Ind. 685, 185 N.E. 511. Cf. City of Gainesville v. Thomas, 61 Fla. 538, 54 So. 780.

Our understanding of the authorities is that title by adverse possession cannot grow out of the use of a street which amounts to an obstruction, and that this cannot be accomplished so far as the land to the center is concerned much less to the land beyond the center. The citations of cases on the general subject are listed in 2 C.J.S., Adverse Possession, § 14.

Whether the dedication of both alleys was accepted by user in 1912, or, the dedication of the north-south alley was accepted by the act of paving in 1929, which the chancellor thought affected only that alley and  [*190]  we think affected both, if it is taken as an act of acceptance, still we cannot agree that a user beginning in 1920 for other than street purposes could have become the basis of title by adverse possession, no evidence of withdrawal of the offer having been presented. And before we close we [**10]  reiterate the view that the expressions in the minutes, considered as a whole, do not deserve any construction but the one that the city was merely indifferent to causing the removal of the obstructions.

We disagree, though reluctantly, with the veteran chancellor so the decree is -

Reversed with directions that the cause proceed in a manner consistent with these views.

TERRELL, C.J., and ROBERTS, J., and KNOTT, Associate Justice, concur.

 Analysis:
city/county /municipality are the same rules under the law
ACTION                       DATE     DURATION
PLAT RECORDED1886FOREVER or Until voided, roadways are abandoned if plat accepted, or re-platted.
ROW OBSTRUCTED    192037 YEARS
ROW RECOVERED      195771 YEARS

This means Martin County can search their records back 87 years and Palm Beach Counties back an additional 9 years to find a single act of either county to do any of the nearly limitless things that would prove county acceptance through acts of their own or observation of the public behavior to indicate user.  Then depending on how old it was it might be wise to see if this is too old.
First abandonment of a roadway in Old Palm City 6/30/58 with statement that roadway maintenance commenced several years earlier.
First roadway abandonment in Palm City Farms 8/2/61.
TRANSFER OF FOUR COUNTY ROADWAYS TO THE STATE OF fLORIDA 1931.
AND BACK AND BACK TO 1916.

REFERENCED IN CASES ABOVE: THIS CASE ALSO DECIDED THAT ACCEPTANCE OF ANY PART MEANT ACCEPTANCE OF THE WHOLE SYSTEM OF ROADWAYS SHOWN ON THE PLAT.
ELLEN F. CAPLES, et al., and FRED P. CONE, et al., as Trustees of the Internal Improvement Fund of the State, v. E. P. TALIAFERRO, et al., as Executors and Trustees under the Last Will and Testament of T. C. TALIAFERRO, Deceased

[NO DOCKET NUMBER]

SUPREME COURT OF FLORIDA

144 Fla. 1; 197 So. 861; 1940 Fla. LEXIS 996

March 8, 1940; On Rehearing October 1, 1940

Excerpt for Simplicity: Bold below for emphasis:

It is well settled [***22]  that a conveyance of land abutting on a street, way or highway carries the fee to the center of the street unless expressly reserved. It is also recognized by our decisions that the conveyance of lands abutting a street, way or highway on both sides thereof, as shown by a recorded plat, invests the fee title in the grantee to the entire width of such street, way or highway between such conveyed lands. See Seaboard Airline Railway Company v. Southern Investment Company, 53 Fla. 832, 44 So. 351; Smith v. Horn, 70 Fla. 474, 70 So. 435; Burns v. McDanial, 104 Fla. 526, 140 So. 314; New Fort Pierce Hotel Company v. Phoenix Tax Title Corporation, 126 Fla. 552, 171 So. 525. In Burns v. McDanial, supra, it was also held that if the subdivider's offer to dedicate land for street purposes, as evidenced by his plat, was never accepted or if such offer to dedicate was accepted and lawfully surrendered, the holder of title to property abutting such tract so offered for dedication held title to the middle of the street, as shown by the plat, relieved of the easement so far as the public was concerned.

The key question then is acceptance of the plat. County asserts they did accept by user that is what they must show convincingly! Then obstructions can be removed by court order if necessary.
JOHN H. GEIGER AND OTHERS, APPETLANTS, vs. JAMES FILOR AND OTHERS, APPELLEES.
[NO NUMBER IN ORIGINAL]
Supreme Court of Florida
8 Fla. 325; 1859 Fla. LEXIS 6
Term, 1859, Decided
Yet there [**25] is an interest remaining in the proprietor of a town, or his vendees, which it may be material to enquire into still further to elucidate the subject. The owner of the land over which the highway passes retains the fee and all rights of property not incompatible with the public easement, and whenever the highway is abandoned or lost, it becomes his original unincumbered dominion.--Angel on High., 301.

[*341] The learned author, in continuation of the subject, makes these remarks:

"The rights which the ownership of the fee, where it exists, gives are subject in practice to endless modifications depending upon the exigencies of the public and the location of the highway. The more ancient decisions limited the rights of the public to that of passage and repassage and treated any interference with the soil other than was necessary to the enjoyment of this right as a trespass. But the modern decisions have very much extended the right, and, particularly in the streets of populous cities, have reduced the interest of the owner of the soil to a mere naked fee of only a nominal value."--Ibid., 312."



FLORIDA POWER CORPORATION, Appellant, v. M. S. McNEELY and Beth B. McNeely, his wife, Appellees
No. 1650
District Court of Appeal of Florida, Second District
125 So. 2d 311; 1960 Fla. App. LEXIS 2240
December 2, 1960
Adverting again to Thompson on Real Property, Vol. 1, section 328, pp. 524 and 525, it is seen:

"An easement is not a right to the soil of the land or to any corporeal interest in it, but it is an incorporeal right in the corpus which is [**8]  considered an interest in the land itself. While it is a right distinct from the ownership of the soil, it is more than a mere personal privilege. Also, while an easement does not operate to dispossess the owner of the fee, the title to the land may be a mere naked one with none of the usual advantages of ownership. "





COMMENT: OVER 100 YEARS THE DESCRIPTION OF EASEMENT VS FEE SIMPLE TITLE HAS REMAINED THE SAME. PERHAPS A NEW SEARCH OF LEXIS SCRIPTS USING THE TERM “NAKED” WOULD PRODUCE MORE CASE REFERENCES.


James K. OWEN et ux., et al., Appellants, v. James L. YOUNT et ux., et al., Appellees
No. 6983 Court of Appeals of Florida, Second District 198 So. 2d 360; 1967 Fla. App.  LEXIS 4763 April 26, 1967

“In the instant case, there was not a full fledged effort to establish the classical elements of an easement by prescription, but there was no need to do so. We find that the property in question was validly and legally impressed with an easement by virtue of the written grant and dedication thereof in the plat and the acceptance of such plat by the official representatives of the public.

This entire case distills down to one consideration and could have been presented by the parties and tried upon it alone. To make the case, it is necessary only to recognize the existence of a valid easement and then proceed to the next and final step of interpreting the uses to which that easement might be put. The easement is entitled "drainage easement." The dedicator did not favor us with the type of drainage he had in mind when reserving this property for that use. We are aware that the removal [**7]  of surface water is often called "storm drainage" and falls into two general categories, to-wit: surface drainage and subsurface drainage. In municipal parlance, surface drainage is often referred to as "improved drainage" meaning by curbs and gutters and "natural drainage," which obviously means the movement of excess water by gravity over a natural or artificial slope of unpaved land. It is difficult to imagine how the use of this easement for any of these drainage purposes would interrupt more than temporarily the usage contended by plaintiffs below, which is for access to the waterfront. Conversely, since we cannot accurately anticipate what structures might be necessary for use of an easement for drainage, we cannot conclude that use of the easement for access to the waterfront will necessarily interfere with the purpose of the dedication for a drainage easement. Accordingly, we think that the activities of all of the parties clearly imply an interpretation of this validly dedicated easement that would permit use of the easement for access to Lake Winterset in such manner as will not interfere with the primary purpose of the easement, announced of record, which is for drainage.  [**8]  The obvious predominant purpose of the easement is for drainage and the plaintiffs below had a duty to inquire by examining the recorded plat so that their reliance upon word of mouth and other advertising and salesmanship did not relieve them from submitting to such predominant purpose of the easement. However, a valid secondary purpose for which the easement may be used is the use for which the plaintiffs contend, to-wit: use for reasonable access on foot and by vehicle to Lake Winterset so long as it does not impair or interfere with the easement's use for drainage purposes.

With a fair appraisal of their own positions and with consideration of the interests of others, we feel that this simple and logical result could and should have presented itself to the parties, which would have made litigation unnecessary. In the interest of forestalling further unnecessary  [*364]  litigation, we would observe that this dedication is not limited to use by owners of lots in the subdivision known as Lake Winterset Acres, but rather the dedication was made to the public.

The able and conscientious Trial Judge provided primary assistance in the understanding and solution of the matters [**9]  in contest by his articulate Final Decree, which included an exposition of his views.”

The key question then is acceptance of the plat. MARTIN County asserts they did accept by user that is what they must show convincingly! Then obstructions can be removed by court order if necessary.
Even in a case where the plat was not accepted the fencing of all right of ways shown and the grazing of cattle on the land of the right of ways was not allowed
ROY PLATT, Appellant, v. LILLIAN PIETRAS, et al, Appellees No. 78-2684/T4-333 
Court of Appeal of Florida, Fifth District 382 So. 2d 414; 1980 Fla. App. LEXIS 15900 April 9, 1980 (plat not accepted)

"In 1950, appellant Platt became the owner of 1733 lots in a platted subdivision in Brevard County containing a total of 1840 lots. The remaining 107 lots were owned by the named plaintiffs and by other owners too numerous to name, so the action was prosecuted as a class action. Platt sold his 1733 lots in 1956, but later acquired a grazing lease thereon, and was the holder of such grazing lease when the present action was filed. The amended complaint alleged that Platt had constructed a fence which completely blocked the platted roads and streets, some [**2] of which had been in use though unpaved; that he blocked plaintiffs' access to their lots and that he allowed his cattle to trespass thereon. Platt affirmatively defended by claiming a prescriptive right to graze cattle on plaintiff's lots."

“He (The Judge) then enjoined the continued trespass, required the removal of the fence from all places where it blocks platted streets leading to any of the appellees' lots, enjoined the grazing on those lots or the platted streets, and awarded damages to the appellees in the total amount of $ 3,075.80.”

“It is appellant's position that the court was in error when it applied the "right-of-way" rule to a general easement, that only cases involving a claim of prescriptive right-of-way require proof of a definite route and termini and the actual length and width of the road, Downing v. Bird, 100 So.2d 57 (Fla.1958); Sunnybrook Groves, Inc. v. Hicks, 113 So.2d 239 (Fla.2d DCA 1959). True, those cases and others do impose those requirements on road right-of-way easements, but our agreement [**4] with appellant's interpretation of these cases does not solve the problem here. Perhaps the trial court should not have applied the right-of-way doctrine to the type of easement claimed here since while rights-of-way are easements, all easements are not rights-of-way. Still, this possibly erroneous application of a rule does not make the ultimate decision wrong. “

"Thus, while appellant calls his claim a prescriptive easement, in reality he claims adverse possession, but concededly has not perfected adverse possession because he has never returned appellees' property for taxes nor paid the taxes thereon. Sec. 95.19, Fla.Stat. (1975)."

Old Roy though that because he held a grazing lease for some of the lots in a huge land scam subdivision that he would just fence the whole area and use it all. A few of the owners of parcels trapped in this mess finally had enough of Old Roy and sued. Even though the deal had been going on for years Roy got to refence the land appropriately so as to exclude the cattle from the parcels and the right of ways. Roy might have gotten the right of ways if properly adversely possessed since the plat was never accepted by formal resolution or user.




TOWN OF PALM BEACH, a Florida Municipal Corporation, et al., Appellants, v. PALM BEACH COUNTY, etc., Appellee

No. 74-738

Court of Appeals of Florida, Fourth District

313 So. 2d 770; 1975 Fla. App. LEXIS 13768


June 6, 1975

SUBSEQUENT HISTORY: [**1] 

Rehearing Denied July 2, 1975.

COUNSEL: Arthur G. Wroble and H. David Faust of Burns, Middleton, Farrell & Faust, Palm Beach, for Appellant-Town of Palm Beach.

Carol Crosswell Smith, Palm Beach, for Appellants-Butler.

Thomas H. Heaton, III, Miami, and Robert William Rutter, Jr., West Palm Beach, for Appellee-Palm Beach County.

JUDGES: W.H. Moriarty, Associate Judge. Owen, C.J., and Walden, J., concur.

OPINIONBY: MORIARTY

OPINION: [*770] This is an appeal from a Final Judgment wherein the Appellant, Town of Palm Beach, was ordered to remove certain signs and obstructions across the rights-of-way of Indian, Arabian, Caribbean and Mediterranean Roads, east of Ocean Way, [*771] and on Merrain Road, east of Ocean Boulevard, within thirty (30) days.

The rights-of-way as set forth herein-above came into being as a result of certain plats filed with the appellee in 1925 and 1928. The rights-of-way covering Indian, Arabian, Caribbean and Mediterranean Roads are set forth in the Boca Ratone Company's Inlet Subdivision Plat filed in 1925, while the rights-of-way on Merrain Road (a/k/a as Incanto Road) are set forth in the Plat titled Bello Lido filed in 1928.

The Boca Ratone Company's [**2] Inlet Subdivision Plat dedicated Indian, Arabian, Caribbean and Mediterranean Roads with thirty-five (35) foot rights-of-way going west of Ocean Way, while their eastward extensions east of Ocean Way were dedicated as fifteen (15) foot rights-of-way, which were pathways from Ocean Way to the Atlantic Ocean.

The Bello Lido Plat dedicated Merrain Road (a/k/a Incanto Road) as a twenty (20) foot right-of-way west of Ocean Boulevard and also its eastward extension east of Ocean Boulevard to the Atlantic Ocean was dedicated as a twenty (20) foot right-of-way.

It is uncontroverted that the appellant, Town of Palm Beach, never accepted the above mentioned plats by formal act and it is equally uncontroverted that Indian, Arabian, Caribbean, Mediterranean and Merrain (a/k/a Incanto) Roads were improved and maintained as paved streets on that portion west of Ocean Way and Ocean Boulevard but not on that portion east of Ocean Way and Ocean Boulevard, and said appellant, Town of Palm Beach, had in fact erected and maintained for many years barricades, fences and a bench, which prevent the general public ingress and egress on that portion of the rights-of-way east of Ocean Way and Ocean Boulevard [**3] to the Atlantic Ocean.

The record in this case shows that the rights-of-way of Indian, Arabian, Caribbean and Mediterranean Roads west of Ocean Way, along with Merrain Road (a/k/a Incanto) west of Ocean Boulevard, were accepted by implied acceptance, in that the rights-of-way were actually paved roads, maintained by the appellant, Town of Palm Beach, and used by the general public.

It is well settled law in this state that the acceptance of a portion of the right-of-way in a plat constitutes an acceptance of the entire network of rights-of-way in said plat so as to make them available for the public use. Indian Rocks Beach South Shore v. Ewell, 59 So.2d 647 (Fla.1952); Waterman v. Smith, 94 So.2d 186 (Fla.1957).

Based on the foregoing, we hold that upon acceptance of the rights-of-way west of Ocean Way and Ocean Boulevard by the appellant, Town of Palm Beach, the rights-of-way east of Ocean Way and Ocean Boulevard were also accepted by said appellant. It appearing from the record that the portions of rights-of-way east of Ocean Way and Ocean Boulevard remained available for public use and that the appellant, Town of Palm Beach, never placed them on the tax rolls nor lawfully [**4] closed them by ordinance or resolution, said portions of the rights-of-way of Indian, Arabian, Caribbean and Mediterranean Roads east of Ocean Way and that portion of the right-of-way of Merrain (Incanto) Road east of Ocean Boulevard should remain dedicated to the use of the general public.

No error appearing in the record, the judgment of the lower court is affirmed.

Affirmed.

OWEN, C.J., and WALDEN, J., concur. 

The case below is the County of Palm Beach v the Town of Palm Beach:
The plat is old 1925 the acceptance was by user the same as Palm City Farms.
Portions of the right of ways were paved and portions were fenced and taken from the public use similar to our situation. The Town was ordered to remove the obstructions and free the right of way to public use.  These right of ways are there today and are open for use of the people thanks to the correction of the taking made by the court. It is difficult to understand why this is not a duplicate situation to that of Palm City Farms! Admittedly the taking of the right of ways had been for many years similar to those we are trying to recover in the Farms.
According to the plat (which must be read into the deeds) the roadways are shown as bounding the parcels, parcels sold are specifically referenced by tract number in the deeds, and there is a reservation of the use of the right of ways in the dedication that is for the successors and assigns of the company. There is a question for the court whether this plat and the deeds negates the ownership to the center of the roadway making them still available if not adversely possessed even after an abandonment of the public and county rights.This question cannot come into play until the public rights are removed.
Myth to be refuted: I own to the center of the roadway and I will not let you use what I own; find another way. How does one know what they own?
The derivation of the myth is the Supreme Court ruling in Smith v. Horn, 70 Fla. 484, 70 Sou. 435 as well used and summarized in the case below. The mistake is forgetting that the ownership is subject to the easement. Until the easement vested with acceptance of the plat is removed legally the fee simple ownership is encumbered by the easement.
PATH TO  RECOVERY OF TAKEN ROWs IS WORK IN PROGRESS

PEOPLE AND ATTORNEYS ARE RESISTANT AND NEED HELP:
ALL ITEMS IN BLACK BELOW ARE AVAILABLE THE RED ACTION IS NOT IN HAND BUT IS BEING WORKED WITH THE COUNTY


HISTORIC DOCUMENTATION NEEDED TO UNDERSTAND THE CURRENT SITUATION

PLATS AND MAPS
ORIGINAL PLAT OF PALM CITY FILED MAY 11,1912 BOOK 2 PAGE 24 PALM BEACH COUNTY
AMENDED PLAT OF PALM CITY WHICH IS A REPLAT OF ABOVE FILED BOOK 6 PAGE 41 AND 42 PALM BEACH COUNTY                     RECORDS PAGE 42 IS CALLED THE PALM CITY FARMS
REPLATS IF ANY OF ANY AREA SHOWN AND NEEDING EXAMINATION
DRAINAGE DISTRICT OF PALM CITY BOOK 4 PAGE 60 MC RECORDS



CURRENT DOCUMENTATION NEEDED TO UNDERSTAND


PROPERTY APPRAISER’S MAP AND DATA EXAMINATION
DEED TO THE PARCEL
SURVEY OF THE PARCEL
TAX OFFICE EXAMINATION FOR EXTENT OF TAXES PAID
CURRENT LETTER FROM COUNTY ABOUT PLAT ACCEPTANCE, RIGHT OF WAY EXISTENCE, AND PROPER USE


SITE EXAMINATION AND OWNER INTERFACE

CURRENT OCCUPANT CONTACT
INSPECT FOR LOCATION OF ROW
INSPECT FOR OBSTRUCTIONS AND HAZARDS
DETERMINE ATTITUDE OF OWNER
ASK FOR SURVEY OF THE PROPERTY
ASK FOR DOCUMENTATION THAT THE ROW IS THEIRS 
ASK FOR REMOVAL OF OBSTRUCTION
REFUSAL BRINGS ON NOTICE AND LEGAL PROCESS