Bonifay v. Garner

445 So. 2d 597
CourtDistrict Court of Appeal of Florida
DecidedJanuary 30, 1984
DocketAM-226
StatusPublished
Cited by10 cases

This text of 445 So. 2d 597 (Bonifay v. Garner) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bonifay v. Garner, 445 So. 2d 597 (Fla. Ct. App. 1984).

Opinion

445 So.2d 597 (1984)

Barry BONIFAY, Appellant,
v.
Robert Edward GARNER, Appellee.

No. AM-226.

District Court of Appeal of Florida, First District.

January 30, 1984.
Rehearing Denied February 24, 1984.

*598 John B. Carr, Pensacola, for appellant.

John P. Welch of Jones & Welch, Pensacola, for appellee.

*599 BOOTH, Judge.

This cause is before us on appeal from final judgment quieting title to land located in Escambia County, which judgment is in pertinent part as follows:

1. That the deed from the developer who originally platted the property herein involved in this action, did convey Block 70, East Pensacola, according to map of J.E. Kauser drawn in 1893, together with any rights that they may have to the riparian rights belonging to any of the foregoing lots or blocks.
2. That Lots 7, 8, 9, 10, 11 and 12 of Block 70 of said subdivision are adjacent to the shoreline of Bayou Texar and the grantees were the recipient of the riparian rights contained in the deed to the property described in Paragraph 1.
... .
4. The description of the property set out in the complaint is a sufficient identification of the property. `A' survey of the property sought to be quieted is attached to and made a part of the complaint. A description is sufficient by which the identity of the land can be established or which furnishes means of identification. A roadway is considered a monument on the ground which is sufficient to identify a boundary.
5. The property owners and their predecessors in title have fenced the property, filled in a portion thereof, cultivated same and exercised dominion thereon for a period of in excess of thirty (30) years, which is indicative of the facts that they were asserting their riparian rights to the property.

This case is the latest in a series of disputes over the ownership of sections of a strip of waterfront property located between Bayou Boulevard and the shoreline of Bayou Texar, a navigable body of water.[1] The lots now owned by appellant Bonifay and appellee Garner were acquired pursuant to the recorded plat of the subdivision of East Pensacola. That plat shows the land in dispute, an unnamed and undesignated strip, as running north and south along the western boundary of the subdivision, between the platted lots and blocks on *600 the east and the meandering shoreline of Bayou Texar on the west. There is no indication on the plat of a road or street on the western boundary of the subdivision, but evidence establishes that in 1908, a wagon trail existed along the undesignated property adjacent to the western boundary of what is now appellee's property. With the passage of time, the wagon trail became more extensively used, until it was finally graded and paved by the county and officially designated as Bayou Boulevard. Neither the earlier wagon road nor the present Bayou Boulevard has ever, apparently, extended all the way to the shoreline, and there remains a strip of land between the water and the road which is referred to herein as the "disputed strip." The disputed strip lies across Bayou Boulevard from the residential lot owned by appellee, is of apparently undefined width, and follows the meandering shoreline.

Appellee Garner brought suit as owner or trustee of residential Lots 7 through 12 in Block 70 of East Pensacola Subdivision, seeking to quiet title in these lots and in the strip of waterfront property located across Bayou Boulevard from the residential lots. Appellee claimed title from a valid chain of title going back to a 1908 deed from East Pensacola City Company to C.H. Turner Construction Company. Alternatively, appellee claimed title to the waterfront property by adverse possession.

Appellant Barry Bonifay, the owner of residential lots in East Pensacola Subdivision, was allowed to intervene, both individually and as a representative of a class consisting of lot owners in the subdivision. Bonifay claims an easement of access to Bayou Texar over the disputed land. This claim of implied easement of access is based upon the conveyance of appellant's subdivision lots with reference to an 1893 map which shows the property in dispute as an undesignated beach or road right-of-way area.

East Pensacola City Company, Inc., a dissolved Florida corporation, C.H. Turner Construction Company, Escambia Realty, and any parties claiming under these entities, were made party to the suit herein, and a brief on their behalf was filed in this court adopting the position of the appellant, Barry Bonifay, herein. The City of Pensacola, also an appellee, filed a supplemental brief.

After a hearing on the matter, the trial court entered a final judgment set out, supra, in pertinent part, holding appellee entitled to quiet title in the residential lots and in the waterfront property. In quieting fee simple title in appellee, the court implicitly rejected appellant's claim of an implied easement over the waterfront property. It is unclear whether the final judgment is based on a finding of conveyance of fee simple title to the disputed waterfront property by the "riparian rights" language of the 1908 deed or on a theory of adverse possession, or on some other basis. Since our duty as an appellate court requires that the judgment below be affirmed if it can be supported on the evidence presented, we have reviewed the briefs and record, propounded supplemental written interrogatories to the parties, had supplemental briefing, oral argument, and reviewed all authorities cited, in an effort to fulfill that obligation.

Two matters are not in dispute here: (1) the ownership of appellee's subdivision lots, and (2) the trial court's holding that there was no public dedication of the undesignated strip, a holding which is not challenged on appeal.[2]

The following issues will be addressed: (1) whether appellee's fee simple title to the waterfront property can be sustained, based on deeds to appellee and his successors referring to "riparian rights;" (2) whether appellee has obtained title to the waterfront property by adverse possession; and (3) whether appellants are entitled to implied easements of access over the disputed property.

*601 Deed Referring to "Riparian Rights"

In 1908, the East Pensacola City Company conveyed blocks and lots in East Pensacola Subdivision to C.H. Turner Construction Company, appellee's predecessor in title, by the following deed:

KNOW ALL MEN BY THESE PRESENTS, that the East Pensacola City Company, Incorporated, for and in consideration of ONE HUNDRED DOLLARS ($100.00) and other valuable consideration ... do bargain, sell, and convey and grant unto the C.H. Turner Company, the following described property, to-wit:
All of Blocks 8, 24, 38, 51, 67, 70, and 74. Also Lots 1 to 5 inclusive, and 17 to 32 inclusive, in Block 16. All of the foregoing lots and blocks being in East Pensacola according to map of J.E. Kauser drawn in 1893.
Grantors hereby convey any right that they may have to the riparian rights belonging to any of the foregoing lots or blocks. (emphasis added)

The judgment below finds that Lots 7 through 12 of Block 7, conveyed by the above-quoted deed, are "adjacent to the shoreline of Bayou Texar," a finding which appears unsupported by any evidence in the record or inference arising therefrom.

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Bluebook (online)
445 So. 2d 597, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bonifay-v-garner-fladistctapp-1984.