TIDEWAY CORPORATION, A FLORIDA CORPORATION, AND ANNA HOEFLE, APPELLANTS,
v.
STATE ROAD DEPARTMENT OF FLORIDA, AN AGENCY OF THE STATE OF FLORIDA, APPELLEE
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This case concerns whether a 15-foot strip of land, used by the public for over 30 years as part of a street, is compensable in an eminent domain proceeding when the public authority claims to have acquired surface rights by prescription. The court held that the strip was uncompensable because the public's use was adverse and under a claim of right, establishing a prescriptive easement.
No, the 15-foot strip is uncompensable because the public's continuous use for over 30 years under a claim of right was adverse to the fee owner's surface rights, establishing a prescriptive easement.
“The record clearly revealed that the use of the strip was under the claim that it was a part of the public street.”
Establishes the basis for the court's finding of adverse use.
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Join FLexlaw to unlock all legal intelligenceThe State Road Department of Florida sought to condemn a 15-foot strip of land owned by Tideway Corporation and Anna Hoefle as part of a street improv…
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This appeal is from a final judgment in an eminent domain proceeding. The owner assigns as error a ruling by the trial judge that a 15 foot strip being condemned was uncompensable because public authority had acquired surface rights over the strip. The property, with which this 'cause is concerned, contains a portion of a sidewalk and a portion of the pavement of N. E. 36th Street in the City of Miami which has been used by the public continuously for over 30 years. It is contended that because the original use of the strip was with the permission of the owner that the public could not acquire the right to the use by prescription.
*596The record clearly revealed that the use of the strip was under the claim that it was a part of the public street. It was adverse to any claim of the fee owner as far as the use by it of any portion of the surface is concerned. Also the limits of the strip were clearly defined by the public’s continuous use. We conclude the ruling thus objected to was correct. Downing v. Bird, Fla.1958, 100 So.2d 57; cf. City of Palmetto v. Katsch, 86 Fla. 506, 98 So. 352; City of Miami Beach v. Miami Beach Improvement Company, 153 Fla. 107, 14 So.2d 172; Sunnybrook Groves, Inc. v. Hicks, Fla.App.1959, 113 So.2d 239.
The appellant has presented certain other assignments which we have examined and find to be without merit.
Affirmed.
HORTON, C. J., and CARROLL, CHAS., J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Lottie Sykes Downing v. Bird, 100 So. 2d 57 (Fla. 1958)
- City of Palmetto v. Lucretia A. Katsch and W. A. Katsch, 86 Fla. 506 (Fla. 1923)
- City OF Miami Beach v. The Miami Beach Improvement Co., 153 Fla. 107 (Fla. 1943)
- Int'l Paper Co. v. Brown, 153 Fla. 151 (Fla. 1943)
- McALPIN v. Newton, 113 So. 2d 239 (Fla. 2d DCA 1959)
- Sunnybrook Groves, Inc. v. Alice L. Hicks and her husband, 113 So. 2d 239 (Fla. 2d DCA 1959)