Daytona Beach v. Tona-Rama, Inc.
294 So. 2d 73 (1974)
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Rule of Law:
The public does not acquire a prescriptive easement over private property unless its use is adverse to the owner's rights and inconsistent with the owner's use. Alternatively, the public may have a right to use private dry sand beach areas based on custom, but the landowner may still make any use of the property that is consistent with and not calculated to interfere with such customary public use.
Facts:
- For over 65 years, McMillan and Wright, Inc. has owned waterfront property in Daytona Beach, which includes a 15,300 square foot area of dry sand adjacent to its commercial ocean pier.
- The public has continuously and for many decades used this dry sand area for recreational purposes such as sunbathing.
- McMillan and Wright, Inc. never objected to the public's use of the sand; rather, it welcomed the public, as visitors were potential customers for its pier business.
- Tona-Rama, Inc. operated a competing observation tower near the property of McMillan and Wright, Inc.
- McMillan and Wright, Inc. obtained a permit from the City of Daytona Beach to build a new observation tower on its dry sand property.
- The new tower's foundation is 17 feet in diameter, occupying approximately 225-230 square feet of the 15,300 square foot parcel of land, and is accessible only from the pier.
Procedural Posture:
- Tona-Rama, Inc. sued McMillan and Wright, Inc. and the City of Daytona Beach in the state trial court for a declaratory judgment and an injunction to prevent the tower's construction.
- The trial court denied Tona-Rama's request for a temporary injunction, and the tower was completed.
- The trial court granted summary judgment in favor of Tona-Rama, Inc., finding the public had acquired a prescriptive right to the land, and ordered the tower removed.
- McMillan and Wright, Inc., as appellant, appealed to the District Court of Appeal, First District.
- The District Court of Appeal affirmed the trial court's judgment.
- The District Court of Appeal certified its decision to the Supreme Court of Florida as passing on a question of great public interest.
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Issue:
Does the public's long-standing, uninterrupted recreational use of a privately-owned dry sand beach area establish a prescriptive easement that prohibits the owner from constructing a building on the property, when the public's use was not adverse to the owner's interests?
Opinions:
Majority - Adkins, C.J.
No. The public's use of the beach area did not establish a prescriptive easement preventing the owner from building a structure because the use was not adverse to the owner's interests. To establish an easement by prescription, the use must be adverse, under a claim of right, and inconsistent with the owner's use and enjoyment of the land. The court held that the public's use was presumed to be permissive, not adverse, as it was in furtherance of the pier owner's business interests and did not injure the owner's rights. The court also introduced the doctrine of custom, stating that even if the public had a customary right to use the beach, the owner could still make any use of the property, like building a recreational tower, that is consistent with and not calculated to interfere with the public's enjoyment.
Dissenting - Boyd, J.
Yes. A prescriptive right was established because the property is unique and has been treated as public land by both the public and the local government for decades. The dissent argues that when use is open, continuous, and unmolested for the prescriptive period, it should be presumed adverse, shifting the burden to the landowner to prove it was permissive. Allowing the structure to stand would set a dangerous precedent, potentially leading to a 'concrete wall' of development that would block public access and views of the ocean. However, the dissent would apply equitable principles to allow the owner to recoup its investment before removing the tower.
Dissenting - Ervin, J.
Yes. The trial court's factual finding that a public prescriptive easement had been established should be affirmed, as appellate courts should not disturb such findings. The majority's decision is a regrettable precedent that encourages private commercial intrusion on historically public beach areas. The dissent strongly advocates for applying the broader doctrine of custom to protect the public's immemorial right to use Florida's beaches, arguing the judiciary has a solemn duty to protect the public's rights in such lands.
Concurring in part, dissenting in part - Mager, A.J.
Yes, a prescriptive easement was established, but the tower should not be removed. This opinion agrees with the other dissents that the public acquired a prescriptive easement. However, it argues that under the equitable doctrine of 'balancing the conveniences,' the harm to the owner of removing the $125,000 tower is wholly disproportionate to the benefit to the public, especially since the tower occupies a minuscule portion of the beach. Therefore, equity dictates that the tower, built in good faith, should be allowed to remain as public and private uses can coexist.
Analysis:
This decision significantly clarified Florida law on public rights to private beaches by reinforcing the strict requirement of 'adversity' for prescriptive easements. It established that permissive use, even over many decades, cannot ripen into a prescriptive right, thereby protecting landowners who allow public access for recreational or commercial benefit. By introducing the doctrine of 'custom' as an alternative basis for public beach access, the court opened a new legal avenue for such claims, though it limited the doctrine's effect by allowing landowners to make consistent uses of their property. This case creates a balancing act, protecting private property rights against forfeiture while acknowledging the public's long-standing interest in accessing Florida's beaches.
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