Opinion
February 1, 1952.
Appeal from the Circuit Court for Dade County, Charles A. Carroll, J.
Ben Shepard and Joseph A. Wanick, Miami, for appellants.
B.R. Cisco, Miami Beach, for appellee.
This is an appeal from a judgment entered in quo warranto proceedings by which the City of Miami Beach was ousted of its jurisdiction over the lands of the appellee, and the main issue here is whether the evidence was sufficient to support the judgment of ouster.
The lands of the appellee are located in what is known as "Fisher's Island," and constitute approximately 95 percent of such Island in area and value. This Island, which is about 200 acres in area, was incorporated into the city limits of the City of Miami Beach in 1925. It is, however, separated therefrom by a strip of water, alleged to be 2000 feet in width, formed by the junction of the Atlantic Ocean and Biscayne Bay, the greater part of which is known as the Government Ship Channel which provides a passageway for ocean-going vessels into and out of the Bay. The Island has never been connected to the Miami Beach mainland by either a bridge or a causeway and can be reached only by boat or plane.
It is undisputed that 95 percent of the Island is wild, vacant and unimproved land; that the City does not now and has never supplied the Island with street lighting, sewage, garbage collection, street cleaning or repairing or fire hydrants; and, while the City alleged that it furnishes fire protection to the Island, it adduced no testimony to contradict the appellee's evidence that the City was called upon for fire protection only one time, at which time its fire department arrived only with hand extinguishers and after the fire had been extinguished. There is no evidence that the City owns a fire boat. It also appears that the police protection supplied by the City has been so inconsequential as to be, for all practical purposes, non-existent.
While the evidence does show that a portion of the Island was at one time platted as a subdivision — apparently in 1926 — it was also shown without contradiction that the lands so platted are "not in truth and in fact an actually existing subdivision of lots and blocks, but is just wild, vacant, unimproved property," without any improvements in the way of houses, buildings or other things.
The City alleged and proved that in 1938 it purchased a privately owned water system on the Island and has, since that date, been supplying water to the Island. There were three water customers on the Island in 1938, and there are presently six such customers. It appears, however, that the City purchases the water from the City of Miami and re-sells it to the customers at a profit, so that this service can hardly be called a "municipal benefit" sufficient, without more, to justify the taxation of appellee's property.
Under the circumstances, as related above, we think the evidence was entirely sufficient to support the judgment of ouster, under the authority of our decisions in City of Coral Gables v. State ex rel. Watson, Fla., 38 So.2d 48; City of Coral Gables v. State ex rel. Landis, 129 Fla. 834, 177 So. 290; State ex rel. Davis v. City of Largo, 110 Fla. 21, 149 So. 420; State ex rel. Attorney General v. City of Avon Park, 108 Fla. 641, 149 So. 409; and State ex rel. Davis v. City of Stuart, 97 Fla. 69, 120 So. 335, 64 A.L.R. 1307.
The City also contends here that the appellee is estopped by his acquiescence to question the jurisdiction of the City over the lands now owned by him. It appears that the appellee purchased the greater portion of the property in 1946 and that his last purchase was made in 1950. Time, alone, however, is not a sufficient reason for sustaining the defense of estoppel by acquiescence, City of Coral Gables v. State ex rel. Gibbs, 148 Fla. 671, 5 So.2d 241; and we find no circumstances in the instant case, such as there were in the case just cited, upon which to base an estoppel against the appellee.
For the reasons stated, the judgment appealed from should be and it is hereby
Affirmed.
SEBRING, C.J., and CHAPMAN, ROBERTS and MATHEWS, JJ., concur.